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HomeMy WebLinkAbout06-5754 Clifton R. Guise, Esquire Gates, Halbruner & Hatch, P.C. 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (717) 731-9627 c.guise@gateslawfirm.com (Attorneys for Appellant) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA LINLO PROPERTIES, LP, a Pennsylvania Limited Partnership, Appellant, v. No.: 6{..- S~.sy (j'vtL ~fJ2Jr} THE ZONING HEARING BOARD OF EAST PENNSBORO TOWNSHIP, Appellee NOTICE OF LAND USE APPEAL Appellant, Linlo Properties, LP, by and through its attorneys, Gates, Halbruner & Hatch, P.C" hereby appeals from the decision, adopted on August 30, 2006, by the East Pennsboro Township Zoning Hearing Board, Cumberland County, Pennsylvania, and in support thereof states the following: I. PARTIES 1. Appellant, Unlo Properties, LP ("Linlo") is a Pennsylvania Limited Partnership, with its registered address at 1 0 13 Mumma Road, Suite 1 00, Lemoyne, Cumberland County, Pennsylvania 17043. 2. ("ZHB"). The Appellee is the Zoning Hearing Board of East Pennsboro Township II. JURISDICTION & VENUE 3. Jurisdiction and venue is proper pursuant to 53 P.S. SS10107(b), 1100l-A and 11002-A, where the instant appeal originates from the denial of an application for a certification of non-conformance and/or extension of non-conformance. III. FACTUAL BACKGROUND A. HISTORY OF THE PROPERTY 4. The Property is located at 30-34 Erford Road, East Pennsboro Township, Pennsylvania 17011, and has constructed thereon a 4,440 square foot commercial building, containing three suites ("Property"). The specific portion of the Property in controversy is the north-end suite of the building consisting of 680 gross square feet ("Suite 3 "). 5. The entire Property is zoned "Commercial-Limited" as defined by the Township's Zoning Ordinance and has retained the same zoning since before the construction of the improvements in question in 1984. 6. Linlo purchased the Property on September 22, 2000 from the Property's prior owner, Chester C. Snavely, Jr. 7. The existing building was originally built in 1984. The square footage of the building and the size of the lot as currently exist are the same as they were when the building was built in 1984. The building had then in 1984, and still has now 4,440 square feet and the lot had then in 1984, and still has now 20,845 square feet of total area. 2 8. When the original building permit was approved and issued by the Township on June 21, 1984, the building construction and land development was approved with nineteen (19) parking spaces. The Building Permit was approved and issued for "Any Permitted Use Under the Ordinance", which would include any use permitted under "Commercial-Limited" which would include restaurants. 9. On April 10, 1992, Simply Turkey, Inc., a proposed tenant, and Chester Snavely, the former owner, applied for a building permit to renovate Suite #1 of the building previously occupied by The Office Works. The permit would allow Simply Turkey to renovate the area to accommodate its restaurant operation. At the time of the April 10, 1992 Building Permit Application, the Property was the same size, but was divided into 4 separate units, Suites 1, lA, 2 and 3. 10. The Simply Turkey Building Permit Application was denied and the matter was appealed to the ZHB. In its decision on April 30, 1992, the ZHB granted a variance thereby reducing the required number of off-street parking from 27 to 21 spaces. 11. On August 17, 1992, Simply Turkey, Inc. and Chester Snavely applied for a second building permit to allow Simply Turkey to expand into the adjoining Suite #lA and to renovate Suite #lA of the building area previously occupied by Chester Snavely's real estate brokerage company. Suite #lA was approximately 1,000 square feet. 12. Changing the use of Suite #lA from professional office use to restaurant use would have more than doubled the required number of parking spaces from 2 to 5 spaces. 13. The second building permit application was approved by Robert L. Gill, who was and still remains the Township Manager for East Pennsboro Township. The 3 second building permit was approved on September 22, 1992 without explanation and without requiring any additional parking spaces by the applicant/owner and without requiring an additional variance. 14. In its decision on April 30, 1992, the Zoning Hearing Board concluded that the Property would not accommodate any additional parking. 15. Subsequent to the April 30, 1992 variance and subsequent to the approval of the September 22, 1992 (second) building permit by the Township Manager, the Township changed its ordinances and increased the off-street parking requirements again. The Township almost doubled the parking requirements. The required parking for the Property was increased from 27 to 44 parking spaces. 