HomeMy WebLinkAbout95-07157
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BOARD OF SUPERVISORS OF
MIDDLESEX Ta/NSHIP
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
MIDDLESEX TCMNSHIP ZOOING
HEARIt-<<l OOARD
NO. 95-7157 CIVIL TERM
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
SS.
COUNTY
OF
CUMBERLAND)
TO: Middlesex Township Zoning Hearing Board
We, being willing for certain reasons. to have certified a certain action
between
Board of Supervisors of Middlesex Township VB. Middlesex Township
Zoning Hearing Board
pending before you, do cannand you that the record of the action aforesaid with
all things concerning said action, shall be certified and sent to our judges of
our Court of Carmon Pleas at Carlisle, within 20
days of the date hereof,
together with this writ: so that we may further cause to be done that which ought
to be done according to the laws and Constitution of this Carmonwealth.
WITNESS, the Honorable Harold E. Sheely, P.J.
our said Court, at Carlisle. Pa., the 15th day of
December
, 19~.
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BOARD OF SUPERVISORS OF
MIDDLESEX TOWNSHIP,
Appellant
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. t/:J - 7/5 7 t!~ 'l7-v,,,-
MIDDLESEX TOWNSHIP ZONING
HEARING BOARD,
LAND USE APPEAL
Appellee
NOTICE OF LAND USE APPEAL
Appellant, the Board of supervisors of Middlesex Township,
by its attorneys, Snelbaker & Brenneman, P. C. files tbis Land
Use Appeal from a decision of the Middlesex Townsbip Zoning
Hearing Board, pursuant to section 1002-A of the Pennsylvania
Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as
amended, 53 P.S. S 11002-A, and in support thereof states tbe
following:
1. Appellant is the Board of Supervisors of Middlesex
Township, the governing body of Middlesex Township, a townsbip of
the second class, located in Cumberland County, Pennsylvania,
with offices at 350 North Middlesex Road, Carlisle, Pennsylvania.
2. Appellee is the Middlesex Township Zoning Hearing Board
("Zoning Hearing Board"), a quasi-judicial administrative body of
the Township of Middlesex with offices at 350 North Middlesex
Road, Carlisle, Pennsylvania.
LAW on'JCll:.
SNELDAICER
lit
BRENNEMAN
3. Rodney E. Jones ("Applicant") is an adult individual
residing at 363 Sherwood Drive, Carlisle, Pennsylvania.
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4. On April 27, 1995 Applicant filed an application with
the zoning Hearing Board dated April 24, 1995 seeking to obtain a
variance for purposes of operating a retail business in the
Residential Farm District ("RF District"). Applicant's
application for a variance was withdrawn subsequent to a hearing
held June 19, 1995 before the Zoning Hearing Board.
5. On August 18, 1995 Applicant filed an application with
the zoning Hearing Board requesting a special exception for
purposes of operating a business in the RF District which
involves the retail sale of custom motorcycle parts.
6. On August 29, 1995, Applicant amended the application
filed August 18, 1995 to include a request for a variance from
the five (5) acre minimum lot area requirement imposed by the
Middlesex Township Zoning Ordinance on commercial uses in the RF
District.
7. On November 8, 1995, a hearing was held on Applicant's
requests for a special exception and variance.
LAW O"lcca
SNELDAKER
III
BRENNEMAN
8. On November 17, 1995 Appellee issued a written decision
granting Applicant a special exception to operate a retail
business in the RF District and granting a variance from the
minimum lot area requirement imposed by ordinance on such uses in
the District. A true and correct copy of the written decision
dated November 17, 1995 is attached hereto and incorporated by
-2-
,.V"'~",:st"._
reference herein as "Exhibit A".
9. The Appellee's decision entered November 17, 1995 was
arbitrary, capricious, an abuse of discretion, not supported by
substantial evidence and contrary to law for the following
reasons, among others:
a. by finding that Applicant's proposed business of retail
sales of motorcycle parts and accessories was of the
same general character as the permitted uses set forth
in Section 6.02 of the Middlesex Township Zoning
Ordinance ("Ordinance");
b. by interpreting the Ordinance in favor of the Applicant
and granting a special exception use when no ambiguity
or doubt in the language of the Ordinance justified
such a construction;
c. by improperly comparing Applicant's proposed use with
other uses permitted by special exception in the RF
District;
d. by improperly comparing Applicant's proposed use with
other uses permitted by special exception in the RF
District for purposes of determining whether the
proposed use was of the "same general character" as the
permitted uses;
by finding the three lots submitted by Applicant for
consideration by the Board were and would be maintained
under applicant's ownership and/or control during the
operation of Applicant's proposed business;
e.
f.
by granting a variance without any evidence, proof or
finding of unique physical circumstances or conditions
on Applicant's premises;
by granting a variance without any evidence or proof by
Applicant of any unnecessary hardship caused by any
physical conditions peculiar to the premises as
distinguished from a hardship arising from the impact
of the zoning regulations on the entire Zoning
District;
g.
LAW orrlcr:.
SNELBAkER
l!l
BRENNEMAN
-3-
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h. by qrantinq a variance without any evidence, proof or
findinq that the physical characteristics of the
premises were such that the land could not be used for
any permitted usa;
i. by qrantinq a variance without any evidence, proof or
findinq that the property is rendered practically
useless or valueless as zoned; and
j. by qrantinq a variance without any evidence, proof or
findinq that the variance was necessary to make
reasonable use of the premises.
WHEREFORE, Appellant the Board of Supervisors of Middlesex
Township requests t~is Court to reverse the decision of the
Middlesex Township Zoninq Hearinq board dated November 17, 1995
respectinq the qrant of the special exception use and variance
for Rodney E. Jones.
By:
Respectfully Submitted,
"0:=- P. C.
Keith O. Brenneman, Esquire
44 W. Main Street
Mechanicsburq, PA 17055
(717) 697-8528
Attorneys for Appellant
Board of Supervisors of
Middlesex Township
Date: December 15, 1995
LAW O"ICEa
SNELDAKER
a
BRENNEMAN -4-
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MIDDLESEX TOWNSHIP ZONING HEARING BOARD
360 NORTH MIDDLESEX ROAD
CARI,UlI,E. PRNNRYLVANIA 17013
DECISION OF THE ZONING HEARYNG BOARD
IN nr: n.."III'., F. .1"IU"'h
ArrLICAT10N NVNBER:
115-ii
BOARD HEHRERli IN ..\TTENDANCE:
Joan Pattison. Kelly
Neiderer. Lois ~esry
FINDINGS OF FACT:
1. The Applicant. Rodney E. Jones. resides at 363
Sherwood Drive and seeks a special exception and variance
to enable him to establish and operate a limited retail
business on propert~. zoned "RF - Residential Farm
Dist.ricts" .
2. Applicant initially filed an Application dated
April 24, 1995, which was withdrawn, aft.er hearing, at the
request of Hr, Jones,
3. Applicant filed a second Application seeking a
special exception for the business use dated August. 18,
1995. 011 Allgust. 29, 1995. Applicant aml!'nded this request
to illc'ludl' II variance from till!' 5 acre minimum lot arl!'a
rfoqlli l'f'm..,,' ,
~. ~ppll"'\I.l ",..1 CrIll.." j"ll!'I'..sl..d PAI'li.." slil'.dRlf'rl
lllal thE' rec'ord 01' the first IIl!'arhlg, held Jlllle 111. 1911ii.
10,..11 d I... i "c'o,'pol'ul ed 1111 n I Ill' .....,.'UI,11 .\ppJ ie'lIt j 011 1'01'
"'11l'''U~l',;; (". f':'oped i I iOIl "'Id E'COIIOIII~., Heat'ing 01' lilt' lIecolld
API,1 i CAt j (,II "'AFo to.. ) d 011 NO\'l!'mbE'1' ll, 1 !l95. The recol'd t hilS
('()lIo,;!l.do;. 01' thE' l!'\'idellce from bolh hearimls t.olll!'ther ...ilh
tI,,, ",.jt It'll A\JpJient Icm. ..\mt'ndment IInd at.iachnt~nts
Ult'relo.
5. Thl!' proposed bllsi ness use wi 11 consist ot', and
sccording to the Applicant be limit.ed at all tinles Lo.
reLail saIl'S of aft.ermarkeL moLorcycle accl!'ssories and
parIs willi o(,'cllsional insLallations ot' such items,
6, Till!' husiness ...11I bl!' operat.ed ..'iLhin thl!' conl'ines
of art l!'xisting 3 door gara!!e buildin!! on a tract owned by
thl!' APplicAnt. hy dped daled 1-6-94. depicted as Lot B 011
till' pllln atLAchl'd to thl' Application.
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7, Thl!' Applicant testi l'1ed thAt two other trActs -
onl!' o~nerl bf him and depicted AS Lot A - and one titled to
his mother depicted AS Lot C- werl!' and would be maintained
under ApplicAnts o~nftrshlp And/or control so long as the
bll"IIlt'IIR "'All ol,...'nlllllJ. Thill<. ApplicAnt test.il'led that
110',' I,'lltl 111'"'' of th.. I'I'OloE'I'I,\' "')dch wall nvallallle /II the
",it., WAil t.Ill!' 10lAI 01' Loll< A. B. C' 01' sl IlJhtl~' IE'HS Ulau -l
",'f'ell .
8, Thl!' Township Supervisors appeared by counsel And
".'.'1:>",..01 I h, 1'..qllE'~1 ,,~, I.., I II!! i 1"'01l~ j s I PII. ,<j I h I h.. E".I'rl!'''l<
pro\'I..lolIIl 01' lilt' ol'rllIlItUI'E'.
!l. ~.. i ilol"/I'1 II!! J'e.. i dellt II apI"'ArE'd Aud exprl!'ss..rl
sUPI'ol'l I'or till' I't'qut'at. ludit'AUni lhal Applicanl ~AS A
"good neighbor". had cleanl!'d UI' the propertf, and was
ARkin!! 1'01' a \"n' Ilmit.pd looIRiuE'!ls ...hleh he uE'..ded bec/lllse
An At.'~'I"en' hAd Iml'AII,.,d his Ahill!.y Ie, ...or'k E'lse,,'hel'e,
]0, ThoM! ueighbol'" ...ho llPPE'AI'E'd It'stii'ied thAt AS
vroposed the limited business ...ould not adversely affect
their use and en,lo~-ment of their property.
11. The Board finds that as proposed Applicants
business will not be detrimental to the area or in
conflict with other existing land uses.
12. The several lots conjoined under common ownership
for purposes of determining the minimum lot area available
were established by subdivision prior to enactment of the
5 acre area requirement.
13. The Hiddlesex Township Planning: Commission
recommE'nded condltionA] approval of thE' AppliCAnt's
l'PqUC"'" t .
j.t. .~., ~\ld'(H' (II 1~;IJ pI" 1hltilt~lt..d IId\t-I.~t. JlulJ,u'l
frono I h.. Appl I "Aul 's PI'opoSE'd IJIls i lIess "'/IS present ed nor
'...I~ ;tll~ t-'\jcJfl,U'':- uf"PJ'(arf ll.lIt I Ill" ~itF ill qllfl'stiou \\'Il!oO loo
F.>",,']] '" IIIAd"'JIIRIE' rill tht liS" I'I'uposeo.
r.ONr.LUSJON!l:
1. Tht' zonin!! code authorizes special exception uses
which III till' opinion 01' thE' BOArd RI"E' of the "sRme llenerAl
ChRI'lwtE'r" AS listl!'d permitted uses and will nol be-
detrimentAl. IZolllng Code ~ Ii.n-l A,)
2. In determinin!! thE' exlent of restrictions "pon
prnp.rty Ul<e, ordlnnnc~ provisions. as to which some doubt
exists, must be interpreted ill f'a\'or of' the propert\'
o...npr, IHPC ~ Hoa.1 I
,
DECISION:
, ,
"
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a, The Zonin, Code neither defines the term "nses of
the same ,eneral character". nor otherwise limits this
lanllualle and the Board concludes that the term was
intended to afford property owners flexibility: and. by
impllratlon. afford th~ Zoninll Board broad discretion to
lll'alll s!,PI'inl p:\l'Pptiolls for a \'arlet~' of unspl'cil'led uses
in apprnprl/tte .~Ircumstances.
