HomeMy WebLinkAbout04-5093
,
SCOTT D. WAGNER and
CHARLEEN P. WAGNER,
Appellants
vs.
ZONING HEARING BOARD OF
MECHANICSBURG BOROUGH,
Appellee
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)
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)
)
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)
)
)
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 2004 )OC; ~
CIVIL TERM
CIVIL ACTION - LAW
LAND USE APPEAL
NOTICE OF APPEAL
AND NOW comes the Appellants, SCOTT D. WAGNER and CHARLEEN P.
WAGNER, by and through their attorney, Michael L. Bangs, Esquire, and appeal as follows:
I. Appellants, Scott D. Wagner and Charleen P. Wagner, are adult individuals who own
property at 525 and 53 I Locust Street, Mechanicsburg, Cumberland County, Pennsylvania.
2. Appellee is the Zoning Hearing Board of Mechanicsburg Borough.
3. Steven F. Cadwallader ("Cadwallader") filed an application for variances from
Chapter 27 of the Section 1404.2.A, 1404.2.B, and 1404.1.B of the off-street parking
requirements of the Mechanicsburg Borough Code for the properties located at 526 and 530 East
Main Street docketed to No. 2004-5 of the Mechanicsburg Zoning Board ("Application").
4. Appellants are adjoining property owners in that their residence and an apartment
unit is located directly across from the subject property and consequently they have standing to
raise this appeal.
5. Cadwallader is the owner of 526 East Main Street and operates a business known as
"Autobodies by Lucas, Ltd." on that site. Autobodies by Lucas, Ltd. has an option on an
Agreement of Sale for the purchase of 530 East Main Street.
I
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6. Cadwallader and/or Autobodies by Lucas, Ltd. wish to combine 526 and 530 East
Main Street to make one facility for the operation of conducting the business of auto body repair.
7. Cadwallader and/or Autobodies by Lucas, Ltd. requested a variance from three parts
of the off-street parking requirements of the Mechanicsburg Borough Code, specifically under
Section 1404.2.A requiring all parking spaces and access drives shall be located at least five (5')
feet from the proposed building; Section 1404.2.B requiring that all parking spaces and access
drives shall be at least five (5') feet from any exterior lot line; and Section 1404.1.B requiring
that any ninety-degree parking should back into a twenty-four (24') foot aisle and sixty-degree
parking shall back into an eighteen (18') foot aisle.
8. A hearing was held before Appellee on August 31, 2004. Upon conclusion of the
hearing, Appellee granted Cadwallader's and/or Autobodies by Lucas, Ltd.'s request for a
variance under Section 1404.2.A and Section 1404.2.B and denied his/its request for a variance
under Section 1404.I.B.
9. By written decision dated October 1,2004, the Zoning Hearing Board reaffirmed its
announced decision on August 31, 2004, granting Cadwallader's and/or Autobodies by Lucas,
Ltd.'s variance requests under Section 1404.2.A and Section 1404.2.B and denied Cadwallader's
and/or Autobodies by Lucas, Ltd.'s variance request under Section 1404.1.B. Attached hereto
and marked as Exhibit A is a true and correct copy of the Decision.
10. The granting of the variances by the Appellee constituted an error of law and abuse
in discretion in that:
A. The requested variances by Cadwallader and/or Autobodies by Lucas,
Ltd., are self-imposed in that they have nothing to do with the unique
2
characteristics of the property itself; rather they were created solely because of the
desire of Cadwallader and/or Autobodies by Lucas, Ltd., to expand his/its current
business operation.
B. Cadwallader and/or Autobodies by Lucas, Ltd., failed to prove that
there is an unnecessary hardship of conforming to the Mechanicsburg Borough
Zoning Ordinance or that there are unique circumstances present on the property
that would prohibit him/it from conforming with the Mechanicsburg Borough
Zoning Ordinance.
C. There is nothing unique about the property that would require
variances to the Mechanicsburg Borough Zoning Ordinance.
D. There is insufficient evidence to show that there are any unique
physical conditions of the property that would require the variances as requested.
E. Cadwallader and/or Autobodies by Lucas, Ltd., currently uses part of
the subject property for operation of his/its auto body repair business and the
variances are not necessary for him/it to continue to operate as an auto body repair
business. Rather, the variances are only needed for him/it to expand the auto
body repair shop which is not sufficient reason to grant the variances.
F. The variances requested are not necessary to enable Cadwallader
and/or Autobodies by Lucas, Ltd., reasonable use ofthe property in that hefit is
already using the property for the intended use, namely an auto body repair shop,
and the requested variances are only made to enable him/it to expand and enlarge
3
the current operation which is not a hardship of the property itself. Rather, it is a
hardship created by his/its requested use alone.
G. The Zoning Hearing Board incorrectly found that 89.5% of the total lot
area of both tracts is now covered by impervious material when the testimony
revealed that the property at 530 East Main Street is not covered by an impervious
material currently.
H. The Zoning Hearing Board erred in its Finding of Fact Number 8
wherein it suggests that the appellee has complied with the off-street parking
spaces required under Section 1402 of the Mechanicsburg Zoning Ordinance in
that having those off-street parking space internally in the building does not
comply with that section.
1. The Zoning Hearing Board erred in its Finding of Fact Number 9
wherein it indicated that the total impervious area would be reduced to 87.5% of
the total lot coverage when the testimony revealed that it actually would be
increased by the proposed plan.
J. The Zoning Hearing Board incorrectly determined under its
Conclusions of Law that the variances from Sections 1404.2.A and 1404.2.B are
de minimis in that those variance requests do not comply with the Mechanicsburg
Borough Ordinance and were created solely by Cadwallader's and/or Autobodies
by Lucas, Ltd.'s intentions to expand his/its business.
11. Cadwallader and/or Autobodies by Lucas, Ltd., failed to carry his/its burden of proof
under Pennsylvania law and the standards and criteria set forth in the Mechanicsburg Borough
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Zoning Ordinance entitling him/it to a grant of his/its variance requests under Sections 1404.2.A
and 1404.2.B. Consequently, Appellee abused its discretion in granting these requests for relief.
WHEREFORE, Appellants request the Court to set aside the decision of Appellee and
deny Cadwallader and/or Autobodies by Lucas, Ltd.'s Application for variances of the off-street
parking requirements under the Mechanicsburg Borough Zoning Ordinance.
