HomeMy WebLinkAbout10-3835IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
Brenda L. Klass
Vs.
Zoning Hearing Board of
Silver Spring Township
6475 Carlisle Pike
Mechanicsburg, PA 17050
No. 10-3835 CIVIL TERM
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA}
COUNTY OF CUMBERLAND) .
SS.
TO: Zoning Hearing Board of Silver Spring Township
We, being willing for certain reasons, to have certified a certain action between
Brenda L. Klass pending before you, do command you that the record of the action
aforesaid with all things concerning said action, shall be certified and sent to our judges
of our court of Common Pleas at Carlisle, within (20) days of the date hereof, together
with this writ; so that we may further cause to be done that which ought to be done
according to the laws and Constitution of this Commonwealth.
WITNESS, The Honorable Kevin A. Hess our said Court, at Carlisle, PA., the 10tH
day of June 2010.
u
~ Postage $
m
O Cenffied Fee
O
O Retum Receipt Fee
(Endoreement Required)
~ Restricted Delivery Fee
(Endorsement Required)
~
O
Tote) Postage & Fees
if)
O to
O
Postmen[
Here
Ol PO t3ox 11~.
,'" .~ }
Kathleen Misturak-Gingrich, Esquire
Attorney I.D. No. 41682
Daley Zucker Meilton Miner & Gingrich, LLC
1035 Mumma Road, Suite 101
Wormleysburg, PA 17043
Phone: (717)724-9821
Email: k~ingrich(~dzmmglaw.com
~ S '^
ZO10 J'~~i 1 ~ 1'~ 1' ~ 0
~~'~ _ ~..
;~r.~ ~~~5~`h1~~i~~~lr~.
BRENDA L. KLASE, IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
Intervenor/Appellant,
v.
ZONING HEARING BOARD
SILVER SPRING TOWNSHIP,
DOCKET NO. ~0 - 335
LAND USE APPEAL
~i'v~ ~l
Appellee
NOTICE OF LAND USE APPEAL
AND NOW, this 10th day of June, 2010 comes Intervenor/Appellant, Brenda L. Klase, by
and through her attorneys, Daley Zucker Meilton Miner & Gingrich, LLC ("DZMMG"), and
files this Land Use Appeal from the written decision of the Zoning Hearing Board of Silver
Spring Township, Cumberland County, Pennsylvania, dated May 11, 2010, and in support
thereof states the following:
Parties
1. Intervenor/Appellant Brenda L. Klase ("Klase") owns a parcel of land identified
as Lot 63A on the Minor Final Resubdivision Plan of Lot 63, "White Birch Farms", located in
Silver Spring Township, Cumberland County. Lot 63A is more commonly known as 5 South
Locust Lane, Mechanicsburg, Silver Spring Township, PA 17050.
P~. ~~ia ~~ ~'~ ~'%~yr~-Ch
~ ~~~
,~ ~ ~~~
2. Appellee is the Zoning Hearing Board of Silver Spring Township ("ZHB"),
Cumberland County, Commonwealth of Pennsylvania.
Factual and Procedural Background
3. Klase was an intervenor in the Application for Variance, Docket No. V2010-2
before the ZHB, filed on or about March 9, 2010 by Steven C. and Patty S. Weber (the
"Webers"). Therein, the Webers were requesting a variance to permit them to retain a 10 x 25
foot stone parking area, installed without benefit of a zoning permit, the construction of which, in
conjunction with other property improvements undertaken by the Webers, caused their property
to exceed the maximum lot coverage allowed by Township ordinance.
4. The Webers are the owners of tax parcel # 38-14-0847-053, more commonly
known as 1 South Locust Lane, Mechanicsburg, Silver Spring Township, PA 17050.
5. Klase's property (Lot 63A) is located directly adjacent to the Weber property,
along the southern border of the Weber property. The Klase property line is within 8 feet of the
stone parking area for which the Webers sought a variance.
6. 1 South Locust Lane is located within the R-1 Residential Zone of Silver Spring
Township, pursuant to Silver Spring Township Zoning Ordinance of 2009, as amended through
August 26, 2009 (hereinafter "Zoning Ordinance")
7. The R-1 Residential Zone Design Requirements allow for lot coverage of 20% for
homes serviced by private wells and septic systems, such as the Webers. See Zoning Ordinance
at Section 204.6.
8. The Weber lot size is, at best, 21,527 square feet.
9. The permissible lot coverage for the Weber property is, at best, 4,305 square feet
(21,527 x 20%) according to the R-1 Residential Zone Design Requirements.
2
10. Prior to July 24, 2009, said Zoning Ordinance defined "impervious surface" as,
"Any material that covers the land, which inhibits the percolation of storm water directly into the
soil, including but not limited to buildings, pavement, stone areas, and storm water facilities that
discharge storm water off the site." See, Zoning Ordinance, as amended on February 1 1, 2009,
at Section 112.1
11. Said Zoning Ordinance further defines "lot coverage" as, "A percentage of the lot
area which may be covered with an impervious surface (e.g., buildings, driveways, parking area,
sidewalks). See, Zoning Ordinance at Section 112.
12. By letter dated December 17, 2009, Silver Spring Township notified the Webers
that they had "exceeded the lot coverage by 1,448 square feet which violates the design
requirements" (hereinafter, "Notice of Violation").
13. In the Notice of Violation, Silver Spring Township gave the Webers two (2)
options for compliance-to remove 1, 448 square feet of impervious surface coverage or apply for
a variance, "which may or may not be granted by the Zoning Hearing Board."
14. The Notice of Violation further advised the Webers, "In addition you may need to
submit an application for a storm water permit if you installed new impervious or semi-
impervious surface between 2,000 and 4,000 square feet." See, Notice of Violation and Silver
Spring Township Storm Water Management Ordinance of 2009 at Article II, page 5.
' On July 24, 2009, the defmition of "impervious surface" was changed to read: "Any material that covers the land,
which inhibits the percolation of storm water directly into the soil, including, but not limited to buildings, pavement,
stone areas, and storm water facilities (detention/retention basins) or other equivalent surfaces not designed as a Best
Management Practice (BMP). Acceptable BMP's shall be as defined in the Pennsylvania Department of
Environmental Protection's Stormwater Best Management Practices Manual, Latest Edition. See Zoning Ordinance,
as amended on July 24, 2009, at Section 112. The revised definition of "impervious surface" is identical to the
defmition of "impervious surface" in the Silver Spring Township Storm Water Management Ordinance of 2009.
Tellingly, the impervious surface at issue on the Weber property still constitutes "impervious surfaces" under the
amended defmition as the record clearly indicated that the stone pazking azea was not installed pursuant to a Best
Management Practices.
3
15. Silver Spring Township's Notice of Violation to the Webers was issued as a result
of Klase's complaints to Silver Spring Township about storm water runoff2 onto her property
from the Webers' lot. Klase's complaints of storm water runoff from the Weber property
stemmed from two (2) areas-the Webers consolidation of multiple downspouts into two (2)
collection points for the storm water and redirection of said consolidated downspouts (contrary
to the plans for which the Webers had received an occupancy permit from the Township) onto
the Klase property, as well as the Webers' installation of multiple additional impervious or semi-
impervious surfaces, which prevented the storm water from percolating into the ground on their
own property.
16. In response to Klase's ongoing complaints about storm water runoff from the
Weber property, a representative from Silver Spring Township's engineering firm, Dawood
Engineers, visited Klase's property on October 22, 2009 and subsequently issued a Report dated
November 10, 2009 ("Dawood Report") which stated, "We recommend the Township request
the homeowner(s) of 1 South Locust Lane to provide verification of the current lot coverage and
the total lot impervious area. If the information is not provided, the Township will have to make
its own determination to ensure compliance with the Township's Zoning Ordinance for lot
coverage in the R-1 Residential Zone (i.e., 20:204.6) and the Township's Storm Water
Management Ordinance for storm water management permit application requirements (i.e.,
SWM0:303~(emphasis added)
17. The Dawood Report also stated, "... it appears that improvements have been made
to 1 South Locust Lane without benefit of a building permit or a storm water management
permit."
z Storm water runoff is defined in the Silver Spring Township Storm Water Management Ordinance of 2009 as,
"Drainage runoff from the surface of the land resulting from precipitation or snow and ice melt." See Ordinance at
Article II, page 6.
4
18. The Dawood Report inherently recognized the correlation between the Webers'
violation of the lot coverage design requirements and their failure to request and receive a storm
water management permit or to implement a storm water management plan, despite their
addition of multiple impervious surfaces to their lot (both with and without required zoning
permits).
19. The Webers have made multiple additions to their home over the years of
driveways, decks, garages, rock beds, roof extensions, etc., and in doing so they have
cumulatively exceeded the maximum lot coverage permitted under Section 204.6 of the Zoning
Ordinance.
20. Silver Spring Township Storm Water Management Ordinances of 2007 and 2009
both make clear that, "For purposes of defining minor and major land disturbances, area
calculations are cumulative. See, Article II, Section 203, "Specific Terms", definition of "Land
Disturbance Activity" in both the 2007 and 2009 Ordinances.
