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LOWER ALLEN TOWNSHIP,
Appellant
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. (iq ~)0 7 (\ I.L( C'.. ",) {'I '('--
ZONING HEARING BOARD OF
LOWER ALLEN TOWNSHIP,
Appellee
LAND USE APPEAL NOTICE
Lower Allen Townehip, by its attorneys, Metzger, Wiokersham,
Rnauss , Erb, appeals from the decision of the zoning Hearing Board
of Lower Allen Township pursuant to the provisions of Article X,
Sections 1001-A through 1006-A, 53 P.B. SS11001-A through 11006-A
of the Pennsylvania Municipalities Planning Code of 196B, July 31,
P.L. 805, No. 247, as amended, 53 P.B. SS11001-A through 11006-A.
1. Appellant, Lower Allen Township, is a first-class
township duly organized and existing under the laws of the
Commonwealth of Pennsylvania, with its principal office at Township
Municipal Building, 199J Hummel Avenue, Camp Hill, Cumberland
County, Pennsylvania 17011.
2. Appellee, Zoning Hearing Board of Lower Allen Township,
is the duly constituted Zoning Hearing Board of Lower Allen
Township, Cumberland County, Pennsylvania, with its principal
office at Township Municipal Building, 199J Hummel Avenue, Camp
Hill, Cumberland County, Pennsylvania 17011.
3. The subject property is an improved parcel of land
situate at the southeast corner of Linden Avenue and Upland Street,
having a frontage of 120 feet along Linden Avenue and having a
frontage of 225 feet along Upland street, consisting of nine (9)
lots, twenty-five (25) feet by one hundred twenty (120) feet, known
a. 801 Upland street, situate in Lower Allen Township, cumberland
County, Pennsylvania. Herbert Fenstermacher, Jr., is the equitable
owner, pursuant to a conditional contract of purchase of said
properties from the legal owner, Robert H. Barkley.
4. On February 15, 1994, Herbert Fenstermacher, Jr., filed
with the zoning Hearing Board of Lower Allen Township an
Application for a variance from the provisions of Section 1115.06
of the Codified ordinances of Lower Allen Township, 1985, as
amended, being part of Part Eleven, Title I, also known as the
Lower Allen Township Zoning Ordinance (herein "Zoning ordinance")
dealing with minimum building setbacks for apartment-type
dwellings. A hearing was held before the Zoning Hearing Board on
March 17, 1994. On March 22, 1994, Herbert Fenstermacher, Jr.,
filed an Amended Application with the Zoning Hearing Board of Lower
Allen Township requesting a determination under Section 1141.01(j)
of the Zoning Ordinance as to the similarity or compatibility of
townhouse-type units and a variance to minimum building setback
relative to a decision under Section 1141. 01 (j) of the Zoning
ordinance.
5. A further hearing was held before the Zoning Hearing
Board of Lower Allen Township on May 19, 1994. The Zoning Hearing
Board of Lower Allen Township determined that the Applicant's use
is similar to or compatible with uses permitted in the R-2
-2-
District, and that the yard requirements applioable to a one-family
detached and one-family semi-detached dwelling shall be applicable
to Applioant's proposed use. A copy of the Decision of the zoning
Hearing Board of Lower Allen Township is attached hereto, marked
Exhibit "A", and made part hereof.
6. Under the provisions of section 908(a) of the
Pennsylvania Municipalities Planning code of 1968, July 31, P.L.
805, &s amended, 53 P.S. S10908(a), Lower Allen Township is a party
to the proceedings before the Zoning Hearing Board of Lower Allen
TownShip.
7. The action of the Zoning Hearing Board of Lower Allen
Township in granting the Application is arbitrary, capricious, and
an abuse of discretion, and contrary to law in that~
(a) The title of the R-2 District "R-2 Residence
District (MUlti-Family Dwellings) does not create any
permitted use ln the R-2 District.
(b) The proposed use is not akin to a one-family
detached dwelling since none of the proposed units have two
side yards as required by section 1104.41(c) of the zoning
ordinance.
(c) The proposed Use is not akin to a one-family semi-
detaohed dwelling since five of the proposed units do not have
one side yard as required by section lI04,41(d) of the zoning
ordinancs.
-3-
6. Tho subject property is an improved parcel of land situata in an R-2
District, at the southeastern cornor of the intersection between Linden Avenue
and Upland Street.
7. The subject property has 120 feet of frontage along Linden Avenue end
225 feet along Upland Street, and containa .62 ecres of area.
8. The subject property apparently consists of nine (9) small lots, as
shown upon an old subdivision for Harrisburg Manor.
9. The subject property is improved with a sl.ngle famUy detached
dwelling, which applicant proposes to demolish and remove from the site.
10. Appl1cant proposes to cons true t on the subj ec t property nine (9)
townhouse style dwelling units, with detached gsrages. The dwelling units are
proposed to be constructed in two sepsrats bUildings, one having five units, and
the other haVing four.
11. The plan attached to Appl1csnt' s ini tisl epplication reflected access
to the proparty from Upland Street. The plan attached to the amended
application shows access from Linden Avenue, and also contains a different
leyout of the dWell1ng units and gerages. Since the plan submitted with the
amended application supercedes the original plan, the original plan will not be
considered in the decision.
12. Applicant proposes to provide a thirty feet wide setback elong Linden
Avenua and along Upland Street, a fifteen feet wide setback along tha southern
boundary, and approximately twenty feet wide setback along the eestern boundary.
13. Applicant proposes to sell the individual dwelling units and garagu,
and to create an sssoclation, which would own title to common oren.
14. The R-2 District in which tha subject property is situate h.. a
lubs tan tial numbar of mul ti -famll y dwellings of various types, conf1gurationl
snd numbers of unIts.
, .
15. Four Individuals who reside In the vicinity of subject property teltlfled
at the hearing In opposition to the application. Concerns were expre5sad about
a variety of fsctors, Including access, safety and traffic.
16. Richard Druby, attorney with Hetzger, I/Ickersham, Knaou & Etb,
township solicitor, appsared on behalf of the township and participated In ths
hearing.
Concluslone of Law
1. Section 1141.0l(j) of the Zoning Ordinance provides that when a
spac1f1c use 1B nelthet petmltted nor denied, the Zoning Hearing Board ahall
make a determination as to the similarity or compatibility of the use In
quastion to permlttsd uses In tha district.
2. Applicant's ptoposed use as IndiVidUal, separately owned dwelling
unl tB, toge thar wi th common arans, Is nel ther petml tted nor denied In the R-2
District,
3. The title of tha R-2 District ls "R-2 Ruldance District (Hultl-famUy
Dwalllng.). "
4. A multi-family dwelling Is defined In Section IIOI.41(h) as "a building
ulad by three or more fsmllles living Independantly of each other and doing
thalr own cooking including apattment houles, row houl8s or town houslI."
5. The proposed use Is a multl-fsmlly dwelling use and II similar to or
compatible with sll of the resldentlal ules parmltted undar Sactlon 1115.02 of
the Zoning Ordinance, namely 1lI5.02(a)-(d).
6. nIB ptopOl8d UI8 Is Ilmllar to at competlbla with the multl-famUy
dwelling UI8S located within the 1l-2 Dlltrlct In the vicinity of the eubject
ptoperty.
TABLE OF CONTENTS
RESPONSE TO WRIT OF CERTIORARI
NO. 3267 CIVIL, 1994 TERM
CUMBERLAND COUNTY COURT OF COMMON PLEASE
1. ZHB application for a variance, to zoning ordinance 1115.06
regarding minimum building setbacks for apartment type
dwellings. Docket No. 94.02 of Herbert Fenstermacher, Jr.
2. proof of publication for ZHB public hearing for Docket 94-02.
3. Transcript of March 17, 1994 pUblic hearing for ZHB Docket
94-02.
4. Exhibit 1 shows existing configuration of the property and
features of existing setbacks
5. Exhibit 2 is plan of the proposed construction.
6. Exhibit 3 is original plot plan of Harrisburg Manor.
7. Exhibit 4 is Newspaper Clipping similar structure to be built.
B. Exhibit 5 through 9 photographs of area.
9. Minutes from Board of Commissioners meeting of April 4, 1994
Docket 94-02, Fenstermacher, Harrisburg Manor.
10. Application of Herbert Fenstermacher, Jr. Docket 94-02 to
to amend application requesting relief from provisions of
Codified Ordinances of Lower Allen Township.
11. Proof of pUblication for ZHB pUblic hearing for Docket 94-02
April 21, 1994.
12. Transcript of DockeL 94-02 hearing of April 21, 1994.
13. Exhibit 12, sketch map showing neighborhood
14. Exhibit 13. Photographs 1 through 22.
15. Sheet No.2 of Exhibit 23 showing new Ingress and egress.
16. Photographs sllbmlLted by Doris conway 0-1 thrOllgh 0-5.
17. MI nuLes from May 9, 1994 Hoard of conunl ss loners moeting.
17055. Petitioner Fenstermacher is the equitable owner and
contract purchaser of premises known as 801 Upland street, Camp
Hill, Pennsylvania, situate in Lower Allen Township, Cumberland
county, Pennsylvania, and consisting of an improved parcel of land
located at the Southeast corner of Linden Avenue and Upland street
(herein called lithe Property").
2. Petitioner, Robert II. Barkley (herein sometimes called
Petitioner Barkley), is an individual residing at 95 West Lauer
Lane, Camp Hill, Pennsylvania 17011. Petitioner Barkley is the
legal owner and contract seller of the Property to Petitioner
Fenstermacher.
3. Respondent, Lower Allen Township, is a first-class
townShip duly organized and existing under the laws of the
Commonwealth of Pennsylvania, with its principal office at Township
Municipal Building, 1993 Hummel Avenue, Camp Hill, Cumberland
County, Pennsylvania 17011.
4. Respondent, Zoning Hearing Board of Lower Allen TownShip,
is the duly constituted zoning Hearing Board of Lower Allen
Township, Cumberland County, Pennsylvania, with its principal
office at TownShip Municipal Building, 1993 Hummel Avenue, camp
Hill, Cumberland County, Pennsylvania 17011.
5. Peti tioner Fenstermacher intends to develop the Property
for use as mUlti-family housing, and on February 15, 1994
Petitioner Fenetermacher filed an Application for Variance from
oertain provieiona of the Lower Allen Townahip Zoninq Ordinance
(herein oalled "the ordinanoe") with Respondent, the zoning Hearing
Board of Lower Allen Township (herein called "the Zoning Hearing
Board") .
6. The Zoning Hearing Board held a hearing on Petitioner
Fenstermaoher's application on March 17, 1994.
7. On March 22, 1994, Petitioner Fenstermacher filed an
amended application with the Zoning Hearing Board.
O. Pursuant to l'et i tioner Fenstermacher's amended
application, the Zoning Hearing Board held a second hearing on May
19, 1994.
II. '1'he Zoning Hearing Board issued its decision dated May
19, 1994, and therein granted Peti tioner Fenstermacher a
determination that his proposed use for the Property was similar to
or compatible with uses permitted in the R-2 District of the
Township under the Ordinance.
10. On June 15, 1994, Ilespondent, l,ower Allen Township
(herein called "the Township") tiled its Land Use Appeal Notice
with this Court, appealiny the detorminatlon rondo red by the Zoning
Hearing Board, and said Appeal is entered to the above-captioned
term and number.
11. 'I'he 'l'ownship liIorvt,d i h Land Use Appul Notice on the
Zoning H8Ilrin\l Board and on .'Iltitionen by United states Certified
Mail on June 15, 1994, ae stated in the certificate of Service
attached to said Land Use Appeal Notice.
12. At the time of the zoning Hearing Board proceedings and
the time of service of the Township's Land Use Appeal Notice,
Petitioners were unrepres~nted by counsel and were not aware that
section 11004-A of the Pennsylvania Municipalities Planning Code
permits any legal or equitable owner of land which is directly
involved in a zoning Hearing Board decision which is later appealed
to intervene as a party to said appeal, as of course, by notice of
intervention filed and served within thirty (30) days following the
filing of the appeal.
13. The aforasaid procedural period for intervention expired,
without the filing of a notice of intervention by either
Petitioner, on or about July 15, 1994.
14. section 11004-A of the PennsYlvania Municipalities
Planning code further states that intervention in a land use
appeal, when not exercised as a matter of course, shall be governed
by the Pennsylvania Rules of civil Procedure.
15. Petitioners seek this Court's permission to intervene in
the Land Use Appeal pursuant to Pennsylvania Rules of civil
Procedure 2327 (3) and (4).
16. Petitioners could have joined in the Land Use Appeal as
original parties pursuant to the above-mentioned provisions of the
Psnnsylvania Municipalities Planning Code.
17. Petitioners, as the legal and equi table owners,
respectively, of the Property have a valuable and legally
enforceable interest in the decision of the Zoning Hearing Board,
which may be adversely affected by this Court's determination of
the Township's Land Use Appeal.
18. Petitioners intend to join with the zoning Hsaring Board,
as Appellee parties in opposition to the Township's Land Use Appeal
and will assert, together with the Zoning Hearing Board, that the
Zoning Hearing Board's decision is not contrary to law and should
be upheld by this Court.
19. Petitioners' counsel has contacted counsel for the
Township in this matter, Robert E. Yetter, Esquire, of the firm of
Metzger, Wickersham, Knauss & Erb, and counsel for the Zoning
Hearing Board in this matter, Dennia J. Shatto, Esquire, of the
firm of Cleckner & Fearen, and has advised each counsel of
Petitioners' desire to intervene in the Land Use Appeal. Each
counsel has advised counsel for Petitioners that his client has no
objection to intervention in the Land Use Appeal by Petitioners.
True and correct copies of letters dated, respectively, August 16,
1994 and August 25, 1994 from Attorney Yetter to Petitioners'
counsel and stating the Township's lack of objection to
intervention are attached to this Petition as EXhibits "A" and "A-
1". A true and correct copy of a letter dated August 19, 1994 from
Attorney Shatto to Petitioner's counsel and stating the Zoning
TABLE OF CONTENTS
RESPONSE TO WRIT OF CERTIORARI
NO. 3267 CIVIL, 1994 TERM
CUMBERLAND COUm'y COUR'I' 01' COMMON PLEASE
1. ZHB application for a variance, to zoning ordinance 1115.06
regarding minimum ~uilding setbacks for apartment type
dwellings. Docket NLl. 94.02 of lIerbert Fenstermacher, Jr.
2. Proof of publication for ZIIB public hearing for Docket 94, 02.
3. Transcript of March 17, 1994 public hearing lor ZllIl Docket
94-02.
4. Exhibit 1 shows existing configuration of the propsrty and
features of existing setbacks
5. Exhibit 2 is plan of the proposed construction.
6. Exhibit 3 is original plot plan of lIarrisburg Manor.
7. Exhibit 4 is Newspaper Clipping similar structure to be built.
8. Exhibit 5 through 9 photographs ol area.
9. Minutes from Board of Conmissioners meeLing of April 4, 1994
Docket 94, 02, Fenstermacher, lIarri sbur<} Manor.
10. Application of Herbert Fenstermacher, ,Jr. Docket 94.02 to
to amend application requesting relief [rom provisions ol
Codified Ordinances of I.ower Allen 'I'ownship,
11. Proof of publication for ZIlB public hearing lor Docket 94.02
April 21. 19':14.
12. Transcript of Docket 94-02 hearing of April 21, 1994.
13. Exhibi t 12, sketch map showing neighborhood
14. Exhibit 13, Photographs 1 through 22.
15. Sheet No. 2 of Exhibit 23 showing new ingreos and egress.
16. Photographs submiLLed by Doris Conway 0,1 through 0-5.
17. Minutes from May 9, 1994 Board ol Commissioners mosting.
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LOWER ALLEN TOWNSHIP
ZONTt-r. IlEART~ BOARD
0-.-1
-----
TN REI 1 . 93 -16 . Uber Tire Sales and
Auto Service. extension.
2 q4-2. Ilerbert Fenstermacher.
Jr. , variance.
3 q4-3. Cumberland Distribution
Serv ices, variance
-----
Stenographic record of hearing held
at the LOwer Allen Too,.nship Municipal
Buildinq. 1993 Hummel Avenue,
Camp Hill. Pennsylvania.
Thursday.
March 17. 1994
7 I 00 P m.
-----
MEMB'ERS 1
Burton Reisman Chairman
Kevin J. Garrick
Richard C. Rupp. Esq.
APPEARANCES I
DENNIS J. SHATTO. ESQ.
J1 North Second Street
Harrisburg. PA 17101
por the Zeninq Board
RICHARD B. DRUB Y. ESQ.
P.O, B'ox q3
Ilarrisburg. PA 17108-00PJ
For the Town.hip
Gwen A. LearV
6313 Salem Plrk Circle
Mlchaniclburg. PA 17055
(717) 2'l3-26/iO Fill (7PI /iq1-77118
11
1 DOCKET NO. Q4-2
2 CHAIRMAN REISMAN I The board will hear
3 Docket No. 94-2.
4 Name and address of applicantl Mr.
5 Herbert Fenstermacher. Jr . 325 West Meado~
6 Drive. Mechanicsburg. PA, 17055.
7 Interest of the applicant is applicant
S is considering the purchase of property in
9 question for purpose of developing it as shown.
10 If interest is other than owner.
11 furnish name and address of ownerl Robprt H.
12 Barkley, 3817 Lamp Post Lane. Camp lIill, PA.
13 l70l1.
14 Subiect property described. located.
l5 and used as followSI See location plan and see
16 proposed site plan
17 Relief SOUghtl A variance.
lS If a variance is sought by the
19 applicant. cite the present zoning classification
20 of property and the section of the zoning
21 ordinance under which the exception or variance
22 may be allowed. Present zoning. R-2. residential
23 district, mUltifamily dwelling. Seeking variance
24 to zoning ordinance Section 1115.06. Yards
25 regarding minimum building Bstbacks for apartment
l2
1 type dwelling.
2 Grounds for appeal or reasons for
3 requesting a variance arel If required building
4 setbacks are upheld. the useable portion of lot
5 is reduced to a very small area. 20 foot by 125
6 foot. ...hich is not feasible for development of
7 any kind. See attached letter. See attached
B plan And it is signed. I have not the sliqhtest
9 idea whose name it is. Herbert Fenstermacher. Jr.
lO Mr. Druby. would you like to put your
II name on the record as representing the To...nship?
12 MR. DRUBYI Yes My name is Richard
13 DrubI'. I am here on behalf of Lower Allen
14 Township
l5 MR. CIIAIRMAN. Mr. Russell.
l6
17 TIMOTHY RUSSELL having been duly sworn
, 8 testified as follows.
U
20 CIIAIRMAN REISMAN. Are you assistant
2l zoning officer for Lower Allen Township?
22 MR. RUSSELL 1 Yes I am.
23 CHAIRMAN REISMAN. Has this application
24 been duly advertised?
25 MR. RUBBE[,L. Yee. it has.
l3
1 CHAIRMAN REISMANI lIave the property
2 owners surrounding this property been notified?
3 MR. RUSSELL I Yes.
4 CHAIRMAN REISMAN I Has a copy of this
5 application been posted on said property?
6 MR. RUSSELLI Yes
7 CHAIRMAN REISMANI Gentlemen. are
o either one of you attorneys?
9 MR. SWANICY I No.
lO MR. FENSTERMACHER I No.