-I. The Zunin!! Code specifical1~' authorizes a variety
of conunerc:lal and indnst.rial uses b~' special exception
jllclnoljrl~ ..."",,,111-. .'..t II I I la"'1I 111111 !lardl'n "1I1e... and
au,,1 Ion tll'"""". /?onnln!!, r.odl' = fl.ll-l I... 0., H. I
:f. Tlit' 1\"....11 "l)lIc"ludt-s th"t lilt' u)'diult,u:t- pJ'c,,"isio..
1'01' "uReR ul' II,.. ''''IDIP !lener'al charnctel''' indicates that
thl' llstln!l of specific permitted and special exception
n"el< WRR 1101 inll'lldE'd t.n bp ~xhaust I\'e or all Inclush'p..
G, Tht- ZUllin!! BOIIl'd l'onclud~s that the Applicants
proposed IIHE' IR I.'arrallted b~- interpr~tAtion of t.he
ordinance as aforesaid and with appropriate conditions is
neither detrimental nor inconsistent with the Code or the
public welfare, (Zoning Code * 17.07 B.2,41
7. The Applicants property is sub,tect to a physical
hardship in that it comprises several preexistinll lots
",'hich do not meet lot area requirements,
8. The llrant of a variance on condition is
appropriate to alleviate the aaid hardship and will not
alter the essential character of the neillhborhood.
(Zoninll Code # 18.061
IhtloOt"d 1'1101, fill- r(l'r-~C"lila~ f-illrllll~" HUt! l'Olll'juSJnll"".
/lnd ""t,J,,,'1 1<, II,~ Iwrl'illal'1,'r ".)ndlt iOIIS. lh~ Appllcllnt
is h~t'eb~' !!I'ant~d a special pxception to operllte a limited
I'plldl ""Ip 111";\111''''''' I.'llhln tlu- E':\I",' illl' l/lIrllllP fllcilll\'
10('"I,"u nil l.llt Il of t.he Plall sllbmi t.ted and /I \'ariance from
the mlnimnm lot arPII requlremen\" The Raid sppcillJ
l'lil't'pt.inn "lid \'IlJ'iancp arp Rnb.iE'ct to thp followinll
l'<lf,cJi1h)nR "lid Ilmlt.atlon,,:
II. Thp IIfurl'slIid special exception and variance are
limited to Lht' Appli~ant and shall nut bp trRnsfe~lIble or
assignablp.
b, Thp Appllcllnt shall limit his bllsiness activity to
the sale. display and occasional installation of
aftermllrkel mntorcycll' aC"t's~orles and parts. The
Applicllnt'" prt'lIlise~ And uusiness shall not be used 01'
pxtpnd~d In IPhPral motorcycle or \'ehiclp service and/or
1'('pAI r.
"
~o oLher business activit, ahall be cnrried on nor ahall
Lhe speclaJ exception or vnriance be expanded or modified,
c. Bllslness houra for customers. delivery and
ah j "mplIl III". II I,.. I 1m Ill'lI 1,0 t h.. pl' 1'1011 het ""('II !l: 00 A, ~l,
HIIII 5:111' r.~I,
d. ,~JJ 1ollHlnl'RR shnlJ bl' 1I0lll' IOlthln thl' ellllltinlf
t'/ld] It \ I loot B - dl'ed daLed 1-6-!l4 I /lIId 110 ollt.door
actl\'lt~. Inc:!Ill1lnl st.oralfl' or IIIRpnRnJ shall be permitted,
to. A.,,,licalll 1;1I1t]) "I'P('\ ollJ~ It t<ill~()to Ill1lilfhLt'd
to:\ttollul "i~II. 11111 "I'....Il'I' 111..11 III ...qllal'" I'l'l'l ill al'l'H
...Ili..., ~1",11 L.. Rl'f'I""d 10 th.. IndJdin!!.
1', AppJ J"/l111 shall retain o\o"l1ership or control 01' all
Ih~l'P IUtN k~ Indic/lted on thl' plan submittl'd and shall
1101 I'1I111,PI' I<lIhdi\'idt' or Sl'VRI'Rte lht' o'''''l'rsllip.
J",~."""loII 01' ('onl "01 t 1It'I't'o1' dUl'in!! ll,.. p..doll il, Io'hlch
AppJ kRllt ,,1...1 J oVl!l'ale his IlIIfoJnt'ss.,
g. No painting or platinl ot' customers vehicles or
parts shall be done on the premises,
h. No wastes, solvents or fuels shall be disposed or
discharled on site at any time.
The fore,oing conditions and limitations shall be
continuing and permanent, and upon failure of Applicant to
comply shall warrant such enforcement action andlor
termination of the special exception use as the
circumstances warrant.
HJnDLRSEX Tn~~RHIP ZONTxn
Ilr~rT':r. p.n';IW,
~o\'''lIIh''l /t ~, !'If!!j
(;.:.~ It 7).u tL.u-vt...
JORY, P/lttiRon. ActJnlf ChRlrpl'r!;oll
A:,Y PERSOt\ MlnRIR\'En BY THF. nF.C'JSIOt\ OF THF ZONING HEARING
BOARD HAY APPEAL TO THE COURT OF THE emmo:.; PLEAS OF
Cl'~IBERLAt\D COllNTY, THE APPEAL ~1L'ST BE FILED WITHIN 30
DAYS FROH THF: DATE OF THIS DECISION,
"
CERTIFICATE OF SERVICE
I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have,
on the below date, caused a true and correct copy of the
foregoing Notice of Land Use Appeal to be served upon the persons
and in the manner indicated below:
FIRST CLASS MAIL. POSTAGE PREPAID. ADDRESSED AS FOLLOWS:
Edward W. Harker, Esquire
One West High Street
Carlisle, PA 17013
Solicitor, Middlesex Township Zoning
Hearing Board
John M. Glace, Esquire
407 Front Street
Box 12027
Harrisburg, PA 17108-2027
Attorney for Applicant
Rodney E. Jones
/
1i(1n~
Keith o. Brenneman, Esquire
SNELBAKER & BRENNEMAN, P. C.
44 West Main Street
P. O. Box 318
Mechanicsburg, PA 17055
(717) 697-8528
Attorneys for Appellant
Date: December 15, 1995
LAW o,.'lca.
SNELDAKER
6
BRENNEMAN
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ORIGINAL
BOARD OF SUPERVISORS OF
MIDDLBSEX TOWNSHIP,
Appellant
I IN THE COURT OF COMMON PLBA5
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I
I No. 95-7157 CIVIL TERM
I
I
I LAND USE APPEAL
I
I
I
vs.
MIDDLBSEX TOWNSHIP ZONING
HEARING BOARD,
Appellee
vs.
RODNEY E. JONES,
Intervenor
.
.
.
.
.
.
INTBRVENOR'S BRIBF IN OPPOSITION
TO THB LIUfD USB APPEAL
The Intervenor, RODNEY E. JONES, by and through his attorneys,
Stefanon & Glace, submits this Brief in opposition of the Land Use
Appeal filed in the above matter as follows:
I. PROCBDURAL HISTORY
On April 27, 1995, RODNEY E. JONES submitted an
application for a use variance to the Zoning Hearing Board of
Midd1eeex Township requesting that he be permitted to sell after-
market chrome motorcycle accessories and parts at hie pre-existing
three (3) bay garage in the rear of two (2) lots located at 363
Sherwood Drive, a area zoned as a residential farm dietrict. A
hearing relative to this application was held June 19, 1995.
1
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Prior to disposition of the above variance request,
Applicant Jones submitted a second land use relief application on
July 28, 1995, which was amended by agreement of parties on August
18, 1995 requesting a special Exception pursuant to 6.04A for the
Zoning Ordinance to permit a land use eimilar to those special
exceptional uses delineated by the ordinance which are of
commercial nature.
On Auguet 28, 1995, the Planning Commission of Middlesex
Township recommended approval of Applicant's Special Exception with
two contingent provisions: that the pre-existing garage not be
expanded~ and, that the Zoning Hearing Board grant a variance of
the 5 acre minimum requirement for special exceptional uses in a RF
zone on August 29, 1995. Applicant requested that his second
application for land use relief be amended to include a size
variance application as well as the pendant special exception
request.
On November 8, 1995, Applicant.s second application for
zoning relief requesting approval of his request for epecial
exceptional use and his size variance request was heard by the
Zoning Hearing Board of Middlesex Township. At that hearing, the
testimony of June 19, 1995 hearing was incorporated (NT of November
8, 1995 hearing p7 ls 3-6) and new evidence was presented.
At the conclueion of the November 8, 1995 zoning hearing,
Applicant closed the record. The Zoning Board granted applicant's
Lane Use Relief subject to eight (8) restrictive terms and
conditions (see November 17, 1995 Decision). The Supervisors of
2
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Township of Middlesex timely appealed and Applicant filed timely
Notice of Intervention. This brief is submitted in support of his
opposition to the Board of Supervisor's appeal.
II. PACTS
Appellant did not, through the course of the instant land
use relief requests, present any facts in opposition to the
request. More specifically, no facts that purposed use would
impact negatively the use and enjoyment of surrounding area were
presented. Accordingly, the following facts, as well as all other
evidence presented by Applicant, are deemed admitted without
rebuttal I
1. Lots A and B of 363 Sherwood Drive and 367 Sherwood
comprise approximately four (4) acres (N.T. November 8, 1995
hearing, (hereinafter Hearing II), p. 11, le 12-18).
2. Applicant is owner of Lots A and B of Sherwood Drive (eee
deeds attached to both applications) and his mother is the owner of
367 Sherwood Drive and will transfer that property to him (N.T.
Bearing II, p. 13-14). Said conjoined properties entail
approximately four (4) acres (N.T. Hearing 1 pp 9-10, ls 19-1) as
described in paragraph one.
3. Applicant built a 42 foot by 60 foot, 3-bay enclosed
garage on Lot B of 363 Sherwood Drive (N.T. Bearing II, p. 20 ls.
9-l0~ N.T. ps 22-23 ls 23-6). The garage is barely visible from
Sherwood Drive (N.T. Hearing I p. 17 ls 16-20) (testimony of Frank
3
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Gall' Zoninq Officer) and p. 28 ls 6-18).
4. At both advertised hearinqs, only three (3) neiqhbors
appeared and all testified that the purposed use would not be
detrimental to the neiqhborhood and that Applicant had, in fact,
thorouqhly cleaned up and rehabilitated the 363 Sherwood Drive
properties (N.T. Hearinq I, pp 16-18 and p.33, also see Zoninq
Board Decision findinqs of facts at paraqraph 9).
S. Applicant's purposed use is a business location for a
franchise to sell after-market, customized motorcycle parts and
will be totally enclosed by the pre-existing qaraqe. Zoninq
compliance is a pre-requisite of this franchise award. Applicant
is disabled from a motor vehicle accident and, as a motorcycle
hobbyist, seeks to turn his avocation into an income producinq
activity within his physical restrictions.
OVer half of his
business will be conducted off-site (see N.T. Hearinq I, pp. 6-1S,
N.T. Hearinq II pp. 7-10).
6. Applicant purchased Lots A and B of 363 Sherwood Drive on
January 6, 1994 from his parents who had owned them since 1972 and
1978 (see deeds attached to applications). Both dates of purchase
by Applicant's parents predate the enactment of the zoninq
ordinances of Middlesex Township at issue.
4
QUlB~JO.B or LAN
1. DID THB MIDDLBSBX TOWNSHIP ZONING HHARING BOARD
MANIFBSTLY ABUSB THBIR DISCRBTION OR COMMIT BRROR OF LAW
IN GRANTING APPLICANT'S SPBCIAL BXCBPTION.
Suggested Answerl No.
2. DID THB MIDDLBSBX TOWNSHIP ZONING HBARING BOARD ABUSB ITS
DISCRBTION IN GRANTING A MINIMUM LOT SIZB VARIANCB.
Suggested Answerl No.
3. IS THB GRANT OF RBQUBSTBD LAND USB RBLIBF RBASONABLB IN
LIGHT OF ALL THB BVIDBNCB AND THB TBRMS AND CONDITIONS
IMPOSBD BY THB ZONING HHARING BOARD.
Suggested Answer I Yes.