21. Klase's Right-to-Know request to Silver Spring Township did not produce any
documents reflecting that for any of the additions or improvements to their property, the Webers
ever requested or received any Storm Water Management permits, nor did the Webers present
any evidence at the ZHB Hearing that they had done so.
22. The most recent addition, sometime in early 2009, of an unpermitted impervious
surface to the Weber property was the addition of the stone parking area 10 x 25 feet in size,
which parking area is the subject of the requested variance and which is a mere 8 feet from the
property line which separates the Weber and Klase properties.
5
23. In response to the Notice of Violation, rather than remove the excessive
impervious surfacing, the Webers elected to file the Application for Variance, the conditional
grant of which is at issue in this Land Use Appeal.
24. The Webers' Application for Variance was filed on March 9, 2010 and requested
relief from "Section 204.6 Design Requirements Maximum Lot Coverage to Exceed the 20%
Allowed."
25. In the letter from the Webers, which accompanied their Application for Variance,
the Webers requested a variance to exceed the maximum lot coverage by 100 square feet to be
able to keep the 10 x 25 foot stone parking area on their property, installed without benefit of a
zoning permit, to avoid one of their children parking a vehicle on the street or to have to
continuously move vehicles around the driveway to let another vehicle enter or exit.
26. A Hearing on the Webers' Application for Variance was held on April 12, 2010,
at which the Webers both participated in support of their Application.
27. Intervenor/Appellant Klase also participated in the Hearing before the ZHB in
opposition to the requested variance because of her escalating concerns about the damage to her
property from storm water runoff from the Weber property onto her property, which problems
had only been exacerbated by the Webers further exceeding the impervious surface design
requirements for a R-1 Residential Zone by adding the stone parking area and other impervious
surfaces (and also by the Webers unlawfully directing their downspouts onto the Klase property).
28. At the Hearing, Klase explained that she would withdraw her opposition to the
requested variance by the Webers should the ZHB condition the grant of the requested variance
on the Webers applying for and receiving a storm water management permit and installing a
storm water management system in compliance with Silver Spring Township's Storm Water
6
Management Ordinance of 2009, which system would prevent the storm water runoff from the
Webers' property leeching onto the adjoining real property of Klase and causing damage thereto.
29. The storm water runoff from the Weber property onto that of Klase has been
exacerbated over the years by the Webers adding the stone parking area which, in addition to
other impervious surfaces added over the years, resulted in the storm water having little ground
in which to percolate. Thus, the storm water runs onto the Klase property causing swales and
marshy areas, which inhibit Klase's use and enjoyment of her property, as well as causes Klase
concern for the purity of her well water, which is located in that portion of her property which
receives the majority of the Webers' storm water runoff.
30. The ZHB issued a written decision conditionally granting the Webers'
Application ("Decision"). A copy of that Decision is marked as Exhibit "A" and attached to this
Land Use Appeal.
31. The Decision concluded, in pertinent part, "It is the opinion of the Board that the
variance requested should be and is hereby granted allowing the applicants to exceed the lot
coverage by 100 square feet in the form of a stone parking area on the condition that the
applicants not pave the stoned area and that it be modified in accordance with Best Management
Practices as certified by a civil engineer to minimize the property's offsite storm water impact."
32. The Decision was served upon the Webers by certified mail, return receipt
requested, on May 11, 2010. See, copy of May 11, 2010 certified letter to the Webers, attached
as Exhibit "B" and incorporated by reference.
33. Neither Klase nor her counsel, despite Klase being an Intervenor of record at the
ZHB Hearing, were served with a copy of said Decision.
7
34. Neither Klase nor her counsel, despite Klase being an Intervenor of record, were
provided the, "brief notice of the decision or findings and a statement of the place at which the
final decision or findings may be examined", as required by the Municipalities Planning Code
("MPC"). See, 53 P.S. § 10908(10).
35. Klase's attorney was provided a copy of the Decision by Silver Spring Township
by facsimile dated May 21, 2010, only after counsel for Klase called and requested same after
learning through counsel for the ZHB that a written Decision had been issued. See, May 21,
2010 fax transmittal from Siler Spring Township to Klase's counsel, attached as Exhibit "C" and
incorporated by reference.
36. Klase timely files the Land Use Appeal from the referenced Decision, despite the
absence of any required notice to Klase of the issuance of the Decision.
ZHB Errors
37. The ZHB's Decision is erroneous as a matter of law and constitutes reversible
error for the following reasons:
A. The following findings of fact by the ZHB are not supported by substantial
evidence, which is defined as, "Such relevant evidence as a reasonable person might accept as
adequate to support a conclusion." Lee v. Zoning Hearing Bd. of Stroud Tp., 811 A.2d 1123,
1124 (Pa. Cmwlth. 2002), citing Valley View Civic Association v. Zoning Board of Adjustment,
501 Pa. 550, 462 A.2d 637 (1983).
i. Finding of Fact # 2 states, "The property in question consists of an
irregularly shaped lot located on the east side of Locust Lane known as 1 South Locust Lane.
The parcel is improved with a dwelling house in the front of the property and a detached garage
in the rear. Total lot area is 20,610 square feet. The parcel is zoned Residential, R-1."
8
However, the record is devoid of any evidence relating to the shape of the Weber lot.
Additionally, the record is conflicting, at best, whether the Weber lot consists of 20,610 square
feet (as found by the ZHB) or 21,527, as reflected by Klase Exhibit No. 5. In the event the
Weber lot size is 20,610 square feet, the maximum permissible lot coverage would be reduced to
4,122 square feet from 4,305 square feet-meaning that the Webers have exceeded the permissible
lot coverage by an even greater number of square feet.
ii. Finding of Fact #3 states that the "total impervious coverage on the
[Weber] lot exceeds the maximum allowed under the [Zoning] ordinance by 100 square feet."
This Finding is directly contrary to the testimony of James E. Hall, Silver Spring Township's
Zoning Enforcement Officer, who sent the Notice of Violation to the Webers and who testified at
the ZHB Hearing that, by his calculation, after removing the square footages applicable to certain
impervious surfaces, which he [improperly] removed from the calculation, as further described
herein, the Webers exceeded the lot coverage by 243-245 square feet. Moreover, the ZHB
further erred by relying upon Mr. Hall's calculations, which impermissibly removed from the
calculation of the lot coverage, various impervious surfaces, including stone landscaping and
other stone areas previously used by the Webers to park a camper or boat, which should not have
been removed from the calculations because the Zoning Ordinance's definition of "impervious
surface" re uires inclusion of those areas in the calculation.3 Mr. Hall's calculations violated the
express provisions of the Zoning Ordinance and the ZHB's removal of those impervious surfaces
from the calculation of the Webers' total lot coverage constituted reversible error.
iii. Finding of Fact #4 is contradictory on its face. In the second
sentence, the ZHB found that, "The area [presumably referring to the stone parking area at issue]
s Klase takes issue with the ZHB withholding from the record the calculation which counsel for Klase attempted to
introduce at the Hearing.
9
was described as infiltrating water to some degree with diversion to the rear of the [Weber]
property." Yet in the fourth sentence, the ZHB found, "As constructed, the water flow is toward
Locust Lane" [which is the front of the Weber property]. In addition to being factually
contradictory, Finding and Fact #4 is clearly contradicted by the record. The record reflects that
the Webers' storm drains are directed in such as fashion that the storm water runoff from the
Weber property runs onto the Klase property, which is slightly downhill and to the south of the
Weber property. Initially, the storm water ran into the Klase side yard toward the front of her
property. In light of the recent reconfiguration of the downspouts by the Webers, the storm
water continues to run onto the Klase property, but more towards the rear. As the stone parking
area at issue has no storm water controls, the sheets of storm water runoff also run downhill onto
the Klase property. At the ZHB Hearing, the Township Engineer expressly recognized that the
Klase property currently receives the storm water runoff from the Weber property. Additionally,
however, the Engineer testified that an engineering professional would need to look at the
existing stone parking area, determine the rate of percolation, and then recommend a best
management practice to attempt to divert the water away from the Klase property. However, he
also concluded that, as the downspouting is currently configured, the water looks for the "easiest
route" and would account for the storm water runoff currently moving towards to rear of the
Klase property. Moreover, on cross examination he concluded that a storm water facility or pit
would be the next logical step because, "in a situation like this, you do normally look at
infiltrating it to reduce the runoff." Thus, even based upon the Township Engineer's analysis
and testimony, the conditions attached to the ZHB's grant of the Weber variance are inadequate
to protect the Klase property.
10
iv. The ZHB's Finding of Fact #5 that, "Klase offered no expert
testimony to contradict the testimony of the Township Engineer" was erroneous for several
reasons. First, it misplaced the burden of proof. Klase did not have the legal burden of proving
that the Webers were not entitled to the requested variance. To the contrary, the Webers have
the "heavy" burden of proving that they are entitled to the requested variance. See Doris Terry
Revocable Living Trust v. Zoning Board of Adjustment of the City of Pittsburgh, et al. 873 A.2d
57 (Pa Cmwth. 2005), 61, citing Bruni v. Zonin Hg Baring Board of Plymouth Township, 52 Pa.
