HomeMy WebLinkAbout06-3325
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BOROUGH OF CAMP HILL
Appellant
vs.
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. a- JJ~.s e0ZLT~
CIVIL ACTION - LAW
THE ZONING HEARING BOARD OF
CAMP HILL BOROUGH,
Appellee
NOTICE OF LAND USE APPEAL
Appellant, the Borough of Camp Hill, hereby appeals from the decision of the Zoning
Hearing Board of Camp Hill Borough, Pennsylvania, under the authority of Section 1002-A of
the Pennsylvania Municipalities Planning Code, 53 P.S. ~ 11 002-A, and in support thereof states
the following:
1. The Appellant, the Borough of Camp Hill, is a political subdivision with offices
located at 2145 Walnut Street, Camp Hill, Cumberland County, Pennsylvania.
2. The Appellee is the Zoning Hearing Board of Camp Hill Borough.
3. This Honorable Court has jurisdiction over this appeal under Section 1002-A of
the Pennsylvania Municipalities Planning Code, 53 P.S. ~ 11002-A.
4. On or about March 23, 2006, Citadel Broadcasting Company (hereinafter
"Applicant") acting on behalf of the property owner, PatIin Properties, LLP, filed a Notice of
Appeal to the Camp Hill Zoning Hearing Board in which it appealed from the revocation by
Camp Hill Zoning Officer, Gary Kline, of a zoning permit dated March 17,2005, issued by then
Zoning Officer, Delvin Zeiders, and requested a use variance from Section 306 of the Camp Hill
Zoning Ordinance and a dimensional variance from Section 402.A.11. b of the Zoning Ordinance.
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5. Citadel proposes to construct an architectural feature and studio transmitter link
("STL") antenna totaling 60 feet in height which constitutes a new communications
tower/antenna that is not a permitted use in the General Commercial ("GC") district;
6. Applicant, in its appeal to the Zoning Hearing Board, claimed that it acquired a
vested right in the zoning permit issued March 17, 2005 and that the revocation of said zoning
permit was improper.
7. The Camp Hill Zoning Hearing Board held hearings on April 18, 19 and 28,2006.
The Camp Hill Zoning Hearing issued its written decision on May 12,2006, in which it (a)
denied Applicant's request a dimensional and use variance from Sections 306 and 402.A.l1.b of
the Camp Hill Zoning Ordinance; (b) held that the Camp Hill Zoning Officer, Gary Kline, acted
properly in revoking the zoning permit; and (c) concluded that Applicant had acquired a vested
right in the erroneously issued zoning permit. A true and correct copy of the decision of the
Zoning Hearing Board is attached as Exhibit "A" and made a part hereof.
8. The decision of the Camp Hill Zoning Hearing Board in sustaining the appeal of
Citadel Broadcasting Company and concluding that Citadel had acquired a vested right in the
erroneously issued zoning permit dated March 17, 2005, was arbitrary, capricious, an abuse of
discretion and contrary to law in that:
(a) the finding of the Zoning Hearing Board that the Applicant, Citadel
Broadcasting Company, acquired a vested right in the erroneously issued
zoning permit is not supported by substantial, competent evidence in the
record;
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(b) the Zoning Hearing Board's conclusion that Applicant, Citadel
Broadcasting Company, exercised due diligence in attempting to comply
with the Camp Hill Zoning Ordinance is not supported by substantial,
competent evidence where the evidence established that Applicant's
general manager and realtor are sophisticated and experienced in
communication tower issues and Applicant did not independently review
and attempt to understand the applicable provisions of the Zoning
Ordinance;
(c) the Zoning Hearing Board's finding that the Applicant, Citadel
Broadcasting Company, exercised good faith during the zoning permit
application process is not supported by substantial, competent evidence:
(1) when the substantial evidence showed that Citadel had one meeting
with Borough officials when it contemplated the antenna at a different site;
(2) when Citadel had no meetings with Borough officials after it changed
the site for the antenna to a different building; (3) when Citadel did not
have a simple meeting with Zoning Officer Zeiders prior to submitting the
March application and did not meet to discuss what he meant by his
notation on the bottom of the approval in order to ensure it had the ability
to comply with it; and (4) where the evidence established that Applicant
proposes to construct a free-standing tower/antenna that is not mounted on
the roof of the building, as represented in the application;
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(d) the Zoning Hearing Board's conclusion that Applicant, Citadel
Broadcasting Company, expended substantial unrecoverable funds is not
supported by substantial, competent evidence where the only evidence of
"unrecoverable" funds is the payment of rent pursuant to a lease agreement
negotiated for almost a year and signed within two weeks of application
approval and evidence established Applicant signed a multi-year lease
prior to the expiration of the appeal period following the permit approval;
(e) the Zoning Hearing Board's finding that the zoning permit approval of
March 17, 2005 does not require the architectural feature and antenna to
rest on, be on top of or overhang the building roof is not supported by
substantial, competent evidence where the zoning permit application
expressly provided that: (1) the "architectural feature" would be
constructed on the roof of the building; (2) the "architectural feature" will
conceal the lower portion of the antenna planned to be attached to the
existing face of the building; and (3) the zoning permit approval contained
the notation "This approval is based upon the antenna being placed upon a
base with no more than 20' extending above this building base"; and
(f) the Camp Hill Zoning Hearing Board erred as a matter oflaw in
concluding that the Applicant, Citadel Broadcasting Company, acquired a
vested right in the erroneously issued zoning permit of March 17, 2005.
