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HomeMy WebLinkAbout06-5142SHIPPENSBURG BOROUGH, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Appellant V. No. 04 - 3192- THE ZONING HEARING BOARD OF SHIPPENSBURG BOROUGH, Appellee : LAND USE APPEAL NOTICE OF LAND USE APPEAL The Borough of Shippensburg, appellant, appeals from the August 3, 2006 Decision of the Zoning Hearing Board of Shippensburg Borough granting a variance to Shippensburg Church of the Brethren, and in support thereof states the following: 1. Appellant, the Borough of Shippensburg ("Borough"), is a municipality organized under the Pennsylvania Borough Code, located in Cumberland County and Franklin County, with a principal place of business at 1 I 1 North Fayette Street, Shippensburg, Pennsylvania 17257 2. Appellee is the Borough of Shippensburg Zoning Hearing Board ("ZHB"). The ZHB has a mailing address of J. Lee Hockersmith, Secretary, 111 North Fayette Street, Shippensburg, PA 17257-0129. 3. On July 26, 2006, Shippensburg Church of the Brethren ("the Church") filed with the ZHB a Revised Conditional Use Application ("Application") for property located at 241, 245, 247, 249, 251 and 253 East Garfield Street, Shippensburg ("Property"). 1 4. A hearing on the Application was held before the ZHB on July 19, 2006. 5. On August 3, 2006, the ZHB granted the requested variances. A copy of the August 3, 2006 Decision is attached as Exhibit "A" 6. The Property is located within the Cumberland County section of the Borough and is in the Residential Medium-Density (R-2) District under the provisions of the Shippensburg Borough Code (hereinafter the "Code"). 7. In order to convert the Property into one lot, the Church desires to demolish three of the existing single-family dwellings and replace them with a Multi-Purpose Building and parking facilities. 8. The ZHB made an error of law in applying the requirements of § 150-122 of the Code (attached hereto and made a part hereof as Exhibit `B"), entitled "Place of Worship", when considering the variances. 9. The proposed use does not constitute a place of worship as defined in §150-134 of the Code (attached hereto and made a part hereof as Exhibit "C") because recreational uses are specifically excluded from the classification, and is therefore subject to the general requirements in § 150-17 the Code (attached hereto and made a part hereof as Exhibit "D"). 10. The ZHB granted a variance from the front setback requirements of 20 feet for the subject property for 9.48 feet, which does not comply with Residential Medium-Density (R-2) District requirements, in which the subject Property is located. (See § 150-17 of the Code). 11. The ZHB granted a variance from the lot coverage requirement of no more than 40 percent impervious coverage, allowing the Appellee lot coverage of up to 75.5 percent. 2 12. The ZHB granted a variance from parking requirements found in §150-57(c)(9) of the Code, by allowing the Appellee to only provide 47 parking spaces as opposed to 51 parking spaces. 13. The action of the ZHB in granting the variances was arbitrary, capricious, an abuse of discretion and contrary to law in that: a) The Church did not show evidence of hardship justifying lot coverage up to 75.5 percent. b) The Church did not show evidence of hardship justifying the lesser parking. c) The Church did not show evidence of hardship justifying lessening of the front setback requirements. d) The variances granted will alter the essential character of the neighborhood and be detrimental to the public welfare because the Property is not suitable as proposed for the Residential Medium-Density (R-2) District. e) The variances granted do not represent.the minimum variances that will afford relief because the Property can be developed in a way that will more closely conform to the Borough's Zoning Ordinance. f) The ZHB's grant of the variances was not supported by record evidence. WHEREFORE, Appellant requests that this Honorable Court reverse the cited action of the Shippensburg Borough Zoning Hearing Board and deny the variances requested by the Church. 3 Respectfully Submitted, Salzmann Hughes, P.C. Date: Augustta-, 2006 By: Melissa K. Dively, Esqui e Attorney ID No. 36780 455 Phoenix Drive, Suite A Chambersburg, PA 17201 (717) 263-2121 4 CIFICATE OF SERVICE I hereby certify that on the _ day of September, 2006 I served a true and correct copy of the foregoing document via certified mail, return receipt addressed as follows: The Zoning Hearing Board of Shippensburg Borough 111 North Fayette Street Shippensburg, PA 17257 Hubert Gilroy 4 N. Hanover St. Carlisle, PA 17013 Shippensburg Church of the Brethren 253 East Garfield Street Shippensburg, PA 17257 Respectfully submitted, E?IIBIT A ,:Aug.29. 