Respectfully submitted,
i ~ I /)
~HAEL 1. BA~GS '
Attorney for Appellants
429 South 18th Street
Camp Hill, PA l7011
(717) 730-7310
Supreme Court ID #41263
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this day served the foregoing NOTICE OF APPEAL
by depositing a copy of same in the United States mail, postage prepaid, at Camp Hill,
Pennsylvania, addressed to the following:
Zoning Hearing Board of Mechanicsburg Borough
clo Cliff Ressler, Borough Zoning Officer
36 West Allen Street
Mechanicsburg, P A 17055
Marlin R. McCaleb, Esquire, Solicitor
219 East Main Street
Mechanicsburg, P A 17055
Steven F. Cadwallader
1020 W. Chocolate Avenue
Hershey, PA 17033
Autobodies by Lucas, Ltd.
clo Steven F. Cadwallader
526 East Main Street
Mechanicsburg, PA 17055
DATE:
/D/7/0I
1tJil/;J:! {Jal;m
WENDy';'piESBRO
Legal Assistant
6
lAW OFFJCES
MARllN R. McCALEB
1\
IN RE: APPLICATION OF
STEVEN CADWALLADER
FOR VARIANCES
BEFORE THE MECHANICSBURG ZONING
HEARING BOARD
NO. 2004-5
THOMAS R. VI EHMAN , ACTING CHAIR
THOMAS L. WITTERS, MEMBER
CHRISTOPHER KNARR, MEMBER
NOTICE
TO: Charleen P. Wagner, 525 East Locust Street,
Mechanicsburg, Pennsylvania 17055
Christine Willow, 531 East Locust Street,
Mechanicsburg, Pennsylvania 17055
Mike Bangs, 429 South 18th Street,
Camp Hill, Pennsylvania 17011
Ron Stephens, 1106 Gunstock Lane,
Mechanicsburg, Pennsylvania 17055
Jack Winchell, 27 West Main Street,
Mechanicsburg, Pennsylvania 17055
YOU ARE HEREBY NOTIFIED that the written Decision of the
Mechanicsburg Zoning Hearing Board, dated October 1, 2004,
granting in part and denying in part the Application of Steven
Cadwallader for Variances for the property at 526 and 530 East
Main Street, Mechanicsburg, has been filed with the
Mechanicsburg Zoning Officer. That Decision will remain on file
in that office for public inspection.
YOU ARE FURTHER ADVISED
must be filed with the Court
County, Pennsylvania, within
this Notice.
that any appeal from this Decision
of Common Pleas of Cumberland
thirty (30) days of the date of
~4~4k
Marlin R. McCaleb, Esquire
Solicitor, Mechanicsburg
Zoning Hearing Board
Date: October 1, 2004
lAWOfflCfS
foARllN R. McCALEB
II
IN RE: APPLICATION OF
STEVEN CADWALLADER
FOR VARIANCES
BEFORE THE MECHANICSBURG ZONING
HEARING BOARD
NO. 2004-5
THOMAS T. NIESEN, CHAIRMAN
THOMAS R. VI EHMAN , MEMBER
THOMAS L. WITTERS, MEMBER
DECISION OF THE ZONING HEARING BOARD
Steven Cadwallader applied to the Zoning Hearing Board for
variances from Section 1404,1.B, Section 1404.2.A and Section
1404.2.B of the Mechanicsburg Zoning Ordinance to expand his
automobile body repair service at 526-530 East Main Street,
Mechanicsburg. A public Hearing on this Application was held
on Tuesday, August 31, 2004, before the Zoning Hearing Board
and testimony was taken and duly transcribed by a stenographer.
Present at the Hearing were Thomas T. Niesen, Chairman; Thomas
R. Viehman, Member; Thomas L. Witters, Member; Marlin R.
McCaleb, Esquire, the Solicitor for the Board; Cliff Ressler,
Zoning Officer; Steven Cadwallader; Ron Stephens; Michael
Bangs, Esquire, attorney for Charleen Wagner; Charleen Wagner;
Christine Willow; and Jack Winchell.
Findinqs of Fact
The evidence presented at the Hearing consisted of the
testimony of Mr. Stephens and Mr. Cadwallader, together with
various exhibits offered on behalf of Application, which
exhibits are attached to and made a part of the record in this
matter. In addition, Charleen Wagner and Christine Willow
testified in opposition to the Application. Based upon the
testimony and the evidence presented, the Board makes the
LAW OffiCES
ARllN R. McCALEB
following Findings of Fact:
1. Written Notice of the Hearing was given to the
Applicant and public notice thereof was given by newspaper
publication in The Sentinel on August 13 and August 20, 2004.
In addition, written notice by mail was given to the adjoining
property owners on August 13, 2004, and the property was posted
with Notice of the Hearing on August 12, 2004.
2. The land which is the subject of this proceeding
consists of two tracts of land known and numbered as 526 and
530 East Main Street.
3. The land which is the subject of this proceeding is
located in a C-G Commercial General District.
4. The property at 526 East Main Street is owned by the
Applicant, Steven Cadwallader and his wife, Lee Ann
Cadwallader, who acquired the same by deed of william R. White
and Crystal H. White, his wife, dated September 30, 1998. This
property is bounded on the north by East Main Street, on the
east by the property known and numbered as 530 East Main
Street, on the south by a public alley and on the west by lands
of Barry and Carol Wright. It has a frontage along Main Street
of 80 feet and a depth in excess of 100 feet, for a total lot
area of 8,457 square feet. It contains an existing autobody
shop of 3,490 square feet, which is operated by Autobodies by
Lucas, Ltd., a Pennsylvania corporation of which Mr. and Mrs.
Cadwallader are the principals. The building houses eight
-2-
LAW OFFICES
v1.ARUN R, McCALEB
service bays and a paint booth and there are six full-time
employees.
5. The property at 530 East Main Street is owned by
Arthur G. Bruaw, Jr" who has entered into an Agreement of Sale
dated August 7, 2003, to sell the same to Autobodies by Lucas,
Ltd. This property is bounded on the north by East Main
Street, on the east by Norway Street, on the south by a public
alley and on the west by the property at 526 East Main Street.
It has a frontage of 160 feet along East Main Street and a
depth of 95 feet along Norway Street, with a total lot area of
16,197 square feet. It presently contains an existing gas
station, with 1,765 square feet, and an existing two-car
garage, with 580 square feet.
6. 89.5% of the total lot area of both tracts is now
covered by impervious material.
7. The Applicant proposes to remove the existing
gasoline station and the existing garage at 530 East Main
Street and to construct an addition to east side of the
existing autobody shop. The addition will be 57 feet by 93
feet, adding 5,301 square feet of building area. with this
addition, the Applicant can expand his operation to 12 service
bays and provide a sales area of 1,038 square feet. Traffic
will enter the property from E~st Main Street and/or Norway
Street and will exit the property either through the public
alley or onto Norway Street. After the addition, the Applicant
-3-
LAW OFFICES
IARUN R. McCALEB
II
will have a total of eight full-time employees at the site.
8. Section 1402 of the Mechanicsburg Zoning Ordinance
requires a total of 40 off-street parking spaces for the
enlarged autobody service facility planned by the Applicant.