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WHEREFORE, the Appellant, the Borough of Camp Hill, requests that this Honorable
Court reverse the decision of the Camp Hill Borough Zoning Hearing Board and uphold the
revocation of the March 17,2005 zoning permit by the Camp Hill Borough Zoning Officer.
NAUMAN, SMITH, SHISSLER & HALL, LLP
l,A..r-
. Ste en Feinour, Esquire
Supreme Court ID #24580
200 North Third Street, P. O. Box 840
Harrisburg, P A 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Solicitor for Camp Hill Borough
Date: June 12,2006
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CERTIFICATE OF SERVICE
AND NOW, on the date stated below, I, J. Stephen Feinour, Esquire, of the firm of
Nauman, Smith, Shissler & Hall, LLP, hereby certifY that I this day served the foregoing "Notice
of Appeal" via United States Mail, first class, addressed to the following:
Philip J. Murren, Chairman
Camp Hill Zoning Hearing Board
2145 Walnut Street
Camp Hill, PA 17011
Richard 1. Placey, Esquire
Placey & Wright
3631 North Front Street
Harrisburg, PA 17110-1533
(Attorney for Camp Hill Zoning Hearing
Board)
James D. Flower, Jr., Esquire
Saidis, Flower and Lindsay
26 West High Street
Carlisle, PA 17013
(Attorneys for Citadel Broadcasting
Company)
NAUMAN, SMITH, SHISSLER & HALL, LLP
By: , " v-..--
. Ste en Feinour, Esquire
Supreme Court lD# 24580
200 North Third Street, P. O. Box 840
Harrisburg, P A 17108-0840
Telephone: (717) 236-3010
Telefax: (717) 234-1925
Solicitor for Appellant, Borough of Camp Hill
Date: June 12,2006
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INRE:
CAMP HILL ZONING HEARING BOARD
Appeal of
Citadel Broadcasting Company
919 Buckingham Boulevard
Elizabethtown, PA 17022
APPEAL NO.3, YEAR OF 2006
DECISION
This case comes before the Camp Hill Zoning Hearing Board ("Board") pursuant to the
provisions of Article 1, Section 111.D.1 of the Camp Hill Borough Zoning Ordinance of 2004
("Ordinance"), the same being an application of Citadel Broadcasting Company ("Applicant")
appealing the revocation of the zoning pennit issued March 17,2005 for 515 S, 32nd Street,
Camp Hill, Pennsylvania ("Premises"), and its request for a dimensional/use variance from
Section 306.B.2.b and Sections 402A l1.a and 402A l1.b to permit Applicant to construct a
commercial communications tower on the prernises in apparent violation of the foregoing
Sections of the Ordinance.
Pursuant to notice duly given, as required by the provisions of the Ordinance, a hearing
was held before the Board at the Camp Hill Borough Offices ("Thomas Prosser Hall"), 2145
Walnut Street, Camp Hill, Pennsylvania, on Tuesday, April 18, 2006 at 6:00 p.m. and continuing
to Wednesday, April 19, 2006 at 6:00 p.m. The matter was heard by Philip J. Murren, Chair of
the Board, and members Deborah Donahue and Kirk Sohonage,
In accordance with the provisions of the Ordinance, notice of said hearing was given by
certified mail to the Applicant This notice and the return receipt card of the United States Postal
Service, evidencing receipt of the same by the Applicant, are made a part of the Record of this
r a EXHIBIT
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case. An Affidavit certifYing to the compliance with the notice requirements of the Ordinance
and Proof of Publication of public notice are made a part of the Record.