16. Based on the Township Off-Street Parking Ordinance as existed in December 2005, under Section 2101, based on the proposed use of the entire area within the building as a restaurant, the parking requirements for the Property would be as follows: Suite #1, Simply Turkey Suite #2, Two Cousins Suite #3. Kabob House Total 23.6 parking spaces 14.0 parking spaces 6.4 parking spaces 44.0 parking spaces 17. Based on the Township Off-Street Parking Ordinance as existed In December 2005, under Section 2101, based on the previous use of Suite #3 as a drycleaner, the parking requirements for the Property would be as follows: Suite #1, Simply Turkey Suite #2, Two Cousins Suite #3. Class Act Dry Cleaners Total 23.6 parking spaces 14.0 parking spaces 3.4 {Jarking spaces 41.0 parking spaces 4 18. The available parking as the Property currently exists is as follows: Diagonal parking along Erford Road Parking along front of building Parking in rear of building Parking between building & Hunter Lane Total 15.0 parking spaces 8.0 parking spaces 2.0 parking spaces 3.0 parking spaces 28.0 parking spaces B. PROCEDURAL HISTORY - DENIAL OF ApPLICATION FOR RECOGNITION OF NON-CONFORMANCE OR EXTENSION OF NON-CONFORMANCE 19. On or about November 15, 2005, Micha Pak began renovations of Suite 3 for the purpose of establishing a restaurant known as "Kabob House". 20. On or about December 5, 2005, the Township discovered that Micha Pak, as a new tenant, had begun renovations of Suite 3. Shortly thereafter, Linlo was notified by the Township Zoning Officer that East Pennsboro Township would not approve the building permit application which was previously submitted by Micha Pak. 21. The Township Zoning Officer instructed Linlo to submit an application for an off-street parking variance. 22. The applicant, Linlo, submitted an Application for an off-street Parking Variance on January 11, 2006. The Application included a request for recognition of the non-conformance. As requested by the Township Zoning Officer, Linlo further submitted a supplement to the variance application on January 18, 2006. 23. A transcribed hearing was commenced by the East Pennsboro Township Zoning Hearing Board ("ZHB") on Thursday, February 16, 2006 at 5:30 PM. Linlo presented testimony by Lowell R. Gates, a principal of Linlo. The testimony addressed several issues including the current parking capacity, the previous tenants of the subject Property and the proposed tenant of the subject Property. The Township and its Board of 5 Commissioners intervened and presented testimony, by and through, the Township Solicitor, in opposition to the variance. At the hearing, the ZHB voted to deny the vanance. 24. On or about March 10, 2006, Linlo received the Findings of Fact and a final decision from the ZHB. 25. On March 31, 2006, Unlo filed a Land Use Appeal at Civil Term 06-1889 ("Variance Appeal"). 26. Oral Argument was heard by this Court on September 6, 2006. 27. As of the filing date of the present Appeal, no decision has been issued by this Court regarding the Variance Appeal. 28. On June 9, 2006, Linlo attempted to submit a request to the Township Zoning Officer for recognition of a non-conformance or, in the alternative, recognition of an extension of an existing non-conformance (herein referred to as "Application for Recognition of Non-Conformance"). 29. The Township Zoning Officer refused to accept the Application for Recognition of Non-Conformance, despite the fact that the East Pennsboro Township Ordinances specifically authorize the application of a non-conformance and specifically grant authority to the Zoning Officer to approve or deny non-conformances. Later in the day on June 9, 2006, Linlo delivered the Application for Recognition of Non-Conformance along with the filing fee to the Township Solicitor, Henry Coyne, Esq. 30. On June 23, 2006, the Township Zoning Officer, John B. Owen, by his letter denied Linlo's Application for Recognition of Non-Conformance. 6 31. The Township Zoning Officer failed to cite his basis for the denial of the Application for Recognition of Non-Conformance. 32. On July 7, 2006, Lin10 appealed the Township Zoning Officer's denial of the Application for Recognition of Non-Conformance to the ZHB. 33. A transcribed hearing for the appeal of the Township Zoning Officer's denial of Application for Recognition of Non-Conformance was heard on August 29,2006 before the ZHB. 34. At the transcribed hearing, Linlo presented testimony by its engineer and by one of its principal owners, Lowell R. Gates, regarding amongst other items the availability of additional parking. 35. At the transcribed hearing, the ZHB voted to deny Linlo's appeal of the denial of the Application for Recognition of Non-Conformance. 36. On August 30, 2006 (the following morning), the ZHB issued it Findings of Fact which stated the following conclusions of law. A true and accurate copy is attached hereto as Exhibit "A". i. Proper notice of the zoning hearing was provided to all persons in compliance with law. ii. Applicant has standing to appear before the Zoning Hearing Board for the relief requested. The Zoning Hearing Board has jurisdiction to hear this appeal under Section 909(a)(3) of the Municipalities Planning Code and township ordinance 2412(c). iii. Appellant failed to meet its burden of proof. 