HomeMy WebLinkAbout05-1718
LOWER ALLEN TOWNSHIP,
Appellant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
Cu~l~EA-~
ZONING HEARING BOARD OF
LOWER ALLEN TOWNSHIP,
Appellee
: NO. Dr - 171P
T,AND USR APPRAT, NOTTeR
Lower Allen Township, by its attorneys, Metzger, Wickersham, Knauss & Erb, appeals
from the decision of the Zoning Hearing Board of Lower Allen Township pursuant to the
provisions of Article X, Sections 100l-A through 1006-A, 53 P.S. ~~llOOl-A through l1006-A of
the Pennsylvania Municipalities Planning Code of 1968, July 31, P.L. 805, No. 247, as amended,
53 P.S. ~llOOI-A through 1l006-A.
1. Appellant, Lower Allen Township, is a first-class township duly organized and
existing under the laws of the Commonwealth of Pennsylvania, with its principal office at
Township Municipal Building, 1993 Hummel Avenue, Camp Hill, Cumberland County,
Pennsylvania 17011.
2. Appellee, Zoning Hearing Board of Lower Allen Township, is the duly constituted
Zoning Hearing Board of Lower Allen Township, Cumberland County, Pennsylvania, with its
principal office at Township Municipal Building, 1993 Hummel Avenue, Camp Hill, Cumberland
County, Pennsylvania 17011.
3. The subject property is an improved parcel ofland situate at on the southern side of
Main Street in the Village of Lisbum, Lower Allen Township, Cumberland County, upon which
exists a single family detached dwelling known as 1552 Main Street, Lisbum, Pennsylvania 17055
(the "Property").
4. The Property consists of 0.7 acres.
5. Bernard L .Draisey and Esther E. Draiseyare the legal owners ofthe Property.
6. On or about January 17, 2005, Tim Wakefield (the "Applicant"), on behalf of
Bernard Draisey, filed with the Zoning Hearing Board of Lower Allen Township an application for
a variance from the provisions of Section 220-14(B)(1) of the Codified Ordinances of Lower Allen
Township, setting forth the maximum residential density for a property having on lot water supply
and/or sewage disposal system at one (1) dwelling per gross acre, in order to subdivide the property
into two lots, Lot No.1, consisting of 0.4 acres upon which the existing residence is located, and
Lot No.2, consisting of 0.3 acres upon which Applicant proposed to erect a second single family
detached residence.
7. A hearing was held before the Zoning Hearing Board on February 17, 2005. The
Zoning Hearing Board of Lower Allen Township granted the request for a variance, subject to the
conditions that the well on Lot No.2 be at least 300 feet deep and 8 inches in diameter and that
both Lot No. 1 and Lot No. 2 connect to any new public water system promptly after it becomes
available. A true and correct copy of the decision of the Zoning Hearing Board is attached as
Exhibit "A".
323889 ~ 1
8. Under the provisions of Section 908(3) of the Pennsylvania Municipalities Planning
Code of 1968, July 31, P.L. 805, as amended, 53 P.S. 910908(3), Lower Allen Township is a party
to the proceedings before the Zoning Hearing Board of Lower Allen Township.
9. The action of the Zoning Hearing Board of Lower Allen Township in granting the
application was arbitrary, capricious, an abuse of discretion, and contrary to law in that:
(a) The decision is not based upon proper or legal criteria of section 910.2 of the
Municipalities Planning Code. 53 P.S. 10910.2.
(b) The Applicant did not demonstrate any unique physical circumstance, or
condition of the property sufficient to justify zoning relief as required under Section
910.2(1) of the Municipalities Planning Code. 53 P.S. 910910.2(1).
(c) The Applicant did not demonstrate a hardship sufficient to justify zoning
relief as required under Section 910.2(1) of the Municipalities Planning Code. 53 P.S.
910910.2(1).
(d) To the extent that this Court finds that Applicant did demonstrate a unique
physical circumstance, or condition of the property and hardship, there exists to relation
between the characteristic and hardship and the zoning relief sought in that the size and
shape of the lot is not related to the adequacy of available ground water.
(e) The Applicant did not demonstrate that the property could not be developed
in strict conformity with the provisions of the zoning ordinance as required under Section
910.2(2) of the Municipalities Planning Code. 53 P.S. 910910.2(2).
(f) The Zoning Hearing Board failed to consider significant flaws m
Applicant's hydrology report.
323889-1
WHEREFORE, Appellant, Lower Allen Township, prays this Honorable Court to reverse
the decision of the Zoning Hearing Board of Lower Allen Township.
Respectfully submitted,
METZGER, WICKERSHAM, KNAUSS & ERB
BYZ2/#& ~~
Steven P. Miner
Attorney J.D. No. 38901
David H. Martineau
Attorney I.D. No. 84127
3211 North Front Street
P.O. Box 5300
Harrisburg, P A 17100-0300
(717) 238-8187
Attorneys for Lower Allen Township
Dated: March 3D , 2005
323889-1
CLECKNER AND FEAREN
~
ATTORNEYS AT LAW
119 LOCUST STREET
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P.O-90V Ll.Q47
HARRISBURG, PENNSYLVANIA 17108-1847
IN THE MATTER OF
BEFORE THE LOWER ALLEN TOWNSHIP
THE APPLICATION OF
ZONING HEARING BOARD
TIM WAKEFIELD
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 2005-02
DECISION GRANTING A VARIANCE
The Applicant requested a variance to exceed the maximum
permitted residential density in an R-1 District. A hearing was
held before the Zoning Hearing Board on February 17, 2005.
FINDINGS OF FACT
1. Notice of the hearing was properly advertised, the
subj ect property was posted, and all property owners required to be
notified of the hearing were notified in accordance with the
Codified Ordinances.
2. The Applicant is Tim Wakefield, 2656 Walnut Street,
Harrisburg, Pennsylvania 17101.
3. The owner of the subject property is Bernard Draisey,
1552 Main Street, Lisburn, Mechanicsburg, Pennsylvania.
4. The subject property is located in an R-1 District along
the southern side of Main Street in the Village of Lisburn.
5. The subject property has approximately 186.4 feet of
frontage on Main Street, and depth varying from 125 feet along the
eastern boundary, to 178 along the western boundary. The area of
the subject property is approximately .7 of an acre.
6. The subject property is improved with a frame dwelling
and block garage, and other outbuildings, all located on the
eastern side of the subject property.
7. The subj ect property has an unusual configuration because
it is not uniform in depth.
8. The village of Lisburn was generally laid out ln lots of
60 feet in width and 100 in depth.
9. The subject property is served by public sewer, and by
on-site water.
10. The property slopes downhill from the southeast corner
toward the northwest, with a total change in elevation of
approximately 8 feet.
11. The Applicant desires to subdivide the subject property
into two (2) lots, with Lot No. 1 having an area of approximately
.3 acres, and Lot No.2 an area of approximately .4 acres.
12. The existing improvements would be located on Lot No. I,
and the Applicant proposes to construct a separate dwelling and
well on Lot No.2.
13. David Martineau, Esquire, of Metzger Wickersham, Township
Solicitor, participated in the hearing and expressed concerns about
the requested relief.
CONCLUSIONS OF LAW
1. Pursuant to Sections 220-223 (B) (5) and 220-223 (C) of the
Codified Ordinances, this Board has jurisdiction to hear and decide
an application for a variance.
2
2. Under Section 220-14 (B) (1) of the Codified Ordinances, the
maximum permitted residential density for a property having on-lot
water supply and/or sewage disposal systems shall be one dwelling
unit per gross acre.
3 . The Applicant has requested a variance because both
proposed lots will be less than one acre in area.
4. The unusual configuration of the subj ect property and the
location of the improvements create an unnecessary hardship.
5. A variance is necessary to enable the reasonable
development of subject property.
6. The unnecessary hardship has not been created by the
Applicant.
7 . The requested variance will not alter the essential
character of the district in which the property is located, nor
substantially or permanently impair the appropriate use or
development of adjacent property, nor be detrimental to the public
welfare.
8. The requested variance will represent the minimum
variance to afford relief.
9. The Zoning Hearing Board is authorized to attach
reasonable conditions and safeguards to the granting of a variance.
3
DECISION
In view of the foregoing findings and conclusions, and in
consideration of the testimony and evidence presented at the
hearing, it is the decision lof the Board that the Applicant I s
t
t
request for a variance be and is hereby granted, subject to the
condition that the well on Lot No. 2 shall be at least 300 feet in
depth, 8 inches in diameter, and that both Lot No. 1 and Lot No. 2
shall connect to any new public water system promptly after it has
become available.
LOWER ALLEN TOWNSHIP ZONING
HEARING BOARD
Date:
,j !trIo !5
I J
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Ann Evertts - Hearing Officer
4
CFRTTFTrA TF OF SFRVICE
I, DAVID H. MARTINEAU, ESQUIRE, of the law firm of Metzger, Wickersham, Knauss
& Erb, attorneys for Lower Allen Township, hereby certify that on MarchYo ,2005, a true copy
of the foregoing Land Use Appeal Notice was served by depositing the same in the United States
Mail, Certified Mail, Return Receipt Requested, postage prepaid, to the following addressees:
ZONING HEARING BOARD OF LOWER ALLEN TOWNSHIP
1993 Hummel Avenue
Camp Hill, PA 17011
DENNIS J. SHATTO, ESQUIRE
Cleckner & Fearen
119 Locust Street
P.O. Box 11847
Harrisburg, PA 17108-1847
BERNARD DRAISEY
and ESTHER E. DRAISEY
1552 Main Street
Lisburn, P A 17055
TIM WAKEFIELD
2656 Walnut Street
Harrisburg, PA 17101
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David H. Martineau, Esquire
323889-1
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r...avER ALLEN 'IG'JNSHIP
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
ZONING HEARING POARD OF
r...avER ALLEN TOWNSHIP
NO.
05-1718 CIVIL TERM
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
SSe
COUNTY
OF
CUMBERLAND)
TO:
We, being willing for certain reasons, to have certified a certain action
between
r...avER ALLEN 'IG'JNSHIP VS. ZONING HEARING ~ OF r...avER
ALLEN TOWNSHIP
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 GEORGE E. HOFFER, P.J.
our said Court, at Carlisle, Pa., the 31ST day of MARCH
JlO{ 2005
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LOWER ALLEN TOWNSHIP,
Appellant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
ZONING HEARING BOARD OF
LOWER ALLEN TOWNSHIP,
Appellee
: NO. 05-1718
LOWER ALLEN TOWNSHIP'S PETITION TO
STAY ACTION UPON DECISION OF THE
ZONING HEARING BOARD OF LOWER ALLEN TOWNSHIP
AND NOW, this (P~ay Of~, 2005, comes Petitioner, Lower Allen
Township, by and through its attorneys, Metzger, Wickersham, Knauss & Erb, P.c., and files
this Petition to Stay the Decision of Respondent, Zoning Hearing Board of Lower Allen
Township of March 17,2005, and avers the following:
1. Petitioner, Lower Allen Township, is a first-class township duly organized and
existing under the laws of the Commonwealth of Pennsylvania, with its principal office at Township
Municipal Building, 1993 Hummel Avenue, Camp Hill, Cumberland County, Pennsylvania 17011.
2. Respondent, Zoning Hearing Board of Lower Allen Township, is the duly
constituted Zoning Hearing Board of Lower Allen Township, Cumberland County, Pennsylvania,
with its principal office at Township Municipal Building, 1993 Hummel Avenue, Camp Hill,
Cumberland County, Pennsylvania 17011.
3. On or about January 17, 2005, Tim Wakefield, on behalf of Bemard L Draisey and
Esther E. Draisey, filed with the Zoning Hearing Board of Lower Allen Township an application for
a variance from the provisions of Section 220-14(B)(I) of the Codified Ordinances of Lower Allen
324833-j
Township, setting forth the maximum residential density for a property having on lot water supply
and/or sewage disposal system at one (1) dwelling per gross acre, in order to subdivide the property
into two lots, Lot No.1, consisting of 0.4 acres upon which the existing residence is located, and
Lot No.2, consisting of 0.3 acres upon which Applicant proposed to erect a second single family
detached residence.
4. A hearing was held before the Zoning Hearing Board on February 17, 2005 at
Docket No. 2005-02 before that Baord. The Zoning Hearing Board of Lower Allen Township
granted the request for a variance, subject to the conditions that the well on Lot No.2 be at least 300
feet deep and 8 inches in diameter and that both Lot No. I and Lot No.2 connect to any new public
water system promptly after it becomes available. A true and correct copy of the decision of the
Zoning Hearing Board is attached to Petitioners Land Use Appeal Notice as Exhibit "A".
5. On or about March 30, 2005, Petitioner filed a Land Use Appeal Notice, appealing
the Decision granting a variance as set forth above.
6. Petitioner's appeal in this matter is meritorious in that the Decision of the Zoning
Hearing Board of Lower Allen Township is not based upon proper or legal criteria of section 910.2
ofthe Municipalities Planning Code. 53 P.S. \0910.2.
7. The owner of the subject property has submitted a sub-division and land
development plan to Lower Allen Township to sub-divide and develop the subject property.
8. Approval of the sub-division and land development plan is contingent, inter alia,
upon the outcome of the current appeal.
9. 53 P.S. 911 003-A( d) provides the Petitioner, as appellant, the right to petition this
Court to stay further action upon the decision ofthe Respondent pending the outcome of the appeal.
307653-1
. .
WHEREFORE, Petitioner, Lower Allen Township, respectfully requests that this
Honorable Court stay the Decision of the Zoning Hearing Board of Lower Allen Township,
dated March 17,2005, Zoning Hearing Board Docket No. 2005-02, until such time as this
Honorable Court rules upon the merits of Petitioner's appeal.
Respectfully submitted,
Date:
{ !~ (u)
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
S<O"~"'~ /~
Attorney LD. No. 38901
David H. Martineau
Attorney LD. No. 84127
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 17100-0300
(717) 238-8187
Attorneys for Lower Allen Township
307653.1
, .
VERIFICATION
I, David H. Martineau, Esquire, attorney for Lower Allen Township, hereby certify that
the facts set forth in the within Petition to Stay Decision of the Lower Allen Township Zoning
Hearing Board are true and correct to the best of my knowledge, information and belief, and that
false statements herein are made subject to the penalties of 18 Pa. C.S.A. 94904 relating to
unsworn falsification to authorities.
