HomeMy WebLinkAbout05-4412
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
2005 - t.f '11 L.- ~.J .aJV.-..-
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP,
Appellant
v.
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP,
Appellee
CIVIL ACTION - LAW
v.
ENOLA CONTRUCTIONS COMPANY, :
Appellee
NOTICE OF APPEAL
AND NOW, this 26th day of August 2005, the SUPERVISORS OF DICKINSON
TOWNSHIP, come by their solicitors, Irwin & McKnight, and make the following appeal from
the Decision dated July 29, 2005 of the ZONING HEARING BOARD OF DICKINSON
TOWNSHIP as follows:
1.
The Appellant is the Board of Supervisors of Dickinson Township, a Second Class
Township at 219 Mountain View Road, Mount Holly Springs, Pennsylvania 17065.
2.
The Appellee is the Zoning Hearing Board of Dickinson Township with its mailing
address of219 Mountain View Road, Mount Holly Springs, Pennsylvania 17065.
3.
The Appellee is also Enola Construction Company with an address of 608 Alexander
Spring Road, Carlisle, Pennsylvania 17013.
4.
In August of 1994, the Appellee, Enola Construction Company, filed for and received a
Special Exception from the Dickinson Township Zoning Hearing Board for the construction of
office buildings in the Agricultura1lResidential District of Dickinson Township. A copy of the
Decision dated August 23, 1994, is attached hereto and marked as Exhibit "A".
5.
In May of 2005, Appellee, Enola Construction Company, sought an interpretation of the
Special Exception granted on August 23, 1994, in order to place APR Distribution, which is a
plumbing, heating and air conditioning supply house at 8 Kuhn Drive, located within the
MDR-O District of Dickinson Township.
6.
The Zoning Officer, Jonathan E. W. Reisinger, issued an interpretation by letter dated
May 6, 2005, denying the proposed use. A copy of the letter is attached hereto and marked as
Exhibit "B".
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7.
Following a hearing before the Zoning Hearing Board, a written decision was issued
dated July 29, 2005, at Docket Number 2005-0002, which granted with conditions the request of
Appellee, Enola Construction Company. A copy of the Decision is attached hereto and marked
as Exhibit "C".
8.
The Supervisors of Dickinson Township hereby appeal the written decision of the Zoning
Hearing Board of Dickinson Township for the following reasons:
A. The hearing before the Zoning Hearing Board proceeded without the Solicitor of
the Zoning Hearing Board being present. The Board needed legal guidance and should
have continued the hearing until its own legal counselor substitute counsel could have
been obtained.
B. The members of the Zoning Hearing Board never took a final vote at the public
hearing. A motion was made but no formal vote was taken by the Zoning Hearing Board.
C. The written decision by the Zoning Hearing Board of Dickinson Township dated
July 29, 2005, is not consistent with the terms of the Special Exception granted by the
Zoning Hearing Board of Dickinson Township in 1994.
D. The written decision by the Zoning Hearing Board of Dickinson Township is not
based on substantial evidence contained in the record of this case.
E. The decision of the Zoning Hearing Board of Dickinson Township dated July 29,
2005, should have upheld the written decision of the Zoning Officer made in May 6,
2005, and its failure to do so was arbitrary and an abuse of discretion.
3
9.
The Supervisors of Dickinson Township seek to have this case remanded to the Zoning
Hearing Board of Dickinson Township or in the alternative, reversed and the written decision
dated May 6, 2005, of Jonathan Reisinger, Zoning Officer, be adopted by the Court.
Respectfully submitted,
By:
Marcus
60 West Po ret Street
Carlisle, PAl
717-249-2353
Supreme Court I.D. No: 2547
Solicitor for Dickinson Township
IGHT 1/ ~
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Date: August 26, 2005
4
I IN RE: APPLICATION OF
. ENOLA CONSTRUCTION FOR
I[ A SPECIAL EXCEPTION
I
DICKINSON TOWNSHIP
ZONING HEARING BOARD
DECISION
FINDINGS OF FACT
1. Application was made by Enola Construction for a
special exception to construct office buildings in an area
currently zoned Agricultural/Residential District.
2. The Zoning Board, by special exception, may permit
professional office buildings in the area as requested by the
applicant.
3. The plan submitted by the applicant is conceptual in
nature and shows the intended special exception uses which may be
revised or refined in future subdivision/land development plans.
4. All: Notes Intended; Commercial/Office Uses; and Site
Data, included on the plan are incorporated herein.
5. The adjoining landowners were somewhat opposed to the
development scheme proposed by the developer. The adjoining
landowners had concerns in the following areas:
a) that tractor trailer traffic on Alexander Spring
Road, the access road to the site, should be
limited;
b) there be a minimum of 50% of the square footage of
the buildings be devoted to professional offices
such as medical, dental, legal and accounting;
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c) there be no retail business operations;
d)
there be no drive-injdrive-thru type of business
operation;
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e)
there be no storage or commercial activities
outside of the buildings;
f)
that no portion of any proposed building facing
the residences be concrete block or steel;
g)
there be no mobile home park or individual mobile
homes;
h)
that hours of operation of the business be
conducted between 7:00 a.m. - 6:00 p.m.;
i)
that the entrance/exit of the development not be
directly across from an existing residence;
j )
that screening to the proposed new ordinance
pursuant to the existing ordinances be placed;
and,
k) there be no strip mall if retail use is permitted.
1) that any single family residence in the buffer
zone have a minimum of 2,000 square feet and a two
car garage.
6) The developer responded to the concerns expressed by
the adjoining landowners as follows:
5 a) agreed that tractor trailer access be limited to
occasional drop shipments;
b) would not agree to 50% or more of total square
footage of the whole commercial development be
professional office;
c) would agree that the retail use be no more than
20% of the total square footage and that it be
generally associated with the primary use such as
a pharmacy in association with medical offices
although the retail uses can be combined in one or
more buildings;
d) this would be acceptable other than permitting a
drive-thru banking use;
e) agreed to;
f) agreed to;
g) agreed to;
h) not agreed to;
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i) agreed to;
j) generally acceptable except for the requirement of
a 50 foot vegetative buffer on the western side as
it would impact adversely on the number of parking
spaces;
k) agreed to; and,
1) agreed to.
7)
The developer also agreed that there would be no more
than a total of eight separate lots.
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CONCLUSIONS OF LAW
1) The Zoning Board has carefully considered the testimony
offered in this case and is of the opinion that the decision
reached will not have any detrimental bearing on the health,
safety or general welfare of the Township.
2) The Zoning Board is of the opinion that some relief as
requested by the applicant should be permitted pursuant to its
request for a special exception.
3) The Zoning Board has considered the testimony and the
exhibits in conjunction with the provisions of Sections 8.13 and
8.14 of the Ordinance.
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II
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ORDER
The Dickinson Township Zoning Hearing Board hereby grants as
a special exception for the area as set forth in Sketch Plan A-I,
Development Scheme dated May 23, 1994 as follows:
1) that tractor trailer traffic on Alexander Spring Road,
the access road to the site, should be limited to drop
shipments during business hours;
2) there be a minimum of 50% of the square footage of the
buildings in the commercial portion be devoted to
professional offices such as medical, dental, legal and
accounting;
3) that the retail use be no more than 20% of the total
building square footage of the commercial portion and
that it be generally associated with the primary use
such as pharmacy in association with medical offices
and the retail uses may be combined in one or more
buildings;
4) there be no drive-in/drive-thru type of business
operation except for drive-thru banking facilities;
5) there be no storage or commercial activities outside of
the buildings;
7) there be no mobile home park or individual mobile
homes;
6) that no portion of any proposed building facing the
residences be concrete block or steel;
8) that hours of operation of the business be conducted
between 7:00 a.m. - 9:00 p.m.;
9) that the entrance/exit of the development not be
directly across from an existing residence;
10) that screening as a vegatative buffer as set forth in
the proposed new ordinance be placed; however, on the
western side the 50 foot vegetative buffer zone may
include parking spaces for the commercial uses and on
the northern side the 50 foot vegetative buffer zone
shall include the 35 foot rear setback of the
residential lots.
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,I ATTEST
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that the Board notes that the developer has affirmed
that he will move forward to sell the lots along the
Alexander spring Road for residential purposes only in
a timely fashion and at fair market values.
DICKINSON TOWNSHIP
ZONING HEARING BOARD
~/)f}I C' cJft/Cly
CHAIRMAN, ZONING HEARING
Jh:; 0<1 Itft7ij
DATE
BOARD
DICKINSON TOWNSHIP SUPERVISORS
219 MOUNTAIN VIEW ROAD
MT. HOLLY SPRtNGS, PA 17065
(717) 486.7424
FAX (717) 486.8412
May 6, 2005
Enola Construction Company
Attn: Mr. Leonard Kuhn
608 Alexander Spring Road
Carlisle, P A 17013
Dear Mr. Kuhn,
Per our discussion regarding permitted uses of the properties at Alexander
Court, the following will summarize the interpretation held by the Dickinson
Township Zoning Office regarding the previously issued Zoning Hearing 'Board
Decision dated August 23, 1994.
Section 2 of the Order states that "there be a minimum of 50% of the square
footage of the buildings in the commercial portion be devoted to professional
offices such as medical, dental, legal and accounting".
-"5'
Section 3 of the Order states "that the retail use be no more than 20% of the total
building square footage of the commercial portion and that it be generally
associated with the primary use such as pharmacy in association with the
medical offices and the retail uses may be combined in one or more buildings".
It is the interpretation of this office that any retail operations to be conducted at
Alexander Court must be in support of one of the primary uses, being medical,
dental, legal or accounting. After consideration of the request, we have arrived
at the conclusion that the occupancy of a plumbing supply store in the Alexander
Court Subdivision would not be in keeping with the uses approved by the
Zoning Hearing Board in 1994.
We are of the opinion that a plumbing supply store would be better suited to be
located in the Business-Recreational zone where it would be in compliance with
the retail operations aspect or in the Business-Industrial zone to be described as
warehousing, depending on the details of the operation.
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1.lri5 decision can be appealed by submitting an application for this case to be
reviewed by the Zoning Hearing Board. Applications are available at the
Township Building and should be submitted at your first opportunity.
Please feel free to calI 486-7424 should you have any further questions or which
to discuss this matter forward or stop by the Township Builcting should you
wish to initiate a Zoning Hearing Board Meeting.
Respectfully,
~~~'
Jonathan E. W. Reisinger
Zoning Officer/SEO
Dickinson Township
cc: file
ZHB Docket # 2005-0002
June 28, 2005
8 Kuhn Drive
Alexander Court Subdivision
Near the intersection of Alexander Springs Road and Allen Road
Explanation of Use
In early May, Leonard Kuhn, representing Enola Construction Company,
requested a Zoning interpretation as to whether or not a specific use would be
permitted in the Township's MDR-O District
The proposed use is a plumbing supply store that would be operated in a similar
fashion to a Napa Auto Parts Store, in that contractors would call and have
plumbing supplies delivered to the job site.
In an email from Dave Robinson, CFO of APR Supply Company to Kim Dunbar,
real estate agent, then forwarded to this office, the operation is described as
follows. "APR Supply Co. is primarily engaged in the wholesale distribution of
plumbing. heating. air conditioning. controls, refrigeration and industrial
supplies."
There is an existing building to house the operation.
This is the understanding of the Zoning Office - applicant will provide details
during the Hearing.
With this description in mind, please refer to the following letter for the rationale
by which the use was denied.
IN RE:
Enola Construction, Inc.
: DICKINSON TOWNSHIP
: ZONING HEARING BOARD
: Docket No. 2005-0002
FINDINGS OF FACT:
1. The matter came before the Zoning Hearing Board on an application to
interpret the Zoning Officer's decision to deny occupancy to APR Distribution which
desires to operate a plumbing, heating and air conditioning supply house, at 8 Kuhn
Drive, as a branch to their main distribution center in lebanon, Pennsylvania. The
location is zoned MDR-O and is subject to a special exception granted in August, 1994.
2. The APR representative testified that there would generally be no more
than one daily delivery by a 24 foot box truck between the hours of 5:00 p.m. to 7:00
p.m. This truck would be loaded at the distribution center in lebanon, Pennsylvania
and arriving at the aforesaid hours.
3. The business operation at the location would operate between the hours
of 7:30 a.m. to 5:00 p.m. It was anticipated that two employees would staff the location.
These employees would perform the majority of their work by receiving telephone calls
from contractors. The orders, in turn, from the contractors would generally be shipped
from the Lebanon, Pennsylvania distribution center directly to the customers business
location or job site.
4. In addition to the telephone orders they anticipated that approximately 30
to 50 customers would visit the location to pick up plumbing, heating and air
conditioning items at the location.
5. On an occasional basis, an emergency delivery from the location could be
made to a customer by a pick up truck that would be utilized by one of the employees at
the location.
6. There will be no outside storage at the location.
7. There would be no duct board fabrication at the location.
8. Refrigerant would be available at the location in a 30 pound sealed
canister. No sales would take place to any customer that did not have the proper state
and federal permits. There would be no Refrigerant processing done at the location.
9. The location would have a small forklift, electric or propane. If the forklift
were propane, the fuel would be stored inside the facility in a OSHA approved location.
10. There are currently 14 branch locations of the business. The business
has been developing smaller branch size locations and concentrating all of the storage
and delivery from the distribution center in Lebanon, Pennsylvania.
11. There would be a small sign without lighting that would probably be metal
with vinyl lettering. The sole purpose of the sign would be to identify the building as the
location of the branch operation.
12. There would be minimal outdoor security lighting which would be above
the entrances and directed downward.
13. There were several neighbors adjacent to the location who were
concerned about the business activity as well as the interpretation of the 1994 decision
by the Zoning Hearing Board in considering the uses that would be permitted at this
particular location and the surrounding locations.
ORDER
After hearing the Dickinson Township Zoning Hearing Board issues the following
decision and Order:
1. The determination by the Zoning Office is set aside. All prior provisions of
the 1994 Zoning Hearing Board Findings of Fact and Order are adopted and
incorporated herein.
2. In addition to the provisions of the 1994 Findings of Fact and Order, and
in relation to the use by APR Supply Company, the Board Orders that:
a. That there be no outside storage permitted at the location. One
dumpster shall be allowed.
b. That no duct fabrication or other fabrication is permitted at the
location.
c. That during business operations as well as during the unloading of
the delivery truck to the location, that the company utilize
equipment to minimize any sound traveling outside the building to
the lowest decibel level possible, to the neighboring residences.
d. That the business shall be permitted to have signage of 3' by 4',
and there be no lighting of the sign.
e. That lighting on the building for security purposes is permitted at
the entrances and exits, which lighting shall be downward directed
so as not to impact on the neighboring uses.
f. The size of the building shall not be increased.
g. The property shall be planted with lawn and shrubs and maintained
in a filting manner to be compatible with the adjoining residential
uses.
By the Board,
DATE:?~vtA C7~
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DICKINSON TOWNSHIP
ZONIN~ HEARING)'oARD
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BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP,
Appellant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
2005 -
v.
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP,
Appellee
CIVIL ACTION - LAW
v.
ENOLA CONTRUCTIONS COMPANY, :
Appellee
CERTIFICATE OF SERVICE
I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was
served upon the following by depositing a true and correct copy of the same in the United States
mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and
addressed as follows:
Dickinson Township Zoning Hearing Board
219 Mountain View Road
Mount Holly Springs, P A 17065
Dickinson Township Board of Supervisors
219 Mountain View Road
Mount Holly Springs, PA 17065
IRWIN & McKNIGHT
By: night, III, Esquire
et Street
Carlisle, PA 7013
(717) 249-2353
Supreme Court J.D. No. 25476
Date: August 26, 2005
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DICKINSON TOWNSHIP BOARD OF
SUPERVISORS
APPELLANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL V AN!A
Vs.
No.05-4412 CIVIL TERM
DICKINSON TOWNSHIP ZONING
HEARING BOARD
219 MOUNTAIN VIEW ROAD
CARLISLE, PA 17013
AND
ENOLA CONSTRUCTION COMPANY
608 ALEXANDER SPRING ROAD
CARLISLE, PA 17013
APPELLE
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
55.
COUNTY OF CUMBERLAND)
TO: THE ZONING HEARING BOARD OF DICKINSON TOWNSHIP AND ENOLA
CONSTRUCTION COMPANY
We, being willing for certain reasons, to have certified a certain action between
DICKINSON 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., this 26TH DAY OF AUGUST, 2005 {;'. ~.
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C RTIS R. LONG !J
Prothonotary
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BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP,
Appellant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
2005- 1,-/12..
L~J~
v.
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP,
Appellee
CIVIL ACTION - LAW
v.
ENOLA CONTRUCTIONS COMPANY, :
Appellee
AMENDED CERTIFICATE OF SERVICE
I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was
served upon the following by depositing a true and correct copy of the same in the United States
mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and
addressed as follows:
Dickinson Township Zoning Hearing Board
219 Mountain View Road
Mount Holly Springs, P A 17065
Dickinson Township Board of Supervisors
219 Mountain View Road
Mount Holly Springs, P A 17065
Enola Construction Company
608 Alexander Spring Road
Carlisle, PA 17013
IRWIN & McKNIGHT
By:
Date: August 26, 2005
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BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP,
Appellant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
2005-4412
v.
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP,
Appellee
CIVIL ACTION - LAW
v.
ENOLA CONSTRUCTION COMPANY, :
Appellee
RESPONSE TO NOTICE OF APPEAL
Appellee's, Enola Construction Company, answers the Notice of Appeal as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted in part. It is denied that the Special Exception was limited to "office
buildings".
5. Admitted.
6. Admitted.
7. Admitted.
8. A. There is no legal requirement that a Zoning Hearing Board conduct its
business only with its Solicitor present. It is not uncommon for municipal
entities to meet and conduct hearings in the absence of their legal counseL
Furthermore, the Dickinson Township Zoning Hearing Board announced at
the outset of the hearing that the Solicitor would not be in attendance, and it
elected to proceed with the hearing. No one in attendance at the hearing, and
no Board member, objected or suggested a continuance until the decision was
announced, and they were disappointed with the result. Additionally, the
Dickinson Township Board members were experienced in conducting
hearings and were the identical members who rendered a decision on this
property some eleven years earlier. At the conclusion of the hearing the
Board announced that its Solicitor would listen to the hearing tapes and assist
them in composing the written decision.
B. A vote was in fact taken at the conclusion of the proceeding. While it may not
be characterized as a "formal" vote, the exchange that occurred clearly
establishes that a decision was made. (NT, page 53):
"Mr. Wertime: David Wertime. Are you continuing this matter to another
date so that the final decision then will be made publicly?
Mr. LeFever: There was a motion made and passed tonight.
Chairman Eby: Right. The Motion was made and passed. He's
(Solicitor) just going to help us write those conditions, so they're-"
C. The statement that the decision of the Board is not consistent with it Special
Exception granted by the same members in 1994 is a conclusion unsupported
by anything cited in the record.
D. The assertion that the decision is not supported by substantial evidence is,
again, a conclusion without any supporting argument.
E. The statement that the decision is arbitrary and an abuse of discretion is,
likewise, not supported by citation to the record.
WHEREFORE, Appellee, Enola Construction Company, requests the Court dismiss the
within appeal.
Respectfully submitted,
SALZMANN HUGHES, P.C.
By:
(;4)
~
Donald E. LeFever, Esquire
95 Alexander Spring Road, Suite 3
Carlisle,PA 17013
(717) 249-6333
Supreme Court J.D. No: 06902
Date: September 13, 2005
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DICKINSON TOWNSHIP
BOARD OF SUPERVISORS
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NO. 05-4412 CIVIL TERM
DICKINSON TOWNSHIP
ZONING HEARING BOARD
219 MOUNTAIN VIEW ROAD
CARLISLE, PA 17013
AND
ENOLA CONSTRUCTION
COMPANY
608 ALEXANDER SPRING RD
CARLISLE, PA 17013
Appellee
CERTIFICATE OF SERVICE
I hereby certify that on Tuesday, September 13, 2005, I, Tina M. Ascani, of
O'Brien, Baric & Scherer, did serve a copy of the Record by first class U.S. mail,
postage prepaid, to the party listed below, as follows:
Dickinson Township Board of Supervisors
219 Mountain View Road
Mount Holly Springs, Pennsylvania 17065
Enola Construction Company
608 Alexander Spring Road
Carlisle, Pennsylvania 17013
(IfNI. Jr ,.Jr1~~
Tina M. Ascani, Secretary
f"-...."'i
Cc
DICKINSON TOWNSHIP
BOARD OF SUPERVISORS
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 05-4412 CIVIL TERM
DICKINSON TOWNSHIP
ZONING HEARING BOARD
219 MOUNTAIN VIEW ROAD
CARLISLE, PA 17013
AND
ENOLA CONSTRUCTION
COMPANY
608 ALEXANDER SPRING RD
CARLISLE, PA 17013
Appellee
RECORD INDEX
1. WRIT OF CERTIORARI
2. Notice of Appeal by the Board of Supervisors of Dickinson Township
3. Memorandum dated June 21, 2005
4. Proof of publication for meeting of June 28, 2005
5. Sign in sheet
6. Findings of fact and Order dated 7/29/05
7. Zoning Officer's interpretation dated may 6,2005
8. Zoning Hearing Application with copy of decision and order from
August 23, 1994
9. Transcript of testimony from June 28, 2005 hearing
I certify that this constitutes the record of the application of Enola Construction
Company, filed on or about May 31,2005.