2006 4:32PM BOROUGH OF SHIPPENSBURG William W. Wolfe Borough Mannar RobertC. Wenai Codes Edforeement Officer Grace M. Keifer AdminiWafin Assistant August 3, 2006 111 Alorth Fanue sweet P. 0. Box 129 SbippembmS PA 17257.0129 (717) 532-2147 Fe c: (717) $32,6948 No. 5954 P. 2 Members ofCoweil Bruce Hookm=N Mayor ... ?:•: £ariPms'na3l,Praident Andres Lage, Vice Ptw ldmi Bo mBaab Alexander Beattie 'JoellockorsEft Geno Torri O? Shippensbtug Chitt+ch of the Brethren 253 Fast Garfield Street Shippensburg, PA 17257 SHIPPENSBURG ZONING HEARING BOARD; 2006-07 DECISION AND NOW, this P day of August, following a hearing on July 19, 2006, the Zoning Hearing Board of the Borough of Shippensburg, Cumberland and Franklin Cotmties, after careful consideration of the Application for Variance filed by the Shippensburg Church of the Brethren for property at 241, 245, 247, 249, 251, & 253 Past Garfield Street, Shippensbur& PA, it is ordered and directed as follows: The applicant, Shippensbvrg Church of the Brethren, is hmvby granted the following variances with respect to the properties at 241, 245, 247, 249, 251 and 253 Fast Garfield Street, Shippensbmr, PA: A. The applicant is allowed to maintain a parldrig lot a# the subject B. The front setback for the subject property may be as little as 9.49 feet C. The lot coverage at the subject property may be up to 75.5 feet D. The applicant may maintain the multi-propose building on the property and may be placed in the rear yard. B. Parking may be as little as shown on the Plan filed in this case. F. A buffet strip is not required. 2. These variances are granted subject to the following conditions: A. Applicant will proceed with the use of the subject property consistent with the Plans submitted at the hearing in this case and the testimony submitted at the hearing. Th-BarY-1ghIs= ga'.O}t=taruirE7,.10-,'c r Aug.29. 2006 4:33?M Page 2 Shipp=burg Chmrh of the Brethren No. 5954 ?. 3 B. Applicant shall abide by all other Federal, state and local laws and ordinates relating to the subject propetty. RaspcctfuIly submitted, 7. Lee Hockemmith, Secretary ANY PER" OF MAY APPEAL TO THE COURT OP 8 ORTHIS DEC MM. MMSUANT NM SPSCTAL EZCMYM OR 12 nm Picro DUSE[A MMONAL USE EM NOTBEEN OPAPPROVAL CC@WWIONAL USE URAWMBY TfM ZCHNU HEARM BOARD SW SMCMU CONI MO ATED BY SAID VARLOM, SPECIAL m=T, EXECUTED OR ACM UPON WPPHIN TWELVE MONTHS FOLLOWING § 150-122. Place of worship. In the R-2, R-3, R-4, C-1, M-I and M-2 Zones, and subject to the requirements of those zones except as herein modified and provided: A. Side setback. Minimum side setbacks of 15 feet on both sides shall be provided. B. A buffer strip shall be provided which shall be not less than 10 feet in width encompassing the entire perimeter of the lot, which buffer strip shall be planted with evergreen, shrubs or other screening vegetation, provided that, on the side of such lot fronting on the street, the buffer strip shall be not closer than 10 feet to the street. C. Access shall be via a collector or arterial street as designated by the Borough's Comprehensive Plan. D. Any associated residential use shall either be located on a separate lot or be positioned so that the lot on which it and the place of worship are located could subsequently be subdivided, separating each use yet meeting all applicable dimensional requirements of the zone in which located. The residential use shall be subject to all applicable regulations of this chapter. E. Any associated educational or day-care uses shall be accessory and located on the same lot as the place of worship. EXHIBIT B § 150-134 Terms defined. PLACE OF WORSHIP - A building used for public worship by a congregation, excluding buildings used exclusively for residential, education, burial, recreational or other uses not normally associated with worship. EXHIBIT C § 150-17 Residential Medium-Density (R-2) District. A. Use regulations. A building may be erected or used, and alot may be used or occupied, for any of the following purposes, and no other: (1) Permitted uses in the Residential Medium-Density (R-2) District: (a) Single-family detached dwelling. (b) Tilling of soil, noncommercial. (c) Natural park. (d) Bed-and-breakfast. (e) Park or recreation area. (f) Accessory use. (g) Single-family semidetached dwellings, provided that both dwellings are constructed at the same time (see definition of "dwelling" for clarification). (h) Cemetery. Existing will be conforming; no additional cemeteries permitted in the R-2 Zone. (i) Forestry. (2) Conditional uses in Residential