Z-2/ / ft:/~
David H. Martineau
~.
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Date:
;j ft~G
/
307653.)
CERTIFICATE OF SERVICE
I, David H. Martineau, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb,
P.c., hereby certify that I served a true and exact copy of the Petition for Stay, with reference to the
foregoing action by first class mail, postage prepaid, this JAday of April, 2005, on the
following:
ZONING HEARING BOARD OF LOWER ALLEN TOWNSHIP
1993 Hummel Avenue
Camp Hill, P A 170 II
DENNIS J. SHATTO, ESQUIRE
Cleckner & Fearen
119 Locust Street
P.O. Box 11847
Harrisburg, PA 17108-1847
BERNARD DRAlSEY
and ESTHER E. DRAlSEY
1552 Main Street
Lisbum, PA 17055
TIM WAKEFIELD
2656 Walnut Street
Harrisburg,PA 17101
LOWER ALLEN TOWNSHIP
1993 Hummel Avenue
Camp Hill, PA 17011
Attn: Raymond Rhodes
?-d// ffL--,)
David H. Martineau, Esquire
30765.3-1
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LOWER ALLEN TOWNSHIP
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
ZONING HEARING BOARD OF : NO. 2005-1718 CIVIL TERM
LOWER ALLEN TOWNSHIP
ORDER OF COURT
AND NOW, this 7TH day of APRIL, 2005, a Rule is issued upon Respondent and
any interested party to Show Cause why the Petition to Stay should not be granted.
Rule retumable ten (l 0) days after service.
Edward E. Guido, J.
".
Dennis Shatto, Esquire
Steven P. Miner, Esquir
Timothy Wakefield
2656 Walnut Street
Harrisburg, Pa. 171O(
i
Bernard Draisey
Esther Draisey I
1552 Main Street !
Lisbum, Pa. 17055 )
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-
REAGER & ADLER, PC
BY: CHARLES E. ZALESKI, ESQUIRE
AttorneyLD. No. 18043
LINUS E. FENICLE, ESQUIRE
Attorney LD. No. 20944
2331 Market Street
Camp Hill, PA 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Email: CZaleski(a!ReagerAdlerPC.com
Lfenicle@ReagerAdlerPC.com
Attorneys for Intervenors
LOWER ALLEN TOWNSHIP,
Appellant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
ZONING HEARING BOARD OF
LOWER ALLEN TOWNSHIP,
Appellee
NO. 17180f2005
NOTICE OF INTERVENTION
..(III
AND NOW, this ~ day of April, 2005, comes the undersigned on behalf of Bernard L.
Draisey and Esther E. Draisey, and files this Notice of Intervention in connection with the above-
captioned matter. Bernard L. Draisey and Esther E. Draisey are the owners of the subject
property and as such, pursuant to the Pennsylvania Municipalities Planning Code, 53 P.S. S
11004-A, are permitted to intervene as a matter of course.
DATED: 1j;5/P.s-
By:
Respectfully submitted,
RF~LER'PC .
Crurrk~ E. z"'~
LD. No. 18043
Linus E. Fenicle, Esquire
LD. No. 20944
2331 Market Street
Camp Hill, P A 17011
(717) 763-1383
Attorneys for Intervenors,
Bernard L. Draisey and Esther E. Draisey
...
CERTIFICATE OF SERVICE
I hereby certify that on the date set forth below a true and correct copy of the foregoing
document was served on the following individuals via United States First Class Mail, postage
prepaid addressed as follows:
Zoning Hearing Board of Lower Allen Township
1993 Hummel Avenue
Camp Hill, P A 170 II
Dennis J. Shatto, Esquire
Cleckner & Fearen
199 Locust Street'
P.O. Box 11847 .
Harrisburg, PA 17108-1847
Steven P. Miner, Esquire
David H. Martineau
Metzger, Wickersham, Knauss & Erb
3211 North Front Street
P.O. Box 5300
Harrisburg, P A 17100-0300
Date:
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SENDER: COMPLETE THIS SECTION
. Complete Items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
. Print your name and address on the reverse
so that we can return the card to you.
. Attach thIs card to the back of the mailpiece,
or on the front jf space permits.
1. Article Addressed to:
ZONING HEAIUNG OOARD OF LCWER
ALLEN 1aVNSHIP
1993 HUMMEL AVENUE
CAMP HILL, PA 17011
05-1718 CIVIL TERM
COMPLETE THIS SECTION ON DEL/VERY
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D. Is delivery add ~ ere m It
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4. Restricted Delivery? (Extra Fee) 0 Yes
2. Article Number
(Trsnsferfrom service label) 7004 13500003 7285 1976
PS Form 3811, February 2004 Domestic Return Receipt
102595-o2-M-154Q:
LOWER ALLEN TOWNSHIP,
Appellant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
ZONING HEARING BOARD OF
LOWER ALLEN TOWNSHIP,
Appellee
: NO. 05-/718
LOWER ALLEN TOWNSHIP'S MOTION
TO MAKE RULE ABSOLUTE
TO THE HONORABLE EDWARD E. GUIDO, JUDGE OF SAID COURT:
AND NOW, comes Lower Allen Township, by and through its attorneys. Metzger,
Wickersham, Knauss & Erb, P.C., to file the within Motion to Make Rule Absolute in support
thereof avers:
1. On April 6, 2005, undersigned counsel filed a Petition to Stay Action Upon
Decision of the Zoning Hearing Board of Lower Allen Township in that Board's docket number
2005-02.
2. On April 7, 2005, this Court issued a Rule to Show Cause why such stay should
not be granted, said Rule to be returnable ten (10) days after service. A true and correct copy of
the Rule to Show Cause is attached as Exhibit "A".
3. This Court served the Rule to Show Cause on all interested parties on
April 8,2005.
4. No response to the Rule to Show Cause has been filed.
5. Lower Allen Township respectfully requests this Honorable Court to Make
Absolute the Rules signed on April 7, 2005.
326086-1
, .
WHEREFORE, Lower Allen Township, requests this Honorable Court stay any action
upon the decision of the Zoning Hearing Board of Lower Allen Township, docket number
2005-02.
Respectfully submitted,
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
z;2y/ ~~-=~)
Date: AprillL, 2005
Steven P. Miner, Esquire
Attorney l.D. No. 38901
David H. Martineau. Esquire
Attorney I.D. No. 84127
3211 North Front Street
P. O. Box 5300
Harrisburg, P A 17110-0300
(717)238-8187
Attorneys for Appellant / Moveant
326086./
VERIFICATION
I, David H. Martineau, Esquire, do hereby verify that the facts set forth in the foregoing
Motion to Make Rule Absolute are true and correct to the best of my personal knowledge or
information and belief. I understand that false statements herein are made subject to the
penalties of 18 Pa.C.S. 94904, relating to unsworn falsification to authorities.
Date: April2Z, 2005
D//~-
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David H. Martineau
326086-1
. .
,
CERTIFICATE OF SERVICE
I, David H. Martineau, Esquire, of the law firm of Metzger, Wickersham, Knauss
& Erb, P'c.' hereby certify that I have this 2Z.4ay of April, 2005, served a true and exact
copy of the herein Motion to Make Rule Absolute with reference to the foregoing action by first-
class mail, postage prepaid on the following:
ZONING HEARING BOARD OF LOWER ALLEN TOWNSHIP
1993 Hummel Avenue
Camp Hill,PA 17011
DENNIS J. SHATTO, ESQUIRE
Cleckner & Fearen
119 Locust Street
P.O. Box 11847
Harrisburg, P A 17108-1847
CHARLES E. ZALESKI, ESQUIRE
Reager & Adler, P.c.
2331 Market Street
Camp Hill, PA 17011
TIM WAKEFIELD
2656 Walnut Street
Harrisburg, PAl 710 1
LOWER ALLEN TOWNSHIP
1993 Hummel Avenue
Camp Hill, P A 17011
Attn: Raymond E. Rhodes, Manager
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David H. Martineau
326086-}
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LOWER ALLEN TOWNSHIP
: IN THE COURT OF COMIvfON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
ZONING HEARING BOARD OF : NO. 2005-1718 CIVIL TERM
LOWER ALLEN TOWNSHIP
ORDER OF COURT
AND NOW, this 7m day of APRIL, 2005, a Rule is issued upon Respondent and
any interested party to Show Cause why the Petition to Stay should not be granted.
Rule returnable ten (10) days after service.
Edward E. Guido, J.
Dennis Shatto, Esquire
Steven P. Miner, Esquire
Timothy Wakefield
2656 Walnut Street
Harrisburg, Pa. 17101
Bernard Draisey
Esther Draisey
1552 Main Street
Lisburn, Pa. 17055
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La'lER ALLEN 'IG'lNSHIP
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
ZONING HEARING !nARD OF
La'lER ALLEN 'IG'lNSHIP
NO.
05-1718 CIVIL TERM
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
SS.
COUNTY
OF
CUMBERLAND)
TO:
We, being willing for certain reasons, to have certified a certain action
between
La'lER ALLEN 'IG'lNSHIP VS. ZONING HEARING ~ OF LCMER
ALLEN 'IG'lNSHIP
pending before you, do coomand 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 GEORGE E. HOFFER, P.J.
our said Court. at Carlisle. Pa.. the 31ST day of MARCH
lGC 2005
TO\." i~ fv"nv r::"y"\.q nl-cnRO
t'" "'"'\__ v'-<.,....., ., '. . ,..,",. >~ t "....__u
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~~.~i tt':" ~ of s.a~ l:t.'....~l ci1 (.~i :~~':.'~ Pa.
~~o~.~~~~
"..I'!'\r.~...l!!
CURTIS R. LONG
~
Prothonotary
'.~V
~ a-, r' ~C;? 7e/?/Y~<:'\~ ,,~~~
DEPUTY ~ ~ '" "
~~
1
LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD
2
3
4
5
IN RE:
Docket 2005-02, Tim
Wakefield, variance
1.
6
7
8
9
1 0
Stenographic record
Lower Allen Township
1993 Hummel Avenue,
of hearing held at the
Administrative Building,
Camp Hill, Pennsylvania
1 1
1 2
Thursday
February 17, 2005
7:00 p,m,
1 3
1 4
1 5
1 6
17 MEMBERS:
1 8
Ann Evertts, Hearing Officer
1 9
20
2 1
22
23
LEARY REPORTING
112 West Main Street, Ste.
Mechanicsburg, Pennsylvania
200
1 7055
24
25
(717) 233-2660
Fax (717) 691-7768
1 0
1 1
1 2
1 3
2
APPEARANCES:
2
3
CLECKNER AND FEAREN
119 Locust street
Harrisburg, PA 17101
BY: ANN E, RHOADS, ESQ.
4
5
Por the Board
6
7
8
METZGER, WICKERSHAM, KNAUSS & ERB
3211 North Front Street
P,O. Box 5300
Harrisburg, PA 17110-0300
BY: DAVID H, MARTINEAU, ESQ.
9
For the Township
ALSO PRESENT:
14 John Eby - Planning and zoning Coordinator
1 5
16
1 7
1 8
1 9
20
2 1
22
23
24
25
1 0
1 1
1 2
1 3
14
1 5
16
1 7
1 8
1 9
20
2 1
22
3
2
3
4
5
DOCKET
6
2005-02
7
8
9
APPLICANT'S
2
3
4
5
23
24
25
I N D E X
PAGE
DECISION
PAGE
6
Approved
52
*****
E X H I BIT S
DESCRIPTION
PAGE
Report
1 1
Plan
1 6
Photocopy of
Subdivision
1 7
Copy of Aerial
Photograph
1 8
Brochure
22
4
PIWCl:EDJNGS
2
MR, EBY: Tonight we have one board
3 member out sick, one who is in Florida, and one
4
who is not here.
And Ann will explain the
5 options.
6
MS, RHOADS:
Under the
7 Municipalities Planning Code under township
8 ordinance when this situation arises, each of you
9
have certain options.
The first option
1, c'
"
that
10 you can continue tonight, make a presentation to
11 the single member who will act as a hearing
12
officer.
If you choose not to have that happen,
13 you can continue your presentation until the next
14 month.
1 5
If you choose to have this heard by
16 the hearing officer, you then have a second
17 option of whether you want the hearing officer to
18 be the decision-maker in your case or to have the
19 entire board make the decision.
20
Ms, Greene, which would you prefer?
21
MS. GREENE:
I think I would rather
22 have the full board.
23
MS. RHOADS:
So you would rather
24 wait until next month?
25
MS. GREENE:
Yes,
5
MS, RHOADS:
M r, W a kef i e I d '?
2
MR. WAKEFIELD:
The meriLs of our
3 case won'L rise and fall based on who is here and
who isn't here.
We'll be heard tonighL,
4
5
MS, RHOADS:
Okay.
DO you wish to
6 have the hearing officer act as the
7 decision-maker?
8
9
MR. WAKEFIELD:
Sure.
MR, ERY:
Our apologies Lo Ms,
10 Greene,
1 1
MS. RHOADS:
Will Ms. Greene get a
12 notice of the next meeting, or how will she find
13 out when
1 4
MR, EEY:
We'll send a continuation
15 notice to you,
1 6
17
18
1 9
20
2 1
22
23
24
25
MS. GREENE:
Thank you,
MR. EEY:
You're welcome.
(Discussion held off the record,
6
DOCKET NO, 2005-02
2
3
4
HEARING OFFICER EVERTTS:
I guess
we'll call the meeting to order.
Given the
5 choices given, obviously, Colleen Greene has
6 opted to be heard by the full board,
7
We have before us Docket 2005-02,
8 the application of Tim Wakefield at 2656 Walnut
9 street, Harrisburg, PA. who is requesting a
10 variance from the provision of Section 220-14B(1)
1 1
of the ordinances,
The applicant is requesting a
12 variance to subdivide the property at 1552 Main
13 Street Lisburn into two lots that would not meet
14 the minimum 2 acre total area,
1 5
1 6
1 7
1 8
And is Mr. Wakefield here?
MR. WAKEFIELD:
Yes,
HEARING OFFICER EVERTTS:
If you
will swear Mr, Wakefield in.
Give your full
19 name, please.