7 IV. Parking that is an accessory use to the primary commercial use is not eligible to be registered as a nonconforming use. v. Appellant failed to meet the I year registration deadline for a nonconforming use. vi. Appellant's change III use triggered compliance with the new parking requirements under the ordinance. v. RELIEF SOUGHT COUNT I - IMPROPER CONSIDERATION OF PUBLIC SAFETY 37. Linlo incorporates by reference paragraphs I through 36 as if fully set forth herein. 38. At the transcribed hearing, the members of the ZHB questioned Linlo's witnesses extensively on the public safety concerns regarding the Property. 39. East Pennsboro Township by and through it solicitor, Henry F. Coyne, Esq., presented additional testimony of witnesses on the impact to the public safety if the Property would be recognized as a non-conforming use. 40. A zoning hearing board may not consider public safety as a factor when making a determination about whether a particular property is non-conforming. 41. LinIo avers that the ZHB in making it determination to deny the Application for Recognition of Non-Conformance improperly considered the factor of public safety in reaching its decision regarding Linlo's application. WHEREFORE, Appellant requests that this Court reverse the East Pennsboro Township Zoning Hearing Board's denial of the Application for Recognition of Non- 8 Conformance and direct that the Application for Recognition of Non-Conformance which is the subject of this appeal be granted. COUNT II - IMPROPER CONSIDERATION OF USE 42. Linlo incorporates by reference paragraphs 1 through 41 as if fully set forth herein. 43. In the findings of fact, the ZHB improperly considered the change In business activity within Suite 3 as a "change in use". 44. The ZHB interpretation of "change in use" too narrowly defines the phrase. 45. Linlo avers that use under the Zoning Ordinance is defined more broadly in that Use is collectively all business activities permitted within a particular defined Zoning Classification. For example, permitted activities within a "Commercial-Limited" zone are Uses and a "change-in-use" only occurs when a landowner deviates from the Commercial- Limited zone. 46. The Premises was and remains in a Commercial-Limited Zone and all current and proposed business activities with the Premises are permitted uses within a Commercial-Limited Zone, therefore no change in use occurred. 47. Linlo avers that the ZHB in making it determination to deny the Application for Recognition of Non-Conformance too narrowly construed the phrase "change in use" in reaching its decision regarding Linlo's application. WHEREFORE, Appellant requests that this Court reverse the East Pennsboro Township Zoning Hearing Board's denial of the Application for Recognition of Non- 9 Conformance and direct that the Application for Recognition of Non-Conformance which is the subject of this appeal be granted. COUNT III - UNLAWFUL TAKING 48. Linlo incorporates by reference paragraphs 1 through 47 as if fully set forth herein. 49. Article X, Section 4 of the Pennsylvania Constitution provides that "Municipal and other corporations invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements and compensation shall be paid or secured before the taking, injury or destruction." 50. There exist no permitted uses within the Commercial-Limited zone under the East Pennsboro Township Ordinance that would comply with current parking restrictions set forth in Section 2103 of the East Pennsboro Township Zoning Ordinance. 5!. The ZHB and the Township Zoning Enforcement Officer have furthered denied Linlo's requests for a determination of the number of parking spaces available to be used by, or allocated to, a business within Suite #3, so as to prevent Linlo from determining if there are any permitted businesses which can operate in Suite #3. 52. The right of Linlo to lease or use the Property, particularly Suite #3 has been unlawfully taken and intentionally abridged by the ZHB. 53. Linlo's property rights secured by the Constitution were clearly established at the time ofthe ZHB's actions. 10 54. The ZHB knew or reasonably should have known, that its conduct would result in an unlawful taking of Unlo' s established property rights. 55. The ZHB's action of denying the appeal of the Zoning Officer's denial of the Recognition of Non-Conformance resulted in a taking of Linlo's property and a deprivation of Unlo's rights and privileges granted under the Pennsylvania Constitution without just compensation. WHEREFORE, Appellant requests that this Court reverse the East Pennsboro Township Zoning Hearing Board's denial of the Application for Recognition of Non- Conformance and direct that the Application for Recognition of Non-Conformance which is the subject of this appeal be granted or in the alternative that the Appellant be awarded damages based on the difference in value of the Property before and after the denial of the Application for Recognition of Non-Conformance and further award Appellant damages for lost income, lost opportunities and lost profits, attorneys fees, court costs, and any punitive damages as the Court deems just. COUNT IV-DEPRIVATION OF RIGHTS AND PRIvILEGES 56. Linlo incorporates by reference paragraphs 1 through 55 as if fully set forth herein. 