5
pronerties. Inc. v. Franklin Park Borouah,
Pa. Cmwlth
..,_-.t,."t_""''''fl_~n.t'''......~","""....,,,,,".,
~. ......".. ._.~-...............,~.
IV. LBGAL AR01JKD':
A. TO HIDDLBSIX TOIfIISBIP 108180 BIARIHO BOARD
~I'ISTLY ABUSI TBIIR DISCRlTIOR IR ORAHTIRO
APPLICART/IRTIRVBROR'S SPICIAL IXCIPTIORAL U81
Appellant argues the Middlesex Zoning Hearing Board by
their decision to grant a special exceptional use and,
inferentially, the Middlesex Planning commission by their earlier
recommendation abused their vested discretionary powers. The scope
uf review of a zoning hearing board decision is limited to
determining whether the board committed manifest (emphasis added)
abuse of discretion or erred as a matter of law precision Bauities
, 646 A2d 756, 758 nl citing Vallev View Civic Assn v. Zonina
Board of Adiustment, 501 Pa. 550, 462 A2d 637 (1983). "Abuse of
discretion" will be found to exist only where the board's findings
are not supported by substantial evidence Budco Theaters. Inc. v.
Zonina Hearina Board of SDrinaettsburv TownshiD, 159 Pa. Cmwlth
257, 632 A2d 1072, at 1074-1075 (1993).
Because this Honorable Court has elected not to request
additional evidence, the only evidence at bar instantly is the
testimony of Hearing II including the incorporation of ths
testimony of Hearing I. At neither proceeding did the Appellant
present substantive evidence; although at both hearings counsel for
AppellKnt was availed the right of cross-examination. Presently
however, Appellant choosee not to attack directly and inferentially
Applicant's evidence and its persuaeion (with attached conditions)
of the Planning Commission and Zoning Hearing Board. The Appellant
6
........~...,.. .. .~#,..." .;."..."........_-~~~~. '."
submits only that the Zoning Board's grant of special exceptional
use is legally deficient and therefore the issue of adverse effects
to community's health safety welfare is to not be considered see
Appellant's brief ps 5-6 citing Bruni v. Zonina Hearina Board of
Plvmouth TownshiD, 52 Pa Cmwlth 526, 416 A2d 111 at 112 (1980).
Applicant argues that the Zoning Board afforded to
Applicant improper flexibility in its interpretation of 6. 04A
permitting land uees "of the same general character as those listed
as permitted uses and which will not be detrimental to the intended
purposes of these districts".l
However, section 6.04 at
subsections B through P further describes such special exceptional
uses which the ordinance enactors specified as permissible special
exceptional uses including inter alia: commercial amusement and
recreational establishments (6.04K)J lawn and garden equipment and
supplies sales and service (6.04 O)J commercial kennels (6.04 I)J
commercial riding academies and stablee (6.04 H)J auction house for
household and other goods (6.04 M), et ale Clearly the ordinance
enactors did not wish to exclude every commercial usage in the
Residential Farm District.
Also, just as clearly, the Zoning
1The Zoning Hearing Board found specifically:
The Zoning Code neither defines the "uses of
the same general character" nor otherwise
limits this language and the Board concludes
that the term was intended to afford property
owners flexibilitYJ and, by implication,
afford the Zoning Board broad discretion to
grant special exceptions for a variety of
unspecified uses in appropriate circumstances.
(Paragraph 3 of Conclusions, November 17, 1995
Decision)
7
~... ,:~,,,..f'" ,...,..,..... -, '. .",,,,,.,,.~ -. ~"'.~
Hearing Board i8 8pecifically ve8ted by thi8 ordinance with
di8cretionary latitude to determine the general character of the
purpo8ed 8pecial exceptional U8e.
Appellant 8tate8 flatly that the Zoning Board'8 above
exerci8e of latitude was erroneOU8 and would a88ign to the zoning
Board the duty of 8trict con8truction of its zoning ordinance.
Further, Appellant 8eek8 to re8trict the Board from referring to
its delineated 8pecial exception U8e8 6.04 B through 6.04 P when
determining what i8 the "8ame general character" of the permitted
U8e8 (6.02). By such rea80ning Appellant thereby could assert the
Zoning Board was restricted since the enactment of ordinances in
1989 ab initio from exerci8ing any discretion whatsoever in
permitting any special exceptional use under 6.04A. If true, this
blanket restriction therefore begs two (2) questions:
1. Why was Section 6.04A included in the ordinance at
all?
2 . Could any special exception be granted under Section
6.04A since Appellant contends it is merely an
additional recital of Section 6.02 (permitted
uses)?
The plain language of a statute cannot be disregarded if it is free
and clear from ambiguity 1 Par C.S.A. 51921(5) (Statutory
Construction Act of 1972).
Not only does Section 6.04A
specifically vest latitude with the local agency, it does not
proscribe comparison with 6.048 through 6. 04P when determining
epecial exceptional uses that are of the "same general character"
as permitted uses.
8
..- ~ _.._-,~.....-<..;-........~-.~.,,,,..:.,~~~.~-~.,,.:,:-,
.
Accordingly, there is no compulsion to disregard the
discretionary aspects of Section 6.04A in light of 6.02 as
appellant argues. Further, no legislative history of ordinance is
introduced to aid this Honorable Court's interpretation.
Appellant's strict constructionist argument begs this court to
disregard Section 6.04A as without consequence and the Zoning
Board's ability to employ discretionary comparative application of
that section. Such delllAnd is tantamount to requiring a perRon
blind from birth to be able to use and understand colors.
Appellant seeks to proscribe the Zoning Board's discretionary
ability of comparison.
Further, Appellant looks to Section 6.01, the statement
of intent of Residential Farm Dietrict, and also seeks a strict
construction interpretation i.e. the district is for reeidences and
farms2.
However, this statement of intent recognizes that the
zoning district should not be totally proscriptive of all other
land uses. Section 6.01 states specifically that "Dredominant
(emphasis added) land use" of the district is residential and
agricultural.
The statutory requirement that the Zoning Hearing Board
and the Planning commission be composed of local municipality's
citizens is well conceived. Those individuals are most immediately
affected by their decisions and they are also the most
knowledgeable of the exact nature of every aspect of the district.
2Although the Appellant does admit some commercial uses are
permitted by special exception.
9
The Planning Commission's recommendation and the Zoning Hearing
Board's grant of the special exception speak for themselves as a
vox DODuli tempered with an application of the law.
Appellant's demand for a strict construction of the
zoning ordinance is not appropriate. The Pennsylvania Supreme
Court recognized that long standing view in Bakerstown Container
CorDoration v. Richland TownshiD, 508 Pa. 628, 500 A2d 420 at 421-
422 (1985) restating that permissive terms in zoning ordinances
should be construed expansively so as to afford landowner the
broadest poseible use and enjoyment of hiB land. Language of
zoning ordinances should be interpreted where doubt exists in favor
of the property owner and against any implied extension of
restrictions upon one's property Isaacs v. Wilkes-Barre Citv ZoninCl
HearinCl Board, 148 Pa. Cmwlth 578; 612 A2d 559 (1992), also see 53
P.S. 510603.1
Appellant also asserts that the actual structure of the
ordinance is an aid to interpretation as Buggested by Robert S.
Ryan in pennsvl vania ZoninCl Law and Practice at 54.21. This
interpretation is, of course, merely advisory. Such reasoning
cannot instantly be strictly applied because the Middlesex Zoning
Code provides for special exceptional uses in a RF zone for farm
equipment and sales at 6. 04N, Bed and Breakfast Inns at 6. 04P,
public buildings and governmental institutione at 6.04D, and
auction houses at 6.04M but also specifically provides for euch
uses as permitted uses in a Commercial Highway District at,
seriatim: Sections 10.OJH; 10.OJL; 10.OJK; 10.OJA. Therefore, at
10
11
least for purposes of interpreting the Middlesex Zoning Ordinances,
the named inclusion of a permitted use in the higher zone was not
intended to exclude it as a special exception use in the lower
zone. Strict application of Mr. Ryan's interpretation of the
ordinances in Middlesex Township would lead to chaos. One can
surmise either the enactors of the Middlesex ordinance did not know
about Mr. Ryan's structural interpretation guidelines or they chose
to ignore them.
Instantly, appellant's argument is reliant only on his
suggested interpretive reading of the ordinances. As such, he has
waived any argument that the Zoning Hearing Board's decision is
contrary to the community's health, safety, and welfare. This
euggested interpretation involves a strictly construed cross-
referencing of multiple ordinance sections. Permitted use must be
afforded the broadest interpretation so that landowners may have
benefit of least restrictive use and enjoyment of their land Human
Services Consultants. Inc. v. Zonina Hearina Board of Butler
TownshiD, 137 Pa. Cmwlth 594,587 A2d 40 (1991). Permissive use of
the land is not to be construed as the exception and restraint must
be specific and a valid and reasonable exercise of police power.
Amcare 2 Partners v. Zonina Hearina Board of Haverford Townshte,
148 Pa. Cmwlth 112, 609 A2d 887 (1992). Accordingly, becauee
Appellant seeks this court to impose an unduly strict
interpretation of the Zoning ordinances without presenting any
legislative history nor any evidence to overcome the substantial
evidence presented in favor of the special exception, the Appellant
has failed to prove at law manifest abuse of discretion by the
Middlesex Hearing Board in grant of the special exception.
B. TBB MIDDLBSBlt ZONING BORING BOARD DID NOT DUSB
ITS DISCRBTION IN ITS GRANT OF A MINIMUM LOT SIZB
VARIARCB
Appellant's second argument is eimilar to its preceding
argument; no contrary evidence is presented, but Appellant contends
the board's action was erroneous at law and is an abuse of
discretion because it wae premised on findings of fact flawed at
law.
The eize variance granted by the Zoning Hearing Board permits
Applicant's special exceptional use on property less than 5 acres
as required by Section 6.05 of the ordinance. In reviewing appeals
from zoning decisions, appellate courts may only determine whether
the zoning hearing board committed manifest abuse of discretion or
error of law South Whiterford Associates. Inc. v. West Whiteland
TownshiD, 157 Pa Cmwlth 387, 630 A.2d 903 (1993), appeal denied 647
A.2d 905.
It is should be noted that for sake of this argument,
Appellate asks this Honorable Court to consider only Lot B,
consisting of 1.47 acres, of 363 Sherwood Drive because the garage
which is proposed to enclose the special exceptional commercial
enterprise is located in that deeded tract. After review of all
evidence, the Zoning Board properly chose not to employ such a
myopic view. The board also included both Lot A of 363 Sherwood
Drive and 367 Sherwood Drive (property owned by Applicant's mother
12
". . . conjoined under common ownership for purposes of
determining the minimum lot area available [and] were
established by subdivision prior to enactment of the 5
acre area requirement.
but to be transferred to him)... see Section II Facts of this
Brief at paragraph 2. The Zoning Bearing Board's Findings of Fact
(paragraph 12) specifically found that all three (3) properties
werel
Because the Zoning Mearing Board reached the finding of fact that
there was a conjuncture of all three (3) propertiee amounting to an
area of slightly less than four (4) ares by common ownership that
pre-existed the zoning ordinances, Appellant's contention that only
1.47 acres are involved is improper and not supported by the
record.
Further, Appellant's instant argument is couched in objections
to Applicant's purposed use (enclosed, partial on-site sale of
after market motorcycle parts) .
Such argument is more
appropriately directed to the first issue wherein the Zoning
Bearing Board granted a special exceptional use for that limited
purpose (with 8 restrictive conditions). This second issue at bar
should properly only address the lawful propriety of the grant of
the Applicant's dimensional variance. Accordingly, Appellant' s
reliance upon Washinaton Townshio v. Washinaton Townshio zonina
Bearina Board, 27 Pa Cmwlth 510, 365 A.2d 691 91976) and Miller v.
Zonina Hearina Board of Ross Townshio, 167 Pa Cmwlth 194, 647 A.2d
966 (1994) is misplaced. Those cases involve use variance requests
13
not dimensional variance requests. Special exception use is
allowed by right unlike a grant of variance Gatti v. Zonina Bearina
Board of Salisbura TownshiD, 117 Pa Cmwlth 399, 543 A.2d 622
(1988) . Assuming arauendo that this Honorable Court overrules
Appellant's first argument objecting to the special exceptional
use, then the conjoined properties use is no longer at issue, only
the grant of the size variance to the dimensional parameters of
Section 6.05.