The Applicant can provide a total of 22 off-street parking
spaces outside the building (numbered as spaces 1-22 on
Applicant's Exhibit No.1). The Applicant can also provide a
total of 18 parking spaces inside the building (numbered as
spaces 1-18 on Applicant's Exhibit No.1). These interior
spaces will normally be occupied by customers' vehicles while
they are in the process of being repaired.
9. If the Applicant is permitted to expand as he
proposes, the total impervious area will be reduced to 87.5% of
the total lot coverage.
Discussion
Section 1404.2.A requires that all access drives be at
least five feet from any building for purposes of pedestrian
access. Here, the access drive from East Main Street along the
northern portion of the property will directly abut the front
of the existing building and the proposed addition. However,
that front contains overhead doors that directly access service
bays (interior spaces 3-7), Those doorways must directly
access the access drive for traffic to enter and leave those
bays. Thus, any deviation for the remainder of the access
drive is de minimis.
-4 -
lAW OFFICES
-AARlIN R. McCALEB
Section 1404.2.B requires that all access drives and
parking spaces be at least five feet from any exterior property
line. Exterior spaces 1-3 directly abut the northern property
line. Exterior spaces 14-20 are within three feet from the
southern property line. Exterior spaces 21 and 22 directly
abut the southern property line and the public alley. Again,
we believe these deviations to be de minimis.
Section 1404.1.B requires that the aisle width of
driveways between perpendicular parking spaces be at least 24
feet and that aisles for parking spaces at 60 degrees be at
least 18 feet wide. The aisle width between spaces 8-13 and
spaces 14-20 is only 19 feet and the aisle width behind spaces
4-7 is only 15 feet. These reductions mean very tight turning
areas and create safety issues for traffic backing out of those
spaces. These deviations are more substantial than can be
justified as de minimis. Thus Section 1812.C applies.
Section 1812.C(I) requires that there must be ".. . unique
physical circumstances or conditions, including irregularity,
narrowness or shallowness of lot size or shape, or exceptional
topographical or other physical conditions peculiar to the
particular property..." that creates unnecessary hardship for
the property. We have recently held that no such circumstances
or conditions exist with respect to this property. In Re:
Application of Steven Cadwallader, No. 2004-2 (August 27,
2004). Nothing was presented at the August 31 Hearing to
-5-
.
LAW OfFICES
MARLIN R. McCALEB
II
change this conclusion and therefore we are without authority
to grant a variance from the requirements of Section 1404.1.B.
Conclusions of Law
1. The variance from Section 1404.2.A is de minimis.
2. The variance from Section 1404.2.B is de minimis.
3. There are no unusual or unique physical circumstances
or conditions applicable to this property that create
unnecessary hardship for the property.
Conclusion
The Application of Steven Cadwallader for a variance from
the access drive location provisions of Section 1404.2.A as
proposed in Applicant's Exhibit No.1 is granted. The
Application of Steven Cadwallader for a variance from the
parking space location requirements of Section 1404.2.B as
proposed in Applicant's Exhibit NO.1 is granted. The
Application of Steven Cadwallader for a variance from the
aisle-width requirements of Section 1404.1.B as proposed in
Applicant's
Exhibit No. 1 is denied.
and dated this '::I:./ff ay OfOC.:-/z;W
MECHANI URG HEARING BOARD
By: I,.,''''
Thoma
Signed
, 2004.
By:
Chairman
By:
m s R. Viehman, Member
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Thomas L. Witters, Member
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SCOTTD. WAGNER and
CHARLEENP. WAGNER,
Appellants
vs.
ZONING HEARING BOARD OF
MECHANICSBURG BOROUGH,
Appellee
)
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 2004 - 5113
CIVIL ACTION --- LA W
CIVIL TERM
LAND USE APPEAL
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
)
(
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SS:
TO: ZONING HEARING BOARD OF MECHANICS BURG BOROUGH
We, being willing for certain reasons, to have certified a certain action between SCOTT
D. WAGNER and CHARLEEN P. WAGNER, and the ZONING HEARING BOARD OF
MECHANICSBURG BOROUGH, 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 or
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
of the Constitution of this Commonwealth.
WITNESS the Honorable b t 0 rC;\, L {- , ~ re V {J r , our
said Court at Carlisle, Pennsylvania, on the ~-IQ. day of ___ 19ct-ch ~ r ' 2004.
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pd\ntc\l-lntervention
SCOTT D. WAGNER and CHARLEEN P.
WAGNER,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Appellants
NO. 2004-5093 CIVIL TERM
vs.
ZONING HEARING BOARD OF
MECHANICSBURG BOROUGH,
Appellee
CIVIL ACTION - LAW
LAND USE APPEAL
NOTICE OF INTERVEN,]~ION
Please take notice that STEVEN CADWALLADER, LEE ANN CADWALLADER,
and AUTOBODIES BY LUCAS, LTD., owners of property at 526 and 530 East
Main Street, Mechanicsburg, Cumberland County, Pennsylvania, being
property directly involved in this appeal and the action appealed
from, hereby intervene in this appeal of the decision of the Zoning
Hearing Board of Mechanicsburg Borough.
~KLETSKI' E OIRE
Attorney for Steven Cadwallader,
Lee Ann Cadwallader and Autobodies
by Lucas, Ltd.
414 Bridge Street, PO Box E
New Cumberland, PA 17070
Telephone: (717) 774-7435
II
pd\mis\CADWALLADERservice
CERTIFICATE OF SERVIICE
I, GERALD J. SHEKLETSKI, Attorney at l,aw, of the law firm of
Stone LaFaver & Shekletski, hereby certify that on this date I served
a true and correct copy of the within instrument on the following
named individuals by first class mail, postage prepaid, addressed as
follows:
Michael L. Bangs, Esquire
429 South 18~ Street
Camp Hill, PA 17011
Attorney for Appellants
Marlin R. McCaleb, Esquire
Frankeberger Place
219 E. Main St., PO Box 230
Mechanicsburg, PA 1 7055
Solicitor, Mechanicsburg Zoning Hearing Board
DATE:
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SCOTT D. WAGNER and
CHARLEEN P. WAGNER,
Appellants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO. 2004 - 5093 CIVIL TERM
ZONING HEARING BOARD OF
MECHANICSBURG BOROUGH,
Appellee
CIVIL ACTION - LAW
LAND USE APPEAL
CERTIFICATION OF RECORD
TO THE PROTHONOTARY:
Pursuant to the Writ of Certiorari issued in the above
matter on October 8, 2004, the Mechanicsburg Zoning Hearing
Board hereby certifies and submits the following Record of its
proceedings with respect to the Application of Steven
Cadwallader For Variances (No. 2004-5).
The Record consists of the following:
1. The Application of Steven F. Cadwallader, dated
August 31, 2004.