At the conclusion of testimony at the hearing of April 19, 2006, the Board, with the
agreement of counsel for the Applicant and the Borough, adjourned the hearing and set Friday,
April 28, 2006, at 6:00 p.m, as the date and time for a reconvened hearing, A public
announcement of the date, time and place of the reconvened hearing was made at the hearing.
The reconvened hearing was held as scheduled on Friday, April 28, 2006, at 6:00 p.m, at
the Borough Offices, Notice was given by the Board's solicitor to counsel for all parties and an
Affidavit of Service and Posting of the Notice of the reconvened hearing, executed by Gary
Kline, the Borough's Acting Zoning Officer/Codes Official, are rnade a part of the Record.
At the conclusion of the evidentiary hearing of April 28, 2006 and after receiving oral
argument from counsel for the Applicant and the Borough, the Board convened a meeting
pursuant to the provisions of the Act of Assembly No, 175 of 1974 of the Commonwealth of
Pennsylvania, commonly known as the "Sunshine Law", whereat a formal discussion of the
matter took place and formal action was taken by the Board.
The Record consists of the aforesaid Notices of Public Hearings, Proof of Publication,
Affidavits, together with the original application and appeal filed by the Applicant, the transcript
of the proceedings of April 18, 19 and 28, 2006 and, in accordance with the stipulation of
counsel for the Applicant and Borough, the transcript of the proceedings in the rnatter of Citadel
Broadcasting Corporation v. Gary Kline and Camp Hill Borough to No. 06-1099 Civil Action-
Equity, in the Court of Common Pleas of Cumberland County with respect to Citadel's request
for a preliminary injunction and the depositions of Delvin 1. Zeiders, William M. Gladstone and
Paul F. Williamson, and the exhibits introduced at the evidentiary hearings,
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FINDINGS OF FACT
After a review of the Record of this case, the Board makes the following Findings of
Fact:
L The record owner of the premises is Patlin Properties, LLP, a Pennsylvania
limited partnership, which has authorized Applicant to make application for zoninglbuilding
permits with respect to the premises.
2. The Zoning Officer, upon application of Applicant, issued a zoning permit on
March 17, 2005 for the renovation of the larger building located on the premises into offices and
a broadcast studio for a radio station and the placement of a radio tower to be mounted to an
adjacent building located on the premises. (Borough Exhibit 3)
3. The premises is located in tile General Commercial ("CG") District as shown on
the Borough of Camp Hill's Zoning Map, a part of the Ordinance.
4. The office use approved by the zoning permit is a permitted use in the CG District
under the Ordinance. (Section 306.B.2.b)
5. A communications tower/antenna In the CG District is a permitted use in
accordance with the provisions of Section 402.A.11 which provides in pertinent part as follows:
"ll.a. An accessory commercial communications antenna that does not involve a
new tower shall be allowed in any district if it meets the following requirements...
'2) In a commercial or industrial district, the antennae shall extend a
maximurn of 20 feet beyond an existing building or structure (other than a dwelling),
provided the antennae is setback a distance equal to its total height above the ground
from any lot line ofa dwelling on another lot."
6, At the time of Applicant's application for a zoning permit, a tower was not
located 011 the premises.
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7, The zoning permit applied for and granted on March 17, 2005 requested and
authorized as a pemlitted use the construction of a new tower and the placement of an antenna
upon it.
8, The zoning pemlit issued on March 17, 2005 for the erection of an antenna was
issued in error. This pernlit was revoked by the Zoning Officer on February 21, 2006.
9, The revocation of the zoning permit by the Zoning Officer on February 21,2006
was authorized by the Ordinance and the Municipalities Planning Code,
10. Applicant timely filed this appeal from the Zoning Officer's revocation of the
zoning permit on March 23, 2006,
11. In addition to its appeal of the revocation of the zoning permit, Applicant seeks
dimensional/use variances from Section 306.B.2.b and 402.A.11 ,a and 402.A.11.b to permit the
Applicant to construct the commercial communications tower on the prernises in apparent
violation of the foregoing Sections of the Ordinance.