Medium-Density (R-2) District (see Article XIV): (a) Place of worship. (b) Hospital. (c) Day-care center. (d) Fitness and health center. (e) Public or private school. (f) Craftsman's shop. (g) Home occupation. B. Dimensional regulations in the Residential Medium-Density (R-2) District: (1) Lot area and width. The lot area and width shall be not less than the following dimensions for each principal use hereafter established in this zone: (a) Lot area minimum: 7,500 square feet per dwelling unit. (b) Lot width minimum: 70 feet. (2) Setbacks. Each lot shall provide front, side and rear setbacks not less than the following: (a) Front setback: 20 feet (see § 150-60). (b) Side setback: six feet on both sides. (c) Rear setback: 20 feet (see §§ 150-54 and 150-55). (3) Height. The height limit for a principal building shall be 35 feet. Height limits may be exceeded by one foot, provided that for every one foot the height limit is exceeded, each side setback is also increased by one foot to a maximum height of 45 feet (does not include chimneys). No accessory use shall have a height greater than 75% of the height of the primary use. (4) Lot coverage. Not more than 40% of the lot area shall be covered with impervious surface materials. (5) Vegetative cover. At least 20% of the lot area shall be maintained in a vegetative cover. C. Off-street parking. There must be two parking spaces provided for each family unit. EXHIBIT D rv m T -n FTI ?' ? Cry W 00 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Shippensburg Borough 111 North Fayette Street Shippensburg, Pa. 17257 Vs. No. 06-5142 CIVIL TERM The Zoning Hearing Board of Shippensburg Borough J. Lee Hockersmith, Secretary 111 North Fayette Street Shippensburg, Pa. 17257-0129 WRIT OF CERTIORARI COMMONWEALTH OF PENNSYLVANIA) SS. COUNTY OF CUMBERLAND) TO: The Zoning Hearing Board of Shippensburg Borough: We, being willing for certain reasons, to have certified a certain action between Shippensburg Borough vs The Zoning Hearing Board of Shippensburg Borough pending before you, do command you that the record of the action aforesaid with all things concerning said action, shall be certified and sent to our judges 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 J our said Court, at Carlisle, PA., the 1st day of September.. KURT .LONG Prothonotary r? y SHIPPENSBURG BOROUGH Appellant V. THE ZONING HEARING BOARD OF SHIPPENSBURG BOROUGH, Appellee V. SHIPPENSBURG CHURCH OF THE BRETHREN Intervenor : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA 06-5142 Civil Term LAND USE APPEAL NOTICE OF INTERVENTION Please take notice that Shippensburg Church of the Brethren, Applicant and owner of the premises at 241, 245, 247, 249, 251 and 253 East Garfield Street, Shippensburg, Cumberland County, Pennsylvania, which is the property directly involved in the decision of the Zoning Hearing Board of Shippensburg Borough from which this Appeal has been lodged, intervenes in this Appeal in support of the Decision of the Board. Proof of service is attached. Respectfully submi 000q Dale F. Shughart, J Supreme Court I.D. 9373 10 West High Street Carlisle, PA 17013 (717) 241-4311 v i SHIPPENSBURG BOROUGH Appellant V. THE ZONING HEARING BOARD OF SHIPPENSBURG BOROUGH, Appellee V. SHIPPENSBURG CHURCH OF THE BRETHREN Intervenor : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA 06-5142 Civil Term LAND USE APPEAL CERTIFICATE OF SERVICE -M,-- AND NOW, this day of September, 2006, I, Dale F. Shughart, Jr., Esquire, attorney for Internvors, hereby certify that I have served a copy of the Notice of Intervention by mailing a copy of the same by United States mail, postage prepaid, addressed as follows: Melissa K. Dively, Esquire Salzmann & Hughes, P.C. 455 Phoenix Drive, Suite A Chambersburg, PA 17201 Attorney for Shippensburg Borough Hubert X. Gilroy, Esquire Broujos & Gilroy 4 North Hanover Street Carlisle, PA 17103 Attorney for Zoning Hearing Board Shippensburg Borough Dale F. Shugh rX, V. Supreme Court I.D. 19373 35 East High Street, Suite 203 Carlisle, PA 17013 (717) 241-4311 ¦ Complete items 1, 2, and 3. Also complete Rem 4 tf Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this to the back of the mailpiece, or on the fro?f space permits. 1. Article Addressed to: The Zoning Hearing Board of Shippens Borough J. Lee ersmith, Secretary 111 North ayette Street Shippens Pa. 17257-0129 X 7ture? Agent ? Addressee , BrjTapelved byr(ftlied Name) i C. Pate pf DeNvery D. Is delivery addre"Iffem* om ROR 1? 