Therefore, for purposes of this issue, Section 18.06A of the
ordinance (reiterating 53 Pa C.S.A. 5 10910.2, 5910.2 of the
Municipal Planning Code), must be applied as it relates only to the
size variance granted November 17, 1995 by the Zoning Bearing
Board. A dimensional variance applicant must establish to the
satisfaction to the zoning hearing board the following: that the
ordinance imposes unnecessary hardship on the particular property~
the hardship results from the unique physical characteristics of
the property~ that granting the variance would not adversely impact
on the health, safety~ and welfare of general public~ that the
hardship is not self-inflicted~ and that the variance is the
minimum that will afford relief Board of SUDervisors of UDDer
SouthamDton TownshiD v. Zonina Bearina Board of SouthamDton
TownshiD, 124 Pa Cmwlth 103, 555 A.2d 256, (1989).
Instantly, there is no evidence whatsoever of negative impact
to the health safety and welfare of the general public. To the
contrary, witnesses have testified that Applicant actually has
improved the conjoined properties. Additionally, the special
14
exceptional use of after-market motorcycle part sale will be
entirely self-contained and occur mostly off premises.
Therefore, the court must examine tho hardship presented by
the Applicant. This hardship again is not the above described
limited commercial enterprise, but the pre-existing conjoined
subdivided properties of slightly less than four (4) acres as an
ordinance bar to that special exceptional use. This hardship was
imposed uniquely to the conjoined properties by the enactment of
the zoning ordinance after the purchase of those properties.
Generally speaking, a dimensional variance requests are more
sympathetically received than use variance requests and are viewed
as more properly within the purview of the local agency. See
generally Rvan. Robert S. Pennsylvania Jury Law and Practice 55
6.1.10 and 6.3.1. Pre-existing lot size was directly addressed as
a hardship by a Commonwealth Court panel in Searles v. Zonina
Hearina Board of citv of Easton, 118 Pa Cmwlth 453, 545 A.2d 476
91988), wherein the owner of two undersized lots' denial of a size
variance to construct two singly-family residences was reversed.
Judge Craig held that lot size may be construed as a physical
characteristic subject to unnecessary hardship if the property
cannot be used for any permitted use or used for a permitted
purpose only by incurrence of prohibitive expense, id at 478.
Because a special exceptional use is an allowance by right not by
variance grant (see Supra, Gatti), denial of that use by right
solely because of size restriction creates an undue and non-self-
inflicted hardship.
15
16
Appellant contends that other uses are available to the
enclosed garage and therefore a size variance is unnecessary.
These presumptively permissive uses as described by Section 6.02
are not of record. Applicant, but for residing on Lot A of the
conjoined properties, is not a farmer. The private garage existing
on Lot B of the conjoined properties is an accessory use (See
Section 6.03A) that has been historically used for Applicant's
personal motorcycle storage and repair. The Zoning Hearing Board
was persuaded by all the evidence that Applicant's franchise to
sell after-market motorcycle parts from this enclosed garage is
Applicant's right by special exception. Appellant analogizes these
pxesent circumstances with the Commonwealth Court ruling in Tucker
v. Zonina Board of Ad;ustment of Pittsburah 62 pa Cmwlth 615, 437
A.2d 499 (1981) which reversed the trial Court's grant of a size
variance to convert a carriage house into a single family
residence. In Tucker, the applicant sought dimensional variances
for front, rear, and side restrictions to substantially expand a
carriage house and asserted that his hardship was the
undesirability of the carriage house as it existed and that
building's unfeasibility of original purpose. The Commonwealth
Court held that reconfiguring the carriage house to a much larger
single family residence was not supported by a very limited record
presented by the applicant in Tucker. Presently no reconfiguration
of the garage is necessary and the lower record is substantial.
Both the Planning Commission and thereafter Zoning Hearing Board
required that any enterprise be self-contained in the garage and
specifically proscribed expansion of that building. Also, in
Tucker, applicant specifically did not claim that there was a
unique physical hardship due to pre-existing property boundaries,
but merely that the existing carriage house was anachronistic.
Therefore, while the Tucker case presents facts wherein the
Commonwealth Court did not permit a size variance due to the
available use of the property, there is a substantial factual
variance to the case at bar.
Appellant's present argument, while re-addressing its
objections to the use granted by special exceptions, does not
negate the Zoning Board's conclusion that a pre-existing undersized
lot is a unique physical hardship (see November 7, 1995 decision at
Conclusions, paragraph 7). This conclusion is supported at law.
Undersized lots constitute physical circumstances which may entitle
a property owner to a size variance provided the other variance
criteria are met. N. Pualiese. Inc. v. Palmer TownshiD Zonina
Hearina Board 140 Pa Cmwlth 160,592 A.2d A.2d 118 (1991). Further
the pualiese decision provides that undersized lots existing prior
to the enactment of a zoning ordinance constitute "non-conforming
lots", id. at 120-121. The right to develop the undersized lot is
not personal to the owner of the property at the time of the
enactment of the zoning ordinance, but is a right which runs with
the land and vests in subsequent owners, id. at 121 citing Parks ide
Associates v. Zonina Hearina Board of Montaomerv TownshiD, 110 Pa
Cmwlth 157, 532 A.2d 47 (1987). Consequently, Applicant's purchase
17
in 1994 of Lots A and B from his parents cannot be construed as a
self-creation of his own hardship.
Accordingly, the Zoning Hearing Board's decision granting
applicant's size variance to the conjoined properties is not an
error of law nor a manifest abuse of discretion.
Further
Appellant's arguments relative to this issue which re-address
Applicant's purposed use through special exception are misdirected.
C. THE GRANT OF THE REQUESTED LAND USE RELIEF IS
REASONABLE IN THE LIGHT OF ALL THE EVIDENCE AND
TERMS AND CONDITIONS IMPOSED BY TBE ZONING BEARING
BOARD
A third issue must be briefly addressed. The Zoning Bearing
Board is statutorily empowered to attach conditions to the grant of
a special exception or variance see 53 Pa C.S.A. 510910.2(a)(5).
These imposed conditions may be reviewed if they are unreasonable,
arbitrary or oppressive. But, if the evidence indicates there may
be an adverse or potentially adverse effect to the land use relief
granted, the Zoning Hearing Board is obligated to impose conditions
to reduce any such impact. See Edaemont TownshiD v. SDrinaton Lake
MonteBsori School. Inc., 154 pa Cmwlth 76, 622 A.2d 418 (1993).
Instantly, the Zoning Hearing Board has imposed eight (8)
specific conditions, all which are limiting and subject to
enforcement. These conditions dir.ectly address the health, safety
and welfare impact as well as bar Applicant from transfer or
assignment of the special exception and size variance or from
18
19
subdividing or separating ownership of the conjoined properties.
Applicant has agreed of record to abide by these restrictive
conditions.
The imposition of these restrictive conditions speaks for
itself as to gravity of the reflection and consideration of zoning
Bearing Board prior to grant of the requested land use relief.
Therefore, the imposition of these specific conditions must be
weighed by this Honorable Court in assessing if there was a
manifest abuse of discretion by the Zoning Bearing Board. The
imposition of these conditions is clear indication that the zoning
Bearing Board fulfilled its obligation and tendered relief that was
lawful within the ordinance, protective of the general public, and
not an abuse of discretion.
"- ',.. .._..._-,.......,.~..,..'_._...~",.."" ,.'
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t
c.....,...,........'-
V. COBCLU8IOB
From the foregoing reasons, the Board of Supervisors of
Middlesex Township appeal requesting reversal of the grant of
Applicant's special exception and size variance must be denied.
RESPECTFULLY SUBMITTED,
By
Joh . Glace, Esquire
STE AN 'GLACE
123 3
407 N th Front street
P.O ox 12027
Bar lsburg, PA 17l0B-2027
(717) 232-0511
DA'1'B:
20
RESPECTFULLY SUBMI'1"1'BD,
,.n_\t.o.......".._-*'__.......... ~ .
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CIRTIFICATI OF 81RVICI
The undersigned hereby certifies that, on the date below she
served true copies of the Intervenor's Brief in Opposition to the
Land Vse Appeal on the persons listed below, at the addreases set
forth, by Band Delivery:
Edward W. Harker, Esquire
One West High Street
Carlisle, PA 17013
Solicitor, Middlesex Township Zoning Bearing Board
Keith O. Brenneman, Esquire
Snelbaker , Brenneman, P.C.
44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055
Attorney for Appellant
By--"-"'" ~e ~~\\ .~-o: .
Deborah J. skale,
Paralegal to John M. Glace
STEFANON , GLACE
407 North Front Street
P.O. Box 12027
Harrisburg, PA 17108-2027
(717) 232-0511
DATE:
111)(., /ttc.
. .
LAW O"ICt:e
SNELDAKER
lie
BRENNEMAN
BOARD OF SUPERVISORS OF
MIDDLESEX TOWNSHIP,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 95-7157 CIVIL TERM
MIDDLESEX TOWNSHIP ZONING
HEARING BOARD,
LAND USE APPEAL
Appellee
v.
RODNEY E. JONES,
Intervenor
BRIEF OF BOARD OF SUPERVISORS OF MIDDLESEX TOWNSHIP
IN SUPPORT OF LAND USE APPEAL
The Appellant, Board of Supervisors of Middlesex Township,
by its attorneys, Sne1baker & Brenneman, P. C., submits this
Brief in support of the Land Use Appeal filed in the above matter
as follows:
I. FACTUAL AND PROCEDURAL BACKGROUND.
This Land Use Appeal comes before this Court as a result of
the efforts of Rodney E. Jones ("Jones") to conduct a commercial
business on property zoned RF-Residential Farm located in
Middlesex Township, Cumberland County, Pennsylvania.
On April 27, 1995 Jones filed an Application with the
Middlesex Township Zoning Hearing Board ("Board") seeking a
variance for purposes of conducting a retail business in the
Residential Farm District. Subsequent to a hearing held June 19,
1995, Jones withdrew his application for a variance.
. ~..~......... _..,_.~ ~~,-_1""""~:"lf>-.('-"'':':!''~-,,llf.~~'-''~)'''_."' '-'c'
LAW O""'CCS
SNELDAKER
lie
BRENNEMAN
,,,> .
;'-'t.
On August 18, 1995, Jones filed an application with the
Board requesting a special exception for purposes of operating a
business in the Residential Farm District involving the retail
sale of custom motorcycle parts. On August 29, 1995, Jones
amended his application filed August 18, 1995 to include a
request for a variance from the five (5) acre minimum lot area
requirement imposed by the Middlesex Township Zoning Ordinance on
commercial uses in the Residential Farm District.
On January 6, 1994, Jones had received through conveyance
from his parents two tracts of land: one tract adjoining
Sherwood Drive consisting of 19,700 square feet which is improved
with a residential dwelling occupied by Jones ("Tract A") and
another tract consisting of 1.47 acres located immediately to the
rear of Tract A improved with a garage ("Tract B"). ~
Application for Hearing Before Zoning Hearing Board dated August
18, 1995 ("August, 1995 Application"). The total combined
acreage of Tracts A and B is approximately 2 acres. ~ August,
1995 Application. Adjoining Tract A and fronting on Sherwood
Drive is 367 Sherwood Drive, which is owned by Jones' mother
(hereinafter "Tract C"). (November 8, 1995 Hearing Transcript
("H.T."), p. 8.)
It is Jones' intention to be a franchisee of a California
corporation called Custom chrome, Incorporated and to conduct
retail sales of chromed Harley-Davidson motorcycle parts. (June
-2-
w, _..1....._. ...~, _,w ""."'.........'l"!.J:WP.,/..:4.'...'''~ ""'<"", ~
LAW o",cla
SNELD~KER
lie
BAENNEM^N
19, 1995 H.T., p. 7.) He plans on selling the chrome parts from
both the garage located behind his home and from a truck at swap
meets. (June H.T., p. 12) The chrome parts he will sell will be
delivered to his property by U.P.S. (June H.T., p.12) at a
frequency of once or twice a week. (November H.T.,
p. 16)
On November 8, 1995 a hearing was held before the Board on
Jones' requests for a special exception and a variance. On
November 17, 1995 the Board issued a written decision granting
Jones' application for a special exception permitting him to
conduct his commercial operation from Tract B and further granted
him a variance from the minimum acreage requirement for
conducting such an operation.