,
~Cfj/LA-U
Robert L. O'Brien, Esquire
Solicitor for the Zoning Hearing Board
DICKINSON TOWNSHIP BOARD OF
SUPERVISORS
APPELLANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Vs.
No.05-4412 CIVIL TERM
DICKINSON TOWNSHIP ZONING
HEARING BOARD
219 MOUNTAIN VIEW ROAD
CARLISLE, P A 17013
AND
ENOLA CONSTRUCTION COMPANY
608 ALEXANDER SPRING ROAD
CARLISLE, PA 17013
APPELLE
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
SS.
COUNTY OF CUMBERLAND)
TO: THE ZONING HEARING BOARD OF DICKINSON TOWNSHIP AND ENOLA
CONSTRUCTION COMPANY
We, being willing for certain reasons, to have certified a certain action between
DICKINSON 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., this 26TH DAY OF AUGUST, 2005 (!~-1.A._
CURTIS R. Lo~-d
Prothonotary
LAW OFFICES
IRWIN & McKNIGHT
ROGER B. IRWIN
MARCUS A. McKNIGHT, III
DOUGLAS G. MILLER
MA'/THEW A. McKNIGHT
WEST POMFRET PROFESSIONAL BUILDING
60 WEST POMFRET STREET
CARLISLE, PENNSYLVANIA 17013-3222
(717) 249-2353
FAX (717) 249-6354
www.IMHLAW.COM
HAROLD S. IRWIN (J925~1977)
HAROLD S. IRWIN. JR. (1954-1986)
IRWIN, IRWIN & IRWIN (1956-1986)
IRWIN, IRWIN & McKNIGHT (1986-1994)
IRWIN, McKNIGHT & HUGHES (1994-2003)
IRWIN & McKNIGHT (2003- )
August 26, 2005
DICKINSON TOWNSHIP ZONING HEARING BOARD
219 MOUNTAIN VIEW ROAD
MOUNT HOLLY SPRINGS, PA 17065
RE: BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP v.
ZONING HEARING BOARD OF
DICKINSON TOWNSHP v.
ENOLA CONSTRUCTION COMPANY
2005-4412 CIVIL TERM
To Whom It May Concern:
Enclosed please find a copy of the Notice of Appeal for the above-captioned action,
which I have filed today.
Very truly yours,
IRWIN & McKNIGHT
7Jlcuuv-<J 0 71lC:~ia..-.t.f 2ZL
17'-" I
Marcus A. McKnight, III .~
sls
Enclosure
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
~~
200S -
t..j '-/ ( L
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP,
Appellant
v.
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP,
Appellee
CIVIL ACTION . LAW
v.
ENOLA CONTRUCTIONS COMPANY, :
Appellee
NOTICE OF APPEAL
AND NOW, this 26th day of August 2005, the SUPERVISORS OF DICKINSON
TOWNSHIP, come by their solicitors, Irwin & McKnight, and make the following appeal from
the Decision dated July 29, 2005 of the ZONING HEARING BOARD OF DICKINSON
TOWNSHIP as follows:
1.
The Appellant is the Board of Supervisors of Dickinson Township, a Second Class
Township at 219 Mountain View Road, Mount Holly Springs, Pennsylvania 17065.
2.
The Appellee is the Zoning Hearing Board of Dickinson Township with its mailing
address of219 Mountain View Road, Mount Holly Springs, Pennsylvania 17065.
f'MJE COPY FROM AECORO
III T '!lllilfl(l~'j wnernof, i hare unto see fIf/Ij 1\K~<1
,\1''(1 \M; !.l ,)! ~ Cool1l\t canlIla. ...
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3.
The Appellee is also Enola Construction Company with an address of 608 Alexander
Spring Road, Carlisle, Pennsylvania 17013.
4.
In August of 1994, the Appellee, Enola Construction Company, filed for and received a
Special Exception from the Dickinson Township Zoning Hearing Board for the construction of
office buildings in the AgriculturallResidential District of Dickinson Township. A copy of the
Decision dated August 23, 1994, is attached hereto and marked as Exhibit "A".
5.
In May of 2005, Appellee, Enola Construction Company, sought an interpretation of the
Special Exception granted on August 23, 1994, in order to place APR Distribution, which is a
plumbing, heating and air conditioning supply house at 8 Kuhn Drive, located within the
MDR-O District of Dickinson Township.
6.
The Zoning Officer, Jonathan E. W. Reisinger, issued an interpretation by letter dated
May 6, 2005, denying the proposed use. A copy of the letter is attached hereto and marked as
Exhibit "B".
2
7.
Following a hearing before the Zoning Hearing Board, a written decision was issued
dated July 29, 2005, at Docket Number 2005-0002, which granted with conditions the request of
Appellee, Enola Construction Company. A copy of the Decision is attached hereto and marked
as Exhibit "C".
8.
The Supervisors of Dickinson Township hereby appeal the written decision of the Zoning
Hearing Board of Dickinson Township for the following reasons:
A. The hearing before the Zoning Hearing Board proceeded without the Solicitor of
the Zoning Hearing Board being present. The Board needed legal guidance and should
have continued the hearing until its own legal counselor substitute counsel could have
been obtained.
B. The members of the Zoning Hearing Board never took a final vote at the public
hearing. A motion was made but no formal vote was taken by the Zoning Hearing Board.
C. The written decision by the Zoning Hearing Board of Dickinson Township dated
July 29, 2005, is not consistent with the terms of the Special Exception granted by the
Zoning Hearing Board of Dickinson Township in 1994.
D. The written decision by the Zoning Hearing Board of Dickinson Township is not
based on substantial evidence contained in the record of this case.
E. The decision of the Zoning Hearing Board of Dickinson Township dated July 29,
2005, should have upheld the written decision of the Zoning Officer made in May 6,
2005, and its failure to do so was arbitrary and an abuse of discretion.
3
9.
The Supervisors of Dickinson Township seek to have this case remanded to the Zoning
Hearing Board of Dickinson Township or in the alternative, reversed and the written decision
dated May 6, 2005, of Jonathan Reisinger, Zoning Officer, be adopted by the Court.
Respectful! y submitted,
IRWIN & ~ IGH~.~.
/. /----
/ ~' /IY_
By:~ I
Marcus . McKnight, III, E
60 West poihti-et Street
Carlisle, PAlm 13
"'~ ~
717-249-2353,,_
Supreme Court LD. No: 2547
Solicitor for Dickinson Township
Date: August 26, 2005
4
,
IN RE: APPLICATION OF
I' ENOLA CONSTRUCTION FOR
I A SPECIAL EXCEPTION
I
I
DICKINSON TOWNSHIP
ZONING HEARING BOARD
DECISION
FINDINGS OF FACT
1. Application was made by Enola Construction for a
special exception to construct office buildings in an area
currently zoned Agricultural/Residential District.
2. The Zoning Board, by special exception, may permit
professional office buildings in the area as requested by the
applicant.
3. The plan submitted by the applicant is conceptual in
nature and shows the intended special exception uses which may be
revised or refined in future sUbdivision/land development plans.
4. All: Notes Intended; Commercial/Office Uses; and Site
Data, included on the plan are incorporated herein.
5. The adjoining landowners were somewhat opposed to the
development scheme proposed by the developer. The adjoining
landowners had concerns in the following areas:
a) that tractor trailer traffic on Alexander spring
Road, the access road to the site, should be
limited;
b) there be a minimum of 50% of the square footage of
the buildings be devoted to professional offices
such as medical, dental, legal and accounting;
c) there be no retail business operations;
d)
there be no drive-in/drive-thru type of business
operation;
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e) there be no storage or commercial activities
outside of the buildings;
f)
that no portion of any proposed building facing
the residences be concrete block or steel;
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g)
there be no mobile home park or individual mobile
homes;
h) that hours of operation of the business be
conducted between 7:00 a.m. - 6:00 p.m.;
i) that the entrance/exit of the development not be
directly across from an existing residence;
j) that screening to the proposed new ordinance
pursuant to the existing ordinances be placed;
and,
k) there be no strip mall if retail use is permitted.
1) that any single family residence in the buffer
zone have a minimum of 2,000 square feet and a two
car garage.
6) The developer responded to the concerns expressed by
the adjoining landowners as follows:
5 a) agreed that tractor trailer access be limited to
occasional drop shipments;
b) would not agree to 50% or more of total square
footage of the whole commercial development be
professional office;
c) would agree that the retail use be no more than
20% of the total square footage and that it be
generally associated with the primary use such as
a pharmacy in association with medical offices
although the retail uses can be combined in one or
more buildings;
d) this would be acceptable other than permitting a
drive-thru banking use;
e) agreed to;
f) agreed to;
g) agreed to;
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h) not agreed to;
i) agreed to;
j) generally acceptable except for the requirement of
a 50 foot vegetative buffer on the western side as
it would impact adversely on the number of parking
spaces;
k) agreed to; and,
1) agreed to.
7) The developer also agreed that there would be no more
than a total of eight separate lots.
CONCLUSIONS OF LAW
1) The Zoning Board has carefully considered the testimony
offered in this case and is of the opinion that the decision
reached will not have any detrimental bearing on the health,
safety or general welfare of the Township.
2) The Zoning Board is of the opinion that some relief as
requested by the applicant should be permitted pursuant to its
request for a special exception.
3) The Zoning Board has considered the testimony and the
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exhibits in conjunction with the provisions of sections 8.13 and
8.14 of the Ordinance.
ORDER
The Dickinson Township Zoning Hearing Board hereby grants as
a special exception for the area as set forth in Sketch Plan A-I,
Development Scheme dated May 23, 1994 as follows:
1) that tractor trailer traffic on Alexander Spring Road,
the access road to the site, should be limited to drop
shipments during business hours;
2) there be a minimum of 50% of the square footage of the
buildings in the commercial portion be devoted to
professional offices such as medical, dental, legal and
accounting;
3) that the retail use be no more than 20% of the total
building square footage of the commercial portion and
that it be generally associated with the primary use
such as pharmacy in association with medical offices
and the retail uses may be combined in one or more
buildings;
4) there be no drive-in/drive-thru type of business
operation except for drive-thru banking facilities;
5) there be no storage or commercial activities outside of
the buildings;
6) that no portion of any proposed building facing the
residences be concrete block or steel;
7) there be no mobile home park or individual mobile
homes;
8) that hours of operation of the business be conducted
between 7:00 a.m. - 9:00 p.m.;
9) that the entrance/exit of the development not be
directly across from an existing residence;
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10) that screening as a vegatative buffer as set forth in
the proposed new ordinance be placed; however, on the
western side the 50 foot vegetative buffer zone may
include parking spaces for the commercial uses and on
the northern side the 50 foot vegetative buffer zone
shall include the 35 foot rear setback of the
residential lots.
I
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11) that the Board notes that the developer has affirmed
that he will move forward to sell the lots along the
Alexander spring Road for residential purposes only in
a timely fashion and at fair market values.
ATTEST
kid 'f-:2G;-'1<'(
G~ dd~
/
DICKINSON TOWNSHIP
ZONING HEARING BOARD
~/)I/ t!' ~~
CHAIRMAN, ZONING HEARING BOARD
Jhj c7i NL}Lj
DATE
DICKINSON TOWNSHIP SUPERVISORS
219 MOUNTAIN VIEW ROAD
MT. HOLLY SPRINGS, PA 17065
(717) 486.7424
FAX (717) 486-8412
May 6, 2005
Enola Construction Company
Attn: Mr. Leonard Kuhn
608 Alexander Spring Road
Carlisle, P A 17013
Dear Mr. Kuhn,
Per our discussion regarding permitted uses of the properties at Alexander
Court, the following will summarize the interpretation held by the Dickinson
Township Zoning Office regarding the previously issued Zoning Hearing Board
Decision dated August 23, 1994.
Section 2 of the Order states that "there be a minimum of 50% of the square
footage of the buildings in the commercial portion be devoted to professional
offices such as medical, dental, legal and accounting".
-=5'
Section 3 of the Order states "that the retail use be no more than 20% of the total
building square footage of the commercial portion and that it be generally
associated with the primary use such as pharmacy in association with the
medical offices and the retail uses may be combined in one or more buildings".
It is the interpretation of this office that any retail operations to be conducted at
Alexander Court must be in support of one of the primary uses, being meclical,
dental, legal or accounting. After consideration of the request, we have arrived
at the conclusion that the occupancy of a plumbing supply store in the Alexander
Court Subdivision would not be in keeping with the uses approved by the
Zoning Hearing Board in 1994.
We are of the opinion that a plumbing supply store would be better suited to be
located in the Business-Recreational zone where it would be in compliance with
the retail operations aspect or in the Business-Industrial zone to be described as
warehousing, depending on the details of the operation.
f
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This decision can be appealed by submitting an application for this case to be
reviewed by the Zoning Hearing Board. Applications are available at the
Township Building and should be submitted at your first opportunity.
Please feel free to call 486-7424 should you have any further questions or which
to discuss this matter forward or stop by the Township Building should you
wish to initiate a Zoning Hearing Board Meeting.
Respectfully,
~WJ<'
Jonathan E. W. Reisinger
Zoning Officer/SEO
Dickinson Tovmship
cc: file
ZHB Docket # 2005-0002
June 28, 2005
8 Kuhn Drive
Alexander Court Subdivision
Near the intersection of Alexander Springs Road and Allen Road
Explanation of Use
In early May, Leonard Kuhn, representing Enola Construction Company,
requested a Zoning interpretation as to whether or not a specific use would be
permitted in the Township's MDR-O District
The proposed use is a plumbing supply store that would be operated in a similar
fashion to a Napa Auto Parts Store, in that contractors would call and have
plumbing supplies delivered to the job site.
In an email from Dave Robinson, CFO of APR Supply Company to Kim Dunbar,
real estate agent, then forwarded to this office, the operation is described as
follows. "APR Supply Co. is primarily engaged in the wholesale distribution of
plumbing, heating, air conditioning, controls, refrigeration and industrial
supplies."
There is an existing building to house the operation.
This is the understanding of the Zoning Office - applicant will provide details
during the Hearing.
With this description in mind, please refer to the following letter for the rationale
by which the use was denied.
IN RE:
Enola Construction, Inc.
: DICKINSON TOWNSHIP
: ZONING HEARING BOARD
: Docket No. 2005-0002
FINDINGS OF FACT:
1. The matter came before the Zoning Hearing Board on an application to
interpret the Zoning Officer's decision to deny occupancy to APR Distribution which
desires to operate a plumbing, heating and air conditioning supply house, at 8 Kuhn
Drive, as a branch to their main distribution center in Lebanon, Pennsylvania. The
location is zoned MDR-O and is subject to a special exception granted in August, 1994.
2. The APR representative testified that there would generally be no more
than one daily delivery by a 24 foot box truck between the hours of 5:00 p.m. to 7:00
p.m. This truck would be loaded at the distribution center in Lebanon, Pennsylvania
and arriving at the aforesaid hours.
3. The business operation at the location would operate between the hours
of 7:30 a.m. to 5:00 p.m. It was anticipated that two employees would staff the location.
These employees would perform the majority of their work by receiving telephone calls
from contractors. The orders, in turn, from the contractors would generally be shipped
from the Lebanon, Pennsylvania distribution center directly to the customers business
location or job site.
4. In addition to the telephone orders they anticipated that approximately 30
to 50 customers would visit the location to pick up plumbing, heating and air
conditioning items at the location.
5. On an occasional basis, an emergency delivery from the location could be
made to a customer by a pick up truck that would be utilized by one of the employees at
the location.
6. There will be no outside storage at the location.
7. There would be no duct board fabrication at the location.
8. Refrigerant would be available at the location in a 30 pound sealed
canister. No sales would take place to any customer that did not have the proper state
and federal permits. There would be no Refrigerant processing done at the location.
9. The location would have a small forklift, electric or propane. If the forklift
were propane, the fuel would be stored inside the facility in a OSHA approved location.
10. There are currently 14 branch locations of the business. The business
has been developing smaller branch size locations and concentrating all of the storage
and delivery from the distribution center in Lebanon, Pennsylvania.
11. There would be a small sign without lighting that would probably be metal
with vinyl lettering. The sole purpose of the sign would be to identify the building as the
location of the branch operation.
12. There would be minimal outdoor security lighting which would be above
the entrances and directed downward.
13. There were several neighbors adjacent to the location who were
concerned about the business activity as well as the interpretation of the 1994 decision
by the Zoning Hearing Board in considering the uses that would be permitted at this
particular location and the surrounding locations.
ORDER
After hearing the Dickinson Township Zoning Hearing Board issues the following
decision and Order:
1. The determination by the Zoning Office is set aside. All prior provisions of
the 1994 Zoning Hearing Board Findings of Fact and Order are adopted and
incorporated herein.
2. In addition to the provisions of the 1994 Findings of Fact and Order, and
in relation to the use by APR Supply Company, the Board Orders that:
a. That there be no outside storage permitted at the location. One
dumpster shall be allowed.
b. That no duct fabrication or other fabrication is permitted at the
location.
c. That during business operations as well as during the unloading of
the delivery truck to the location, that the company utilize
equipment to minimize any sound traveling outside the building to
the lowest decibel level possible, to the neighboring residences.
d. That the business shall be permitted to have signage of 3' by 4',
and there be no lighting of the sign.
e. That lighting on the building for security purposes is permitted at
the entrances and exits, which lighting shall be downward directed
so as not to impact on the neighboring uses.
f. The size of the building shall not be increased.
g. The property shall be planted with lawn and shrubs and maintained
in a fitting manner to be compatible with the adjoining residential
uses.
By the Board,
DATE:/51J~ C7~
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rlo.d ir/clients/dickinson/enola2.dec
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP,
Appellant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
2005 -
v.
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP,
Appellee
CIVIL ACTION . LAW
v.
ENOLA CONTRUCTIONS COMPANY, :
Appellee
CERTIFICATE OF SERVICE
I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was
served upon the following by depositing a true and correct copy of the same in the United States
mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and
addressed as follows:
Dickinson Township Zoning Hearing Board
219 Mountain View Road
Mount Holly Springs, PA 17065
Dickinson Township Board of Supervisors
219 Mountain View Road
Mount Holly Springs, P A 17065
IRWIN & McKNIGHT
By: night, III, Esquire
m et Street
Carlisle, PA 7013
(717) 249-2353
Supreme Court J.D. No. 25476
Date: August 26, 2005
5
Dickinson Township
219 Mountain View Road
Mount Holly Springs, PA 17065
Telephone: (717) 486-7424
Fax: (717) 486-8412
Transmittal
Date: June 21, 2005
To: Dickinson Township Zoning Hearing Board and Solicitor
From: Dickinson Township Zoning Office
Subject: June 28th ZHB Meeting
cc: Attorney for Applicant
Gentlemen of the Board,
This month's ZHB meeting was scheduled to appeal a decision made by the Zoning Officer.
Attached, please find the following pages that will familiarize you with this case:
1. Explanation of request as described to Zoning Office.
2. Copy ofletter sent to Applicant denying Zoning Permit issuance.
And please find the following information regarding the 1994 ZHB decision to allow Alexander
Court Subdivision to be created as a Special Exception in the Agricultural-Residential District
(now the MDR-O District):
I. Letter submitted to Township with 1994 ZHB application explaining request.
2. 1994 ZHB decision signed by Chairman Ronald E. Lowry.
3. [Sketch plan of proposed subdivision dated 1994 will be available for viewing at the
meeting] .
Please contact this office at 486-7424 if anything is not included in the packet.
Respectfully, t ",' ~olt ~"lC.
~ ( J~I
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Robert N. Daniels
Assistant Zoning Officer
Dickinson Township
IGof.. (o""'l""l.~'l. $(1""10
$"",...\\ V'(.~I {\\.(o\~ C<M-trf4c.1w-S
~t)~~o ~t.~ ->VS'o
Zoning Hearing Board
Docket Number: ;l..OOS - OOO;t..
At Request Of: E'.,IOLA ~~t!"'-,,(\o.J (..1/).
Date Done
Notification of: ~
Applicant ---.2L
Neighbors ~
Solicitor ~ .....JL
ZHB --X-..
Secure Stenographer bfD L
Advertise in Sentinel ~A4 ~
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, It!
Post Property 6/1:5 -2L
.
Date of Hearing: ~/:<8 iDs
Date Neighbors Notified of Decision:
Date Sign Retrieved From Property:
Notes:
Zoning Hearing Board
Docket Number: ;..OOS - oo01t.
At Request Of: EtJOL." (~~f!-"f-"('ooJ Go.
Date Done
Notification of:
Applicant =*= -2L
Neighbors ---X-
Solicitor *= ~
ZHB -'1L
Secure Stenographer milD 1-
I
Advertise in Sentinel "Ii" ~
If ~
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Post Property 6/1:3 ~
,
Date of Hearing: 6/:<8/65
Date Neighbors Notified of De<4ion: g Ie.., los (... Au.. u:-,oe.-m. I'cf ~)
Date Sign Retrieved From Property: 0/4,/0 S'
Notes:
DICKINSON TOWNSHIP ZONING HEARING BOARD
NOTICE
OF
HEARING
POSTED: June 13, 2005
The Dickinson Township Zoning Hearing Board will hold a Public Hearing:
June 28. 2005 at 7:00 P.M.