0 Yes If YES, enter delijv add s belovur ? No V) r s ! i is c? 3. Service Type - CkCertifled Mii ; 0 EA"'"' MaiF_ 13 Registered y' cM Return Rece* for Merchandise E3 Insured Mail C. 06-5142 4. Restricted Dellvayt7Extre+qe) ? Yes 2. Artlde Number Mansfer from service label) PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 SHIPPENSBURG BOROUGH Appellant V. THE ZONING HEARING BOARD OF SHIPPENSBURG BOROUGH, Appellee V. SHIPPENSBURG CHURCH OF THE BRETHREN Intervenor : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA 06-5142 Civil Term LAND USE APPEAL MOTION TO REMAND TO THE ZONING HEARING BOARD OF SHIPPENSBURG PURSUANT TO 53 P.S. 101005-A. TO THE HONORABLE, THE JUDGES OF SAID COURT: The Intervenor, Shippensburg Church of the Brethren, by its undersigned attorney, Dale F. Shughart, Jr., moves Your Honorable Court to remand this matter to the Zoning Hearing Board of Shippensburg Borough for further proceedings and in support thereof represents as follows: 1. The Petitioner is Shippensburg Church of the Brethren (Church), owner of the subject property and Applicant for variances before the Zoning Hearing Board of Shippensburg Borough (Zoning Hearing Board) which intervened in these proceedings on September 19, 2006. 2. The Appellant is Shippensburg Borough (Borough) which filed the above captioned Land Use Appeal on September 1, 2006 from the written Decision of the Zoning Hearing Board dated August 3, 2006. 3. The Appellee is the Zoning Hearing Board. 4. The Church filed an Application for a number of variances and other relief from the Zoning Hearing Board in order to enable it to construct a new multi-use building and parking lot on the property adjacent to the church sanctuary. 5. Following a hearing on July 19, 2006 the Zoning Hearing Board voted to approve the variances, which was formalized by written Decision dated August 3, 2006 and attached to the Appeal filed by the Borough. 6. The Borough was represented at the hearing by its Zoning Officer, Robert Weaver, who offered no objection to the variance requests. 7. Consequently, the variance requests not having been opposed and relief having been granted, consistent with §908(9) of the Pennsylvania Municipalities Planning Code (MPC) 53 P.S.10908(9), the Zoning Hearing Board Decision does not make specific Findings of Fact or Conclusions of Law. 8. Despite not having opposed the variances nor made any inquiries regarding the proposed use of the proposed new building, the Borough of Shippensburg filed the above captioned Land Use Appeal in which it avers, inter alia, that the proposed building does not constitute "a place of worship" under §150-134 of the Borough Zoning Ordinance. No issue being raised, no evidence was offered as to the uses of the building at the Zoning Hearing. 9. The Church intends to occupy and use the proposed building as a place of worship consistent with, and as protected by, the Laws of the United States of America and the Commonwealth of Pennsylvania. 10. The Church is reasonably entitled to offer additional evidence in regard to the proposed uses of the building and such other evidence regarding the variance requests which may be objected to by the Borough. 11. §1005-A. of the MPC, 53 P.S. 101005-A provides that "if it is shown that proper consideration of the Land Use Appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence, or may remand the case to the body, agency or office whose Decision or Order has been brought up for review . . .". 12. Under the circumstances, the Borough not having raised the issues in this Appeal before the Zoning Hearing Board, the Church should reasonably be entitled to offer additional evidence at a further hearing before the Zoning Hearing Board, and the Zoning Hearing Board should be directed to issue a further written Decision with Findings of Fact and Conclusions of Law, to guide the Court in the event the Borough decides to pursue this Appeal following the issuance of the Board's further Decision. WHEREFORE, your Petitioner, Shippensburg Church of the Brethren, respectfully prays Your Honorable Court to remand the above captioned Land Use Appeal to the Zoning Hearing Board of Shippensburg Borough to allow the presentation of additional evidence and the issuance of a further written Decision with Findings of Fact and Conclusions of Law. RsuDale F. Shugha Jr. Supreme Court I.D. 19373 10 West High Street Carlisle, PA 17013 (717) 241-4311 VERIFICATION Judy K. Wenger, Administrative Assistant of Shippensburg Church of the Brethren, hereby verifies that the facts set forth in the foregoing Motion to Remand to the Zoning Hearing Board of Shippensburg are true and correct to the best of her knowledge, information and belief, and understands that false statements herein are made subject to the penalties of 18 Pa. C.S. 54904 