On December 15, 1995, the Board of Supervisors of Middlesex
Township timely appealed the Board's decision by filing a Notice
of Land Use Appeal. Rodney E. Jones intervened in the appeal by
praecipe dated December 27, 1995. Appellant submits this Brief
in accordance with C.C.R.P. 210-6 in support of its request that
the decisions by the Board granting a special exception and a
variance to Rodney E. Jones be reversed.
-3-
II. ISSUES PRESENTED.
A. Whether the Middlesex TOWnship Zoning Hearing
Board erred as a matter of law and abused its
discretion in granting a special exception
permitting a commercial use in the nature of
retail sales from Applicant's property located in
the Residential Farm District.
(Proposed Answer: Yes)
B. Whether the Middlesex Township Zoning Hearing
Board abused its discretion in granting a variance
from the 5 acre minimum lot size requirement
allowing the operation of a commercial business on
a 1.47 acre tract of land.
(Proposed Answer: Yes)
LAW OP'F1CU
SNELDAKER
lie
BRENNEMAN
-4-
,.~,',,:,'r;
II I . ARGUMENT.
A. THE ZONING HEARING BOARD COMMI'1"1'ED AN ERROR OF LAW
AND ABUSED ITS DISCRETION BY GRANTING A SPECIAL
EXCEPTION PERMI'1"1'ING THE RETAIL SALE OF CHROME
MOTORCYCLE PARTS IN THE RESIDENTIAL FARM DISTRICT.
The scope of this Court's review of a zoning hearing board's
decision is well established. When the reviewing court receives
no additional evidence or testimony, its duty is to determine
whether the board abused its discretion or committed an error of
law. Va11ev view civil Association v. Zonina Board of
Ad;ustment, 501 Pa. 550,462 A.2d 637 (1983); Rushford v. Zonina
Hearina Board of Ad;ustment of Pittsburah, 81 Pa. Commw. 274, 473
A.2d 719 (1984). When the board's findings are unsupported by
substantial competent evidence on the record, the board will have
committed an abuse of discretion. SDencer v. McKean TownshiD
Zonina Hearina Board, 113 Pa. Commw. 521, 537 A.2d 943 (1988).
An applicant for a special exception to a zoning ordinance
has both the burden of persuasion and initial evidence
presentation duty to show the proposal complies with the specific
conditions of the ordinance. Hen1ev v. Zonina Hearina Board of
West Fa110wfie1d TownshiD, 155 Pa. Commw. 306, 625 A.2d 132
(1993). Accordingly, an applicant must first establish that his
proposed use is one allowed by special exception. Bruni v.
Zonina Hearina Board of PlYmouth TownshiD, 52 Pa. Commw. 526,
LAW O'''Cla
SNELDAKEA
lie
BRENNEMAN
416 A.2d 111 (1980). Where an ordinance does not provide for the
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LAW o.."ca:.
SNELDAKER
lie
BRENNEMAN
......-."'.-""
';'h"'-i'"'t~r~;"~\'
/';
___..-...-:...."'I<-...;_..c-~-,.-,
proposed use by special exception in the applicable zoning
district, the issue or whether the proposed use advsrse1y afrects
the community's health, sarety or welfare need not be reached.
~ Bruni, sUDra., 416 A.2d at 112.
Appellant contends that the Board erred as a matter of law
and abused its discretion in finding that Jones' intended
commercial use was permitted in the Residential Farm District.
The Board reasoned that since the zoning ordinance
authorized special exception "uses of the same general character"
as permitted uses and did not define the term "uses of the same
general character", the term was intended to afford property
owners flexibility. since the zoning ordinance allowed for
certain commercial and industrial uses by special exception, the
ordinance's listed permitted uses and uses by special exception
were not intended to be exhaustive. Accordingly, the Board found
that Jones' proposed use was warranted by its interpretation of
the ordinance. ~ Decision of the Zoning Hearing Board
("Decision"), Conclusions 3-6 (Exhibit A to Notice of Land Use
Appeal). Such a construction is erroneous.
Article VI of the Middlesex Township Zoning Ordinance
differentiates between three use classifications: permitted uses
(Section 6.02); accessory uses (Section 6.03); and special
exception uses (Section 6.04). Section 6.02 sets forth uses that
are permitted as a matter of right. Section 6.04 sets forth uses
-6-
LAW c,,,c~.
SNELB"KER
lie
BRENNEMAN
permitted by special exception upon approval of the zoning
Hearing Board.
Nowhere among the enumerated special exception uses of
section 6.04 is there a reference to the commercial use of
property for the retail sales of motorcycle parts. Accordingly,
Jones' use may only be approved through the application of the
language of section 6.04A which provides for special exception
uses such as:
Uses which, in the opinion of the Zoning Hearing
Board, are of the same aeneral character as those
listed as Dermitted uses and which will not be
detrimental to the intended purposes of these
districts. (emphasis added.)
"Permitted uses" made reference to in section 6.04A is an
unambiguous reference to the permitted uses specified in section
6.02. In this respect, the Board's comparison of Jones' proposed
use with saw mills, auction houses and retail lawn and garden
sales was in error. See Decision, Conclusion 4. similarly,
suggesting the list of permitted uses could be expanded through
section 6.04A was also erroneous. ~ Decision, Conclusion 5.
Had the Board of Supervisors intended a proposed use under
Section 6.04A to be compared with the other uses allowed by
special exception, it could have stated as much in the ordinance.
It did not. The plain language of Section 6.04A when considered
in the context of the structure of Article VI compels the
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LAW o,rlCU
SNELDAKER
lie
BRENNEMAN
. -',"-<'~""'-"",'. "''"'''-''''''''''''",~''~--'.-.
conclusion that Section 6.04A refers to the permitted uses in
section 6.02.
The character of the Residential Farm District is
substantially defined by the uses that are allowed as of right.
Permitted uses under section 6.02 address residential uses,
certain institutional uses, farming related activities or uses
and open space areas. It is submitted that the emphasis on use
in the Residential Farm District is not on general commercial
uses but limited commercial uses based on agriculture.
The interpretation of Article VI advocated by Appellant is
consistent with the intended purpose of the Residential Farm
District. section 6.01 provides in its entirety:
SECTION 6.01 - INTENDED PURPOSE. This district is
composed of those area in the Township whose
predominant land use is agriculture and low density
residential. These regulations are designed to protect
and stabilize the areas' essential characteristics,
minimize conflicting land uses detrimental to farm
enterprises and limit development which requires
highways and other public services and facilities in
excess of those required by agricultural and low
density residential uses.
Nowhere does the above statement of purpose refer to
commercial uses. Although admittedly certain commercial uses are
permitted by special exception in section 6.04, that section was
not intended as a springboard to further and different commercial
uses in the district as advocated by the Board. The Board's
construction is not only contrary to the language of the
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LAW O'''ICI:.
SNELDAKER
lie
BRENNEMAN
ordinance, but to the statement of intent set forth in section
6.01, SUDra.
Finally, the use proposed by Jones is permitted as of right
in Middlesex Township's Commercial Highway District. (~
Middlesex Township Zoning Ordinance section 10.03.E and H.) If a
given use is not listed as permitted in one zoning
classification, but is permitted in a lower classification by
specific reference, it is a fair inference that the use was
considered and intentionally excluded from the higher zone.
Ryan, Robert S., Pennsv1vania Zonina Law and practice,
5 4.2.1, p. 5. The absence of a reference to Jones' proposed use
in the Residential Farm District and the specific allowance of
such a use in the Commercial Highway District leads to the
conclusion that the proposed use was intentionally excluded from
the Residential Farm District.
The only caselaw Appellant could locate that addresses the
interpretation of ordinance language similar to that in Section
6.04A was Eaan v. Montaomerv TownshiD, 177 Montg. Co. L. R. 149
(1960). Although at first reading ~ appears to be contrary to
Appellant's position, the case is distinguishable.
In ~, an application was made for a special exception to
conduct mobile home sales on property located in a commercial
district. The zoning ordinance in question set forth the use
regulations of the commercial district in one section. This
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SNELOAKER
lie
BRENNEMAN
section - section 600 - was subdivided into subsections A through
I. Subsections A through H, inclusive, set forth uses permitted
without special exception. Subgection I enumerated uses that
were authorized as special exceptions. Among the special
exception uses were "Any use of the same general character as any
permitted use." ~, 77 Montg. Co. L. R. at 150. In reversing
the decision of the zoning board of adjustment denying the
applicant's request for a special exception, the court held,
inter illiA, that the "permitted use" made reference to in
subsection I contemplated not only those uses set forth in
subsections A through H which were permitted as a matter of
right, but also those set forth in subsection I which were
allowed only by special exception.
The EsAn case is readily distinguishable from the case at
hand. First, the ordinance in ~ allowed as a special
exemption any use as the same general character "as any permitted
use". section 6.04A of Middlesex Township zoning Ordinance
allows as a special exception any uses that are of the "same
general character as those listed as Dermitted uses .
. .
"
(emphasis added). The reference to permitted uses is clearly a
reference to section 6.02. Such an identification was absent in
the ESAn ordinance.
Moreover, the Court in ~ placed weight on the fact that
subsection I special exception uses were as much a part of
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section 600 as were permitted uses A through H of that section.
19AD, 77 Montg. Co. L. R. at 150. Permitted uses and uses
allowed by special exception are clearly differentiated in the
Middlesex Township Zoning Ordinance by both different section
numbers and titles. It is suggested that such a format
emphasizes the differences, not similarities, between uses
permitted as of right and those allowed by special exception.
Finally, the Court in E9An completely ignored the
significant and fundamental differences between uses permitted as
of right and special exception uses for which permission must be
granted. Uses allowed by special exception must receive approval
of a zoning hearing board because they are not uses permitted as
of right. A zoning hearing board can place conditions and
safeguards on the grant of a special exception where none can be
placed on uses allowed as of right. If there were no substantive
differences between a use permitted by right and one allowed by
special exception, as ~ suggests, then one must ask why both
the Pennsylvania Legislature and the Township's governing body
differentiated between such uses on a procedural basis.
LAW O"ICC.
SNELDAKER
lie
BRENNEMAN
For the above reasons, ~ is neither controlling nor
persuasive in this appeal. The plain language of the Middlesex
Township Zoning Ordinance and its structure compels that the
Board's decision in granting a special exception in the case at
hand should be reversed.
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'.,;..."". '.' .... .' ~'''''~..~ ,"'-
For this and the other reasons set forth above, the Board
erred in granting Jones a special exception to sell motorcycle
parts in the Residential Farm District.
B. THE ZONING HEARING BOARD COMMITTED AN ABUSE OF
DISCRETION IN GRANTING A VARIANCE WITHOUT MAKING
REQUISITE FINDINGS OF FACT AND IN MAKING CERTAIN
FINDINGS THAT WERE UNSUPPORTED BY SUBSTANTIAL
COMPETENT EVIDENCE.
The reasons for granting a variance should be compelling.
McClintock v. Zonina Hearina Board of Fairview Borouah, 118 Pa.
LAW O"ICt.
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BRENNEMAN
Commw. 448, 545 A.2d 470 (1980). Accordingly, a ~and owner's
burden of proof is heavy and a variance should be granted only in
exceptional circumstances. Rando1Dh Vine Associates v. Zonina
Board of Ad;ustment of Phi1ade1Dhia, 132 Pa. Commw. 452, 573 A.2d
255 (1990). It is in this context that a variance may be granted
provided all of the following findings are made:
(1) That there are unique physical conditions peculiar
to the particular property and the unnecessary
hardship is due to such conditions;
(2) That because of physical circumstances or
conditions there is no possibility that the
property can be developed in strict conformity
with the provisions of the ordinance;
(3) That unnecessary hardship is not created by the
Applicant;
(4) That the variance, if authorized, will not alter
the neighborhood or district in which the property
is located; and
(5) That the variance, if authorized, will represent
the minimum variance that will afford relief and
will represent the least modification possible of
the regulation at issue.