11
l2 HERBERT FENSTERMACHER, JR" and B'ILL
l3 SWANICK. having been dul~r sworn. testified as
14 f oll ow S 1
15
16 CHAIRMAN REISMANI Would you state your
17 name and address for the record?
l8 MR. FENSTERMACll ER I I am Her b
19 Fenstermacher. Jr . 325 West Meadow Drive,
20 Mechanicsburg.
21 MR. SWANICKI B'ill Swaniok. 200 Bkyv1ew
22 Drive, York, PA, 17402.
23 CIIAIRMAN REISMANI For the record. Mr.
24 Sl\anick sent a letter to the Zloning Hearing
25 Board. and I didn't read it I would much rather
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have him speak and talk about this letter into
the record. You may proceed.
MR. SWANICKI I I<oork for Robert
Hartman. I<oho is the engineer for thQ project
Herb Fenstermacher is proposinq to construct nine
to"nhouse type units. a block of five and a block
of four, on said property. I am sure it is .62
acres The R-2 residential district "here the
oroperty is located requires ~O-foot setbacks on
all sides for apartment type dl<oellings.
If the 50-foot setbacks are upheld. the
lot is reduced to 20 by 125 feet. and obviouSly
you can't put any type of development in there.
We are just requesting a variance for that
section so he can build his to\<onhouses on the
lot,
On the proposed site plan. I think we
listed setbacks that would be involved ~ith the
proposed construction There is also the
adjoininq property owners and distances to their
houses
MR. FENSTERMACIIER I
I would like to
add, lOe refer to them as tOlOnhouses. These are
going to be condominiums. We call them
tOlOnhouses. There is an upstairs and a
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do~nstairs. They ~on't be qarden apartments
where there is one person living upstairs and
somebody do~nBtairs. Single -- one family will
live in each unit
I looked at the definitions here. and I
can't find one exactly.
CHAIRMAN REISMAN:
The definition
according to our code is that a to~nhouse has a
single entrance and garden apartment has
multi-apartment entrance. So I don't kno~ what
your definition is If you have an apartment
here and an apartment here, you have one door
MR. FENSTERMACIIER: One entrance for
multiple
CHAIRMAN REISMAN: Townhouses have a
single door.
MR. FENSTERMACHER: But I built
apartments 20 years back. and they are on
Florence and Windsor. I was probably the first
person to qet a variance back there. And they
had one entrance per unit. and they were called
apartments, qarden, I believe at that time.
CHAIRMAN REISMAN.
That was a long time
aqo.
MR. FENSTERMACHER:
I just wanted to
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make sure that you understood exactly what I was
planning on building there.
CHAIRMAN REISMANI
lIarrisburg Manor plot plan
here. Is this you here?
MR. FE NSTERMACH ER I
Here is the original
Here it is riqht
Where is the
firehouse?
CHAIRMAN REISMANI Down here.
MR. FENSTERMACHER I Here is mine.
MR. SHATTOI Could you indicate what
intersection it is on?
MR. FENSTERMACHER I
CHAIRMAN REISMANI
it is right here.
MR. SHATTOI Is that the one your
application is pending about?
MR. FENSTERMACHER I Yes
CHAIRMAN REISMANI
Linden and Upland
Linden and Upland,
110\\ many lots do you
have in this section?
MR. SWANICKI Three combined to make
the one lot I believe it is three of those --
the way they are split up there, I guess on the
old subdivision plan I believe he has four of
them. four of those lots. that block.
MR. FENSTERMACHER I Do you mean total
l7
1 or just the specific lot we are talking about?
2 CHAIRMAN REISMANI This is broken up
3 into lots. and I am ...onder1ng ho... many of these
4 lots you had, In this section there are 13
5 plots. and these are all 25-foot lots.
6 MR. SWANICKI It is nine The frontage
7 on the lot is 225 by 17.0.
B CHAIRMAN REISMANI I just ...anted to get
9 that in the record. That's all. We might ask
10 some questions that ...e already kno... the ansIOers
11 to, but that record doesn't have an~' inkling of
12 what is going on here.
l3 Okay. Go ahead. I am sorry.
l4 MR. SWANICKI I don't have too much
15 more to add. We are proposing the construction
16 on. I guess, Upland Street where the entrance to
17 the complex would come out. That was another
lB question half-...idth reconstruction of that
19 roadway once we make the improvements on the lot.
20 I guess that will come up at a later date.
2l C H A I R MAN REI S M AN I Tim. has Up 1 and eve r
22 been opened all the way through?
23 MR. RUSSELL I Not totally, no.
24 MR. GARRICK I You intend to sell these?
25 MR. FENSTERMACHF.RI They will be sold.
1 8
1 CHAIRMAN REISMANI What is the matetial
2 that is going to be used in making?
3 MR. FENSTERMACHER I Ftame and vinvl,
4 maybe Bome btick for aesthetics There cettainly
5 ~ill be from ~hat the existing apartments ate
6 in that area. I am eute theee will be at least as
7 aood looking.
8 And I think it ie tutimony to the fact
II if you \0 ere to q 0 b a c kin t hat ate a n o~ and see
10 the onea that I did build 15 yeats ago on the
11 corner of Windsor and Flotence. it is just my
12 petsonal opinion but 1 think you would find that
13 those are eome of the most attractive apartments
14 in that whole area
15 Since then some othu ones have gone
16 up. and they ars sort of plain in the front. I
17 guess. is the best way to describe them. I think
18 it ~ould definitely enhancs the neighbothood to
111 have condominiums as opposed to apartments only
20 because I think moet neighborhoods ~ould rathet
21 have permanent dwellers rather than tha influx in
22 and out.
23 I knol< for a fact that the person I
24 have an agreement to purchase this ftom is
25 planning on -- or had planned on putting up mote
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than the nine that I propose ae single family.
He had looked at up to 12 or maybe more
apartments similar to what is in the area. which
could be substantiated by what has already been
approved. This is quite a bit less than what may
come back at another time or ~hat have you
MR. RUPPl Do you have any pictures of
'lihat you are proposing or diagrams or anything?
MR. FENSTERMACIIERl No. All I have at
this point are several ideas that I have qotten
out of papers. having talked to people, newspaper
articles I would be glad to share those, but I
don't want to Qet in trouble \iith -- it is
somebody else's building. I don't want to get
into copyrights that you used my picture. B'ut it
is basically a front door. a window, downstairs
living room. and upstairs would be the master
bedroom
MR. RUPPI Was it in a public
newspaper?
MR. FENBTERMACIIER 1 Yes I don I t know
anything about this. If you want to see it, you
can see it. Yes. I guess it was probably a
newspaper.
I have several ideas
1 don't know
20
1 which one I want to end up ...ith because I wanted
2 to see ~hat the reaction was here before I
3 started. TheDe all have a qarage ~ith them.
4 Are you familiar with Grantham Court
5 off of 15?
6 MR. RUPPI In Upper Allen Township near
7 the Zimmerman qas station?
8 MR. FENSTERMACHER I Even further south
9 on the ...ay to Messiah College.
lO CHAIRMAN REISMANI This portion you
11 have marked driveway. is this the ingress and
12 egress to the apartment complex?
13 MR. SWANICKI That is an existing
l4 driveway to the existing dwelling. This would be
15 the entrance here for the proposed. And this is
l6 the outline here.
l7 CHAIRMAN REISMANI Everything here is
18 Qoing to be off-street parking?
19 MR. SWANICKI Yes two per dwelling.
20 1;,.0 spaces per dwelling.
21 CHAIRMAN REISMANI What happens if they
22 have more than two? Where do they go?
23 MR. SWANICKI Two cars per dwelling is
24 probably average.
25 CHAIRMAN REISMANI What happens if they
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have company?
MR. FENSTERMACHER 1 I believe you can
park on the Florence and/or Upland is not
completed. They ~ould have to park some on
Florence I am sorry, not Florence, Linden.
There is some space in the parking area there.
In the event there is more than two people, they
could get them on that parking lot And since
there is no curb proposed. they could park on the
grass I would not advocate that.
MR. RUPPI Mr. Russell. have you
examined the plan to note what other types of
apartment units could qo into this allowably,
within the allowable setbacks?
HR. RUSSELLI Not necessarily. They
would have to obviously cut down the amount of
units that they are proposing.
HR. RUPPI What if it was a different
type of unit instead of the to\<lnhouse type?
HR. RUSSELLI Realistically speaking.
to meet the setback requirements. they \<Iould have
to. No.!. limit the amount of units proposed.
NO.2, do away \<lith the proposed detached
garages, which obviously add to the amount of
area or lot coverage. ~hich obviouSly makes it an
22
1 encroaohment problem.
2 MR. RUPP, Theee are separate lots,
3 though? It is an overall tract lIith uparate
4 lots?
5 MR. RUSSELL, It \<Ias at one time. yes
6 and obviously it was subdivided and combined.
7 MR. RUPP, So is it nOli one tract?
8 MR. RUSSELL I Yes.
9 CHAIRMAN REISMAN, In your residences
10 that are parallel Upland Street, you have from
11 one to five -- no. nine. five to nine. it is five
12 to nine. The qaraqes are right beh1nd them. am I
13 right?
l4 MR. BWANICK, In front.
lS CHAIRMAN REIBMANI In other wordl. this
l6 is the front door?
17 MR. SWANICKI Correot.
18 CHAIRMAN REISMAN. And getting into the
19 garaqe. would it be from the Upland Street side
20 or would it be from the opposite eide?
2l MR BWANICK, From the Upland Street
22 s 1 de
23 CIIAIRMAN REISMAN. Would there be a
24 door on the opposite side of the garage to get
25 out to go into your home?
23
1 MR. FENSTERMACIlERI Right.
2 MR. G AR R I C K I Tw 0 en t I' an c e s
3 MR. FENSTERMACHER I You have ~here the
4 car pulls in, and then you have a back door to
5 the garage ~hich Qoes into the front of the
6 condo
7 MR. GARRICK I I have seen them ~here
B they have two front doorways \<lhere you qo through
9 the garage and right alongside of that is a door
10 for the postman or thinqs.
11 MR. FENSTERMACHER I No, We have space
l2 bet.een the garage and the front for whatever.
13 garden, Aesthetics
14 CIlAIRMAN REIBMANI what is the space
15 between the qarage and the residence?
16 HR. SWANICKI I believe it is 5 foot
17 CHAIRMAN RETSMANI Is there Qoing to be
1 B a walk~a\'. grass?
19 MR. FENSTERMACI1ERl walkway, It ~ould
20 start out as grass/ but if the O\<lners of the
21 usociation wanted to put a deck in there or
22 wanted to put a qarden in there or just cement it
23 in, I didn't think that that would matter.
24 MR. GARRIC~KI Do you expect to have an
25 owners' association?
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MR. FENSTERMACHER 1 Yes.
MR. RUPP: Mr. S...anick. ...hat is between
Garaqe 6 and Garaqe 7. if anything?
MR. SWANICK: That is open space It
is shaded because that is what is left ...ith the
setbacks
MR. RUPP: So the lines are your
shading?
space.
MR. SWANICK: Yes that is an open
Five and six are attached. Seven and
eight are attached. and nine is freestanding.
And on this side one is freestanding. t...o and
three attached. and then four is freestanding.
MR. SHATTO: You are referring to Sheet
2 of the plan submitted with the application Is
that right?
MR. SWANICK: Yes
CHAIRMAN REISMANI We should mark
those, Dennis.
MR. SHATTO: We have ...ith the
application plans actually t...o sheets, one and
two prepared bv Hartman & Associates Sheet 1
shows the existinq confiQuration of the property
and features of it with the existing setbacks
Sheet 2 is a plan of the proposed construction.
25
I Why don't..e mark those collectively as
2 Applicant's Exhibit 1.
3 CHAIRMAN REISMAN, One and two?
4 MR. SIIATTO, Well. oka\', We ..ill mark
5 Sheet 1 as Applicant's Exhibit 1 and Sheet 2
6 Applicant's Exhibit 2.
7 (Applicant's Exhibit 1, Plan. marked
a for Identification)
9 (Applicant's Exhibit 2, Plan. marked
10 for Identification)
II MR. SIIATTOI I have another copy of
12 another dra..ing here. I am not sure if this was
13 submitted as patt of the application.
l4 MR. SWANICK, I believe it was That
l5 i8 another development of this type in the
l6 neighborhood.
l7 CHAIRMAN REISMANI I believe- Dennis
, a that you were -- no, you weren't here. Bill was
19 here when we had those. Here is the original
20 plot plan of Harrisburg Manor.
21 MR. SHATTO, Since this page was
22 submitted with your applicat.ion. why don't we
23 mark it as Applicant's Exhibit 3.
24 MR. SWANICKI That was a recorded plan
25 also
26
1 MR. SHATTO. Applicant's 3 waB a
2 recorded plan?
3 MR SWANICK. Yes.
4 (Applicant's Exhibit 3. Plan marked
5 for Identification.)
6 MR. SHATTO. Does that IhOlO the
7 property in issue here?
8 MR. SWANICK. Na-
g MR. S HAT TO ISO i t i 8 j U I t de Ii Q n e d to
10 show other developments in the neighborhood?
11 MR. SWANrr~KI Yes.
l2 MR. SI1ATTOI Was there anything else
l3 submitted lOith the application?
14 MR. SWANICKI A couple photos of the
l5 sxisting site.
l6 MR. FENSTERMACHER. A structure similar
l7 to one like that ...ill be built, not exactly. 1
l8 lOouldn't want to be held to that specific
19 example.
20 MR. SHATTOI If you would like that
2l made as part of our record. we can cartainly mark
22 it as an exhibit ...ith the understanding that if
23 you are Qoinq to build something. it would be
24 similar to that but not exactly
25 MR. FENBTERMACJ\ER. Fin..
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MR. SHATTO I We w ill mark the piece of
newspaper clipping showing the photograph as
APplicant's Exhibit 4.
(Applicant's Exhibit 4, Newspaper
clipping. marked for Identification.)
MR. SHATTOI Then...e have some
photographs. There are five photographs, no
particular order I am going to mark them.
CHAIRMAN REISMANI For you that are
here for this application, as soon as we are
finished lIith the question and answers. ...e will
take a recess I knOll you people have not seen
these plans, I don't think you have anyway. We
will let you come up and take a look at the plans
and the pictures and let you qet an idea of what
is going on here.
MR. RUPPI Mr. S...anick, do you
anticipate any problems --
MR. SHATTOI Can I get these in?
MR. RUPP I Yes.
MR. SHATTOI Mr. Fenstermaoher. I have
marked these photoqraphs. We have five. Does
that sound right?
MR. FENSTERMACI\ER 1 Yss.
MR. SHATTOI I have marked them
2 a
1 Applicant's Exhibit 5 through 9. and I note that
2 each photograph has a description on the back of
3 the vie... that is taken. So I don't think lOe need
4 any further explanation of them for our record
5 purposes unless you feel a need to describe them
6 or talk about them. You certainly can do so if
7 you ...ish.
a MR. FENSTERMACHER I No.
9 MR. SHATTO: We lOill make those part of
lO the record.
II (Applicant's Exhibits 5 through 9,
l2 Photographs. marked for Identification.)
l3 MR. RUPPI Mr. SlOanick. do you
l4 anticipate any problems ...ith the access of
15 emergency vehicles?
16 MR. SWANICK: I can't foresee any lOith
l7 the improvements that are proposed for Upland
la Street. If the project is okayed and lOe
19 undertake it. Upland Street will be upgraded. So
20 I couldn't foresee an~' problem lOith getting
21 emerqency vehicles in and out. There are
22 existing water lines for hydrants in the area.
23 MR. RUPPI I lOas just thinking about
24 the garages that are in front of the units
25 CIIAIRMAN REISMANI Mr. Swanick, you
29
1 just mentioned upqrading Upland Street. When you
2 say "upgrading." what do you mean by upgrading?
3 MR. SWANICKI To township specs. ...ith
4 the curb placement and the specified cart-...ay
5 ...idth.
6 CHAIRMAN REISMANI The Township is
7 aoing to do that?
8 MR. SWANICKI No. We are going to do
9 that. Half ...idth. our half of it.
lO CHAIRMAN REISMANI Your half?
II MR, SWANICK: From center line towards
l2 his property line There isn't much to Upland
l3 Street right now.
l4 CHAIRMAN REISMAN I I know That is why
l5 we are concerned about it and why we are looking
l6 at this kind of close. because I myself am very
l7 much aware of that property back there. And
18 having sat through all this- I am very much aware
19 of that.
20 Has the Township given you the approval
2l to do half a street?
22 MR. SWANICKI We have been discussing
23 it. That is about all it has come to. Just what
24 would be required if the proposed plan was
25 approved. what would be required along Upland
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MR. FENSTERMACHER 1 AS a matter of
fact, ~e had -- one of the options we looked at
at the beginning ~as an entrance off of Linden
which really would not be any entrance in through
Upland. at which time Upland would have been
orobablv minimally uoqraded. But because ~e
thought it would be better to have the access
coming in the middle ~here we oroposed it. we
would do our whole side of the street.
CHAIRMAN REISMAN. Do you have an
access from Linden Avenue?
MR. FENSTERMACIIER. No.
We do not
propose that. That was one of our options was to
come in right off of Linden and stay off of
Upland because of ths shape of it Upland is not
a very cood strAet. nut havinq considered the
area and the homes and aesthetic. once again it
would have been better to put the curb in that
side and put half the street in
MR, BWANICK. '1'he confiquration ot the
lot lended itself a littls better to access off
of Upland beinq the lonqer aide of the property.
CHAIRMAN REISMANI I would have to talk
to our policltor on thls bafor. we actually snact
31
1 it. lIow 1I0uId you feel if thiB board as one of
2 the conditions of this variance lias to put your
3 ingress and egress off of Linden and leave Upland
4 alone?
5 MR. FENSTERMACHER I That lias one of the
fj thinQs we originall~' thought. We just thought
7 for aesthetics it 1I0uld be better if lie came in
8 the middle of the property instead of -- we would
9 not have any concern
10 CHAIRMAN REISMANI Right now we have to
II take in the condition of the street and the
l2 complete conditions back there rather than
l3 aesthetics.
14 What 1I0uld you have to alter if a
15 condition like that was made to bring all the
16 traffic. alleviate traffic from Upland Street
l7 entirely and everything come from Linden?
l8 MR. SWANICK 1 We had that sketch plan
19 done. All that 1I0uld mean would be to spin them
20 around and put them in one row. and then the
21 access would be in the front.
22 CIIAIRMAN REISMANI Then you 1I0uld close
23 Upland off altoqether?
24 MR. SWANICKI Yes That is one of the
25 possibilities.
32
1 CHAIRMAN REISMANI The reason I say
2 that is because. you know, the few houses that
3 are on Upland Street. they have a hard enough
4 time. the few people that travel that. to get
5 where they are Qoing without adding traffic to
6 it. And this is why I asked if you had any
7 qualms about coming in off Linden and closing
8 Upland.
9 MR. SWANICK: That would not be a
10 Droblem.
11 MR. SHATTO: If you were to do that.
12 could you tell the board what the remaining
13 setback would be if you were to have your access
14 off of Linden and then shift that building?
l5 Would it change the setbacks drawn on
l6 Applicant's Exhibit 2?
17 MR. SWANICKI What do you mean change
18 it?
19 MR. SHATTOI Is it going to change the
20 distance between any of the buildinQs and the
2l property line?