relating to unsworn falsifications... DATE ; 7/Z,6/0-& J Ay K. Wenger SHIPPENSBURG BOROUGH Appellant V. THE ZONING HEARING BOARD OF SHIPPENSBURG BOROUGH, Appellee V. SHIPPENSBURG CHURCH OF THE BRETHREN Intervenor : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA 06-5142 Civil Term LAND USE APPEAL CERTIFICATE OF SERVICE AND NOW, this p day of September, 2006, I, Dale F. Shughart, Jr., Esquire, attorney for Internvors, hereby certify that I have served a copy of the Motion to Remand to the Zoning Hearing Board of Shippensburg Pursuant to 53 P.S. 101005-A by mailing a copy of the same by United States mail, postage prepaid, addressed as follows: Melissa K. Dively, Esquire Salzmann & Hughes, P.C. 455 Phoenix Drive, Suite A Chambersburg, PA 17201 Attorney for Shippensburg Borough Hubert X. Gilroy, Esquire Broujos & Gilroy 4 North Hanover Street Carlisle, PA 17103 Attorney for Zonin Hearing Board o Shippensburg Boroug Dale F. Shughart, r. Supreme Court I.D. 19373 10 West High Street Carlisle, PA 17013 (717) 241-4311 m :? rv w S E P 2 7 2006 SHIPPENSBURG BOROUGH Appellant V. THE ZONING HEARING BOARD OF SHIPPENSBURG BOROUGH, Appellee V. SHIPPENSBURG CHURCH OF THE BRETHREN Intervenor : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA 06-5142 Civil Term LAND USE APPEAL RULE <?- ? AND NOW, this lDAday of , 2006, a Rule is entered upon the Appellant, Shippensburg Borough, and the Appellee, The Zoning Hearing Board of Shippensburg Borough, to show cause why an Order should not be entered granting Intervenors Motion to Remand the matter to the Zoning Hearing Board of the Borough of Shippensburg to allow presentation of additional evidence and to issue a further written Decision with Findings of Fact and Conclusions of Law. Rule returnable on the day of 2006, at 16:0 4 o'clock A .m., prevailing time, in Courtroom No. Cumberland ?vthe y Courth use, Carlisle, PA. Cour J. CC: Dale F. Shughart, Jr., Esquire, attorney for Intervenor Melissa K. Dively, Esquire, Salzmann & Hughes, P.C., attor ey for the Appellant Hubert X. Gilroy, Esquire, Broujos & Gilroy, attorney for qI )-f 04 Appellee 0`0.. ,0 r f' r,ti? f ??f 8 8 .C d L Z d3S 9002 A'tiViONIG 4 4 lUid '3jRL ?o a12?0-0371J SHIPPENSBURG BOROUGH, Appellant V. THE ZONING HEARING BOARD OF THE BOROUGH OF SHIPPENSBURG Appellee COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 06-5142 CIVIL TERM and SHIPPENSBURG CHURCH OF THE BRETHREN Intervenor LAND USE APPEAL RESPONSE TO MOTION TO REMAND TO THE ZONING HEARING BOARD OF SHIPPENSBURG PURSUANT TO 53 P.S. 101005-A. TO THE HONORABLE, THE JUDGES OF SAID COURT: The Appellant, The Borough of Shippensburg, by its undersigned attorney, Melissa K. Dively, moves Your Honorable Court to deny the motion to remand this matter to the Zoning Hearing Board of Shippensburg Borough for further proceedings and in support thereof represents as follows: 1. Paragraph I of the Intervenor's Motion is admitted. 2. Paragraph 2 of the Intervenor's Motion is admitted. 3. Paragraph 3 of the Intervenor's Motion is admitted. 4. Paragraph 4 of the Intervenor's Motion is admitted. 5. Paragraph 5 of the Intervenor's Motion is admitted. 6. Paragraph 6 of the Intervenor's Motion is denied as stated. Robert Weaver attended the hearing before the Zoning Hearing Board in his sole capacity as the 1 Zoning Officer for the Borough and his participation was limited to the powers of the Zoning Officer found in 53 P. S. § 10614. There is no evidence in the record to indicate that the Zoning Officer was allegedly charged by the Borough, either by the administrative staff of the Borough or by its duly elected council members, to present any testimony regarding the interest of the Borough in this proceeding. The Borough was not required to contest the variances at the hearing in order to preserve its right to appeal the decision of the Zoning Hearing Board. I However, if a remand is granted, the Borough respectfully requests the right to present testimony and cross examine any witnesses in regard to all matters relating to the application before the Zoning Hearing Board 7. Paragraph 7 of the Intervenor's Motion is a conclusion of law to which no response is required. 