2. Transcript of Public Hearing held on August 31, 2004
(65 pages), together with Exhibits: Board Exhibits
Nos. 1-3; Applicant's Exhibits Nos. 1-2.
3. Decision of the Mechanicsburg Zoning Hearing Board
dated October 1, 2004.
4. Transcript of Public Hearing held on August 5, 2004
(114 pages), together with Exhibits: Board Exhibits
Nos. 1-2; Applicant's Exhibits Nos. 1-5; and
Opponents' Exhibits Nos. 1-8.
5. Decision of the Mechanicsburg Zoning Hearing Board
dated August 27, 2004 (No. 2004-2).
6 .
Pertinent provisions of Mechanicsburg Borough Zoning
Ordinance, 1991 (Ord. NO. 973, adopted March 19,
1991): Part 1, Section 203 - Definitions (p. 372);
"OFF-STREET PARKING SPACE" and "PARKING SPACE"; Part
9, Section 901 et seq - "C-E" Commercial District
(pp. 405-409); Part 14, Section 1401 et seq - Off-
LAW OFFICES
MARLIN R. McCALEB
Street Parking (pp. 463-470); Part 18, Section 1812 -
Zoning Hearing Board (pp. 490-492).
Date: November
/<? ,
2004
MEC~C~URJ-;5'rp'~"ING BOARD
By: ~~~
Marlin R. McCaleb, Solicitor
Attorney 1. D. No. 06353
219 East Main Street
P.O. Box 230
Mechanicsburg, Pennsylvania 17055
(717) 691-7770 FAX (717) 691-7772
LAW OFFICES
MARLIN R. McCALEB
-2-
LAW OFFICES
MARLIN R. McCALEB
CERTIFICATE OF SI~RVICE
I hereby certify that a true and correct copy of the
foregoing Certification of Record was served upon the other
parties hereto this /y~ day of November, 2004, by depositing
same in the United States Mail at the Post Office at
Mechanicsburg, Pennsylvania, first class, postage prepaid,
addressed as follows:
Michael L. Bangs, Esquire
429 South 18th Street
Camp Hill, Pennsylvania 17011
(Attorney for Appellants)
Gerald J. Shekletski, Esquire
Stone LaFaver & Shekletski
414 Bridge Street
P.O. Box E
New Cumberland, Pennsylvania 17070
(Attorney for Intervenor)
~~
Marlin R. McCaleb
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
l~t be typewritten am subnitted ill duplir"'te)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the nE!)ct Argwlent Court.
-------------------------------------------------------.--------------------------------
CAPTION OF CASE
(entire caption naJSt be stated in full)
SCOTT D. WAGNER and CHARLENE P. WAGNER,
Plaintiff/Appellants
v.
ZONING HEARING BOARD OF MECHANICSBURG
BOROUGH,
Defendant~ellee
v.
STEVEN CADWALLARD, LEE ANN CADWALLADER and
AUTOBODIES BY LUCAS, LTD.
Intervenors
No. 2004-5093 Civil T..nn 19
1. State matter to be argued (Le., plaintiff's Jrotion for new trial. defendant's
delurrer to canplaint, etc.):
Plaintiffs appeal of decision of Mechanicsburg Zoning Hearing Board
rendered on October 1, 2004.
2. Identify cxxmsel who will argue case:
(a) for plaintiff:
l\ddress :
Michaels L. Bangs, Esquire
429 South 18th Street
Camp Hill, PA 17011
(c) for Intervenors:
Gerald J. Shekletski, E
414 Bridge Street
New Cumberland, PA 170
(h)
for deferx3ant:
J\ddress:
Marlin R. McCaleb, Esquire
Frankeberger Place
219 East Main Street
PO Box 230
Mechanicsburg, PA 17055
I will. notify all. parties in writing within n.u days
been listed for argunent.
3.
that this case has
4. Aryunent Court Date:
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GERALD .J. ' -8HEKLETSKI, ESQUIRE
Attornev for Intervenors
pd\rr,is \ lservice
CERTIFICATE OF SERVICE
I, GERALD J. SHEKLETSKI, Attorney at Law, of the law firm of
Stone LaFaver & Shekletski, hereby certify that on this date I served
a true and correct copy of the within instrument on the following
named individuals by first class mail, postage prepaid, addressed as
follows:
Michael L. Bangs, Esquire
429 South 18~ Street
Camp Hill, PA 17011
Attorney for Appellants
Marlin R. McCaleb, Esquire
Frankeberger Place
219 E. Main Street
PO Box 230
Mechanicsburg, PA 17055
Solicitor, Mechanicsburg Zoning Hearing Board
DATE:
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SCOTT D. WAGNER and
CHARLEEN P. WAGNER,
APPELLANTS
IN THE COURT OF COM ON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
ZONING HEARING BOARD OF
MECHANICSBURG BOROUGH,
APPELLEE
V.
STEVEN CADWALLADER, LEE ANN
CADWALLADER and AUTOBODIES
BY LUCAS, L TD,
INTERVENORS
04-5093 CIVIL TERM
IN RE: LAND USE APPEAL
INTERIM ORDER OF COURT
AND NOW, this ~ day of April, 2005, IT IS ORDERE
(1) The case is remanded to the Zoning Hearing Board of Me hanicsburg.
(2) The Board shall expeditiously file a supplemental opinion s to the grant of
the two variances addressing whether rigid compliance with the Mec anicsburg Zoning
Ordinance is necessary to preserve the public interest sought to be rotected by the
Ordinance.
(3) Upon the filing of the supplemental opinion with the Proth notary, it shall be
forwarded to chambers.
(4) Within fifteen days thereafter, all parties may file in this ch
supplemental brief.
(5) The court will decide the appeal without further oral argu ent unless any
party requests argument.
04-5093 CIVIL TERM
Michael L. Bangs, Esquire
For Appellants
Marlin R. McCaleb, Esquire
For Appellee
Gerald J. Shekletski, Esquire
For Intervenors
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By the Court, .
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Edgar B. Bayley, J.
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2005 APR -5 PM 3: 33
CUi''tHJEi~(:j~'J!j (.:UUNnJ
PENNSYlVANtA
SCOTT D. WAGNER and
CHARLEEN P. WAGNER,
APPELLANTS
IN THE COURT OF COM ON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
ZONING HEARING BOARD OF
MECHANICS BURG BOROUGH,
APPELLEE
V.