ADDITIONAL FINDINGS OF FACT
AND CONCLUSIONS OF LAW
I. Request for Variance:
In determining whether or not to grant a variance in a given case, this Board rnust take
into consideration the provisions of Section 111.D J which sets forth the criteria for the grant of
variances. That Section provides that the Board may grant a variance only within the limitations
of State law where:
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i) There are unique physical circumstances or conditions (including
irregularity, narrowness or shallowness oflot size or shape, or
exceptional topographical or other physical conditions peculiar to
the particular property) and that the unnecessary hardship is due to
such conditions generally created by the provisions of this
Ordinance in the neighborhood or district in which the property is
located;
ii) Because of such physical circumstances or condition, there is no
possibility that the property can be developed in strict conformity
with the provisions of the Zoning Ordinance and a variance is
therefore necessary to enable the reasonable use ofthe property;
(iii) Such mmecessary hardship has not been created by the Applicant;
(iv) The variance, if authorized, will not alter the essential character of
the neighborhood or district in which the property is located, nor
substantially or permanently impair the appropriate use or develop-
ment of adjacent property, nor be detrimental to the public welfare;
and
(v) The variance, if authorized will represent the rninirnum variance
that will afford relief and will represent the least modification
possible of the regulation in issue.
A variance can be granted only for reasons that are substantial, serious and compelling.
Ventresca v, Exley, 358 Pa. 98; 56 A.2d 210 (1948). The Board finds that no testimony has been
presented to permit it to grant the variance based on the criteria above set forth where relevant.
There is no evidence that the premises could not be developed in strict confonnity with tlle
provisions of the Ordinance nor that a variance is necessmy to enable the reasonable use of the
premises, Accordingly, the Board denies Applicant's request for a variance to allow the erection
of a communications tower/antenna upon the subject premises.
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II. Applicant's Claim of Vested Rights:
Applicant claims to have a vested right to construct the communications tower/antenna in
accordance with the zoning penuit issued to it on March 17,2005.
In Bell Atlantic Mobile Systems, Inc. v, Borough of Clifton Heights, 661 A.2d 909,912
(Pa. Cmwlth, 1995), the Court states:
"Vested rights is a 'judicial construct designed to provide individual relief in
zoning cases involving egregious statutory or bureaucratic inequities. In part it involves
the equitable concept of detrimental reliance.' Essentially, the concept of 'vested rights'
acts to relieve inequities."
Ryan, in his Pennsvlvania Zoning Law and Practice in Section 8.3.2, Volume 2, pages
32-33, expands on this concept stating:
"Municipalities make mistakes and sometimes issue permits or similar approvals
authorizing a use or construction prohibited by the zoning ordinance. It is axiomatic that
any right based on a permit issued in error can extend only to construction that cornp1ies
with the terms ofthe permit. Randolph Vine Associates v. Zoning Board of Adjustment of
Philadelphia, 132 Pa. Commonwealth Ct. 452, 573 A.2d 255 (1990); see the Spargo
decision described in 98.3.4. The real issue is whether the owner is protected by the error
ifhe stays within the approval.
Where an owner misrepresents his intentions or conceals relevant information in
the application for a permit, there is little likelihood that the courts will give recognition
to a permit issued in error. But what of the permit issued in error as a result of an honest
mistake or a misrepresentation of the zoning ordinance? Where the "mistake" is one of
arguable interpretation, the existence of appeal procedures for zoning cases irnplies that
the permit becomes final once the time for appeal has expired: Oteri Appeal, 372 Pa.
557,94 A.2d 772 (1953); Young v, Board of Adjustment of Wilkins burg, 349 Pa. 450, 37
A.2d 714 (1944); Loucks v, Crowther, 11 Ches. Co. Rep. 497, 32 D. & C. 2d 570 (1963).
The problem becomes more difficult where it is perfectly clear that the permit has
been issued in error. Here it would seem that the interest of the cornrnunity in enforcing
the ordinance outweighs that of the owner at least until the appeal period has expired and
the owner has incurred significant, non-recoverable costs in reliance on the permit.
When this occurs, the owner's good faith reliance on the permit should afford him a
vested right to complete the work. Of course, this means the sanctioning of a new
"illegality." However, Pennsylvania gives ready recognition to nonconforming uses and
the addition of a few additional "nonconforming" uses in cases where the equity in favor
of the owner is strongest should not prove destructive."
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Applicant's claim of vested rights arises as a result of the actions it took to find a suitable
location in the Camp Hill area in the summer of 2004 to relocate its smaller offices into a central
office and broadcast studio, It operates three radio stations out of its main transmission studio
located at 991 Buckingham Boulevard in E1izabethtown, Pennsylvania. The Camp Hill antenna
would serve as a studio transmission link (STL) to its main transmission facilities in
Elizabethtown, It would transmit its signal from Camp Hill to the Elizabethtown receiver. A
clear path of transmission (line of sight) is required.