8. Paragraph 8 of the Intervenor's Motion is denied as stated. In its written application seeking variances (attached hereto and incorporated herein as Exhibit A) the Church characterized the use of the building as a Multi-Purpose Building consisting of a gymnasium, kitchen, and restrooms. At the hearing before the Zoning Hearing Board the building proposed by the Intervenor was described by a witness for the Intervenor, Carl Bert, as a "multi-purpose building" as distinct from its house of worship which was described as the "sanctuary". The issues raised on the appeal filed by the Borough include the wrongful application of provisions in the Borough's zoning regulations relating to houses of worship. Furthermore, the Church had the burden of showing that unnecessary hardship would result if a variance was denied2 notwithstanding the presence of any objectors, and was afforded the opportunity to present such evidence at the hearing before the ZHB. 9. The Borough does not have sufficient information to determine the truth of falsity of the allegation in the Intervenor `s Motion, Paragraph 9. To the contrary the application and the testimony at the hearing before the Zoning Hearing Board 1 Lower Paxton Township v. Fieseler Neon Signs, 391 A.2d 720, 723 (Pa. Cmwlth. 1978). 53. P.S. 10908(3) 2 Hertzberg v. Zoning Bd. OfAdjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998). 2 distinguished between a multi-purpose building and the sanctuary. If a remand is granted, strict proof is demanded. 10. Paragraph 10 of the Intervenor's Motion is denied to the extent that a full and fair hearing was afforded to the Intervenor by the Zoning Hearing Board. If a remand is granted the Borough request this Court to direct the hearing to be a full and complete reconsideration of the application including whether or not to grant the requests of the applicant and the Borough and any other interested parties are entitled to offer additional evidence in opposition to the application and to cross examine any and all witnesses as to any matters relating the application before the Zoning Hearing Board. 11. Paragraph 11 of the Intervenor's Motion is admitted. 12. Paragraph 12 of the Intervenor's Motion is denied as stated to the extent that the Intervenor seeks to limit the scope of the testimony, on remand, if any, before the Zoning Hearing Board to additional evidence in support the Board's August 3, 2006 written decision. 13. WHEREFORE, the Respondent, the Borough of Shippensburg, respectfully requests that the Petitioner's request for remand be denied for the aforementioned reasons. However, if a remand is granted, the Borough request this Court to direct the hearing to be a full and complete rehearing of the application including the determination whether or not to grant the requests of the applicant and the Borough and any other interested parties are entitled to offer additional evidence in opposition to the application and to cross examine any and all witnesses as to any matters relating the application before the Zoning Hearing Board. Respectfully submitted, Melissa K. Dively, Es ii Attorney ID 455 enix Drive, Suite A Chambersburg, PA 17201 (717) 263-2121 VERIFICATION I verify that all the statements made in the foregoing Response are true and correct to the best of my knowledge, information and belief and that any false statements made are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Earl G. Parshall, President Shippensburg Borough Council 4 CERTIFICATE OF SERVICE I hereby certify that on the 0 day of October, 2006 I served a true and correct copy of the foregoing document via ertified mail, return receipt addressed as follows: Hubert Gilroy Broujos & Gilroy 4 N. Hanover St. Carlisle, PA 17013 Dale R. Shughart, Jr. 10 West High Street Carlisle, PA 17013 Respectfully submitted, Salzmann H , lissa I?--Biacel Es re 5 EXHIBIT A Oct. 6. 2 0 0 6 9:28AM APPLICATION FOR VARIANCE TO: Shippensburg Zoning Hearing Board: No. 6727 P. 2 I or we hereby apply for a variance from the Zoning Ordinance of the Borough of Shippensburg, and represent as follows: 1. The name, address and phone number of the applicant(s) are: Shippensburg Church of the Brethren 253 East Garfield Street Shippensburg, Pa. 17257 (717) 532-6526 2. The Attorney (if any, an attorney is not required) for the applicant (s) is: 3. The location of the property affected is: 941,145, 747749741 74; Rant C-*arfeld Street Ship' ansburg Cumberland Street Borough County 4. The present zoning classification of the property is: (for example, R-2 Residence District) R-2 Residence District 5. The provisions of the Zoning Ordinance from which a variance is sought is as follows: (for example, The Use Regulations in Section 401, which do not permit a canning factory in the district). Section 150-17.A.1. Permitted uses in the Residential Medium-Densky (R 2) District Section i50-17.i3.2.a. Front setback: 20 feet. Section 150-17.B.4 Lot coverage. Not more than 4(}% of the lot area shall be covered with impervious surface materials. Section 150.17.8.5 Vegetative cover. At least 20% of the lot area shall be maintained in