22 MR. SWANICK: Not greatly. nOI because
23 this block of apartments. when you spin it that
24 way, it is still probably going to be pretty
25 close to 25 foot on the northern side of the
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property.
MR. SHATTOI You are talking about
spinning. you are talking about spinning Nos. 1
thr ough 47
MR. SWANICKI Yes
And then here is 5
through 9.
MR. SHATTOI Would it be touching 5
through 97
MR. SWANICK 1 It could or could not.
am sure there is more space there than what is
required.
I
MR. SHATTOI So you ...ould still remain
l5 feet from the eastern property line and
roughly 25 feet from the northern property line?
MR. SWANI~KI Yes.
MR. SHATTOI I take it you would then
be able to stay 50 feet from the westerly
pr oper ty line?
MR. SWANI~KI Yes.
MR. SIlATTOI So if you did that. you
would not be violating the setback along Upland?
HR. SWANICKt Right.
HR. SIlATTOI Obviously it would not
affect the southerly property line at all?
HR. SWANICK I No, not at all.
J4
1 The main reason ~e had that
2 configuration is- I think. he was trying to get
3 a~ay from the one straiqht line of apartments and
4 break them up a little bit, more pleasing to the
5 eye than havinq them all in a row.
6 MR. FENSTERMACHER 1 1 ~ould say thisl
7 Before I ~ould put in a row. I would ask that if
B I would move that building that I could stagger
9 them and put four maybe 3 or 4 feet further
lO front...ards than the other nine so \lie didn't have
11 a big straight line. Do you understand? I think
l2 that is one of your requirements. too. at one
13 time.
14 CHAIRMAN REISMANI I think that in
15 consideration. everything can be worked out. I
l6 think Jim and John \II ould w or k with you all the
17 way to Qet this thing straightened out if the
lB condition we put in is that you use Linden and
19 close upland.
20 MR. RUPPI Mr. Fenstermacher. I have a
2l real oroblem here. and that is that the zone that
22 you are applying for is an R-2. And it permits
23 garden style apartments that have common
24 entrY\llsys for the entrances and exits
2S The Township also has to\llnhomes or
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understandinq there are some condominiums sold
that are similar to mine on Warrington and
Windsor. that they have been approved.
MR. RUSSELL I Whether or not there may
have been a determination involved allo~inq the
use of those units would probably be -- probably
would have been warranted, determination in
similarity.
MR. SHATTO I Could an~' of these other
units that ~e are referrinq to here be
semi-detached d~ellings?
MR. RUSSELLI No. They ere rOIi
townhouses
CHAIRMAN REISMANI
I think riqht now we
are qetting into a conversation of semantics
betlieen condos. townhouses. garden apartments
When those originally were put in on
this plot plan- we didn't use any terminology
because we didn't have any. I was on the board
at that time. And lle just put them in. and then
the Township came up liith their terminology of
what a townhouse is and what a garden apartment
is. And that is the criteria we have used. In
the entrances back here, the word condo has never
arisen.
37
1 However. what ..as built on Linden or
2 Florence or Warrington or Trinity. or ..hat have
3 you. has no bearing on yours because this board
4 is not subiect to precedent. Each case is an
5 individual case. and that is what our decision is
6 determined on. not ..hat happened yesterday or the
7 day before or with this over hsre.
8 We understand what you are saying about
9 what is built, but right no.. the only thing this
10 board is concerned ..ith is your building right
11 here.
l2 I haven't any other questions Dennis.
13 do you have any questions?
l4 MR. SIlATTOI I have a couple You are
15 Droposing condominiums with ownership. Is that
l6 right? So you are not going to sell lots off
17 individually. They \<Oou1d buy a condo unit. and
18 some association would own the land?
19 MR. FENSTERMAClIERI Yes.
20 MR. SHATTOI But otherwise- 11 it
21 correct that the confiquration of these dwelling
22 units would be identical to a townhouse?
23 MR. FENSTERMAClIERI Yes.
24 MR. SUATTOI There aro two floors?
25 MR. FENSTERMACIIER I Yes.
3 a
1 MR, SHATTO. On the Applicant's Exhibit
2 1. the existing features plan, it appears to show
3 a dwellinq at the intersection of Linden and
4 Upland. Is that going to be removed?
5 MR. SWANIeK. Yes.
6 MR. SHATTO. Is an~'body in that now?
7 MR. FENSTERMACHER. I believe so.
a MR. SHATTO. That is proposed to be
9 taken do"n?
10 MR. FENSTERMACIIER. The seller has told
11 me that "ould be taken care of.
12 MR. SIIATTO. When you mentioned about
13 upgrading Upland Street. you "ere referring to, I
14 assume. the section betl>een Linden Avenue and the
15 southern boundary of your property. Is that
16 correct?
17 MR. FENSTERMACHER. Correct
1 a MR. SHATTO. I am still not clear that
19 I understand "hat the required setbacks are on
20 this property.
21 M[l, BWANICK, On the first page are the
22 setbaoks just because it is a single-family
23 dwelling. They are different from what are
24 required for tho multitamil~' dwelling.
25 MR. SHATTO, ~'or the mUltifamily
39
1 dwelling, it is your opinion that it is 50 feet
2 all ar ound?
3 MR. SWANICKI Yes
4 MR. SIIATTO I On Applicant's 2 the
5 shaded area is actually the only portion of this
6 lot t hat w 0 u 1 d not be wit hi nth e r eq u ire d
7 setback.
8 MR. SWANICK I True
9 MR. SHATTOI That is the 20 feet by
10 l25.
II Mr. Russell. do you agree that the
12 setbacks are 50 feet all the way around?
l3 MR. RUSSELLI Unfortunately. I do not
l4 agree. These are not qarden apartments. The
15 50-foot setback is required for garden
16 apartments. and these are townhouses.
17 MR. SIIATTO I What is your
18 interpretation of what the setbacks would be?
19 MR. RUSSELL 1 Well. being that under
20 the permitted uses of the R-2 zone, townhouses
21 are not mentioned. even though they are
22 single-family dwellinqs, obviously the only
23 single-family dwellings that are mentioned are
24 single-family detached, single-family
25 semi-detached. These are neither.
40
1 So I would be inclined to be a little
2 one-sided here. They are single family. So I
3 ~ould crobably say setbacks ~ould be indicative
4 of ~hat is required for a single-family d~elling,
5 CHAIRMAN REISMANI So 15.15. and :\0.
6 MR. RUSSELLI If they ~ere a permitted
7 use, ~hich they are not.
a MR. SHATTOI There is also a corner lot
9 here.
lO MR. RUSSELL I It is a corner lot
II Correct. T~o yards abuttinq the streets are
l2 obviously construed as front yards setback 30
13 feet. Rear yard is eliminated. and there are t~o
14 interior side yards of 15 or whatever. But that
l5 is my opinion in accordance ~ith the ordinance or
16 the district regulations I can't agree upon
17 them being qarden-style apartments. ~hich they
1 a are not.
19 CHAIRMAN REISMAN I I kno~ they are not.
20 I mean by Mr. Fenstermacher's o~n testimony. they
2l are not.
22 MR. SHATTOI B'ut under your
23 interpretation. the required setbacks ~ould not
24 be as large as ~hat is proposed on Applicant's
25 Exhibit 1 and 21
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MR. RUSS P.LL. They ~ auld be not if a
detetmination waB made
MR. S HAT TO . But you ~ 0 u 1 d h a v e 30 fee t
along Linden?
CHAIRMAN REISMAN.
In othet ~OtdB, we
have to make a detetmination if they ate legal.
MR. RUSSELL, I would Bay, yes
CHAIRMAN REISMAN. tn othet wotds, you
ate ssying we have to make a detetmination
whethS[ Ot not --
MR. RUSSELL, That is my opinion yes,
since aqain, it is not a defined petmitted use
undet the petmitted uses in the zone.
MR SHATTO, The determination wae not
tequested in the application. so it wae not
advettised.
MR. RUSSELL. It 10 as menU oned to the
applicant of the conttoverlY involved ~ith the
garden-style apattment ae opposed to other
mention of to~nhousee. You'te aqteement wae if
we could advettlse it as such or at tonight's
meetinq that issue be btought up.
MR. SIIATTO. The boatd would need to
decide, 1 QueSI \11th my advice. whether Ot not
you would feel comfortable in making a
42
1 determination when it has not been specifically
2 requested.
3 CHAIRMAN REISMAN I We have to make a
4 determination before we can make a decision.
S MR. SHATTO I Well. the only other way
6 is if you would deem the proposed use as being
7 sufficiently akin to a garden apartment. that you
8 are satisfied that it would constitute that kind
9 of use for your purposes. then you avoid that
10 issue.
11 CHAIRMAN REISMANI The way he has it
12 built and the way his testimony is, you can't
13 change it because you only have a single
14 entrance. Each one is qoinq to have its own
15 entrance.
16 MR. SHATTOI It doesn't appear to fit
17 the definition.
18 MR. RUPPI It is a townhouse. No
19 question about it. My feeling is that since the
20 applicant has not applied for a determination or
21 relief from the permissible uses, unless the
22 applicant asks this be tabled. advertised and
23 applied for that relief. my feeling is that this
24 i8 not ~ithin our purview at this time.
25 CHAIRMAN RETRMANI We can't make a
43
1 decision because we don't know what we are making
2 a decision on
3 MR. SHATTOI At this point the only
4 request you have is a request for relief from the
5 setbacks for all four sides You could. of
6 course, rule upon that if you were so inclined.
7 But that mayor may not give the applicant
8 permission to qO ahead and build because it would
9 still be an issue of whether or not it is a
10 permitted use.
11 Then either the Township would not
12 issue a buildinq permit if one were applied for
13 and the applicant would have to come back here
14 for a determination of compatibility or the
15 applicant could. I suppose. come back on his own
16 and ask for that or you could postpone this for
17 another hearing and then make sure that we have
18 the applicant amend the application to add that
19 form of relief and readvertise so that the public
20 is aware there is another component to the
21 request
22 MR. RUPPI I think the ball is --
23 MR. SHATTOI Otherwise. your decision
24 would be suspect.
25 CHAIRMAN REISMANI That is all we can
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do is setback. And that would not give him
anything because we could say. You can have it
here and we can approve the setbacks, but you
can't have the building because we don't knolro
what the\' are.
MR. SI1ATTOl I gUIBs it would then
depend on Irohether or not the TOlronship would be
willing to issue a building permit, and then the
applicant would have to come back here for
determination on compatibility
CHAIRMAN REISMANI You are awful quiet.
MR. RUSSELL I I was just readinq the
definition of a townhouse. which are three or
more units continuous to one another Iroith some
common walls. adjacent parking fscility. or
common vards or open space provided for.
MR. GARRICKI Three or more?
MR. RUSSELL I Correct.
CHAIRMAN REISMANI It seems a. though
we are at an impasse. I hate to use the old
oliche and say the ball is in your court. but do
you understand Irohat this convereation is about?
MR. FENSTERMACHER I I am not sure I
understand 100 percent. Can you capsulize it a
little bit for me? There has been a lot of
I,)
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verbiaq.. and I am not -- the definitions are
confusing me.
CHAIRMAN REISMANI The to...nhouse --
using semantics, your tOlronhouse Irohich you claim
you ar. building is not permissible per the
ordinanc.. It is not IiOritten up. It is not
prohibited. nor is it permissible in R-2.
MR. FENSTERMACHERI It is not
prohibit.d, nor is it permissible?
CHAIRMAN REISMANI Yes.
MR. FENSTERMACHER I So what is it?
CHAIRMAN REISMANI It is nothing.
MR. FENSTERMACHER I It is not d.fined
CHAIRMAN REISMANI Therefore. for us to
make a decision. .... have to make a determination.
Thil board has to determine whether or not it
would be permissible to allow townhouses in this
district or not.
MR. n:NSTERMACHER I When you say a
townhouse is not defined, you mean for this
district. for that ar.a?
CHAIRMAN REISMAN. Yes. for this area
for R-2.
MR. SHATTOI Townhouse is not a listed
p.rmitted use in R-2.
46
1 CHAIRMAN REISMAN. Garden apartment is.
2 MR. FENSTERMACHER I And a ...hil e ago
3 when I said that there had been previous
4 townhouses as per definition put in that
S district, you said, That doesn't matter. We are
6 just looking at this one single issue
7 CHAIRMAN REISMANI That's right.
8 MR. FENSTERMACHER I That is why I am
9 confused. We have them all around me. They
10 don't count?
II CHAIRMAN REISMAN I I don I t know if they
12 are garden apartments or townhouses. I don't
13 know what they are.
14 MR. FENSTERMACHER I B'y definition that
lS whole area is nothinq but townhouses. That is
16 what is there.
17 CHAIRMAN REISMANI I know there are
18 some qarden apartments there. Most of them are
19 garden apartments.
20 MR. FENSTERMACHER I Florence is totally
21 tow ra h 0 use s . I am not 0 u rei un d e r s tan d w hat we
22 are supposed to do when it is back in my court
23 MR. SHATTO: Maybe I can help Clarify.
24 This board would not we are dealing only with
2S the application that is in front of us. And it
47
1 may be that there are other similar developments
2 in that same zone nearby. but that does not have
3 any bearinq on the board's decision on your
4 particular application because ~e don't know ho",
5 they aot there.
6 They could be illeqal That is one
7 option. They could have been permitted when
8 zoning \lOBS different. Maybe years ago the
9 permitted uses were structured differently in the
10 ordinance. and at the time they were built they
11 may have been a permitted use. We don't kno",
12 that. That is the problem We can only deal
13 ",ith the application that we have in front of us.
14 MR. FENSTERMACHER. Why don I t you
15 don't know that? This qentleman was on the
16 board.
17 CHAIRMAN REISMANI They keep updating
18 the ordinance. Now. what they had back in the
19 days when we filled out the old one might have
20 been different and they updated them and made the
21 requirements because a lot of times they have to
22 control thinqs. And the only way to control is
23 bv the zoning ordinance.
24 MR. FENSTERMACIIERI Assuming that I
25 understand ",hat you told me so far about -- so
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you were sAvinq thAt we don't know if this
particular lot can have a to.nhouse put on it?
CItAlRMAN REISMANI By the ordinance,
yes The ordinAnce does not sAy it is prohibited
and does not 9ive you permission to put it there.
It is not permitted or denied It is just they
don't even discuss it.
MR. FENSTERMACHER I So what is to be
done?
MR. SIlATTOI Let's say the board would
QO ahead and decide your variance request for the
utbacks only. And for purposes of discussion.
let's sav the board grants you a variance to
build this building that you have in mind here.
We would not -- the board cannot deal with the
determination as to whether or not your use is
compatible or similar to other uses because that
request is not in front of the board tonight
Bo the board may give you the setback
relief you need, but you may lose the war because
w hen you q 0 Cor a b u 11 d 1 nit perm it. t h 8 Tow n 8 hip
may say what you propose to do is not a permitted
use in that dietrict. 80 you can't build it.
Then you \oIoull1 have to come back to
this bOlrl1 aQain anl1 ask for the board to decide
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that your requested use in similar to and
compatible \IOith other uses permitted in the same
zone. There is a totally separate section that
deals with similarity and compatibility. It is a
different form of relief.
If we could hear it tonight. I think
the board would be inclined to do so. The
problem is it is not ",hat you applied for and it
has not been advertised.
CHAIRMAN REISMANI It has not been
advertised, therefore. ",e can't.
MR. SHATTOI And if ",e did decide it
and decided it favorably to you. it would be a
suspect decision. ~hich would likely be
overturned on appeal because it is not properly
before the board tonight.
So that is why we were -- I guess my
point is if you want the board to do it. the
board could decide what it has in front of it.
But that mayor may not be much help to you
The other option you would have is to
postpone this until next month. You can amend by
putting it on the record this eveninq that you
amend your application to also include a request
for determination that your proposed use is
50
1 similar and compatible to other R-2 uses. And
2 then Ire could readvertise that so that the public
3 is aware. repost the property and come back next
4 month and hear that part of the case and decide
5 the whole thing.
6 MR. FENSTERMACHER I So you are asking
7 me to come back and Change it to qet permissible
8 use of a townhouse by the definition that he
9 quoted me?
10 MR. SHATTOI Yes I am not asking you
11 to do that. It is your decision.
12 MR. FENSTERMACHER I Is that a prOblem
13 with the condominium concept? I don't want to
14 come in and say --
15 MR. SHATTOI I think if you come in.
16 you are aoinq to say. What we want to build is
17 t his An d you w 0 u 1 d des c rib e t hat as you h a v e
18 tonight. And you would say. Our position 1s that
19 is similar to and compatible with garden
20 apartments, or some other uses that you believe
21 it is compatible to in the R-2 zone.
22 The board would then have to make a
23 decision as to whether or not what you want to do
24 is compatible enough that they would feel
25 inclined
51
1 MR. FENSTERMACHER I I have no problem
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7 this one and then come back a month later because
8 something else popped up? Is there anything else
9 that you fello\lOs see that might need some
10 attention prior to us coming back in?
11 MR. RU5BELLl Let me elaborate on this
12 There is a possibilitv that you can modify your
13 plan and you would not need setback relief. You
14 would just need a determination as per similarity
15 and compatibility based on the single family.
16 You would only have to go back 5 more feet on the
17 Linden Street side.
18 MR. FENSTERMACHER I That is a group of
19 single familiee.
20 MR. RUBSELL I If the board so decides
21 that: it is .imilar and compatible. then you would
22 not neod .etback rslief.
23 CHAIRMAN RE1RMANl The determination is
24 the clincher in this whole thing. We can give
25 you the setbacks, but you are not qoing to be
doing that.
Would it be pouible to -- if th It e are
other issues or does tha t mean we are dead in the
water. something else that may need attention
that I don't have to come back next month and fix
52
1 able to do anything with them because the
2 buildings are neither allowed. nor prohibited.
3 And someone has to tell you that they are.
4 MR. FENSTERMACHER I I would like to
5 make a statement. I was here. like I said. 20
6 years ago to put a piece of property on Florence
7 Avenue and Windsor. and these are the same thinas
8 that this gentleman handed me back then and are
9 still given to me. And you still have not put in
10 some of these definitions to make it easier to
11 clarify for people like myself. I don't know if
12 there is a reason why these haven't been changed.
13 I am having a problem tonight because I am a
14 little confused. Certainly there have to be
IS other people who have come in and had similar
16 pr obl ems.
17 MR. RUSSELLI This particular section
18 of the ordinance was passed October 12. 19R1.
111 MR. FENSTERMACHERI It was before that.
20 The permitted uses mav have been different in
21 that time period
22 MR. BlIATTOI All we can tell you is the
23 Zoning Hearing Board has nothing to do with the
24 preparation or drafting of the divisions of the
25 ordinance.
53
1 MR. RUPPI You can take that up ",ith
2 the commissioners
3 MR. SHATTO I We can only deal with what
4 we are given.
5 MR. FENSTERMACHER I It certainly is
6 confusing. I can't imagine that I am the only
7 person who has a problem
8 MR. RUPPI Would you like to see the
9 definition of a townhouse?
10 MR. FENSTERMACHER I I heard what he
11 said about the one door -- but I will get a copy
12 of it, I am sure.
13 CHAIRMAN REISMAN I Mr. Fenstermacher,
14 we started back in 1977 and went all the way to
15 1979, and we were still arguing about this back
16 here. It took three years to qet some semblance
17 of order out of these places back here. And with
18 each one that this board decided to allow. the
19 commissioners updated the ordinance to control
20 what was to be put back there. And they do it
21 throughout the Township. and that is the only
22 control they have.