Cmwlth. 526, 416 A.2d 111 (1980). The reasons demonstrated by the applicant for the grant of a
variance must be "substantial, serious or compelling". See, Valle,, supra. Second, the
ZHB misconstrued the testimony of the Township Engineer who stated that it was osp Bible that
the stone parking area could be turned into a Best Management Practices if tested and
appropriately altered by a certified engineer, not that it was a certainty. Indeed, he also expressly
stated that if turning the stone parking area into a Best Management Practices failed,
"infiltration" [meaning a storm water pit of some sort] was the "next step". Thus, the conditions
attached to the ZHB's grant of the variance to the Webers are inadequate as a matter of law.
v. Finding of Fact #6 stated that, "...through the use of certain Best
Management Practices the stone driveway could in fact become a water containment bed.
contributing to storm water containment on the property, rather than creating storm water issues"
is erroneous for the reasons set forth above in (iv) as related to the Township Engineer's
testimony and the record as a whole.
B. The procedures of the ZHB at the Hearing were also defective in that the
ZHB admitted the unsworn testimony, on which the ZHB erroneously relied to remove certain of
the impervious surfaces from the calculation of total lot coverage, of James E. Hall, Township
11
Enforcement Officer, into the record. Additionally, Klase was deprived of her procedural due
process rights by the failure of Silver Spring Township to provide her notice of the written
Decision of the ZHB as required by the MPC.
C. The following "Conclusions" of the ZHB were also erroneous as a matter
of law, constituted an abuse of discretion and were arbitrary and capricious:
i. Conclusion #1 states, "Section 204.6 of the ordinance limits lot
coverage in the R-1 zone to 20%. The applicant's property as presently developed with the stone
parking area exceeds the limitation by 100 square feet." The conclusion that the Weber property
"as presently developed with the stone parking area exceeds the limitation by 100 square feet" is
expressly contradicted by the record, which reflects that the Weber property exceeds the
maximum lot coverage by at least 1,448 square feet [if the lot size is 21,527 square feet]4 when
the definition of "impervious surface", as required by the Zoning Ordinance is properly applied
to calculate the maximum lot coverage permitted by the Zoning Ordinance. Section 102 of the
Zoning Ordinance, "Purpose", states in pertinent part, "This Ordinance is enacted to promote,
protect and facilitate the public health, safety, morals, general welfare...as well as to
prevent...loss of health, life or property from fire, flood panic or other dangers." See, Zoning
Ordinance at p. 1, Section 102. The ZHB's selective calculation of the lot coverage to
conditionally grant the Webers' Application for Variance and its failure to condition the grant of
the Webers' Application on appropriate conditions violates Section 102 of the Zoning Ordinance
by failing to resolve the storm water runoff from the Weber property onto the Klase property,
causing property damage thereto.
ii. Conclusion #2 which states, "Section 604.4 of the ordinance
° If the Weber lot size is 20,610 square feet, then the Webers have exceeded the maximum lot coverage by at least
1,688 square feet. Neither the excess of 1,448 square feet nor 1,688 square feet is "minimal" or "deminimis" as
found by the ZHB.
12
grants the Board the power to grant variances where the provisions of the ordinance inflict
unnecessary hardship upon the applicant", is a misstatement of the authority granted to the ZHB
to grant a variance. In conjunction with the Pennsylvania Municipalities Planning Code, 53 P.S.
Section 10101-11202, ("MPC"), the Zoning Ordinance at Section 604.4 specifically allows the
ZHB to hear requests for variances and to render decisions upon such requests including granting
the variance, "...provided that all of the following findings are made where relevant in a given
case: (a) That there are unique physical circumstances or conditions, including irregularity,
narrowness, or shallowness of lot size or shape, or exceptional topographical or physical
conditions peculiar to the particular property and that the unnecessary hardship is due to such
conditions and not the circumstances or conditions generally created by the provisions of this
Ordinance in the neighborhood or zone in which the property is located. (b) That because of
such physical circumstances or conditions there is no possibility that the property can be
developed in strict conformity with the provisions of this Ordinance and that the authorization of
a variance is therefore necessary to enable the reasonable use of the property. (c) That such
unnecessary hardshp has not been created by the appellant lsicl. (d) That the variance, if
authorized, will not alter the essential character of the zone or neighborhood in which the
property is located nor substantially or permanently impair the appropriate use or development
of adiacent property, nor be detrimental to the public welfare. (e) That the variance, if
authorized, will represent the minimum variance that will afford relief and will represent the
least modification possible of the regulation in issue." Zoning Ordinance at Section 604.4(1-5)
inclusive. (emphasis added) See, also the MPC, 53 P.S. §10910.2(a) 1-5 inclusive for verbatim
language. The ZHB Decision glaringly omits any reference to, discussion or analysis of several
of these required considerations. The ZHB's inappropriate conclusion that the variance was
13
necessary for the Webers' reasonable use of the land is erroneous under Lazsen and the ZHB's
failure to consider whether the variance would adversely affect the neighborhood, whether the
vaziance was the least intrusive solution and whether the Webers created their own "hazdship" all
constitute errors of law. See, Lazsen v. Zoning Bd. of Adjustment of City of Pittsburgh, 543 Pa.
415, 672 A.2d 286 (1996).
D. Moreover, the record is cleaz in this case that the Webers themselves
created the need for the variance by failing to apply for required permits to make the
additions/improvements to their lot, by changing or altering plans once they were submitted and
approved by the Township and by failing to abide by the maximum lot coverage requirements.
Moreover, the record is equally cleaz that, in doing so, the Webers have placed the Klase
property at significant risk of damage from the uncontrolled storm water runoff. Failure to
consider those facts was error. See, Larsen, supra, the Zoning Ordinance and the MPC. The
Webers' creation of the hazdship [such as it is described] in and of itself would have justified the
ZHB denying the Webers' Application for Variance.
E. To obtain a variance, "... a landowner bears the heavy burden of proving
that he suffers from an unnecessary hardship, which hazdship is not self-imposed, and that
granting the variance will not adversely affect the public health, safety and welfare." See, Doris
Terry citing Bruni. Moreover, the reasons for a variance demonstrated by an applicant, such as
the Webers, must be substantial, serious and compelling. Halberstadt v. Borough of Nazareth,
654 A.2d 249 (Pa. Cmwlth. 1995). The Webers failed to meet their burden of demonstrating that
they met the necessary elements for the grant of the requested variance because their sole
assertion of hazdship was that one of their children might have to park a vehicle on the street, if
they were all home at the same time and if their one child, who was not even 16 yeazs old, would
14
get a vehicle. Yet, at the Hearing, the Webers contradicted themselves by testifying that they
currently have 3 vehicles at their house and 1 vehicle which is with a child who is away at
college. They also testified that an additional child would probably get a vehicle when he or she
turned 16 (for a speculative total in the future of 5 Weber vehicles in the household). But, the
Webers further testified that without including the stone parking area, they currently have off
street parking for a total of 6 vehicles (4 in the driveway and 2 in the garage). Thus, the Webers
asserted "hardship" is not the type of unnecessary hardship required for a grant of a variance.
See Larsen, supra, which held that the parents' desire to provide more room outdoors for their 2
year old child's enjoyment was not the type of unnecessary hardship required for a grant of a
variance. See also, Appeal of Kline, 395 Pa. 122, 124, 148 A.2d 915, 916 (1959) whereby the
Pennsylvania Supreme Court upheld the ZHB's denial of a variance to enclose a front porch to
have additional room to habitate, due to severe respiratory problems, because the asserted
hardship did not constitute the unnecessary hardship required under Pennsylvania law to justify
the variance. At the time of the Hearing, the Webers acknowledged that some of their neighbors
park cars on the street. Therefore, the ZHB's Conclusion #3 that the "narrow width" of the
[Weber] property (which is not of record) "in conjunction with the location of the existing
dwelling considerably restricts the area available for off-street parking which is reasonably
necessary for the property's use and enjoyment" is not supported by the record, is contrary to
Larsen, supra and is, therefore, erroneous as a matter of law.
F. In Larsen, the Pennsylvania Supreme Court established the following
criteria that must be satisfied for a landowner to show a compelling reason for a variance: (1)
"that an unnecessary hardship exists which is not created by the parties seeking the variance and
which is caused by the unique physical circumstances of the property for which the variance is
15
sought; (2) that a variance is needed to enable the parties reasonable use of the property; (3) that
the variance will not alter the essential character of the district or neighborhood, or substantially
or permanently impair the use or development of the adjacent property such that it is detrimental
to the public's welfare; and (4) that the variance will afford the least intrusive solution."
(emphasis added) Larsen, 543 Pa. at 421, 672 A.2d at 289. Moreover, in Cardamone v.
Whitpain Tp. Zoning Hearing Bd. 771 A.2d 103 (Pa. Cmwlth. 2001), which upheld the denial of
applicant's dimensional variance, the Commonwealth Court stated, "In determining whether a
variance is contrary to the public interest, the Board must consider, inter alia, whether the
application, if granted, will be detrimental to appropriate use of adjacent property." Id at 107.