a vegetative cover, Section 150-60. A 5rout yard exception. The front yard of a proposed building must be decreased in depth to the average alignment of existing buildings within 110 feet on each side of the proposed building, and within the same block, if such alignment of existing buildings is less than the front yard requirement for the district. Section 150-54.13 Provisions for accessory structures. Nonattached structures. An accessory structure, standing apart from the principal structures, is E:1CdbjobslCsb01071CorrespondencoWemorandum1060626 Shbg Bom zoning applip6on.doc Oct. 6, 2006 9:28AM permitted only in a rear yard. No, 6727 P. 3 Section 150-57.0.9 Parking requirements. Churches: one per five seats plus one per full- time employee, except in the Historic Overlay District. Section 150.122.8 A buffer strip shall be provided which shall be not less than 10 feet in width encompassing the entire perimeter of the lot, etc. 6. The specific variance which is here being applied for is as follows: (for example, the use of the building on the premises as a canning factory). Section 150-17.A1. Permitted uses in the Residential Medium-Density (R-2) District Rationale: Parking lots are not listed as a permitted use in the R-2 District However, the Church of the Brethren already has an existing parking lot on these properties. It is the intent of the Church to expand their on-lot parting facilities to minimize the number of off-site parking spaces required. Section 150-17.B.2.a. Front setback: 20 feet. Rationale: The existing Church Sanctuary is located on a corner lot which requires it to have two front yards (ZO Section 150.89). The existing Sanctuary is not compliant with the required front setback on Fast Garfield Street or South Washington Street. This is an existing non-conforming condition. It is also the intent of the Church to construct the proposed multi-purpose building within the 20 foot front setback. However, a reduced setback is permitted because the Zoning Ordinance requires the front yard setback to be reduced in depth to the average alignment of existing buildings within 110 feet on each side of the proposed building on the same block (ZO Section 150.50). Section 150-17.6.4 Lot coverage Nationale: The current impervious coverage for the properties owned by the Church of the Brethren from 241-263 East Garfield Street exceeds the maximum required impervious coverage for the R-2 Dist ict. It is the intent of the Church to increase the impervious area to accommodate the proposed multi-purpose building and parking lot. A large amount of the proposed impervious surface coverage Is due to the expanded on-tot parking area adjacent to Lutz Avenue. Therefore, increasing the amount of impervious coverage will result in decreased off-site parking demands. Section 150-117.13.5 Vegetative cover Rationale: The proposed vegetative cover for this site is estimated to be near the minimum requirement of 20%. However, it is possible that unforeseen improvements will be required thal will cause a slight decrease in vegetative cover. It is the desire of the Church of the Brethren to avoid having to submit a future variance request to account for vegetative cover that is slightly below the required amount. Section 150.54.6 Provisions for ac cesmy structures. Only permitted In the rear yard. Rationale: The proposed Multi-Purpose Building is an unconventional Accessory Use to the Church Sanctuary. It is not feasible to locate this structure in the rear yard of the Church due to the size requirements for this type of facility. Section 150-60. A Front yard exception. Rationale: The existing Church Sanctuary Is located on a corner lot which requires it to have two front yards (ZO Section 150-61). The existing Sanctuary Is not compliant with the required front setback on East Garfield Street or South Washington Street. This Is an existing non-conforming condition. E:\CdbiobsAOsbo1Q71CorrespondenceWlemorandum1080626 Shbg Soro zoning spplics6on.doc Cc t. 6. 