23 MR. FENSTERMACHER I Is there anything
24 else that you quys foresee that I should address?
25 CHAIRMAN REISMAN I No. Once we can
54
1 interpret ",hether it is or isn't. then it is a
2 different story. Then we can go ahead and finish
3 up this ...hole thing.
4 MR. FENSTERMACHER I I don't kno", if
5 there are questions.
6 MR.SHATTOI There undoubtedly will be
7 CHAIRMAN REISMANI There will be, but
8 we can't ask them anything now because whatever
9 they say won't hold water because there is
10 nothing we can do
11 MR. RUSSELLI Mr. Fenstermacher, it
12 would be up to you to -- if you are concerned
13 about hO\li the other units got there, it would be
14 up to you to research your case through the
15 Township as far as the history of those
16 properties and try to find out basically how they
17 got there. whether there were determinations at
1 8 t hat t i met 0 all 0'" t hat par tic u 1 at use. We w 0 U 1 d
19 be more than happy to assist you in that research
20 to try to strenqthen your case.
21 CHAIRMAN REISMAN I In fact. I know Tim
22 or Alby or John would be verv haPPY to help you
23 with this. I know it is a tough thing because
24 all of a sudden out of the blue we come out with
25 this one. but it is something that has to be
55
1 taken care of. And I know that thoy will help
2 you write up anything that they have and give you
3 ideas.
4 MR. FENSTERMACHER I I have already
5 spent some time with Alby. And since they had an
6 idea of what we are Qolnq to do, I am surprised
7 that here I am sitting and everybody is drawing a
8 blank on \IOhat I am building. That is a big
9 concern to me
10 MR. RUSSELL I I did speak to someone
II about this. and I can't recall who it was, over
12 the telephone.
13 CHAIRMAN REISMANI We Can discuss this
14 until we are blue in the face.
15 MR. RUSSELL I I did discuss the
16 compatible issue.
17 CHAIRMAN REISMANI I would suggest that
18 you request from the board a continuance until
19 next month and in the meantime you come in and
20 talk to Tim or John and let them straighten you
21 out a. to what has to be done and give you some
22 ideas of what hal been done.
23 MR. FENSTERMACHER I ~'lne. '1'able it
24 MR SWANICKI What is the time frame
25 for getting that other application for the
56
1 determination?
2 MR. RUSSELL I The 22nd of this month.
3 You would have to have your amended application
4 for the April 21 meeting.
5 MR. SHATTOI I guess it ...ould be best
6 if you actually submitted an amended application.
7 and you should specifically request a
8 determination of compatibility. And I am sure
9 Tim can give you the appropriate section of the
10 ordinance.
11 MR. RUSSELLI I don't think there will
12 be another fee.
13 MR. SHATTOI You can amend it verbally
14 here if you wish, but maybe you are qoinq to
lS reconfigure the plan. too. I don't want to
16 presuppose that.
17 MR. FENSTERMACHER I Is that a
18 suqqestion. that we twist those four apartments
19 toward the other side?
20 CHAIRMAN REISMANI If I am in order. we
21 will continue this application until April '1.
22 which is our next stated meeting.
23 This hearing will be continued.
24 MR.DRU13YI We will reserve our
25 questions until next time.
57
1 CHAIRMAN REISMANI We are qoinq to
2 continue this hearing until the 21st of April.
3 Now. if you people want to come up and
4 look at these in the next few minutes. we will
5 take a recess for about ten minutes and let you
6 come up and look at the pictures and let you see
7 what they plan to do.
8 MR. STRALEYI Jeff Straley. I have one
9 question concerning a point Mr. Rupp brought up
10 concerning R-2 versus R-3 zoning.
II MR. RUPP I I should have said AO. I
12 think I was referring to AO and I said R-3. It
13 may be R - 3 as we 11-
14 MR. STRALEYI B'ut under AO or R-3 or
15 whatever, that particular zoning addresses
16 townhouse type units. condo type units?
17 MR. RUPP I AO has as a permitted use
18 townhouses.
19 MR. STRALEYI Whereas. in the R-2 we
20 are talkinq strictly qarden stvle apartments?
21 CHAIRMAN REISMANI Yea. They aren't
22 yes or they aren't no. That is why we are qoing
23 to let it go until next month and when the~' apply
24 for determination to compatibility.
25 MR. STRALEYI I was trying to clarify a
58
1 definition of if a townhouse of this nature falls
2 un d e r AO 0 r R - 3 ve r s us R - 2 .
3 MR. RUSSELL I Townhouses under R-3 are
4 not a permitted use. In apartment/office they
5 are. R-2 is just single family, semidetached,
6 garden style apartments
7 MR. RUPPI I misspoke. I said R-3. I
8 was thinking AO. I should have said AO.
9 Townhouses are permitted uses. listed permitted
10 uses in the AO zone.
11 CHAIRMAN REISMANI We will take a
12 ten-minute break, and if you people ~ant to come
13 up and look at these blueprints and pictures, you
14 are free to do so And then we will reconvene
15 and 00 to our next hearing.
16 <Brief recess from the record.)
17 MR. RUPPI With respect to Docket 94-2,
18 I make a motion that we contine the hearing.
19 MR. GARRlr.KI Second.
20 CHAIRMAN REISMANI It has been moved
21 and seconded. All those in favor say aye.
22 HR. GARRICKI Aye.
23 MR. RUPP I Aye.
24 CHAIRMAN REISMANI Aye. Opposed. like
25 siqn.
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carr.Led.
(No resPonse,)
C.."'.O '.'.'.0, O'.rtn. non.,
.
NOTICE OF PUBLIC HEARING
NOTICE is hereby given that the Zoning Hearing Board of Lower Allen
Township, Cumberland County, Pennsylvania, will hold a Public
Hearing on Thursday April 21, 1994 at 7100 p.m., at the Lower Allen
Township Administration Building, 1993 Hummel Avenue, Camp Hill,
Pennsylvania, to considerl
1 .
" II
Docket No. 94-021 The application of Herbert Fenstermacher,
Jr., 325 Weet Meadow Drive, Mechanicsburg, PA was tabled at
the March 17, 1994 meeting. Applicant has amended application
to request the following relief from the provisions of the
Codified Ordinances of Lower Allen Township (herein
"Ordinances") 1
1) A determination according to Section 1141.01 (j) of the
Ordinances as to the similarity or compatibility of proposed
townhouse units at the southeast corner of Linden Avonue and
Upland Street, Mechanicsburg, PA to the permitted uses in the
R-2 district; and
2) A variance from the yard requirements of Section 1115.06
of the Ordinances relative to the Zoning Hearing Board's
determination regarding proposed use.
2. Docket 94-041 The application of Russell and Sally Koch,
25 Courtland Road, Camp Hill, PA requesting a variance from
the provisions of Section 1113.06(a), as modified by Section
1141.04(h)(4) of the Ordinances. Applicant proposes to
construct a porch that would encroach into the required front
yard setback of the R-1 District.
3. Any other matters of general businees and to deliberate
upon any such matters which are pending before the board
and which are appropriate for consideration at a public
meeting.
By order of Lower Allen Township
Zoning Hearing Board
Ronald J. Mull
Manager/Secretary
Board of Commissioners
.
1I0CKET NO.
7i~~
.
IIIJIIIIE
1.111/1:11 ^IJUI WI/WiHl!' 1.11I111111 III Mum IlIl^,UI
10 I.ower ^"1!1I IOWII~hlll 111111111' 111'111'1111/1111,1111:
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Mr. lIerbert FenlJtet'11l!lcher, Jr.
J. 1I1l! llll!!t"l!sl IIr lho ~i,i.~~~~~~ h:.~.!'~~ICA~~~~.C:OO~!DE~!NG PURBIlASE OF PROPERTY IN
QUESTIOO FOil PURPOSES OF DEVELOPING IT AS SII<MN.
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~. 11 IlIlerl!sl I~ olhol' lImll IIWIIOI', rllrlll~h IInl11l1 nlld ndllt'I1SS of owner:
ROBERT II. BARKLEY/ 3817 LAMP POST LANE, CAMP IULL, PA 17011
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1II1111l1' which till! I'Xc:r'I.1.I1111 III' vnrtnllC:l! IIIny hI! nlll1wl.t1:
1'~_Zgm'!\UR:::~1._R~g!P~1~!L.!?!!?TF1~-MULTI. FAM!!o~ OOELLING,SEeKING DETERMINATICll
AS TO TilE SIMILARl1'Y OR CQo\PATIBILITY OF TilE PROPOSED USE - TaoINHOUSE TYPE WITS. )
THIS IS AN AMENDMEN'l' TO 'l'IlEPRlC)R APPLicATIOO. -----t^ttDot <!lA'L~~,t' IIMJ1S.
o. till! yrUllllIls ro,' nlllll!al ur rl!nSOIl~ lur I"llfl\1l!SUIIII n ~I'eclnl I!xccl,llon or variance
orl!:
EXCEPTIOO FOR USE LtlDER Sec.'l'IOO 1141.0l( j) OF THE GENERAL REX:iULATIOOSl PROPOSED USE
IS NOT SPECIFIED UNDER SECTION 1115.02 - PERMITTED USES FOR R-2 IlESIDENTIAL DISTRICT.
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Proof of Publication of Notlt. In Th. Patriot and Th. Ev.nlng NI..
an~.d!h.~et ~~n~~t!r~t~I~~!:.~~~s ~~.,
C"mm"nwralth of. Ptnnsulvania, }
COllnlv of Da!lphin'~:
,..................,.,)!,t.\-:.~~.~J..):!~,~.r.9.!'!...............................,beinl1 duly sworn lIl:cordJng to la.. deposes and saya:
Asst. Concroller
That he fa the ............"..,..........,of THE PATRIOT .l\EWS CO.. a corporation orll'anlzed and eldatfng
under the laws of the Commonwealth of Pennal'lvanla. with ita principal office and place of buslnesa at
812 to 818 Market Street, in the City of Harrt.burg, County of Dauphin. State of Pennsylvania, owner
and publlaher of THE PATRIOT and THE EVE~ING :-lEWS and the SUNDAY PATRIOT.NEWS
newspapers of general circulation, printed and published at 812 to 818 Market Street. In the City,
County and State aforeaaid; that THE PATRIOT and THE EVENING NEWS and tha SUNDAY
PATRIOT. NEWS were eatabllshed March 4th. 1854, anei February 15th. 1917 and September 18th.
1049, respectively, and all have been continuously published ever since;
That the printed notice or publication which Is securely attached hereto Is exactly aa printed and
Metro Weat 5th and 12th days of
published in their reilllar!elllUons anllluuea which appeared on the ..........................................................
April 1994.
........,...............................................................................................................................................................................
That neither he nor said Company Is Interested In the subject matter of said printed notice or adver.
tlsinr. and that aU of the alleratlons of thla atatement as to the.,Ume, place and character of publication
are tMle; and
That he has personal knowledre of the facts aforesaid and It duly authorized and empowered to
verify thia statement on behalf of The Patrlot.Newa Co. aforellilld by vfrtue and pursuant to a resolu.
tlon unanimously paued and adopted severally by the stockholders and board of directors of the said
Company and lubsequently duly re.:orded in the office for the,Recordlnr o.t Deeda in and for said County
of Dauphin in )lIK.llln.oul Book "M". Volum.14. PII.~l '. l' t/ 1'.,..
Cop)' of Notlee or Publication .................... ..... .....("....1!.r.:L~~~.:..............
IOOTl<IO. "''''CHUII''' 1 ., oJ h
'" =n ~=:',r.:r:::..." - _. Sworn to and sulJacrlbed bejor. m.,tfiI~:..;hlLhtt.......day of
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Camp Hill, PA. 17011
-- ....................-....-.......-..........-
To THE PATRIat'.NEWS CO., Dr.
For publishing the notice or publication attached h.reto on the
91.34
above stated dates. .............................
Probatlnr same ............,d.:..~.~.....
Total .............................
, .
I .rl Rec.lpt for Advertlllng COlts
TilE PATRlOT.NEWS CO.. publisher of THE PATRIOT and THE EVENING NEWS and the
BUNDA Y PATRIOT-NEWS, newspapers of general circulation, hereby acknowledre receIpt of the
atoresald notice and publlcatlon costa and certifies that the same have been duly paid.
TilE PATRIOT.NEWS CO.
Ry ,,,.......,.....,,,..,,..,,,..,,,,,.,.....................,,.........................
1
L~ER ALLEN TOWNSlllP
ZONIOO IIEARING BOARD
-----
IN RE 1 1. 94-2, lIerbert Fenstermacher
compatibility and variance.
2. 94-4, Russell Koch,
variance.
-----
Stenographic record of hearing held
at the Lower Allen TOIronship Municipal
Building, 1993 Hummel Avenue,
Camp Hill, Pennsylvania,
Thursda~',
April 21, 1994
7100 p.m.
-----
MEMB ERS 1
Burton Reisman, Chairman
Kevin J. Garrick
APPEARANCES I
DENNIS J. SHATTO, ESQ,
31 North Second Street
Harrisburg, PA 17101
For the Zoning B'oard
RICHARO B. ORUB Y, ESQ.
P. o. Box 93
Harrisburg, PA 17108-0093
For the Township
Ollen A. Leary
6313 Salem Park Circle
Mechanicsburg, PA 17055
(717) 233-2660 Fax (7171 691-7768
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CHAIRMAN REISMANI The Lo~er Allen
Township Zoning Board ...ill no... come to order.
Is there anyone in the room who has
anything to say before ...e start our hearing,
except for Docket 94-2 or 94-4?
MR. GARRICKl They might not ~no", ...hat
they are.
CHAIRMAN REISMANI They kno~ ...hat they
are. If no one has anything to say other than
what is pertaining to those t'110 dockets, ~e ...ill
then go into our first order of business which ia
the continuation of Docket 94-2.
Full name and address of applicantl
Mr. lIerbert Fenstermacher, Jr., 325 West Meado",
Drive, Mechanicsburg, Pennsylvania, 17055.
Interest of applicant is applicant is
considering purchase of property in the question
for purposes of developing it as sho~n.
Interest, if other than o~ner, furnish
21 name and address of o~nerl Robert II. Barkley,
22 3817 Lamp Post Lane, Camp lIill, Pennsylvania,
23 17011.
24 Subject property is described and
25 located as follows. See location and proposed
4
1 site plans.
2 Relief SOUghtl A variance.
3 If variance is Bought by the applicant,
4 cite the present zoning classification of
5 property and the section of the zoning ordinance
6 under \\hich the variance ma\' be allowed. Present
7 zoningl R-2, residential district, multifamily
8 dwelling. Seeking determination as to the
9 similarity or compatibility of the proposed usel
10 To",nhouse t~'pe units and/or garden apartments.
11 This is an amendment to the prior application.
12 Grounds for appeal or reasons for
13 requesting a variance arel Exception for use
14 under Section 1141.lljl of the general
15 regulations proposed use is not specified under
16 Section 1115.02, permitted uses for R-2
17 residential district. Also seeking variance to
18 the building setback requirements relative to the
19 zoning hsaring board's decision regarding
20 determined use. Signed Herbert Fenstermacher,
21 Jr.
22 Mr. Russell, ",111 you raise your right
23 hand, please?
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1 TIM RUSSELL, having been duly Sl<orn,
2 ",as examined and testified as followSI
3 CHAIRMAN REISMANI Are you the zoning
4 officer for Lo\\er Allen TOlln13hip?
5 MR. RUSSELL I Yes, I am.
6 CHAIRMAN REISMANl Has this application
7 bsen du ly adv er ti sed?
8 MR. RUSSELL I Yes, it has.
9 CHAIRMAN REISMANl lIave the property
10 owners surrounding this property been notified?
11 MR. RUSS ELL 1 Yes, they have.
12 CHAIRMAN REISMAN I And a copy of the
13 application posted on said property?
14 MR. RUSSELLI Yes, it has.
15 CHAIRMAN REISMANl Thank you.
16 Mr. Fenstermacher, if you ",ould,
17 please. We will continue \\here we left off last
18 month.
19 Raise your right hand.
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----.- _._---"_._-_..._--~----
7
1 definitelr call multifamilr buildings. So there
2 haB certainlr been a precedent set that this has
3 been an established type of use in this zone.
4 If ~e step back a second and consider
5 what the R-2 zone refers to, it is called R-2,
6 residence district, multifamilr dwelling. In
7 your own definitions of multifamily dwelling, you
8 refer to that as being a building used by three
~ or more familieB living independentlr of each
10 other, doing their own cooking, including
11 apartment houses, row houses or to",nhouses.
12 A to",nhouse, again, is defined by a
13 single-family, attached dwelling, one or more
14 story construction situated that there are one or
15 more units -- three or more units contiguous to
16 one another, common ",alls, adjacent parking, and
17 common yards or open space provided.
18 So basically our point is that even
19 though you don't explicitly mention townhouse in
20 your R-2 multifamily zone, by the very nature of
21 calling it multifamily dwelling and by your
22 definition of multifamily dwellings, townhouses
23 certainlr fit that.
24 With that in mind and ~1th the fact
25 that there is a plethora of these uses occurring
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in this same neighborhood, I believe there is 56
total units, multifamil\" compared to 27 or 28
single-family residences in this immediate area.
In fact, there ...as actually, as you can see, more
of that use than the single family.
So our point is that it is in our
opinion extremely consistent with the zoning
ordinances, the intent of the zoning ordinances.
It certainly will not present a hazard to the
safety or be a detriment to the charscter of the
neighborhood. What Mr. Fenstermacher is
proposing is certainly architecturally and
aesthetically pleasing buildings. It certainly
",ould nOI be a detractment from what is there
now.
So ",e ",ould look to you to hopefully
consider this favorably in light of this
information, and ...e would be happy to take any
questions from you or add anything that you ",ould
like to say.
MR. SIIATTOl B'efore you do that, maybe
we should do some housekeeping here. I can't
recall from m~' o...n recollection here ",hether we
had any exhibits that we introduced at the last
hearing or not.
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MR. 0 R un Y I
I have marked do~n Exhibits
1 through 9 ",ere introduced.
CHAIRMAN REISMANI There were pictures
and the plot plans.
MR. SHATTOl So ~e had nine exhibits
apparently, according to Mr. Druby's notes at
least. Why don't ",e mark the ne~ dra~ing here
that was just handed out. To be safe let's mark
it Applicant's Exhibit 12, and if there is a gap,
it ~on't matter. That will be this one page that
sho~s the surrounding streets and various
single-family and multifamily uses.
(Applicant's Exhibit 12, drawing,
marked for Identification.)
MR. SHATTOI And then we have been
presented ",ith a series of photographs that
correspond with Applicant's Exhibit 12. There
appear to be ten. Ten photographs which are
numbered on the reverse side ~hich correBpond
with the numbers in the circles as Bhown on
Applicant's 12. Why don't ~e mark these
Photographs 1 through 10 as ExhibitB 13 through
22.
(Applicant's Exhibits 13 through 22,
photographs, marked for Identification.)
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oetbacks for the zone. 00 we basically, while
not changing the number of units, the density of
units, we have got, I think, a more pleasing
arrangement and one that worko better for the
t 010 no hip.
CHAIRMAN REISMANl Did you say you
changed the ingress and egreso?