20
MR. WAKEFIELD:
My name is Timothy
21 Carl Wakefield.
22
23
TIMOTHY WAKEFIELD, having been duly
24 sworn by Denise L, Travis, Notary Public, was
25 examined and testified as follows:
7
MS. RHOADS:
I guess we have to
2 s'"ear you in, too,
3
4
JOHN EBY, having been duly sworn by
5 Denise L, Travis, Notary Public, was examined and
6 testified as follows:
7
8
9
10
MR. EBY:
For the record, my name is
,lohn Eby.
I'm the planning and zoning
coordinator,
And I'm testifying that the subject
11 hearing was duly advertised and we have proof of
1 2
publication,
The property was properly posted,
13 and notice was sent to surrounding neighbors,
1 4
HEARING OFFICER EVERTTS:
Mr,
15 Wakefield, do you have a presentation?
1 6
1 7
MR. WAKEFIELD:
Yes.
Thank you,
If I may, I would like to present
18 the facts and then the merits of why I believe we
19 should be granted a variance.
20
HEARING OFFICER EVERTTS:
However
21 you want to do it.
22
23
24
25
MR. WAKEFIELD:
Thank you.
This is Mr, and Mrs. Draisey, Just
for the record.
They live at 1552 Main street in
Lisburn along with their son.
They're daughter,
8
who also lives up the street, lives in
jsburn
2
with her daughter aod soo.
And she has another
3 daughter who lives in Lisburn as well,
4
Their site consists of .7 acres, and
5 their current residence is on that property.
6
7
There are three wells currently on
that site, all functioning adequately.
They were
8 drilled and tested for quality and quantity.
9 There's also for the record. the adjoining
10
well has been
there's two wells on that site.
11 They have also been drilled and tested and found
12 to be adequate both for quantity and quality,
1 3
14
The second house to the west, there
is a well drilled there.
And that we]
was
15 drilled 300 feet and found to be more than
16
adequate, 25 gallons per minute.
And the quality
17 on that was adequate.
1 8
1 9
20
The property to the east, there's a
four-unit apartment building in there,
There's
also a well associated with that.
And that well
21 has been found to be more than adequate to
22 support those four units.
23
Having laid the groundworK there,
24 the Draiseys had intended since the sewer went in
25 there to provide a lot for their daughter to
9
build a home there to be near them,
They didn't
2 necessarily know all of the regulations or
3 anything; but when the sewer went by, they
4 intended to do that.
5
When we prepared the subdivision
6 plan, however, we found that under the
7 residential zoning
8
MR, EBY:
T have my book open to the
9 pages, if you want to borrow it.
1 0
1 1
MR. WAKEFIELD:
1 have it,
Under the residential zoning, the
12 maximum permitted residential density shall be
13 six dwelling units per gross acre, excluding
1 4
existing dedicated right-of-way.
That's with
15 public sewer and public water.
1 6
Under B of that section with on-lot
17 water supply and our sewage disposal system, the
18 maximum density permitted for residential use is
1 9
one unit per gross acre.
And the Draiseys only
20 have.7 acres,
21
Now, just as a matter of record, if
22 you go to 2 under B itself, it says, There shall
23
be no minimum lot area under that scenario.
And
24 the minimum lot width is 50 feet.
25
Now, we don't have public water out
1 0
thcre,
So
searched around to look to see if
2
there was some other way we could do that,
And
3 if you go down to the other permitted usc in that
4
~one, therc's a cluster development option.
And
5 under that option, you are permitted -- let me
6 get that,
7
You're permitted under that a
8 maximum residential density shall be as provided
9
for within the applicable zoning district,
And
10 under the R-1, the maximum is six units per acre.
11 And under C of that, it says, Intensity of
12 nonresidential uses shall be based upon maximum
1 3
impervious coverage.
And then D, it's public
14 water and/or sanitary sewer or community systems
15 approved by the Pennsylvania Department of
16 Environmental Protection.
1 7
1 8
Now, we could go
we have public
sewer there.
We could go into DEP; and under a
19 two-lot scenario, I could provide one well for
20
2 1
two units,
We don't have to do that in this
case.
We have three wells to choose from on this
22 site with more than enough supply around,
23
And the report that I have prepared
24 from our professional engineer will display that
25 within the merits of the .7 acres, with the
11
recharge ratc and the amount of supply that's
2
necessary to sustain a residencc, we
that site
3 can support that kind of water usage,
4
5
6
Do you have the report?
HEARING OFFICER FVERTTS:
Um-- hum,
MR. EBY:
That report that you
7 submitted with the application was copied and
8 distributed to the members,
9
MR. WAKEFIELD:
Okay.
I have an a
10 addendum report to that that may help,
1 1
1 2
evidence.
I'm going to enter this into
So do you want to put a sticker on
13 that?
1 4
1 5
1 6
1 7
(Applicant's Exhibit 1. Report,
marked for Identification.)
MR, WAKEFIELD:
It's the same
report,
I just added some calculations on the
18 back of it,
1 9
20
2 1
Which report do you have?
(Discussion held off the record,
MS. RHOADS:
Will you be going over
22 this report and explaining it?
23
MR, WAKEFIELD:
I'd like to.
It's
24 significant.
25
MS, RHOADS:
I think that would be a
1 2
good idea,
2
3
4
MR, VlAKEFIELD:
Yeah,
Okay.
The first part of this report is the
recharge calculations.
And what that ,Ioes is
5 given the area in this underlying geology, it
6 will recharge 531.25 gallons per day per acre.
7 Vie get this information from geological
8
references,
And so we know that as it rains a
9 certain amount in the course of a year, it will
10 recharge and store that much in the aquj fer per
1 1
1 2
day, 531 gallons per day per acre.
Vie only have
seven-tenths of an acre.
So you multiply that,
13 and you get 373 gallons per day for our site.
14 That's what our site is capable of recharging.
1 5
Now, we minimized that impact.
We
16 only took it on the merits of the property.
17 There is area to the rear of this site that does
1 8
drain to the underlying geology here.
We did not
19 include that.
20
2 1
22
23
So now he moves onto consumptive use
calculations.
Consumptive use, 63.2 gallons per
day per person or per capita.
And that comes
from EPA figures,
Now, Lot No.1, vi h i chi s w her e
24 the Draiseys live, right now currently there's
25
only two people in there.
Lot No, 2, vi h i c h w 0 u 1 d
1 3
be where Lheir daughter wants to move in, is
2 three people,
3
So you take that consumptive use
4 figure of 63,2 gallons per day times two people,
5 and that gives you 126,4 gallons per day is what
6 is required to supply or support that family.
7 You take it times the three persons, you get
8
189.6 gallons per day.
That total is 316 gallons
9 per day for that site with those two families on
10 there, which is less than what the site is
11 capable of recharging, just the seven-tenths of
12 an acre.
13
Then we did some well capacity
14 calculations in that given the information that
15 we have from adjoining wells, the depth of their
16 drilling, the depth of the static water level,
17 which is where water will rise to, if you drill a
18 hole and let the water rise up in it, it rises up
19 to within 72 feet of the surface,
20
Most of the wells out there, the
21 current wells were drilled to about 300 feet,
22 The wells on the Draiseys property were drilled
23 down just below this static water level to geL an
24 adequate supply, like 4 or 5 gallons per day.
25
But if you drill this well down 300
I
1 4
feet, \,ater rises up in it, like, overnight if
2 you're not drawing out of it and stores water in
3
that pipe or casing.
And we calculated what it
4 would take to store enough water for two days'
supply.
And that calculation comes up to
you
5
6
can see on the back there, well depth,
For 379
7 gallons for two days' supply, you need a depth of
8 about 145 linear feet.
9
In addition to the static water
10 level of about 72, if you drill the well down 217
11 feet at least, you're giving yourself extra
1 2
supply,
The aquifer given the information that
13 we have is more than adequate to support that,
14
MR. EBY:
Excuse me.
What size
15 casing, diameter casing?
16
MR. WAKEFIELD:
This was done on an
17 8-inch casing.
1 8
1 9
MR. EBY:
That's important,
MR. WAKEFIELD:
And we're willing to
20 stipulate to that, if that becomes a condition as
21 well as minimizing the number of lots, even
22 though it might be possible to drill one well
23 deeper, say, 600 feet, get a much highE,r rate of
24
25
supply and more storage for more units,
But we
don't want to do that,
All we want to do is have
15
1 two lots.
2
3
MS, RHOADS:
Arc you going to have
two wells
wells servicing each lot, or are you
4 planning on
5
6
7
MR, WAKEFIELD:
We're going to have
one well servicing each unit.
Right now the
Draiseys draw off of one well only,
They have
8 two other ones on the site that they don't need.
9 We're going to drill a brand new well for the new
10 residence and drill that down 300 feet,
11
MS, RHOADS:
So that's why you don't
12 have a depth calculation for that lot, because
13 you intend to use the existing well?
14
1 5
MR. WAKEFIELD:
Correct,
T'hey have
more than adequate supply.
They can testify to
16 its use over many years,
1 7
As a matter of fact, the apartment
18 building when it was a farmhouse actually drew
19 water off of that well as well, no pun rntended,
20 but when there was many families involved there.
2 1
And that's
therein lies our hardship with our
22 ability to look at whether going to a cluster
23 option with all of our supply out there and not
24
25
necessarily a mechanism
we don't want to go to
the cluster option.
We prefer just to come in
1 6
and make a simple subdivision.
And under the
2 interpretation, I need that variance to do that.
3
Now, we've tried to buy
it's nol
4 possible to buy enough ground to go add 1,3 acres
5 to get up to that one gross acre per unit,
There's not enough adjoining ground,
Because of
6
7
8
9
the shape of the lot
and I'm going to enter
into evidence this plan.
I did submit a plan,
MR, EBY:
A copy of the plan was
10 also transmitted to the members.
1 1
1 2
1 3
1 4
MR, WAKEFIELD:
Okay,
(Applicant's Exhibit 2, Plan, marked
for Identification.)
MR, WAKEFIELD:
As you can see, it's
15 kind of an odd shaped lot because of that
16 triangle back there thal was excluded from this
1 7
property.
The Draiseys tried to purchase that at
18 one time just to kind of square off their lot,
19 but the adjoining property owner thought it was
20 necessary to have that for one reason or another
21 Subsequently they don't need it, but that area is
22 really not that important to us for the merits of
23 what we want to do.
24
The site slopes from south to north
25 So all that drainage or all of that underlying
17
1
geology does come down there.
And there's iJ
2 drainage pipe right there along the northern
3 perimeter of the Lot No.2, which is the one that
4
we're going to build on,
So all of this
5 drainage, all of this surface drainage comes
6 right down to there to that drainage pipe that
7
crosses under the highway.
That's a significant
8 issue or physical issue to the site, because
9 typically you tend to find a lot of waLer in
10 these low lying or drainage swales,
11
1 2
The other significant part about the
layout of this is
and this is going to get
13 into some knowledge of how compatible this is.
14
1 5
Lisburn was laid out back in the early
yeah,
1 790 s .
And they laid out lots that were 60 foot
16 wide by about 160,
1 7
18 that marked?
MS, RHOADS:
Are you going to have
1 9
MR. WAKEFIELD:
I will.
I'm going
20 to put this into evidence, and then I need for
21 you to see this,
22
23
24
(Applicant's Exhibit 3, Photocopy of
Subdivision, marked for Identification.)
MS, RHOADS:
What is the second page
25 of the exhibit, the exhibit that's been marked
1 0
1 8
Exhibit 2, because we haven't seen that?
2
That
l' "
~
a grading
MR.
WAKEFIELD:
3
plan.
Thc significance of this plan is that one
4 of the requirements, should we be successful and
5 go into the subdivision, is a requirement for
6
infiltration for the smaller storm vents,
That's
7 to offset the impervious area,
8
We did go out and do testing to
9 verify the percolation rates according to the
soils maps.
And they were, in fact, very
accurate we found.
So infiltration should be a
12 part of this site both from storm water
13 management and infiltration and supply reasons.
1 4
1 5
MS. RHOADS:
Okay,
MR. WAKEFIELD:
So originally when
16 the town was laid out, it was laid out in
1 7
60-by-160 lots.
Now, if you look at today's
18 configuration of the deeds, they didn't all get
19 subdivided out that way or purchased that way and
20
2 1
22
23
built on on 60-by-160 lots,
However, if you look
at the way they were built on
let me get
this
there's a phenomenon that occurred,
And I'm going to enter this into the
24 record.
25
(Applicant's Exhibit 4, Copy of
19
1
2
3
4
Aerial Photograph, marked for
Identification. )
MR, WAKEPIELD:
This is the
Draiseys' property right here.
And this is the
5 lot that they wish to subdivide off and place the
new house,
And it almost looks like a vacant
6
7
lot.
As you start up going west from the site,
8 these are the smaller lots, like the 60 by 160s.
9 You can see they placed a house on them to the
1 0
one side.
And as they got bigger, you can see
11 they still kept the house on one side and left,
12
like, another lot vacant,
And that occurs on up
13 through here as well as on the opposite side, the
14 same with this corner lot,
1 5
And the significance to that is that
16 it was almost intended that people would further
17 develop that for children or whatever as this
18 town evolved.
1 9
20
Zoning came in.
Of course, R-1 was
established,
And I would like to read into the
21 record the intent of the R-1 single family,
22
residential district.
It says, Consistent with
23 the general
24
MS, RHOADS:
What section are you
25 reading, or what are you reading?
20
MR, WAKEFIELD:
SRcti,on 220-11,
intent.,
Under Article 4, R-l single family
2
3
established residential district.
Consist.ent
4 with the general purpose of this chapter and t.he
5 goals and objectives of the Lower Allen Township
6 Comprehensive Plan, the specific intent. of this
7 article is to preserve the integrity of
8 established single family residential
9
communities,
DUR to both the age and design of
10 these communities, unique and flexible standards
11 and regulations are proposed to bring the
12 majority of the dwelling units into conformity
1 3
with this chapter,
It is the purpose of t.his
14 district to provide these standards and
15 regulations,
16
17
And I think we are consistent with
that with what we want to do.
We're basically
18 subdividing another 60-by-160 lot out in
1 9
conformance with the old plan.
We want it to be
20 a single family, residential home, which is a
21 permitted use, which is what Lisburn was intended
22
to be.