STEVEN CADWALLADER, LEE ANN
CADWALLADER and AUTOBODIES
BY LUCAS, L TO,
INTERVENORS
04-5093 CIVIL TERM
IN RE: LAND USE APPEAL
OPINION AND INTERIM ORDER OF COURT
Bayley, J., April 5, 2005:--
Intervenors, Steven Cadwallader and Lee Ann Cadwallader, a e the owners of
526 East Main Street, Mechanicsburg, Cumberland County. They 0 erate Autobodies
by Lucas, LTD., which has an auto body repair shop on the property. The property is
bounded on the north by East Main Street, on the east by 530 East ain Street, on the
south by a public alley, and on the west by property of appellants Sc It D. Wagner and
Charleen P. Wagner. The Cadwalladers have acquired equitable titl to 530 East Main
Street on which there is a gas station and a two car garage. They pi n to remove those
buildings and construct an addition to the east side of the auto body hop which will
extent onto 530 East Main Street. The existing shop has eight servi e bays and a paint
booth. If expanded the facility will have fourteen service bays and a ditionaloffice,
storage and training space. Vehicles will enter the building from Eas Main Street and
Norway Street, and leave on Norway Street or the public alley. The Ian for the
04-5093 CIVIL TERM
enlarged facility has 40 parking spaces: 22 outside the building and 1 inside. That
meets the requirements of the Zoning Ordinance of the Borough of M chanicsburg.
The Cadwalladers sought a variance from the requirements in ections 1404.2.A
and 1404.2.B of the Zoning Ordinance. Section 1404.2.A requires th t all access
drives be at least five feet from any building for purposes of pedestria access. The
access drive from East Main Street along the northern portion of the roperty will
directly abut the front of the existing building and the proposed additi n. Appellee, the
Zoning Hearing Board of Mechanicsburg, while acknowledging that t ere are no
unusual or unique physical characteristics or conditions applicable to the property that
create unnecessary hardship, granted a variance. It concluded that t e front of the
building:
[c]ontains overhead doors that directly access service ays (interior
spaces 3-7). Those doorways must directly access the access drive for
traffic to enter and leave those bays. Thus, any deviati n for the
remainder of the access drive is de minimis.
Section 1404.2.B of the Zoning Ordinance, requires that all ac ess drives and
parking spaces be at least five feet from any exterior property line. xterior spaces 1-3
directly abut the northern property line, 14-20 are within three feet fr m the southern
property line, and 21 and 22 directly abut the southern property line nd the public alley.
The Zoning Hearing Board granted a variance, concluding that these deviations were
-2-
04-5093 CIVIL TERM
"de minimis.'" The Wagners filed this appeal which was briefed and rgues on March
23, 2005.
Having not received additional evidence, our review consists 0 ascertaining
whether the Zoning Hearing Board committed an abuse of discretion r an error of law.
See C & M Developers, Inc. v. Bedminster Township Zoning Hea ing Board, 820
A.2d 143 (Pa. 2002). An abuse of discretion is where the Board's fin ings are not
supported by substantial evidence. Id.
The Municipalities Planning Code at 53 P.S. Section 10910.2 rovides that a
zoning hearing board may grant a variance when all of the following f ndings are made
where relevant in a given case:
(1) That there are unique physical circumstance or conditions,
including irregularity, narrowness, or shallowness of lot ize or shape, or
exceptional topographical or other physical conditions p culiar to the
particular property and that the unnecessary hardship i due to such
conditions and not the circumstances or conditions gen rally created by
the provisions of the zoning ordinance in the neighborh od or district in
which the property is located.
(2) That because of the physical circumstances r conditions, there
is no possibility that the property can be developed in s rict conformity with
the provisions of the zoning ordinance and the authoriz tion of a variance
is therefore necessary to enable the reasonable use of he property.
(3) That such unnecessary hardship has not be n created by the
appellant.
(4) That the variance, if authorized, will not alter the essential
character of the neighborhood or district in which the pr perty is located,
nor significantly or permanently impair the appropriate se or
development of adjacent property, nor be detrimental t the public
, The Cadwelladers also sought a variance from Section 1404.1.B of the Ordinance that
requires that the aisle width of driveways between perpendicular par ing spaces be at
least twenty-four feet and that aisles for parking spaces at sixty degr es be at least
eighteen feet wide. The Board denied the variance.
-3-
-
04-5093 CIVIL TERM
welfare.
(5) That the variance, if authorized, will represen the minimum
variance that will afford relief and will represent the leas modification
possible of the regulation in issue.
Notwithstanding, a de minimis variation from the provisions of zoning
ordinance does not have to meet these requirements for the grant of variance.
Township of Middletown v. Zoning Hearing Board of Middletown Township, 682
A.2d 900 (Pa. Commw.1996). In Township of Middleton, the Com onwealth Court of
Pennsylvania stated:
Although a board could consider the size of the propos d deviation in
determining whether a variance is de minimis, this Cou reiterates that it
is equally important for a board to consider whethe rigid
compliance is necessary to preserve the public inte est sought to be
protected by the ordinance. (Emphasis added.)
While there is some reference in the brief filed by the Zoning earing Board as
to the public interest sought to be protected by Sections 1404.2.A an 1404-2.B of the
Mechanicsburg Zoning Ordinance, the opinion of the Board is silent. It is also silent on
whether rigid compliance is necessary to preserve such interest rath r than grant the
two variances as de minimis. Therefore, we are unable to fully addr ss the issues
INTERIM ORDER OF COURT
AND NOW, this ~1t- day of April, 2005, IT IS ORDERE
raised by the Wagners in this appeal. Accordingly, the following ord r is entered.
(1) The case is remanded to the Zoning Hearing Board of Me hanicsburg.
(2) The Board shall expeditiously file a supplemental opinion s to the grant of
the two variances addressing whether rigid compliance with the Mec anicsburg Zoning
-4-
04-5093 CIVIL TERM
Ordinance is necessary to preserve the public interest sought to be pr tected by the
Ordinance.
(3) Upon the filing of the supplemental opinion with the Protho otary, it shall be
forwarded to chambers.
(4) Within fjfteen days thereafter, all parties may file in this ch mbers a
supplemental brief.
(5) The court will decide the appeal without further oral argum nt unless any
By the Court,
party requests argument.
Michael L. Bangs, Esquire
For Appellants
I
Marlin R. McCaleb, Esquire
For Appellee
Gerald J. Shekletski, Esquire
For Intervenors
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ilARLlN R. McCALEB
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SCOTT D. WAGNER and
CHARLEEN P. WAGNER,
Appellants
IN THE COURT OF COMMON P AS OF
CUMBERLAND COUNTY, PENNS VANIA
vs.
NO. 2004 - 5093 CIVIL TER
ZONING HEARING BOARD OF
MECHANICSBURG BOROUGH,
Appellee
vs.