Dickinson Township Municipal Building
219 Mountain View Road, Mount Holly Springs, PA 17065.
PHONE: 717.486.7424.
Please call if you have any questions regarding:
Docket # Z - 20050002 At the request of: Enola Construction Co.
P.O. Box 121
Carlisle, PA 17013
Regarding: Aooeal of Zonina Officer's decision to deny oo:uoancv to a
olumbina suooly use. orooosed at 8 Kuhn Drive, located in the MDR-O district
which is currently zoned for orofl>C:c:ional offices. Aoolicant wishes to aooeal
denial and apolY for stated use.
All interested parties wishing to be heard are requ~ted to be present to
state their opinion if such an opinion should be heard.
~~I~:
Dickinson Town\hi~ Zoning Hearing Board
JONA'nIAN E. W. REISINGER, ZONING OFFICER
PROOF OF PUBLICATION
State of Pennsylvania, County of Cumberland
Tanuny Shoemaker, Classified Advel"tising Manager, of The Sentinel. of the County
and State aforesaid, being duly sworn, deposes and says that THE SENTINEL, a
newspaper of general circulation in the Borough of Carlisle, County and State
afol"esaid, was established December 13th, 1881, since which date THE SENTINEL has
been l"egularly issued in said County, and that the printed notice or publication
attached hereto is exactly the same as was printed and published in the regular editions
and issues of THE SENTINEL on the following day(s)
Tune 14, 19, 2005.
COPY OF NOTICE OF PUBLICATION
..,
Affiant further deposes that he/ she is not
interested in the subject matter of the
aforesaid notice or advertisement, and that
all allegations in the foregoing statement
as to time, place and character of
PUbHrnH~,l
J{)fiM .
Dickinson Town.hlD ~ Ht!t..dng Board
NOTICE OF HEARING
POSTED: June 10,2005
The Dickinson Township Zoning Hearing Board will
hold a Public Hearing:
.!YM 2I.JJ!!!I It 7,00 f.M.
Dickinson .Township Municipal Building
219 Mountain View Road.
Mount Holly Springs, PA 17065.
PHONE: 717.486.7424."Please call if you have any
questions regarding:
Docket.. Z- 20050002. thtt reqUl!st of:
Enola Construction Co.
P.o. Box 121
Carti.sle. PA 17013
Regarding: APPU12tZQD!ng ~~.mJ1@Dy
=llOO' l!> II p1Jmllling Il!PPIY -. p~",
~KllIl!l~~il1l!mMl!!l:Q_w!IIo!li>
~ ~!mprofessional~APpImao1
~t2i1PPn!.~arntapPlYf2r~!.lR.:.
~ AU interested parties wishing to be beard ere
1 requested to be preaent to.tate their opinion "such
8n opinion should be heard.
.- _,c. .,; Reiip6Clf\llly, ,.. .;'
Dlcldnaon Townahlp ZOning .....rtng Board
Jonathan E. W. Reisinger, Zoning Officer
Sworn to and subscribed before me this
22nd. day of June, 2005.
c~~~;R U~,C
Notary Pu 'c
My commission expires: q/!ot
COMMONWEALTh OF PENNSYLVANIA
I NoIariaI Seat
O1nstina L. Wolle. Nola!y Public
Carlisle Bora. ommaf\1 County
My Ccmnission Expires Sept 1. 2008
Member, Pennsylvania As~,ociation Of Notaries
Tammy,
Would you please run the attached ZHB Notice of Hearing on two dates:
The first needs to be this week, as soon as your 48 hour notice allows
(Wednesday the 8th?) the earlier the better and the second date is Sunday June
12th.
Please send proof of publication and bill to the address below.
Thanks,
Bob
Robert N. Daniels
Assistant Zoning Officer
Dickinson Township
~E-N'
6/C,
219 Mountain View Road
Mount Holly Springs, P A 17065
(717) 486-7424 telephone
(717) 486-8412 fax
dtzoningsupport@comcastnet
Tammy.
As discussed on the telephone, I would like to cancel the ZHB Notice of
Hearing advertisement which was to be included in Wednesday's or
Thursday's edition as well as Sunday June 12th's edition.
Thanks for taking care of it
Bob
Robert N. Daniels
Assistant Zoning Officer
Dickinson Township
219 Mountain View Road
Mount Holly Springs, P A 17065
(717) 486-7424 telephone
(717) 48Ml412 fax
dtzoningsupport@comcast.net
Bob Daniels
From:
Sent:
To:
Subject:
cdacres4 [cdacres4@yellowbananas.com]
Tuesday, June 07, 200512:27 PM
dtzoningsupporl@comcast.net
June 21 , 2005, ZH Board, 7 p..m. steno confinnation
Bob,
This note is to confirm that I will be the stenographer for the Tuesday June 21, 2005,
Zoning Hearing Board meeting, scheduled for 7:00 p.m., at the Dickinson Township Building.
Thank you,
Cheryl Farner Donovan
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1
DICKINSON TOWNSHIP ZONING HEARING BOARD
NOTICE
OF
HEARING
POSTED: June 6, 2005
The Dickinson Township Zoning Hearing Board will hold a Public Hearing:
June 21. 2005 at 7:00 P.M.
Dickinson Township Munidpal Building
219 Mountain View Road, Mount Holly Springs, PA 17065.
PHONE: 717.486.7424.
Please call if you have any questions regarding:
Docket # Z - 20050002 At the request of: Enola Construction Co.
P.O. Box 121
Carlisle, PA 17013
Regarding: Zonina aooeal to allow a olumbina suoolv buildina at 8 Kuhn Drive.
located In the MDR-O district which Is currentlv zoned for
orofessional offices.
All inte. tiled parties wishing to be heard are requested to be present to
state their opinion if such an opinion should be heard.
Respectfully,
Dickinson Township Zoning Hearing Board
JONAntAN E. W. REISINGER, ZONING OFFICER
DICKINSON TOWNSHIP
ZONING HEARING BOARD
SIGN IN SHEET
DATE DF MEETIND: .JUNE 28. zoes
PLEASE PRINT NAME
(<ltl""r
f2e~bOr.-
\)ArJ Y-1 p..t.,CJ?
IN RE:
Enola Construction, Inc.
: DICKINSON TOWNSHIP
: ZONING HEARING BOARD
: Docket No. 2005-0002
FINDINGS OF FACT:
1. The matter came before the Zoning Hearing Board on an application to
interpret the Zoning Officer's decision to deny occupancy to APR Distribution which
desires to operate a plumbing, heating and air conditioning supply house, at 8 Kuhn
Drive, as a branch to their main distribution center in Lebanon, Pennsylvania. The
location is zoned MDR-O and is subject to a special exception granted in August, 1994.
2. The APR representative testified that there would generally be no more
than one daily delivery by a 24 foot box truck between the hours of 5:00 p.m. to 7:00
p.m. This truck would be loaded at the distribution center in Lebanon, Pennsylvania
and arriving at the aforesaid hours.
3. The business operation at the location would operate between the hours
of 7:30 a.m. to 5:00 p.m. It was anticipated that two employees would staff the location.
These employees would perform the majority of their work by receiving telephone calls
from contractors. The orders, in turn, from the contractors would generally be shipped
from the Lebanon, Pennsylvania distribution center directly to the customers business
location or job site.
4. In addition to the telephone orders they anticipated that approximately 30
to 50 customers would visit the location to pick up plumbing, heating and air
conditioning items at the location.
5. On an occasional basis, an emergency delivery from the location could be
made to a customer by a pick up truck that would be utilized by one of the employees at
the location.
6. There will be no outside storage at the location.
7. There would be no duct board fabrication at the location.
8. Refrigerant would be available at the location in a 30 pound sealed
canister. No sales would take place to any customer that did not have the proper state
and federal permits. There would be no Refrigerant processing done at the location.
9. The location would have a small forklift, electric or propane. If the forklift
were propane, the fuel would be stored inside the facility in a OSHA approved location.
10. There are currently 14 branch locations of the business. The business
has been developing smaller branch size locations and concentrating all of the storage
and delivery from the distribution center in Lebanon, Pennsylvania.
11. There would be a small sign without lighting that would probably be metal
with vinyl lettering. The sole purpose of the sign would be to identify the building as the
location of the branch operation.
12. There would be minimal outdoor security lighting which would be above
the entrances and directed downward.
13. There were several neighbors adjacent to the location who were
concerned about the business activity as well as the interpretation of the 1994 decision
by the Zoning Hearing Board in considering the uses that would be permitted at this
particular location and the surrounding locations.
ORDER
After hearing the Dickinson Township Zoning Hearing Board issues the following
decision and Order:
1. The determination by the Zoning Office is set aside. All prior provisions of
the 1994 Zoning Hearing Board Findings of Fact and Order are adopted and
incorporated herein.
2. In addition to the provisions of the 1994 Findings of Fact and Order, and
in relation to the use by APR Supply Company, the Board Orders that:
a. That there be no outside storage permitted at the location. One
dumpster shall be allowed.
b. That no duct fabrication or other fabrication is permitted at the
location.
c. That during business operations as well as during the unloading of
the delivery truck to the location, that the company utilize
equipment to minimize any sound traveling outside the building to
the lowest decibel level possible, to the neighboring residences.
d. That the business shall be permitted to have signage of 3' by 4',
and there be no lighting of the sign.
e. That lighting on the building for security purposes is permitted at
the entrances and exits, which lighting shall be downward directed
so as not to impact on the neighboring uses.
f. The size of the building shall not be increased.
g. The property shall be planted with lawn and shrubs and maintained
in a fitting manner to be compatible with the adjoining residential
uses.
By the Board,
DATE: }-).1,,-0.5
DICKINSON TOWNSHIP
ZONIN HEARING BOARD
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DICKINSON TOWNSHIP SUPERVISORS
219 MOUNTAIN VIEW ROAD
MT. HOLLY SPRINGS, PA 17065
(717) 486-7424
FAX (717) 486-8412
May 6, 2005
Enola Construction Company
Atln: Mr. Leonard Kuhn
608 Alexander Spring Road
Carlisle, P A 17013
Dear Mr. Kuhn,
Per our discussion regarding permitted uses of the properties at Alexander
Court the following will summarize the interpretation held by the Dickinson
Township Zoning Office regarding the previously issued Zoning Hearing Board
Decision dated August 23, 1994.
Section 2 of the Order states that "there be a minimum of 50% of the square
footage of the buildings in the commercial portion be devoted to professional
offices such as medicaL dental, legal and accounting".
Section 3 of the Order states "that the retail use be no more than 20% of the total
building square footage of the commercial portion and that it be generally
associated with the primary use such as pharmacy in association with the
medical offices and the retail uses may be combined in one or more buildings".
It is the interpretation of this office that any retail operations to be conducted. at
Alexander Court must be in support of one of the primary uses, being medical,
dental, legal or accounting. After consideration of the request, we have arrived
at the conclusion that the occupancy of a plumbing supply store in the Alexander
Court Subdivision would not be in keeping with the uses approved by the
Zoning Hearing Board in 1994.
We are of the opinion that a plumbing supply store would be better suited to be
located in the Business-Recreational zone where it would be in compliance with
the retail operations aspect or in the Business-Industrial zone to be described as
warehousing.. depending on the details of the operation.
,
I'!
,
This decision can be appealed by submitting an application for this case to be
reviewed by the Zoning Hearing Board. Applications are available at the
Township Building and should be submitted at your first opportunity.
Please feel free to call 486-7424 should you have any further questions or which
to discuss this matter forward or stop by the Township Building should you
wish to initiate a Zoning Hearing Board Meeting.
Respectfully,
~VJA,^'
Jonathan E. W. Reisinger
Zoning Officer/SEO
Dickinson Township
cc: file
DICKINSON TOWNSHIP
C~MBERI:ANg Cg~NTY, FENNSYI:VANIA
ZONING HEARING BOARD
APPLICATION
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F"EE: DATE. RECE.IVEO: HEARINQ DA.TE:
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NOTICES: NEIGHBORS
NEWSPAPER
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DICKINSON TOWNSHIP
219 Mountain View Rd., Mt. Holly Springs, PA 17065-1503
0070
RECEIVED FROM :€~: ~M~
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ACCT. CODE DESCRIPTION AMOUNT
362.44 Sewage Application No.
New ea. Repair ea.
Add'l work
362.41 Building Permit No.
362.45 Road Occupancy Permit No.
361.31 Subdivision Plan or Land Development Plan
Preliminary $ plus $ per lot
Preliminary/Final $ plus $ per lot
Final $ plus $ per lot
361.32 Engineering Services
361.34 Zoning Hearing No. ~OO c;- ~ 0002 .,:-;,~-
Spec. Exception Variance Interpretation
301.1 0 TAXES: Real Estate Face
301.20 Penelty
31 O.Q\ Per Cepita Face
310.02 Penalty
310.50 O.P.T. Face
310.21 E.I.T.
310.10 Realty Transfer
330.11 Vehicle Code Violalions
331.1 2 Fines from Magistrate
331.13 Fines from County
320.11 Peddler Pemit
342.20 Rental of Building
342.45 Rental of Park
354.100 County Aid
361.50 Sale of Publications
361.56 Sale of Photocopies
361.57 Sale of Signs
364.90 Sale of Trash Tags
367.80 Developer Fees Collection
391.00 Sale of General Fixed Assets
Other:
TOTAL 3~O:IL
2HB Docket # 2005-0002
June 28, 2005
8 Kuhn Drive
Alexander Court Subdivision
Near the intersection of Alexander Springs Road and Allen Road
Explanation of Use
In early May, Leonard Kuhn, representing Enola Construction Company,
requested a Zoning interpretation as to whether or not a specific use would be
permitted in the Township's MDR-0 District
The proposed use is a plumbing supply store that would be operated in a similar
fashion to a Napa Auto Parts Store, in that contractors would call and have
plumbing supplies delivered to the job site.
In an email from Dave Robinson, CFO of APR Supply Company to Kim Dunbar,
real estate agent then forwarded to this office, the operation is described as
follows. "APR Supply Co. is primarily engaged in the wholesale distribution of
plumbing, heating, air conditioning, controls, refrigeration and industrial
supplies."
There is an existing building to house the operation.
This is the understanding of the Zoning Office - applicant will provide details
during the Hearing.
With this description in mind, please refer to the following letter for the rationale
by which the use was denied.
!
,
1
,
IN RE: APPLICATION OF
ENOLA CONSTRUCTION FOR
A SPECIAL EXCEPTION
DICKINSON TOWNSHIP
ZONING HEARING BOARD
DECISION
FINDINGS OF FACT
1. Application was made by Enola Construction for a
special exception to construct office buildings in an area
currently zoned Agricultural/Residential District.
2. The Zoning Board, by special exception, may permit
~
professional office buildings in the area as requested by the
applicant.
3. The plan submitted by the applicant is conceptual in
nature and shows the intended special exception uses which may be
revised or refined in future sUbdivision/land development plans.
4. All: Notes Intended; Commercial/Office Uses; and site
Data, included on the plan are incorporated herein.
5. The adjoining landowners were somewhat opposed to the
development scheme proposed by the developer. The adjoining
landowners had concerns in the following areas:
a) that tractor trailer traffic on Alexander Spring
Road, the access road to the site, should be
limited;
b) there be a minimum of 50% of the square footage of
the buildings be devoted to professional offices
such as medical, dental, legal and accounting;
c) there be no retail business operations;
d) there be no drive-injdrive-thru type of business
operation;
e) there be no storage or commercial activities
outside of the buildings;
f) that no portion of any proposed building facing
the residences be concrete block or steel;
g) there be no mobile home park or individual mobile
homes;
h) that hours of operation of the business be
conducted between 7:00 a.m. - 6:00 p.m.;
i) that the entrance/exit of the development not be
directly across from an existing residence;
j) that screening to the proposed new ordinance
pursuant to the existing ordinances be placed;
and,
k) there be no strip mall if retail use is permitted.
1) that any single family residence in the buffer
zone have a minimum of 2,000 square feet and a two
car garage.
6) The developer responded to the concerns expressed by
the adjoining landowners as follows:
5 a) agreed that tractor trailer access be limited to
occasional drop shipments;
b) would not agree to 50% or more of total square
footage of the whole commercial development be
professional office;
c) would agree that the retail use be no more than
20% of the total square footage and that it be
generally associated with the primary use such as
a pharmacy in association with medical offices
although the retail uses can be combined in one or
more buildings;
d) this would be acceptable other than permitting a
drive-thru banking use;
e) agreed to;
f) agreed to;
g) agreed to;
,
. \
I
h) not agreed to;
i) agreed to;
j) generally acceptable except for the requirement of
a 50 foot vegetative buffer on the western side as
it would impact adversely on the number of parking
spaces;
k) agreed to; and,
1) agreed to.
7) The developer also agreed that there would be no more
than a total of eight separate lots.
CONCLUSIONS OF LAW
1) The Zoning Board has carefully considered the testimony
offered in this case and is of the opinion that the decision
reached will not have any detrimental bearing on the health,
safety or general welfare of the Township.
2) The Zoning Board is of the opinion that some relief as
requested by the applicant should be permitted pursuant to its
request for a special exception.
3) The Zoning Board has considered the testimony and the
exhibits in conjunction with the provisions of Sections 8.13 and
8.14 of the Ordinance.
ORDER
The Dickinson Township Zoning Hearing Board hereby grants as
a special exception for the area as set forth in Sketch Plan A-I,
Development Scheme dated May 23, 1994 as follows:
1) that tractor trai traffic on Alexander Spring Road,
the access road to the s~ e, s ou imited to drop
shipments during business hours;
-
2) there be a minimum of 50% of the square footage of the
buildings in the commercial portion be devoted to
professional offices such as medical, dental, legal and
accounting;
3) that the retail use be no more than 20% of the total
building square footage of the commercial portion and
that it be generally associated with the primary use
such as pharmacy in association with medical offices
and the retail uses may be combined in one or more
buildings;
4) there be no drive-in/drive-thru type of business
operation except for drive-thru banking facilities;
5) there be no storage or commercial activities outside of
the buildings;
6) that no portion of any proposed building facing the
residences be concrete block or steel;
7) there be no mobile home park or individual mobile
homes;
8) that hours of operation of the business be conducted
between 7:00 a.m. - 9:00 p.m.;
9) that the entrance/exit of the development not be
directly across from an existing residence;
10) that screening as a vegatative buffer as set forth in
the proposed new ordinance be placed; however, on the
western side the 50 foot vegetative buffer zone may
include parking spaces for the commercial uses and on
the northern side the 50 foot vegetative buffer zone
shall include the 35 foot rear setback of the
residential lots.
11) that the Board notes that the developer has affirmed
that he will move forward to sell the lots along the
Alexander Spring Road for residential purposes only in
a timely fashion and at fair market values.
ATTEST
kY 'j-2G-'1'(
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DICKINSON TOWNSHIP
ZONING HEARING BOARD
~/)f/t ~~
CHAIRMAN, ZONING HEARING
Jh:j 0<1 /c;'CJLj
DATE
BOARD
'.
. .
.. ."
..... ,
H. EDWARD BLACK
and ASSOCIATES, P.c.
o COMPREHENSIVE lAND AND SITE PLANNING
o lANDSCAPE ARCHITECTURE
o ENGINEERING
May 23, 1994
Dickinson Township
219 Mountain View Road
Mt. Holly springs, PA 17065
Attention: Mr. Joe Widra, zoning Officer
RE: SPECIAL EXCEPTION REQUEST
ENOLA CONSTRUCTION
OUR PROJECT #01925
Dear Joe:
please find enclosed the following items concerning the above-
referenced request:
o 5 Prints - Sketch Plan A-I, dated 5-23-94
o 5 copies - Township Application Form
o 1 Check - Filing Fee for $350.00
These items constitute our official submission for this request.
The site is located along the south side of Alexander Spring
Road, being approximately 1400' west of Allen Road. The site is
zoned Agricultural-Residential (AR). Our request is for a
. exce ti to allow a portion of the site to be used for
'onal office buildin 5> This use is allowed in this
district rough the granting of a special exception by the
Township Zoning Hearing Board.
As reflected on the enclosed sketch plan, these new offices would
be clustered around a proposed cul-de-sac, gaining access from
Alexander Spring Road only. Residential lots are proposed
adjacent to Alexander Spring Road, with landscape screening
proposed between these lots and the new office uses. All lots
are intended to be served by on-lot sewer and water facilities.
We trust the enclosed materials are adequate for the Township's
review. Should additional copies of any materials be needed,
please call our office. with this submission, we would
anticipate meeting with the Zoning Hearing Board on June 21,
1994. Should any questions arise, do not hesitate to contact our
office.
2403 North Front Street 0 Harrisburg, Pennsylvania 17110 0 Telephone (717) 233-1026 0 FAX (717) 233-2192
Sincerely,
SOCIATES, P. c.
RJW 1=
cc: Enola Construction Co.
SENDER CQ',lPLE Tf rHI:; SE"C rro\
. Complete nems 1, 2, and 3. Also complete
nem 4 n Restricted Delivery is desired.
. Print your name and address on the reverse
so that we can netum the card to you.
. Attach this card to the back of the maitpiece,
or on the front if space permits.