57. The ZHB, in its Findings of Fact, cites to the East Pennsboro Township Zoning Ordinance Section 2202, which denies recognition of non-conforming uses if a landowner fails to register his non-conforming use within one-year of the enactment of the Ordinance. 11 58. Linlo hereby avers that any such registration requirement is arbitrary and capricious and improperly deprives a landowner of his rights and privileges granted by the Pennsylvania Constitution under Article 1, Section 10. 59. Landowners have the Constitutional right and privilege to continue and maintain non-conforming uses. 60. The burden imposed upon landowners by this Ordinance is severe, in that it requires a landowner, within one (1) year of the date of the passage of the Ordinance, to: (i) review the contents of the ordinance, (ii) determine and apply the ordinance to the landowner's property, (iii) make a determination if the landowner's property is now a non- conforming use, and (iv) apply for recognition of a non-conforming use. 61. The ZHB relied on Section 2202 of the Zoning Ordinance in its denial of the Application for Recognition of Non-Conformance. 62. The ZHB reliance on an unconstitutional statute was improper. WHEREFORE, Appellant requests that this Court hold that East Pennsboro Township Ordinance Section 2202 is unconstitutional, and that this Court reverse the East Pennsboro Township Zoning Hearing Board's denial of the Application for Recognition of Non-Conformance and direct that the Application for Recognition of Non-Conformance which is the subject of this appeal be granted or, in the alternative, that the Appellant be awarded damages based on the difference in value of the Property before and after the denial of the Application for Recognition of Non-Conformance and further award Appellant damages for lost income, lost opportunities and lost profits, attorneys fees, court costs, and any punitive damages as the Court deems just. 12 COUNT V- IMPROPER RELIANCE ON SECTION 2205 OF THE ZONING ORDINANCE 63. Linlo incorporates by reference paragraphs 1 through 62 as if fully set forth herein. 64. The ZHB, in its Findings of Fact, cites to the East Pennsboro Township Zoning Ordinance Section 2205, dealing with non-conformances, which states that "All required parking spaces for any expansion or enlargement [of anon-conformance] shall comply with the requirements of Article 21, Off-Street Parking." 65. The ZHB improperly relied on this ordinance to deny Linlo's Application for Recognition of Non-Conformance. 66. Section 2205 only applies to an expanSIOn or enlargement of a non- conforming use on the same property. 67. In the present case, Linlo IS seeking recognition of an existing non- conformance specifically regarding the parking requirements imposed by the Zoning Ordinance. 68. In this case, the parking requirement is not "accessory" as claimed by ZHB in its Findings of Fact, but rather, the parking requirement is the primary purpose of the Application for Recognition of Non-Conformance. 69. Consideration of Section 2205 by the ZHB in the present case was improper because the enactment in 1999 of the new Zoning Ordinances and, specifically, the revised parking requirements created a non-conforming use as to the parking requirements on the Property. WHEREFORE, Appellant requests that this Court reverse the East Pennsboro Township Zoning Hearing Board's denial of the Application for Recognition of Non- 13 Conformance and direct that the Application for Recognition of Non-Conformance which is the subject of this appeal be granted. COUNT VI-DEPRIVATION OF RIGHTS AND PRIVILEGES 70. Linlo incorporates by reference paragraphs 1 through 69 as if fully set forth herein. 71. The ZHB, in its Findings of Fact, cites to the East Pennsboro Township Zoning Ordinance Section 2205, which governs non-conformances and which states that "All required parking spaces for any expansion or enlargement [of anon-conformance] shall comply with the requirements of Article 21, Off-Street Parking." 72. The ZHB, in its Findings of Fact, states that the parking requirements imposed by the Zoning Ordinance can never be a non-conformance and that all property within East Pennsboro Township must comply with the parking requirements at all times. 73. Landowners have the Constitutional right and privilege to continue, maintain and, in certain circumstances, expand a non-conforming use. 74. Linlo hereby avers that the original enactment of Section 2205 improperly deprived all landowners within East Pennsboro Township of their rights and privileges granted under the granted by the Pennsylvania Constitution under Article 1 Section 10. 