CIVIL ACTION - LAW
STEVEN CADWALLADER, LEE
ANN CADWALLADER and
AUTOBODIES BY LUCAS, LTD.,
Intervenors
LAND USE APPEAL
SUPPLEMENTAL DECISION OF THE ZONING HEARING BOAR
Pursuant to the Interim Order of Court entered Apri 5,
2005, in this matter, the Mechanicsburg Zoning Hearing Bard
issues the following Supplemental Decision in In re:
Application of Steven Cadwallader for Variances (No. 200 -5):
Findinqs of Fact
1. The land which is the subject of this proceedi g
consists of two tracts of land known and numbered as 526 and
530 East Main Street.
2 .
The land which is the subject of this proceedi
is
located in a C-G Commercial General District, which permi s
automotive repair shops as a use by right.
3. The property at 526 East Main Street is owned b the
Applicant, Steven Cadwallader and his wife, Lee Ann
Cadwallader, who acquired the same by deed of William R. hite
and Crystal H. White, his wife, dated September 30, 1998. This
1/\\\/ (JflICI ~
1ARL IN R. McCALF13
.1
, .
property is bounded on the north by East Main Street, the
east by the property known and numbered as 530 East Mai
Street, on the south by a public alley (16 feet wide) a d on
the west by lands of Barry and Carol Wright.
It has a rontage
along Main Street of 80 feet and a depth in excess of 1 0 feet,
for a total lot area of 8,457 square feet.
It contains an
existing autobody shop of 3,490 square feet, which is 0 erated
by Autobodies by Lucas, Ltd., a Pennsylvania corporatio of
which Mr. and Mrs. Cadwallader are the principals. The
building houses eight service bays and a paint booth an there
are six full-time employees.
4. The property at 530 East Main Street is owned y
Arthur G. Bruaw, Jr., who has entered into an Agreement f Sale
dated August 7, 2003, to sell the same to Autobodies by ucas,
Ltd. This property is bounded on the north by East Main
Street, on the east by Norway Street, on the south by a ublic
alley (16 feet wide) and on the west by the property at 26
East Main Street.
It has a frontage of 160 feet along E st
Main Street and a depth of 95 feet along Norway Street,
total lot area of 16,197 square feet.
'th a
It presently conta'ns an
existing gas station, with 1,765 square feet, and an exis ing
two-car garage, with 580 square feet.
impervious material is 89.5%.
5. The total lot area of both tracts that was cove ed by
6. Two sets of railroad tracks occupy the north si e of
-2-
. ,
East Main Street, directly across from the subject pro erties.
7. Applicant proposes to remove the existing gas line
station and the existing garage at 530 East Main Street and to
construct an addition to east side of the existing auto ody
shop. The addition will be 57 feet by 93 feet, adding ,301
square feet of building area. With this addition. the
Applicant can expand his operation to 12 service bays a d
provide a sales area of 1,038 square feet.
8. Traffic will enter the property from East Main Street
and/or Norway Street and will exit the property either hrough
the public alley or onto Norway Street; traffic will no exit
from the property directly onto East Main Street.
9. Traffic entering the property from East Main St eet
will either enter the service bays along the north side f the
building or will follow the driveway eastwardly to the e st
side of the property. Traffic entering the property fro
Norway Street will either enter the service bays on the ast
side of the building or park in exterior parking spaces -20.
10. After the addition, the Applicant will have a t tal of
eight full-time employees at the site.
11. The Applicant can provide a total of 22 off-st et
parking spaces outside the building (numbered as exterior
parking spaces 1-22 on Applicant's Exhibit No.1). The
Applicant can also provide a total of 18 parking spaces l side
the building (numbered as interior parking spaces 1-18 on
I,\\V (111/(.1"
ilARLIN R. McCALFl)
-3-
.1
Applicant's Exhibit No.1). These interior spaces will
normally be occupied by customers' vehicles while they re in
the process of being repaired.
12. Exterior parking spaces 1-3 will directly abu the
northern property line. The access drive leading eastw rdly
along the northern side of the property and southwardly along
the eastern side of the property will also directly abu the
property lines. Exterior parking spaces 14-20 will be tree
feet from the public alley. Exterior parking spaces 21 nd 22
will directly abut the alley.
13. On the northern side of the property, along Ea t Main
Street, the Applicant proposes to construct and maintain a
green area, 10 feet wide, between his northern property ine
and the East Main Street cartway. On the eastern side 0 the
property, along Norway Street, the Applicant proposes to
construct and maintain a green area, 12 feet wide, betwee his
eastern property line and the Norway Street cartway.
14. If the Applicant is permitted to expand as he
proposes, the total impervious area will be reduced to 87 5% of
the total lot coverage.
Discussion
Even where the traditional requirements for a varian
have not been met, a zoning hearing board may grant a de
minimis variance if the deviation is minor and rigid compl ance
with the zoning ordinance is not necessary to protect the
If\W,lllltb
\RLlN R. McC^L~B
-4-
public interest. Township of Middletown v. Zoning Hear ng
Board of Middletown Township, 682 A.2d 900, 901 (Pa.Cmn
1996) .
Section 1404.2.A requires that all access drives b at
least five feet from any building to provide a "pedestr'an
access walkway." Here, the north, east and south sides of the
proposed building will contain overhead doors that open
sidewalk, four feet wide.
To meet the ordinance
exit
service bays. The access drive must necessarily extend
the building in these areas so that traffic can enter a
those bays. At the northeast corner of the proposed bui
the driveway will be separated from the building
crete
entr
the driveway width would have to be reduced from 15 feet to 14
feet. We believe that the public interest (as well as
pedestrian convenience and safety) will be amply protect d by
the proposed sidewalk and that the deviation is minor, s that
this variance is de minimis.
Section 1404.2.B requires that all access drives an
parking spaces be at least five feet from any exterior p operty
line. We speculate that aesthetic and public safety
considerations are the reasons for this regulation. Aft r all,
things look better if cars are kept back from the proper y line
and it is important to maintain sight lines for traffic
entering onto a public street or alley.
Exterior spaces 1-3 directly abut the northern prop rty
I.A\'\' (liTH I ~
MARLIN R. McCAI tL3
-5-
line, as does the drive along the north and east sides f the
property. Exterior spaces 14-20 are three feet from th
southern property line. Exterior spaces 21 and 22 dire tly
abut the southern property line and the public alley. ach of
these deviations is along a public street or alley, so hat
affected property owners are separated from the deviati n by at
least the width of the public right-of-way.
It appears that
the green areas proposed by the Applicant between his p operty
lines and the cartways of the streets will address and rotect
the aesthetic and safety concerns in the same manner as the
setback would.
Neither the Borough nor property owners should have undue
expectations of aesthetic considerations along a public lley.
We know from our own experience that it is not uncommon 0 find
cars parked near or along the right-of-way line of any p blic
alley in Mechanicsburg. Exterior spaces 14-22 present n thing
that cannot be found elsewhere in the Borough. There wi I
still be sufficient visibility for traffic to safely ent r into
the alley from the service bays along the south side of he
proposed building.