1. Article Addressed to:
Enola Construction Company
p.o. Box 121
Carlisle, PA 17013
A. Signature
X
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B. Received by (PrinI6d Name)
<J
D.lsdelMwy__from_l?
If YES, enter delivery address below:
C. Date of Defivery
DYes
ONo
3. Service Type
o Certified Mail 0 Express Mail
o Registered 0 Retum Receipt for Merchandise
o Inswed Moll 0 C.O.P.
4. Restricted ()ejjvery? (Extra Fee) 0 Yes
2. Article NumbE
(rra1lSforlrom 7002 0510 0000 993~ 9973
PS Fonn 3811, August 2001 Domestic Roturn Roceipt
102Si1!H)2;M-l035
. Complete nems 1, 2, and 3. Also complete
item 4 if Restricted Oelivery 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 maitplece,
or on the front if space permits.
1. Article Addressed to:
Mr. Gary L. Benzon
7 Kuhn Drive
Carlisle, PA 17013
,
3. S8fVice Type
o Cortifled Mail
o Aegister&d
o Insured Mail
o Express Mall
o Return Receipt for Merchandise
o C.O.D.
4. Restricted Delivery? (Extra Fee) DYes
PS Fonn 3811, August 2001
2. ~=,;u=_ 7002 0510 0000 'l'l3~ 'l'lbb
Domestic Return Rec&fpt
SENDER CQI.If-'LETE THIS SECTION
. Complete iteths \, 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 mail piece,
or on the front if space permits.
1. Article Addressed to:
Cam Nip Management, LLC
575 Underhill Blvd
Suitel25
Syosset, NY 11791
102595-02-M-1035
cor.1PLfTf THIS <..,[CTiON ON DELiVeRY
by (Printed Name)
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D. Is delivery address different from item 1?
If YES, enter deljvery address below:
3. Service Type
o Certif/Eld Mail 0 Express Mail
o Registered 0 Return Receipt for Merchandise
o Insured Mail 0 C.O.D.
4. Aestrictoo Delivery? (Extra Fee) 0 Yes
2. Article Number
(rronsre 7002 0510 0000 9934 9980
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DICKINSON TOWNSHIP
2
ZONING HEARING BOARD
3
4 IN RE: HEARING FOR ENOLA CONSTRUCTION COMPANY
5
DOCKET NO. 2005-0002
t(Q)[PV
6
7
TRANSCRIPT OF PROCEEDINGS
8
BEFORE:
GERALD E. EBY, Chairman
RONALD E. LOWRY, Member
WILLIAM STALLSMITH, Member
9
11
ROBERT O'BRIEN, Solicitor - not present
DATE:
June 28, 2005, 7:01 p.m.
PLACE:
Dickinson Township
219 Mountain View Road
Mount Holly Springs, pennsylvania
APPEARANCES:
SALZMANN HUGHES
BY: DON E. LEFEVER, ESQUIRE
FOR - ENOLA CONSTRUCTION COMPANY
ALSO PRESENT:
Jonathan Reisinger, Zoning Officer
Tammy L. Bock,
Reporter-Notary Public
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,t, )'~hrt Reporting Services
4',:1)100-863-3657 . 717-258-3657 . 717-258-0383 fax
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PRO C E E DIN G S
CHAIRMAN EBY: All right. Our hearing will come
to order. Please join me in the pledge of allegiance.
(Pledge of allegiance.)
CHAIRMAN EBY: Thank you. All right. Let me
introduce our Board. This is Ron Lowry, William
Stallsmith. John Reisinger is our zoning hearing officer.
Robert O'Brien is our solicitor, but he called in ill a
couple minutes ago. So we'll have to do without a
solicitor tonight.
MR. LOWRY: I don't think he was ill, but had
another meeting scheduled.
CHAIRMAN EBY: Whatever, he's not here. I guess
the first thing, you want to read your stuff on the
hearing?
MR. REISINGER: All right. This is docket
No. 2005-Q002 at the request of Enola Construction Company.
The neighbors, Zoning Hearing Board Solicitor and Applicant
were notified on 6/13 and 6/20. The stenographer was
secured on June the 10th. It was advertised in the
Sentinel with proof of publication on June 14th and June
19th, and the property was posted on June the 13th.
This hearing comes at the request of Enola
Construction Company regarding an appeal of the zoning
office decision to deny occupancy to a plumbing supply use
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proposed at 8 Kuhn Drive located in the MDR-O district,
which is currently zoned for professional offices. And the
Applicant wishes to appeal the denial and apply for the
stated use.
CHAIRMAN EBY: May I ask all who are going to
testify tonight to raise their hand, right hand, and be
sworn in.
(All witnesses sworn en masse.)
CHAIRMAN EBY: All right. You folks want to
start?
MR. LEFEVER: My name is John LeFever. I'm an
attorney with Salzmann Hughes representing Enola
Construction Company. To give you just a brief background
on this, this involves an interpretation by the current
zoning officer of the Township of a special exception that
was granted by your Zoning Hearing Board August of 1994
concerning this property on Kuhn Drive.
There is currently erected on the building, on
the property, a 10,000 square foot building. The reason
we're here tonight is to seek an interpretation of the
special exception which we believe is consistent with the
use that is proposed for the tract.
It is currently under an agreement of sale to
APR Supply Company, and my witness here is with that
company and would be -- that company would be the ultimate
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user of the building. So I will begin. If there are no
questions of me, I will begin with Mr. Hearsey.
EXAMINATION
BY MR. LEFEVER:
Q For the purpose of the record, will you state
your name please?
A
Q
A
Q
Todd Hearsey.
And Todd, where do you reside?
I reside in Hershey, Pennsylvania.
And by whom are you employed?
A APR Supply Company.
Q And what is your position with APR?
A I'm the logistics manager for the company.
Q What does that position entail?
A I'm responsible for all aspects of distribution
for the company, including operation of our distribution
center located in lebanon, Pennsylvania and distribution to
our customers, which occurs from that facility and
oversight of procedures and operations related to our
business.
Q Can you describe generally the nature of APR
Supply?
A We are a plumbing, heating and air condition
wholesale supply distributor. Our typical customer is a
plumbing/heating contractor. About 70 percent of our
5
1 business is business delivered to our customers from our
,
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distribution center in Lebanon. We have currently 14
3 branch locations which service the local contractor,
4 typically on a counter pick-up basis for repair parts,
5 small items. And that accounts for about 30 percent of our
6 business.
7
Q
So if I understand your business correctly, the
8 bulk of your business is done at a Lebanon Central
9 Distribution Facility?
10
A
That is correct.
11
Q
Okay. And for the property we're talking about
12 tonight, would there be deliveries to this property from
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13 manufacturers or suppliers of APR?
14
A
There would not be deliveries to that location
15 from the manufacturers.
16
Q
And where do your deliveries from manufacturers
17 go?
18 A They go to our distribution center in Lebanon.
19 Q And this building will be used as a branch
20 office. Is that correct?
21 A That is correct.
22 Q And how would deliveries be made to this
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facility?
24
A
Typically, it would be one delivery made to that
25 facility daily by a 24-foot box truck that's part of our
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fleet, resupplying that location from our distribution
center in Lebanon.
Q And that would be, you say, one delivery a day?
A
Q
Typically.
And how many employees would be at this
6 location?
7
Approximately two employees would be at that
A
8 location.
Q And would you have some type of interior counter
space for conducting contractor wholesale and retail
business?
A Yes.
Q And what percentage of space of the building
would be devoted to that?
A We would have about probably 1000 square feet.
So I guess that would be about 10 percent of this building
would be dedicated to our counter.
Q
A
Q
And the rest of it is for your inventory?
Inventory, storage.
What types of inventory would you have in the
building?
A We have a cross section of what we stock.
Typically, a branch location is predominantly, as I said,
repair parts for plumbing and heating and air conditioning.
A small amount of heating and air conditioning equipment,
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condensing units, boilers, but a relatively small amount of
inventory is held at our branch locations, with 70 percent
of our business being done by delivery out of the
distribution center.
Q So much of the business that would transpired
out of this facility would be delivered directly from your
Lebanon operation?
A Right. A significant portion of sales created
at that location would actually be ultimately delivered
from our Lebanon facility.
Q And you said about 30 percent of the deliveries
would occur out of this facility, Carlisle?
13 A Correct.
14 Q And are they delivered by you or picked up by
15 customers?
16 A Typically, they're picked up by the customer.
17 Q Okay. And your customer is who, for the most
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part?
A For the most part, it's the plumbing, heating
contractors in the area.
Q So what type of vehicle would you anticipate
picking up items from your facility here?
A Typically, vans and pick-up trucks.
Q And what time of the day would your delivery
from the Lebanon facility take place?
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A
It typically would happen some time in the
2 evening with a truck leaving Lebanon at 5:00, so probably
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some time between 5:00 and 7:00 p.m.
4
Q
And what would the normal hours of operation of
5 the facility be?
6
A
Normal hours of operation for a branch are 7:30
--,
,
to 5:00, 7:30 a.m. to 5 p.m.
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MR. LEFEVER:
I don't have any other questions
9 for this witness. And that's the only testimony I'm going
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to have.
I'm not sure how you wish to proceed.
If you
11 have other questions, I would like to have an opportunity
12 to make a summary at the conclusion.
13
CHAIRMAN EBY: Are there any questions?
MR. LOWRY:
I was wondering about retail sales.
15 Would this be retail sales?
16
THE WITNESS: We do a very small amount of
17 retail business. We're really geared towards the plumbing
18 and heating contractor. Periodically, we have someone come
19 in on a retail basis. But we don't market ourselves as a
20 retail operation at all.
21
MR. LOWRY: And you say you do not deliver out
22 of this?
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THE WITNESS: We would only do an infrequent,
emergency delivery. And that would be via pick-up truck,
25 which would be the only kind of vehicle we would have
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1 available at that location.
2 MR. LOWRY: That's all I have.
3 CHAIRMAN EBY: How many people would you expect
4 to come to your counter each day?
5 THE WITNESS: I would think a typical day for
6 actual counter business is probably somewhere between --
maybe at the most 30 to 50 customers actually coming into
the facility throughout the day. It's not something that I
track at all, but that's my guess.
CHAIRMAN EBY: So most people would call you and
make arrangements for deliveries?
THE WITNESS: Correct. The vast majority of our
business would be a phone call from a customer where we
would take their order and arrange for delivery.
CHAIRMAN EBY: Okay.
MR. STALLSMITH: Would you have a truck stored
in the area?
THE WITNESS: Do we have a truck stored?
MR. STALLSMITH: Any vehicles coming out?
THE WITNESS: No. The only vehicle that would
be available for that location would be a pick-up truck.
Typically, that's one that one of our employees is going to
and from work in.
CHAIRMAN EBY: Okay. Do we have anybody that
has any questions or comments? State your name and address
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please.
MR. JONES: Ray Jones, Burnt House Road.
Outside storage, are there going to be any crates, pallets,
any of the plumbing/heating supplies going to be stored
outside the facility in the parking area?
THE WITNESS: Outside storage isn't something
that we anticipate we would need at this time.
MR. STALLSMITH: How about pallet storage?
THE WITNESS: We would typically store whatever
pallets we needed inside. And we would -- and that
delivery truck that would make that daily delivery, would
be transporting those back to our distribution center for
long-term storage. So we don't really have to have
long-term pallet storage at our locations.
CHAIRMAN EBY:
THE WITNESS:
So that means no outside storage?
Yeah.
I don't anticipate outside
storage being an issue.
MR. JONES: Do you bring any materials back from
a site that you take for exchange? So I'm looking at maybe
recyclable dumpsters?
THE WITNESS: No.
MR. JONES: So you don't do any of that?
THE WITNESS: We don't take anything back that
we would have any kind of recyclable storage of any kind of
material. We do have to take periodic -- we take material
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back from a customer. But again, the outprocessing of all
that stuff occurs at our distribution center.
So it would
be picked up by our delivery truck and brought back to
Lebanon for resolution.
MR. JONES: What I'm getting at is maintaining
the appearance of the outside facility for any material
that you would have to store or bring and have to get rid
of, that was what I was addressing.
CHAIRMAN EBY: Well, it's already established
that there's no outside storage.
MR. JONES: That was the reason for my
questions. Thank you.
MR. WYRICK: Dan Wyrick, 840 Alexander Spring
Road. I happen to be familiar with APR Supply Company's
plumbing and heating wholesale operations. And a couple of
questions, if I could. Is your operation in any way
similar to that, for example, of RA Michael Company?
THE WITNESS:
I'm not very familiar with RA
Michael Company, other than they are our competition.
We're pretty much in the same business as they are, in
21 that, we're both plumbing and heating wholesalers.
22 My understanding of RA Michaels is that their
23 branch locations do a greater capacity of their business
24 than what we do. Whereby, we have concentrated most of our
25 operations functions in one distribution center in Lebanon,
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1 and taken our branch locations down to predominantly
2 servicing a counter trade for the service portion of the
3 business in a local market.
4 And in that way, I think we're different from
5 the way RA Michael and some of the larger national
6 companies which are operating larger branch locations where
they do their whole operation out of, which, we no longer
do business that way.
MR. WYRICK: Okay. Is a normal part of your
business to supply duct board product so that contractors
that are doing, if you will, residential heating, air
conditioning and installation jobs, can obtain duct board
from your company?
THE WITNESS: We do sell duct board, yes.
MR. WYRICK: And do you also provide at your
branches a duct cutter machine that would allow them to
fabricate their duct work at your branch locations?
THE WITNESS: We have a few branches currently
that have a duct machine, that had a duct cutting machine
when we had our operations centralized at the branches.
Any new facilities, that production is all occurring at our
distribution center. So I wouldn't anticipate that any new
location would have a duct cutting operation at the
facility, if that's what you're asking.
MR. WYRICK: You're saying absolutely that this
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1 particular branch operation would in no way have the
2 ability for a contractor to come and purchase duct board
3 and fabricate it on site?
THE WITNESS: I don't anticipate that this
facility would have that kind of capacity, no.
MR. WYRICK: The reason for that question is, if
that's the case, one can very easily look at RA Michaels,
which happens to be located on Allen Road just around the
corner from the intersection of Allen and Alexander Spring.
And they've got several dumpsters that sit
outside the building, because the scrap that comes from
fabricating duct work becomes somewhat bulky, and there's a
lot of it. And you would need to have that type of
dumpster if you're doing that, if you're providing for that
type of service to the contractor.
Another question I have, would there be any
refrigerant stored or available at this branch location?
THE WITNESS: There would be a small amount of
refrigerant that we would sell over-the-counter that would
be at the facility.
MR. WYRICK:
So it would be in whatever amount
stored there, on some occasions delivered, but made
available to the HVAC contractor for his purchase and use?
THE WITNESS: Yeah. We do sell refrigerant, and
we do have a limited supply of refrigerant available at our
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branches in a 30-pound canister contained from the original
manufacturer. We're not doing any kind of refrigerant
processing at our facility.
MR. WYRICK: And would that be stored inside of
the building? None of the containers that contain the
refrigerant would be stored outside?
THE WITNESS: Absolutely.
MR. WYRICK: And what type of -- or can you
explain to me or help me understand what type of permits
and/or what type of dangers might exist with the various
refrigerants that might be at this location or any of your
branches, for that matter, from a human-, health-,
safety-type deal?
THE WITNESS: The refrigerants that we store, as
I said, are in the original vendor packaging, sealed
containers. And there are some limited requirements in
terms of maintaining them in a specific area where they're
stable. But really, the only limitations on the product
we're handling is the amount that can be transported.
So that human health hazard, I'm not aware of
any specific restrictions that we have regarding the human
22 health hazard of the refrigerant, because we're not
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processing it in any way. And it remains in a sealed
container until after it's taken by the customer to a job
site where they then have some requirements.
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MR. WYRICK: Okay. And all the customers that
you sell to have refrigerant licenses to be able to handle
as well as APR Supply, the necessary permits and licenses
from whomever are providing those?
THE WITNESS: Yes.
MR. WYRICK: And a record of that for
verification that you're handling that trade
satisfactorily?
THE WITNESS: Correct. We do have a requirement
that any customer who purchases refrigerant from us or any
product that has a refrigerant in it from us, a condensed
unit needs to be EPA certified. Anyone in our company, who
would at our distribution center, which is the only place
who would be handling refrigerant would be probably
certified. And we're complying with any OSHA regulations.
MR. WYRICK: Is part of your -- part of the
equipment lineup that APR provides for the contractors,
would that include anything besides residential split
system equipment? In other words, do you sell or supply
rooftop equipment for small commercial jobs?
THE WITNESS: We do sell and supply some small
commercial applications. The largest units we currently
sell are 10 tons, so a small rooftop unit. We would not
have that capacity that's limited to our distribution
center, that those units would go directly from our
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distribution center on a flatbed to a job site.
MR. WYRICK:
So you never have any -- you do not
provide the service to any of your customers that if they
wanted to come to your branch location and pick up a
rooftop unit, you would not permit them to do that?
THE WITNESS: No. We wouldn't really have
MR. WYRICK: You would have them delivered to
the job site?
THE WITNESS: We would require a delivery. We
would not have capacity at our branch to handle that kind
of equipment in terms of loading and unloading and truck
capacity and that sort of thing. So we require our
rooftops to be delivered either to our customer's place of
business, or, most typically, those things go directly from
our distribution center to the job site.
MR. WYRICK: Okay. So you don't have any sort
of fork truck or engine or anything to move stock around in
the building in the branch location?
THE WITNESS: We would have a small forklift at
our branch location.
MR. WYRICK: Is that normally an electric
vehicle, or is that some sort of fossil fuel fired
equipment?
THE WITNESS:
It varies between locations
whether it's an electric or propane gas forklift.
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Road.
MR. WYRICK: So it could be a fossil fuel?
THE WITNESS: Yeah.
MR. WYRICK: Okay. Thank you.
MR. PRICE: James Price, 831 Alexander Spring
I'm curious on the location of the site and the
current zoning if, in fact, you were to get it changed and
be able to put your business in this location -- I
understand at this point it suffices for the size you need.
What if your business took off and you wanted to
expand on that site? Is that a possibility with the
existing site as it is now, that it can be expanded?
In other words, if it comes in as a business as
such as you're describing as a satellite shop, so to speak,
and all of the sudden it really takes off and you decide to
make it more of a larger operation, larger retail, larger
storage, larger distribution, whatever, is that something
that you'd want in that location?
MR. REISINGER: That would have to come back in
if it was -- if it was expanded by more than 25 percent, it
would have to come back.
MR. PRICE: But the problem is, is in letting it
change initially. Would it not be easier when they came
back again to expand it to something even larger, that
would allow larger trucks on the roads, etc., etc.?
In other words, you open the barn doors, does
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1 that then allow it to be expanded even further five years
2 down the road, two years down the road, and all of the
3 sudden they want to have a larger facility?
4 MR. REISINGER: That would never work on that
lot, because of the small lot sizes in there.
MR. PRICE: But there are other lots that could
be bought?
MR. REISINGER:
Sure.
MR. PRICE: So my point is, in this instance,
the zoning was established for, I believe, professional
offices?
MR. REISINGER: Yes.
MR. PRICE: And I think that it was known at
that time when the individual purchased the land -- I
applaud his idea for the land and recycling that old
building. However, that may not be appropriate in this
instance to have this sort of an operation go in there with
the full potential of it even growing larger and bringing
in more of what is not meant to be in that location to
begin with.
And I don't mean to curtail this gentleman's
business practices. I understand there's another building
right now where the guy is out of it. It's empty. He used
to handle electrical supplies in there or something. And
it's sitting empty.
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1 And it was used for retail and commercial and
2 use of electrical supplies. There's a perfect reuse for
3 something like this. Whereas, in this instance, the
4 building may be there. I don't know for what intention,
5 but maybe for storage. But zoning is evident as to what it
6 should be and what it should do. And we should maintain
that.
To change it is only opening the door for other
expansions coming in there of a use that was unintended
initially. Once this business is put in there, then I
would think they could try some form of -- I don't know
what the proper word is -- for expanding further once the
business took off.
And it's great that they want to be in here and
close to the other business. But I don't think this
location is where it should be.
It's not zoned for that.
And I don't feel it's incumbent upon the zoning officer or
the Township to necessarily make it available for that,
when the residents of the Township were very pleased with
what it's been set up to be.
To change it only to allow use of that building
for a commercial venture, and it's not zoned for that, I
don't feel it is appropriate. And if we did do that, it
would then open the door for other businesses of the same
ilk to be located in that area.
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CHAIRMAN EBY: Okay. Mr. Price, we'll take that
into consideration.
MR. STALLSMITH:
I have a question. You have
how many branches?
THE WITNESS: 14.
MR. STALLSMITH: How old is the oldest one?
THE WITNESS: The oldest one is 83 years old,
and the newest is a month.
MR. STALLSMITH: Have you had to upscale any of
them --
THE WITNESS: We have not.
MR. STALLSMITH: -- from volume?
THE WITNESS: No. As a matter of fact, what
we've done is decreased in size, not only in some of our
existing facilities, but also in our vision of what size
facility we look at now. The right size facility for us in
a branch location is smaller today than it would have been
three years ago even.
So if anything, our branch locations are
decreasing in both size and activity as a result of us
concentrating the operations portions of our business
which is predominantly what our business is -- at our
distribution center in Lebanon.
MR. STALLSMITH:
Do you have any pictures of any
of your branches?