However, t.oday, if you look at t.he uses
23 in there, there's apart.ment buildings in there,
24
There's rental units in there,
And we think
25 we're being more consistent. by providing a single
21
tami ly residence as opposed
",here home
2 ownership is important as opposed to apartments
3 or rental units,
4
MS, RHOADS:
What are the sizes of
5 t.he t.wo lots you're proposing?
6
7
MR. WAKEFIELD:
Lot No.1, which is
the Draiseys'
Mr, and Mrs
Draiseys' unit with
8 the existing home on it, is 12,174 square feet.
9 Lot No.2, vlhich will be thcir daughter's, is
10 17,224 square feet,
1 1
MS, RHOADS:
How does that convert.
12 into acres?
1 3
14
1 5
HEARING OFFICER EVERTTS:
Acres.
MR, WAKEFIELD:
I knew you were
going t.o ask t.hat.
Well, it.'s .7 acres,
The
16 17,000 is
1 7
18
1 9
20
MR, EBY:
What do you need?
(Discussion held off the record.
MR, EBY:
So it would be ,39
It would
roughly .4 of an acre for the 17,000.
2 1
22
be .4.
So the other would be .3 if it's .7.
MR. WAKEFIELD:
Now, if there are
23 other subdivisions that were to start to occur,
24
t.hat would be the general
most of them would
25 have to conform to that type of scenario in a
22
two-lot subdivision, if you move up into these
2 lots that were about seven-tenths of an acre or
3 better,
4
The one to the due east where the
5 apartment buildings are on, that's about 1.2
6
acres.
And there's four units in there,
That
7 density would be somewhere around three and a
8 little bit, which is under the maximum six under
9 a cluster option or with public sewer, public
1 0
1 1
water.
Our two would be somewhere around 2,8
with the ,7 acres.
So that's consistent as well
12 for out there.
1 3
And if you look at the general
14 dimensions of the lots on the other side of the
15 street or up through there, that would pretty
16 much hold as well,
1 7
I wanted to show you a picture of
18 the home that they're intending to put on there,
19 I'm going to enter that into evidence.
20
2 1
22
23
24
(Applicant's Exhibit 5, Brochure,
marked for Identification.)
MR. WAKEFIELD:
That's a picture of
the home that they want to put on there,
the reverse side of that is a floor plan,
And on
And
25 what I would like to illustrate here is it's a
23
simple three bedroom home, two baths, kitchen,
2 dining room, living room, and 1,386 square feet
3 There's no basement in this unit.
4
The Draiseys' home is quite similar
It's a two-story
MR. DRAISEY: Two and a half.
MR. WAKEFIELD: T1rIO and a half.
5 in size,
6
7
8
And that was Mr, Draisey [or the
9 record.
10
They have, however, over the course
11 of their lifetime raised children in there and
12
done all kinds of laundry and everything.
And
13 they'll be able to testify that they've never had
14 any problems with water there, supply that is.
15
16
The merits of this plan is that
1,386 square feet is not extravagant.
It's the
17 minimum home that we could put on there -- on
18 this lot and still have all of the isolation
19 distances from the infiltration system, the
20
wells, the setbacks.
The frontage on that lot is
21 101 feet, which is double what is required as a
22
23
minimum for that
lot, the minimum
for the R-1
The Draiseys'
the frontage on that is 85,
24 which is more than adequate.
25
The reason that we gave Lot No, 2
9
1 0
11
24
more frontage 1S becallse I'le had to position Lhe
2 home further to the east or closer lo the
3 Draiseys' home because of topographic
4 considerations and keeping it high away from that
5
drainage swale as it crossed Lisburn Road.
I
6 didn't want to risk water clogging up in that
7 drainpipe, filling up to the roadway and having
8 to go over the roadway and causing a drainage
problem for the home.
So we backed it up, kept
it high.
And as it turns out, it's on a flatter
area of the site.
It's more conducive [or the
12 type of construction that they plan for the
13 foundation.
1 4
MS. RHOADS:
Mr. Wakefield, doesn't
15 the under hundred foot isolation for a well,
16 won't that apply for this well?
1 7
18
MR. WAKEFIELD:
Yes, it will.
MS. RHOADS:
Do you have a hundred
19 feet from this house and this well?
20
MR. WAKEFIELD:
I have a hundred
21 feet isolation width, which applies to well or
22
septic system.
I cannot get any closer to
23 another well than a hundred feet.
24
MS. RHOADS:
You can't get any
25 closer to a house either.
2
3
4
25
MR. W!\KEFIJ.:LD: T hat' s not my
understanding of the rules,
MS. RHOADS: Okay.
MR. W A K E I" I E L D : I have to stay a
5 hundred feet from anyon-lot septic system, which
6 there are none out here or a hundred feet from
7
any well on any adjoining property.
And \oIe meet
8 that requirement,
9
1 0
MS. RHOADS:
Okay.
MR. WAKEFIELD:
I can, for the
11 record, be a hundred feet from that house and
12 still meet the isolation distance from any well
13 on that site,
14
1 5
MS, RHOADS:
Okay.
MR, WAKEFIELD:
Lastly, I think if
16 there were any conditions or restrictions that I
17 would personally recommend to the Draiseys is
18 and they've discussed this with me, because there
1 9
20
2 1
22
was talk of water coming out there,
They were
more than agreeable
if that ever, in fact,
would happen, they would hook up.
So I
encouraged them to do that.
And if that needed
23 to be a restriction or a condition of the
24 variance, they would agree to that,
25
I also encouraged them that they
26
limit their subdivision to two, since it was a
2 family situation where it was parents to
3
4
5
daughter
home to
and eventually the son would get the
subdivision
put a restriction
and/or limit, if
on any further
this house ever
6 the existing residence ever got demolished or
7
razed, what could be put back on there,
That
8 could be a personal restriction and ride as a
9 restriction with the deed.
1 0
And lastly would be I encouraged
11 them to drill those wells deeper, because as it
12 appears from the historical records of the
13 adjoining wells, they did go down to that 300
1 4
feet and got very adequate supplies,
And that's
15 typical of that underlying geology, according to
16 our geologist, where you could hit a fissure down
17 around those levels and just get oodles of water.
18 And that's evident out there from some of the
1 9
well logs.
And I encouraged them to do that.
20 And if that were to be a condition as well, we
21 could agree to that.
22
23
24
think our
So having said all of that, again, I
our variance and our hardship is
that we do have the supply.
And within the
25 guidelines of that zone, I think we are permitted
27
to create these two lots,
We would prefer to do
2 it with a simple subdivision, and we need this
3
variance to do that,
I don't want to have to go
4 back and wade through a cluster option and
5 pitfalls and procedures there,
6
7
And I think the uniqueness of the
lot and the situation bears itself,
We're
8 certainly consistent with what has transferred
9 over the years in Lisburn to create home
10
ownership for single family residences.
The lot
11 layout certainly lends itself to what we want to
1 2
do.
And I really do believe that we're
13 consistent in reaching out to the intent of what
14 the zoning ordinance wanted to do there with
15 having some flexibility to create and deal with
1 6
situations like this in this town,
And that's
1 7 it,
18
MS. RHOADS:
Before Mr. Martineau
19 do you have anything?
20
21
MR, MARTINEAU:
I have a few things
MS. RHOADS:
Okay,
I would like to
22 get you to describe your exhibits or identify
23
them for the record.
So we need to kind of run
24 through that.
25
MR, WAKEFIELD:
Sure,
28
MS. RHOADS:
Do you want to give
2 them to me, and 1'11 just identify them for the
3 record and have you move to have them admitted.
4
5
For the record, Applicant's Exhibit
appears to be a document of four pages entitled
6 "Site Data Supporting a Requested Variance to the
7 Lower Al len Zoning Ordinance" dated February 17,
8 2005,
9
Applicant's Exhibit NO.2 is a
10 subdivision plan of two pages dated 12/22/04
11 prepared by Act One Consultants, Inc.
1 2
Applicant's Exhibit No.3 is a
13 photocopy of -- what is this, Mr. Wakefield?
14
MR. WAKEFIELD:
That's a subdivision
15 of the town of Lisburn,
16
MS. RHOADS:
It's a photocopy of a
17 subdivision of the town of Lisburn dated 1795
1 8
Applicant's Exhibit No.4 is an
19 aerial photograph of a section of Lisburn which
20 includes the subject site dated 1998,
21
Applicant's Exhibit 5 is a brochure
22 describing a Fleetwood home.
23
Would you like to have those
24 admitted?
25
MR. WAKEFIELD:
Yes.
29
MS. RHOADS:
Say thal,
2
MR, vJI\KEFTELD:
1 move that we enter
3 these into the record, those exhibils,
4
MS, RHOADS:
Are there any
5 objections to any of these?
6
7
8
9
1 0
1 1
HEARING OFFICER EVERTTS:
No.
MR, WAKEFIELD:
Thank you
(Discussion held off the record,
HEARING OFFICER EVERTTS:
One
question I have.
I'm not sure that I understand
what the hardship is.
Tf this project was
12 what is the hardship?
13
MR. WI\KEFIELD:
The Draiseys
14 wouldn't be able to have a lot for their daughter
15 that they intended lo.
16
1 7
She lives in the town of Lisburn,
She rents a home there now.
She wanted to build
18 a home there and live in a home with her family
1 9
next to her parents.
And when her parents
her
20 brother ends up with her parents' home, then it's
2 1
22
going to be a family next to each other.
That's
what they intended.
That's what they always
23 wanted to do.
24
When the sewer came through, that
25 was just another hope for them to be able to do
30
1
2
that, to provide a connection
They had to hook
up to the sewer,
They didn't have full knowledge
3 of what it would take to do that, but that was
4 always their intent, even when they bought the
5 home and had children there,
6
7
And from my standpoint, the hardship
is what procedure I havc to go through.
Do I go
8 through the cluster option and try to make those
9 presentations and procedures, or do I come to the
10 zoning hearing board and ask for a variance on
11 the lot size, because I've got a subdivision plan
1 2
done.
I'm ready to go if I'm grateful enough to
13 get this variance,
1 4
The hardship of going through these
15 procedures and everything to explain, that to me
1 6
is a hardship as well,
With all of the other in
17 today's world going through subdivision and land
18 development for people who own homes in towns and
19 communities like Lisburn, today that's a tough
20 row to hoe, yes, it is.
2 1
22
HEARING OFFICER EVERTTS:
All right
With your calculations
I don't have them in
23 front of me now; but you were very close to the
24 number of people that you redid the calculations
25
on,
And that was based on the assumption of two
I
3 1
people in the Draiseys' home and three in the
2
other home,
If there js another person added, we
3 get very close to maxing out that capacity.
4
5
MR, \vAKEFIELD:
We do,
HEARING OFFICER EVERTTS:
And what
6 guarantees are there?
7
8
MR. WAKEFIELD:
'l'here are no
guarantees.
I can't leave here and tell you that
9 the Draiseys are not going La have more
10 children--
11
12
MRS. DRAISEY:
MR. WAKEFIELD:
No.
or take on foster
13 children or whatever.
14
1 5
HEARING OFFICER EVERTTS:
I don't
know.
You've got to read the paper lately.
I
16 mean, they're getting older and older.
1 7
18
1 9
MRS. ORAl SEY:
We're even past the
grandchildren stage,
So we're safe on that,
MR. WAKEFIELD:
What I can tell you
20 is that the size of these homes are not designed
21 for large use or consumption of water,
22 particularly the Draiseys' home, although
23
24
25
historically, they did.
They raised a family in
there,
The next-door neighbor's farm was on
these wells,
And of course, in today's world,
32
2
you know, large families are not there.
Their daughter and two children are
3 going to go into that house, three, My four boys
4 are gone You know, it's just not that with
5 these size homes, large families are just not in
6
the mix,
That I can attest to.
That I can give
7 evidence to,
8
9
HEARING OFFICER EVERTTS:
aohn, is
it anticipated
is there any anticipated time
10 frame where water would be going into this area?
11
MR. EBY:
We anticipate that when
12 the new Fairview Township PA-American Water plant
13 is completed that the water company staff will
14 get involved with the Township to determine
15 whether or not it's feasible to bring water out
1 6
to the Lisburn area,
It's something that we've
17 been pursuing since before the public sewer -- or
18 about the same time the public sewer was
19 necessary due to some septic system malfunctions
20 in their village.
2 1
And at that time, a pump was
22 necessary to pump the water over the ridge at
23
High Meadow.
The water company has assured us
24 that they will have different flow
25 characteristics when the new treatment plan is
33
1
2
3
4
5
6
7
8
done,
So I think it might be, I think, '06 when
the plant is done.
So sometime in that time
frame they ~] i 11 approach us on feasibi I ty, and
our comp plan studies going on right now is
taking a look at that also as far as n,"cessity
and impact.
So it could be a year or two until
serious discussion occurs.
When it actually gets
9 built is not guaranteed and uncertain as far as
10 how expensive because of whether or not a
11 standpipe or a pump would be required.
1 2
1 3
But there is substantial development
in that vicinity.
We've had developers since
14 the -- well, the Allen Estates development and
15 another developers said they would be happy to
1 6
contribute to the cost of public water,
And at
17 the time the public sewer went in, the tariff
18 with the PA-American would have provided at least
19 several thousand dollars per home to assist with
20
hookup,
So that never happened,
And we've been
21 in waiting mode because of construction plans of
22 the water company.
23
So I would say '06-'07 time frame
24 there would be some discussions resuming on a
25 feasibility.
2
34
HEARING OFFICER EVERTTS:
Okay.
MR. WAKEFIELD:
My experience with
3 PA-American in getting water to the fringes of
4 development, that's their long-term strategy,
5
especially with them moving this plant,
They're
6 going to be looking for customers at some point
7
in time.
And that kind of flies in the face of
8 this area where there is adequate supply out
9 there.
10
So when they choose to extend water
11 out there, they're going to have to make it very
12 appealing for people to want to hook up to their
13
system as it goes out there.
But that's t.heir
14 business.
1 5
16
17
18
1 9
And PA-American and Unit.ed have been
bought out by very large firms.
So that's what
they want to do.
That's how they want to make
their money.
these places.
They want to extend water out to
They want. to haVe maint.enance
20 contracts on t.heir laterals and all of t.his new
2 1
22
23
24
technology to process wat.er.
That's what they're
going to be about,
I see tha t happeni ng.
HEARING OFFICER EVERTTS:
I've been
on a well.