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,~ ",..,.~+. ,....."ff,.'OW"",...............,."-..........;.._.......".",..,.,,,..., '
'- -.- _.~:,.~~f~'ti~f,,__, ~'.,
~ 53 P.S. S 10910.2 and Middlesex Township zoning
Ordinance section 1B.06A.
Appellant submits that the Zoning Hearing Board failed to
make the requisite findings of fact necessary to grant a variance
and that the findings of fact it did make pertaining to the grant
of the variance were unsupported by substantial competent
evidence.
Middlesex Township Zoning Ordinance section 6.05 provides
that all uses other than the use of a lot for a single family
residence requires a minimum lot area of five (5) acres. Jones'
proposed commercial operation is intended to be conducted on a
1.47 acre tract of land (Tract B) which is improved with a
private three-door garage.
The Board granted a variance to Jones from the minimum lot
area of five (5) acres to allow him to conduct his business
operation from the garage on Tract B. The only finding the Board
made concerning the hardship requirement as it relates to the
grant of a variance was that Jones' property was subject to a
physical hardship in that it was comprised of preexisting lots
which do not meet lot area requirements.
LAW O"ICIU
SNELDAKER
lie
BRENNEMAN
In specific reference to the requirement that there be a
hardship, the applicant must prove an unnecessary hardship which
is unique or peculiar to the applicant's property as
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BRENNEMAN
distinguished from a hardship arising from the impact of the
zoning Ordinance or regulation on the entire district. cutler v.
Newtown TownshiD Zonina Hearina Board, 27 Pa. Commw. 430, 367
A.2d 772 (1976). The test for determining whether a property
owner is entitled to a variance is not whether the proposed use
is more desirable than the permitted use, but rather whether the
property can be used in a reasonable manner within the
restrictions of the ordinance. Washinaton TownshiD v. Washinaton
TownshiD Zonina Hearina Board, 27 Pa. Commw. 510, 365 A.2d 691
(1976). For this reason, it has been held that a landowner
cannot get a variance unless he can prove that his land is
virtually useless as it is presently zoned. ~ Miller v. Zonina
Hearina Board of Ross TownshiD, 167 Pa. Commw. 194, 647 A.2d 966
(1994).
In the case at hand, there was no evidence presented by
Jones that he could not use Tract B in any reasonable manner or
that his land was virtually useless as presently zoned. To the
contrary, the record reflects the opposite. Jones has used Tract
B as the location of a private garage adjacent to his home on
Tract A. Tract B consists of 1.47 acres (66,200 square feet)
which is of sufficient size in the Residential Farm District for
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LAW O....IC...
SNELOAKER
lie
BRENNEMAN
cc....,.c,+~;'""...,,',._.........,
__';~ ,",'''''-'-:-"<':';:'1'''-~'< '~:.i_,,,-_v-:--c
-< .'; ,"'i:i.'J;.~'''~ f~:-"[~:-Y:.' ;;-;;';':":'''''' -
use of the lot for residential purposes.. Jones' use of Tract B
indicates it is not useless and in fact can be used in a
reasonable manner in compliance with the ordinance. The Board's
conclusion that a hardship exists ignores both the use put to the
property by Jones and the residential use for which it can be
utilized.
The case of Tucker v. Zonina Board of Ad;ustment of
pittsburah, 62 Pa. Commw. 615, 437 A.2d 499 (1981) is instructive
on the matter of the use Jones can make of his property and its
impact on his request for a variance.
In Tucker, an applicant sought a variance to enlarge a
garage into a single-family dwelling. The garage was part of a
carriage house located on a lot which contained a separate
single-family dwelling. Although the proposed additions did not
comply with the lot area restrictions and applicable yard
requirements, a variance was granted by the zoning board of
adjustment and subsequently confirmed by the Court of Common
Pleas of Allegheny County. The Commonwealth Court, however,
reversed, holding that the evidence did not support the
proposition that the garage/carriage house had no reasonable use
as zoned since the carriage house could be used as a garage and
'Middlesex Township Zoning Ordinance section 6.05 requires a
minimum lot size for single family residential use of 60,000
square feet.
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SNELDAKER
lie
BRENNEMAN
. .,......><....'''...l.''-..L' . "....,Wb-' 'i':;".'"
the entire property was capable of being used (and was being
used) as a single-family dwelling.
Similar to Tucker and as indicated above, no evidence was
presented indicating that the garage in Tract B had no reasonable
use as zoned or that the property upon which the garage was
located was not capable of being used for single-family
residential dwelling purposes. The lack of any evidence
presented by Jones on these points and the Board's failure to
consider the use available to Jones for Tract B under the zoning
ordinance compels the Board's grant of a variance to be reversed.
IV. CONCLUSION.
For all of the reasons set forth hereinabove, Appellant
Board of Supervisors of Middlesex Township requests this Court to
reverse the decision of the Middlesex Township Zoning Hearing
Board granting Rodney E. Jones a special exception and variance.
Respectfully Submitted,
By:
SNIZ"C' P. C.
Keith O. Brenneman, Esquire
44 W. Main Street
Mechanicsburg, PA 17055
(717) 697-8528
Attorneys for Appellant
Middlesex Township Board of
Supervisors
Date:
January 19, 1996
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LAW O""'CE.
SNELBAKER
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BRENNEMAN
CERTIFICATE OF SERVICE
I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have,
on the below date, caused a true and correct copy of the
foregoing Brief to be served upon the persons and in the manner
indicated below:
FIRST CLASS MAIL. POSTAGE PREPAID. ADDRESSED AS FOLLOWS:
Edward W. Harker, Esquire
One West High Street
Carlisle, PA 17013
Solicitor, Middlesex Township Zoning
Hearing Board
John M. Glace, Esquire
407 Front Street
Box 12027
Harrisburg, PA 17108-2027
Attorney for Applicant
Rodney E. Jones
w: ~~ .,~
Keith O. Brenneman, Esquire
SNELBAKER , BRENNEMAN, P. c.
44 West Main Street
P. O. Box 318
Mechanicsburg, PA 17055
(717) 697-8528
Attorneys for Appellant
ate: January 19, 1996
BOARD OF SUPERVISORS OF
MIDDLESEX TOWNSHIP,
- Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-7157 CIVIL TERM
Vs.
LAND USE APPEAL
MIDDLESEX TOWNSHIP ZONING
HEARING BOARD,
Appellee
Vs.
RODNEY E. JONES,
Intervenor
CBRTIFICATB 01" RECORD
I, Edward W. Harker, One West High Street, Carlisle,
Pennsylvania, Solicitor to the Zoning Hearing Board of Middlesex
Township, hereby certify that the following documents, filed
herewith, constitute a true and correct record of all proceedings
in the above matter before the Zoning Hearing Board:
A. Application of Rodney Jones dated August 18, 1995;
B. Amended Application of Rodney Jones dated
August 29, 1995;
C. Transcript of June 19, 1995, hearing;
D. Transcript of November 8, 1995, hearing;
E. Decision of the Zoning Hearing Board of
Middlesex Township dated November 17, 1995;
F. Excerpts of Middlesex Township Zoning Ordinance:
Current Ordinance No. 3-89
Articles 6, 17 and 18
Date:
~/P~~
CBRTIFICATB 01" SBRVICB
AND NOW, this 18th day of January, 1996, I, Edward W.
Harker, Esquire, One West High Street, Carlisle, Pennsylvania
do certify that I mailed a true and correct copy of the
foregoing Certificate of Record, by United States Mail,
first class delivery, upon:
Keith O. Brenneman, Esquire
SNELBAKER & BRENNEMAN
44 West Main Street
Post Office Box 318
Mechanicsburg, PA 17055
John M. Glace, Esquire
STEFANON & GLACE
407 North Front Street
Post Office Box 12027
Harrisburg, PA 17108-2027
. Harker, Esqu re
Attor y for the Defendant
One W st High Street
Carlisle, PA 17013
(717)243-1083
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MIDDLESEX TOWNSHIP ZONING HEARING BOARD
360 NORTI! MIDDLESEX ROAD
CARI.llll,E. PF.NNRYINANIA 1701:1
DECISION OF THE ZONING HEARING nOARIl
IN RJ:: 11\11111'4, F" ,I ("It..~
APl'Llf.',~110N Nl'~IBER:
Hr..-fl
BOARD HEHRERIl IN ATTENDANCE:
Joan Pattinon. Kelly
N",ldel'er. Lois WeRn'
FINDINGS OF FACT:
1. The Applicant. Rodne, E. Jones. resides at 363
Sherwood Drive and seeks a special exception and variance
to enable him to establish and operate a limited retail
business on propert, zoned "RF - Residential Farm
Districts".
2. Applicant initially filed an Application dated
April 24, 1995, which was withdrawn, after hearing, at the
reqllest ot' Hr. Jones.
a. Applicant filed a second Application seeking a
special exception for the businesn use dated August 1B,
1995. 011 AII~usl. 29. 1995. Applicant ampnded t.his request
to 1JJ<'ll1dp It ,'arlance from tI,P r. acre minlmllm lot arell
t'("qll j '"f'IIII-"lIt "
--I. ~(Jpl ie'Hlll Hwl OLlIl..-lIl' illtPl't"stt..d laru't ll-ll'" ~t iptal,..tpri
thai tlop rp('ol'd of the firl'ot I...arjll~. hpld .1111I" 19. 199".
\o,'lIlId lit. lllc'Clt'PC>I'lllpll illto the. "'l-"t'Ulltl\Pld il'lIt iUII 1'01-
"III'I'ut;~'" "I' ":\I'edl t 1011 "I,d "l'OIlOIlI~', Hpal'ill!! of tI,t' Ilecolld
APld !c'''I le," "n". hf.ld nil Non'mlJ,.,' ll, 1995, The recol'd thlls
"r.>I."iI,d.. of tI,E' ..,'idellce fl'om Iootlo hparin~" to~"tller ,,'itlo
tI,,, ")'ill..,, Al'pJIl;lItj"n. Am"ndm,,"llllld altRchmpllts
t11..reto.
5. The proposed hllsiness use will connint. of, and
according t.o the Appllcllllt be Ilmlt.ed at all times 10.
retail aalps of aftermarket. motorc,cle accessorlea and
parI", "111, 0('('111;\0111I1 Illnl.allltllons of Sill'll items,
Ii. The hllairlt'ns "ill be operaled ...Ithl" the confines
of all existing 3 door garage buildln~ on R tract owned by
t h(> ApJlll CAnt h~' dped dA lpd 1 -6- 94. dppl cted as Lot 8 011
tI", [oll1n allal'h,.d to tI". Appl icat lOll,
"~'i'>,' n',::.
"T"',,_
7. Thl' Appll c,m!. Il'RllI'led lhal 110'0 othl'I' I racls -
onl' owned by him and depicll'd as Lot A - and onl' tilled 10
his mother depicled as Lot C- were and would be maintained
undl'r Applicants ownership and lor control so long as the
hll",ln""R "'''1' 0......"111I~. Thill<. Ap,,1 ir:8nl lestlt'll'rl thai
II", 11II,d "I"'" of till' ,'I'OI'PI'I\' 'ddeh W81l ,,\'allal>lp al Ihl'
sit., W8R Iii.. tollll 01' I.ola A. D. C' 01' 81 l!!hl1~' 1""8 thall ~
Hl'J't!H.
8. Th.. TO"'lIllhlp 5I1p..r\'lsors 8pp..al'l'd by counsel and
01'1'01"'" tl,,' 1'..qIlPIlI n... 1o,,11I!! 111<'01l";sl,,,,1 ,,'It.h Iii.. e:q'I'eI<8
pro\' i I< I '>1,1< 0 l' tI... ol'd i 1II"...e.
\I. l'\fd \!I,bol'l n!1 I'esl dl'III" app..nred 811d expressl'd
sUPpol'1 I'or till' r"q'..."t. IndicllUn\! Ihat Applicsnl was II
"good neighbor". had cll'anl'd lip Ihe properlr. and was
8skin!! 1'01' a \"I'~' llmltpd t",,,;np,,,, ,,'hid, he 1I(>"d,.d b..CIIIIS..
an n('el,l..nt Ion" IIIII'Ajr,.,d hill alollity In I<ol.k else",'hl'I'l'.