Applicant began negotiations with Patlin Properties, LLP, to rent the premises to house a
broadcast studio and offices. On January 21, 2005, William Gladstone, Realtor, Robert Adams,
representative of Applicant, and Paul Williams of A.P. Williams, lnc, (Applicant's building
contractor) met at the premises with Jim Bennett, then Zoning Officer of the Borough, to discuss
Applicant's proposed use of the premises and its need to construct an antenna on the premises,
Credible testimony establishes that Applicant and its representatives understood from discussions
with Mr. Bennett that it could construct an antenna upon the subj ect premises provided that an
architectural feature was built as an addition to the existing building so that no more than 20 feet
of the antenna would extend above the roof of the architectural feature, The Board accepts
Robert Adams' January 21, 2005 email summarizing the meeting (Exhibit A to Applicant's
Exhibit 1) as accurate.
Thereafter, Applicant had preliminary plans drafted for the renovation of the office space
and renderings for the architectural feature relating to the antenna to submit with its zoning
permit application. On January 27, 2005, Paul Williams of A.P. Williarns, Inc., on behalf of the
Applicant, submitted an application for a zoning permit under Section 402.A.11.a.2 to the
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Borough for the renovation of the office building and the construction of the architectural feature
and the STL antenna on the property. (Exhibit B to Applicant's Exhibit 1). On January 28,
2005, Mr. Williams wrote to the Borough, requesting that the architectural drawings enclosed
with the letter for the architectural feature and STL antenna be substituted for the drawings
submitted with the application. (Exhibit C to Applicant's Exhibit 1). These drawings reflected a
change in the location of the architectural feature and the STL to comply with the setback
requirements of the Ordinance. On February 1, 2005, the amended zoning permit (Exhibit D to
Applicant's Exhibit 1) was approved by Delvin Zeiders who succeeded Jim Bennett as the
Zoning Officer of the Borough, Applicant then conducted testing to verifY that the signal from
the antenna at the revised location would reach its Elizabethtown facility and not be blocked by
the grain silo located on the property on the other side ofPA Route 581. It was determined that
the signal could not reach its Elizabeth town tower from the revised location.
On the premises, there is a smaller adjacent building. It was determined that a signal
transmitted from that location would reach the Elizabethtown facility, On March 13,2005, a
revised application was submitted to locate the architectural feature and the STL antenna on the
smaller adjacent building which is now occupied by the Sandman firm. The Zoning Officer
approved this application on March 17,2005. (Exhibit E to Applicant's Exhibit 1). The
approved application contained a narrative with respect to the placement of the architectural
feature and the STL antenna and included an architectural rendering of the same. In approving
the permit, Mr. Zeiders made the following notation:
"This approval is based upon the antenna being placed upon a base with no more
than 20 extending above this building base,"
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Mr. Zeiders testified that what he approved was an extension to the building, The
antenna would be placed on top of the extension of the building, with the antenna to extend 20
feet beyond the addition to the building to be constructed. (April 18, 2006 testimony of De Iv in
1. Zeiders - 116:25; 117: 1, 2, 12-18). Thereafter, Applicant signed a lease for the premises on
April I, 2005. (Exhibit F to Applicant's Exhibit I), This lease included a portion of the adjacent
(Sandman) building as part of the description of the leased premises, Thereafter, Applicant
engaged professionals to design the office renovations and construction of the architectural
feature and STL antenna.
Paul Williams, on behalf of Applicant, submitted a building permit application on
September 8, 2005 for the renovations to the office building. (Exhibit G to Applicant's Exhibit
I). On January 19,2006, Applicant received a building permit for the renovations to the office
building. (Exhibit H to Applicant's Exhibit 1). Thereafter, Applicant subrnitted a building
permit application for the construction of the architectural feature and STL antenna. As a result
of the submission ofthis application, Gary Kline, Zoning Officer of the Borough (Delvin 1.
Zeiders's successor), contacted Paul Williams of A.P. Williams and informed hirn that no
building permit would be issued for the architectural feature and STL antenna. After several
meetings between Borough officials and Applicant, Mr. Kline revoked the March 17,2005
zoning permit on February 21, 2006, Applicant appealed the revocation of the permit to this
Board, asserting that it has a vested right in the zoning permit issued on March 17,2005.
Initially, the Board must address the issue as to the propriety of the revocation of the
March 17,2005 zoning permit by the Borough's Zoning Officer on February 21, 2006, Section
914(a) of the Pennsylvania Municipalities Planning Code (53 P.S. 10914.1(a)) does not prevent
the revocation of a permit issued in error after the expiration of the 30-day appeal period cited in
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that section since that provision is not applicable to a revocation instituted by a township officer.