The Webers failed to satisfy the above required elements of proof in this case and the ZHB, in
granting the Webers the conditional variance, without appropriate protections for Klase's
property, erred as a matter of law.
G. The record reflects that the impact of the storm water runoff generally
from the Weber property onto Ms. Klase's property is significant as it has left her side yard in a
Swale condition, caused erosion under her fence and creates concern about the purity of her well
water, which is located in an area of her yard where the Webers' water runoff has historically
collected. The Webers' continual addition of more impervious surfaces, without adherence to
the Township's Storm Water Management Ordinance requirements, should not have been
condoned by the ZHB and the Application for Variance should not have been granted without
appropriate conditions to include, at a minimum, requiring the Webers to apply for and receive a
storm water permit to implement a storm water management plan for their lot in accordance with
the Storm Water Management Ordinance and Best Management Practices, certified by an
independent (not the Township) engineer and to implement said storm water management plan
16
by a specified date certain or the conditional variance would expire of its own accord. The
ZHB's failure to place these types of specific conditions and to include a time period for
compliance as a condition to the Webers' request for variance constituted an error of law and an
abuse of discretion based upon the record and applicable law.
H. Thus, despite the Webers' request for a dimensional, as opposed to a use
variance, they still had the burden of proof to demonstrate that they were entitled to the requested
variance, which burden they failed to meet. First, they cannot avoid the fact that the record
unquestionably demonstrated that their dilemma is of their own making. The multiple additions
which they have made to their property over the years have cumulatively exceeded the
permissible impervious surfaces and, while required to obtain storm water management permits
to prevent exacerbating the exact situation in which Klase finds herself, they failed to do.
Second, the record established that the excessive impervious surfaces add to the storm water
runoff from the Weber property, thereby damaging Ms. Klase's adjacent property. Third, the
Webers have full use of their real property as a residence, which is a permitted use in the R-1
Zone, without the benefit of the requested variance. See, Larsen, supra. Finally, no legally
recognizable hardship was demonstrated by the Webers (financial or otherwise) which would
warrant granting of the Application for Variance without, at a minimum, the stringent conditions
set forth above. Moreover, the Webers' failed to demonstrate that the conditions attached to the
variance by the ZHB would be adequate to prevent the storm water runoff onto Klase's property.
I. The ZHB abused its discretion in granting the Webers' variance with the
noted conditions, which are inadequate to protect Klase's property, and its Decision is therefore
arbitrary and capricious and constitutes an error of law in violation of applicable statutes,
17
ordinances and related decisional law, by failing to examine and properly apply the elements
necessary for the grant of a variance under Section 604.4 of the Zoning Ordinance.
WHEREFORE, Intervenor/Appellant Brenda L. Klase respectfully requests this
Honorable Court find that the ZHB erred as a matter of law in failing to attach appropriate
conditions to the Webers' requested variance. She requests this Honorable Court remand the
matter back to the ZHB for entry of an order which grants the requested variance, expressly
conditioned on the Webers filing for and receiving a storm water permit in compliance with the
Silver Spring Township Storm Water Management Ordinance, retaining an independent (not the
Township Engineer) engineer to design a plan to manage the storm water runoff from the Weber
lot, which plan must comply with the requirements of Silver Spring Township's Storm Water
Management Ordinance. Said Order should also specify a date certain by which the
recommendations of the engineer must be fully implemented, inspected and approved by the
Township, and other applicable governmental agencies, and such other relief as may be
appropriate in the Court's discretion.
Respectfully submitted,
DALEY ZUCKER MEILTON
MINER & GINGRIGH, LLC
t
Date: June 10, 2010 By: ~ ~-~ ~- V~3
Kathleen Misturak-Gingrich, Esquire
Attorney I.D. #41682
1035 Mumma Road, Suite 101
Wormleysburg, PA 17043
(717) 724-9821
kgin rg ich(a,dzmmglaw.com
Attorney for Intervenor/Appellant
18
EXHIBIT"A"
May. 21. 2010 10;43AM SILVER SPRING TWP
No. 0313 P. 3
IlV RE: ; BEFORE TEIE SILVE1t SPR1NCr
TOWNSHIP ZONING HEARING BOARD
APPLICATION Ol~ :CUMBERLAND COUNTY, PENNSYLVANIA
STEVEN C, WEBER and : DOCKET NO. 'V 2010-2
PATTY S. WEBER .
D1~CYSYpN Gl[tANTIlVG VA][2][ANCIE
The applicants seek a variance from impervious coverage regulations. A hearing on the
application •uvas held on Apri! 12, 2010.
EACts
The applicants and owners of the property in question are Stevcn C. Weber and
Patty S. 'Weber of 1 S. Locust Lane, Mechanicsburg, Pennsylvania 17055.
2. The Property in question consists of a,~ irregularly shaped lot located on the east
side of 1„ocust Lane known as 1 South Locust Lane. The parcel is improved with a dwelling
house in the front of tl~e property and a detached garage in the rear. Total lot area is 20,610
square feet. The parcel is zoned Residential, R-1.
3. The applicant lies made certain improvements to the property including a kitchen
addition and deck in the rear of the existing house and an expansion of the drivevway of
approximately 245 square feet of 2B s[one, 10-12 inches thick. The total impe~•vious coverage on
the lot exceeds the maximum allowed under the oedinance by 100 square feet.
4. The Township Engineer Itas reviewed the gravel parking area which was
installed by the applicant, The area was described as infiltrating water to some degree with water
diversion to the rear of the property. The Engi»eer found that the general area will not alter the
existing water flows between the subject property and the property to the south. As constructed,
the water flow is to~c~vard Locust Lane.
5. Appearing before the Board was Brenda Klase, an adjoining property owner,
represented by Patricia tucker, Esquire. Ms. Klase testified that slie was concerned about the
impact of the additional stoned area upon the flow of water a~ her property, as well as possible
May. 21. 2010 10;44AM SILVER SPRING TWP
No. 0313 P. 4
contamination of her well which is Located 38 feet from the property line. Ms. Klase offered no
expe,t testimony to contradict the testimony of the Township Engineer.
6. The Township Engineer testified that through the use of certain Best
Management Practices the stone driverx-ay could in fact becomc a ratter containment bed,
contributing to storm water containment on the property', rather than creating storm water issues.
7. Notice of the hearing was posted and adve,tisement made as required by the
ordinance
8. In addition to the applicant, witnesses appeared on behalf of the intervening
party, Brenda Klase. No othe,- parties appeared befo,•e the Board.
Conclusions
1. Section 204.6 of the ordinance limits lot coverage in tl~e R.-] zone to 20%. The
applicants' property as presently developed with the stoned pa,•lcing area exceeds the limitation by
100 square feet.
2. Section 604.4 of the ordinance grants the Hoard the power to grant variances
where the provisions of the ordinance inflict unnecessary hardship upon the applicant.
3. The Board finds that the property is burdened by a hardship consisting of its
narrow width which in conjunction with the location of the existing dwelling considerably
restricts the area available for ofd street parking which is reasonably necessary for the property's
use and enjoymcnt.
4. Granting the temporary variance will not alter the essential character of the
neighborhood nor impair sur--ounding properry'values. The variance amounts to less than 0.5% of
the total lot area, so the ove,•all visual impact is minimal, if not de minimis. Tlie Board is aware
of the neighbor's concerns about storm water runoff but the Board finds the testimony of the
Township Engineer to be both credible and disinterested. If p,•oper management practices are
May•21. 2010 10:44AM SILVER SPRING TWP No•0313 P. 5
employed the gravel area can have a positive impact upon the site's overall storm water
characteristics.
Decision
In view of the foregoing and having considercd the plans and testimony submitted to the
Board by all ~cvitnesses and parties, it is the opinion of the Board that the •variance requested
should be and is hereby granted allowing the applicant to exceed lot coverage by 100 square feet
in the fonn of a stone parking area on the condition that the applicants not pave the stoned area
and that it be modified in accordance with hest Management practices as certified by a civil
engineer to minimize the property's offsite storm water impact.
~- SILVER SPRING TO SHIP
bate: ~ '" ~~'- ~y ZON TEA Altb
Chair
EXHIBIT"B"
May. 21. 2010 10:43AM SILVER SPRING TWP
~<:
V'inccnt T. DiFilippo, Chairman
Nancy XConhaus Grif3Se, ice-Chairman
Dar+id R. Lcnker II
Mary Z,ou Pierce-11~clrain
Nathan 'Z', Spade
May 11, 2010
No. 0313 P. 2
Certified Mail #7009 0820 0000 5264 2865
and Pirst Class Mail
Steven C. 8~ Patty S. 'VV'eber
1 South Locust Lane
Mechanicsburg, Pa 17050
Dear Mr. 8t Mrs, Weber:
Re: Variance 2010-2
Enclosed please find the Order of the Silver Spring Township Zoning Tearing Board
relative to the above referenced variance request,
Yf you are aggrieved by the decision of the Board you may within thirty (30) days of such
decision seek a re~vie~v by the Cumberland County Court of Common Pleas of such decision in
the manner provided by the laws of the Commonwealth of Pennsylvania
Should you have any questions please call me.