75. The ZHB's reliance on an unconstitutional statute was improper. WHEREFORE, Appellant requests that this Court hold that East Pennsboro Township Ordinance Section 2202 is unconstitutional, and that this Court reverse the East Pennsboro Township Zoning Hearing Board's denial of the Application for Recognition of Non-Conformance and direct that the Application for Recognition of Non-Conformance 14 which is the subject of this appeal be granted or in the alternative that the Appellant be awarded damages based on the difference in value of the Property before and after the denial of the Application for Recognition of Non-Conformance and further award Appellant damages for lost income, lost opportunities and lost profits, attorneys fees, court costs, and any punitive damages as the Court deems just. COUNT VII- Ex POST FACTO ApPLICATION OF ORDINANCE 76. Linlo incorporates by reference paragraphs 1 through 75 as if fully set forth herein. 77. Article 1, Section 17 of the Pennsylvania Constitution provides, in pertinent part, that "No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed." 78. The ZHB denial of the Application for Recognition of Non-Conformance creates the application of an ex post facto ordinance. 79. The ZHB is enforcing a parking ordinance enacted on September 15, 1999 against Linlo and the Property. 80. The improvements upon the Property were originally constructed in 1984, in conformance with the then existing Zoning Ordinance. 81. Linlo's property rights secured by the Constitution were clearly established at the time of the ZHB' s actions. WHEREFORE, Appellant requests that this Court reverse the East Pennsboro Township Zoning Hearing Board's denial of the Application for Recognition of Non- Conformance and direct that the Application for Recognition of Non-Conformance which is the subject of this appeal be granted or in the alternative that the Appellant be awarded 15 damages based on the difference in value of the Property before and after the denial of the Application for Recognition of Non-Conformance and further award Appellant damages for lost income, lost opportunities and lost profits and any punitive damages as the Court deems just. Respectfully submitted, Gates, Halbruner & Hatch, P.C. By: Cli on R. Guise, Esquire orney I.D. No. 93537 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Appellant) Date: September~, 2006 16 EXHIBIT "A" 17 EAST PENNSBORO TOWNSHIP ZONING HEARING BOARD Application: Appellant: Owner: Location: District: Use: Relief: 06-08Z Linlo Properties, LP Linlo Properties, LP 32-34 Erford Road, Camp Hill CL - Commercial Limited Commercial (restaurant) Appeal from Zoning Officer's denial of certification of nonconformance and / or extension of non-conformance FINDINGS OF FACT Procedural history 1. On June 9, 2006, Linlo Properties, LP ("Applicant") requested a certificate of non-conformance for the parking provided on the property and for the building located at 30-34 Erford Road, Camp Hill. I (Township Exhibit 2). 2. On June 23,2006, the township zoning officer denied Applicant's request to register a nonconforming use. (Township Exhibit 7) 3. On July 7, 2006, Applicant filed an appeal of the zoning officer's denial with the township Zoning Hearing Board. (Township Exhibit 3) 4. Notice of the August 29,2006 zoning hearing was published in the August 17, 2006 and August 21, 2006 editions of The Patriot News. Applicant's property was posted on August 15,2006 with a notice of the hearing. Applicant was personally notified of the zoning hearing by mail on August 14, 2006. 5. A hearing was commenced by the Zoning Hearing Board ("Board") on Tuesday, August 29, 2006 at 5:30 p.m. in the municipal building. All three Board members were present. 6. East Pennsboro Township objected to the appeal and participated in the introduction of evidence into the record and cross-examination of the Appellant and Appellant's witness. Lionel Gates, a partner of Linlo Properties, and John Latshaw, an engineer, presented testimony on behalf of Appellant. Factual Background 7. The one-story building located at 30-34 Erford Road, Camp Hill was constructed in 1984 following the demolition of a gasoline service station previously located on the Site. I Although the property address is referred to as 32-34 Erford Road, the parties agree that the appeal involves the entire building and property whose 3 suites are numbered 30, 32, and 34 Erford Road. r- 8. The building is 4,400 square feet. It is currently configured with three rental suites with the following permitted uses in a CL district: . Suite 1 . Suite 2 . Suite 3 Simply Turkey (restaurant) 2,360 SF Two Cousins (restaurant) 1,400 SF vacant 640 SF 9. At the time Appellant acquired the property in 2001, Suite 3 was occupied by a dry cleaning establishment, also a permitted use in a CL District. 10. In April 1992, the Zoning Hearing Board granted a variance to the property owner who subsequently sold the property to Appellant. The variance reduced the required number of 27 off-street parking spaces to 21 off-street parking spaces. The business mix in 1992 was 2 restaurants, 1 office, and 1 dry cleaning establishment. (Appellant Exhibit 4). 