2006 9 : 29AM No. 6727 P. 4 it is the desire of the Church of the Brethren to align the depth of the proposed multi-purpose building with the depth of the Church Sanctuary along East Garfield Street. This alignment will not be set at the depth required by the front yard exception. Section 150-57.0.9 Parking requirements Rationale: Although the Church intends to expand their parking area to reduce the need for off- site parking, the proposed parking expansion will not be able to accommodate the required number of spaces based on the Church's maximum seating capacity. However, there is street parking available that is currently utilized by church members to account for any overflow. The non-oonforming parking situation is an existing condition that the Church intends to Improve. Parking should not be required for both the Church Sanctuary and the Mufti-Purpose Building because these facilities are not intended to be utilized at the same time. Section 150422.8 Buffer stdlp Rationale: The 10 foot buffer strip required for a Place of Worship can not be provided on this property as the existing structures encroach upon the required area. Locating a buffer strip around this property will also result in the loss of on-site parking spaces which will lead to a greater usage of on-street parking by church members. 7. The reason that the variance is necessary is that: (for example, the building and land are unsuitable for anything except a canning factory). The above listed variances are being requested so that the Shippensburg Church of the Brethren may construct a Multi-Purpose Building consisting of a gymnasium, kitchen, and restrooms on the Church's properties currently occupied by three (3) single4amily dwellings. The Church of the Brethren has a growing membership and is in need of a large facility for informal events. Along with the proposed development, Carl Bert & Associates on behalf of the Church of the Brethren intends to submit a Land Subdivision Plan which combines all of the Church's properties into a single lot. This will allow for more efficient use of the Church property by avoiding the unnecessary setback restrictions currently imposed on each individual lot. Most of the variances requested are required primarily because the existing Church lot layout does not conform to the regulations required by the Shippensburg Borough zoning Ordinance. The only variance that can be applied stray to the proposed facilities is the request to locate an Accessory Use outside of the rear yard. 8. The owner(s) of the property is or are: Shippensburg Church of the Brethren Trustees of the Church of the Brethren F-;\Cdhlobs\Osbo1071GoimpondenwWemorand=\060626 Shbg Bom zoning applicabon.doc Cc 6. 2006 9:30AM No. 6727 P. 1 or we understand that at a hearing conducted by the Board on this application the burden will be upon the applicant (s) to show that the requisites for a variance, under the Pennsylvania Municipalities Planning Code, exist in this case. Applicant (s) Application Received: (Date) Signature o Borough Officer Receiving Applications Number Assigned to Application: 20_0_0 Ship. Zon. H. Bd.,. NOTE: If sufficient space is not available in Items 5 and 6, please attach additional pertinent information to this form. E:1Wc ot*\Csboi 07%CorrespondenoeWemormdamN060626 Shbg Boro zoning application.doo ?--? t?'t ! ?J r:a ".'i ( _.., ., y c:f? =? ," -, _:, a ;: ,- c.= ? ,? --<: SHIPPENSBURG BOROUGH, Appellant V. : THE ZONING HEARING BOARD OF THE BOROUGH OF SHIPPENSBURG Appellee and SHIPPENSBURG CHURCH OF THE BRETHREN Intervenor ORDER COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 06-5142 CIVIL TERM LAND USE APPEAL AND NOW this 141ay of 2006, the Motion to remand is granted and the proceedings in the above captioned Land Use Appeal are hereby remanded to the Zoning Hearing Board of Shippensburg Borough to conduct a full and complete rehearing of the applicant's request for variances including the determination whether or not to grant the requests of the applicant and the Applicant, the Borough and any other interested parties shall be entitled to present additional evidence as to any matters relating the application before the Zoning Hearing Board and the Zoning Hearing Board shall issuance a written Decision with Findings of Fact Udd Conclusions of Law. Court, J. 7 o?li SHIPPENSBURG BOROUGH Appellant V. THE ZONING HEARING BOARD OF SHIPPENSBURG BOROUGH Appellee V. SHIPPENSBURG CHURCH OF THE BRETHREN Intervenor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 06-5142 Civil Term LAND USE APPEAL NOTICE OF WITHDRAWAL OF APPEAL TO THE PROTHONOTARY: Please withdraw the above appeal and mark the appeal as settled and discontinued with prejudice. SALZMANN HUGHES, P.C. DATE: issa iv re Attorney ID No. 36780 455 Phoenix Drive; Suite A Chambersburg, PA 17201 (717) 263-2121 CERTIFICATE OF SERVICE I hereby certify that on the? 3 day of August 2007,1 served a true and correct copy of the foregoing Notice of Withdrawal of Appeal via United States mail, first class mail, postage prepaid, and addressed as follows: Hubert Gilroy 10 East High Street Carlisle, PA 17013 Dale R. Shughart, Jr. 10 West High Street Carlisle, PA 17013 Salzmann Hughes, P.C. r By: rvely, Esquire .* C) C= - r' rtl n F n !wry :. ( LJ ? } ; i.. :z p m ? .''.?. r-n