Sincerely,
dames E. Hall
Zoning Ot~cex
I/nclosure
JEH/sab
6d75 CARLISLE PIKE I
'SUBURBAN SERENITY WITH URBAN PROXIMITY'
=-;:
~~.
,..
~'
PENNSnviwu t7o5o
EXHIBIT"C"
May. 11. 1UlU 1U:43AM 51LVER 5PR1NG 1WP
6475 Carlisle Pike
Mechanicsburg, PA 17050
(717) 766-0178
Fax (717) 7661696
No. 0313 P. 1
Silve r Spri ng
Town ship
_ I
rti.
To: Attorney Gingrich
From: Shirley Beardsley
Fax: 724-9826
Phone:
Pages: S
Date: 5/21/2010
Re: Weber Variance Decision CC:
^ Urgent ^ For Review ^ Please Comment d Please aepiy ^ Please
Recycle
Kathleen Misturak-Gingrich, Esquire
Attorney I.D. No. 41682
Daley Zucker Meilton Miner & Gingrich, LLC
1035 Mumma Road, Suite 101
Wormleysburg, PA 17043
Phone: (717)724-9821
Email: k~inarich(a,dzmmglaw.com
BRENDA L. KLASE, IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
Intervenor/Appellant,
v.
ZONING HEARING BOARD
SILVER SPRING TOWNSHIP,
Appellee
DOCKET NO.
LAND USE APPEAL
CERTIFICATE OF SERVICE
I, Kathleen Misturak-Gingrich, Esquire, hereby certify that on the date indicated below I
served a true and correct copy of the foregoing Notice of Land Use Appeal via First Class United
States Mail addressed as follows:
James H. Turner, Esquire
4701 North Front Street
Harrisburg, PA 17110
Solicitor for Silver Spring Township
Zoning Hearing Board
Lionel Spenard
9 South Locust Lane
Mechanicsburg, PA 17050
Date: June 10, 2010
Steven A. Stine, Esquire
23 Waverly Drive
Hummelstown, PA 17036
Solicitor for Silver Spring Township
Board of Supervisors
Steven and Patty Weber
1 South Locust Lane
Mechanicsburg, PA 17050
Kathleen Misturak-Gingri squire
Attorney I.D. No. 41682
DALEY ZUCKER MEILTON
MINER EC GINGRICH, LLC
1035 Mumma Road, Suite 101
Wormleysburg, PA 17043
(717) 724-9821
kgingrich@dzmmglaw.com
Attorney for Intervenor/Appellant
19
_V
11.1
J
H
O
a
W
Q
0
a
a
•~ ~ o
~1L U
~~ •
~ _z° x
Boa°j ~
a r
c
a
N
G
c0
N
'~
a
m
m
E
c
L
?~
C
a
a~
CO
a
m
~ ' }.-: _
l~r, ~ r ...~.
~. t-:-,
.y~. t. r vet
,i,~ ,t,.,` rT~r
w
Wow
~~
W
~z
~a
-.....
1 .._:.
---.
».;;
~~:
••-~...
.~... ~
^~ ~ ^ ^ ^
~ ~ ~ ~~ ~ o Do O~ C)
N
~ ~ V ~ s ~ ~ ~ ~w~ 3
`a ?1riK A~
OD ~' ~ ~ ~ `S a fD ~ ~ C ~ N
7J
~. ~ ~ ~ ~ N ~ A A ~ ~ ~ •
cam ~ ~3~..a7 ~ .may
N v' ~ ~~ ~~ ~ fD N ~
C m ~ ~ ~, O ~~ C 7 a~
~, , ~ Q.
A ,~
2~ '~.
'O` ~ ~1 v~oaov+D
o b
~,-,
_ o
W
0 A w p W D '
~ ^~^ ~ - ~ to
< a ~
O $ f°
W
_~ ~~3~ Qa
~ ~ m ~
LU ~ ~
,Z a
~ ^ ~ ^ a 2
a ~ omv P~ a~ 3
,~ J ~ ..
s ^ ~ ,t4 '4 `' ^ m ^ ^
N ~ ~ ~ O ~ f~ .~i
O. .-. N
N v'
~ `2 N
S
c
~i
W_
BRENDA L. KLASE, IN THE COURT OF COMMON PLEAS
Appellant :CUMBERLAND COUNTY, PENNSYLVANIA
vs. NO. 10-3835 CIVIL TERM
ZONING HEARING BOARD OF :LAND USE APPEAL
SILVER SPRING TOWNSHIP
Appellee
PRAECIPE
o
On behalf of Silver Spring Township Zoning Hearing Board, I hereby su mr~t
-v
the record in the above appeal with the following exhibits: ~ ! -,~
_~
G~ 7v~
(a) application for variance and letter from applicant; ~
r ,,~
(b) minutes of Board of Supervisors meeting held April 12, 2010; ra .~~
(c) transcript of hearing;
James H. Turner, Esquire
Turner and O'Connell
4701 North Front Street
Harrisburg, PA 17110
717/232-4551
Solicitor for Silver Spring Township
Zonin Hearing Board
Certificate of Service
I, Stacey A. Fogle, secretary in the law firm of Turner and O'Connell, hereby
certify that I served a true and correct copy of the foregoing Praecipe by depositing same
in the U.S. mail, first class postage prepaid, addressed as follows:
Kathleen Misturak-Gingrich Esquire
Daley Zucker Meilton Miner & Gingrich, LLC
1035 Mumma Road Suite 101
Wormleysburg, PA 17043
Date: 08/31/2010 tacey A. Fogle
Aug,~l. 2010 1:lOPM SILVER SPRING TWP
>-
Vincent'1'. AiPilippo, Chairman
Nancy I~or,haus Griflie, Vice-Chairman.
Da~~d R. Lenker TY
A4ary Lou Piercc-MrYain
Nathan T. Spade
Steven C. & Patty 5. Weber
1 South Locust Lane
Mechanicsburg, Pa 17050
May 11, 2010
No.0~4b P. 1
Certified Mail #7009 0820 0000 5264 2865
and First Class Mail
Re; ~V'ariance 2010-2
Dear Mr. & Mrs. Weber:
Enclosed please find the Order of the Silver Spring .Township Zoning ~iearing Board
zelativc to the above referenced variance bequest.
Yf you are aggrieved by the decision of the Board you may within thirty (30} days of such
decision neck a review by the Cumberland County Court of Common Pleas of such decision in
the manner provided b~- the laws of the Commonwealth of Pcnnsylvania.
Should you have any questions please call me.
Enclosure
JEHisab
Sincercly,
awes E. fall
Zoning Officcr
7671 oats
Post-it° Fax Note
To ~/ rA 0 ~ ~ From
Co/t)epl. ~'
Phone A Pte"
Pax N
Faxtt a~~~ditS
\^t~....
6475 CAFiLiSIE PIKE ( M CW1NI
.~3a-~rr~
'SUeUR6AN SERENITY WITH URBAN PROXIMITY'
~I PEkNSYLV/WY11TOb11
PHANF 717-7RRJ117lt t FAX 717-766-16Y6
?,u~. ~1. 2010 1:11PM SILVER SPRNG TWf' fVo. OF,'4b P. 2
IN RE: :BEFORE THE SILVER. SPRING
TOWNSkIIP ZONING HARING BOARD
APPLICATION OP' :CUMBERLAND COUNTY, PENNSYL'VAI~IA
STEVEN C. WEBER and DOCIZ_ET N0. V 2010-2
PATTY S. VdEBBR
DECISJON GRA.NT~NG'VAI2TANCE
The applicants seek a variance from impervious coverage regulations. A hearing on the
application vas held on April 12, 2010.
Facts
1. The applicants and owners of the property in question are Steven C. 'VV~eber and
Patty S. 'lVeber of 1 S. locust Lane, Mechanicsburg, Pennsylvania 17055.
2. The property in question consists of an irregularly shaped lot located on the east
side of locust Lane knout-n as 1 South Locust lane. The parcel is improved with a dwelling
house in the front of the property and a detached garage in the rear. Total lot area is 20,510
square feet. The parcel is zoned Residential, R-1.
3. The applicant has made certain improvements to the property including a kitchen
addition and deck in the rear of the existing house and an expansion of the driveway of
approximately 245 square feet of 2B stone, 10-12 irlClles illick. The total impervious coverage on
the lot exceeds the maximum allowed under the ordinance by 100 square feet,
4. The Township )~ngineer has revie•cved the gravel parking area which was
installed by the applicant. The area was described as infiltrating water to some degree with water
diversion to the rear of the property. The Engineer found that the general area will not alter the
existing water flows ber<veen the subject property and the property to the south. As constructed,
the water flo~a~ is toward Locust Lane.