Klavon v, Zoning Hearing Board of Marlborough Township, 340 A2d 631 (pa. Cmwlth, 1975),
Gary Kline, the Borough Zoning Officer acted properly and within his authority in revoking the
zoning pemlit on February 21, 2006, When it came to his attention that the permit issued on
March 17, 2005 was erroneously issued, it was his duty to revoke the permit and he acted
properly in doing so, It was not within his authority to determine whether vested rights entitled
the Applicant to exercise the permit. That is for this Board and the Courts on appeal to
determine,
The Pennsylvania Supreme Court in Petrosky v, Zoning Hearing Board of the Township
of Upper Chichester, 402 A.2d 1385 (Pa, 1979) outlines the five factors which must be weighed
in detennining whether one has acquired vested rights as a result of permits issued by the
municipality. These factors are:
I, Applicant's due diligence in atternpting to cornply with the law;
2, Applicant's good faith throughout the proceedings;
3, The expenditure of substantial unrecoverable fimds;
4. The expiration without appeal of period during which an appeal could have been
taken from issuance of the pennit; and
5. The insufficiency of evidence to prove that individual property rights or the public
health, safety or welfare would be adversely effected by the use of the permit.
As to the due diligence issue, the Board received credible testimony that Applicant's
representatives initially met at the premises with the then serving Borough Zoning Officer, Jim
Bennett, in an attempt to determine the permitted use of the premises under the Ordinance,
sought input from Mr. Bennett on how to proceed and followed his instructions. Robert Adams
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testified that he, "Relied on the zoning officials to tell me what I could do and what I couldn't
do". (April 18, 2006 Testimony of Robert Adams - 96:25, 97:1).
Mr. Bennett's successor, Delvin 1. Zeiders, confirmed that Applicant followed the
appropriate section of the Zoning Ordinance. (April 18, 2006 Testimony of Delvin 1. Zeiders-
113 :9-19), In addition, Paul Williams, Applicant's general contractor, testified that the location
of the architectural feature and the STL antenna was moved from its location on the original
application in order to comply with the setback requirements of the Zoning Ordinance. (April
19, 2006 Testimony of Paul Williams - 12: 13-14). Applicant has demonstrated its good faith
efforts to comply with the Zoning Ordinance as interpreted to it by the Borough's Zoning
Officials.
The Supreme Court has made clear that an applicant is entitled to rely on interpretations
of the zoning ordinance given by zoning officials, stating that, "We reject the notion that a
citizen who does attempt to check the zoning statutes by making inquiry of the proper officials,
who certainly should be expected to have knowledge about zoning have not exercised due
diligence." Petrosky, 402 A.2d at 1388
The Board finds that Applicant exercised good faith throughout the period in question
and did not mislead the Borough officials. The Borough argues that the March 17,2005 zoning
permit application proposed construction of the antenna on the roof of the Sandman building.
The drawings attached to the March 17,2005 permit show the architectural feature extending
from the ground up the side of the building. (Exhibit E to Applicant's Exhibit 1), This was
acknowledged by Zoning Officer Delvin Zeiders, (April 18, 2006 Testimony of De Iv in L.
Zeiders -116:6-11). Robert Adams testified that he insisted that the application have a
"narrative so that everybody understood what we were doing", (April 18, 2006 Testimony of
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Robert Adams - 94: 17-8). Mark Ritchie, Applicant's Engineer, testified that the antenna would
be attached to the existing building. (April 18, 2006 Testimony of Mark Ritchie - 157: 14-15),
The Board finds that the architectural feature and the antenna were not represented to be
constructed on the roof of the Sandman building,
The Board finds that the Applicant has expended substantial unrecoverable funds in
reliance on the grant of the zoning permit of March 17,2005. The funds include $8,000.00 a
month in rent from August 2005, liability for rent for the remainder of the tenn of the lease
which originally was 11 years (which presumably would be reduced by the landlord's obligation
to minimize danlages) and fees to its architects, engineers and other non-legal professionals. The
Board rejects the Borough's argument that the Applicant's obligations are somewhat self-
inflicted in that it entered into the lease for the subject premises April 1, 2005, less than a month
after the permit was granted and before the 30-day appeal period expired. Robert Adams
testified that since the March 17,2005 pemlit was the second permit approved, the first being the
permit approved for the location of the tower on the larger building in January of 2005, from
which no appeal was taken, and that Applicant felt that there was no impediment to proceeding
to enter into the lease. (April 28, 2006 Testirnony of Robert Adams - 30: 19-20; 31: 1-2).