There's such a t.hing as good wat.er
25 pressure and not so good water pressure,
35
MR, \^!AK1":FIELD:
You're on a \vell?
2
HEARING OFFICER EVERTTS:
I used to
3 be.
4
MR. WAKEFIELD:
We do a. lot of
5 developments
6
MR, DRATSEY:
We never had no
7 problem with any water pressure,
8
9
MRS
DRAISEY:
No.
MR. WAKEFIELD:
I get torn,
10 especially when PA-American and United, the
11 company that owns them, they're in the business
1 2
of selling water now,
And their high technology
13 for processing water, they're bringing that cost
14 down so that they can go out and get more
15 customers when I know there's a lot of water out
1 6
1 7
there.
And we are spending dOllars to treat
nitrates, you know, on these sites.
And I just
18 wonder sometimes,
1 9
But it would not be a problem if
20 that were a condition of a variance for them to
2 1
22
hook up.
They would have done that now how,
MS, RHOADS:
Do you have anything,
23 Mr. Martineau?
24
MR, MARTINEAU:
Yes.
I have a
25 couple of things.
-~
36
The first question I have [or you
2 and getting back wilh what the hearing officer
3 had been asking you, what I think she was getting
,
4 at, at least with respect to the hardship
5 involved, as you know, one of the requirements
6 for a variance is that there be some
7 characteristic of the property creating a
8 hardship.
9
The way I look at it we're not
10 talking about you having to jump through more
1 1
hoops to develop.
We're talking about some
12 characteristic of the property itself,
1 3
Is there a characteristic of the
14 real estate involved which is creatLng some kind
15 of hardship?
1 6
MR. WAKEFIELD:
I definitely
17 consider the uniqueness where they built the
18 house to the one side almost on one of the
19 original found lots, the 60 by 160, and left the
20 western portion of that almost as a vacant lot a
21 very unique characteristic of this whole town,
22 It's evident as you go up through there that they
23 built the house to the one side and left vacant
24
lots on these lots,
They may have bought two or
25 three lots, but that was always the intent here.
1
37
The Draiseys certainly did that,
2 They intended to have their family nearby,
3 That's a very unique characteristic of Gisburn.
4 And T think it's also unique that if we do bring
5 in these lots and build a single family residence
6 on there as opposed to apartments and rental
7
units, that
that certainly is consistent with
8 what is intended by the zoning regulations.
9
And I find that out of all planning
10 issues something that is very unique today, that
11 we are trying to preserve something that people
12 who live in these towns have a place to go to for
1 3
1 4
1 5
1 6
their children,
You know, children today want to
go out and build $250,000 homes.
And that's not
always possible.
This is an affordable home for
children and families,
And I find that very,
17 very unique today,
18
1 9
MR. MARTINEAU:
So what
do you
currently
know the frontage of the existing
20 existing lot?
21
22
23
24
25
MR. WAKEFIELD: Sure.
MR. MARTINEAU: What is that?
MR. DRAISEY: Do you mean both of
them together'?
MR. MARTINEAU: Yes.
..
38
1
MR. DRAISEY:
1 86 .
2
MR, MAETINRAU:
1 86
And you said
3 the average frontage for a lot in this
4
development or this neighborhood
. ')
1 S ,
5
MR, DRAISEY:
60,
6
MR, MARTINEAU:
About 60 fE~et?
7
MR. WAKEFIELD:
Right.
It was
8
intended
the town plan shows 60-foot lots
So
9 the Draiseys' property would have encompassed
10 three of those lots,
11
Now, if I go into the cluster
12 option, I could get four lots out of seven-tenths
1 3
of an acre.
And if I drill the well deep enough,
14 I could probably get the supply and the storage
15 to justify that, particularly under DEP's
16
requirements.
We don't want to do that.
All we
1 7
want is two lots.
That was the intent.
The lot
18 just to the west of us is Lot 33 of the town,
19 They built one home on that.
20
HEARING OFFICER EVERTTS:
I'm not
21 understanding your reference to the cluster
22 concept.
23
MR. WAKEFIELD:
The cluster
24 concept
25
HEARING OFFICER EVERTTS:
I know
39
what cluster concept is.
2
3
MR, WAKEFIELD:
Okay,
HEARING OFFICER EVERTTS
But I'm
4 not understanding why you keep on referencing it.
5
MR. WAKEFIELD:
Because under the
6 0 r din a n c e t hat is ape r m i t t e d use l!l R '.. 1 ,
7
HEARING OFFICER EVERTTS:
It's just
8 side land to be used for recreation, open space?
9
MR, WAKEFIELD:
Right,
And if you
10 go to the open space requirements, I would have
11 open space on these individual lots,
1 2
Now, is that a concept I want to go
13 to the planning commission and commissioners and
14
try to explain to get two lots?
That's a
15 hardship to me, to have to go through and explain
16 that.
1 7
We have done cluster options on very
18 small tracts of land where we're trying to -- 10
19 acres or 15 acres where we're trying to preserve
20
some environment issue.
However, I think that
21 option is available to us, even though it's
22
seven-tenths of an acre.
And there arE, no
23 requirements for lot area or widths or anything,
24 just the density,
25
MS. RHOADS:
The density is the
40
1
problem you have.
I mc:an,
And it you were
2 there's no point in debating this; but if you
3 were applying for approval of a cluster
4 development, you would have to meet the density
5 requirements of the same district that you're in.
6
7
MR. WAKEFIELD:
Yes, six per acre,
MS. RHOADS:
No.
It would bE~ one
8 per acre.
9
MR. WAKEFIELD:
It says maximum.
10 I'm permitted a maximum.
11
1 2
MS. RHOADS:
If you have
MR. WAKEFIELD:
It says if you have
13 public sewer or public water or an approved
14
1 5
16
community system approved by DEP.
We have public
sewer,
That's approved,
MS. RHOADS:
So you're also
17 proposing that you would be able to get a public
18 community water system approval by
19
MR. WAKEFIELD:
Approved by DEP.
20 Correct.
21
22
MS. RHOADS:
All right.
MR. WAKEFIELD:
And all I would have
23 to do to evidence that would be to drill a well,
24
one single well, or I could drill two again.
And
25 that would be approved by DEP,
I
2
3
4
5
5
7
8
9
1 0
11
12
1 3
1 4
1 5
1 5
1 7
18
1 9
20
21
22
23
24
25
I
4 1
MR, ERY:
For the record,
think
t. h a I. w 0 u 1 d b e 2 2 0 - 1 7 3, c 1 u s I. e r d eve lop III e n I.
opLion,
And that would be under Capital D,
public water and sanitary sewer or community
systems approved by Pennsylvania Department of
Environmental Protection
MS, RHOADS:
And also B, which says
maximum residential density shall be provided or
within the applicable zoning district.
MR. EEY:
CorrecL.
MR. WAKEFIELD:
MR. MARTINEAU:
All right,
Just a couple other
things with the lot.
So in this neighborhood,
there's
over the years, it's been developed in
roughly 50-foot frontage lots throughout the
neighborhood.
Correct?
MR. WAKEFIELD:
affirmatively, )
MR. MARTINEAU:
(Nods head
And this lot is
significantly larger.
So when the Township
imposes zoning ordinances, it prevented this
particular lot from being further developed, Is
that
am I reading what you're telling me
correctly?
MR. WAKEFIELD:
It didn't
I think
4 2
it intended to permit that; but the regulations,
2 the way they're written, particularly for the
3 with public sewer and the well, the one gross
area
one lot per gross acre created that
4
5
hardship right there.
Then we have to come in
6 and ask for that variance or go to the cluster
7 option--
8
g
MR. MARTINEAU:
MR. WAKEFIELD:
All right,
to obtain what we
10 wanted to do.
11
MR, MARTINEAU:
You said if you
12 broke this lot down into two, they would have
13 roughly gO-foot frontages then.
1 4
Is the depth of these Jots similar
15 to the other lots in the neighborhood?
16
1 7
1 8
1 g
MR. WAKEFIELD:
MR. MARTINEAU:
Yes.
So the other lots
are
we had estimated these to be ,3 to .4
Then the other lots in the neighborhood
acres.
20 are smaller than .3 or .4 acres?
2 1
MR. WAKEFIELD:
No,
They're very
22 consistent with that or larger.
23
MR. MARTINEAU:
Well, if you're
24 talking about two lots that are the same depth as
25 the neighboring lots and the two lots you're
43
talking about arc 90-feet frontage and the other
2 lots are 60-feet frontage, does it stand to
3 reason that they're smaller acreage-wise?
4
MR. WAKEF IELD:
In that respect,
5 they are,
6
7
8
MR, MARTINEAU:
MR, WAKEFIELD:
Okay.
But there are other
lots like .7 or
acre or
2 acres as well
9 through there,
1 0
MR. MART I NEAU:
Well, obviously,
11 they vary. We understand that from the exhibits
12 that you've presented,
1 3
14
Could we possibly have one of the
Draiseys sworn in?
I have a couple of questions
1 5
HEARING OFFICER EVERTTS:
state your
16 name.
1 7
1 8
1 9
MR. DRAISEY:
Bernard Draisey.
BERNARD DRAISEY, having been duly
20 sworn by Denise L, Travis, Notary Public, was
21 examined and testified as follows:
22
23
MR. MARTINEAU:
How long have you
24 lived in the property you're in now?
25
MR, DRAISEY:
It's probably '60 or
44
, 61 ,
2
MR, MARTINEAU:
I heard you say that
3 you had raised your children there,
4
MR. DRAlSEY:
Yes.
At the most,
5 we've had six and sometimes eight living there
6 over the years,
7
MR, MARTINEAU:
Does the house
8 accommodate six to eight people?
9
MR. DRAISEY:
Oh, yes
We've got
10 three bedrooms upstairs.
1 1
MR. MARTINEAU:
The house that
12 you're proposing to develop on
1 3
MR. DRAISEY:
In fact, we've got
14 four bedrooms upstairs.
1 5
MR, MARTINEAU:
The house that
16 you're proposing to develop on the new lot should
17 the subdivision go through, how many bedrooms
18 will that dwelling have?
1 9
20
MR. DRAISEY:
That has three.
MR. MARTINEAU:
So are you familiar
21 with the design of the house that's proposed?
22
MR. DRAISEY:
(Nods head
23 affirmatively,)
24
MR. MARTINEAU:
How many people
25 would you say that would accommodate?
45
~jR, DR1\ISEY:
Probably as many as in
2 our house; but three easy, four, because you've
3 got three pretty good sized bedrooms in there,
4
MR. MARTINEAU:
That's all of the
5 questions I have for you.
6
MR. DRAISEY:
Eventually, there will
7 probably be one in that and one in our house,
S because me and Esther 20 to 30 years from now
9 might not be around,
1 0
HEARING OFFICER EVERTTS:
Joh n,
11 anything?
1 2
13
MR, EEY:
No,
MR, MARTINEAU:
My only concerns
14 with the application is that the existing
15 neighborhood is already significantly
16 significantly higher density than the code
17 permits; and adding another dwelling to that will
18 only compound that issue.
1 9
And obviously, those dwellings were
20 preexisting to the ordinance or permitted uses,
21 but now we're talking about trying Lo add another
22
one to a neighborhood that already is
we've
23 heard ,3, .4 acres, you know, for average lots in
24
there.
You know, we're adding on to what is
25 already an area more dense that what we're trying
46
to establish with the density requirements for
2 on-lot water,
3
The other issues, the calculations
4 with the recharge versus the usage, you know, it
5 appears that the usage would be less than the
6 recharge based on the number of people that are
7 residing in the house today; but we can't look at
8
a variance in terms of what's there today.
You
9 know, we've heard that the house had up to eight
10
people at one time,
It apparently has the
11 capacity to support that,
1 2
13
So looking at it in the future, it
won't always be in the Draiseys' hands.
As time
14 progresses, another family could easily move in
1 5
there,
AS you heard, six to eight people could
16 reside in there and at least another four in the
17 neighboring dwelling, which significantly alters
18
the outcome of those calculations.
Where it may
19 be adequate to support what is proposed to be in
20 there today, you know, looking down the road, you
2 1
22
know
and there's no way to know how many years
we're talking about down the road.
It could
23 create an issue where the usage is dramatically
24 higher than the recharge.
25
HEARING OFFICER EVERTTS:
Thank you.
47
MK, EBY:
There's no public here,
2
HEAKING OFFICER EVERTTS:
No public
3 here,
4
5
Where do we go from here?
MR. EBY:
You need to close the
6 evidentiary hearing if they're done, and you need
7 to decide whether or not you want to deliberate
8 tonight or render a decision next month.
9
MS. RHOADS:
Do you have anything
10 further that you wish to present?
1 1
MR. DRAISEY:
Do you want to tell
12 them about why we put out all of that money?
1 3
1 4
1 5
MRS.DRAISEY:
MR, DRAISEY:
No.
Okay.
That's it then.
MR, WAKEFIELD:
I would like to add
16 further that the existing house only has one
17 bathroom in it, which severely restricts that
18 the usage or flows required for that in
19 particular under the conditions when there's only
20 the Draiseys there.
21
22
And the proposed home has two
bathrooms,
One is a master bathroom.
And
23 typically the flows for those kinds of homes of
24
those square footages are not high.
That can be
25 well substantiated.
2
3
48
sure that
As for the density issue, I'm not so
the ordinance permits up to six
units per acre around there,
Even the homes to
4 the back with 20,000 square feet, the density in
5
6
there is
tends to be at least two per acre,
That's very consistent,
We're in around the two.
7 There are other higher densities like the one to
8 the east of us with the four-unit apartment on
9
1.2 acres,
That's up around three and a little
10 bit, but I don't consider those
1 1
MR. DRAISEY:
Across the road has
12 nine.
1 3
MR, WAKEFIELD:
Right,
I still
14 don't consider those as high density in there,
15 And with the configuration of the original lots
16 from the town and the way it could be developed
17 with or without, you know, public water there, I
1 8
think is very consistent,
And I don't consider
19 Lisburn over densely -- over dense at all.
20
2 1
22
designed to
I don't know that the ordinance is
was designed or intended to
alleviate a density problem in Lisburn,
I f
23 anything, I think it may have intended to
24 encourage some different density, particularly in
25 the usage category to get away from apartments or
1 0
1 1
49
rental units.