MR. SECARYI Yes. I think that ",e had
contemplated --
CHAIRMAN REISMANI I think we spoke
about that last time to get it off Upland Street.
MR. SECARYI That's correct. What you
are looking at is what ",e sho", as existing, and
that is \tihat's out there nolO, \tihich would be the
house. What you need to look at is the next
page, ",hich Ioould have sho\tin ~'ou what ",e have
pl anned to do.
MR. SHATTO. And that is Sheet No.2 of
Exhibit 23.
MR. SECARYl This sholos the access from
Linden Avenue. I believe the original plan we
had contemplated accessing from Upland Street.
CIIAIRMAN REISMAN I So this is going to
be right here?
MR. SECARYI That \tiill be our driveway.
12
1 CHAIRMAN RElSMANI And this is closed
2 of f ?
3 HR. SECARYl Yes. And that is
4 preferable because of the condition of the Upland
5 Street.
6 CHAIRMAN REISMANl That's true.
7 MR. SHATTOI Are you with Hartman
8 Associates?
9 MR. SECARYI Yes, sir.
10 CHAIRMAN REISMANl The only thing that
II was changed from the previous hearing was the
12 ingrees and egress?
13 MR. SECARYI Well, the orientation of
14 the buildings are a little bit different, and
IS that is so we can accommodate the setbacks. As
16 you can see nOli, the buildings do not -- so lie do
17 not -- ",e no longer pursue a variance from the
18 setbacks because lIe don't need one liith this
19 configuration.
20 HR. RUSSELLI Let me interject. That
21 is not necessarily true. It depends on ho", the
22 board determines compatibility.
23 CHAIRMAN REISMANI Oh, yes, lie get
24 compatibility.
2S MR. RUSSELL, That is wh~' they eholi the
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change and modification depending on ho~ you s",ay
~'our decision
CHAIRMAN REISMAN. I was looking
through the transcript of the last hearing.
Now, I see you have not changed
anything except the location, but the garagee and
everything remain the same.
MR. S E CAR Y .
The size of the garages,
but again, the buildings have been repositioned a
little bit on the site, and the access is
changed. So it is the same intent of the plan
and same type of plan. It is just the buildings
have been moved a little bit to keep us within
the setbacke prescribed ",ith the zoning, should
you determine that ",e are compatible with that.
CHAIRMAN REISMANI It \IOas mentioned at
"When
your last hearing upgrading Upland Street.
you say 'upgrading,' \lhat do you mean by
upgrading?
"The to\lnship specs with the curb
placement and specified cartway \lidth.
"The to\lnship is going to do that?
"No. We arc going to do that hale a
...idth. Our half of it."
Does that still pertain ...ith this?
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MR. SECAlIY,
I don't believe it ~ould.
That was the old plan which sho",ed uo having
access on Upland Street.
CHAIRMAN REISMANl But no~ that the
aocess is not there, you are not going to touch
Upland at all?
MR. SECARYI
I don't advise that ",e do,
and I don't believe that your engineer will
advise that either.
CHAIRMAN REISMANI
I just wanted to
make sure that we know what io going on back
th ere.
That is ",hy I want to go through this.
It might take a couple of minutes longer.
I might add ",hile looking through this
t hat Hr. 0 rub y is r e pre s en tin g the Tow n s hip, i s
here on behalf of the Township.
questions, feel free to ask.
If ~'ou have any
MR. ORUBYl
I will ask them whenever
you want.
CHAIRMAN REISMANI Go ahead.
While I'm
lookin9 through this, we can save time that way.
MR. PIIUIlYI Sure.
I do have some
questions.
Mr. 6ecary or Mr. Fenstermacher,
e 1 the r on e, [ eel [r e e to an B w e r .
When you make the argument there is
15
1 similarity and compatibility with your units to
2 the R-2 district, what in particular, what
3 structure is it compatible with? Are you saying
4 single-family dwellings, or are you saying garden
5 apartments?
6 MR. SECARYl No. What we are saying is
7 that we believe that there is an established use
8 for to\inhouses and apartments, multifamily uses,
9 in this immediate area, also within the same
10 zoning district. And \IOhat we are basically
II saying is that -- I don't kno", if you want to
12 call it a precedent, but certainly it is a well
13 established use in this immediate proximity.
14 So we are just saying that our use is
15 nothing unusual and nothing that has not been
16 seen out there before. And we think we will be
17 an addition to the community rather than a
18 detraction.
19 MR. DRUBYt Would you agree with me
20 that they are more compatible, more similar to
21 garden apartments than single-family dwellings?
22 MR. SECARYI I don't think there's any
23 doubt that since they are attached with a party
24 wall that they are more similar to multifamily,
25 an apartment complex, townhouse, or condominium
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determination. I think there are aspects of it
that can be compared to either one.
MR. DRUBYl But just for the record for
garden apartments, you will agree that the
setbacks are 50 feet front, side, and rear yards?
MR. SECARYI Yes, as stated in the
ordinance.
MR. DRUBYI I have some questions
concerning the variance issue depending on how
the board decides, but I will save them until
later. They are compatibility and similarity
questions.
CHAIRMAN REISMANI To ask questions on
compatibility, the documentation here shows there
are garden apartments and townhouses,
single-family dwellings. Would you like to look
at these pi ct ur es?
MR. DRUBYI If you ",ould not mind.
MR. RUSSELL 1 If I may draw your
attention to Article 1101, Section 1101.41, and
that would be page 11 of the zoning ordinance.
CHAIRMAN REISMANl Dwelling.
MR. GARRICKI So we kno", what dwelling
is. What is your purpose?
MR. RUSSELLI It gives a listing of
1 8
1 various types of d~ellings which I thought might
2 help in your minds a little bit.
3 MR. G AR R I C K I 0 k a y .
4 CHAIRMAN REISMANI Are you referring to
5 E especially?
6 MR. RUSSELL I I am not referring to
7 anything, Mr. Chairman. I am letting you see it
8 for yourself and take it from there.
9 CHAIRMAN REISMANI Section 1101. 41Ce),
10 single-famil~' type dwelling or ro", dwelling means
11 a building used by one family and having two
12 party walls in common with other families such as
13 ro", houses or tOlinhouses.
14 MR. SH'.!"l'UI I th:nk perhaps what Mr.
15 Druby is drivin, at here, there are really two
16 issues before the bo~r~. The first is similarity
17 and compatibility. If you determine that this
18 use is not similar to or compatible with other
19 uses permitted ",ithin the R-2 zone, then, of
20 course, that -- they ~ill fail in that test as a
21 matter of use, right permitted use.
22 If you would determine, hOliever, that
23 the proposed use is similar to or compatible with
24 other R-2 uses, then you, of course, would
25 approve the use itself. But then you would have
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to addrelo the pecond iIIUI, which is ...hich
setbacks do you impoRe on thlo particular
project?
Uo yuu lmpope tho oetbacks that ",ould
relate to the alnqle-ramlly detached dwellings or
lin~le-ramily satellite detached dwellings, which
are opecllil~all\' permitted under 1115.028Ibl, as
30 feet front and 15 feet side yard? Or would
you impODe tho setbacks that are required for
garden apartmenta which are 50 feet on all sides?
And that is, of course, an ilsue that the board
mey have to addrels depending upon how you rule
in 81milarity and compatibility.
If you ...ould not determine thil to be
11milar to or compltible with the existing R-2
u..., then you Ioould be faced with having to
Qrant a use variance as well al a setback
variance should you be 80 inclined.
really not clear from the orninance.
And it il
CIlAIIIMAN IIEISMANI Actually it isn't
b.oaul. .... have threo different things here.
MR. RUSSELLI There are a lot of
conflicting definitiona,
CIlAIIIMAN REISMANl Thore are three
diffolBnl th1nIJs connected loith this, and the
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1 property and that this is ~hat you felt you ~ould
2 need to build, 1C 1 rsmember correctly.
3 If I am not correct, you may ",ant to
4 hear additional testimony as to why this was
5 configured the ~ay it is. In the event the board
6 ~ould determine the 50-yard setbacks would apply
7 tot his, \/ 0 u m a \' ", ant to he a r s 0 mea d d i t ion a 1
8 testimony as to ",hy there should be a variance
II granted.
10 MR. SECARYI We mentioned, I think, in
11 the original submission, and quite well, the very
12 small amount of residual land that would be left
13 if you impose the 50-foot setbacks. I also think
14 ~. ofrered tBstimony about townhouses in this
15 area that are well within those setbacks.
16 MR. SHATTO 1 Well, your ne", plan that
17 you have submitted, which we have marked as
18 Applicant's 23, you are showing 30 feet along
III Linden and 30 feet along upland. And then on the
20 east side you have marked it as a IS-foot
21 setback. But actually there is 30 feet bet",een
22 the buildings and the eastern property line,
23 isn't there?
24 MIL SECARYI We have a 3D-foot setback
25 on Linden and 30 feet on Upland, which would be
23
1 be closer to the line than 30 feet, but they are
2 more than 15 feet away.
3 MR. SECARY I Yes. We have al so given
4 you poles to the existing homes that ",ould be
5 adjacent, and they are a considerable diBtance
6 hay fr 0 man ~' 0 f tho s est r u c t u res. I tis not
7 like there is a house right on straddling the
o line and we are putting something right next to
9 it. We tried to provide as much space as
10 possible on the lot in between our buildings and
11 the adjacsnt dwellings.
12 MR. ORUBYl Right no", I haven't any
13 questions.
14 MR. GARRICKI Right no~ we don't have
15 an ordinance that pertains directly to it.
16 CHAIRMAN REISMANl No, there 18 nothing
17 in herB that pertains to it.
18 Right no", I am reading the transcript
19 because we didn't discuss anything about it at
20 the last hearing. We asked him to come back to
21 give compatibility.
2Z MR. SIIATTOl YIl8. I don't think you
23 have often had to face this issue.
24 CIIAIHMAN REIBMANl Not when we could
25 flip 1\ coin three times.
25
1 units to individuals, are ",e going to be asuured
2 that they are going to take care of their
3 property, cut the grass, trim, and so forth?
4 If it were under a Bingle management
5 and they ~ere renters, I could see where there
6 would be some corporation, let's say, Ot' some
7 homeowners' organization that would take care of
8 this thing. Do you have any plans for that sort
9 of thing?
10 MR. FENSTERMACHER I Yes. I have not
11 gotten into it in any great detail, obviously,
12 until it I S been approved, but I have reuearched
13 the -- I am not going to thro~ out legal terms
14 I'm not familiar ",ith but the Pennsylvania
15 Condominium -- whatever. It's a pack about this
16 big.
17 It says you could form an ausociation
18 where the owners of the buildings are responsible
19 for the common areas, which are the streets. And
20 they pay monthly dues and, for lack of a better
21 term, supply a pot, and that money is used for
22 sno", removal, grass, the maintenance, painting,
23 certain exterior painting and roofing, and
24 whatnot.
25 CHAIRMAN REISMAN I Each individual
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house would come under the ordinances of the
township as far as grass is concerned and sno~
and what have you.
MR. GARRICKI But it is better if they
had a homeownsr --
CHAIRMAN REISMANI If thsy didn't, they
still would come under the ordinance. It would
be like any other private d",elling would come,
like I do.
MR. GARRICKI Where we insist on
setbacks and these sorts of things, that means
you have grass areas that someone has to
maintain.
To set them back 20 or 50 feet and
have no one take care of ground, it is a waste of
their money and time and it's an eye sore.
C n A I R H A N REI B H A N I Now, Mr. 0 rub y, I
"ill give you back the floor.
MR. DRUDYl 1 just have a few
questions.
Assuming we are dealing with 50-foot
setbacks, 1 have some questions about the
variance itself.
This particular property, does it have
any characteristics that are different from the
other properUee in the Blea? For example, are
there size differences?
27
1 MR. FENSTERMACHER I No. The plans
2 which I'm going to be -- first of all, maybe you
3 are unaware of this, I have built several of
4 those units. Fifteen years ago I built the first
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II area?
12 MR. FENSTERMACHER I There were -- if I
13 recall, there's nine on the original -- way back
14 when there were nine lots on there.
15 MR. SECARYI He is talking about the
16 lot itself, the parcel that you are contemplating
17 purchasing, the entire parcel.
18 MR. FENSTERMACHER I Right.
19 MR. SECARYI Is there something about
20 it unique that is so much different than the
21 other ones? There is Bomewhat of some physical
22 constraints. There is sort of a plateau, and it
23 drops off in the middle. But it is nothing
24 extreme.
25 What it is is its length-to-width ratio
ones and subseq uently quite a few. The plans I
am us i ng \I ill be -- the bird's eye view would be
the same s iz e.
MR. ORUBYI As far as the lot s1z e that
you are putting these units on, is that lot any
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had the original plan in front of you, you oould
Bee that that is extremely obvious, that Bhould
you project those 50-foot setbackB, you only have
a very narrow rectangular piece in the mlddle
that could not accommodate any sort of building
whatBoever.
MR. DRUD'il Any sort of mUltifamily?
MR. SECAR'i1 Any sort of building at
all, If ~'ou imposed 50-foot BetbackB and tried
to build anything ",ithin those, It IB undoable,
nothing that could be inhabited by a human.
MR. SHATTOI If I may, so our record is
olear. Apparently at the last hearing we marked
the original set of plans. Sheet 1 waS
Applicant's Exhlbit 1, and Bheet 2 was
Applicant's Exhlbit 2. And Sheet 2 is the
drawing which sho"'B thiB --
CHAIRMAN REISMANI What would be left.
MR. SHATTOl -- rectangle of what would
be left 1f you imposed 50-foot-",ide setbacks on
all Bides. I forget ",hat the dlmenslonB of It
were. 1 think 1 wrote them down, 20 by 125 is
what would be left as buildable area.
M 1\ . a All R 1 C K I A v e t\' tall 2 0 - f 00 t -", ide
building.
30
1 MR. DRUBYI But if you choue to put a
2 single-family building on there, the setbacks are
3 reduced. I guess it is 30 and 15.
4 MR. SECARYl The setbacks would be as
5 shown on our plan right now.
6 MR. DRUBYl And that is possible to do,
7 at least put a single-family dwelling?
8 MR. SECARYI It's theoretically
9 possible.
10 MR. DRUBYl I don't have anything
II further.
12 CHAIRMAN REISMANI Being no further
13 questions from the board, is there anyone -- I
14 know there are people out there who would like to
15 speak. If you all would like to say something,
16 state your name and address, but ",e want no
17 repetition.
18 So if you want, I would suggest that
19 you pick a spokesman or a spokeswoman and funnel
20 everything to that person and let that person
21 handle everything unless you want to get up and
22 say something for yourself and get your name on
23 the record. That is your prerogative.
24 So, Doris, get up.
25 MS. CONWAYI Doris Conway, 708 Upland
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I ",ant to address a couple of issues.
MR. SHATTOI We bettor hear you in.
CHAIRMAN REISMANI Our solicitor said
~e better s",ear you in.
Street.
DORIS CONWAY, having been duly sworn,
was examined and testified as followsl
MS. CONWAYI First of all, I want to
point out something. While what Mr.
Fenstermacher maintains about the building that
he is proposing to be ",ithin the confines of the
R-2 district or zone R-2, there are none of those
kind of buildings in this area, which is what we
are talking about.
There are no apartments except for two
duplexes, one on Upland Street and one on Maple
Street. There are no five-unit apartments in
this section of Harrisburg Manor. They are all
down in here.
MR. SIlATTOI When you say -this
section,- where are --
MS. CONWAYl 11m talking from Belmont
Street over to the end. They are all
single-family dwellings except for two duplexes,
33
1 variance purposes.
2 MS. CONWAYI Okay. 80--
3 HR. SIlATTOI In othsr words, just
4 because one particular proposal would result in
5 more financial benefit than soms other proposal
6 is no basis for a variance.
7 M B . CO NW A Y 1 0 k a y . I don I t t h ink t his
8 buildin9 is in the best interest of the community
P in that ",e don't have sufficient streets. We
10 anI)' have one wa)' out and one ",a\/ in of that part
11 of Harrisburg Manor, that being Windsor. We do
12 not have any other streets out of that entire
13 Brea except Windsor and then if you go on down to
14 Rupp Avsnue.
15 I am looking at fire safety. I am
16 100kin9 at ambulances getting back there. It
17 doesn't happen because there is only one street
18 in and out other than Rupp Avenue.
lP None of the streets that go back to the
20 Lutheran home are opened up. At the far end of
21 Upland Street is tho swimming pool. You are
22 90ing to put 10 more vehicles on that little
23 street? I am sony, it doesn't fit. The traffic
24 back in there is horrendous no....
25 1 can sho... you pictures which I have
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taken. Look at the off-street parking that is
provided for this apartment complex. And you see
where the cars are in the etreet? What good does
it do to give them off-street parking?
MR. S 1\ ^ T TO ISO we can k e e p 0 U r r e cor d
clesr, do you want to submit those as part of the
record?
MB. CO NW A Y 1
MR. BUATTO I
Yes, you may have them.
I take it you are opposed
to th is.
MS. CONWAYI You are very perceptive,
sir.
MR. SHATTOI Then we will mark them.
We will oall them opponent's exhibits, and we
will number them.
MS. CONWAY I Yes.
(Opponent's Exhibit 1, photograph.
marked for Identification.)
MS. CONWAYI This is what I call
Sullenberger's (phonetic) house because I don't
know what the name of it is or ..ho owns it no..,
but this is on the corner of Upland and Linden.
This is the house I understand ..ill have to come
down if this apartment building, or whatever you
want to call it. goes in.
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HR. SHATTO, So the house ehown on the
left side of that photograph is actually on the
subject property?
MS. CONWAY, Ves. This is one of the
two duplexes.
MR. SHATTOI This 11111 be 0-2,
IOpponentls Exhibit 2, photograph,
marked for Identification.)
MS. CONWAYI And that ",ould be right
across the street from the proposed building.
MR. GARRICKI What's your
qualifications on this one?
MS. CONWAYl I am Bho",inq you how
narrow and ho", llaterlogged the streets are.
MR. GARRICKl This is winter.
MS. CONWAYI It doesn't matter, sir.
We get a rainfall and the water is there.
HR. GARRICKI This is a multifamily
dwelling?
MS. CONWAYl Ves.
That's a mUltifamily
dwelling. Some of these you don't really have to
have.
Here again, this is a picture just to sho",
that lie came up this street and when wo turned
in, there are cars that are not -- and ",e had a
hell of a time getting by those cars this winter.
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1 MR. BHATTOI This is 0-3.
~ (opponent's Exhibit 3, photograph,
3 marked for Identification.)
4 MR. BIIATTOI Which street 1I0uld that
5 be?
IS MS. CONWAYI That is Linden.
7 MR,SHAT'l'OI So Linden is the one that
8 i. .hown going up and do",n in the photoqraph?
9 MS. CONWAY I The To", nship does not pi ow
10 our streets back there. They give us one lane.
11 Can you imagine 18 more cars in one lane? I
12 oan't. It is inconceivable to me.
13 (Opponent's Exhibit 4, photo\lraph,
14 marked for Identification.)
15 MR. SHATTOI This is 0-4.
16 MS. CONWAYI This is Upland Street.
17 Thi. is the house that the Codys live in down at
18 the bottom of the hill. And I \\ant to tell you
19 something. With all the concrete that in going
20 to go into this building with no storm drainage,
21 we have no storm drainage baLk there, all of the
22 lIater is going to go do",n into theee people'S
23 basements running off of that proposed building
24 becauee there 1s a dip there and it goes do","
25 there no....