Under the circumstances of this case, we believe th t the
proposed deviations from Section 1404.2.B are minor and hat
rigid compliance with that setback requirement is not ne essary
to protect the public interest. Thus, we find these vari nces
to be de minimis.
Il\W O\f\(\~-;
MARL IN R. M~CALfB
-6-
!.!\VI,' OIIICI S
\ARLlN R. McCALEH
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Section 1404.1.B requires that the aisle width of
driveways between perpendicular parking spaces be at le st 24
feet and that aisles for parking spaces at 60 degrees b at
least 18 feet wide. The aisle width between spaces 8-1 and
spaces 14-20 is only 19 feet and the aisle width behind spaces
4-7 is only 15 feet. These reductions mean very tight urning
spaces, traffic parked around those spaces and traffic n the
areas and create safety issues for traffic backing out f those
driveway. These deviations are not minor and they thre ten the
very purpose of the zoning regulation. They are not de inimis
and they can be granted only if the Applicant proves the
traditional grounds for a variance.
Section 1812.C(1) requires that there must be "...u ique
physical circumstances or conditions, including irregula ity,
topographical or other physical conditions peculiar to t e
narrowness or shallowness of lot size or shape, or excep ional
particular property..." that creates unnecessary hardshi for
the property. We have recently held that no such circum tances
or conditions exist with respect to this property. In Re:
Application of Steven Cadwallader, No. 2004-2 (August 27,
2004). Nothing was presented at the August 31 Hearing to
change this conclusion and therefore we are without autho ity
to grant a variance from the requirements of Section 1404 1.B.
Conclusions of Law
1. The proposed deviations from Section 1404.2.A a e
-7-
minor and rigid compliance with the requirements of th t
section are not necessary to protect the public interes ; they
are de minimis.
2. The proposed deviations from Section 1404.2.B are
minor and rigid compliance with the requirements of tha
section are not necessary to protect the public interes
they
are de minimis.
3. The proposed deviations from Section 1404.1.B are not
minor and strict compliance with the requirements of th t
section is necessary to protect the public interest; th yare
not de minimis.
4. There are no unusual or unique physical circums ances
or conditions applicable to this property that create
unnecessary hardship for the property for purposes of th
requested variance from Section 1404.1.B..
Conclusion
The Application of Steven Cadwallader for a varianc from
the access drive location provisions of Section 1404.2.A as
proposed in Applicant's Exhibit NO.1 is granted. The
Application of Steven Cadwallader for a variance from th
parking space location requirements of Section 1404.2.B a
proposed in Applicant's Exhibit NO.1 is granted. The
Application of Steven Cadwallader for a variance from the
aisle-width requirements of Section 1404.1.B as proposed n
1,\\\/ ()IIIU.~
.;\t\RIIN R. McCAlER
-8-
Signed
Applicant's Exhibit No.1 is denied.
LAW ()r1IC1S
IARLI~I R. McCALFB
and dated this /7 day of f'/~; (
MECH-;;;;;;'~G/NG
By:;;:;r~ I.
Tho
By:
By:
om . Viehman, Member
q--~ r: .~~
Thomas L. Witters, Member
-9-
. .
, 2005.
BARD
" .
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of t e
foregoing Supplemental Decision of the Zoning Hearing Bard was
served upon the other parties hereto this 19th day of A ril,
2005, by depositing same in the United States Mail at t e Post
Office at Mechanicsburg, Pennsylvania, first class, pos age
prepaid, addressed as follows:
Michael L. Bangs, Esquire
429 South 18th Street
Camp Hill, Pennsylvania 17011
(Attorney for Appellants)
Gerald J. Shekletski, Esquire
Stone LaFaver & Shekletski
414 Bridge Street
P.O. Box E
New Cumberland, pennsylvania 17070
(Attorney for Intervenors)
~.~
Marlin R. McCaleb
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SCOTT D. WAGNER and
~HARLEEN P. WAGNER,
APPELLANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
j V.
i
tONING HEARING BOARD OF
~ECHANICSBURG BOROUGH,
I APPELLEE
,
V.
TEVEN CADWALLADER, LEE ANN
ADWALLADER and AUTO BODIES
Y LUCAS, L TD,
INTERVENORS
04-5093 CIVIL TERM
ORDER OF COURT
AND NOW, this ?~ day of May, 2005, the land use appeal of Scott D.
agner and Charleen P. Wagner, IS DENIED.
(,
By the Gourt,
/
Edgar B. Bayley, J.
..'
>
6
~JO
Off 0
ichael L. Bangs, Esquire
For Appellants
arlin R. McCaleb, Esquire
For Appellee
erald J. Shekletski, Esquire
For Intervenors
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AH\i'lUi,j:::;,;,U.C;r~1d :iHl :i0
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SCOTT D. WAGNER and
CHARLEEN P. WAGNER,
APPELLANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
,
,
,
I V.
tONING HEARING BOARD OF
fECHANICSBURG BOROUGH,
APPELLEE
V.
TEVEN CADWALLADER, LEE ANN
ADWALLADER and AUTO BODIES
Y LUCAS, L TD,
INTERVENORS
04-5093 CIVIL TERM
IN RE: LAND USE APPEAL
OPINION AND ORDER OF COURT
ayley, J., May 3, 2005:--
Intervenors, Steven Cadwallader and Lee Ann Cadwallader, are the owners of
26 East Main Street, Mechanicsburg, Cumberland County. They operate Autobodies
y Lucas, LTD., which has an auto body repair shop on the property. The property is
ounded on the north by East Main Street, on the east by 530 East Main Street, on the
outh by a public alley, and on the west by property of appellants Scott D. Wagner and
harleen P. Wagner. The Cadwalladers have acquired equitable title to 530 East Main
treet on which there is a gas station and a two car garage. They plan to remove those
uildings and construct an addition to the east side of the auto body shop which will
xtent onto 530 East Main Street. The existing shop has eight service bays and a paint
ooth. If expanded the facility will have fourteen service bays and additional office,
torage and training space. Vehicles will enter the building from East Main Street and
orway Street, and leave on Norway Street or the public alley. The plan for the
04-5093 CIVIL TERM
e'nlarged facility has 40 parking spaces: 22 outside the building and 18 inside. That
eets the requirements of the Zoning Ordinance of the Borough of Mechanicsburg.
he Cadwalladers sought a variance from the requirements in Sections 1404.2.A and
1404.2.B of the Zoning Ordinance. Section 1404.2.A requires that all access drives be
t least five feet from any building for purposes of pedestrian access. The access drive
f om East Main Street along the northern portion of the property will directly abut the
font of the existing building and the proposed addition. Appellee, the Zoning Hearing
oard of Mechanicsburg, while acknowledging that there are no unusual or unique
hysical characteristics or conditions applicable to the property that create unnecessary
ardship, granted a variance on the basis that this deviation was de minimis. Section
404.2.B of the Zoning Ordinance, requires that all access drives and parking spaces
e at least five feet from any exterior property line. Exterior spaces 1-3 directly abut the
orthern property line, 14-20 are within three feet from the southern property line, and
1 and 22 directly abut the southern property line and the public alley. The Zoning
earing Board granted a variance, concluding that these deviations were "de minimis.'"
he Wagners filed this appeal which has been briefed and argued.