That's an invite for a higher
2
density.
And with those nonconforming uses in
3 there, It would only be a matter of Lime where
4 people would come in to encourage building onto
5 apartments or whatever have you and kind of tend
6 to increase the density on that basis.
7
8
MRS. DRAISEY:
Can I say something?
HEARING OFFICER EVERTTS
Mrs.
9 Draisey, would you please be sworn?
ESTHER DRAISEY, having been duly
12 sworn by Denise L. Travis, Notary Public, was
13 examined and testified as follows:
1 4
1 5
MRS. DRAISEY:
You were saying about
16 you thought maybe you know that maybe nine people
17 could move into our house again, is what you
18 said, down the road?
1 9
MR, MARTINEAU:
Well, I was just
20 indicating that you had said that there were at
2 1
least more than two people
that as the water
22 report, you know, uses that figure of two people
23 in that house, I was merely pointing out that
24 that may be true today; but ten years from now
25
that may not be true.
There may be more people.
9
1 0
1 1
12
50
1
There may never be eight again,
I don't know,
2 I've never seen your house, but there could
3 certainly be more than two.
4
5
6
7
MRS, DRAISEY:
Well, when we pass,
our oldest
our next oldest son will get our
He's already 45 so and doesn't
house.
Okay.
even have a girl.
So I mean, you don't. have to
8 worry about him moving in and having a big
family.
Okay?
And Leslie, who is going t.o get the
house next door to us, she's 42.
She's done
having babies,
So I mean, you know, unless
13 farther down the road these people would pass and
14 somebody else would come into these homes, that
15
16
we have no control over.
And by then, you should
have water down through there.
I mean, you're
17 talking a long way down the line, I would assume
18 anyhow.
1 9
20
2 1
22
23
24
25
Personally, I'd like to see water go
down through Lisburn,
I would hook up in a
minute, I would have the other time they talked
about it. But I mean, what like when you said
about that, you know, I just that. would be
really way down the I i ne that there unless
David would sell the house, you knovv, that would
3
4
5
6
7
8
9
1 0
5 1
be the only way ther"e would be a big famiJy in
2 there again,
MR, DRAISEY: People don' t have big
families anymore,
MRS. DRAISEY: Not too much. But
some do,
MS. RHOADS: Where does your son
live now?
MRS, DRAISEY: He has an apartment.
HEARING OFFICER EVERTTS:
Anything
11 else?
1 2
MRS. DRAISEY:
No.
I just thought I
13 should point that out to you,
14
MS, RHOADS:
If there's nothing
15 else, that will end the evidentiary portion of
16 the hearing,
1 7
18
Do you want to deliberate now or
HEARING OFFICER EVERTTS:
I don't
19 have a problem,
20
2 1
22
23
24
25
(Brief pause from the record.)
5 2
DECISION
2
3
4
DOCKET NO, 2005-02
HEARING OFFICER EVERTTS:
I am going
5 Lo approve the variance with certain conditions.
6 Those conditions are that that well is 300 feet
7 by 8 inches and that if and when water becomes
8 available that that hookup is done as soon as its
9 available to both properties.
1 0
1 1
MRS, DRAISEY:
No problem,
HEARING OFFICER EVERTTS:
Okay.
12 Thank you.
13
1 4
1 5
1 6
1 7
1 8
1 9
20
2 1
22
23
24
25
(Hearing adjourned at 8:30 p,m,)
5 3
CERTIFICATE
I hereby certify that the
proceedings are contained fully and accurately in
the noles taken by me during the hearing of the
foregoing cause and that this is a correct
transcript of the same,
(~\t ~~.\[Lb
Denise L. Travis, Reporter
Notary Public
Commonwealth
in and for the
of Pennsylvania
My commission expires
April 20, 2006
Site Data Supporting A Requested Variance to the
Lower Allen Township Zoning Ordinance
Submitted for the Property Located
At 1552 Main Street, Lisbum, PA
Submitted By:
February 17,2005
~~~
S ott], Donohue, CET
Act One Consultants, Inc,
tt~ 2- <{~,i[t- 1-'7
Robert E, Shaffer, Jr., PE / '7}'- ~
-'7 / D:>
Act One Consultants, Inc, L.
i1P ), (If) () tl
I
EXHIBIT NO._
- I)-a
Site Description
The property located at 1552 Main Street, Lisburn, P A comprises a total land area of
30,625.547 square feet (0.7031 acres), The topography of the property slopes gently
downhill from the southeast comer of the property towards the northwest, with a total
change in elevation of approximately eight feet. In addition, a drainage divide exists at a
point approximately 71' south of the southernmost property line, allowing both surface
and sub-surface hydrologic flow at all points north ofthis divide to be directed towards
the northwest comer of the property. A well currently exists on the property at a point
approximately 60' west and 28' south of the northeast comer of the property, at the
approximate center point of an asphalt driveway. In addition, the proposed subdivision
plan calls for a well to be located at a point approximately 61' north and 84' east ofthe
southwest comer of the property, This proposed well location is greater than 100' from
ail existing wells on this property and all adjoining properties,
Applicable Ordinances
This particular variance request refers to g 220.14, of the Lower Allen Township Code,
specifically subseclions B I and 82, concerning the residential density, lot area and lot
width of properties in the R-l Single Family Residential District that possess on-lot water
supply and/or sewage disposal systems,
Subsection 82 of g 220,14 establishes criteria for determining the permitted minimum lot
area for properties in this zoning classification, Among these is the criterion to provide
for on-lot well and septic system requirements. In the case of the property in question,
the primary concern appears to be the potential ability of the property to support two
dwelling units, each with their own active well.
Site Data
In order to justifY the ability of this property to support two active wells, one must determine
both the rate at which water will be withdrawn from this particular aquifer, hereafter referred to
as "consumptive use", and the rate at which water will be returned to this aquifer, hereafter
referred to as "groundwater recharge," According to data supplied by the Pennsylvania
Geological Survey, the average annual jSroundwater recharge for this site location is 0.34
million gallons per day per square mile. Properly converted, this yields a groundwater
recharge rate of531.25 gallons per day per acre and 373.52 gallons per day for this property
(see calculation #1). Consumptive use was determined in a similar fashion, based on data
supplied by the US Environmental Protection Agency, which cites a per-capita consumptive
use of 63.2 gallons of potable water per day2 (see calculation #2).
] Taylor, Larry E. and Werkheiser. William H. "Water Resource Report #57: Groundwater Resources of
the Lower Susquehanna River Basin, Pennsylvania, Pennsylvania Geological Survey in cooperation with
the Susquehanna River Basin Commission, Harrisburg, PA. Fourth Edition. 1984,
2 Heaney. James P., et al. "[nnovative Urban Wet-Weather Flow Management Systems," National Risk
Management Laboratory Publication # EPA/600/R-99/029, Edison, NJ. 1999,
. .
Recharge Calculation # I
0.34 million gallons = 340,000 gallons
I square mile = 640 acres
I acre = 43,560 square feet
Property Size = 30,625,547 square feet (0.7031 acres)
340,000 gallons/day x 1 square mile = 531.25 gallons/day
square mile 640 acres acre
Further,
531.25 gallons/dav x 0.7031 acres = 373,52 gallons/day
acre
Consumptive Use Calculation #2
Individual Consumptive Use = 63,2 gallons/day
Number of Persons per Dwelling (Lot I) = 2,0
Number of Persons per Dwelling (Lot 2) = 3.0
Lot I: 63.2 gallons/day x 2,0 persons = 126.4 gallons/day
person
Lot 2: 63.2 gallons/dav x 3,0 persons = 189.6 gallons/day
Person
Total: 126.4 gallons/day + 189.6 gallons/day = 316,0 gallons/day
Well Capacity Calculation #3
Volumetric Capacity of8" Well, per linear foot: 1t x radius2 x depth
7.48 gallons = 1.0 ft3
V = 1t x (0.333 ft) 2 x 1.0 ft = 0,349 fe
7.48 ~allons x 0.349 ft1 = 2,61 gallons/linear ft
ft
. .
Well Depth Calculation #4
Static Water Level at Site: 72 linear ft below surface3
Two Day Storage Volume (Lot 2): 189,6 gallons/day x 2 days = 379,2 gallons
Well Wet Depth:
379.2 gallons = 2.61 gallons x depth (linear ft)
Linear ft
Wet Depth = 145.29 linear ft
Total Depth = Wet Depth + Static Water Level
= 145.29 ft + 72.0 ft = 217,29 ft
Based on this data, this property possesses sufficient groundwater recharge capabilities to
support two dwelling units with no detrimental impact on the groundwater supply of the
area, Further, a well depth of 217,29 ft will provide a two-day storage volume for Lot 2,
) Provided by Eichelberger's. Inc, for well located at 1536 Main St., Lisbum, PA,
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OVERSIZED
DOCUMENT
J \.J C \<:51:,. [D
Uoc.l.trA'LI\JIS
rr. u: D
~
IN THE MATTER OF
THE APPLICATION OF
TIM WAKEFIELD
BEFORE THE LOWER ALLEN TOWNSHIP
ZONING HEARING BOARD
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 2005-02
DECISION GRANTING A VARIANCE
The Applicant requested a variance to exceed the maximum
permitted residential density in an R-1 District. A hearing was
held before the zoning Hearing Board on February 17, 2005.
FINDINGS OF FACT
1. Notice of the hearing was properly advertised, the
subject property was posted, and all property owners required to be
notified of the hearing were notified in accordance with the
Codified Ordinances.
2, The Applicant is Tim Wakefield, 2656 Walnut Street,
Harrisburg, Pennsylvania 17101.
3. The owner of the subject property is Bernard Draisey,
1552 Main Street, Lisburn, Mechanicsburg, Pennsylvania.
4, The subject property is located in an R-1 District along
the southern side of Main Street in the Village of Lisburn,
5. The subject property has approximately 186,4 feet of
frontage on Main Street, and depth varying from 125 feet along the
eastern boundary, to 178 along the western boundary. The area of
the subject property is approximately ,7 of an acre,
i
6. The subject property is improved with a frame dwelling
and block garage, and other outbuildings, all located on the
eastern side of the subject property.
7. The subject property has an unusual configuration because
it is not uniform in depth.
8, The Village of Lisburn was generally laid out in lots of
60 feet in width and 100 in depth.
9, The subject property is served by public sewer, and by
on-site water.
10. The property slopes downhill from the southeast corner
toward the northwest, with a total change in elevation of
approximately 8 feet,
11. The Applicant desires to subdivide the subject property
into two (2) lots, with Lot No, 1 having an area of approximately
.3 acres, and Lot No.2 an area of approximately .4 acres.
12. The existing improvements would be located on Lot No.1,
and the Applicant proposes to construct a separate dwelling and
well on Lot No.2.
13. David Martineau, Esquire, of Metzger Wickersham, Township
Solicitor, participated in the hearing and expressed concerns about
the requested relief.
CONCLUSIONS OF LAW
1, Pursuant to Sections 220-223(B) (5) and 220-223(C) of the
Codified Ordinances, this Board has jurisdiction to hear and decide
an application for a variance.
2
,
2. Under Section 220-14 (B) (1) of the Codified Ordinances, the
maximum permitted residential density for a property having on-lot
water supply and/or sewage disposal systems shall be one dwelling
unit per gross acre.
3. The Applicant has requested a variance because both
proposed lots will be less than one acre in area.
4. The unusual configuration of the subject property and the
location of the improvements create an unnecessary hardship,
5. A variance is necessary to enable the reasonable
development of subject property.
6. The unnecessary hardship has not been created by the
Applicant.
7. The requested variance will not alter the essential
character of the district in which the property is located, nor
substantially or permanently impair the appropriate use or
development of adjacent property, nor be detrimental to the public
welfare.
8. The requested variance will represent the minimum
variance to afford relief,
9. The Zoning Hearing Board is authorized to attach
reasonable conditions and safeguards to the granting of a variance,
3
DECISION
In view of the foregoing findings and conclusions, and in
consideration of the testimony and evidence presented at the
hearing, it is the decision of the Board that the Applicant's
request for a variance be and is hereby granted, subject to the
condition that the well on Lot No. 2 shall be at least 300 feet in
depth, 8 inches in diameter, and that both Lot No. 1 and Lot No, 2
shall connect to any new public water system promptly after it has
become available.
LOWER ALLEN TOWNSHIP ZONING
HEARING BOARD
Date:
.1(11/06
~~
Ann Evertts - Hearing Officer
4
NOTICE is hereby given that the Zoning Hearing Board of Lower Allen Township,
Cumberland County, Pennsylvania, will hold a Public Hearing on Thursday, February 17,
2005 at 7:00 p.m" at the Lower Allen Township Municipal Building, 1993 Hummel
Avenue, Camp Hill, Pennsylvania to consider:
1. Docket #2005-01- The application of Colleen Greene, 1304 Strafford Road,
Camp Hill, PA 17011 is requesting a variance from the provisions in Scction 220-
168 A(3) of the Codified Ordinances in Lower Allen Township as amended
(Herein "Ordinances"). The applicant is requesting a variance to keep a
replacement fence that does not meet the required setbacks from the property
lines,
2. Docket #2005-02 - The application of Tim Wakefield, 2656 Walnut Street,
Harrisburg, P A 17103 is requesting a variance from the provisions in Section 220.
14 B(1) of the Ordinances. The applicant is requesting a variance to subdivide the
property at 1552 Main Street Lisbum into two lots that would not meet the
minimum 2 acre total area,
3. Any matters of general business to deliberate upon any such matters which are
pending before the Board of Commissioners and which are appropriate for
consideration at a public meeting,
By Order of Lower Allen Township
Zoning Hearing Board
Raymond E, Rhodes
Township Manager
Board of Commissioners
THE PATRIOT NEWS
THE SUNDAY PATRIOT NEWS
Proof of Publication
Under Act No, 587, Approved May 16, 1929
Commonwealth of Pennsylvania, County of Dauphin} SS
Joseph A. Dennison, being duly sworn according to law, deposes and says:
That he is the Assistant Controller of The Patriot News Co" a corporation organized and existing Wider the
laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812to 818 Market
Street. in the City ofHazrisburg, County ofDaupbin, State of Pennsylvania, owner and publisher of The Patriol-
News and The Sunday Patriot-News newspapers of general circulation, printed and published at 812 to 818 Market
Street, in the City, County and Slate aforesaid; that The Patriot.News and The Sunday Patriot.News were established/
March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since;
That the printed notice or publication which is securely attached hereto is exactly as printed and published
in their regular daily and/or SWldayl Metro editions which appeared on the 1st and 8th day(s) of February 2005,
That neither he noc said Company is interested in the subject matter of said printed notice or advertising, and that all
of the allegations of this statement as to the time, place and character of publica lion are true; and
That he has personal knowledge of the facts aforesaid and is duly authorized and empowered l<i verify this
statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed
and adopted severally by the stockholders and board of directors of the said Company and subsequently duly
recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M",
Volume 14, Page 317,
PUBLICATION
....~~.......,.........,..