No appeal was taken from the issuance of the March 17,2005 permit within 30 days from
the date of its issuance.
Finally, the Board finds that there is no evidence to establish that individual property
rights or the public health, safety or welfare would be adversely affected by the use permitted by
the March 17,2005 zoning permit.
The architectural feature and the antenna will be located on that portion of the Sandman
building that faces PA Route 581, a heavily traveled four-lane connector for Interstate Routes 81
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and 83. In opposition to the grant of vested rights, Gary Kline stated that he was concerned for
the safety of neighbors given the distance of 130 feet between the architectural feature and the
STL antenna and the nearest residence. (April 18, 2006 testimony of Gary Kline - 22:4-5), His
testimony is countered by the testimony of Mark Ritchie, Applicant's structural engineer, that the
STL antenna and architectural feature are no more likely to fall than any other 40 or 60-foot
structure and further, ifit did fall, only the top 20 feet of the antenna would fall, falling a
maximum distance of some 30 feet. (April 18, 2006 testimony of Mark Ritchie - 158:15;
167:22-23). The Board accepts the testimony ofMr. Ritchie. The Board fmds that neither
individual property rights nor the public health, safety or welfare would be adversely affected by
the construction of the architectural feature and STL antenna.
The Board finds that the five Petrosky factors have been met and that the Applicant has
vested rights based on the zoning permit approved March 17,2005, (Borough Exhibit 3).
Having deternlined that Applicant has a vested right in the zoning permit issued March
17,2005, the Board believes it should set forth what the Applicant would be permitted to build to
be in conformity with the zoning permit of March 17,2005. The tower or architectural feature as
it will be subsequently designed and built will not be required to confornl exactly to the
preliminary design drawings attached to the approved pennit application. Drawings submitted
with the zoning pennit application are only required to be detailed enough to show compliance
with the essential elements of the Ordinance,
This brings us to the question as to what did Delvin 1. Zeiders, Borough Zoning Officer
on March 17,2005, believe was required by Section 402A 11.a.2 of the Ordinance and what did
he approve. To resolve this question, the Board looked at ternlS of the Ordinance, Mr. Zeiders'
hearing and deposition testimony and his notations on the permit.
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In his deposition of April I 0, 2006, the critical passages concerning his understanding of
the Ordinance and the permit application are fOlmd on pages 8-9 and 13-14. Mr. Zeiders
concluded that constructing an "addition to the building" made the architectural feature/base a
part of an "existing building" for purposes of the Ordinance. In his understanding, the
architectural feature/base was the "addition" and, therefore, it became part of the "building" per
his notation on the permit, and the addition was to be topped by no more than 20 feet of antenna,
This understanding defines the parameters of the approved pern1it. The architechlral
feature/base should actually be designed and constructed so as to be an addition to the building,
i.e., part of the building itself. For it to be made so, it must be physically attached to the
Sandman building at more than just its own base or footer. If appropriate, for structural reasons,
the attachment to the Sandman building could allow for some movernent of the structure,
As to the antenna itself, if the antenna itself is 60 feet long and rests directly on the
footer, that would be within the approved permit so long as the lower 40 feet is also physically
attached to the architectural feature in more than a perfunctory rnanner and the architechlral
feature is physically attached to the existing Sandman building as previously indicated. The
Board does not find it necessary for the Applicant to comply with the approved permit to have
any part of the architectural feature rest on or overhang the Sandman roof The Board does not
find Mr. Zeider's understanding of the Ordinance to require the architectural feature and antenna
to rest on or overhang the Sandman building's roof so long as the new architectural feature was
constructed as a physical "addition" to the building and was attached to its "face". The Board
further finds that the tower could be safely constmcted in conformity with the permit if the
Applicant is willing to do so, (April 28, 2006 testimony of Mark Ritchie -19:20-55; 20:1-13).
14
.-
For the foregoing reasons, the Board finds Applicant has a vested right based on the
approved March 17, 2005 zoning permit and is authorized to construct the architectural feature
and antenna as set forth within the parameters set forth herein.
By:
Philip
Date: May 12,2006
Date of Mailing: May 12,2006
15
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BOROUGH OF CAMP HILL
Vs.
.) 3~S
No. 06-ffl'5- CIVIL TERM
THE ZONING HEARING BOARD
OF CAMP HILL BOROUGH
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
SS.
COUNTY OF CUMBERLAND)
TO: THE ZONING HEARING BOARD OF CAMP HILL BOROUGH
We, being willing for certain reasons, to have certified a certain action between
BOROUGH OF CAM HILL 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 EDGAR B. BAYLEY, P.J. our said Court, at Carlisle,
PA., the 12TH day of JUNE, 2006.