5. Appearing before the Board was Brenda Klase, an adjoining property owner,
represented by Patricia Zucker, Esquire. Ms. I~lase testified drat she was concerned about the
impact of the additional stoned area upon the flow of water on her propeiTy, as well as possible
?u~. ~1. ~OiD 1.ilPP~ SIL'vEF. SF'4'.':NG TWE No. Oc46 P.
contamination of her well which is located 33 feet from the property line. I1~s. Klase offered no
expert testimony to contradict the testimony of the TorrYnship Engineer.
6. The Township );ngineer testified that through the use of certain Best
Management Practices the stone driveway could in fact become a water containment bed,
eonU•ibuting to storm water containment on the property, rather than creating storm water issues.
7. Notice of the hearing was pasted and advertisement made as required by the
ordinance
8. In addition to the applicant, witnesses appeared on behalf of the intervening
party, Brenda IClase. No other parties appeared before the Board.
ConclusioI~s
1, Section 204.6 of the ordinance limits lot cAverage in the lZ-1 Zone to 20%. The
applicants' properTy as presently developed with the stoned parking area exceeds the limitation by
100 square feet.
2. Section 604.4 of the ordinance grants the Boa,•d the power to grant variances
where the provisions of the ordinance inflict unnecessary hardship upon the applicant.
3. The Board finds that the property is burdened by a hardship consisting of its
narrow raidth ~uvhich in conjunction with the location of the existing dwelling eonsidera6ly
restricts the area available for off-street parking which is reasonably necessary for the property's
use and enjoyment.
4. Granting the temporary variance will not alter the essential character of the
neighborhood nor impair surrounding property values. The variance amounts to less than 0.5% of
the total lot area, so the overall visual impact is minimal, if not de minimis. The Board is aware
of the neighbor's concerns about storm water runoff but the Board finds the testimony of the
Township Engineer to be both credible and disinterested. If proper management practices are
Auk. ;1. 201(1 1:11PP~ SILVER: SP~R?NG T~1P
f~o.0E46 ~. 4
employed the gravel area can have a positive impact upon the site's overall storm water
characteristics,
DeCISIOn
In vie~~~ of the foregoing and having considered the plans and Testimony submitted to the
Board by all ~~c~itnesses and parties, it is the opinion of the Board that the. variance requested
should be and is hereby granted allowing the applicant to exceed lot. coverage by 100 square feet
in the form of a stone parkuig area on the condition that the applicants not pave the stoned area
and that it be modified in accordance with Best Management practices as certified by a civil
engineer to minitni2e the property's offsite storm luster impact.
Date: ~~ _. ~~'' ~V
SILVER SPRING TO SHIP
ZON' HEA ARD
Chair
SILVER SPRING TOWNSHIP ZONING HEARIN 80ARO
APPLICATION FOR VARIANCE N0. ~ ~~ --~
(Section 604.41
GENERAL INFORMATION
Name of Applicant(s) ~~"~ V~ Vl ~ `I` ~~;
Address ~ ~~-~~ ~'1• ~ ~ Ll `~ ~ ~Ct
MAR ~ ~ 2c~~~j
% Cis (~ Lt.
~~
Telephone No.~nCr~ SoKI Application Date ;3 / ~ 1•~~/Q
Name of Landowner of Record `-j`}-~ V'f Irl ('.. 'I~
Subject Property Address
~t~-i'~
P~- ~ ~ Q5~
Subject Property Zone ,``~f'S(C.t'~~~/~
Requested Variance{s) and Section Nos. ;,ZO ~/, G~,a'
~o
a %~ ~~ ~~
Name, address and telephone of representative or consultant
ADflITIONAI REQUIREMENTS (Include t3 copies of each of the following).
1. A written description of the proposed use in su#ficient detail tp demonstrate compliance with
each of those criteria listed in Section 604.4 of the Zoning Ordinance.
2. A scaled site plan with sufficient detail and accuracy to depict the nature of the request, and
reflect its relationship with adjoining properties, and their improvements.
3. For use variances, a written report and scaled site plan demonstrating compliance with all
applicable provisions of the Zoning Ordinance including the fallowing:
A. The Zone requirements in which the subject property is located (e.g., setbacks,
lot area, lot width, lot coverage, height, landscaping, etc.)• and,
B. The General Provisions requirement listed in Article 3 of the Zoning Ordinance
(e.g., vehicular access, off~street parking and loading, signs, screening and
EXHrI'-~ landscaping, etc.).
f t<la,S t_._._`'~ !spa s ~xt
Fc~S
1. The hearing fee is S_ pursuant to Section 603.1.2. of the Zoning Ordinance.
2. The applicant shall be required to pay all public notice and advertising costs as specifiied in Section
603.1.2. of the Zoning Ordinance.
3. The applicant shall pay for one-half (1~2) of the stenographer's appearance fee as specified in Section
603.1 of the Zoning Ordinance.
SIGNAT(fAE
I hereby certify that the information submitted in accordance with this application is correct, and i
further agree to pay far those costs outlined ab~~.
Applicant's Signature Date
ADMINISTRATION
Date Application Accepted ~/~ ! jD Total Costs `~ '~U U ; O d G'~'`~1~~~
Dales Advertised (iwo successive weeks no more than 30 and no Tess than 1 days before hearing)
Property Posting (at least one week before hearing)
Date of Hearing (within 60 days of application)
Date of Decision (within 45 days of last hearing)
Decision
Chairman Vice Chairman Secretary
SILSPB
To: Silver Spring Township
We have been advised by 1im Hali that we are approximately 100 square feet over the maximum
lot coverage permitted. We believe this additional 100 square feet exists in the stone parking space we
placed beside our drive~nray. The dimensions of this parking area are listed on the property drawing.
The stone parking area is surrounded by landscape wall block that is a maximum of 12 inches
deep, to retain the stone within the parking area. There is 8 feet 7 inches from the side property !ine to
the landscape wall block, so there is still enough room for a vehicle to pass between the stone parking
area and the property line to access the back yard if needed.
We have not experienced any water runoff from this stone parking space. Our well is directly in
front of this parking area and we have not had any problems with excess water getting into our weii.
We would like to seek approval to keep this stone parking space as we have an 18 year old child
and a soon to be 16 year old child who will both be driving and. needing a safe area to park their vehicle
without us having to continuously move vehicles around the driveway to let another vehicie~enter or
exit. Having this stone parking space also prevents our yard from damage from a vehicle just parking on
the grass and ground. (i.e. mud, ruts, etc.J
We will have lived at 15outh Locust Lane for 20 years, this tune, and call this our home. We
may not have one of the newer homes in the neighbofiood, but we have consistently completed
updates and improvements to help ensure the property value is close to comparable homes in the
neighborhood. We believe the stone parking space will only increase the value of our property and not
adversely affect other adjoining properties. .
Thank you for your consideration.
Steve and Patty Wpeber /, ~ ~
~,",~~i
1 South Locust Lane
Mechanicsburg, PA 17050
5 / / c- !/l ~Zl') ~ .5 o v'{'~'j . ~O G!/S~' 1 ~'j~. ~v~l'y/`.'1
5 ~, rte. / ~~b~ _ ~/tom.
r-:~,
I ~
~~
3'
.c
i t~~
w
.z
1i
1 i C'~
i SIl1
r~~~~.~~a7'og3
~°'
s
---~----.s~c+~'
I °f~p
r ',qtl~ .
~
',:
~
;
r
is
L
s r
1
J ~
J.~
i
v
;~
I
r
i
}
Fa .
Kathleen Misturak-Gingrich, Esquire
Attorney I.D. No. 41682 v n
Daley Zucker Meilton Miner & Gingrich, LLC
1035 Mumma Road; Suite 101
Wormleysburg, PA 17043
Phone: (717)724-9821 u
Email: kg ngrich9dzmmglaw.com:
BRENDA L. KLASE, IN THE COURT OF CO MM N PLEAS
OF CUMBERLAND COUN Y, PENNSYLVANIA
Intervenor/Appellant,
V. DOCKET NO. 10-3835- CIVIL TERM
ZONING HEARING BOARD
SILVER SPRING TOWNSHIP,
LAND USE APPEAL
Appellee
MOTION FOR JUDGMENT ON THE PLEADINGS
AND NOW, this 4t1' day of November, 2010, pursuant to Pa. R.C.P. 1034, comes
Intervenor/Appellant. Brenda L. Klase, by and through her counsel, Daley Zucker Meilton Miner
& Gingrich, LLC ("DZMMG") and Kathleen Misturak-Gingrich, Esquire and files this Motion
for Judgment on the Pleadings and in support thereof alleges as follow
Factual and Procedural Background
1. Intervenor/Appellant Brenda L. Klase ("Klase") owns parcel of. land identified
as Lot 63A on the Minor Final Resubdivision Plan of Lot 63, "Whit Birch Farms", located in
Silver Spring Township, Cumberland County. Lot 63A is more co { only known as 5 South
Locust Lane, Mechanicsburg, Silver Spring Township, PA. 17050,
2. Appellee is the Zoning Hearing Board of Silver Spring Township ("ZHB"),
Cumberland County, Commonwealth of Pennsylvania.