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THE WITNESS:
I did not bring any pictures of
any branches, no.
CHAIRMAN EBY: So the purpose of each branch is
to do what, primarily accept phone calls or what?
THE WITNESS: Predominantly, our branch
personnel are accepting phone calls. We don't have any
kind of call center or anything. So typically, our
customers are calling the nearest branch location, and then
also to service the trade person who comes in for something
they need immediately at the counter.
Typically, that's going to be your service parts
or they're out on a service call and need to get some
equipment, something quickly.
CHAIRMAN EBY: Okay. Yes, ma'am, you had a
comment?
MS. CRAIG: Pat Craig, Alexander Spring Road.
Was the MDR-O zone rating not designed to buffer residents
from commercial property, to give us a buffer zone? Is
that the purpose of the MDR-O zoning?
CHAIRMAN EBY: Basically, yes.
MS. CRAIG: So to allow a commercial application
in a zoning would rob the existing residents of the their
buffer zone?
MR. REISINGER: The purpose of the medium
density residential/office district is to provide
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1 reasonable standards for harmonious development.
2 Development of residences, apartments, townhouses,
3 professional offices, financial institutions and other uses
4 which are compatible with medium and high density housing
5 to provide for public convenience and to avoid traffic
6 congestion.
7 MS. CRAIG: We are not high density. We have
been residential and farm for many, many years. Our
section of Alexander Spring Road has already had to succumb
to several zoning changes at the hands of Mr. Kuhn. And we
are also at risk now of trucks on Alexander Spring Road and
the warehousing issue.
And I think the residents at that end of the
road have been asked to give up a lot of their property
values in the future to the commercial development that is
encroaching into that area. I think to change that zoning
or to allow further commercial use so close is to do a
disservice to those residents.
CHAIRMAN EBY: Okay. Yes, sir?
MR. HEISHMAN: Randy Heishman, 623 Alexander
Spring Road. I'd like to go into more detail about your
delivery time between 5:00 and 7:00 p.m. Typically, you're
going to have a 24-foot box truck?
THE WITNESS: Correct.
MR. HEISHMAN: Won't you be using a forklift to
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go out and take stuff off of that box truck and take it
back into your area?
THE WITNESS: Having seen the facility, it would
be my expectation that we would back our 24-foot box truck
up to the large garage doors that are located on the
building. And so the forklift would be remaining inside
the building for removal.
Typically, the driver would have a pallet jack
inside the truck to move the material in the back of his
truck, pull it off the truck. But at that facility, that
could and would all take place actually inside the
building, as opposed to us just backing the truck up out in
the parking lot and driving around out there. That's to
our advantage as well.
MR. HEISHMAN: So you say there will not be
instances where you take the forklift out to maybe load
something onto another vendor's vehicle?
THE WITNESS: No. I can't say that there would
never be an occasion. It would be rare. But I can't say
it would be never.
MR. HEISHMAN: Do your forklifts have a backup
signal on it?
THE WITNESS: Yes. We would have all
appropriate safety and warnings.
MR. HEISHMAN: And inside the building, that
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would be -- the sound would be escalated out into to
surrounding community?
THE WITNESS: I can say with certainty that a
number of our branches are located in residential-type
areas. And that's not an issue we've ever had. We have
very good relationships with the neighbors that we have.
Some of our facilities are older facilities that
are in neighborhoods, and we've had very good relations
with our neighbors. And we just haven't had issues like
that.
MR. HEISHMAN: Because you're coming into an
area where, you know, you heard the concerns here. That's
a concern for my part, being straight across from it. So
the backup noise and bells do sound at night, and they do
become irritating. Thank you.
MR. GRAHAM: Kenneth Graham, 639 Alexander
Spring Road. I guess my first question is for the Board.
I'm a little we keep talking MDR-O. That was approved
as a special exception. Do the orders from that special
exception apply here also? I mean, that was approved for
development under special exception. So the orders from
that special exception, won't they also have to apply in
this case?
CHAIRMAN EBY: I would think so. But what do
you mean specifically?
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MR. GRAHAM: Well, the special exception, it was
to construct several office buildings. And 50 percent of
those are to be professional offices like doctors and such.
And part of the order from that hearing said minimum square
footages would be devoted to professional offices. I mean,
does that also
CHAIRMAN EBY: That's what it says, yes.
MR. GRAHAM: I guess my next question is: Are
we speaking now just to this gentleman with questions, or
are you going to give us an opportunity later to express
our other concerns about that use? Or should we express it
all at this time?
CHAIRMAN EBY: Well, some of you have already
done that, so you might as well continue.
MR. GRAHAM: Well, I didn't want to get too far
out of line. I guess my question to this gentleman is:
Will 50 percent of the -- will there be a minimum 50
percent of this use devoted to this office?
MR. STALLSMITH: That's what the meeting is
about.
MR. GRAHAM: Okay.
I just wanted to hear an
answer to that. One of my main concerns is when this
special exception was granted, there were 11 conditions to
that order. Some of these conditions have never been met.
And I'd like to ask the Board not to grant anymore
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approvals until all of the conditions have been met.
One of the conditions is the screening.
Buffering is not at the level it is supposed to be. And
the other is the developer affirmed that he was going to
move forward and sell the lots along Alexander Spring Road.
None of the lots have been sold yet. So I'd like to ask
the Board not to grant anymore approvals in that special
exception area until all the conditions have been met.
Thank you.
CHAIRMAN EBY: Okay.
MR. WARTIME: David Wartime, 2043 Walnut Bottom
Road. I have a question with regard to -- follow up to
this gentleman who just spoke. Is the request for a change
of the use as a special exception? And I pose that to the
Applicant or his attorney.
MR. LEFEVER: To clarify this, we are not
seeking a change of zoning here. This property, prior to
the enactment of the current zoning ordinance, was granted
a special exception to which the decision and order
attached a number of conditions that this gentleman
previously referred to.
This subdivision consisted of twelve lots, four
of which are residential lots along Alexander Spring Road.
And there are eight lots to the rear that are served by the
cul-de-sac. And part of the special exception decision
27
1
that was approved in August of 1994 provided that a minimum
2 of 50 percent of the area had to be for professional and
3 office uses.
4 And it's our position that the language of that
5 provides for a minimum of professional offices in the 50
6 percent. Meaning, that the other 50 percent can be used
7 for commercial facilities. And that's what we're seeking
8 here tonight.
9 The decision that denied this use, handed down
10 by the current zoning officer, was a decision that was made
11 prior to his tenure and involves an interpretation of the
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order previously handed down by the Zoning Hearing Board in
13 1994.
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MR. LOWRY: Can I say something on that? The
15 way I read that decision that we made, No.2 was, there'd
16 be a minimum of 50 percent of the square footage of the
17 buildings. That doesn't mean the whole area. That's an
18 individual building, 50 percent of the building. That's
19 the way I'm reading this, that that could be in the
20 commercial portion to be devoted to professional offices
21 such as medical, dental, legal and accounting.
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And then there was another one here that said
23 there'd be no retail business operations in that area.
24 That's in the decision.
25
MR. LEFEVER: Well, I was going to summarize our
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1 position. And I think I can do so in response to that
question.
I do not read that condition in the same manner.
The exact language I think says: A minimum of 50 percent
of the square footage of the commercial portion be devoted
to professional offices.
MR. REISINGER: I think you're reading two
different -- I think he's reading from the decision, and
you're reading from the order, which the order would be
what applies.
MR. LEFEVER: The order says -- in paragraph 2
of the order, it says: A minimum of 50 percent of the
square footage of the commercial portion be devoted to
professional offices. And our interpretation of that is
that of the eight lots that are nonresidential, four of
them must be for professional office usage, and four of
them may be commercial usage. And of those that are
commercial usage, no more than 20 percent of that can be
allocated to retail space.
Again, when you look at that order itself,
paragraph 1 of the order restricts tractor trailer traffic
to drop shipments during business hours. I think it's
clear that professional offices don't have tractor trailer
deliveries made. And I think that that clearly shows that
commercial usage was contemplated.
Paragraph 3 or paragraph 4 of the order allows
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for drive-thru banking. And banking clearly is a
commercial use, not a professional office use.
Paragraph 5 of the order says that there will be
no storage or commercial activities outside of the
buildings. It refers specifically to commercial
activities. Again, legal, accounting, medical and so on as
professional uses do not have commercial activities outside
the building, nor do they have a need for storage outside
the building.
And paragraph 6 says that it prohibits certain
types of building materials facing the residential portion
of the site. And again, those building materials that are
prohibited there are the types of materials that are
definitely not used on professional buildings, which have
more of a concern of image than do commercial facilities.
And lastly, paragraph 8 restricts hours of
operation to between 7:00 a.m. and 9:00 p.m. Again, that
is not typically a professional office daily hour
arrangement.
And so I think all those things taken together,
plus if you read the order of that special exception, it
uses the term commercial throughout, which distinguishes it
from the professional office usage.
And so we're not here seeking in any manner to
change the zoning on this tract. This tract was -- a
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special exception was granted prior to the enactment of the
current Township Zoning Ordinance and contemplated the type
of use we're talking about here tonight.
So that's the interpretation we feel is
appropriate based on the order that was handed down at that
time. And I think that order was in part appealed in court
that the decision -- that it was not subject to the newly
enacted ordinance was upheld.
That's all I have.
CHAIRMAN EBY: Okay. Mr Graham.
MR. GRAHAM: Kenneth Graham, 731 Alexander
Spring Road. To clarify, the second part of that order
does include footage of the buildings of the commercial
portion. I have it with me. It doesn't exclude building
from that part of the order. I think I attended every
hearing there was on this development.
And at the time, it did say the retailers
requested to be used with like a dental office, an eye
doctor's office, doctor's offices, medical supplies. And
it was pointed out at that time that some of these
retailers may have to be by tractor trailer.
And that's why that was in there. So that was
-- and it says that only 20 percent of the building square
footage can be commercial. That's in case one of these
professional uses had to have sales connected with it.
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As far as the surface on that building, the
material used now, we're being told that that material is
not intended for professional buildings.
A while back I sat in a hearing and they brought
it inside and painted it. And they said this is the
material that is oftentime used in professional buildings.
There's a big contradiction there on what we're hearing as
far as the materials on the exterior of the building.
And as far as the hours, oftentimes doctor hours
are in the evening. Dental hours are in the evening.
Professional hours are in the evening. That's why that was
extended to 9:00 p.m. Thank you.
MR. WYRICK: Dan Wyrick, Alexander Spring Road,
840. I'd like to ask the Board a question. If the request
that's being presented this evening were to be upheld and
it was done so with the claims and testimony that have been
put forward as to usage, what would be the ramifications if
APR Supply was to change the manner in which they do
business? That would potentially present some concerns
that may not be acceptable this evening.
But after something was changed, would there be
any recourse to, No.1, prevent the business from doing
that? And let's say I use the example I did of duct board
where there's now dumpsters outside to hold the materials
and so on. They would change something that would not
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comply. What would be the recourse? Is there a recourse
to come back to the Zoning Board?
MR. REISINGER: Whatever is written in the
order, that's the enforcement tool, if part of the order
said that no duct board be sold there.
MR. STALLSMITH: Fabricate.
MR. REISINGER: Well, I'm just using that as an
example, whatever the order says.
MR. WYRICK: Provide for outside storage.
MR. REISINGER: Well, if you said that --
whatever the order says, that's what's enforceable.
CHAIRMAN EBY: My interpretation of that is the
zoning officer is the person that does the enforcement of
that regulation based on what the list of all the
qualifications are.
MR. WYRICK: Okay. Thank you.
CHAIRMAN EBY: Did you have something to say,
ma'am?
MS. CRAIG: Pat Craig, Alexander Spring Road.
Given that the conditions that Mr. Kuhn was asked to meet
already on those properties have not been enforced, I don't
know that we would have a lot of faith that future
conditions would be enforced, even though they might be
written in.
MR. REISINGER: Wait a minute. Which conditions
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haven't been enforced?
MS. CRAIG: The buffering, the things that Mr.
Graham was bringing up.
MR. REISINGER: What specifically about the
property hasn't been enforced?
MS. CRAIG: The buffering of the trees.
MR. REISINGER: What do you mean the buffering
of the trees? What do you mean? There's no trees there?
MS. CRAIG: They're tiny and dying.
MR. REISINGER: They met the ordinance.
MS. CRAIG: They met the ordinance?
MR. REISINGER: They met the ordinance, and
we've had that changed since then.
MR. LEFEVER: Well, I have a photograph here
that was just taken this week. And it doesn't show any
dead trees, and it shows a whole row of trees between the
residential properties and the commercial/professional
section of the site.
of you.
I'd be happy to share that with any
But I think that the plantings that were done
there at the time are in compliance with what was required
at the time.
MR. REISINGER:
I personally went out and
counted how many trees were on there, and it matched the
plans.
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AUDIENCE MEMBER: They might meet 20, 30
percent. And the other one is the lots were never sold
along Alexander Spring Road.
MR. REISINGER: There are some things that can
be put in an order that are enforcement nightmares. How
would you propose that somebody enforces that lots be sold
in a timely manner? What's a timely manner?
AUDIENCE MEMBER:
MR. REISINGER:
Not 12 years, not 10 years.
Well, what is? What is a timely
manner? And if they're for sale and no one is buying them,
and they are for sale for market value, how do you enforce
that? I'm willing to take any suggestion on how you
enforce that.
MR. LEFEVER: The residential lots are listed
for sale.
MR. WYRICK: Dan Wyrick, Alexander Spring Road.
Sir, if I could ask a question to that. You said the
residential lots are listed for sale. Are they listed with
any sort of visual signage with any particular real estate
agency, and/or is there a listing contract on those, I
presume I would have to say, four residential lots?
MR. LEFEVER: Well, that is really beyond the
scope of what we're here for tonight. And I'm not sure I'm
fully prepared to answer the question. But to the best of
my knowledge, there's a Century 21 agency listing for the
35
1 entire site. And four of those lots are being marketed for
2 residential purposes. And I believe that the property is
3 in a multi-list listing, is it not?
4 MR. CARPENTER: It is. So they are being
5 marketed. We simply have not had buyers for them, but they
6 are listed. They have been listed continuously. And there
7 is a sign at the entrance to that site. There are not
8 signs on each and every tract of land that's for sale
9 there, but it is identified and multi-listed.
10 MR. WYRICK: And that is, if I understand it,
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for the commercial lots?
MR. LEFEVER:
For commercial and residential,
for all lots that are not sold in there.
MR. WYRICK: So that would mean, if I'm correct,
11 of the 12 lots, because one of the lots is owned by some
business organization presently, I believe?
MR. LEFEVER:
I think that's correct.
I'm not
-- I have not looked at the listing. But it's my
understanding that that's correct.
MR. JONES: Ray Jones, 624 Burnt House Road. I
have a suggestion for possible enforcement, and that is not
to provide additional permitted uses when existing
permitted uses conditions are not met.
MR. REISINGER: That's what I did.
MR. JONES:
I'm talking about this evening.
If
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1 we continue to let permitted uses when previously permitted
uses conditions have not been met, I think we should take
that into consideration.
The other question that I have is if this
permitted use were allowed, are we expecting any type of
improvements to be made or signage or facades being put on
the building? Or is there -- or is it just going to be the
use of the existing building on the property?
CHAIRMAN EBY: Thank you.
MR. LOWRY: That was one of the questions I had
there about signing on the building. What would be -- what
type of sign would you put out? Where would it be located.
THE WITNESS: We typically put a vinyl-type,
metal/vinyl lettering sign on the side of the building, on
the siding on the side of building. Our signs are
typically not lighted in any way, and they're attached to
the building.
As I said, we're not really marketing ourselves
to retail business. But we don't put up a big neon sign
that's going to draw people. It's a sign that identifies
our building on the building. And they're typically -- I
can't give you dimensions. But they're not particularly
large.
MR. REISINGER: Can you guess on the size of the
sign? 8 by 4?
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THE WITNESS: Probably maximum 8 by 4. I'm
guessing smaller. I don't want to tell you a size of the
sign and be wrong.
MR. REISINGER: Just wanted an idea.
THE WITNESS: 8 by 4, relatively small, and
usually right above the entrance.
MR. STALLSMITH: On your fork truck, the propane
gas, if it is that, where would you store that?
THE WITNESS: We would need to store it inside
in an enclosed flammable gas container.
MR. STALLSMITH: So there would be none outside?
THE WITNESS: We wouldn't store gas outside.
MR. STALLSMITH: Okay. And would you have
security lighting?
THE WITNESS: I would typically think we might
have a minimal amount of outdoor lighting. Probably limit
-- we would need some kind of outdoor lighting, but it
would be minimal.
MR. STALLSMITH: Could that be in a -- like at a
down aim?
THE WITNESS: Oh, definitely, yeah. It would be
probably above our entrance, aiming down so there was light
at the door and whatever door we would use as far as a
truck backing up to the door, again, a down aiming light on
the side of the building there. But it would be minimal.
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Again, we don't light the place up.
MR. STALLSMITH: And then could you live with
it if we put something in if you would get approval, no
outside storage of any type?
MR. LOWRY: The outside storage is on the order.
MR. STALLSMITH: But I think that should be
re-entered. And then no duct cutting machine of any type
at this installation?
THE WITNESS: In all honesty, I wasn't sent
tonight in a position to speak for the company as to
whether we would, if that were the condition of the zoning,
whether we would then purchase the building or not.
So I guess my answer would be, if you guys put
that in a special order -- in the order, that's going to
affect what happens in terms of our purchase of the
property for our use. I can't tell you tonight I would
agree to it. If you guys put it in there, we'll have to
move forward.
MR. PRICE: James Price again, Alexander Spring
Road. Couple of questions. One, what is the basic
interpretation of the ordinance? I understand the attorney
has one idea, and you all have another. But as far as this
goes with their coming here tonight, is it your
24 understanding, the Zoning Board, that they're not asking
25 for any kind of change? They want to use this lot as it is
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currently zoned, and is that your understanding? Is that
how it's coming to you all? Is that your interpretation or
his?
CHAIRMAN EBY: My interpretation is he's asking
for a change to what we settled on in 1994.
MR. PRICE: And in terms of the scope of this
for this evening and varying degrees of perception as to
what this ruling or ordinance says and concerns of the
residents, I would urge you not to approve, or to deny it.
Because whatever -- it appears, like the box cutting thing,
he cannot respond to that.
I'm afraid almost anything we would say would be
restrictive in terms of their trade and possibly not be
something that they would want to make a commitment to
tonight.
Therefore, I don't see how we could give them an
affirmative on this change, because there are some
instances that have been brought up to date that haven't.
been met to begin with.
And I think it would be rather difficult to
backtrack on this if we found we had to enforce something
that hadn't been enforced before and now grandfathered in.
And I would encourage you not to respond in the affirmative
24 this evening.
25 CHAIRMAN EBY: Okay. Thank you.
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MR. WERTIME: David Wertime. I have a question
that if -- my understanding is that this company is not
buying everything that was subject to that previous order.
They're only buying one lot.
And so my question that I have is that, if you
grant this, believing that this prior order is valid and
affects this particular lot, and then let's say the other
property owner that's trying to market these individual
residential lots and other lots comes in and says, look,
this special exception just isn't working for us, we want a
change also and they come in and ask for a change for all
the other property, and then we have two different rules
that originally started out as one rule.
And I'm not sure how the Board is going to make
that work, if you look at it in those terms.
MR. REISINGER: I think we need to clarify that
this is an appeal of a decision. This is an interpretation
I made. The Applicant is appealing an interpretation I
made.
MR. WERTIME:
I understand that, Mr. Reisinger.
The question is, is it a continuation of that order or a
change of that order? Are they looking at it from the
standpoint as a single lot aSking for a change of use?
24 Which if we understand Mr. LeFever, this was a pre-existing
25 order prior to this zoning ordinance, which would make that
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lot a nonconforming use.
MR. LEFEVER:
It's our position that there are
12 lots here, all of which are subject to that prior
special exception decision. We are not seeking to change
anything. We are seeking the ability to use -- of the
eight lots, four of them must be used according to that
decision for professional offices, and four may be used for
commercial purposes.
So if this lot No. 8 were used for APR Supply
Company, there would be three remaining commercial lots
subject to this special exception, no different from this
special exception. And there would be three lots remaining
for professional usage.
I think there's already one building there
occupied for professional usage by a research facility, if
I'm correct.
So that -- again, this is not seeking a
change, and this is not seeking to treat one of these lots
any different from the other 12.
The order restricts four of them to residential
usage, and that's the contemplated future development of
21 those four lots.
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MR. WERTIME: And my question is, if the
Applicant is not buying all those other lots, how can he
ask you to change that existing order to affect other lots
that he doesn't own?
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1 MR. LEFEVER: I'm not sure.
2 MR WERTIME: Because if you change it just for
3 his lot, then that changes that prior order.
4 MR. REISINGER: He's not asking for a change.
That's what -- he's asking -- he is disagreeing with me
about what the order says.
MR. WERTIME; And the disagreement is that he
can't change his use. Was that your order?
CHAIRMAN EBY: My interpretation is what he's
asking for is that his lot would be the one that's allowed
to be a retail-kind of business. He's saying half of all
the lots need to be professional kind of businesses. And
the other ones can be something else. And he wants his to
be one of those something else.