Having not received additional evidence, our review consists of ascertaining
hether the Zoning Hearing Board committed an abuse of discretion or an error of law.
The Cadwelladers also sought a variance from Section 1404.1.B of the Ordinance that
equires that the aisle width of driveways between perpendicular parking spaces be at
I ast twenty-four feet and that aisles for parking spaces at sixty degrees be at least
ighteen feet wide. The Board denied the variance.
-2-
04-5093 CIVIL TERM
~ee C & M Developers, Inc. v. Bedminster Township Zoning Hearing Board, 820
4.2d 143 (Pa. 2002). An abuse of discretion is where the Board's findings are not
I
~upported by substantial evidence. rd.
I
! The Municipalities Planning Code at 53 P.S. Section 10910.2 provides that a
oning hearing board may grant a variance when all of the following findings are made
here relevant in a given case:
(1) That there are unique physical circumstances or conditions,
including irregularity, narrowness, or shallowness of lot size or shape, or
exceptional topographical or other 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 the zoning ordinance in the neighborhood or district in
which the property is located.
(2) That because of the physical circumstances or conditions, there
is no possibility that the property can be developed in strict conformity with
the provisions of the zoning ordinance and the authorization of a variance
is therefore necessary to enable the reasonable use of the property.
(3) That such unnecessary hardship has not been created by the
appellant.
(4) That the variance, if authorized, will not alter the essential
character of the neighborhood or district in which the property is located,
nor significantly or permanently impair the appropriate use or
development of adjacent property, nor be detrimental to the public
welfare.
(5) 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.
Notwithstanding, a de minimis variation from the provisions of a zoning
ordinance does not have to meet these requirements for the grant of a variance.
Township of Middletown v. Zoning Hearing Board of Middletown Township, 682
A.2d 900 (Pa. Commw.1996). In Township of Middleton, the Commonwealth Court of
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04-5093 CIVIL TERM
Pennsylvania stated:
Although a board could consider the size of the proposed deviation in
determining whether a variance is de minimis, this Court reiterates that it
is equally important for a board to consider whether rigid compliance is
necessary to preserve the public interest sought to be protected by the
ordinance.
With respect to the deviation from Section 1404.2.A, the Zoning Hearing Board
oncluded:
Section 1404.2.A requires that all access drives be at least five feet
from any building to provide a "pedestrian access walkway." Here, the
north, east and south sides of the proposed building will contain overhead
doors that open onto service bays. The access drive must necessarily
extend up to the building in these areas so that traffic can enter and exit
those bays. At the northeast corner of the proposed building, the
driveway will be separated from the building by a concrete sidewalk, four
feet wide. To meet the ordinance requirement, the driveway width would
have to be reduced from 15 feet to 14 feet. We believe that the public
interest (as well as pedestrian convenience and safety) will be amply
protected by the proposed sidewalk and that the deviation is minor, so
that this variance is de minimis.
With respect to deviations from Section 1404.2.B, the Zoning Hearing Board
oncluded:
Section 1404.2.B requires that all access drives and parking
spaces be at least five feet from any exterior property line. We speculate
that aesthetic and public safety considerations are the reasons for this
regulation. After all, things look better if cars are kept back from the
property line and it is important to maintain sight lines for traffic entering
onto a public street or alley.
Exterior spaces 1-3 directly abut the northern property line, as does
the drive along the north and east sides of the property. Exterior spaces
24-20 are three feet from the southern property line. Exterior spaces 21
and 22 directly abut the southern property line and the public alley. Each
of these deviations is along a public street or alley, so that affected
property owners are separated from the deviation by at least the width of
the public right-of-way. It appears that the green areas proposed by the
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04-5093 CIVIL TERM
Applicant between his property lines and the cartways of the streets will
address and protect the aesthetic and safety concerns in the same
manner as the setback would.
Neither the Borough nor property owners should have undue
expectations of aesthetic consideration along a public alley. We know
from our own experience that it is not uncommon to find cars parked near
or along the right-of-way line of any public alley in Mechanicsburg.
Exterior spaces 14-22 present nothing that cannot be found elsewhere in
the Borough. There will still be sufficient visibility for traffic to safely enter
into the alley from the service bays along the south side of the proposed
building.
Under the circumstances of this case, we believe that the proposed
deviations from Section 1404.2.B are minor and that rigid compliance with
that setback requirement is not necessary to protect the public interest.
Thus, we find these variances to be de minimis.
In Marlowe v. Zoning Hearing Board of Haverford Township, 52 Pa. Commw.
24 (1980), the developer of a shopping center sought several dimensional variances:
o reduce the front setback from 100 feet to 90 feet; to reduce the rear setback from 70
eet to 37 feet; to increase the building coverage from 20% to 21.9%; to reduce the
arking space requirements from 7 per 1,000 square feet of leased area to 5 per 1,000
quare feet of leased area; to reduce the parking space setback requirement from 20
eet to 12-15 feet, where the spaces would still be more than 20 feet from the curb line
similar to the present case); and to reduce the parking space size from 10 feet by 20
eet to 9 feet by 20 feet. The Zoning Hearing Board granted the variances and a trial
ourt affirmed. The Commonwealth Court affirmed, concluding that it was not
nreasonable for the Zoning Hearing Board to conclude that the variances were de
inimis because the deviations were minor and did not adversely affect the pubic
ealth, safety and welfare. Likewise, we conclude in the present case that the findings
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04-5093 CIVIL TERM
qf the Zoning Hearing Board of the Borough of Mechanicsburg are supported by
I
I
,ubstantial evidence. There was no error of law in the Board concluding that the
~ariances from the requirements of Sections 1404.2.A and 1404.2.B of the Zoning
~rdinance were de minimis, and compliance is not necessary to preserve the public
i terest sought to be protected by the Ordinance. Accordingly, the following order is
ntered.
AND NOW, this
ORDER OF COURT
-"7'\./'l day of May, 2005, the land use appeal of Scott D.
agner and Charleen P. Wagner, IS DENIED. ~
By th~urt, /:fo;7/
,/ g/~/-
.u..
ichael L. Bangs, Esquire
or Appellants
I
arlin R. McCaleb, Esquire
or Appellee
erald J. Shekletski, Esquire
For Intervenors
:sal
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