3. Klase was an intervenor in the Application for Variance, Docket No. V2010-2
before the ZHB, filed on or about March 9, 2010 by Steven C. and Patty S. Weber (the
"Webers"). Therein, the Webers were requesting a variance to permi them to retain a 10 x 25
foot stone parking area, installed without benefit of a zoning permit, th construction of which, in
conjunction with other property improvements undertaken by the Webers, caused their property
to exceed the maximum lot coverage allowed by Silver Spring Township's Ordinance.
4. The Webers are the owners of tax parcel # 38-14-0 47-053, more commonly
known as 1 South Locust Lane, Mechanicsburg, Silver Spring Township, PA 17050.
5. Klase's property (Lot 63A) is located directly adjacent to the Weber property,
along the southern border of the Weber property. The Klase property line is within 8 feet of the
stone parking area for which the Webers sought a variance.
6. The Webers' Application for Variance was filed on March 9, 2010 and requested
relief from "Section 204.6 Design Requirements Maximum Lot Cov rage to Exceed the 20%
..Allowed.
7. Prior to the Webers filing for said variance, lase had unsuccessfully
corresponded on several occasions with both the Webers and representatives of Silver Spring
Township in an effort to stop damage to her parcel of real property from the uncontrolled storm
'water runoff from the Webers' adjoining parcel.
8. A Hearing on the Webers' Application for Variance w s held on April 12, 2010,
at which both of the Webers participated in support.of their Application for Variance.
9 Intervenor/Appellant Klase also participated in the Hearing before the, ZHB in
opposition to the requested variance because of her escalating and unresolved concerns about the
2
i
damage to her real property caused by uncontrolled storm water runoff from the Weber property
onto her property, which damages had only been exacerbated by the Webers further exceeding
the impervious surface design requirements for a R-1 Residential one by adding the stone
parking area and other impervious surfaces (and also by the Webers lawfully directing their
downspouts onto the Klase property in contravention of the plan which they had provided to the
Township and had had approved by the Silver Spring Township. Zoning Officer for an addition
to their home):
10. At the ZHB Hearing, Klase testified to the damage caused to her property and
explained that she would withdraw her opposition to the requested variance by the Webers
should the ZHB, inter alia, condition the grant of the requested variance on the Webers applying
for and receiving a storm water management permit and installing a storm water management
system in compliance with Silver Spring Township's Storm Water anagement Ordinance of
2009 and Best Storm Water Management Practices, which system would prevent the storm water
runoff from the Webers' property leeching onto the adjoining real pro erty of Klase and causing
damage thereto.
11. The ZHB subsequently issued a written decision, dated May 11, 2010,
conditionally granting the Webers' Application' ("Decision"). A c py of that Decision was
marked as Exhibit "A" and attached to Klase's Land Use Appeal. Ex ibit "A" to the Land Use
Appeal is incorporated herein by reference as if set forth in its entirety.
12. The Decision concluded, in pertinent part, "It is the opinion of the Board that the
variance requested should be and is hereby granted allowing the ap licants to exceed the lot
coverage by 100 square feet in the form of a stone parking area n the condition that the
3
applicants not pave the stoned area and that it be modified in accordance with Best Management
Practices as certified by a civil engineer to minimize the property's off site storm water impact."
13. The Decision was served upon the Webers by certified mail, return receipt
requested, on May 11, 2010. See, copy of May 11, 2010 certified letter to the Webers, attached
as Exhibit `B" to Klase's Land Use Appeal and incorporated herein by reference as if set forth in
its entirety.
14.. However, neither Klase nor her counsel, despite Kla e being an Intervenor of
record at the'ZH13 Hearing, were served with a copy of said Decision.
15. Moreover, neither Klase nor her counsel, despite Kla e being an Intervenor of
record, were provided the, "brief notice of the decision or findings and a statement of the place at
which the final decision or findings may be examined", as requir d by the Municipalities
Planning Code ("MPC").'_ See, 53 P.S. § 10908(10).
16. Klase's attorney was provided a copy of the Decision b Silver Spring Township
by facsimile dated May 21, 20 10,. only after counsel for Klase called and requested same after
learning by way of her call to counsel for the ZHB that a written Decision had been issued. See,
May 21, 2010 fax transmittal from Siler Spring Township to Klase's counsel, attached to Klase's
Land Use Appeal as Exhibit "C" and incorporated herein by reference as if set forth in its
entirety.
17. Klase took issue with the Decision, for many reasons, of the least of which was
that the Decision established no time frames for compliance byte Webers and the noted
conditions failed to adequately protect Klase's property from the Webe 's storm water runoff.
4
18. As a result, on June 10, 2010, Klase timely filed the a ove captioned Land Use
:Appeal from the referenced Decision, despite the absence of any required notice to Klase of the
]issuance of the Decision.
19. On that same date, the Court issued a Writ of Certi ri to the Appellee ZHB,
directing them to certify the record and transmit it to the Court within twenty (20) days.
20. As required by the applicable Rules of Civil Procedur, Klase's counsel served
copies of her Notice of Appeal on the ZHB of Silver Spring Township, Silver Spring Township
and the Webers on June 10, 2010 by First Class U.S. Mail, postage repaid. See Exhibit "A"Certificate of Service, attached and incorporated by reference, and 53 P.S. § 1003-A(c).
21. Despite having been duly served with Klase's Notice ` of the Appeal, neither the
Webers nor Silver Spring Township moved to intervene in Ms. Klase' Land Use Appeal within
the thirty (30) day time limit set by the MPC. See 53 P.S. § 1004-A. The Silver Spring
'Township ZHB has filed no opposition to Klase's Notice of Land Use Appeal, despite also
having been duly served.
22. On or about August 31, 2010, the ZHB filed a Praecip to transmit its record to
the Cumberland County Court of Common Pleas, after several request by counsel for Klase for
the ZHB to do' so.
23. On or about September 8, 2010, the ZHB filed a Supplemental Praecipe to correct
the Record.
24. To date, neither the Silver Spring ZHB, Silver Spring Township nor the Webers
]have intervened in the Klase Land Use Appeal and/or filed any opposition to Klase's Notice of
Land Use Appeal, despite that all of them were served with said Notice: by Klase's counsel. See,
'Certified Copy of Docket; attached as Exhibit "B" and incorporated by reference.
5
25. Counsel for K.lase has had several conversations with he Solicitor for the Silver
Spring Township ZHB and the Solicitor for Silver Spring Township, b th of whom expressed no
opposition to Klase's requested relief as more fully set forth below. The lack of any filed
interventions or oppositions by either counsel substantiates these discussions.
26. The Solicitor for the Silver Spring Township further advised counsel for Klase
that he [the Solicitor] spoke personally to the Webers and advise them to get counsel to
intervene and protect their interests. The Webers have failed to do so as reflected by the lack of
any Notice of Intervention [timely or otherwise] by them. See Exhibit "B".
27. As such, there is no issue in controversy to be resolve- by this Honorable Court
nor any party opposed to the relief which Ms. Klase has requested be granted by this Honorable
Court. Accordingly, Ms. Klase is entitled to judgment as a matte of law, based upon the
pleadings.
28. A Motion for Judgment on the Pleadings may be gran ed only in cases in which
no facts are at issue and the law is so clear that trial would be a fruitless exercise. See Com.,
Office of Attorney General ex rel. Corbett v. Richmond Tp., 975 A.2 607 (Pa. Cmwlth. 2009)
and Goodrich-Amram 2d § 1034(a):1.
29. As no potential party to the Land Use Appeal has intervened and/or filed any
opposition to Ms. Klase's Land Use Appeal, despite having been served with Notice of same,
and there are no facts at issue and certainly a trial, without parties in opposition and/or issues in
controversy, would be a fruitless exercise and a waste of both judicial and private resources.
30. As such, Ms. Klase's Motion for Judgment on the Pleadings should be granted
and judgment should be entered in her favor on her Land Use Appeal.
6
WHEREFORE, Plaintiff Brenda L. Klase respectfully requests this Honorable Court find
that the ZHB erred as a matter of law in failing to attach appropriate conditions to the Webers'
requested variance. Accordingly, she requests this Honorable Court enter judgment in her favor
and enter an Order directing the ZHB to amend its Decision to add the following conditions to its
grant of the Webers' requested variance: (a) the Webers must apply, within thirty (30) days of
the date on which the ZHB reissues its Decision containing the note conditions/clarifications,
for a storm water management permit which complies with the Silver Spring Township Storm
Water Management Ordinance and Best Storm Water Management Practices specified therein
'
and by the Pennsylvania Department of Environmental Protection (64DEP77 ) for same,; (b) the
storm water management plan must be certified, under seal, to coral ly with the Silver Spring
Township Storm Water Management Ordinance and the Best Management Practices for storm
water runoff as 'set by said Ordinance and the Pennsylvania DEP by a -certified/registered
engineer,. other than the engineer for Silver Spring Township; (c) the storm water management
plan and best management: practices. implemented thereby must be timely reviewed and
approved, if found to be in compliance with same; by the Silver Spring Township Engineer and
the Pennsylvania DEP, if applicable; .(d) without written approval for additional time from the
ZHB, which approval shall only be granted by the ZHB for good cause shown, the storm water
management plan and best management practices must be fully install d, inspected and approved
by Silver Spring Township's Engineer and the Pennsylvania DEP; if applicable, not more than
one hundred and twenty (120) days from the date on which the Dec sign containing the noted
conditions/clarifications is issued by the ZHB; and (e) the conditional variance granted to the
Webers shall expire of its ovum accord after one hundred sixty (160) days from the date on which
the ZHB issues the Decision with the noted conditions/clarificatio s, with no further action
7
required by the Silver Spring Township ZHB, in the event that the Webers fair to timely comply
with the conditions for said variance as set forthabove. In the event that the ZHB approves any
extensions of time, upon good cause shown by the Webers, the one hundred sixty (160) day
period referenced above shall run from the date on which the extension expires.