MR. WERTIME: And the existing use of that lot
is?
CHAIRMAN EBY: It's not being used at all.
MR. LEFEVER: It has a building on it that is
currently vacant.
MR. WERTIME: And it was used as what?
MR. REISINGER: It's never been used.
CHAIRMAN EBY: That building was brought from
somewhere else and put there and not been used.
MR. LEFEVER: There has been a certificate of
zoning compliance issued for that building.
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CHAIRMAN EBY: Yes, sir.
MR. SESACK: My name is Harry Sesack.
845 Alexander Spring Road.
CHAIRMAN EBY: Mr. Sesack, one minor point, you
I live at
came in after everybody was sworn in.
HARRY SESACK, called as a witness, being duly
sworn, was examined and testified as follows:
MR. SESACK: A few comments and maybe a few
questions. I came in late, and I apologize for that. I'm
not informed about all the legalities here. But it seems
to me for the public record, if the Applicant is asking for
something, there may be a document to show what
specifically is at issue here. It seems to be very vague
about what we're talking about.
And so we can look at it and examine it during
the course of the meeting to get an idea of what the
controversy between the zoning officer and the Applicant.
And then, how does the law come into play?
I would like somebody here to kind of put it
into layman's terms. I generally don't attend these
meetings. I think I should probably attend more of them.
I think this is an important meeting on how Alexander
Spring Road is going to be used.
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I am very much interested in it, because I live
there. We've been there for 18 years, and I love the
property. I'd just like to, before the meeting or before
the vote, have someone put it in some kind of layman's
terms. What is the major issue here? Are they applying
for a change to the zoning ordinance
MR. REISINGER: No.
MR. SESACK: to put a nonconforming building
in there? Could someone put that in layman's terms for me
so that I can understand? When the planning board makes a
decision, what is the decision based on? And are there any
written documents to show us as the public what are the
requirements? I see some people have the legal ruling that
was made in 1994. I don't have access to it.
MR. REISINGER: You have access to it.
MR. SESACK: I do? It's a public record.
MR. REISINGER: You do. It's a public record.
MR. SESACK: Right here in Dickinson Township?
MR. REISINGER: Yes, sir.
MR. SESACK: Someone told me there's a meeting
tonight and I should get over there if I'm interested in
Alexander Spring Road. I just want to get some kind of
idea what are the key points so that I can see if I'm
either for it or against it.
MR. EBY: Ron did a pretty good job, I think, in
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1 terms of what his intent -- or what our intent was when we
2 passed this ruling in 1994. Do you want to do that again,
3 since you did such a good job?
4 MR. LOWRY: Well, this was the order that was
5 done. And this was part of what you had said, too, that
6 was the order, not the decision.
The Dickinson Township Zoning Hearing Board
hereby grants as a special exception for the area that's
set forth in sketch plan A-I, dated May 23rd, 1994 as
follows: Tractor trailer traffic on Alexander Spring Road,
the access road to the site, should be limited to drop
shipment during business hours.
There'd be a minimum of 50 percent of the square
footage of the buildings in the commercial portion to be
devoted to professional offices such as medical, dental,
legal and accounting, that this retail use be no more than
17 20 percent of the total building square footage of the
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commercial portion, and that to be generally associated
with the primary use such as pharmacy in association with
medical offices.
And the retail uses may be combined in one or
more buildings. No drive-in, drive-thru-type of business
operation except for drive-thru bank facilities.
There will be no storage or commercial
activities outside the building -- that was one of the
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points we talked about -- that no portion of any proposed
building facing the residences be concrete block or steel.
There'd be no mobile home park or individual mobile homes,
that hours of operation of the business shall be conducted
between 7:00 a.m. and 9:00 p.m., that the entrance and exit
of the development not be directly across from an existing
residence.
As screening, a vegetative buffer as set forth
and proposed by the new ordinance be placed. However, on
the western side, the 50-foot vegetation buffer zone may
include parking spaces for the commercial uses. And on the
northern side, the 50-foot vegetation buffer zone shall
include the 35-foot rear setback of the residential lots.
And the Board notes that the developer has
affirmed that he will move forward to sell the lots along
the Alexander Spring Road for residential purposes only in
a timely fashion and at fair market values.
And that was signed by Joe Widra, who was our
secretary at the time and myself. At that time, I was the
Chairman of the Board, and that was August the 22nd, 1994.
Those were the orders that we put on it at that time.
MR. SESACK: What is the Applicant alleging
here?
MR. REISINGER: That I'm wrong.
MR. SESACK: How are you wrong?
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CHAIRMAN EBY: Let's not get into that again.
His interpretation of this is, is all of those properties
together are to be 50 percent professional, and the other
50 percent could be retail or something else. Okay.
MR. PRICE: James Price, Alexander Spring Road.
In interpreting that, do we need a solicitor to help us?
Are we allowed to interpret what you just read in
interpreting what the order actually is? In other words,
the attorney can state, well, this is what it means,
because of this and this. But that's his interpretation.
What Mr. Lowery just read was the basis for the
order, my understanding, that creates this zoning,
pertaining to these lots. So in interpreting what actually
the order means, can we not go back to what was actually
stated for this order in interpreting this?
And thereby, if their attorney is making his
interpretation and it is not what the residents feel nor
the Zoning Board, then I don't see how we can make a
decision on this in favor of letting them do what they want
to with that building.
MR. LEFEVER: Well, the essence of the
difference between the zoning officer's decision denying
this and the Applicant's appeal and under the law, when the
24 zoning officer makes a decision, there is a right to appeal
25 that decision to the Zoning Hearing Board.
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And on behalf of the Applicant, we feel that the
interpretation that the entire eight lots needed to be
devoted to professional use was an incorrect
interpretation, since the language of the order says a
minimum of 50 percent of the square footage of the
commercial portion be devoted to professional offices. So
that the other 50 percent can be devoted to something other
than professional offices.
And that is essentially the issue that is before
this Board tonight, is that difference of opinion. And
it's all based upon an order that has been issued by the
Board and is a final order without any appeal having been
taken by any of the parties.
MR. PRICE: But again, I submit to you that
it's still your interpretation.
MR. REISINGER: Hold on, James. These guys were
I wasn't here. So I didn't -- these guys voted on
here.
this in 1994.
CHAIRMAN EBY: We've heard that before. You're
right. That's what we're going to make a choice about.
MS. CRAIG: Pat Craig, Alexander Spring Road.
Can I just ask a question about the residential properties
that are for sale? Are they for sale on an individual
basis so someone could come in and by one of those
residential properties, or is it the whole kit and caboodle
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1 for sale where a buyer would have to come in and buy
2 everything? They're for sale individually?
3 MR. LEFEVER: My understanding is they're listed
4 as individual lots.
5 MR. CARPENTER: It's individual properties.
6 MR. LEFEVER: And there has been a subdivision
7 plan approved that gives a metes and bounds description of
all 12 parcels.
CHAIRMAN EBY: Anybody else?
MR. GRAHAM: Kenneth Graham. Under the order,
the third item there, I mean, this, to me, is a retail
business. To say no more than 20 percent of the building
square footage to be devoted to retail, it seems to me 100
percent of that building is for retail use. Maybe sales
are only going to be conducted from the counter from the
outside, but the rest is storage to accommodate the sales.
It seems to me that building is lOa percent retail.
MR. LOWRY: Retail business, I can maybe
interpret that a little, too. A retail business is a
retail business. But they're saying you can have a retail
business. And say, 20 percent of that is counter space for
retail sales, but the rest of it is still a retail
business.
24 You know, if somebody comes into your shop, you
25 have a counter, that's where you sell from. You don't
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you have the others for storage. It's still a retail
business. But only 20 percent of it can be used for the
counter sales. That's how I interpret that, where you
actually have customers approaching and buying. I don't
know how you interpret that.
MR. LEFEVER: That's the limitation that we
interpret is the 20 percent of the square footage is the
retail sales portion, and this is
CHAIRMAN EBY: And the rest?
MR. LEFEVER: a wholesale business, basically
to commercial contractors.
CHAIRMAN EBY: Very little of that could be
confused as professional.
MR. SPRAUN: Dennis Spraun, Alexander Spring
Road. I'd just like to suggest, it seems to me when the
hearing was held back in 1990, whatever, it was all
recorded, wasn't it? Can't you go back and review all of
the system and all of the discussion to try to establish
what your intent was at the time? I thought that was
recorded, and it was all transcribed.
CHAIRMAN EBY:
MR. SPRAUN:
Two of us were here that night.
I think it was all transcribed and
copies provided. So it might aid you in establishing what
the intent was.
MR. REISINGER: They all have copies of the
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decision and the order.
MR. SPRAUN: I understand. I'm just saying that
all of the testimony and discussion that went into it, I
think was transcribed.
CHAIRMAN EBY: Are you ready to make a motion?
MR. STALLSMITH: Um-hum.
CHAIRMAN EBY: Do it.
MR. STALLSMITH: I make a motion that we have a
limitation that we approve it, but there will be no outside
storage of any type, and no duct cutting machine installed
inside, and try to get the least audible sound on a
forklift that's available, to the lowest DB rating.
MR. LOWRY:
I'd second that.
MR. STALLSMITH: Okay.
CHAIRMAN EBY: You two are in favor, so I guess
it passes. If it's going to pass, then we need to delay
the final thing until we can meet with our solicitor and
make up the conditions that are enforceable for the use of
that building.
MR. LEFEVER: Okay.
CHAIRMAN EBY: He's given us a general guideline
on what they're going to be. I would like to have our
solicitor help us write that.
MR. LEFEVER: The general guideline is no
outside storage, no duct cutting machinery, and the least
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audible sound on a forklift?
MR. STALLSMITH: The lowest DB rating.
MR. LEFEVER: And you wish to put those into
language acceptable to your solicitor?
CHAIRMAN EBY: We want the solicitor to put in
the language.
MR. STALLSMITH: Rob will write that.
CHAIRMAN EBY: You have on your list there
security lighting, we need to define that, also.
MR. STALLSMITH: Down light for security
lighting, down aiming.
MR. LEFEVER: Okay.
CHAIRMAN EBY: And we'll do that at his earliest
convenience.
MR. LEFEVER: Thank you.
CHAIRMAN EBY: Do you have a comment?
MR. JONES: Ray Jones, 624 Burnt House Road.
Mr. Chairman, is there an appeal process available to us
because our solicitor was not present this evening?
CHAIRMAN EBY: I don't know. We can ask him.
There should be an appeal process for the public, for the
neighbors.
MR. JONES: We'd like the opportunity to have
our solicitor provide legal position to this decision.
CHAIRMAN EBY: Okay. We can find out from him.
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We can have him let you know what that process is.
MR. JONES:
I'm just concerned that
MR. STALLSMITH: He's going to listen to all the
tapes for tonight.
MR. JONES: But he wasn't able to provide input
for which you probably would have made your decision from
the legal standpoint.
CHAIRMAN EBY: Okay. We're going to listen to
that.
MR. LOWRY: He's going to listen. He's going to
come In and listen to all the tapes.
I don't know how many
tapes we have tonight, but he's going to, you know, go over
it all, too.
MR. JONES: So I think what I'm asking is if a
final decision can be withheld until the solicitor agrees
that we can do something.
CHAIRMAN EBY: Right. That's -- we need to have
him help us write the conditions of how the building is
going to be operated and used, and then they can decide if
they want to do it or not.
MR. WERTIME: David Wertime. Are you continuing
this matter to another date so that the final decision then
will be made publicly?
MR. LEFEVER: There was a motion made and passed
tonight.
54
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CHAIRMAN EBY: Right. The motion was made and
passed. He's just going to help us write those conditions,
so they're
MR. REISINGER:
CHAIRMAN EBY:
Before you sign them.
-- written the way we want them
interpreted.
MR. JONES: Since there's a motion made and
passed, is there an appeal process?
CHAIRMAN EBY: He can tell us what the appeal
MR. REISINGER: I can let you know. I can
contact him and find out what that process is.
MR. JONES: Okay. I just want to make sure
MR. LEFEVER: Thank you.
CHAIRMAN EBY: Thank you all for coming.
(The hearing concluded at 8:20 p.m.)
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process is.
we're okay.
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1
I hereby certify that the proceedings and
2
evidence are contained fully and accurately in the notes
3
taken by me on the within proceedings, and that this copy
4
is a correct transcript of the same.
5
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TAMMY NOTARIAl-SEAl.
c:.-lllI.E~~ NOTAflYPUlluC
""~."'SSION EX~~COUNrV
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Public
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The foregoing certification does not apply to
any reproduction of the same by any means unless under the
direct control and/or supervision of the certifying
reporter.
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next:
Pre-Trial Argument Court
-X.. Argument Court
--------------------------------------------------------------------------
BOARD OF SUPERVISORS OF
OF
DICKINSON TOWNSHIP,
PENNSYL VANIA
Appellant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
2005-4412
v.
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP,
Appellee
CIVIL ACTION - LAW
v.
ENOLA CONSTRUCTION COMPANY,
Appellee
I. State matter to be argued: Appeal from Decision of Zoning Hearing Board
of Dickinson Township
2. Identify counsel who will argue case:
(a) for Appellant: Marcus A. McKnight, III
(b) for Appellee: Robert L. 0' Brien (Zoning Hearing Board)
(c) for Appellee: Donald E. LeFever (Enola Construction Company)
3. I will notify all parties in writing within two days that this case has been
listed for argument.
SALZMANN HUGH~
By < ~
Donald E. LeFever, Esquire -------
Attorney J.D. No. 06902
354 Alexander Spring Road, Suite I
Carlisle, PA 17013
(717) 249-6333
Attorneys for Enola Construction Company
Dated: December 8. 2005
-l
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,
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP
; IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP
V.
ENOLA CONSTRUCTION COMPANY 05-4412 CIVIL TERM
IN RE: APPEAL OF BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP FROM DECISION OF
THE ZONING HEARING BOARD OF DICKINSON TOWNSHIP
BEFORE BAYLEY. J. AND GUIDO. J.
ORDER OF COURT
AND NOW, this
~
day of January, 2006, the order of the Zoning
Hearing Board of Dickinson Township on July 29,2005, IS VACATED.
;sal
By the Court,
.,/Marcus A McKnight, III, Esquire
For Board of Supervisors of Dickinson Township
o
,/Donald E. LeFever, Esquire
For Enola Construction Company
o i :2 /..!d I S WJr 90az
"'"1'.,,,""..,", 'i, .""1 JO
AdV \".l\;v;--;,J...J":"::' ;:l!"1 -l
j~)ij:~O-O:JIL:l
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP
V.
ENOLA CONSTRUCTION COMPANY 05-4412 CIVIL TERM
IN RE: APPEAL OF BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP FROM DECISION OF
THE ZONING HEARING BOARD OF DICKINSON TOWNSHIP
BEFORE BAYLEY, J. AND GUIDO, J.
OPINION AND ORDER OF COURT
Bayley, J., January 31, 2006:--
On August 23,1994, the Zoning Hearing Board of Dickinson Township
considered an application by the Enola Construction Company for a special exception
to construct office buildings in a District that was then zoned Agricultural/Residential.
The decision set forth that ''the plan submitted by the applicant is conceptual in nature
and shows the intended special exception uses which may be revised or refined in
future subdivision/land development plans." The Board ordered:
The Dickinson Township Zoning Hearing Board hereby grants as a
special exception for the area as set forth in Sketch Plan A-1,
Development Scheme dated May 23, 1994 as follows:
1) that tractor trailer traffic on Alexander Spring Road, the
05-4412 CIVIL TERM
access road to the site, should be limited to drop shipments
during business hours;
2) there be a minimum of 50% of the square footage of the
buildings in the commercial portion be devoted to
professional offices such as medical, dental, legal and
accounting.
3) that the retail use be no more than 20% of the total building
square footage of the commercial portion and that it be
generally associated with the primary use such as pharmacy
in association with medical offices and the retail uses may
be combined in one or more buildings.
4) there be no drive-in/drive-thru type of business
operation except for drive-thru banking facilities;
5) there be no storage or commercial activities outside of
the buildings;
6) that no portion of any proposed building facing the
residences be concrete block or steel;
7) there be no mobile home park or individual mobile homes;
8) that hours of operation of the business be conducted
between 7:00 a.m. - 9:00 p.m.;
9) that the entrance/exit of the development not be directly
across from an existing residence;
10) that screening as a vegetative buffer as set forth in the
proposed new ordinance be placed; however, on the
western side the 50 foot vegetative buffer zone may
include parking spaces for the commercial uses and on the
northern side the 50 foot vegetative buffer zone shall include
the 35 foot rear setback of the residential lots.
11) that the Board notes that the developer has affirmed that he
will move forward to sell the lots along the Alexander Spring
Road for residential purposes only in a timely fashion and at
fair market values. (Emphasis added.)
In May 2005, the Enola Construction Company requested an interpretation from
the Zoning Officer of Dickinson Township as to whether a specific use would be
permitted in the same area in what is now a Medium Density Residential Office District
(MDR-O). The proposed use in an existing building would house a business that would
be primarily engaged in the wholesale distribution of plumbing, heating, air conditioning,
-2-
05-4412 CIVIL TERM
controls, refrigeration and industrial supplies. On May 6, 2005, the Zoning Officer
issued the following interpretation:
Section 3 of the Order states "that the retail use be no more than 20% of
the total building square footage of the commercial portion and that it be
generally associated with the primary use such as pharmacy in
association with the medical offices and the retail uses may be combined
in one or more buildings".
It is the interpretation of this office that any retail operations to be
conducted at Alexander Court must be in support of one of the
primary uses, being medical, dental, legal or accounting. After
consideration of the request, we have arrived at the conclusion that
the occupancy of a plumbing supply store in the Alexander Court
Subdivision would not be in keeping with the uses approved by the
Zoning Hearing Board in 1994.
We are of the opinion that a plumbing supply store would be better suited
to be located in the Business-Recreational zone where it would be in
compliance with the retail operations aspect or in the Business-Industrial
zone to be described as warehousing, depending on the details of the
operation.
This decision can be appealed by submitting an application for this case
to be reviewed by the Zoning Hearing Board. Applications are available at
the Township Building and should be submitted at your first opportunity.
(Emphasis added.)
Enola Construction Company filed an appeal that set forth: "Appeal of use
request denied by Zoning Officer." The appeal was heard by the Zoning Hearing Board
on June 28, 2005. Evidence was taken, and at the conclusion of the hearing, the
following occurred:
MR STALLSMITH: I make a motion that we have a limitation
that we approve it, but there will be no outside storage of any type,
and no duct cutting machine installed inside, and try to get the least
audible sound on a forklift that's available, to the lowest DB rating.
MR LOWRY: I'd second that
MR STALLSMITH: Okay.
CHAIRMAN EBY: You two are in favor, so I guess it passes. If
it's going to pass, then we need to delay the final thing until we can meet
-3-
05-4412 CIVIL TERM
with our solicitor and make up the conditions that are enforceable for the
use of that building.
MR. LEFEVER: Okay.
CHAIRMAN EBY: He's given us a general guideline on what
they're going to be. I would like to have our solicitor help us write that.
* * *
MR. WERTIME: David Wertime. Are you continuing this matter to
another date so that the final decision then will be made publicly?
MR. LEFEVER: There was a motion made and passed tonight.
CHAIRMAN EBY: Right. The motion was made and passed. He's
just going to help us write those conditions. .. (Emphasis added.)
On July 29, 2005, the Board issued the following written decision and order in
support of its vote on June 28, 2005:
FINDING OF FACT:
1. The matter came before the Zoning Hearing Board on an
application to interpret the Zoning Officer's decision to deny
occupancy to APR distribution which desires to operate a plumbing,
heating and air conditioning supply house, at 8 Kuhn Drive, as a
branch to their main distribution center in Lebanon, Pennsylvania. The
location is zoned MDR-O and is subject to a special exception
granted in August, 1994.
2. The APR representative testified that there would generally
be no more than one daily delivery by a 24 foot box truck between the
hours of 5:00 p.m. to 7:00 p.m. This truck would be loaded at the
distribution center in Lebanon, Pennsylvania and arriving at the aforesaid
hours.
3. The business operation at the location would operate
between the hours of 7:30 a.m. to 5:00 p.m. It was anticipated that two
employees would staff the location. These employees would perform the
majority of their work by receiving telephone calls from contractors. The
orders, in turn, from the contractors would generally be shipped from the
Lebanon, Pennsylvania distribution center directly to the customers [sic]
business location or job site.
4. In addition to the telephone orders they anticipated that
approximately 30 to 50 customers would visit the location to pick up
plumbing, heating and air conditioning items at the location.
5. On an occasional basis, an emergency delivery from the
location could be made to a customer by a pick up truck that would be
-4-
05-4412 CIVIL TERM
utilized by one of the employees at the location.
6. There will be no outside storage at the location.
7. There would be no duct board fabrication at the location.
8. Refrigerant would be available at the location in a 30 pound
sealed canister. No sales would take place to any customer that did not
have the proper state and federal permits. There would be no Refrigerant
processing done at the location.
9. The location would have a small forklift, electric or propane.
If the forklift were propane, the fuel would be stored inside the facility in a
[sic] OSHA approved location.
10. There are currently 14 branch locations of the business.
The business has been developing smaller branch size locations and
concentrating all of the storage and delivery from the distribution center in
Lebanon, Pennsylvania.