COpy
Sworn to and su
MembH, Pennsylv9.nlaAJSlocJar
T PUBLIC
Slon exprres June 6, 2006
. ..
LOWER ALLEN TOWNSHIP
1993 HUMMEL AVENUE
CAMP HILL, PA. 1701l.5983
Statement of Advertising Costs
To THE PATRIOT.NEWS CO.
For publishing the notice or publication attached
hereto on the above stated dates
157,92
Publisher's Receipt for Advertising Cost
"'"1 0., !lsher of The Patriot.News and The Sunday Patriot.News, newspapers of general
circulation, hereby acknowledge receipt of the aforesaid notice and publication costs and certifies that the same have
been duly paid.
By.,.,.."...,..,.".,..,.."".".",.
..
House # Owner TaxlD Lot Subdivision Acres
GRANDVIEW AV
1523 ROLAND J & CAROLYN V SNYDER 13-31- 046
2136-036
1529 BERTHA SPACE 13-31- 042
2136-037
1532 ECLMUS & ~lELLA W::JGHT 13-31- 109B 0.46
IS~~ ,y&.~dVle 2136-046
1533 GERALD J & L YNNIECE R HART 13-31- 129 0.46
2136-038
1536 BOBBY & NANCY C BURGESS 13-31- 0.44
2136-045
1540 TRENT R 1YSON 13-31- 107 0.46
2136-044
1541 TODD J & SHERRYL LEFFLER 13-31- S 0,94
2136-039
1544 HAROLD E & KAREN R DREESE 13-31- 106 0.46
2136-043
Total Parcels = 8
L1SBURN RD
4075 TOWNSHIP OF LOWER ALLEN 13-11- 109,5
0270-
044EX
Total Parcels = 1
MAIN ST L1SBURN
1528 ESTHER M WITMER 13-31- S 0.66
2136-021A
1532 DARVIN E GRAYBILL 13-31- 0,44
2136-021
1533 S!<''i' nnN R & MCHELLE K MOYER 13-31- 36 046
2136-013
1536 STEVEN R & RONETTA J TRIMMER 13-31- S 0.44
2136-020
-c"
C1~) STEVEN R & RONETTA J TRIMMER 13-31- S 0,66
2136-015
1540 STEVEN R & RONETTA J TRIMMER 13-31- 022
2136-019
1552 BERNARD L & ESTHER E DRAISEY 13-31- 0.6
2136-018
1556 LEWIS B ET AL and & MICHAEL D 13-31- 135
BUCHANAN 0 2136-017
0)0 l~uOla~~~[ l.Y 1~!)i~IGvld,1
IlfUq CfiJ')lJvYc4J~ ~i/~It
II.{ t L VIe. 0 I CJ t)/J (0 ' ?f\ I J"h 0>)
, House # Owner Tax 10 Lot Subdivision Acres
1557 EARL E KRONE 13-31- S 11
2136-016
1601 RAYMOND D & BJA1RICE YINGER 13-31- S 0.44
I uDv,; W I~ r 2134-001
1604 KENNETI-t E & SUSAN C YINGER 13-31- 0,7
2134,047
Total Parcels = 11
MCCORMICK DR
1608 DENNIS l & JEANNE C JACOBS 13-31. 86 1,24
2134-049A
1613 ELlZABETI-t Sand & WARREN C 13-31- 103 0,48
HARDING 2136-042
1617 WilLIAM T & PEARL E lEHMER 13-31- 0,45
2136-040
Total Parcels = 3
- - -
Total Parcels for Report = 23
.
a6D~o91
I - I? -CJ ..
Property Address 1552.. M A.\.. "Sr L I 'S b urlj
Applicant Name 11""- WA~r/C:L.D
Applicant Address Zc...;S'<-- 'vVIIIN tiT"" sr
LOWER ALLEN TOWNSHIP ZONING HEARING BOARD
Mec.h . ?A,
11055 - 5q41
Phone #
He",
25& 7500
DA- 1'7/0'3
Property Owner Be... NA12.D 'Dr^(ssv Phone # 1(,(" Zo'tS"
Owner'sAddress 1~52.. !MAIN '3T LJ.~f3"orN M<!t~. PA. nC:rS-5941
Zoning District: '2- f
Present Use: Res'v€.NTiTf'- 'S/NQ/. ft1"",;,- '0eol'lc.fi<=-D
) Appeal from decision
of Zoning Officer
(Complete Sec. 3)
Attach additional sheets if necessary to adequately explain the request.
Relief Sought: ( ) Special Exception
(Complete See. I)
( vi Variance
(Complete Sec. 2)
I. Special Exception
A. Section of Zoning Ordinance:
B. Describe proposed use:
2. Variance
A. Section of Zoning Ordinance: .J" ~ - /4-. 3. r
B. This request for a variance relates to:
Area: V- Use: Setback: Height: Other:
C, Describe requested variance: T", 'S ub clUJ< J<! Ok".... "'''l t...<> I
1"""0',,,,,,, Lc.Ts 1'1....... INO"(.,L 13..._ l....:..:!.s .1.""" AN AU'-cr
0, The following unique conditions are applicable to this property: 31 'C e AN 0
'S .. . ""f, t.,T '" l '-o",T v'^' ,-r..<;'S
E, Statethehardshi~thatexists: t-'~~~<:.. ri\re.C2.. -.:u~~~t~ Nor AVa..ll1.ble..
\N~.I~ "l"k. t.iT" 0,A~ ~__ or~ z.. L.,.r _u 'IV, u,eA.o.,J \N....!\~
3. Appeal from decision of Zoning Officer/Other
A. Section of Zoning Ordinance:
B, Describe request: ~--
C, Date of decision of Zoning Officer:
...**....*..............................................................
List of attachments:
Site Plan:
Olher:
Yes
No
...*...........~.......*................*.............................~.
Certification by Applicant
I hereby certify that all oftbe above slalements and any statements contained in attached documents
and plans are true and correct to the best of my knowledge, information and belief.
Signature of Applicant
Date
.
\ _ l1~C .-):
i) r().'<;~1
OFFICE USE ONLY
Application Filed: I. 11 aDv ~
Fee Paid: $ ~ 00 DD
Date of Zoning Hearing Board Meeting: J 17, ~DO 6
Notice was advertised on: 9./ a vv 6
Notice was sent to applicant on:
Notice was sent to property owne~ on:
Property was posted on: a'4'J1D/J"i
Transcript was received on:
Decision was received on: ::? 'I '1 '" ~t]
Decision was sent to Applicant on: . era bb 'il
t\\,;' VI"t:. ......VI''''~UL.lJ-\t...i~, u..."".
Consulting Engineers & Surveyors
I .-.
2656 Walnut Street
HARRISBURG. PENNSYLVANIA 17103
[LLS!JG'2~ @l?'I~~~_lXJ~C~uDl?lf&[S
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/1.010
rATE (_ ((r- 4-~-'O
::~"n'ONu J~
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,
5000
TO
(717) 236.7500
FAX (717) 236.3314
/7/I",.v
04 - z.q~
WE /IRE SENDING YOU
>
Attached
= Under separare cover via
:he ~OIIC'Nrng Items:
Shop drawings
- Prints
Plans
- Sam pies
Sce:::fICal:IOns
Copy or letter
Change order
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If enclosures art? nor as nored. kindly norify us Jt once,
.
Site Data Supporting A Requested Variance to the
Lower Allen Township Zoning Ordinance
Submitted for the Property Located
At 1552 Main Street, Lisbum, PA
January 17, 2005
Submitted By:
1~;S2~
Act One Consultants, Inc.
-'
Site Description
The property located at 1552 Main Street, Lisburn, P A comprises a total land area of
30,625.547 square feet (0,7031 acres). The topography of the property slopes gently
downhill from the southeast comer of the property towards the northwest, with a total
changc in elevation of approximately eight feet. In addition, a drainage divide exists at a
point approximately 71' south of the southernmost property line, allowing both surface
and sub-surface hydrologic flow at all points north of this divide to be directed towards
the northwest comer of the property, A well currently exists on the property at a point
approximately 60' west and 28' south of the northeast comer of the property, at the
approximate center point of an asphalt driveway, In addition, the proposed subdivision
plan calls for a well to be located at a point approximately 61' north and 84' east of the
southwest comer of the property, This proposed well location is greater than 100' from
all existing wells on this property and all adjoining properties,
Applicable Ordinances
This particular variance request refers to 9 220,14, of the Lower Allen Township Code,
specifically subsections Bland B2, concerning the residential density, lot area and lot
width of properties in the R-l Single Family Residential District that possess on-lot water
supply and/or sewage disposal systems,
Subsection B2 of 9 220,14 establishes criteria for determining the permitted minimum lot
area for properties in this zoning classification, Among these is the criterion to provide
for on-lot well and septic system requirements. In the case of the property in question,
the primary concern appears to be the potential ability of the property to support two
dwelling units, each with their own active well.
Site Data
In ordcr to justify the ability of this property to support two active wells, one must determine
both the rate at which water will be withdrawn from this particular aquifer, hereafter referred to
as "consumptive use", and the rate at which water will be returned to this aquifer, hereafter
refcrred to as "groundwater recharge:' According to data supplied by the Pennsylvania
Geological Survey, the average annual rroundwater recharge for this site location is 0,34
million gallons per day per square mile, Properly converted, this yields a groundwater
recharge rate of 531.25 gallons per day per acre and 373,52 gallons per day for this property
(see calculation #1), Consumptive use was determined in a similar fashion, based on data
supplied by the US Environmental Protection Agency, which cites a per-capita consumptive
use of63,2 gallons of potable water per dal (see calculation #2),
I Taylor. Larry E, and Werkheiser, William H, "Water Resource Report #57: Groundwater Resources of
the Lower Susquehanna River Basin, Pennsylvania. Pennsylvania Geological Survey in cooperation with
the Susquehanna River Basin Commission, Harrisburg. PA, Fourth Edition, 1984,
~ Heaney. James P., et al. "Innovative Urban Wet-Weather Flow Management Systems." National Risk
Management Laboratory Publication # EPA/600/R-99/029, Edison, NJ, 1999,
"
Recharge Calculation #1
0.34 million gallons = 340,000 gallons
I square mile = 640 acres
I acre = 43,560 square feet
Property Size = 30,625,547 square feet (0.7031 acres)
340,000 gallons/dav x I SQuare mile
square mile 640 acres
531.25 gallons/dav
acre
Further,
531.25 gallons/dav x 0,7031 acres
acre
373,52 gallons/day
Consumptive Use Calculation #2
Individual Consumptive Use = 63,2 gallons/day
A verage Number of Persons Per Dwelling = 4.0
63,2 gallons/dav x 4,0 persons = 252.8 gallons/day/dwelling
person dwelling
Based on this data, this property possesses sufficient groundwater recharge capabililies to
support two dwelling units with no detrimental impact on the groundwater supply of the
arca.
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LOWER ALLEN TOWNSHIP,
Appellant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL V 1A
v.
: CNlL ACTION - LAW
ZONING HEARING BOARD OF
LOWER ALLEN TOWNSHIP,
Appellee
: NO, 05-1718
LOWER ALLEN TOWNSHIP'S MOTION
TO MAKE RULE ABSOLUTE
TO THE HONORABLE EDWARD E. GUIDO, JUDGE OF SAID COURT:
AND NOW, comes Lower Allen Township, by and through its attorneys,
Wickersham, Knauss & Erb, P.c., to file the within Motion to Make Rule Absolute in
thereof avers:
etzger,
upport
1. On April 6, 2005, undersigned counsel filed a Petition to Stay Action Upon
Decision of the Zoning Hearing Board of Lower Allen Township in that Board's docket umber
2005-02.
2. On April 7, 2005, this Court issued a Rule to Show Cause why such stay hould
not be granted, said Rule to be returnable ten (10) days after service, A true and correct c pyof
the Rule to Show Cause is attached as Exhibit "A",
3. This Court served the Rule to Show Cause on all interested parti s on
April 8, 2005.
4, No response to the Rule to Show Cause has been filed,
5, Lower Allen Township respectfully requests this Honorable Court to Make
Absolute the Rules signed on April 7, 2005.
326086-1
,
WHEREFORE, Lower Allen Township, requests this Honorable Court stay an action
upon the decision of the Zoning Hearing Board of Lower Allen Township, docket umber
2005-02,
Respectfully submitted,
METZGER, WICKERSHAM, KNAUSS & ERB, p,
Q//~=/
Date: Aprill'Z..., 2005
Steven p, Miner, Esquire
Attorney LD. No, 38901
David H. Martineau, Esquire
Attorney LD, No, 84127
3211 North Front Street
P. 0, Box 5300
Harrisburg, PAl 711 0-0300
(717)238-8187
Attorneys for Appellant / Moveant
326086-1
VERIFICATION
I, David H. Martineau, Esquire, do hereby verify that the facts set forth in the fo egoing
Motion to Make Rule Absolute are true and correct to the best of my personal knowl dge or
information and belief. 1 understand that false statements herein are made subj ect to the
penalties of 18 Pa.C,S. 94904, relating to unsworn falsification to authorities.
Date: April Z2. , 2005
..I2// ~
,.)