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CERTIFIED MAIL RECEIPT
(Domestic Mail Only' No Insurance Coverage Provldt:d) .
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postage $
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Total Postage & Fees $
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vs.
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
33J-5
NO. 06-~ CIVIL TERM
BOROUGH OF CAMP HILL,
Appellant
THE ZONING HEARING BOARD OF :
CAMP HILL BOROUGH,
Appellee
NOTICE OF INTERVENTION
Please take notice that Citadel Broadcasting Company, a Nevada corporation and the
tenant of the property known as 515 South 32nd Street, Camp Hill, Pennsylvania, the property
directly involved in the decision of the Camp Hill Zoning Hearing Board decision which is the
subject of this appeal, intervenes in this Appeal in support ofthe decision of the Camp Hill
Zoning Hearing Board.
B~ C4t~~
J ' . Flower, Jr., Esq.
PA ill No. 27742
Suzanne C. Hixenbaugh, Esq.
PA ill No. 91641
26 West High Street
Carlisle, P A 17013
(717) 243-6222
Attorney for Plaintiff
.
.
BOROUGH OF CAMP HILL,
Appellant
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO. 06-3225 CNIL TERM
THE ZONING HEARING BOARD OF :
CAMP HILL BOROUGH,
Appellee
CERTIFICATE OF SERVICE
AND NOW, this '2--Z,(l)..day of June, 2006, I, SUZANNE C. HIXENBAUGH, Esquire, of
the law firm of SAIDIS, FLOWER & LlNDSA Y, hereby certify that I served the foregoing Notice
of Intervention in the above captioned case by facsimile and by United States Mail, First Class,
Postage Prepaid, in Carlisle, Pennsylvania, addressed to:
J. Stephen Feinour, Esquire
Nauman, Smith, Shissler & Hall, LLP
200 North Third Street
P.O. Box 840
Harrisburg P A 171 08-0840
(Attorney for Appellant)
Philip 1. Murren, Chairman
Camp Hill Zoning Hearing Board
2145 Walnut Street
Camp Hill, P A 17011
"~
Date: June2Z:, 2006
Richard 1. Placey, Esquire
P1acey & Wright
3631 North Front Street
Harrisburg, PA 171l0-1533
(Attorney for Camp Hill Zoning Hearing Board)
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Suzanne ~ixenbaUgh, Esquire
Attorneys for Defendants
Supreme Court ill No. 91641
Saidis, Flower & Lindsay
26 West High Street
Carlisle, P A 17013
(717) 243-6222
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vs.
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL V ANlA
NO. 2006-3125
BOROUGH OF CAMP HILL
Appellant
TIIE ZONING HEARING BOARD OF
CAMP HILL BOROUGH,
Appellee
CIVIL ACTION - LAW
vs.
CITADEL BROADCASTING COMPANY:
Intervenor
PRAECIPE OF SETTLEMENT AND DISCONTINUANCE
TO THE PROTHONOTARY:
Please rnark the above-captioned case settled, discontinued and ended.
NAUMAN, SMITH, SHISSLER & HALL, LLP
,vu--
. Ste en Feinour, Esquire
Supreme Court ID #24580
200 North Third Street, P. O. Box 840
Harrisburg, P A 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Solicitor for Camp Hill Borough
Date: August 31, 2006
- 1 -
'. ..
CERTIFICATE OF SERVICE
AND NOW, on the date stated below, I, J. Stephen Feinour, Esquire, of the firm of
Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing
"Praecipe of Settlement and Discontinuance" via United States Mail, first class, addressed to the
following:
Philip J. Murren, Chairman
Camp Hill Zoning Hearing Board
2145 Walnut Street
Camp Hill, PA 17011
Richard 1. Placey, Esquire
Placey & Wright
3631 North Front Street
Harrisburg, PA 17110-1533
(Attorney for Camp Hill Zoning Hearing
Board)
Suzanne Hixenbaugh, Esquire
Saidis, Flower and Lindsay
26 West High Street
Carlisle, P A 17013
(Attorneys for Citadel Broadcasting
Company)
NAUMAN, SMITH, SHISSLER & HALL, LLP
By:
1\.'-"-
. St en Feinour, Esquire
Supreme Court ID# 24580
200 North Third Street, P. O. Box 840
Harrisburg, P A 171 08-0840
Telephone: (717) 236-3010
Telefax: (717) 234-1925
Solicitor for Appellant, Borough of Camp Hill
Date: August 31, 2006
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