11. There would be a small sign without lighting that would
probably be metal and vinyl lettering. The sole purpose of the sign would
be to identify the building as the location of the branch operation.
12. There would be minimal outdoor security lighting which
would be above the entrances and directed downward.
13. There were several neighbors adjacent to the location who
were concerned about the business activity as well as the interpretation of
the 1994 decision by the Zoning Hearing Board in considering the uses
that would be permitted at this particular location and the surrounding
locations. (Emphasis added.)
ORDER
After hearing the Dickinson Township Zoning Hearing Board issues
the following decision and Order:
1. The determination by the Zoning Office is set aside. All
prior provisions of the 1994 Zoning Hearing board Findings of Fact and
Order are adopted and incorporated herein.
2. In addition to the provisions of the 1994 Findings of Fact
and Order, and in relation to the use by APR Supply Company, the
Board Orders that:
a. That there be no outside storage permitted at the
location. One dumpster shall be allowed.
b. That no duct fabrication or other fabrication is
permitted at the location.
c. That during business operations as well as during the
unloading of the delivery truck to the location, that the
company utilize equipment to minimize any sound
traveling outside the building to the lowest decibel
-5-
05-4412 CIVil TERM
level possible, to the neighboring residences.
d. That the business shall be permitted to have signage
of 3' by 4', and there be no lighting of the sign.
e. That lighting on the building for security purposes is
permitted at the entrances and exits, which lighting
shall be downward directed so as not to impact on the
neighboring uses.
f. The size of the building shall not be increased.
g. The property shall be planted with lawn and shrubs
and maintained in a fitting manner to be compatible
with the adjoining residential uses. (Emphasis
added.)
The Board of Supervisors of Dickinson Township filed an appeal which was
briefed and argued on January 11, 2006. The Supervisors maintain that the Zoning
Hearing Board failed to address the interpretation of the Zoning Hearing Officer, and
abused its discretion by extending to Enola Construction Company the use for a
wholesale plumbing distribution business on its site. In Hopkins v. North Hopewell
Township Zoning Hearing Board, 154 Pa. Commw. 376 (1993), an owner submitted
an application to the zoning hearing board entitled "Request for Interpretation," asking
the Board to interpret a section of the zoning ordinance as to whether their tract could
be subdivided into six residential lots, and in addition contain a seventh dwelling for
their use as a "prime farmstead" as that term was defined in the ordinance. The Board
issued a decision interpreting the ordinance as allowing only six single-family detached
dwellings and no prime farmstead. Unsatisfied with this interpretation, the owner filed
an appeal. The trial court declined to address the merits and vacated the zoning
hearing board's determination. It concluded that the Board lacked jurisdiction to grant
the interpretation that the owner sought. The Commonwealth Court of Pennsylvania
-6-
05-4412 CIVIL TERM
affirmed, concluding that the Municipalities Planning Code does not empower a zoning
hearing board to issue an interpretation of a zoning ordinance. The Court noted that
the owner alternatively suggested:
. . . that the zoning board had before it a request for specific relief in the
nature of a variance to move the non-conformity [Le., the preexisting
farmstead] to a new area...." The Hopkinses certainly did not submit an
application for a variance, with its attendant requirement to make out a
case for unnecessary hardship due to the unique physical circumstances
or conditions of the property. In their application, the Hopkinses asked for
an interpretation of the zoning ordinance, not a variance from it.
The Municipalities Planning Code (MPC) at 53 P.S. Section 10614, sets forth the
powers of a Zoning Officer. It provides in pertinent part:
The zoning officer shall administer the zoning ordinance in accordance
with its literal terms, and shall not have the power to permit any
construction of any use or change of use which does not conform to the
zoning ordinance.
Section 205-79 of the Dickinson Township Zoning Ordinance sets forth the
duties of the Zoning Officer. Like the MPC, it does not authorize the Zoning Officer to
issue an interpretation of a zoning ordinance. In the case sub judice, the Zoning
Hearing Officer considered a request by the Enola Construction Company for an
interpretation of whether a specific use would be permitted in a particular area of the
Township. That interpretation is a nullity. Enola Construction Company filed an appeal
from the interpretation that set forth: "Appeal of use request denied by Zoning Officer."
The Zoning Officer did not deny a use request. The Zoning Hearing Board, in its
findings of fact dated July 29, 2005, stated that the matter came before it "on an
application to interpret the Zoning Officer's decision to deny occupancy to APR
-7-
05-4412 CIVIL TERM
Distribution which desires to operate a plumbing, heating and air conditioning supply
house, at 8 Kuhn Drive. . . ." There had been no application for an occupancy permit
before the Zoning Hearing Officer, and the officer did not deny such an application. As
in Hopkins, the order of the Zoning Hearing Board will be vacated. The action it took
on June 28, 2005, and the order in support of it on July 29, 2005, were not properly
before it on appeal. Any interpretation made by the Board is a nullity.
AND NOW, this
ORDER OF COURT
,?"tsf- day of January, 2006, the order of the Zoning
Hearing Board of Dickinson Township on July 29,2005, IS VACATED.
Marcus A McKnight, III, Esquire
For Board of Supervisors of Dickinson Township
By the Court,
Donald E. LeFever, Esquire
For Enola Construction Company
:sal
-8-
6
Salzman,,_ Hughes, P,c.
8y: E. Ralph Godfrey, Esquire
Attorney 1.0. No. 77052
354 Alexander Spring Road, Suite 1
Carlisle, PA 17013
(717) 249-6333
Attorneys for Appellants Enola Construction Company
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP
NO. 2005-4412 CIVIL TERM
v.
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP,
LAND USE APPEAL
v.
ENOLA CONSTRUCTION COMPANY
NOTICE OF APPEAL
Notice is hereby given that Enola Construction Company hereby appeals to the
Commonwealth Court of Pennsylvania from the Order dated January 31,2006 and
entered on January 31, 2006 vacating the Zoning Hearing Board of Dickinson Township
determination of July 29,2005. This order has been entered in the docket as evidenced
by the attached copy ofthe docket entry.
Respectfully submitted,
),J3 ~olo
09220202222006
PYS5l0.
Cumberland County Prothonotary's Office
Civil Case Print
Page
1
2005-04412 DICKINSON TOWNSHIP BOARD OF (vs) DICKINSON TOWNSHIP ZONING ETAL
Reference No.. : Filed. . . . . . . . : 8/26/2005
Case Type.....: APPEAL - ZONING Time.........: 4:05
Judgment...... .00 Execution Date 0/00/0000
Judge Assigned: Jury Trial....
Disposed Desc. : Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.:
Higher Crt 2.:
********************************************************************************
General Index Attorney Info
DICKINSON TOWNSHIP BOARD OF
SUPERVISORS
219 MOUNTAIN VIEW ROAD
MOUNT HOLYY SPRINGS PA 17065
DICKINSON TOWNSHIP ZONING
HEARING BOARD
219 MOUNTAIN VIEW ROAD
MOUNT HOLYY SPRINGS PA 17065
ENOLA CONSTRUCTION COMPANY
608 ALEXANDER SPRING ROAD
CARLISLE PA 17013
APPELLANT
MCKNIGHT MARCUS A III
APPELLEE
APPELLEE
*******************************************************~.************************
* Date Entries *
*******************************************************~~************************
8/26/2005
8/26/2005
8/29/2005
9/14/2005
9/14/2005
9/14/2005
12/08/2005
12/08/2005
1/31/2006
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
APPEAL FROM DECISION OF ZONING HEARING BOARD
----------~--------------------------------~._--------------------~-
WRIT OF CERTIORARI MAILED BY CERTIFIED MAIL
----------~---------------------------------"-----------------------
AMENDED CERTIFICATE OF SERVICE - BY MARCUS ], MCKNIGHT III ESQ
-------------------------------------------------------------------
RESPONSE TO NOTICE OF APPEAL - BY DONALD E LEFEVER ESQ
--------------------------------------------.-----------------------
CERTIFICATE OF SERVICE FOR A COPY OF RECORD - BY TINA M ASCANI
SECRETARY
--------------------------------------------------------------------
RETURN OF WRIT OF CERTIORARI - BY ROBERT L O'BREIN ESQ
--------------------------------------------------------------------
PRAECIPE FOR LISTING CASE FOR ARGUMENT - APPEAL FROM DECISION OF
ZONING HEARING BOARD - BY DONALD E LEFEVER ESQ
--------------------------------------------------------------------
PRAECIPE FOR LISTING CASE FOR ARGUMENT - APPEAL FROM DECISION OF
ZONING HEARING HEARING BOARD - BY DONALD E LEFEVER ESQ
-------------------------------------------------------------------
OPINION AND ORDER - DATED 1/31/06 - IN RE APPEAL OF BOARD OF
SUPERVISORS OF DICKINSON TWP FROM DECISION OF THE ZONING HEARING
BOARD OF DICKINSON TWP - THE ORDER OF THE ZONING HEARING BOARD OF
DICKINSON TWP ON 7/29/05 IS VACATED - BY THE COURT EDGAR B BAYLEY
J COPIES MAILED
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
********************************************************************************
* Escrow Information *
* Fees & Debits BeG Bal Pvmts/Adl Snd Bal *
*****************************************~******~******.*************************
APPEAL ZONING
TAX ON APPEAL
SETTLEMENT
AUTOMATION FEE
JCP FEE
35.00
.50
5.00
5.00
10.00
35.00
.50
5.00
5.00
10.00
.00
.00
.00
.00
.00
------------------------ ------------
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* End of Case Information Li . ... ,..,'.; ,,'. . I .. . . 'n.. *
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP
NO. 2005-4412 CIVIL TERM
v.
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP,
LAND USE APPEAL
v.
ENOLA CONSTRUCTION COMPANY
REQUEST FOR TRANSCRIPT
No transcript was made or is necessary from the Cumberland County Court of Common
Pleas for the appeal in this matter. Please provide the Commonwealth Court with a copy of the
hearing transcript from the Zoning Hearing Board of Dickinson Township previously submitted
in this matter.
cJ-;>!VO~
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Do ". LeD ver, Esquire
E. Ralph Godfrey, Esquire
Attorney ID# 06902 and 77052
354 Alexander Spring Road,
Suite I
Carlisle, P A 17013
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
BOARD OF SUPERVISORS OF
DICKINSON TOWNSHIP
NO. 2005-4412 CIVIL TERM
v.
ZONING HEARING BOARD OF
DICKINSON TOWNSHIP,
LAND USE APPEAL
v.
ENOLA CONSTRUCTION COMPANY
PROOF OF SERVICE
I hereby certify that I am this day serving the Notice of Appeal and Request for
Transcript upon the persons by first class mail, which services satisfies the requirements
ofPa.R.A.P. 121, addressed as follows:
Marcus A. McKnight, III, Esquire
Irwin & McKnight
60 West Pomfret Street
Carlisle, PA 17013
Dickinson Township Board
Of Supervisors
Robert L. O'Brien, Esquire
O'BRIEN, BARIC & SCHERER
19 West South Street
Carlisle, PA 17013
Dickinson Township Zoning Hearing
Board
Honorable Edgar B. Bayley
Cumberland County Courthouse
I Courthouse Square
Carlisle, PA 17013
..--'.-
C
Date: 'd. J3 '-Ot.o
(s)
E. Ralph Godfr squire
Attorney ID# 77052
354 Alexander Spring Road, Suite I
Carlisle, P A 17013
Counsel for Enola Construction
Company
(717) 249-6333
2
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Commonwealth Court of Pennsylvania
February 28, 2006
RE: Bd. of Spvrs. of Dickinson Twp v. ZHB of Dick. Twp
No.: 415 CD 2006
Agency Docket Number: 2005-4412 Civil Term
Filed Date: February 24, 2006
Notice of Docketing Appeal
A Notice of Appeal from an order of your court has been docketed in the Commonwealth
Court of Pennsylvania. The Commonwealth Court docket number must be on all
correspondence and documents filed with the court.
Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of
Appeal has the effect of directing the Court to transmit the certified record in the matter to the
Prothonotary of the Commonwealth Court.
The complete record, including the opinion of the trial judge, should be forwarded to the
Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do
not transmit a partial record.
Pa.RAP. 1921 to 1933 provides the standards for preparation, certification and
transmission of the record.
The address to which the Court is to transmit the record is set forth on Page 2 of this
notice.
Notice to Counsel
A copy of this notice is being sent to all parties or their counsel indicated on the proof of
seNice accompanying the Notice of Appeal. The appearance of all counsel has been
entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the
date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant
to Pa. RAP. 907 (b).
Appellant or Appellant's attorney should review the record of the trial court, in order to
insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning
Ordinance must accompany records in Zoning Appeal cases).
The addresses to which you are to transmit documents to this Court are set forth on
Page 2 of this Notice.
If you have special needs, please contact this court in writing as soon as possible.
Attorney Name
E. Ralph Godfrey, Esq.
D. E. LeFever, Esq.
Marcus A. McKnight, III, Esq.
Robert L. O'Brien, Esq.
Party Name
Enola Construction Company
Enola Construction Company
Board of SupeNisors of Dickson
Zoning Hearing Board of Dickson
Party Type
Appellant
Appellant
Appellee
Appellee
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Board of Supervisors of
Dickinson Township
v.
No. 415 C.D. 2006
Zoning Hearing Board of
Dickinson Township and
Enola Construction Company
Argued: September 11, 2006
Appeal of: Enola Construction Company
~ (J5 -- #fJ, C:VC;i I
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE DAN PELLEGRINI, Judge
HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE KELLEY
FILED: November 15,2006
Enola Construction Company (Enol a) appeals from an order of the
Court of Common Pleas of Cumberland County (trial court) vacating the order of
the Zoning Hearing Board of Dickinson Township (Board) because the Board's
decision was merely advisory and therefore a nullity. The Board's decision and
order granted permission, subject to certain conditions, for a plumbing, heating and
air conditioning supply house to operate in an area previously granted a special
exception, with conditions, to construct professional office buildings. We affirm.
By decision dated August 23, 1994, the Board granted Enola's
application for a special exception, with conditions, to construct professional office
buildings on no more than a total of eight (8) separate lots in an area known as
Alexander Court. Among the conditions imposed by the Board was the requirement
that a minimum of 50% of the square footage of the buildings in the commercial
portion be devoted to professional offices such as medical, dental, legal and
accounting. The Board also required that the retail use be no more than 20% of the
total building square footage of the commercial portion and that it be generally
associated with the primary use, such as a pharmacy in association with medical
offices, and the retail uses may be combined in one or more buildings. The Board
stated in the 1994 decision that the plan submitted by Enola was conceptual in nature
and showed the intended special exception uses which may be revised or refined in
future subdivision/land development plans.
On May 6, 2005, the Township zoning officer sent a letter to Enola
stating in pertinent part as follows:
Per our discussion regarding permitted uses of the
properties at Alexander Court, the following will
summarize the interpretation held by the Dickinson
Township Zoning Office regarding the previously issued
Zoning Hearing Board Decision dated August 23, 1994.
It is the interpretation of this office that any retail
operations to be conducted at Alexander Court must be in
support of one of the primary uses, being medical, dental,
legal or accounting. After consideration of the request, we
have arrived at the conclusion that the occupancy of a
plumbing supply store in the Alexander Court Subdivision
would not be in keeping with the uses approved by the
Zoning Hearing Board in 1994.
See Reproduced Record (R.R.) at 22a. The letter further informed Enola of its appeal
rights from the zoning officer's decision.
Enola filed an appeal of the zomng officer's decision specifically
requesting an "appeal of use request denied by zoning officer." R.R. at 24a. A
2.
~
..
hearing on Enola's appeal was held before the Board on June 28, 2005, after which
the Board set aside the zoning officer's decision and granted permission to operate a
plumbing supply business on the subject property subject to certain conditions. A
written decision was rendered by the Board on July 29,2005. In its written decision,
the Board stated that "[t]he matter came before the Zoning Hearing Board on an
application to interpret the Zoning Officer's decision to deny occupancy. . . to
operate a plumbing, heating and air conditioning supply house . . . ." Board Opinion
dated July 29, 2005 at 1.
The Dickinson Township Board of Supervisors (Supervisors) appealed
the Board's decision to the trial court. Relying upon this Court's decision in Hopkins
v. North Hopewell Township Zoning Hearing Board, 623 A.2d 938 (Pa. Cmwlth.
1993), the trial court vacated the Board's decision. The trial court held that the
Board's decision was nothing more than an invalid advisory opinion. The trial court
reasoned as follows:
[T]he Zoning Hearing Officer considered a request by
[Enola] for an interpretation of whether a specific use
would be permitted in a particular area of the Township.
That interpretation is a nullity. [Enola] filed an appeal
from the interpretation that set forth: "Appeal of use
request denied by Zoning Officer." The Zoning Officer did
not deny a use request. The Zoning Hearing Board, in its
[mdings of fact dated July 29, 2005, stated that the matter
came before it "on an application to interpret the Zoning
Officer's decision to deny occupancy to [Enol a] which
desires to operate a plumbing, heating and air conditioning
supply house . . ." There had been no application for an
occupancy permit before the Zoning Hearing Officer, and
the officer did not deny such an application. As in
[Hopkins 1, the order of the Zoning Hearing Board will be
vacated. The action it took on June 28, 2005, and the order
in support of it on July 29, 2005, were not properly before
it on appeal. Any interpretation by the Board is a nullity."
3.
Trial Court Opinion at 7-8. This appeal by Enola followed. I
Herein, Enola raises the following issues:
1. Whether the trial court committed an error of law and
abused its discretion in characterizing the decision of the
Board as an invalid advisory opinion or one rendering an
impermissible interpretation of a zoning ordinance under
the Pennsylvania Municipalities Planning Code (MPC);2
2. Whether the trial court erred in assuming that
Dickinson Township required a use and occupancy
permit, or provided a process to obtain a use and
occupancy permit, where such requirement existed only
for new construction and Enola's use related to an
existing facility; and
3. Whether the trial court erred by failing to recognize
Enola's appeal to the Board from the zoning officer's May
6, 2005 decision as a valid challenge to the action of the
zoning officer under the MPC.
In support of its appeal, Enola argues that this matter is one where
Enola, to avoid a possible cease and desist order, sought to determine that its user,
a wholesale plumbing and supply business, came within the parameters of the
special exception granted on August 23, 1994.3 Enola contends that the Township
I Our scope of review in a zoning appeal where the trial court took no additional evidence
is limited to a determination of whether the zoning hearing board committed an abuse of
discretion or an error of law. Appeal of M.A. Kravitz Co., Inc., 501 Pa. 200, 460 A.2d 1075
(1983). An abuse of discretion will only be found where the zoning board's findings are not
supported by substantial evidence. Hill District Proiect Area Committee, Inc. v. Zoning Board of
Adiustment of the City of Pittsburgh, 638 A.2d 278 (Pa. Cmwlth.), petition for allowance of
appeal denied, 538 Pa. 629, 646 A.2d 1182 (1994). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Teazers. Inc. v.
Zoning Board of Adiustment of the City of Philadelphia, 682 A.2d 856 (Pa. Cmwlth. 1996).
2 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. 9910101 - 11202.
3 Although Enola offers no specifics regarding this request, it appears that the request was
(Continued.. .)
4.
"
had no requirement or process for obtaining a use and occupancy permit except
where construction of a new building is involved. Enola contends that the trial
court erroneously assumed that Enola failed to apply for a use and occupancy
permit when, in fact, the zoning officer was exercising his responsibilities in
administering the 1994 special exception. Enola argues that it was challenging the
ruling of the zoning officer and that it was not requesting an interpretation of a
zoning ordinance. In other words, Enola was seeking relief from an action of a
zoning officer. Enola argues further that there was nothing advisory with respect
to this matter and that the Board heard extensive testimony about the manner in
which the building would be used to meet the conditions of the August 23, 1994
special exception.
Initially, we note that a review of the Dickinson Township Zoning
Ordinance (Zoning Ordinance) reveals that Enola's interpretation, that the Zoning
Ordinance does not require an occupancy permit for an existing building but only
requires a permit for new construction, is erroneous. The applicable provisions of
the Zoning Ordinance do not specifically restrict the requirement for an occupancy
permit to new construction nor does Enola cite to any specific provision which sets
forth such restriction.
Section 205-80(A) of the Zoning Ordinance requires zoning permits
before any construction or development is undertaken within any area of the
Township. While the term "construction" is not defined in the Zoning Ordinance,
a reading of all the provisions together of Section 205-80, which governs zoning
permits, reveals that zoning permits are not limited to new construction only.
Specifically, Section 205-80(B) states that "[t]he zoning officer shall issue a zoning
oral and no formal request was made in writing to the zoning officer.
5.
permit only after it has been determined that the proposed work to be undertaken
will be in conformance with the requirements of this chapter and all other
applicable codes and ordinances." In addition, Section 205-80(X) states that "[t]he
premises covered by a zoning permit shall not be occupied until such time as a
builder's affidavit of compliance and a certificate of use and occupancy shall be
produced. "
Finally, Section 205-5 of the Zoning Ordinance defines "certificate of
use and occupancy" as "[t]he certificate issued by the Zoning Officer which
permits the use of a building in accordance with the approved plans and
specifications and which certifies compliance with the provisions of law for the use
and occupancy of a building in its several parts, together with any special
stipulations or conditions of the zoning permit." The term "use" is defined in
Section 205-5 as "[t]he specific purpose for which land or a building is designated,
arranged, intended, or for which it is or may be occupied or maintained." There is
nothing in the foregoing definitions which limit a certificate of use and occupancy
to new construction of a building.