37
1 Can you imagine ",hat theBe people and
2 the people right next door to them are going to
3 live like? They are going to live in an ark.
4 CHAIRMAN REISMANl Doris. I think when
5 we get to the Planning CommiBsion, I think at
6 that time the~' are going to have to show plans
7 for run 0 f f w ate r, sur f ace Ii ate r, and how the y are
8 going to get rid of it. That is not our
9 province.
10 MS. CONWAYI I understand that. I am
II trying to make you understand.
12 CHAIRMAN REISMANI You are absolutely
13 right, and that is one of the things that should
14 be brought before the Planning Commission.
15 MS. CONWAYl We were at the Planning
16 Commission, and we will go back again.
17 CHAIRMAN REISMANl And they have to
18 Bhow their surface water, how they are going to
19 get rid of it.
20 MS. CONWAYI This is the duplex across
21 the street from me. I can barely get in and out
22 of my house now with the vehicles that are at the
23 duplex.
24 (Opponent's Exhibit 5, photograph,
25 marked for Identification.)
3 8
1
MS. CONWAY I Ilere is the same thing,
2 right at the same corner where the propooed
3 building is going to be.
4
MR. GARRICKl I don't want to put
5 myself as being an adversan', but \/ou have
6 ignorant people \lho could care less, a
7 tractor-trailer guy and this stuff.
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MS. CONWAYI The TO\lnship doesn't take
care of it.
I have had a van parked dO\ln at the
10 corner of Belmont no", for three ",eeks that they
11 have ticketed, and they etill haven't come and
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taken it away.
It's right smack at the corner.
13 Bo you are asking him if he is going to make
14 plans for all of this stuff. It doesn't happen
15 that ~ay.
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CHAIRMAN REISMANI Doris, I agree with
17 you 100 percent.
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MS. CONW AY 1 Okay.
CHAIRMAN REISMANI No~, you know that I
20 knoll that territory back there just about as ",ell
21 as you, Ilo~ever, this board cannot do anything,
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and I agree ",ith you.
It il! a heck of a thing
back there.
It is a meso, but I think it is
24 about time -- you people came out to this
25 meeting.
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1 NOlO, I think it is about time you got
2 your forces toqether and \\ent dOlln to the
J commissioners' meeting.
4 MS. CONWAVI We have tried that,
5 CIIAIRMAN R~16MANI Then keep trying.
6 Go to the ne...spaper. This lu not \\ithin our
7 province. We are only
8 MS. CONWAV I But you don I t need to make
e the 11tuatlon ",orS8 for us.
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CHAIRMAN REISMANI If the law allow8 us
11 to do it and grant it under our right8 of land
12 U18, that is IIhat lie have to go by. Traffic i8
IJ not \lithin our province.
14 MS. CONWAVI I understand that,
15 CHAIRMAN REISMANI And this is why I
16 uy you people have lived there I don't kno", a
17 lot of you peopl.e. I knOll some of you. You have
18 lived there a long time. And you get your forces
III together, and you bug them the same way you ar8
20 dO\rn here with us. unfortunately,...e cannot
21 help. I ...iuh we could.
22 MS. CONWAVl You are talking about
2J traffic now?
24 MR.OARHICKI Right.
25 CHAIHMAN REI/JMANl Ri\lht. Trsffic or
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1 snow. We cannot help.
2 MS. CONWAV. I understand that.
3 CHAIRMAN REISMANI But if you go down,
4 all of you go down ~nd just harass the
5 commissioners and get publicity, get everything,
6 you are liable to get somewhere.
7
MS. CONWAVI Okay.
The other thing I
8 want to point out is --
CHAIRMAN REISMAN.
I ",ish we could help
because I kno", the situation back there, and you
k n 0'" I do.
MS. CONWAY I Ho", many years have I been
at this?
CHAIRMAN REISMANI Too long. Doris,
let me tell you we have hashed this over even
when I ",as in business, and I told you then, Go
down and fight. And I was on the board.
MS. CONWAV 1 And that is exactly what I
am doing.
CHAIRMAN REISMAN. But you are at the
wrong board.
MS. CONWAV.
I am not at the wrong
board for the variance.
I want to ask you a
question.
CHAIRMAN REISMANl That's all right,
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1 but ~hen you get to traffic and sno~, lie can't
2 he 1 P you.
J MS. CONWAY 1 As long as Varnon Watts
4 was here, you kno~ damn right well he was not
S going to come back there because he hated my
6 guts. And that's all I'm going to say about that
7 subject.
8 CHAIRMAN REISMANI Doris--
9 MS. CONWAYI That's a closed subject.
10 CHAIRMAN REISMANI That's a good idea.
11 That is an old hashed-out thing and --
12 MS. CONWAYI You are damn right, and
13 it's going to stay that way.
14 CHAIRMAN REISMANI It is too late.
lS MS. CONWAYI That's right.
16 CHAIRMAN REISMANI You have got to
17 start brand ne", right from tonight.
18 MS. CONWAYI Okay.
19 CHAIRMAN REISMANI And you've got the
20 backing of all those people that belong to your
21 group.
22 MS. CONWAY lOne other thing I want to
23 point out. In the area from Belmont over to the
24 end of the development, which it borders on the
25 Lutheran home, there are 18 single-family homes
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and two family duplexes.
Can you honestly eit
2 there and believe that a nine-unit apartment
J place or a nine-unit condominium ie compatible
4 ",ith that area \lhen 18 of the other buildings in
5 that short span of space are all single-family
6 homes?
7 No..., if \Ie are going to Ba\' that they
8 are single-family homes, then \lhy don't they have
9 to use the same setbacks that I had to use ",hen I
10 built my house?
II
CHAIRMAN REISMANI Doris, first of all,
12 you are taking a square block. We are taking a
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district ",hich is R-2.
And if you look at the
map, take a look at the map here, R-2 covers a
multitude of properties.
This is ...hat ",e --
here it is right here.
Here is what we have to
consider, this \IOhole brown area right in here and
not just around the block.
MS. CONWAYl I understdnd that, but
don't the citizens of our area ~ho have been
paying taxes probably since before thia man waS
even a gleam in his father's eye, don't we have
any rights back there?
24 CHAIRMAN REISMAN. You have all the
25 rights in the world.
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H8. CONWAYl obviousl\, not.
CHAIRMAN REIBMANI You hive all the
right. in the world, but we have a book. And \'ou
heard us discussing this book. We ended up
r.adin9 one section, and ~e got three problema
tac1n9 us.
MS. CONWAY, Oka~/.
CHAIRMAN REISMANI Whioh 1. not oUr
doing. This ...as created for us by a
comprehensive plan that wa. drhn back in 1968.
And they have not brought it up to date yet.
Bome of the ordinances they have. And as a
re.ult, I go along with you. Everything you .ay
I kno~ is true. It has been true for the 40
years you have lived there and before that.
MS. CONWAY, Only since the apartments
came in. We didn't have this kind of conflict.
CHAIRMAN RtlBMAN, We started that back
ln --
H8, CONWAYI
1976 when Jack Green came
In.
CHAIRMAN REISMAN, When Jack Green took
it. lIere 1s one of the things for it. In fact,
I got them all here Bomlhhere. And you kno~ the
problems ...11 had ~ith him back there, but there
u
1 wad nothing we could do.
2 MS. CONWAYI Whose idea ",as it to zone
3 it R-2 when it was R-l for so many years?
4 MR. GARRICK 1 Comprehensive plan.
S CHAIRMAN REISMANI Comprehensive plan.
6 It was drawn up by consultants.
7 MR. GARRICKI You can't discriminate.
8 You have to have industrial areas and everything,
9 CHAIRMAN REISMANl Let me ask you
10 something. Why where I live is zoned commercial.
11 If my house burns down, I can't rebuild it. How
12 come across the street where Dr. Pollak lives 200
13 feet from the center of the road, and the highway
14 department doesn't know where the center of the
15 road is, back is commercial? Then it gets back
16 to you people and it is R-2.
17 MS. CONWAYI So you are telling me that
Ie the Township did not rezone this.
19 CIIAIRMAN REISMANl No. Here is the
20 map. That is the original map.
21 MS. CONWAYI I see.
22 CHAIRMAN REISMANI Unless they got a
23 nllro' map. They have not rez oned it to your
24 knowledge, have they?
25 MR. RUSSELL I It may have been zoned
1 something else ",a\/ back maybe in the 50's.
2 CIIAIRMAN REISMANI Zoning didn't come
3 into effect until 1956, the same time as sewersge
4 came in because then they had to zone.
5 MR. RUSSELLI I ",111 excuse myself, and
6 while I am doing that, I ...ill take a look.
7 CHAIRMAN REISMANl Okay, Tim.
8 MS. CONWAYl This particular
9 development used to be as you very well know,
10 Buddy, a nursery.
11 CHAIRMAN REISMAN 1 Yes.
12 MS. CONWAY, And it was broken up.
13 When the final owners died and there were no
14 heirs, it lias broken up to 25-foot lots, 25 __
IS most of them are by 120. Some of them are by 125
16 feet.
17 And to ansller one of ~'our questione, as
18 I said before, the area lohere those five
19 apartments are is bigger than the area that he
20 wants to put the nine buildings on. I can shOll
21 it to you right on here. This is a copy of the
22 original blueprint.
23 I did touch on the one street in and
24 one street out, which means that the traffic will
25 be unbearable. It is unbearable nOli with the
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1 meeting after meeting to fight for what is right.
2 I am getting a little tired of it.
3 CHAIRMAN REISMANl Thank you, Doris.
4 MR. WADE I My name is a'ill Wade. I
5 live at 4717 Maple Avenue.
6 CHAIRMAN REISMANI Would you raise your
7 right hand, please?
8
51 BILL WADE, having been duly sworn, was
10 examined and testified as followSl
11
12 MR. WADEl Mr. Reisman, I got in a
13 little late. I just want to ask a couple of
14 quick 4uestions of the board to try to get my
15 facts straight here for you.
16 One of them is, I understood a little
17 of the conversation regarding the permitted use.
18 Have you clarified whet you are going to call
19 this project? Is it a garden apartment? Is it a
20 condo? Is it going to be under single-family
21 detached or single-family dwelling? We have not
22 determined that yet, have we?
23 CHAIRMAN REISMANl No.
24 MR. WADEl I guess ",hat I would like to
25 elaborate on is what the gentleman behind me --
48
1 forgive me for not kno~ing his name -- but he
2 spoke--
3 CHAIRMAN REISMANI Mr. Druby.
4 HR. WADEl lie spoke briefly about the
5 fact that -- or he questioned as to whether or
6 not there was another allowable use of this piece
7 of property besides ",hat is proposed that would
8 not require any kind of an exception to the local
9 ordinances. I think someone had said yes, they
10 could probably put a duplex on or they could put
11 some sort of a single-family dwelling.
12 I guess my question to the bOArd and
13 just for the record is, If there is the ability
14 to utilize the property in a conforming manner to
15 what is existing without creating hardship for
16 this proposed dwelling, I guess I am curious as
17 to why ~e are not pursuing utilizing the property
18 in some sort of conforming manner. Just based
19 on
20M R. GAR R I C K I Who is we? Are you a
21 contractor? Do you ...ant to build a single-family
22 house?
23 MR. WADEl No, sir, I'm not.
24 MR. GARRICKI We are not in the
25 business of being in business. We are just
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trying to moderato and make euro that the things
that are done in this to",nship conform to the
zoning.
MIL WADEl Right. Basically that is
what I am getting at.
MR. GARRICK I Zoning ordinances have
been already ~ritten. So ",hen you lay 'WI" and
another use and so forth, as far as I knoll at
this point in time, there is no other use for
that property. Nothing has come in front of this
boa rd.
MR. WADEl Nothing that has been
pr oposed to you?
MR. GARRICK I No, sir.
MR. WADEl But we knoll that there is a
comprehensive plan that il surrounded by many
ordinances and rules with regardl to a conforming
construction.
MR. GARRICKI Absolutely, right.
MR. WADEl 1 guels I am challenging the
situation with regards to the whys and the
",herofores. We are trying to determine a
permitted use when ~e already have the ability to
define one and put it into play.
1 know you have not come up with a
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a one-story or t...o-story building.
MR. WADEl I guess my concern would be,
I am a homeo~ner there. I have been before you
before in regards to adding things to my house.
And I feel that probably in the past I have been
asked in some ",a\', shape, or form to define the
hardship that I had ...ith regards to my proposed
plan. And I did that in a conforming manner to
the rust of the neighborhood.
Bad I ~anted to make my house into four
units, even though the ordinance may h~ve allo",ed
me to do that, it ",ould not have been a
conforming plan.
I guess there is some verbatim law
here, but there is also the ability to interpret
it with regards to what is conforming to the
existing area and the lay of the land.
I kno", we don't want to talk about the
Planning Commission part of it tonight because of
the mechanicals and the drainage and the storm
sewers and this sort of thing because those all
have to be addressed at some point afterwards.
But I think -- I guess if someone could
clarify to me as to the ability to propose
something that needs such exception and such
shall not cover more than 30 percent of the area
of the lot. If ",e are over 30 percent, we have
another issue. The buildings are physically too
large as far as the green lawn-type thing.
I guess that adds another one to the
three we already have.
CHAIRMAN REISMANl Providing we are not
dealing ",ith a nonconforming lot.
MR. SECARYI Can I offer some
c 1 a r if i cat ion?
CHAIRMAN REISMAN I Go ahead.
MR. SECARY I Actuall~' the building
coverage is less than 30 percent. It is, as you
see on the plan, 25 percent. Buildings are
defined as the structuree. They are not
inclusive of pavement or streets.
MR. WADEl So you are using 25 percent
of the land for a structure, and then what
encompasses the other 20 percent, parking spaces
and stuff?
MR. SECARYl No. We have a green area
of roughly 47 percent. So you've got buildings
of about 25 percent and pavement of about 28
percent, but ",ithin the allowable for that zone.
MR. WADEl Well, I gueaa rathor than
1 belabor anything here, that is about it. Other
2 than the fact that are ~e at some point in time
3 today or tonight going to provide some kind of
4 clarification to the permitted use?
5 That seems like slmost the spot ~here
6 we need to begin at ",ith regards to all of the
7 other ordinances and ho... they comply. It: doesn't
8 alter the fact that the land could be physically
9 developed without even having to be here tonight
10 creating any hardship for you gentlemen.
11 MR. GARRICKl I can't let ~'OU go ",ith
12 that could be and so forth again. We are not in
13 never-never land. There are no could be's. We
14 have a gentleman who came in with a plan and so
15 forth, and ",e have to make a determination as to
16 whether it is compatible with the ordinance.
17 There are no could be's at all.
18 MR. WADEl So I guess the best thing we
19 need to do is let you guya determine what its
20 permitted use is, the clarification.
21 MR. G ARRICK I Yea.
22 HR. WADEl We have not done that.
23 HR. SHATTOl That is a decision the
24 board will have to make.
25 HR. WADEl Will you make that tonight
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at all, do you think?
CHAIRMAN REISMANl I doubt it.
There
are too many complexities in this thing, and I
think ",e are going to ~ait until the transcript
comes out.
With this transcript and the one that
we are going to get tonight, ~e can sit down and
ta 1 k.
Of courae, ",e ",ill sit down with our
solicitor and see what our legal ramifications
might be out of this thing and go from there. We
are not going to make a haaty decision.
But I ~ant to reiterate to you people,
you got a problem back there.
I am not saying
you don't, believe me I kno~.
I ",ould suggest
that you muster your forces and go down and talk
to the commissioners.
There has to be some
alleviation of your problems som....here out there.
I kne~ exactly what Doris was going to
say because she is 100 percent right.
If it's
110 percent, I ",ill give her the other 10
percent. B'ut this board is -- well, we just -- I
could have told Doris she was out of order
because it doesn't pertain to us.
But I would
not do that to her because she is 100 percent
right.
else. Where were your plows? We could not get
out. Take your pictures down. In fact, come up
and get the pictures from Tim before you go to
your meeting.
MS. CONWAYI I have plenty more.
CHAIRMAN REISMANI
I'm serious, Doris.
There's only one ",ay. We can't help you.
MS. CONWAYI I am as serious as a
heartbeat too, Buddy, believe me.
CHAIRMAN REISMAN I We can take what you
said under advisement.
I didn't have to hear it
from you.
I kno", the situation back there, but
it is now a matter of public record.
That is the
only reason I let you go on.
Now it I.s a matter of record, and they
have it on the record.
And it is going to come
out in a book like this, and this book is kept
for the duration of this township.
They can't
throw it away.
And this is why we are going to
read it and go with this one.
Then we will corne
up ",ith a decision.
But it is not going to be a decision
that we are going to make tonight, I am telling
you that right no",.
We have three factors in
here.
We started out ",ith just one, and we ended
1 up "ith three. So believe me, we will take
2 everything into consideration.
3 That is my suggestion, take your battle
4 to another board. This one can't help you.
5
6
JEFF STRALEY, having been duly sworn,
7 waB examined and testified as followSI
8
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MR. STRALEYl Jeff Straley, 4708 Linden
Avenue.
I just wanted to go on record as letting
11 you all kno", that I totally agree with what all
12
Doris said and what Bill said.
I am not at all
1J in favor of the proposed development of this plot
14 of land.
15 I 'II anted to ma ke one or maybe t... 0
16 points about the similarity and compatibility
17
issue.
I am sure you are looking at this, but I
18 wanted to point this out and have it on record.
19 If you were to rule that this proposed
20 structure is similar and compatible to garden
..
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style apartments, then the 50-foot setback would
22 be required, Correct? Is that the case?
I"
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MR. GARRICK I
I don't kno....
How about
making your point.
MR. STRALi>YI At that point then Mr.
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Fenstermacher ...ould have to come before the board
and look for the variance.
MR. SHATTO I lie is doing both.
CHAIRMAN REISMANI No. He is doing
both right now.
MR. STRALEYI My point is that if he
does need a variance from the 50-foot setback in
order to build this structure. then he has to
prove unnecessary hardship in order for you to
grant the variance according to the ordinance as
it's stated today.
CHAIRMAN REISMANI I think you're
getting mixed up here. You're hung up on this 50
foot.
MR.STRALEYI Assuming that you say
that this structure is similar in nature to a
garden style apartment, if that's the way you
rule --
CHAIRMAN REISMANI But then we can give
him a variance from the 50 foot becauBe it is a
nonconforming lot. Now continue ",ith your story.
MR. STRALEY I Because it is a
nonconforming lot?
CHAIRMAN REISMANI Yel.
MR. STRALEYI Nonconforming to what?
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1 CHAIRMAN REISMANI The lots today have
2 to be 90 feet, and these are only 25 by 125. So
3 these are nonconforming lots.
4 MR. STRALEYI But he has nine lots
5 total that he's looking to purchase. So you're
6 talking 225 feet by 125 feet or 120 feet deep.
7 And he needs a 50-foot setback. I didn't quite
8 understand your point being that... (witness
9 trails off)
10 CHAIRMAN REISMANI The ~hole area, the
11 complete area back there is nonconforming. It
12 doesn't meet the standards of the zoning
13 ordinance as it was brought up to date in 1968
14 ~hich requires a 90-foot front yard.
15 MR. STRALEYI Ninety foot from the
16 street in?