Respectfully submitted,
DALEY ZUCKER M ILTON
MINER & GINGRIC , LLC
]Date: November 4, 2010 By:
Kathleen Misturak-Gingrich, Esquire
Attorney I.D. #41682
1035 Mumma Road, Suite 101
Wormleysburg, PA 1704
(717) 724-9821
kgin rg ichgdzmm law.ca
Attorney for Intervenor/A pellant
II
8
VERIFICATION
I, Kathleen Misturak-Gingrich; Esquire, as counsel for the Plain tiff, upon information and
belief, aver that the statements and facts set forth in the foregoing Motion for Judgment on the
Pleadings are true to the -best: of my knowledge, information and belief. I understand that false
averments are made subject to the penalties of 18 Pa. Con. Stat. § 904, relating to unsworn
falsification to authorities.
.Date: l 7
Kathleen Misturak Gingrich, Esquire
9
E X HI B I T "A"
Kathleen Misturak-Gingrich, Esquire
Attorney I.D No. 41682
Duey Zucker Meilton Miner & Gingrich, LLC
10:35 Mumma Road, Suite 101
Wormleysburg, PA. 17043
Phone: (717)724-9821
Email: kin ch rudzmm 1aw.com
BRENDA L. KLASE,
: IN THE COURT OF
OF CUMBERLAND
Intervenor/Appellant,
V. DOCKET NO.
ZONING HEARING BOARD
SILVER SPRING TOWNSHIP,
: LAND USE APPEAL
4 PLEAS
PENNSYLVANIA
Appellee
CERTIFICATE OF SERVICE
I, Kathleen Misturak-Gingrich, Esquire, hereby certify that on th date indicated below I
served a true and correct copy of the foregoing Notice of Land Use App al via First Class United
States Mail addressed as follows:
James H. Turner, Esquire Steven A. S ine, Esquire
4701 North Front Street 23 Waverly Drive
Harrisburg, PA 17110 Hummeisto , PA 17036
Solicitor for Silver Spring Township Solicitor fo Silver Spring Township
Zoning Hearing Board Board of Su ervisors
Lionel Spenard Steven and atty Weber
9 South Locust Lane 1 South-Locc ust Lane
Mechanicsburg, PA 17050` Mechanics urg, PA 17050
Date:, June 10, 2010 By: t _
Kathleen isturak-Gingrich; Esquire
Attorney I. .No. 41682
DALEY CKER 1VIEIL70N'
MINER & 1NGRICH, LLC
1035 Mum a Road, 'Suite !101
Wonnleys urg, PA 17043
(717) 724- 821
kgingrich dzmmglaw.com
Attorney for .Intervenor/Appellant
19
IJ X HI BI T «B"
15594510212010 Cumberland County Prothonotary's O fice Page 1
PYS510 Civil Case Print ?
2010-03835 KLASE BRENDA L (vs) ZONING HEARING BOARD OF SILVER
Reference No..: Fi ed........: 6/10/2010
Case Type.....: CIVIL APPEALS - AGENCIES: ZONI Ti e.........: 1:10
NG BOARD
Judgment...... .00 Ex cution Date 0/00/0000
Judge Assigned: Ju y Trial....
Disposed Desc.: Di s posed Date. 0/00/0000
------------ Case Comments ---- --------- Hi her Crt 1.:
Hi her Crt 2.:
General Index Att rney Info
KLASE BRENDA L PLAINTIFF MISTU K-GINGRICH KATHLEEN
5 S LOCUST LN
MECHANIC".SBURG PA 17050
ZONING HEARING BOARD SILVER. DEFENDANT
SPRING TOWNSHIP
6475 CARLISLE PIKE
MECHANICSBURG PA 17050
* Date Entries
- FIRST ENTRY - - - -
6/10/2010 NOTICE OF
--------- LAND USE APPEAL
---
- BY KATHLEEN MISTU K-GINGRICH ESQ
-------
------
6/10/2010 WRIT OF CERTIORARI BY DAVI -----------------
D BUELL PROTHONOT ------------------------
ARY
---------
9/01/2010
PRAECI-PE -----------------
---SUPPLEMENT THE ------------_
RECORD - BY JAMES _
H---------------------
TURNER ATTY.-FOR. ^^ -
APPELLEE
----------- -------------
9/09/2010 SUPPLEMENTAL PRAECIPE - RE -----------------
APPEAL - BY JAME ------------------------
S H TURNER ATTY FOR
APPELLEE
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - -
* Escrow Information
* Fees & Debits Beq Bal P
ymts/Add E nd Bal
*
APPEAL ZONING 55.00 55.00 .00
TAX ON APPEAL .50 .50 .00
SETTLEMENT 8.00 8.00 .00
AUTOMATION FEE 5.00 5.00 .00
JCP'FEE 23.50
-----------
- 23.50 .00
-
92.00 ----------- ------
92.00 ------
.00
?C*?k*?k?kakic7k7k7k7k?k?k?k*?f?':k:k:k:k?k?c?k*?c?C?4?C'*?k?c?c*?kic?cic:k?f?k?C?k9f:k7ti?f**?k?f:r:k?f:FCC:kif?c:r:kiCyfiC?f:kyc*?C**if?c?k?k?f?Cic?k
* End of Case Information
to TO$
Sad 0
This
UE COPY FROM RECORD
whered,1 here unto set my tai
seal of said Court at CS&A9, Pa.
day or
Kathleen Misturak-Gingrich, Esquire
Attorney T.D. No. 41682
Daley Zucker Meilton Miner & Gingrich, LLC
1.035 Mumma Road, Suite 101
`JVormleysburg, PA 17043
Phone: (717)724-9821
I.mail: k ingrich dzmmglaw.com
13RENDA L. KLASE, IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
Intervenor/Appellant,
v, DOCKET NO. 10-3835- CIVI TERM
ZONING HEARING BOARD
SILVER SPRING TOWNSHIP,
LAND USE APPEAL
Appellee
CERTIFICATE OF SERVICE
I, Kathleen Misturak-Gingrich, Esquire, hereby certify that on the date indicated below I
served a true and correct cop. of the foregoing Motion for Judgment on the Pleadings via First
Class United States Mail addressed as follows:
James H. Turner, Esquire
4701 North Front. Street
Harrisburg PA 1.7110
Solicitor for Silver Spring Township
Zoning Hearing Board
Date: November 4, 2010 By:
Kathleen isturak-Gingrich, Esquire
Attorney I. D. No. 41682
DALEY Z CKER WILTON
MINER & INGRICH, LLC
1035M ma Road, Suite 101
Wormleys urg, PA 17043
(717) 724- 9821
kgingrich dzmmglaw.com
Attorney ft r Intervenor/Appellant
10
TO TI-
Argum
CAPTI
(entire
Brend
Zonin
Silver
1.
2.
3.
arg
4.
PRAECIPE FOR LISTING CASE FOR ARGUMEN T
(Must be typewritten and submitted in triplicate )
E PROTHONOTARY OF CUMBERLAND COUNTY: (List the w ithin matter for the.nex
Dnt Court.)
-------------------------------------------
DN OF CASE ------------------- - -
F
caption must be stated in full)
a L. Klase, Intervenor/Appellant
Vs.
Hearing Board
Spring Township, Appellee
No. 10-3835 Civil
Term
State matter to be argued (i.e., plaintiff's motion for new trial, defe dant's demurrer to
complaint, etc.):
Motion for Judgment on the Pleadings
Identify all counsel who will argue cases:
(a) for plaintiffs:
Kathleen Misturak-13jingrich, Esquire, 1035 Mumma Road, Suite 101; ormleysburg, PA 17043
(Name and Address)
(b) for defendants:
James H. Turner, Esquire, 4701 North Front Street, Harrisburg, PA 1711 0
(Name and Address)
I will notify all parties in writing within two days that this cas e has been listed for
invent.
Argument Court Date: December 15, 2010
Signature
Kathleen Misturak Gingrich, Esquire
Print your name
Brenda L. Klase, In tervenor/Appellant
Date: Attorney for
?r /l7
NSTRUCTIONS:
1. Original and two copies of all briefs must be filed wi h the COURT ADMINI,
(not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 days prior to argument.
4. If argument is continued new briefs must be filed wit h the COURT
ADMINISTRATOR (not the Prothonotary) after the c se is relisted.
a'
>TRATOR