David H, Martineau
326086,/
,
,
CERTIFICATE OF SERVICE
I, David H, Martineau, Esquire, of the law firm of Metzger, Wickersham, auss
& Erb, P,C., hereby certify that 1 have this 2Z..4Jay of April, 2005, served a true an
copy of the herein Motion to Make Rule Absolute with reference to the foregoing action first-
class mail, postage prepaid on the following:
ZONING HEARING BOARD OF LOWER ALLEN TOWNSHIP
1993 Hummel Avenue
Camp Hill, P A 17011
DENNIS 1. SHATTO, ESQUIRE
Cleckner & Fearen
119 Locust Street
P.O, Box 11847
Harrisburg, P A 171 08-1847
CHARLES E, ZALESKI, ESQUIRE
Reager & Adler, P ,C,
2331 Market Street
Camp Hill, PA 17011
TIM WAKEFIELD
2656 Walnut Street
Harrisburg, PAl 71 OJ
LOWER ALLEN TOWNSHIP
1993 Hummel Avenue
Camp Hill, PA 17011
Attn: Raymond E, Rhodes, Manager
;; .2//~~(
David H. Martineau
,
-~
326086,/
~
:
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--------
LOWER ALLEN TOWNSHIP
IN THE COURT OF COMIvfON PLEAS OF
CUMBERLAND COUNTY, PENNSYL V
V.
ZONING HEARING BOARD OF : NO, 2005-1718 CIVIL TERM
LOWER ALLEN TOWNSHIP
ORDER OF COURT
AND NOW, this 7m day of APRIL, 2005, a Rule is issued upon Respondent an
any interested party to Show Cause why the Petition to Stay should not be granted.
Rule returnable ten (10) days after service,
Edward E. Guido, J,
Dennis Shatto, Esquire
Steven p, Miner, Esquire
Timothy Wakefield
2656 Walnut Street
Harrisburg, Pa, 17101
Bernard Draisey
Esther Draisey
1552 Main Street
Lisburn, Pa. 17055
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RECEIVED APR 2 8 Z005
V
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,LOWER ALLEN TOWNSHIP,
. Appellant
: IN THE COURT OF COMIvfON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
: No,D5""-n~f2005
ZONING HEARING BOARD OF
LOWER ALLEN TOWNSHIP,
I Appellee
I
ORDER
)&J\-I. L~ .'1
AND NOW, this _ day of ~
, 2005, it is hereby ORDERED that:
1. This Court's Rule to Show Cause, dated April 7, 2005 is made absolute; and
2. The Decision of the Zoning Hearing Board of Lower Allen Township of March
17,2005, Zoning Hearing Board Docket No, 2005-02, is hereby stayed pending the outcome of
his appeal.
BY THE COU~~
(~
J.
c:
~nis Shatto, Esquire, 119 Locust Street, P,O, Box 11847, Harrisburg, PA 17108-1847
~ven p, Miner, Esquire, p, 0, Box 5300, Harrisburg, PA 17110-0300
~othy Wakefield, 2656 Walnut Street, Harrisburg, PA 17101
,::..eharles E, Zaleski, Esquire, 2331 Market Street, Camp Hill, PA 17011
326086,/
61 :6 H\! 2- A ~TI~ SOOZ
Atf\flO\jUH10dd 3Hl :10
,lJU:!O-O,JlH
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RECEIVED APR 2 8 Z005
V
,
LOWER ALLEN TOWNSHIP,
Appellant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CNIL ACTION - LAW
; NO.OS'-(f~f2005
ZONING HEARING BOARD OF
LOWER ALLEN TOWNSHIP,
Appellee
ORDER
AND NOW, this /&~ay of ~
,2005, it is hereby ORDERED that:
1. This Court's Rule to Show Cause, dated April 7, 2005 is made absolute; and
2, The Decision ofthe Zoning Hearing Board of Lower Allen Township of March
17,2005, Zoning Hearing Board Docket No. 2005-02, is hereby stayed pending the outcome of
his appeal.
-.--
BX THE COURT~
(~
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c:
~nis Shatto, Esquire, 119 Locust Street, P,O, Box 11847, Harrisburg, PA 17108-1847
~ven P. Miner, Esquire, p, 0, Box 5300, Harrisburg, P A 17110-0300
~othy Wakefield, 2656 Walnut Street, Harrisburg, P A 17101
~harles E, Zaleski, Esquire, 2331 Market Street, Camp Hill, PA 17011
326086~J
AF<nc)-~:
61 :6 \,!\! Z- )'~Il SOOZ
Ab'\1'10iCHJ.CtJd 3Hl :10
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j,,k'=, - ~ 1,:1
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted ill duplicate)
TO THE PROTHONOTARY/OF CUMBERLAND COUNTY:
Please list the within matter for the next:
[ ] Pre-Trial Argument Court
[X] Argument Court
----------------------------------------------------------------------
LOWER ALLEN TOWNSHIP,
Appellant
: IN THE COURT OF COMIvfON PLEAS
: CUMBERLAND COUNTY, PENNSYL V ANlA
v.
: CIVIL ACTION - LAW
ZONING HEARING BOARD OF
LOWER ALLEN TOWNSHIP,
Appellee
: NO, 05-1718
I. State matter to be argued (i.e., plaintiffs motion for new trial,
defendant's demurrer to compliant, etc.):
Appeal from determination of Zoning Hearing Board of Lower Allen Township
2, Identify counsel who will argue case:
(a) for Appellant: David H. Martineau, Esquire
Metzger, Wickersham, Knauss & Erb, p,c.
3211 North Front Street, P,O. Box 5300
Harrisburg, PA 17110-0300
(b) for Appellee: Dennis J, Shatto, Esquire
Cleckner & Fearen
119 Locust Street
P,O. Box 11847
Harrisburg, PA 17108-1847
(c) for Property Owner: Charles E. Zaleski, Esquire
Reager & Adler, r.c,
2331 Market Street
Camp Hill, PA 17011
331385-1
3, I will notify all parties in writing within two days that this case has been listed for
argument.
Certificate of Service is Attached
4, Argument Court Date: August 24, 2005
Respectfully submitted,
METZGER, WICKERSHAM, KNAUSS & ERB, P,C,
Date: July L, 2005
....D.--/ ,,#:56--:>
Steven P. Miner, Esquin:
Attorney J.D. No, 38901
David H. Martineau, Esquire
Attorney J.D. No, 84127
3211 North Front Street
p, 0, Box 5300
Harrisburg, P A 1711 0-0300
(717)238-8187
Attorneys for Appellant
331385.1
CERTIFICATE OF SERVICE
I, David H. Martineau, Esquire, of the law finn of Metzger, Wickersham, Knauss
& Erb, P.C" hereby certify that I have this 9J... day of July, 2005, served a true and exact copy
of the herein Praecipe for Listing Case for Arguement with reference to the foregoing action by
first-class mail, postage prepaid on the following:
ZONING HEARING BOARD OF LOWER ALLEN TOWNSHIP
1993 Hummel Avenue
Camp Hill, P A 17011
DENNIS J. SHATTO, ESQUIRE
Cleckner & Fearen
119 Locust Street
P.O. Box 11847
Harrisburg, PA 17108-1847
CHARLES E. ZALESKI, ESQUIRE
Reager & Adler, P .C.
2331 Market Street
Camp Hill, PA 17011
TIM WAKEFIELD
2656 Walnut Street
Harrisburg, P A 17101
LOWER ALLEN TOWNSHIP
1993 Hummel Avenue
Camp Hill, P A 17011
Attn: Raymond E. Rhodes, Manager
~--/jf'.#'/~ ~
David H. Martineau
331385.1
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LOWER ALLEN TOWNSHIP,
APPELLANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
ZONING HEARING BOARD OF
LOWER ALLEN TOWNSHIP,
APPELLEE
V.
BERNARD L. DRAISEY AND
ESTHER E, DRAISEY,
INTERVENORS
05-1718 CIVIL TERM
IN RE: APPEAL FROM THE GRANT OF A VARIANCE
BEFORE BAYLEY. J. AND GUIDO. J.
ORDER OF COURT
AND NOW, this
,V\
.
day of November, 2005, the grant of a variance for
the property at 1552 Main Street, Lower Allen Township, Cumberland C~ty, IS REVERSED.
By the <;oufC 2 /':-/ :/
:' " ~
///
/'
/
)avid H, Martineau, Esquire
321 North Front Street
P,O. Box 5300
Harrisburg, PA 17110-0300
For Lower Allen Township \
A
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ZDOS NO'! \ l, Fh \: 02
CU;,.::- 1/.1Ti
-----------
05-1718 CIVIL TERM
! ,Dennis J. Shatto, Esquire
v 119 Locust Street
P.O. Box 11847
Harrisburg, PA 17108-1847
For the Zoning Hearing Board
Linus E. Fenicle, Esquire
2331 Market Street
Camp Hill, PA 17011
For Bernard L. Draisey and Esther E. Draisey
:sal
-2-
LOWER ALLEN TOWNSHIP,
APPELLANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
ZONING HEARING BOARD OF
LOWER ALLEN TOWNSHIP,
APPELLEE
V.
BERNARD L. DRAISEY AND
ESTHER E. DRAISEY,
INTERVENORS
05-1718 CIVIL TERM
IN RE: APPEAL FROM THE GRANT OF A VARIANCE
BEFORE BAYLEY, J. AND GUIDO, J.
OPINION AND ORDER OF COURT
Bayley, J., November 14, 2005:--
Intervenors, Bernard L. Draisey and Esther E. Draisey, are the owners of 1552
Main Street in the village of Lisburn, Lower Allen Township, Cumberland County. The
property is zoned R-1 under the Lower Allen Township Zoning Ordinance. In an R-1
zone, density on a property with an on lot water supply and/or sewage disposal system
is restricted to one residential dwelling per gross acre.' Intervenors have an on lot well.'
The property is .7 acres, with frontage of 186.4 feet on Main Street, and depths of 125
feet along the eastern boundary and 178 feet along the western boundary. There is a
, Section 222-14(B)(1).
, Their property is served by a public sewer.
05-1718 CIVIL TERM
dwelling house, block garage and other outbuildings located on the eastern side of the
property. The current use of the property is a legal non-conforming use.
A variance was sought to subdivide the property into two lots, one .3 acres and
the other .4 acres. The existing improvements would be on the .3 acre lot. Another
residence would be constructed on the .4 acre lot. The application was heard by a
hearing officer of the Lower Allen Township Zoning Board, who granted the variance,
finding:
3. The Applicant has requested a variance because both proposed lots
will be less than one acre of area.
4. The unusual configuration of the subject property and the location of
the improvements create an unnecessary hardship.
5. A variance is necessary to enable the reasonable development of
subject property.
6. The unnecessary hardship has not been created by the Applicant.
7. The requested variance will not alter the essential character of the
district in which the property is located, nor substantially or permanently
impair the appropriate use or development of adjacent property, nor be
detrimental to the public welfare.
8. The requested variance will represent the minimum variance to afford
relief.
9. The Zoning Hearing Board is authorized to attach reasonable
conditions and safeguards to the granting of a variance.
Lower Allen Township filed the within appeal. Having not taken additional
evidence, our scope of review is whether there was an error of law or an abuse of
discretion in the grant of the variance. See Great Valley School District v. Zoning
Hearing Board of East Whiteland Township, 863 A.2d 74 (Pa. Commw. 2004). An
abuse of discretion is where findings are not supported by substantial evidence. (d.
Substantial evidence is such relevant evidence as a reasonable mind might accept as
-2-
05-1718 CIVIL TERM
adequate to support a conclusion. Id.
Under the Municipalities Planning Code at 53 P.S. Section 1091 0.2(a), and the
Lower Allen Township Zoning Ordinance at Section 220-223(C), the requirements for
the grant of a variance are:
(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 such 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 that 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
substantially 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. In granting any variance, the Zoning Hearing
Board may attach such reasonable conditions and safeguards as it may
deem necessary to implement the purpose of this chapter.
Lower Allen Township maintains, inter alia, that there are no unique physical
characteristics or conditions peculiar to the property imposing unnecessary hardship on
the owners that warrants the grant of the variance. We agree. The variance as granted
would allow for another non-conforming use on a .4 acre tract, and would make the
-3-
05-1718 CIVIL TERM
remaining use on the .3 acre tract even less conforming to the one acre requirement in
the Zoning Ordinance. In Klanke v. Zoning Hearing Board of Adjustment of the City
of Pittsburgh, 83 Pa. Commw. 441 (1984), an applicant sought to use a property as a
three family dwelling. A zoning ordinance allowed for only a two family dwelling. The
Commonwealth Court concluded that since the structure could be legally used as a two
family dwelling, the applicant had not met a burden of proving unnecessary hardship,
based on the physical characteristics of the property, of not being able to use it as a
three family dwelling. In the present case, the residential use of the property is a legal
non-conforming use. There is no unnecessary hardship created because another
residence cannot be constructed on the property.
The Zoning Hearing Board, citing Hertzberg v. Zoning Board of Adjustment of
the City of Pittsburgh, 721 A.2d 43 (pa. 1998), in which the Supreme Court of
Pennsylvania stated that ". . . [t]he quantum of proof required to establish unnecessary
hardship is indeed lesser when a dimensional variance, as opposed to a use variance,
is sought," suggests that unnecessary hardship has somehow still been proven under
this reduced burden of proof. Hertzberg, however, is not applicable because here the
variance sought is for relief from a prohibited use of the property and not from a
dimensional requirement. Contrary to the finding of the hearing officer, the irregular
configuration of the property and the location of the improvements do not create an
unnecessary hardship because the lot itself is not large enough to allow two residences
on the property. Accordingly, we conclude that the finding of the Zoning Hearing Officer
-4-
05-1718 CIVIL TERM
that "[T]he unusual configuration of the subject property and the location of the
improvements create an unnecessary hardship," is not supported by the substantial
evidence, and that it was an error of law to grant the variance. Accordingly, the
following order is entered.'
ORDER OF COURT
AND NOW, this
I'"
.
day of November, 2005, the grant of a variance for
the property at 1552 Main Street, Lower Allen Township, Cumberland County, IS REVERSED.
By the Court,.
.V/
./ ~ /'"
~~1
\
David H. Martineau, Esquire
321 North Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
For Lower Allen Township
Dennis J. Shatto, Esquire
119 Locust Street
P.O. Box 11847
Harrisburg, PA 17108-1847
For the Zoning Hearing Board
3 This resolution makes it unnecessary to address the other issues raised in this appeal
by Lower Allen Township.
-5-
05-1718 CIVIL TERM
Linus E. Fenicle, Esquire
2331 Market Street
Camp Hill, PA 17011
For Bernard L. Draisey and Esther E. Draisey
:sal
-6-