17 CHAIRMAN REISMANI No, 90 foot this
18 way, ",ide.
19 MR. STRALEYI Doesn't he have that?
20 CHAIRMAN REISMAN I lie does, but he is
21 not going to use that 90 feet. If he goes by 90
22 feet, he would only get about t",o houses in there
23 and he is only going to have an area of 125 by --
24 MR. STRALEYI 225 by 120.
25 CHAIRMAll REISMANI Thst is all he would
225, is 0 n 1 \/ 27, 000 sq U lit e fee t .
MR. GARHICKI The~' miss it by about
70,000 square feet.
MH. STRALEYI So I really don't see how
it could be ruled similar and compatible to a
single-family semidetached dwelling.
MR. SECARYI I don't think anybody is
classifying it as a semidetached dwelling. I
think you would be more correct to be under E,
which is attached dwelling or row dwelling,
because the number of them that he has in a row
would not correspond with a semidetached.
MR. STRALEYI Ie) under 1115.02?
MR. SECARYI No, under the definition
of dwellings under 1101.41. I believe you may
have incorrectly selected (d), which is
semidetached dwelling. I believe what is more
correct in the plan shown is a single-family
detached dwelling, which would be Ie).
CHAIRMAN REISMANI What was that number
again?
MR. SECARYI 1101.41, page 11. We
touched on it earlier before.
MR. STRALEYI My question is thisl
Under 1115.02 under permitted uses, they have
1 single-fllmil\' detached, single-family
2 semidetached, and garden style. 1 think on the
3 issue of similarity and compatibility, I think
4 the board is looking to rule -- is looking to
5 make a decision as to which one of thoDe two,
6 sinl]le-famil~' semidetached or garden style, is
7 the structure more similar to ln order to take a
8 look at ",hat variance or ~hat setback
9 requirements you may need.
10 MR. SECARYl I would not presume to
II speak for the board, but I believe that they are
12 trying to determine if it is compatible with the
13 zoning ordinance ~ith the intended use of the
14 zoning ordinance and not neoessarily pigeonhole
15 it as this or whether clearly what we have shown
16 is more accurately depioted as a single-family
17 attached dwelling.
18 MR. STRALEYI Of course, I don't
19 necessarily agree. That's what I wanted to say.
20 Look at those points and consider all the --
21 CHAIRMAN REISMAN. When we get the
22 transcript, we'll --
23 MR. STRALEYI Please consider all of
24 our opinions.
25 CHAIRMAN REISMANl Thank you,
Mil. FUI,MERI Ilandra Fulmer, 4700
Linden.
SANDRA FUI,HER, having been duly sworn,
WI' examined and testified as folloWl1
KG, FULMER, I just have a couple of
quick points. I wanted to go on record, firlt,
u being opposed to the development.
And maybe I am misunderstanding, but if
he buys the lot, and I am assuming he has not
bought yet, it would be a lot of 120 by 225. And
I don't understand ~hr that ~ould not be then a
conforming lot. I heard you talk about
conforming and nonconforming.
CHAIRMAN REIBMANI They are a group of
lots. When Harrisburg Manor per se was set up,
they ...ere set up in such a manner that it was --
they are all 25-foot lots. And these are all --
like in this area that we are talking about now
from Maple, there are eight lots in here. We
call them nonconforming lote, but they have to
put them together to be able to build on them.
MS. FUI,HERI 'fhe other thing I ~anted
waD a clarification. When the discussion ~as
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yoinq on /lbout "hether it ,,/IS similar to what he
is calling a townhouse, it talks about the
permitted usus in R-2. And the gentloman had
said that it "/II more like a single-family
attached, accordinq to a definition at 1101. 41,
but R-2 does not list a single-family attached as
a permitted use.
So if it's similar to that, I still
don't see ho" that helps.
CHAIRMAN REISMANI But he allo
conliders them to"nhouoes, and they are attached.
You see, thio is where we came up "ith the
conflict. That is "hy ",e started "ith one thing
and ended up with three. We have to determine
what he "ants to do.
MS. FULMER, I understand the t\r/o. I'm
not sure about the third.
CHAIRMAN REISHANl It is very complex
for us. This i8 ",hy we are going to read this
and read what Gwen is putting in that little
machine of hers.
HS. t'IJ/,MERI But if I understand it,
one issue is if it is similar to a permitted Ule,
then he doesn't have to worry about the fact that
townhouse io not lilted.
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CHAIRMAN REISMANI res.
MS. FULMER I But if he is saying that
the townhouse is similar to a single-family
attached, that's not something that's listed as a
permitted use either. So if it's similar to
that, I don't see ho", that helps him in R-2. I
~ould think it would have to be similar to
something that is permitted, which ~ould be
either a single-family detached, single-family
semidetached, or garden apartments.
CIIAIRMAN REISMANI Not necessarily,
You see. the law grants us the option that ",e can
make a decision to bend a little to give relief
when they have a problem. If we find that it
doesn't really contradict the law, then we have
to say no, but if it is similar to, then we can,
MS. FULMERI Similar to something that
is already permitted?
MR. GARRICKI In existence, let's say.
CHAIRMAN REISMANI It might not be
permitted but if --
MS. FULMER I I f somebody was given a
variance previously --
CHAIRMAN REISMANI If the surrounding
properties in that ~hole R-2 area are compatible
1 with what he ~ants to put in or his are
2 compatible ~1th lihAt iB already there
J MS. FULMERl So then you're looking at
4 the other so-coIled garden apartments or ",hatever
5 they're called that are, like, four or five. So
6 if you deoide the nine is similar to that, that
7 is what you are saying, and it doesn't
8 necessarily have to be listed here.
9 CHAIRMAN REISMANI Yel, You Sll,
10 1141.11j) gives us the right to similarity and
11 compatibility.
12 MR. SIIATTOl It says in IBunoe if .
13 proposed use is not specifioally permitted nor
14 speoif ically prohibited, the board Can then
15 determine whether or not that use is similar to
16 or compatible with other uses that are permitted
17 in the z,one. And l! they feel 1t is similar to
18 and compatible with those uses, then they oan
1 9 a 11 ow the pro p 0 s a 1 tog 0 Cor Ii a rd.
20 MS. FULMERl But you are again saying
21 it's similar to what is permitted in the zone.
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MR. IlHA'l'TO I I think that iB what you
I< ill find the langusge in 1141
MS. PUI,MER I That's ... he r e I'm getting
confused because I do not see that a
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single-family attached that he said it ~as
similar to is permitted in the zone.
MR. RUSSELL. They can find it similar
and compatible with all of the dwelling usea in
5 that lone it the\' so choae.
6 CHAIRMAN REISMAN, To clarify
7 MS. FULMER. I understand the board can
8 do ",hatever they ~ant to, but ",hat I'm saying --
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CHAIRMAN REISMAN. No, no, no, no.
MS. FULMER, What he ~4B comparing it
11 to is not eomething that io currently permitted,
12 and that's the only point I ~ould like to make.
IJ CHAIRMAN HEISMANl Read the highlighted
14 part ri9ht there, ll41lj). Maybe you will get an
15 ide. of what ",e can do.
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MS. FULMERl It sayu if it is neither
17 permitted nor denied, you can make a
18 determination as to the similarity or
111 compatibility of the use in question to the
20 permitted uses in the diotrict.
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CHAIRMAN REISMANI Right.
M B. F U I, M Ell. And m~' 0 n 1 'i poi n t "II t hat
23 the definition that he wan uying that it \lias
24 limilar to is not one that's listed aa a
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permitted use.
And that. is the only point I am
1 making.
2 CHAIRMAN REISMANl And the ordinance
3 brings that out, ~hether it is listed or whether
4 it isn't.
5 MS. FULMERI That's it.
6 MR. GARRICKl Do \'OU have any strong
7 opinions pro or con in this situation?
8 MS. FULMERI The very first thing I
9 said was I ~as definitely against it.
10 CIIAIRMAN REISMANI Is there anyone else
11 who would like to speak this evening? If not,
12 the board will
13 MR. STRALEYl I have one question. As
14 far as notification, we were notified for last
15 month'e meeting. Is it, therefore, required that
16 we be notified again since the application was
17 amended?
18 CIIAIRMAN REISMANl No. You are only
19 notified for one meeting. If it is continued and
20 if you are here -- it ",as advertised in the
21 newspaper by the ~ay.
22 MR. RUSSELLI It was readvertised.
2J CHAIRMAN REISMANI It was advertised in
24 the newspaper, but we do not have to notify the
25 people the second time for a continuance of a
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hearing.
MR. GARRICKI But call the township
office, and we should be the third Thursdoy.
CIIAIRMAN REISMANI There is a meeting
here almost the third Thursday of every month.
The board will take thia docket under
advisement, and we ...ill let all parties know of
our decision. And thank you all for coming,
To:
From:
Date:
Subject:
Lower Allen Township Board of Commissioners
Residents of Harrisburg Manor Development
May 9, 1994
Preliminary Proposal to Erect Nine CondofTownhouse
Units at the Corner of Linden Avenue and Upland Street
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Ladles and gentlemen of the board, my name If Jeff Straley and I
reside at 4708 Linden Avenue. I represent the home owners of
Harrisburg Manor. We thank you for allowing us to speak before
you this evening.
Although the project we are about to talk about Is not on the present
agenda, It Is In process and Is being considered for approval. The
project to which I am referring Is a proposal to build nine (9) condo/
townhouse type units with detached garages at the corner of Linden
Avenue and Upland Street. The plot of land measures 120 feet by
225 feet.
We as a community strongly feel that coming before you tonight will
allow you to hear our concerns with regard to this proposed project.
At this point In time, the project Is before the Zoning Hearing Board
and It has not yet been determined what the outcome will be.
Regardless of that decision, we the residents of Harrisburg Manor feel
that we need to petition the board with our concerns regarding this
project.
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,
We feel:
1) that the addition of nine (9) places of rel)ldence In a neighbor-
hood that already has traffic, parking and road condition
problems, will only undermine the quiet and tranquillity that
8xlsts today;
J I D J I
Itllll'
U-5
14-2
un
3
'Willi
Grant.d
17
Granted
*****
JIJlJIJ)',
U",IU'" JJ'IlJIJ'JtW 'Mal
Docket U-5
1 plot plan .
2 f1 oor plan 7
3 photograph 10
4 - 10 photograph. 13
111I.
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1 Docket C14-2
2
CHAIRMAN REISMAN I At OUr last:
3 hearing, Docket 94-2. That WIS the headng of
4 Mr Herbert Fenstermacher ~ho is conlidering
5 purchasing property in question for the purpose
6 of development. We held t...o hearings on this
7 application. and the first one ~as continued
8 because the board could not figure out what Mr
II Fenstermacher wanted. And a second headng. he
lO came back and asked for capatibil1ty with the
11 rest of the neighborhood.
12
Now- one thing we have to keep in
13 mind when we speak of neighborhood and
14 capatibility. this board must consider tverythin9
15 that is in the R-2 section for that property up
16 in Harrisburg Manor. We cannot take into
17 consideration just the property on the corner of
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Linden. Maple- and Upland
It must include the
111 complete R-2 section.
20 The board has not talked or spoken
21 or had any words with each other, but we all
22 received a copy of the transcripts of the
23 hearinqs. And at this juncture I'm goinq to ask
24 tor discussion from the board. There will not: be
25 any discussion from you people out there because
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1 the discussion period is over ~ith. It is all in
2 a transcript. everything you people wanted to
3 say.
4 So therfore, I'll entertain a motion
5 for the disposition of Docket 94-2. If you want
6 to discuss it prior to making your motion, make a
7 motion and we can discuss the motion on the
8 floor. It is up to the members of the board what:
9 your pleasure is.
lO MR. GARRICK. Okay. Durin9 the
11 hearing, Mr. Shatto laid out specific points that
12 he thought were pertinent to our making a
l3 decision. And I've read them, but I would like
14 him to reiterate them, if it is okay with the
15 board.
16 CHAIRMAN REISMAN. If they are there
17 in the transcript, unless he wants to reiterate
18 his remarks. I mean he might be able to read them
19 from the transcript because the transcript is
20 ver batim.
2l MR. GARRICK. On page 18, I think
22 perhaps that Mr. Druby is driving at: here there
23 are really two issues before the board. first
24 similarity and capatibility. If you determine
25 that this use is not similar to or compatible
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with other uses permitted within the R-2 zone,
then. of course, they will fail in that test IS a
matter of use.
If you determine, ho~ever. the
proposed use is similar or compatible with other
R-2 uses, you, of course, would approve the use
yourself.
I guess I could continue reading.
Are there any more -- have you flushed out any
more for us?
MR. SHATTO. I think what we were
describing there is. they came in with two forms
of relief they wanted Similarity and
capatibility was the first one.
If you determine it is not limilar
or compatible, of course. at that point then they
don't have t:hat use permitted- And the only way
they would be permitted to build these would be
on the use variance, which I don't even think was
requested. It was a dimensional variance that
was requested
If you determine there i8
similarity, then they would be permit:ted to build
the -- you couldn't build the building. They
would bo permitted to have that use. whatever
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1 that use is. the Qarden apartment or some hybrid
2
of it.
We ~eren't: sure exactly \jhat to call it
3 because there didn't seem to be any definition in
4 the ordinance.
5 Even though you would say that they
6 could do the use, then you would have the iuue
7 of 'What setbacks would be imposed on the
8 propertYI and that was the trickier question, I
9 th ink
lO Would you impose setbacks that
11 relate to single-family detached d\jellinqs or
l2 semidetached d~ellings? It's 30 feet front and
l3 15 feet side yard. Or would you impose setbAcks
14 for garden apartments. which is SO feet on all
15 lidel? Of course. if you impose t:he SO feet on
16 all sides. he 1oI0uld need a considerably larger
17 variance in order to do what he wants to do.
lO If you impose the setbAcks that you
111 used for an R-l type of UBI. then I don't think
20 you need a relief as I recall
21
CIIAIRMAN RETBMAN. Now. if the
22 capAtiblity is granted he doesn't need t:he
23 variance.
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MR. SIIATTO. He 'Wouldn't need t:he
2S VAriance if you would impole the --
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1 CHAIRMAN REISMAN. The capatibility
2 and similarity.
3 MR, SHATTO. The 15 feet.
4 MR. GARRICKI Okay. Thank you.
5 MR. SHATTO. But even if you decide
6 it's similar and compatible. then you still have
7 to decide ~hat setback you are going to use.
8 CHAIRMAN REISMAN. Yes.
9 MR. SHATTO. And if you use the 30
lO feet, 15 feet, then he needs no further relief.
11 That's correct. He's then permitted
12 But if you use the ~O feet. it would
l3 be imposed for garden apartment. Then he
14 definitely needs a variance. and then you have
15 the typical issues that you would have in any
16 variance kind of proceeding. Is there a
17 hardship? Is this the minimum variance that
18 ~ould afford relief. which would get to the
19 question of whether he could put a fewer number
20 of units than proposed and issues of that nature.
21 The board is familiar. I believe-
22 with the test for a variance. So all of those
23 issues would be before you then
24 CHAIRMAN REISMAN. The ordinance is
25 very vague. single-family detached dwellings or
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single-family semidetached dwellings. To me a
town house would be a semidet:ached or
single-family dwelling. even though you have got
a fancy name for it.
MR. a ARRICK I Yes,
CH AIRMAN REISMAN I And of cour 8e, a
garden apartment. t:he difference would be that:
garden apartment has a common entrance for all
apartments. A to~n house has a single entrance,
which of course. in my estimation makes it a
single-family dwelling because it is a single
family. single entrance. And I don't know why
they attach names t:o these dwellinqs, but they
do.
And of course. single-family
detached and single-family semidetached dwellinQs
are a permitted use in the R-2 district So
again, we come up -- as was mentioned in the
transcript, we have three different things facing
us which the ordinance does not specifically
spell out. And Section lllS is quite ambiguous
as to what can go In and what can't qo in. And
of course, the yards are 30, l5, and 30, single
family dwelling.
MR. GARRICK. Yea
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CIIAIRMAN REISMAN. So I don't know
if it's within our province to classify the
buildinqs Mr. Fenstermacher wants to make a town
house or a single-family d...elling, because to me
a single-family dwelling and a to...n house is more
or less similar.
And Albie. you're looking here. If
you have any thoughts. you thro~ them in here
because you're already horn in So if ~'ou have
any ideas on the subiect we are talking about of
housing. we ~ould like to hear it because you
deal with thie. In my opinion, I think this
section of the code is very ambiguous as far as
type of bUildinqs.
MR. WRIGIITSTONE. I know jUdging,
for example, Deacon lIill where you have a large
scale town house development, you have the
buildinq code treats them as single-family
dwellings And you have a required fire
separation between each dwellinq unit. which in
this case I don't believe would apply to thie
situation here. So in t:hat lense you're talking.
you kno~. the same type of unit.
MR. GARRICKI Do they not share a
common wall?
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MR WRTGHTSTONE. They share a
common wall, but there is --
MR. QARRICK. Fifteen feet
between --
MR. WRIQHTSTONE.
MR. a ARRICK I
No. no.
individual
hou.eholds.
MR. WRIGHTSTONE. So a fire
.eparation 1s obtained -- attained, excuse me, by
the common wall being of certain classification
whether it's a masonry and fire code dry wall,
whatever.
CHAIRMAN REISMAN. I think that what
we've seen and what we've heard that although
they want to be fancy and use town house, I think
~e have to treat it as a single-family dwelling
because in essence that's what it is.
MR. RUPP. I see we have one of the
commissioners in the audience. I don't know
whether he would like to offer any comments while
he il here.
CHAIRMAN REISMAN. He can't offer
any comment, I'm going to save you, Rich. As
much 41 we would like to hear him say something
on behalf of -- but unfortunately, by la", he
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MR. RUPPI Well. my view is that it
is more like a single-family residence as well,
and I think you kno~ that's where it comes down
to.
CHAIRMAN REISMANI But being Mr.
Schien is here, I would like to suggest that this
ordinance be gone over because the references
that it makes are really ambiguous. There are
times this board makes a decision it doesn't like
to make, but because of the statements that are
her e, it has to make them.
MR. SCHIENI Mr. Chairman, the board
of commissioners for about a year and a half
now __ Albie, correct me, it may be t:wo years
have been making a concerted effort to review the
zoning ordinance in toto. looking at: ambiguities
and looking at trivialities and things that tie
people up, looking at things that don't tie them
up enough. so that we can more clearly define
what zoning is.
CHAIRMAN REISMANI Here's a very
qood example of that right here that they have so
many names for different buildings that we have
to either chop this end off or that end off and
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MR. WRIQIITSTONEI If 1 may alto add
we have applied for a state planning assistance
grant in order to help us expedite the delayed
look over or change in the zoning ordinance.
CHAIRMAN REISMANI Did you get the
grant?
MR. WRIGHTSTONEI We are still
waiting to hear on that. With the departmental
work load and everything, I could threaten to
come over and eat for a week.
MR. GARRICK. Go over and what?
MR. WRIQHTSTONEI Eat for a week.
MR. QARRICK. Where?
MR. WRIGHTSTONE. At the qovenor'.
He will say it is cheaper to give us the
hou.e.
grant.
MR, QARRICK. Okay-
Really this is single-family
dwelling. .ingle-family detached dwelling garden
apartmftnt., conversion apartment., churche. are
.imilar. You've jU8t got a bang up -- anything
that doesn't fit anyplace else gets put in thi.
section.