11. The 1992 Zoning Heard Board decision was specifically limited as follows: If the uses or proposed uses of the four units in the commercial building on the applicant's property change in the future, and additional off-street parking is required as a result the applicant must request further relief from the Zoning Hearing Board. (Appellant Exhibit 4). 12. In August 1992, the owners prior to Appellant applied for a building permit to "construct interior walls, place plumbing and electric service to serve restaurant equipment needs". The office suite was abandoned and the "Simply Turkey" restaurant was expanded into that space resulting in 3 rental suites. (Appellant Exhibit 3). 13. The commercial parking requirements applicable to a restaurant use in 1992 required 1 space for each fifty (50) squire feet of floor area for public use. (Township Exhibit 5, Section 532.2.c.). 14. In 1999, East Pennsboro repealed its zoning ordinance in its entirety and enacted a new zoning ordinance. The off-street parking requirements for a restaurant under Article 21, Section 2103.B., Table 21-4, item 29 (Restaurant - Fast Food Carryout Delivery) was amended in 2001. All other provisions of Article 21 currently read the same as they did when they were . enacted in 1999. 15. In December 2005, Appellant attempted to change the dry-cleaning use to add a 3 rd restaurant to the property. 16. The off-street parking required under the 1999 zoning ordinance, as amended in 2001, is 1 space for every 50 square feet of gross floor area. (Township Exhibit 1, Article 21, Section 2103.B., Table 21-4, item 29). 2 DISCUSSION A nonconforming use is a use that was lawful and conforms to the regulations regarding such use at the time a zoning ordinance is passed which makes the lawful use a nonconforming use under the newly adopted zoning ordinance. (Tp. Zoning Ordinance Section 2201). Registration of nonconforming uses must occur within one (1) year of the effective date of Article 22 of the zoning ordinance on September 15, 1999. (Tp. Zoning Ordinance Section 2202). In this case, the building's four rental suites were each occupied by a permitted use under the Township 1983 Zoning Ordinance and under the 1999 Zoning Ordinance. When the 1999 Township Zoning Ordinance was adopted, Section 2105. "Changes in Requirements" provides: A. Existing Parking Buildings and uses in existence on the effective date of this Ordinance shallnot be subject to the requirements of this Article unless the type and extent of use of the building or use is changed. B. Changes in Requirements Whenever there is an alteration of a building or a change or extension of a use which requires additional parking spaces to conform to the requirements of the Ordinance, the total additional parking required to the alteration, change or extension shall be provided in accordance with the requirements of this Ordinance. On April 30, 1992, the township's zoning hearing board granted a variance to a prior owner reducing the number of parking spaces required to 21. However, the variance was limited to apply specifically to the uses proposed in that variance application with the further caveat that any change in use that resulted in additional parking under the ordinance would require "further relief'. The uses in the building did not change until 2005 when Appellant applied for a variance to the parking regulations. The dry cleaner use is a retail which requires 1 parking space for every 250 square feet of gross floor area. The proposed restaurant use requires 1 parking space for every 50 square feet of gross floor area. The rental suite for the proposed restaurant is 640 square feet. A retail use requires 3 parking spaces, whereas a restaurant use requires 13 parking spaces. The net increased parking required as a result of a changed use is 10 additional parking spaces. 3 " Appellant has no right to register a nonconforming use. The time limitation is one-year from the time that the 1999 ordinance was adopted. (Township Zoning Ordinance, Article 22, Section 2208). Further, the zoning ordinance does not grandfather or freeze the parking spaces provided under the variance since the change in use requires additional parking spaces. Additionally, the variance granted in 1992 which provided relief by reducing the number of parking spaces provided was specific in applying only so long as the uses on the property did not change. Finally, Article 22 ofthe township zoning ordinance, Nonconforming Building and Uses, mandates that an extension, expansion or enlargement of a nonconforming use must comply with off-street parking regulations. Section 2205. This provision makes it clear that parking that is an accessory use may not be registered as a nonconforming use. CONCLUSIONS OF LAW 1. with law. Proper notice of the zoning hearing was provided to all persons in compliance 2. Applicant has standing to appear before the Zoning Hearing Board for the relief requested. The Zoning Hearing Board has jurisdiction to hear this appeal under Section 909(a)(3) of the MPC and township zoning ordinance 2412(c). 3. Appellant failed to meet its burden of proof. 