10. Till''''' neighbor'" ",'100 "1',,""I'l'd I..slil'ied that 8S
proposed the limited business would not adversely affect
the it. use alld en.lo~'melll, ot' their property.
11. The Board finds that as proposed Applicants
business will not be detrimental to the area or in
conflict with other existing land uses.
12. The se\'eral lots conjoined under common ownership
1'or purposes of determining the minimum lot area a\'ailable
were established by sllbdivision prior to enactment of the
6 acre area r..quirement.
13. The ~liddleRex Township Pl8nnl"g Commission
recomm"lIded condilloll81 RPI'I'0\'1Il of tI,p Applicant's
J'P(Jllca,..t .
1.1. ~~" t~\idtll(l" (II' Jf~i1J lll' t"lrHl(~llE..d HlheJ's(> iuqJlu,t
from tilt> Appl j ('8111 . H pl'o"oHPd hilS I IIPSS was presenl ed 1I0r
ha~ U11~ t-'\idpllC"f: tlrt'Pl'(~rI tll'lt lilt' sit,. ill qllPstioll ""ns too
hnldll tll lllEllh'qllttlc- 1'01 tilt lI~C" PI'upOSt.'d.
r.ONCLU510NR:
1. TII<' zoning codp allthorizes special exception uses
which ill thl' opinioll 01' thp Board 81'P 01' the "samp genpral
chal"",t..r" ItS 1 i "ted pprml t.ted lI!;es and ",'I II nol be
detrimental. IZOllil.!l Codp : 6.()~ A.I
2. ]n delerminlng Ihp pxtenl 01' restriclions IIpon
pror...rt.y ""p. ordinon('(> pl'o\'isions. os to ",'hich soml' doubt
exist", mllsl b(> interprell'd ill 1'8\'or 01' the properly
o""nl'l'. IHPC: 1;03.11
~'":~_~~~4-,:;::"J",:.
"."~;..o
a. Th~ Zonjn~ Code n~jther d~fin~s thp t~rm "us~s of
the sam~ ieneral character". nor oth~rwls~ limits this
language and the Board concludes that the term was
intpnded to afford prop~rty owners fl~xibility; and. by
impllrntiol1. afford I hf' Zonln~ Board broad dls("rf'tion 1.0
~I'''/I1 spPf.jlll ..~r..plio\l" fOl' II \'IIri..I~' of unspp("il'if'd USf'S
in 'lI.propr I..\.p r I rcums I anrf'8.
L The ZO/linl1 Code "ppdfjt'a1J~' authorizf's a variet~'
of ronunf'rcl..1 and indust.rial 118es by spf'cial exception
jll(0]1Idjll~:" sll\"lIi]l~. 1,(-ot(d1 1R"I. 111111 ~nrd..u HI-tles, RIa,1
aur'l In\l tllllI8..... 17.nloll1~ ('od.. : li.n,1 )... 0.. ~l. I
d. ThE- II,,,,,.,, ,'ulwllI""" lloul II". UJ.cJi/l..\I.... pI'o\'ision
1'01 "II...... of ",t- ..nm(. ~f'\lel'al d""'IIt'lel'" indlc..lf's thaI
thp llslln~ of speciflr permit.t.f'd and special exception
11"<<''' "'n" \101 Int.."d..d 10 10.. ..:->hllll,,1 i\p or all inclusive.
(.. TI,.. Zo,d \I!1 BOil I'd t'o/ld lid..", t ha I lIw Appli cant s
l'rop"",..d II.... I.. Io'f,rrllnlpd hr ir.t.f'rpl'..llllion of Ih..
ordinance as aforesaid and with appropriate conditions is
nellher detrimental nor inconsistent with the Code or the
public welfare. (Zoning Code' 17.07 B.2,41
7. The Applicants property is subject to a physical
hardship in that it comprises several preexisting lots
which do not meet lot area requirements.
8. The grant of a var~ance on condition is
appropriate to alleviate the said hardship and will not
alter the essential character of the neighborhood.
IZoni\lg Codp # 18.061
DE.G.1.R10~:
J,it~l': 1'1',1. I:, J I 1 t a;'. .1... I III.J' 1."-.. o"lil l'llll\.' J ll~ 1'111"".
Itlllt ","I',if.-11 t,1 tlll~ IU'I'eillltJ'I,'1 I'Pllliit iUIIS, lIle Appl icftllt
il; hl'reb~' !1I'IH,l.pd a 8pecial ":->l'eplio\l to operate a linlited
J,~tui] "iHl... hllfo,.illl~~!- \,'itllill I I If- t3,j~tilll! L'AI'IUlP f'uc-ilit,
]lll'ul,.d ull 1.,,1 J: of tht... 1-'1,.11 !o'llllIuiltt'tJ i.1I.j It \'uI'iRlIl't" ri.oOl
the mllllm"m 101 lI)..... )'..qlli)'pmPIII. 1'1... Kaid spe("in]
"~""pl in" Hlld \"III'iaIlCf' "1'.. ,",,,...1(-,.1 10 Ihf' follo"'ing
(OOllclit.i,-'IIS Illlrl lilllitAt i()lI!"-:
a. Th.. aforp8Hld sppclnl ('xcppt iOIl and \'ar'ia,,,,e nl'e
limited to th.. Applicnnt and shnll not b.. lransfe~a"'le or
""l;igJlalol...
h. TI,,' Appl k""1 "hnll 1111I1 t hiI' hllsille8" acllvil~' 10
the ""IE-. di"l'la~' ,,,,r:! 0('I'n"!(111..1 11I"lnll"llon of
aftermnl'ktol mcolol'("}'cle a(....."'"'orl.." alld p/lrts. The
Al'pl i cllnl '" pr.."ol8es /llId blls i nes" shall nol be used or
exlE-lIderl 10 11..IIPl'al motol'r}"c)p 01' \'phicl.. sf'rvice and/or
y'pl'"1 r.
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No other buslllesH activity shall be cat'ril'd on 1101' shall
the spl'clal l'xcept.loll 0" \'ariallce be expanded 0" modit'ied.
c. tlUBilless hourB for cUBtomers. delivery and
shl"lIIplII shill I 111' llmilE'd to the 1'''1'10<1 h..lwE'E'1I !J:1l0 A,~I.'
Hl,rI :;: 1111 r. 't.
d. AI I b''';!lIp"" shall hE' dOll.. \oilthlll thE' l'lIlstin!1
1'1I<:iIII\ II.ul B - tI"l'd dHtl'd 1-6-!J.\1 "l.tI 110 oul.door
activity Including stora!1E' ot' disposal BhalI be permitted.
... A~'l'llcalll ",hilI I ..,'..('\ ollI~ II .dllg].. ullli!1hted
..:o.t..,lo, ,d~II, 1I0t !lI,.."I.." tI."u III squal'" I'''l't ill al'l'H
,.loId, ",I",] I L.. "1'I'hE'd 10 th.. hllildlng.
f, AppII('alll sl..11 I rE'taill olo"lIl'rshlp 0" ('ollt,'oI of all
th,'"'' ] ot" "., I IIdicatE'rI all UIE' pI an subm! I I E'd and shal I
1I0t 1',"t1'O>I' "uhdivldE' or s"I'",'"t.. th.. o"'II",'ship.
pOl":~q"s~iotl 01' (,'01111'01 1 h~I'E"of' dUJ'jug tlit- 1't'>.'j(Jd ill ,,'hic.:h
Ap!'I k,,"t sh"I] ,.p.n'lItE' Ids I...... 1 liE''' 8 ,
g. No painting or plating of customers vehicles 01'
parts shall be done on the premises.
h. No wastes, solvents or fuels shall be disposed or
discharged on site at any time.
The foregoing conditions and limitations shall be
continuing and permanent, and upon failure of Applicant to
comply shall warrant such enforcement action and 101'
termination of the special exception use as the
circumstances warrant.
HIIlDJ.F.SEX TOI,l\SIIl P 1. Or-: 1 !l:11
Ilr'l:T'~11 p,n.\J;p,
No\'emhf-l'I'
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()'."rl,IL_~Ltt~_:u'tt.-.. ,_
,1~PHt 1 j E-;ull. Al't i rig ('11M i )')'PJ'SOIl
.-'lNY PERSON AlJl1RIE\'ED IW THE DEnSIOr-: OF TIlF ZONING IlF:ARING
BOARD ~IAY APPEAL TO TilE COllRT OF TilE Cml~IOX PLEAS OF
CUHBERLAND COUNTY. TilE APPEAL m:ST RE FILED WITHIN 30
DAYS FROH THF: DATE OF THIS DECISION.
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F-- D HItRtETZ
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ZONING ORDINANCE
MIDDLESEX TOWNSHIP
CUMBERLAND COUNTY, PENNSYLVANIA
ORDINANCE NO. 3-89
Price - S15.00 Per Copy
Prepared By:
BUCHART-HORN, INC.
Consulting Engineers and Planners
Yor'k, PA 17405
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ARTICLE VI
RF . RESIDENTIAL FARM DISTRICTS
SECTION 6.01 . INTENDED PURPOSE. This district is composed of those
areas in the Township whose predominant land use is agriculture and low
density residential. These regulations are designed to protect and
stabilize the areas' essential characteristics, minimize conflicting land
uses detrimental to farm enterprises and 1 imit development which requires
highways and other public services and facilities in excess of those
required by agricultural and low density residential uses.
All uses within the RF District shall be subject to the fOllowing
regulations:
SECTION 6.02 . PERMITTED USES. Withiri the RF District shown on the Zoning
Map, the following uses shall be permitted as a matter of right:
A. Single family dwellings.
B. Crop and tree farming, pasturing, truck gardening, horticulture,
greenhouses, nurseries, aviaries, hatcheries, ;p_ia);ies and s imfl ar
enterprises. II[~~'I
C. Raising and keeping of poultry, rabbits, goats and similar animals.
D. General and specialized farms, including the raising, keeping and
breeding of livestock for gain (including cattle, hogs, horses,
ponies, cows, sheep and similar livestock) upon a parcel of land
having an area of not less than five (5) acres, subject to the
following regulations:
1. No building in which farm animals are kept shall be closer than
one hundred (100) feet to any adjoning lot line.
2. No storage of manure or of odor or dust-producing substances or
materials shall be permitted within one hundred (100) feet of
any adjoining lot line.
E. Public conservation areas and structures for the conservation of
open space, water, soil, forest and wildlife resources.
F. Public park and recreation areas, forest reserves, camps, game
refuges and similar non-intensive public uses.
G. Public schools and municipal bUildings. (See Section 14.29)
H. Municipal and public utility and communication buildings and
structures where operation requirements necessitate locating within
the district.
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SECTION 6.03 . ACCESSORY USES
The following customary accessory uses and buildings incidental to any
permitted uses shall be permitted:
A. Uses and structures which are customarily associated with the 1
permitted uses such as storage buildings, outdoor storage areas,
yards, gardens, play areas and parking areas.
B. Garden house, tool house, playhouse, wading pool, or SWimming pool
incidental to the residential use of the premises and not operated
for gain. All such wading or swimming pools shall be subject to the
provisions of Article XIV hereof. Commercial kennels shall not be
permitted.
C. Private garages. In such garages with 2 or more passenger automobile
spaces, one such space may be 1 eased or rented to persons not
resident on the premises.
D. The keeping of a reasonable number of customary household pets or
domestic animals but excluding the commercial breeding or keeping of
same. All such household pets or domestic animals shall not be
penned or housed within the applicable minimum yard requirements of
any lot.
E. Roadside stands for the sale of edible produce grown on the premises
when located not less than twenty (20) feet from the right-of-way of
any highway.
F.. Signs, as provided in Article XIV of this Ordinance.
SECTION 6.04 - SPECIAL EXCEPTION USES. The follOWing uses and activities
may be permitted by SpeCial Exception upon approval of the Zoning Hearing
Board after a public hearing and recommendation by the Planning
Commission. Uses by Special Exception shall be SUbject to the
requirements specified in Articles XIV and XVIII and elsewhere in This
Ordinance.
A. Uses which, in the op~ion of the Zoning Hearing Board, are of the
'~same general character las those listed as permitted uses and which
will not be detrimental to the intended purposes of these districts.