MR. WIIIGIITSTONEI One of the
27
1 problems too with the age of this, you have
2 different names no~ for the various unita, You
3 have condominiums. which are again a single
4 family d~elling,
5 MR. GARRICK. Well--
6 CHAIRMAN REISMANI Thi8 hun't been
7 updated since 12/16/68.
8 MR. SCHIENI There'8 a lot of boards
g between then and now.
10 CHAIRMAN REISMAN. That's true.
11 There are some things that we have
12 to bite our tongue on when we do it. and you know
13 this ia what I like to explain to people that
14 there are times we haven't any recour8e. But I
15 don't kno~ what my other t:wo colleagues here have
16 in mind- But the decision has been taken place
17 in the whys and wherefores and trying to make
18 this come out with the Article ll15,
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1 Deoision - Docket No. 94-2.
2
3
CHAIRMAN REISMAN. So if there isn't
4 any other discussion. the board will accept a
5 motion.
6
MR. RUPP. Mr. Chairman. I would
7 maks the motion that with respect to Docket No.
8 94-2 of Herbert Fenstermacher t:hat the zoning
9 board approve the request for capatibility and
lO that the determination be made that it be
II compatible as a single-family dwelling and,
12 therefore, that the other issue of the need for
l3 variances is moot and does not need to be
14 addressed.
l5
CHAIRMAN REISMAN. Do I hear a
16 second?
17
MR. GARRICK. I will second it.
1 8
CHAIRMAN REISMAN. It's been moved
1,9 and seconded to approve Docket No. 94-2. All
20 those in favor say aye.
21
MR. RUPP. Aye.
MR. GARRICK. Aye.
CHAIRMAN REISMAN. Aye. Opposed.
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24 like sign.
25
(No response.)
I'
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CHAIRMAN REISMAN. Hearing none, 10
oarried unanimously.
That would conclude the publlc
port:ion of this hearing.
I might suggest before you people
all leave. from the time that we make thie
decilion and it's ~ritten and .igned like we are
dolng these tonight. ~herever they are, those
right here, ~hen they are signed and we Bign
them. the~' become official.
From that dav on for 30 days. anyone
who wants to appeal the decision of this board.
may do so in the Cumberland County Court. lf you
so feel. within the 30-day period from the time
we siqn ~hese papers. which we have 4S days in
which to sign the papers of today's declsion
MR RUPP. Up to 45 day..
CHAIRMAN REISMAN. Up to 45 days to
siQn the decision. and they have 30 days after
that to take it to court. if they so dssire. to
appeal our decision.
MR. OARRICK. Plus the fact if
Fenst:ermacher st:arts anything.
cnAIRMAN REISMAN. Yes Of couree,
Hr. Fenstermacher can't -- welL he won't get a
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buildinq permit from the board.
MR. GARRICK. Out 1f h. do... he
~ill have a problem.
CIIAIRMAN REISMAN I Oh. YU If he
qo.s to court and loses. then of cours.. he will
have to tear everything down. We have had that
done before. So 1 thought 1 ~ould let all you
people kno~
MR, WRIGIITSTONE. Oefore he could
qet a building permit. he would have to qo
through our Itandard planning process of going
through eubmitting plans to the Planning
Commission which they would review and either
recommend appr oval or recommend rej ect:ion, And
After that is done. 11: gOIl to the board of
commissioners for final approval.
Out any recommendations for approval
or disapproval from the Planning Commislion must
be based upon the ordinances. both the zoning
ordinance and the subdivision ordinance. Any
plans that meet the conditions of both ordinances
would have to be the Planning Commission can
make a statement laying we rscommend disapproval,
Out in order to recommend
disapproval and for the board of commissioners to
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actually disapprove. the plans would have to be
ahown to be not in conformance with the
provisions of both the subdisvision land
development ordinance and the zoning ordinance.
Otherwise, the board of commissioners. if the
plans are conforming to the ordinances. the board
of commissioners are bound by law to approve the
plans.
CHAIRMAN REISMAN I That doesn I t mean
you will have extra time. You only have 30 days
after our decision is made to appeal our
decision, You can't worry about the
commissioners nor the building --
MR. G AR R I C K . Per m it.
CHAIRMAN REISMAN. Yes Once we
make a decision. you have 30 days to appeal it,
that's it. regardless of how long it takes to go
through the bureaucratic red tape.
LOWIR ALLIN TOWNSHIP ZONING IIEARING BOARD
CUMBERLAND COUNTY, PENNSYLVANIA
TRANSMITTAL OF DECISION
[
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OA'I'E 1.-9.2 - 26 -94
TOI Sandra Fulm.r
4700 Linden Ave.
Mechanic.burg PA 17055
Thil notic. cert1f ie. that. your application in the above-ref.renced
m.tt.r ha. be.n ( xx) approved ( ) deni.d ( ) approv.d in part.
Pl...e r.ad th. .nclosed decision and/or findingl of fact
car.fully, and revi.w the information provided belowl
1. Th. zoning H.aring Board may have impo..d condition. upon
granting approval. Thele conditionl are specified in the
d.cilion. Any violation of the zoning ordinance or .aid
condition. .hall constitut. sufficient grounds for re-
vocation of the certified approval.
2. A Zoning H.aring Board approval doe8 not relieve the applicant
from obtaining any and all other approvals or permit8 required
by Low.r Allen Township or any State or Federal Ag.ncy.
3. Unl.s. oth.rwi.e .pecified in the enclos.d decision, a 8pecial
.xception or variance shall expire if the applicant fails to
obtain a building permit or comply with condition8 of approval
within Ilx monthl from the date this decision wal authorized.
4. Actions of the Zoning lIearing Board may be appealed in court
within thirty days of the date of decision. Therefor,
comm.ncement of construction, use or occupancy i8 at the
applicant'. own riak until the appeal period hal expired.
Sincerely,
John M. Eby
Code8 Administrator/Zoning Officer
I.
[1
6. The aubject propltty i. an improved parcel of land .ituate in en R-2
Di.trict, .t the .outheaatarn cornar of tha interaactlon betwe.n Lindan Avenue
end Upland Stre.t.
7. Tha .ubject property h.. 120 feet of frontage elong Linden Avenue and
225 f.at along Upland Str.et, and contains .62 acres of area.
8. The aubject property apparllntly con.ht. of nine (9) .mell lata, as
.hown upon an old subdlvlalon for Harri.burg Hanor.
9. The .ubject proputy Is improvsd with a single famHy detached
dwelling, which applicant proposes to demolish and remove from the .Ite.
10. Appllcant proposu to construct on tha subject property nlna (9)
townhouse atyle dwelling units, with detached gsrages. The dwelling unlta are
proposed to be constructed In two separate bUildings, ana hevlng five nnlts, and
the oth.r having four.
11. Th. plan I ttlch.d to Applicant's Inl tial appl1cI tion rattec tad accan
to the prop.rty from Upland Straat. The plan attached to the amendad
application shows access from Llndan Avenue, and also contdns a different
layout of the dwelling units and garaglS. Slnca the plan submitted with tha
amended application aupercedea tha original plan, the original plan will not be
conlid.red In the decision.
12. Applicsnt proposSl to provide e thirty teet wide utback along Linden
Avenue and along Upland Street, a fifteen feet wide setbeck along tha aouthern
boundary, and approxiwataly twanty feet wide aatback along the eaatern boundary.
13. Appllcant prop ana to eell tha individud dwalling unite and garasu,
end to create an association, which wonld own title to common ar....
14. The R-2 District In which the aubject property Is aitueta has a
aubatantial number of multi-family dwellings of various types, configurationa
and numbera of UUlls.
15. Four lndlvldu.l. who r..lda In the vlclnlty of .ubjact proparty t..tlfl.d
.t tba b..rlnl In oppo.ltlon to tba .ppllc.tlon. Conc.rnl wrr. .xpr....d about
. v.rl.ty of f.ctor., lncludlnl .ce..., ..f.ty and trafflc.
16. 9.lcbard Oruby, a ttorn.y wl th /I.tzl.r, IHck.r.hu, ICIlaUII & Erb,
town.blp .0Ilcltor, .pp..r.d on b.h.lf of the town.hlp .nd p.rtlclpat.d In tha
hudnl.
Conclu.ioDl of Law
1. Slctlon 1141.01(j) of the Zonlnl Ordln.nc. provld.. that wh.n a
.p.clflc UII l. nit tbar parllllttad nor d.nl.d, tb. Zoninl Ourinl Board .hlll
mlk. a d.t.rllllnltlon II to the .llllllarlty or compatlblllty of thl UII In
qu..tlon to p.rlllltted u... In the di.tllct.
2. Appllcant'. propolld UII II Individual, uparately own.d dw.11lnl
unit., tOI.tbar wi th cOllllllon .r..., I. nd thar parlllit tad nor d.nlad In the R-2
Olatrict.
3. Th. Utle of the R-2 Ol.trlct l. "R-2 R..ld.nc. Dlltriet (/lulU-fully
OwaIUnl') . "
4. A multi-famlly dw.lliol I. d.fin.d 10 S.ctlon 1101.41(h) a. ". buildlnl
ulld by tbree or lIIure tamlH.. Uviol lod.p.nd.ntly of eacb otbar and dolnl
their own cookinl Inc1udlnl apartlll.nt hou..., row boUl.. or town bou...."
5. Tbe propolld UII h a mul t.i -famlly dwalHol UII and 11 . illlUar to or
cOlllplUbll with all of the ruld.nt1al u... parmlttad undar S.ctlon 1115.02 of
th. Zonlnl Ordlnanca, nam.ly 1115.02(.)-(d).
6. Th. propolld UII h .lmllar to or camp. U bh wlth tha lIIul u-tamUy
dwalllnl UII. locat.d wlthln thl "-2 Olatrlet In th. Vicinity of th. lubjlnt
proparty.
LOWEll ALLEN TOWNSII] l'
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
ZON r NO II EAll1 Nil UDAIW Ot'
LOWER AI, LEN TOWNSIU I'
Township Municipal Building
1993 lIuml1ll:l1 Av~nul:l
Camp llil1 I'A 17011
NO. 94-3267
TEAM, 19 TEIlM
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
COUNTY
SS.
OF
CUMBERLAND)
TO: Zoning It'!<IL'ing Boarr! of Lnwl!r Alll:ln Townshipl
W., being willing lor certein reasOI1l, to have certified a certain action between LOWl:lr A llun
Township -vs- Zoning Ilearing lJoard of Lower Alll:ln Township
Ilendlng belore you, dll command you that the record of the action afore5llld with all things concern.
Ing IIld action, Ihell be certilied Dnd lent to our Judges 01 our Court of Common Pleas et Carlllle,
within ( 20) ..day! 01 the date hereol, together with this writ; 10 that we may lurther cau.e to
ba done that which ought III be dona eccordlng to the laws and Constitution of thll Commonweelth.
WITNESS, the Honorable
Iltlrolr! E. Sheedy, 1'..1.
our said Court, at Carlllla, P.., the-16th day of
JlJnu
1J4
,19_.
LAWRENCE E. WELKER
I'RO'l'IIONOTAIlY
., ,
,,0
Uy_l.
\1
TRUE COPY FROM f:l ORD
In T.ltlmony whereol I I here unlo sel mv hind
and Ih lINI 01 Id ourt al Carlisle..:. p.!..1.
Thi' {It. 1 .J ()'lUr 1Li:c:..
I ",-7..t:,..
(.--" -~7"
JUII I 71994
, LOWER .&11 .., It.JJNlHIP
v.
I
I
I
I
I
I
I
I
IN THE COURT OF COMMON PLEAS
CUMBERLAND cOUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. q/;~ 3)..(P7 ~~l..J/A..-m-.
LOWER ALLEN TOWNSHIP,
Appellant
ZONING HEARING BOARD OF
LOWER ALLEN TOWNSHIP,
Appellee
L~ND USE ~PPE~L NOTICE
Lower Allen Township, by its attorneys, Metzger, Wickersham,
Knauss' Erb, appeals from the decision of the Zoning Hearing Board
of Lower Allen Township pursuant to the provisions of Article X,
Sections 1001-A through 1006-A, 53 P.B. SSl1001-A through 11006-A
of the Pennsylvania Municipalities Planning Code of 1968, July 31,
P.L. 805, No. 247, as amended, 53 P.B. SSl1001-A through 11006-A.
1. Appellant, LOWer Allen TownShip, is a first-class
t:ownship duly organized and existing under the laws of the
commonwealth of pennsylvania, with its principal office at Township
Municipal Building, 1993 Hummel Avenue, camp Hill, cumberland
county, Pennsylvania 17011.
2. Appellee, Zoning Hearing Board of Lower Allen Township,
is the duly constituted Zoning Hearing Board of Lower Allen
Township, Cumberland County, Pennsylvania, with its principal
office at Township Municipal Building, 1993 Hummel Avenue, Camp
Hill, Cumberland county, Pennsylvania 17011.
3. The subj ect property is an improved parcel of land
situate at the southeast corner of Linden Avenue and Upland street,
having a frontage of 120 feet along Linden Avenue and having a
trontage of 225 feet alonq Upland street, consistinq ~t nine (II)
lots, twenty-five (25) teet by one hundred twenty (120) teet, known
as 801 Upland street, eituate in Lower Allen Township, cumberland
County, Penneylvania. Herbert Fenstermacher, Jr., is the equitable
owner, pursuant to a conditional contract of purchase of said
properties from the legal owner, Hobert H. Ilarkley.
4. On February 15, 1994, Herbert Fenstermacher, Jr., filed
with the zoning Hearing Board of LoWer Allen Township an
Application for a variance from the provisions of section 1115.06
of the Codit ied ordinances of Lower Allen Township, 1985, as
amended, being part of Part Eleven, Title I, also known as the
Lower Allen Township Zoning ordinance (herein "Zoning ordinance")
dealinq with minimum building setbacke for apartment-type
dwellinqs. A hearing was held before the Zoning Hearing Board on
March 17, 1994. On March 22, 1994, Herbert Fenstermacher, Jr"
tiled an Amended Application with the Zoning Hearing Board of Lower
Allen Township requesting a determination under section 1141.01(j)
ot the Zoning Ordinance as to the eimilarity or compatibility ot
townhouse-type units and a variance to minimum building setback
relative to a decision under Bection 1141.01(j) of the zoninq
ordinance.
5. A further hearing was held before the Zoning Hearing
Board of Lower Allen Township on May 1U, 1994. The Zoning Hearinq
Board of Lower Allen Township determined that the Applicant's use
is similar to or compatible with uses permitted in the R-2
-2-
District, and that the yard requirements applicable to a one-family
detached and one-family semi-detached dwelling shall be applicable
to Applicant's proposed use. A copy of the Decision of the zoning
IIearing Board of Lower Allen Township is attached hereto, marked
Exhibit "A", and made part hereof.
6. Under the provisions of Section 90B (a) of the
Pennsylvania Municipalitiee Planning Code of 196B, July 31, P.L.
B05, 6S amended, 53 P.B. S1090B(a), Lower Allen Township is a party
to the proceedings be foro the Zoning Hearing Board of Lower Allen
Township.
7. The action of the Zoning Hearing Boatod of Lower Allen
Township in granting the Application is arbitrary, capricious, and
an abuse of discretion, and contrary to law in that:
(a) The title of the R-2 District "R-2 Residence
District (MUlti-Family Dwellings) does not create any
permitted use in the R-2 District.
(b) The proposed use is not akin to a one-family
detached dwelling since none of the proposed units have two
side yards as required by Section 1104.41 (c) of the zoning
Ordinance.
(0) The proposed use is not akin to a one-family semi-
detached dwelling since five of the proposed units do not have
one side yard as required by Bsction 1104.41(d) of the zoninq
ordinanoe.
-1-
6. The lubject ptopetty la an Imptoved parcel of land aituata In an R-2
Dlltrlct, et the aoutheaateto cornet of the lntarlectlon between Linden Avenue
and Up lend Street.
7. The aubject ptopetty haa 120 faet of frontage along Linden Avenue end
22' f.et Ilong Upland Street, and contalna .62 Icr.1 of ataa.
8. Tha lubject ptopatty appuantly conallta of nine (9) lmall late, 88
Ihown upon an old lubdlvlalon fot Hatrlabuta Hanot.
9. Tha lubject ptoparty Is Imptovad with a alngle family datached
dwalllng, which applicant ptopoaea to demollah and ramove from the alte.
10. Appl1can t propo..a to consttuc t on the subj ec t ptopetty nine (9)
townhou.. Ityle dwelUna units, wi th detached garages. The dwelling unita ate
propoled to be consttucted In two separata bUlldlngl, one having flva unltl, and
the othat having four.
11. The plan attached to AppHcant' s Initial appHca tLon tafhc ted acca..
to the ptoperty from Upland Street. Tha plan attached to tha amanded
.ppHcaUon ahowa acca.. from Linden Avenua, and alao contalna a dlff8tent
layout of .the dwelling unite and guagBl. Slnca tha plan aubmltted with the
amended application aupetcedal tbe otlglnal plan, tha otlglnal pl.n will not be
conlldeted In the declllon.
12. Applicant ptopoaea to ptovlde a tblrty faet wide letb.ck along Linden
Avenu. end e10ng Upland Stteat, a flftean faat wide aetback alonl the aoutbern
bounduy, and apptoxLma tely twenty feet wide ..tback alonl tha all tern boundary.
13. Applicant ptopolea to alll tba Individual dwal11na unltl and aatagee,
end to ct.atl an alaoclatlon, which would own tltl. to common araal.
14. Tba 1l-2 Dlattlct In which tba aubj.ct ptopetty II attuate b88 e
.ubltantlal numbu of multl-famUy dwelllngl of verloua typu, contllUtatLon.
and numbara of unlta.
, .
1'. Four individual. who re.ide in the vicinity of .ubject proparty te.tified
at the h.arinl in oppo.ition to the application. Concern. w.r. expr....d about
. vari.ty of factor., includinl acc..., .afety and traffic.
16. Richard Druby, attornay with Metzger, Wick.r.ham, Knau.. & Erb,
town.hip .olicitor, .pp.ar.d on b.half of the town.hip and participat.d in the
h..rinl.
Concluaiona of Law
I. S.ction 1141.01(j) of the Zoning Ordinanc. provid.. that wh.n a
.p.ciHc un 11 nei thar permitt.d nor denied, the Zoning H..ring Board .hall
uka a d.termination II to the a1mllarity or compatibility of the un in
que.tion to permitted use. in the diltrict.
2. Applicant I I proposed use II individual, IIparataly owned 4~ellinl
unita, tOlethar with cOlDlllon aree., 11 neither permitted nor deniad in the R-2
011 trie t.
3. The title of tha R-2 Diatrict is "R-2 Residence District (Multi-family
Ow.llinl.)."
4. A mUlti-family dwellinl ia defined in Section 1101.41(b) a. "a bUilding
u..d by tbree or more familiu livinl independently of each other and doinl
thair own cooking including apartment house., row houl.. or town bou...."
,. Tbe propoaed uae 11 a multi-family dwelling use and 11 limllar to or
compatibh with all of the ruidential uae. permitted under Section 111'.02 of
tb. Zoning Ordinance, namely 111'.02(a)-(d).
6. The propoaed un i. a1milar to or compatibla with tha multi-famil;
dwell1na u... located within tb. R-2 Dhtrict in the vie1nlty of th. .ubjaat
proparty.