4. Parking that is an accessory use to the primary commercial use is not eligible to be registered as a nonconforming use. 5. Appellant failed to meet the 1 year registration deadline for a nonconforming use. 6. Appellant's change in use triggered compliance with the new parking requirements under the ordinance. 4 ORDER By a vote of 3-0, taken at a public hearing conducted by the East Pennsboro Township Zoning Hearing Board on August 29,2006, the appeal of Linlo Properties, LLP from the zoning officer's denial of the certificate of nonconformance and / or extension ofnon-confonnance for off-street parking for the business located at 30-34 Erford Road, Camp Hill, in a CL Commercial Limited District is DENIED. East Pennsboro Township Zoning Hearing Board Issued: AUgust~ 2006 .LJ~A~ 5 VERIFICATION I, Lowell R. Gates, state that I have reviewed the foregoing Land Use Appeal and verify that the facts contained therein are true and correct to the best of my knowledge, information and belief. I further verify that these statements made by me are subject to the penalties of 18 Pa.C.S.A. 94904 relating to unsworn falsification to authorities. Date: September J!!-, 2006 1// ~ . Gates, Member Linlo anagement, LLC, General Partner Linlo roperties, LP, Appellant 19 CERTIFICATE OF SERVICE I, Clifton R. Guise, Esquire, hereby certify that a true and correct copy of the foregoing Notice of Land Use Appeal has been served upon the following interested parties this day in the following manners: Appellee (via Certified Mail): East Pennsboro Township Zoning Hearing Board 98 South Enola Drive Enola, P A 17025 Appellee's Solicitor (via First Class Mail) Karen Balaban, Esquire 115 Pine Street, Suite 200 Harrisburg, P A 17108-0821 Gates, Halbruner & Hatch, P.C. ton R. Guise, Esquire Attorney for Appellant DATED: SeptemberZl , 2006 18 ::0 ~ ~ 0 ,...,;, C (:~ c::..-, c:..""" ~ .~ ~. (n .' ~ r..... . . V N ~ U) -.... ~ ~ .-- ~~ W -, f' -U .. ~ ---c i'0 '""0 U) F: b ~ ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA LINLO PROPERTIES, L.P. Vs. No. 06-5754 CIVIL TERM ZONING HEARING BOARD OF EAST PENNSBORO TOWNSHIP WRIT OF CERTIORARI COMMONWEALTH OF PENNSYL VANIA) SS. COUNTY OF CUMBERLAND) TO: ZONING HEARING BOARD OF EAST PENNSBORO TOWNSHIP: We, being willing for certain reasons, to have certified a certain action between LINLO PROPERTIES, L.P. 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 our said Court, at Carlisle, P A., the 29TH day of SEPTEMBER, 2006.. ~1J~ !( ~ is R. Long, Prothonota:;J ~ Cl U1 .-'l .:r .lI r:(J ru ~ rn CJ " CJ CJ CJ U1 rn .-'l .::r CJ CJ ~ U.s. Postal Service", CERTIFIED MAIL" RECEIPT (Domestic Maif Only; No Insurance Coverage Prot"ided) Postage $ Certified Fee , Return Reciept Fee (Endorsement Required) t'estrlcled Delivery Fee (Endorsement Required) Postmark Here Total Postage & Fees SEr;[lE~' ( 1",1r'/ t TI Tf-II'; C;[CTiON . Complete Items 1, 2, and 3. Also complete Item 4 If Restricted Delivery Is desired. . Print your name and address on the reverse so that we can return the card to you. . Attach this card to the back of the mailplece, or on the front If space permits. 1. ArtIcle Addressed to: . J 6. P~ll.1~ro 7~f. ~/-4r. q B 5(jcJ>/~ E))'I.t)(a.. bf".. & ItO' tJ- f1 A Ito2-S tx:, -S 75"4- :2 ~ N .. 3. ServIce Type (fl =< .~ . CertIfIed Mall 0 Express Mall 'b Registered 0 Retum Receipt for Merchandise o Insured Mall 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. ArtlcIeNlMTlber lOlJ . {~DO' 0663' 7 :z....r~ ., (11wIsfer from aeMce label) PS Fonn 3811, February 2004 Domestic Retum Receipt 1St) 102595-02-M-1540 COYNE & COYNE, P.C. Henry F. Coyne, Esq. ,- Lisa Marie Coyne, Esq. .,. 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorneys for Intervenor LlNLO PROPERTIES, LP, a Pennsylvania Limited Partnership, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. No. 06-5754 Civil Term ZONING HEARING BOARD OF EAST PENNSBORO TOWNSHIP, APPELLEE and Land Use Appeal EAST PENNSBORO TOWNSHIP, INTERVENOR NOTICE OF INTERVENTION Please take notice that pursuant to the Pennsylvania Municipalities Planning Code, 53 Pa. C.S. Section 11004-A, the Township of East Pennsboro intervenes in this appeal. COYNE & COYNE, P.C. Dated: e ~ m tit -e f:, By: HENRY F. CO E, squire Pa.S.Ct.No. 6250 Lisa Marie Coyne, Esquire Pa.S.Ct.No.53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorney for East Pennsboro Township 1 . .. CERTIFICATE OF SERVICE I, Henry F. Coyne, Esquire, hereby certify that true copy of the Notice of Intervention served this date upon the below-r~ferenced individuals at the below listed address by way of First class mail, postage prepaid: Clifton R. Guise, Esq. Gates, Halbruner & Hatch, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Karen M. Balaban, Esq. Karen M. Balaban, LLC 115 Pine St., Suite No. 200 P.o. Box 821 Harrisburg, PA 17108-0821 COYNE & COYNE, P.C. Dated: M tJ J e- b HENRY F. 3901 Mark Street Camp Hill, PA 17011-4227 (717) 737-0464 Pa.S.Ct.No.06250 2 ....:, C-...:> C"".J 0""" o 11 ::;:! Rl :!J .. rn (-",.. \..~./ C) r) I 0\ -~ \~.f ..::: \ ..~~ ~~~ :fS ::< ~ N \..() .-. Lowell R. Gates, Esquire Gates, Halbruner & Hatch, P.c. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (717) 731-9627 l.r .gates@gateslawfirm.com (Attorney for Appellant) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA LINLO PROPERTIES, LP, a Pennsylvania Limited Partnership, Appellant, v. No.: 06-5754 Civil Term THE ZONING HEARING BOARD OF EAST PENNSBORO TOWNSHIP, Appellee Previously Assigned To Judge Ebert PRAECIPE TO DISMISS WITHOUT PREJUDICE And now comes, Appellant, Linlo Properties, LP ("Linlo") by and through its attorneys, Gates, Halbruner & Hatch, P.C., to files this Praecipe to Dismiss without Prejudice. The Appellant requests this Court dismiss Appellant's case without prejudice to refile. Respectfully submitted, "" v' CERTIFICATE OF SERVICE I, Sarah McCarroll, hereby certify that a true and correct copy of the foregoing Praecipe to Dismiss without Prejudice has been served upon the following interested parties this day in the following manners: Appellee's Solicitor (via First Class Mail) Karen M. Balaban, LLC Karen M. Balaban, Esquire 115 Pine Street, Suite 200 PO Box 821 Harrisburg, P A 17108-0821 Intervenor's Solicitor (via First Class Mail) Coyne & Coyne, P.C. Henry F. Coyne, Esquire 3901 Market Street Camp Hill, PA 17011 GATES, HALBRUNER & HATCH, P.C. ~h~q Sarah McCarroll, Esq. DATED: JJtl/7 ,2007 ~ --.. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA LINLO PROPERTIES, LP, a Pennsylvania Limited Partnership, A ellant, v. No.: 06-5754 Civil Term THE ZONING HEARING BOARD OF EAST PENNSBORO TOWNSHIP, Appellee ORDER OF COURT AND NOW, this J6y of Jdt v~ !:ILly ,2007, upon review of the Praecipe to Dismiss, this case is Dismissed without prejudice to refile. BY THE COURT, (]~~ 'ijAbi~04>o-l~ $ % o ~ ~ ~ 'L <27> ~ ~ v ~ ~"1V~ 'T --:9 ~ C'"C,: % ~ " t COYNE & COYNE, P.C. Henry F. Coyne, Esq. Pa. Supreme Ct. No. 06250 Lisa Marie Coyne, Esq. Pa. Supreme Ct. No. 53788 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Attorneys for Intervenor IN RE: LINLO PROPERTIES, LP, a Pennsylvania Limited Partnership, APPELLANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v. ZONING HEARING BOARD OF EAST PENNSBORO TOWNSmp, APPELLEE : No. 06-5754 Civil Term and : Land Use Appeal EAST PENNSBORO TOWNSmp, INTERVENOR. INTEVENOR'S PRAECIPE IN OPPOSITION TO APPELLANT'S PRAECIPE TO DISMISS WITHOUT PREJUDICE AND NOW comes, East Pennsboro Township, Intevenor, by its counsel, Coyne & Coyne, P.C. and files this Praecipe In Opposition to Dismiss Appellant's Praecipe to this action without Prejudice. The Appellant's proposed Praecipe to Dismiss may not be conditional. The Praecipe should state the action is withdrawn. Karen M. Balaban, Esquire, counsel for the Appellee, the Zoning Hearing Board of East Pennsboro Township Appellee, authorizes joinder in this Praecipe. Respectfully submitted: Dated: I q ~ i:f-7 By: ,4 f CERTIFICATE OF SERVICE: I, Lisa Marie Coyne, Esquire, hereby certify that true copy of the Intervenor's Praecipe in Opposition to Appellant's Praecipe to Dismiss without Prejudice was served this date upon the below-referenced individuals at the below listed address by way of First class mail, postage prepaid: Lowell R. Gates, Esq. Gates, Halbruner & Hatch, P.C. 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 Attorney for Linlo Properties, LP, Appellant Karen M. Balaban, Esq. Karen M. Balaban, LLC 115 Pine S1., Suite No. 200 P.O. Box 821 Harrisburg, P A 17108-0821 Count for the Zoning Hearing Board of EPT, Appellee Dated: I q ~If 7 COYNE & COYNE, P.C. Lisa Marie Coyne, SQUIRE 3901 Market Stree Camp Hill, P A 17011-4227 (717) 737-0464 Pa. S. Ct. No. 53788 2 ~ :3 <- ~ - r-.;) (,...) :v~ ""'~ ;~.,. ....;:..- - - ~ ~:P rn r:: -om :nQ I"'~. J.. ~~!\u .,- -" ~.:.,~ -Y'; (06 ~~ -'-\ ""\?" ~ o -J .. . " Lowell R. Gates, Esquire Gates, Halbruner & Hatch, P.C. 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (717) 731-9627 l.r .gates@gateslawfirm.com (Attorney for Appellant) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LINLO PROPERTIES, LP, a Pennsylvania Limited Partnership, Appellant, v. No.: 06-5754 Civil Term THE ZONING HEARING BOARD OF EAST PENNSBORO TOWNSHIP, Appellee Previously Assigned To Judge Ebert PRAECIPE TO DISMISS And now comes, Appellant, Linlo Properties, LP ("Linlo") by and through its attorneys, Gates, Halbruner & Hatch, P.C., and files this Praecipe to Dismiss. The Appellant requests this Court dismiss Appellant's case. Respectfully submitted, January 31,2007 . . ..... CERTIFICATE OF SERVICE I, Sarah McCarroll, hereby certify that a true and correct copy of the foregoing Praecipe to Dismiss has been served upon the following interested parties this day in the following manners: Appellee's Solicitor (via First Class Mail) Karen M. Balaban, LLC Karen M. Balaban, Esquire 115 Pine Street, Suite 200 PO Box 821 Harrisburg, PAl 71 08-0821 Intervenor's Solicitor (via First Class Mail) Coyne & Coyne, P .C. Henry F. Coyne, Esquire 3901 Market Street Camp Hill, PA 17011 GATES, HALBRUNER & HATCH, P.C. ~/5~ Sarah McCarroll, Esq. DATED: 1311 3/ ,2007 .... 1'--> = = --' ""T1 rr; co I o ""1 :.::! _t--n fn j= in " y' G\ C,) -;~~ '/:s ;~"-)m );! :JJ -< o CD