Accordingly, we decline to insert into the prOVISIOns of the
Township's Zoning Ordinance the restriction that a certificate of use and
occupancy is required only in the cases of new construction and does not apply to
an existing building.
We also reject Enola's contention that the Board's opinion was not
advisory and therefore a nullity. In Hopkins, this Court affirmed the trial court's
decision that the North Hopewell Township Zoning Hearing Board did not have
jurisdiction pursuant to the MPC to issue an advisory opinion.
The landowners in Hopkins owned a forty-six acre farm with an
existing residence. They applied for and were granted a permit to build a new
6.
residence on the property and convert the existing residence into a storage
building.
Thereafter, the landowners submitted an application to the township's
board of supervisors seeking approval to subdivide their property into six
contiguous lots, one of which contained the existing residence, which was
designated as a storage building. The subdivision application also showed a
seventh lot with a newly constructed residence on it in the tract comprised of the
remammg acreage. After review by the township's planning commission, the
supervisors indicated that they would disapprove the plan.
Consequently, the landowners submitted an application to the zoning
hearing board entitled "Request for Interpretation," asking the board to interpret the
applicable provisions of the zoning ordinance and specifically posing ten questions
for interpretation. While the landowner's request was pending before the board,
the supervisors denied the landowner's subdivision plan and a subsequent appeal of
the same was discontinued.
The zoning hearing board issued a decision on the landowner's request
for interpretation of the zoning ordinance even though the zoning hearing board
was doubtful of its jurisdiction under the MPC to render such a decision. The
landowners were not satisfied with the zoning hearing board's interpretation of the
applicable zoning ordinance provisions and appealed to the trial court. On appeal,
the trial court declined to address the merits of the landowner's appeal and vacated
the zoning hearing board's decision, concluding that the board lacked jurisdiction
to grant the relief sought by the landowners.
The landowners appealed to this Court and we affirmed stating as
follows:
7.
Section 909.1(a) of the MPC, 53 P.S. ~10909.1(a), sets
forth the jurisdiction of zoning hearing boards. These
bodies are charged to "hear and render final adjudications
. . ." in such matters, inter alia, as validity challenges to
zoning ordinances; appeals of zoning officers' permit
actions; variance and special exception applications.
Nowhere in this provision or those setting forth zoning
boards' functions does the MPC empower a zoning
hearing board to grant the relief the [landowners]
requested - that is, an interpretation of the zoning
ordinance. As we said in HR. Miller Co., Inc. v. Bitler,
[J, 346 A.2d 887, 888 ([Pa. Cmwlth.) 1975), there is no
authority in a zoning hearing board to render a purely
advisory opinion.
Hopkins, 623 A.2d at 940 (footnote omitted).
In the instant case, a review of the record in this matter reveals that
Enola was seeking an interpretation of whether a proposed specific use on its
property that was previously granted a special exception, with conditions, in 1994
to construct professional office buildings was permitted. As admitted by Enola,
there was no specific request for a zoning permit or a certificate of use or
occupancy submitted to the zoning officer. Instead Enola, to avoid a possible
cease and desist order, contacted the zoning officer to determine if its user, a
wholesale plumbing and supply business, came within the parameters of the
condition imposed on the 1994 special exception. This is clearly a request for an
interpretation and the zoning officer treated it as such as shown by the contents of
his letter to Enola and his testimony before the Board.4
In addition, Enola's counsel made it clear before the Board that Enola
was seeking review of an interpretation of the zoning officer of a special exception
4 The zoning officer stated before the Board that he made an interpretation and that Enola
was appealing the interpretation of the zoning officer. See R.R. at 64a.
8.
that was granted by the Board on August 23, 1994. See R.R. at 27a. Enola's
counsel stated that the reason Enola was before the Board was "to seek an
interpretation of the special exception which we believe is consistent with the use
that is proposed for the tract." Id. The entire transcript of the proceedings before
the Board reveals that the Zoning Hearing Board treated the matter before it as an
interpretation of whether, under the conditions of the previously granted special
exception, the use of the property as a wholesale plumbing supply business was
permitted. See R.R. at 26a-78a.
As correctly pointed out by the trial court, the zoning officer is not
authorized by the MPC or the Township's Zoning Ordinance to issue an
interpretation.5 The zoning officer simply does not have the power to permit any
construction of any use or change of use which does not conform to the zoning
ordinance. Since the zoning officer was powerless to render an interpretation of
the previously granted special exception, so was the Board. As stated by this Court
in Hopkins, zoning hearing boards are charged, pursuant to Section 909.1 ( a) of the
MPC, to hear and render final adjudications in such matters, inter alia, as validity
challenges to zoning ordinances, appeals of zoning officers' permit actions, and
variance and special exception applications. Hopkins, 623 A.2d at 940. It is
undisputed that there was no action by the zoning officer on a permit of any kind in
this matter and none of the other actions covered by Section 909.1(a) are present
herein.
5 Section 614 of the MPC provides that the zoning officer shall administer the zoning
ordinance in accordance with its literal terms, and shall not have the power to permit any
construction of any use or change of use which does not conform to the zoning ordinance. 53
P.S.910614. See also Section 205-79 of the Township's Zoning Ordinance which governs the
duties ofthe zoning officer.
9.
Accordingly, the trial court did not err III vacating the Board's
decision. We affirm.
jt..a~
JAMES R. KELLEY, Senior Judge
10.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Board of Supervisors of
Dickinson Township
v.
No. 415 C.D. 2006
Zoning Hearing Board of
Dickinson Township and
Enola Construction Company
-A D)-- 4LffJ- ('; vi I
Appeal of: Enola Construction Company
ORDER
AND NOW, this 15th day of November, 2006, the order of the Court
of Common Pleas of Cumberland County in the above captioned matter is
affirmed.
cfl-o~
JAMES R. KELLEY, Senior Ju1ge
Certified from the Record
NOV 1 5 2006
and Order Exit
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Board of Supervisors of
Dickinson Township
dJ ()-) - LP-It ~ CM~l t 7e r IY\
v.
No. 415 C.D. 2006
Zoning Hearing Board of
Dickinson Township and
Enola Construction Company
Argued: September 11,2006
Appeal of: Enola Construction Company
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE DAN PELLEGRINI, Judge
HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE KELLEY
FILED: November 15,2006
Enola Construction Company (Enol a) appeals from an order of the
Court of Common Pleas of Cumberland County (trial court) vacating the order of
the Zoning Hearing Board of Dickinson Township (Board) because the Board's
decision was merely advisory and therefore a nullity. The Board's decision and
order granted permission, subject to certain conditions, for a plumbing, heating and
air conditioning supply house to operate in an area previously granted a special
exception, with conditions, to construct professional office buildings. We affirm.
By decision dated August 23, 1994, the Board granted Enola's
application for a special exception, with conditions, to construct professional office
buildings on no more than a total of eight (8) separate lots in an area known as
Alexander Court. Among the conditions imposed by the Board was the requirement
that a minimum of 50% of the square footage of the buildings in the commercial
portion be devoted to professional offices such as medical, dental, legal and
accounting. The Board also required that the retail use be no more than 200/0 of the
total building square footage of the commercial portion and that it be generally
associated with the primary use, such as a pharmacy in association with medical
offices, and the retail uses may be combined in one or more buildings. The Board
stated in the 1994 decision that the plan submitted by Enola was conceptual in nature
and showed the intended special exception uses which may be revised or refmed in
future subdivision/land development plans.
On May 6, 2005, the Township zoning officer sent a letter to Enola
stating in pertinent part as follows:
Per our discussion regarding permitted uses of the
properties at Alexander Court, the following will
summarize the interpretation held by the Dickinson
Township Zoning Office regarding the previously issued
Zoning Hearing Board Decision dated August 23, 1994.
It is the interpretation of this office that any retail
operations to be conducted at Alexander Court must be in
support of one of the primary uses, being medical, dental,
legal or accounting. After consideration of the request, we
have arrived at the conclusion that the occupancy of a
plumbing supply store in the Alexander Court Subdivision
would not be in keeping with the uses approved by the
Zoning Hearing Board in 1994.
See Reproduced Record (R.R.) at 22a. The letter further informed Enola of its appeal
rights from the zoning officer's decision.
Enola filed an appeal of the zomng officer's decision specifically
requesting an "appeal of use request denied by zoning officer." R.R. at 24a. A
2.
hearing on Enola's appeal was held before the Board on June 28, 2005, after which
the Board set aside the zoning officer's decision and granted permission to operate a
plumbing supply business on the subject property subject to certain conditions. A
written decision was rendered by the Board on July 29,2005. In its written decision,
the Board stated that "[ t ]he matter came before the Zoning Hearing Board on an
application to interpret the Zoning Officer's decision to deny occupancy. . . to
operate a plumbing, heating and air conditioning supply house . . . ." Board Opinion
dated July 29,2005 at 1.
The Dickinson Township Board of Supervisors (Supervisors) appealed
the Board's decision to the trial court. Relying upon this Court's decision in Hopkins
v. North Hopewell Township Zoning Hearing Board, 623 A.2d 938 (Pa. Cmwlth.
1993), the trial court vacated the Board's decision. The trial court held that the
Board's decision was nothing more than an invalid advisory opinion. The trial court
reasoned as follows:
[T]he Zoning Hearing Officer considered a request by
[Enol a] for an interpretation of whether a specific use
would be permitted in a particular area of the Township.
That interpretation is a nullity. [Enol a] filed an appeal
from the interpretation that set forth: "Appeal of use
request denied by Zoning Officer." The Zoning Officer did
not deny a use request. The Zoning Hearing Board, in its
findings of fact dated July 29, 2005, stated that the matter
came before it "on an application to interpret the Zoning
Officer's decision to deny occupancy to [Enol a ] which
desires to operate a plumbing, heating and air conditioning
supply house . . ." There had been no application for an
occupancy permit before the Zoning Hearing Officer, and
the officer did not deny such an application. As in
[Hopkins }, the order of the Zoning Hearing Board will be
vacated. The action it took on June 28, 2005, and the order
in support of it on July 29, 2005, were not properly before
it on appeal. Any interpretation by the Board is a nullity."
3.
Trial Court Opinion at 7-8. This appeal by Enola followed.l
Herein, Enola raises the following issues:
1. Whether the trial court committed an error of law and
abused its discretion in characterizing the decision of the
Board as an invalid advisory opinion or one rendering an
impermissible interpretation of a zoning ordinance under
the Pennsylvania Municipalities Planning Code (MPC);2
2. Whether the trial court erred in assuming that
Dickinson Township required a use and occupancy
permit, or provided a process to obtain a use and
occupancy permit, where such requirement existed only
for new construction and Enola's use related to an
existing facility; and
3. Whether the trial court erred by failing to recognize
Enola's appeal to the Board from the zoning officer's May
6, 2005 decision as a valid challenge to the action of the
zoning officer under the J\1PC.
In support of its appeal, Enola argues that this matter is one where
Enola, to avoid a possible cease and desist order, sought to determine that its user,
a wholesale plumbing and supply business, came within the parameters of the
special exception granted on August 23, 1994.3 Enola contends that the Township
1 Our scope of review in a zoning appeal where the trial court took no additional evidence
is limited to a determination of whether the zoning hearing board committed an abuse of
discretion or an error of law. Appeal of M.A. Kravitz Co.. Inc., 501 Pa. 200, 460 A.2d 1075
(1983). An abuse of discretion will only be found where the zoning board's findings are not
supported by substantial evidence. Hill District Proiect Area Committee. Inc. v. Zoning Board of
Adjustment of the City of Pittsburgh, 638 A.2d 278 (Pa. Cmwlth.), petition for allowance of
appeal denied, 538 Pa. 629, 646 A.2d 1182 (1994). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Teazers. Inc. v.
Zoning Board of Adiustment of the City of Philadelphia, 682 A.2d 856 (Pa. Cmwlth. 1996).
2 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ~~10101 - 11202.
3 Although Enola offers no specifics regarding this request, it appears that the request was
(Continued....)
4.
had no requirement or process for obtaining a use and occupancy permit except
where construction of a new building is involved. Enola contends that the trial
court erroneously assumed that Enola failed to apply for a use and occupancy
permit when, in fact, the zoning officer was exercising his responsibilities in
administering the 1994 special exception. Enola argues that it was challenging the
ruling of the zoning officer and that it was not requesting an interpretation of a
zoning ordinance. In other words, Enola was seeking relief from an action of a
zoning officer. Enola argues further that there was nothing advisory with respect
to this matter and that the Board heard extensive testimony about the manner in
which the building would be used to meet the conditions of the August 23, 1994
special exception.
Initially, we note that a review of the Dickinson Township Zoning
Ordinance (Zoning Ordinance) reveals that Enola's interpretation, that the Zoning
Ordinance does not require an occupancy permit for an existing building but only
requires a permit for new construction, is erroneous. The applicable provisions of
the Zoning Ordinance do not specifically restrict the requirement for an occupancy
permit to new construction nor does Enola cite to any specific provision which sets
forth such restriction.
Section 205-80(A) of the Zoning Ordinance requires zoning permits
before any construction or development is undertaken within any area of the
Township. While the term "construction" is not defined in the Zoning Ordinance,
a reading of all the provisions together of Section 205-80, which governs zoning
permits, reveals that zoning permits are not limited to new construction only.
Specifically, Section 205-80(B) states that "[t]he zoning officer shall issue a zoning
oral and no formal request was made in writing to the zoning officer.
5.
permit only after it has been determined that the proposed work to be undertaken
will be in conformance with the requirements of this chapter and all other
applicable codes and ordinances." In addition, Section 205-80(X) states that "[t]he
premises covered by a zoning permit shall not be occupied until such time as a
builder's affidavit of compliance and a certificate of use and occupancy shall be
produced. "
Finally, Section 205-5 of the Zoning Ordinance defines "certificate of
use and occupancy" as "[t]he certificate issued by the Zoning Officer which
permits the use of a building in accordance with the approved plans and
specifications and which certifies compliance with the provisions of law for the use
and occupancy of a building in its several parts, together with any special
stipulations or conditions of the zoning permit." The term "use" is defined in
Section 205-5 as "[t]he specific purpose for which land or a building is designated,
arranged, intended, or for which it is or may be occupied or maintained." There is
nothing in the foregoing definitions which limit a certificate of use and occupancy
to new construction of a building.
Accordingly, we decline to insert into the prOVISIons of the
Township's Zoning Ordinance the restriction that a certificate of use and
occupancy is required only in the cases of new construction and does not apply to
an existing building.
We also reject Enola's contention that the Board's opinion was not
advisory and therefore a nullity. In Hopkins, this Court affirmed the trial court's
decision that the North Hopewell Township Zoning Hearing Board did not have
jurisdiction pursuant to the MPC to issue an advisory opinion.
The landowners in Hopkins owned a forty-six acre farm with an
existing residence. They applied for and were granted a permit to build a new
6.
residence on the property and convert the existing residence into a storage
building.
Thereafter, the landowners submitted an application to the township's
board of supervisors seeking approval to subdivide their property into six
contiguous lots, one of which contained the existing residence, which was
designated as a storage building. The subdivision application also showed a
seventh lot with a newly constructed residence on it in the tract comprised of the
remammg acreage. After review by the township's planning commission, the
supervisors indicated that they would disapprove the plan.
Consequently, the landowners submitted an application to the zoning
hearing board entitled "Request for Interpretation," asking the board to interpret the
applicable provisions of the zoning ordinance and specifically posing ten questions
for interpretation. While the landowner's request was pending before the board,
the supervisors denied the landowner's subdivision plan and a subsequent appeal of
the same was discontinued.
The zoning hearing board issued a decision on the landowner's request
for interpretation of the zoning ordinance even though the zoning hearing board
was doubtful of its jurisdiction under the MPC to render such a decision. The
landowners were not satisfied with the zoning hearing board's interpretation of the
applicable zoning ordinance provisions and appealed to the trial court. On appeal,
the trial court declined to address the merits of the landowner's appeal and vacated
the zoning hearing board's decision, concluding that the board lacked jurisdiction
to grant the relief sought by the landowners.
The landowners appealed to this Court and we affirmed stating as
follows:
7.
Section 909.1(a) of the MPC, 53 P.S. Sl0909.1(a), sets
forth the jurisdiction of zoning hearing boards. These
bodies are charged to "hear and render final adjudications
. . ." in such matters, inter alia, as validity challenges to
zoning ordinances; appeals of zoning officers' permit
actions; variance and special exception applications.
Nowhere in this provision or those setting forth zoning
boards' functions does the MPC empower a zoning
hearing board to grant the relief the [landowners]
requested - that is, an interpretation of the zoning
ordinance. As we said in H.R. Miller Co., Inc. v. Bitler,
[j, 346 A.2d 887, 888 ([Pa. Cmwlth.) 1975), there is no
authority in a zoning hearing board to render a purely
advisory opinion.
Hopkins, 623 A.2d at 940 (footnote omitted).
In the instant case, a review of the record in this matter reveals that
Enola was seeking an interpretation of whether a proposed specific use on its
property that was previously granted a special exception, with conditions, in 1994
to construct professional office buildings was permitted. As admitted by Enola,
there was no specific request for a zoning permit or a certificate of use or
occupancy submitted to the zoning officer. Instead Enola, to avoid a possible
cease and desist order, contacted the zoning officer to determine if its user, a
wholesale plumbing and supply business, came within the parameters of the
condition imposed on the 1994 special exception. This is clearly a request for an
interpretation and the zoning officer treated it as such as shown by the contents of
his letter to Enola and his testimony before the Board.4
In addition, Enola's counsel made it clear before the Board that Enola
was seeking review of an interpretation of the zoning officer of a special exception
4 The zoning officer stated before the Board that he made an interpretation and that Enola
was appealing the interpretation of the zoning officer. See R.R. at 64a.
8.
that was granted by the Board on August 23, 1994. See R.R. at 27a. Enola's
counsel stated that the reason Enola was before the Board was "to seek an
interpretation of the special exception which we believe is consistent with the use
that is proposed for the tract." Id. The entire transcript of the proceedings before
the Board reveals that the Zoning Hearing Board treated the matter before it as an
interpretation of whether, under the conditions of the previously granted special
exception, the use of the property as a wholesale plumbing supply business was
permitted. See R.R. at 26a-78a.
As correctly pointed out by the trial court, the zoning officer is not
authorized by the MPC or the Township's Zoning Ordinance to issue an
interpretation. 5 The zoning officer simply does not have the power to permit any
construction of any use or change of use which does not conform to the zoning
ordinance. Since the zoning officer was powerless to render an interpretation of
the previously granted special exception, so was the Board. As stated by this Court
in Hopkins, zoning hearing boards are charged, pursuant to Section 909.1(a) of the
MPC, to hear and render final adjudications in such matters, inter alia, as validity
challenges to zoning ordinances, appeals of zoning officers' permit actions, and
variance and special exception applications. Hopkins, 623 A.2d at 940. It is
undisputed that there was no action by the zoning officer on a permit of any kind in
this matter and none of the other actions covered by Section 909.1 (a) are present
herein.
5 Section 614 of the MPC provides that the zoning officer shall administer the zoning
ordinance in accordance with its literal terms, and shall not have the power to permit any
construction of any use or change of use which does not conform to the zoning ordinance. 53
P.S. g10614. See also Section 205-79 of the Township's Zoning Ordinance which governs the
duties of the zoning officer.
9.
Accordingly, the trial court did not err III vacating the Board's
decision. We affirm.
Jt....o~
JAMES R. KELLEY, Senior Judge
10.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Board of Supervisors of
Dickinson Township
v.
No. 415 C.D. 2006
Zoning Hearing Board of
Dickinson Township and
Enola Construction Company
Appeal of: Enola Construction Company
ORDER
AND NOW, this 15th day of November, 2006, the order of the Court
of Common Pleas of Cumberland County in the above captioned matter is
affirmed.
~ 0, .~~
JAMES R. KELLEY, Senior Iu ge
11/14/2006
No.: 415 CD 2006
File Copy Recipient List
Addressed To: The Honorable Edgar B. Bayley
President Judge
Court of Common Pleas of Cumberland County
Cumberland County Courthouse, One Courthouse Square
Carlisle, PA 17013
Edward L. Schorpp, Esq.
35 South Thrush Drive
Carlisle, PA 17013
Robert L. O'Brien, Esq.
O'Brien, Baric & Scherer
19 W South Street
Carlisle, PA 17013
Marcus A. McKnight, III, Esq.
Irwin & McKnight
60 W Pomfret Street
Carlisle, PA 17013-3222
Keith Orr Brenneman, Esq.
Snelbaker & Brenneman, P.C.
44 W Main Street
Mechanicsburg, PA 17055
D. E. LeFever, Esq.
Salzmann Hughes, P.C.
354 Alexander Spring Road, Suite 1
Carlisle, PA 17013
E. Ralph Godfrey, Esq.
Salzmann Hughes, P.C.
354 Alexander Spring Road, Suite 1
Carlisle, PA 17013
J. FERREE
Mr. Curtis R. Long
Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Fax Number: (717) 240-6573
NOV 1 5 Z006
NEWS RM.
1231 -10/99
1011/99
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