B. Semi-public or private recreational areas, game and wildlife hunting
and gun clubs, historical preservation areas, camps and camping
grounds. (See Sections 14.31, 14.32 and 14.34)
C. Country clubs and golf courses. (See Section 14.31)
D. Public bUildings and governmental institutions.
E. Churches and cemeteries. (See Sections 14.27 and 14.28)
F. Private schools and Institutions of higher education. (See Section
14.29)
G. Hospitals, convalescent homes, animal hospitals and sanitaria.
(See Section 14.30)
H. Commercial riding academies and stables. (See Section 14.44)
I. Commercial kennels. (See Section 14.41)
J. Carnivals, outdoor circuses and migratory amusement enterprises.
K. Commercial amusement or recreation establishments such as outdoor
theaters, race tracks and other similar recreational uses requiring
large segregated land areas, providing that any of these uses shall
not be located nearer than fifty (50) feet from the right-of-way of
any highway. (See Section 14.32)
L. Saw mills and other establishments associated with forestry.
M. Auction house for household and other goods. (See Section 14.39)
N. Farm equipment sales and service. (See Section 14.40)
O. Lawn and garden .equlpment and supplies sales and service. (See
Section 14.40)
P. Bed and Breakfast Inn. (See Section 14.42)
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SECTION 6.05 - LOT AREA, BUILDING HEIGHT AND YARD REQUIREMENTS.
A. Lot Reouirements. Lot width, lot area, yard and building setback of
not less than the dimensions shown on the following table shall be
provided for every dwell ing unit and/or principal non-residential
building or structure hereafter erected or altered for any use
permitted in this district:
.......................................................................................................
LOT REQUIRE"ENTS
TARO REQUIRE"ENTS
HEIGHT RQHNTS.
USE
MIN. LOT MIN. LOT MAX. LOT ONE TOTAL
AREA (SQ.FT.' WIDTH COVERAGE X FRONT SIDE SIDES REAR
MAX. (FT.,
.......................................................................................................
Slngl. Flmlly
All Other U...-.
60.000'
5 Icres-
200'
400'
20
20
40' 20' 40' 4S'
40' 20' 40' 45'
35
35
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. Lot .tze subject to PaDER IpprovII for on-lot .ewage dlsposll Iystems
.. 5 acre minimum loc sfze unless otherwise specified ellewhere herein
VI-3
B. Imoervlous Area. The maximum Impervious area permitted on any lot
is thirtY-five percent (35~) of the total lot area.
C. Corner lots. On the street side, corner lots sh~ll have a side yard
dimension of not less than the front yard requirements.
SECTION 6.06 - MINIMUM OFF-STREET PARKING REQUIREMENTS. Off-street
parking shall be provided for in accordance with Section 14.10 of this
.Ordinance.
SECTION 6.07 - MINIMUM HABITABLE FLOOR AREA. The minimum habitable floor
area of every dwelling hereafter erected, altered or designed shall be In
accordance with the requirements of Section 14.22.
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ARTICLE XVII
ADMINISTRATION AND ENFORCEMENT
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SECTION 17.01 _ APPOINTMENT OF ZONING OFFICER. For the administration of
this Ordinance, a Zoning Officer, who shall not hold any elective office
in the Township, shall be appointed by the '80ard of Supervisors. The
Zoning Officer shall meet qualifications established by the Board of
Supervisors and shall be able to demonstrate to the satisfaction of the
Board of Supervisors a working knowledge of municipal zoning. The Zoning
Officer shall administer This Ordinance in accordance with its,litan1
~, and shall not have the power to permit any construction or any use
or change of use which does not conform to This Ordinance and other
applicable Township codes and ordinances. The Zoning Officer shall Issue
all permits required by This Ordinance. The Zoning Officer may be
autJlJlrize~.. Jo .Institute. civil enforcement proceedings as a means of
enforcement when acting within the scope of his employment by the
"'Township. ....
SECTION 17.02 - POWERS AND DUTIES OF ZONING OFFICER--
A. It shall be the dutv~f the Zoning Officer to enforce the provisions
of This Ordinance and all rules, conditions and requirements adopted
or specified pursuant thereto.
B. The Zoning Officer or his duly authorized assl stant(s) I shall have
the ds!1t to ..nte~ any building or enter upon any land at any
reasonable hour as necessary In the execution of their duties,
provldec!. .that:
1. The Zoning Officer shall lJ!~Uf.Y. the owner and tenant before_
conducting any Inspection.
2. The Zoning Officer or his duly authorized assistant(s) shall
~JJlv~tifik~a signed by the Board of Supervisors upon
'commencllrlg an Inspection.
3. Inspections shall be commenced In 'the ~resence of ,the owner or
his representative or tenant. .. -------
C. The Zoning Officer shall maintain files, open to the public, of all
appllcat Ions for cert I fl cates of occupancy and buildl ng perml ts
along with plans submitted therewith as well as final certificates
and permits.
. XVII-I
D. The Zoning Officer shall also maintain records, open to the pUblic,
of every complaint of a violation of the provisions of This
Ordinance as well as action taken as a result of such complaints.
E. The Zoning Officer shall submit monthly to the Board of Supervisors
for insertion in the Supervisors' minutes, a written report
summarizing for the month all bUilding permits and certificates of
occupancy .issued by him as well as complaints of violations and
action taken as a result of such complaints.
F. The Zoning Officer shall identify and register all nonconforming
uses and nonconforming structures and shall maintain up-to-date
records of changes in use and other nonconformities.
SECTION 17.03 - ZONING PERMITS.
A. No bUilding or structure in any District shall be erected,
installed, reconstructed or restored, renovated or structurally
altered without a zoning permit duly issued upon application to the
Township. However, no such zoning permit shall be required for
building renovation valued at less than $500. No zoning permit
shall be issued unless the proposed construction or use is in full
conformity with all the provisions of This Ordinance. Any zoning
permit issued in violation of the provisions of This Ordinance shall
be null and void and of no effect, without the necessity for any
proceedings or revocations of nullification thereof; and any work
undertaken or use established pursuant to any such permit shall be
unlawful.
B. Every application for a zoning permit shall contain the fOllowing
information and be accompanied by the required fee:
1. The actual shape, dimensions, radii, angles and area of the lot
on which the bUilding is proposed to be erected, or of the lot
in which it is situated if an eXisting building;
2. The block and lot numbers as they appear on the latest real
estate tax assessment records.
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3. The exact size and locations on the lot of the proposed
bUilding or buildings or alteration of an eXisting bUilding and
of other existing bUildings on the same lot;
4. The dimensions of all yards in relation to the subject bUilding
and the distances between such bUilding and any other existing
buildings on the same lot.
5. The existing and intended use of all bUildings, existing or .
proposed, the use of land, and the number of dwelling units the
bUilding is designed to accommodate; and
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Such topographic or other information with regard to the
building, the lot or neighboring lots as may be necessary to
determine that the proposed construct ion will conform to the
provisions of this Ordinance.
Name and address of the applicant.
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8. Name and address of the owner, if other than the applicant, of
the land on which the proposed construction is to occur.
9. Name and address of the general contractor and, if known, the
names and addresses of all subcontractors.
10. Listing of other permits required including their
identification numbers.
11. Brief description of proposed work and estimated cost.
c. No zoning permit shall be issued for the construction or alteration
of any building upon a lot without access to a public street or
highway.
D. No zoning permit shall be issued for any building where the Land
Development Plan of such building is subject to approval by the
Board of Supervisors, except in conformity with the plans approved
by said Supervisors.
E. No zonina Dermit shall be issued for a building to be used for any
use by Special Exception in any District whl!rl! .lIrh "'" h -" e'.:t~
on1~~'/&1 of tht Zonin!! lIearing Board unless and IIntil 5t1ch
iiii!rova1 JIa.s,...baQR 1'l1l1y g....nted h,y thl! 7.o.ning.llf.acl.i:l.gJ\o.a.
F. The zoning permit application and all supporting documentation shall
be made in duplicate. On the issuance of a zoning permit, the
Zoning Officer shall return one copy of all filed documents to the
applicant.
G. The Zoning Officer shall, within ten days after the filing of a
comp1 ete and properly prepared application, ei ther issue or deny a
zoning permit. If a zoning permit is denied, the Zoning Officer
shall state in writing to the applicant the reasons for such denial.
H. Every zoning permit shall expire if the work authorized has not
commenced within 3 months after the date of issuance, or has not
been completed within J8 months from such date for construction
costing less than $1,000,000 and has not been completed within 36
months from such date for construction costing in excess of
$1,000,000. If no zoning amendments or other codes or regulations
affecting subject property have been enacted in the interim, the
Zoning Officer may authorize in writing the extension of either
above periods of an additional six (6) months, following which no
further work is to be undertaken without a new zoning permit.
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1. Construction and/or development shall be considered to have
started with the preparation of land, land clearing, grading,
filling, excavation for basement, footings, piers, or
foundation, erection of temporary forms, the installation of
piling under proposed subsurface footings, or the installation
of sewer, gas and water pipes, or electrical or other service
lines from the street.
I. As soon as the foundation of a building or of any addition to any
eXisting bUildings is completed, and before first story framing or
wall construction is begun, there shall be filed with the Township
an accurate survey signed by the' person responsible for said survey,
showing the exact location of such foundation with respect to the
street and property lines of the lot.
J. Prior to the issuance of any zoning permit the Zoning Officer shall
review the application for permit to determine if all other
necessary governmental permits such as those required by
Commonwealth and Federal laws have been obtained, including those
required by Act 537, the Pennsylvania Sewage Facilities Act, the Dam
Safety and Encroachment Act, the U.S. Clean Water Act, Section 404,
33, U.S.C. 1334, and the Pennsylvania Clean Streams Act. No permit
shall be issued until this determination has been made. No
construction shall commence until evidence of approved PennsYlvania
Department of Transportation and/or Township driveway permi ts (i f
required) has been provided to the Zoning Officer.
K. No encroachment, alteration, or improvements of any kind shall be
made to any watercourse, inclUding such watercourses as may. be
located outside the mapped floodplain areas, until all adjacent
municipalities which may be affected by such action have been
notified by the Township, and until all required permits or
approvals have been first obtained from the Department of
Environmental Resources, Bureau of Dams and Waterway Management.
1. In addition, the Federal Insurance Administrator and
Pennsylvania Department of Community Affairs, Bureau of ..
Community Planning, shall be notified by the Township prior to
any alteration or relocation of any watercourse.
l. During the construction period and upon completion of the work, the
Zoning Officer shall inspect the premises to determine that the work
is progressing in compliance with the information provided on the .
permit application and with all Township laws and ordinances.
1. In the event that the Zoning Officer discovers that the work
does not comply with the permit appl ication or any applicable
laws and ordinances, or that there has been a false statement
or misrepresentation by any applicant, the Zoning Officer shall
revoke the zoni ng permi t and report such fact to the Board of
Supervisors for whatever action it considers necessary.
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XV II - 4
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2. A record of all such inspections and. violations of This
Ordinance shall be maintained by the Zoning Officer.
H. Applications for zoning permits and special exceptions for any
construction or development proposed to be located within, or
partiallY within, any identified floodplain area shall provide, in
addition to the information required by Section 17.03 B. of This
Ordinance, the following plans and information:
1. A site plan of the lot or parcel, drawn at one (I) inch equal
to one hundred (100) feet. Such plan shall show the following:
(a) North arrow, written and graphic, scale, and a date.
(b) A location map showing the vicinity in which the proposed
activity or development is to be located within the
Township.
(c) Topography based upon the National Geodetic Vertical Datum
showing existing and proposed contours at intervals of two
(2) feet.
(d) All property and lot lines including dimensions, and the
size of the site expressed in square feet.
(e) The location of all existing streets, drives, and other
accessways with information concerning widths, pavement
types, construction, and elevations.
(f) The location of any existing bodies of water or
watercourses, buildings, structures and other public or
private facilities, and any other natural or manmade
features affecting, or affected by, the proposed activity
or development.
(g) The 1 ocat i on of the i dent i fi ed fl oodp 1 a i n area boundary
line, floodway line information and spot elevations
concerning the one hundred (100) year flood el evat ions,
and information concerning the flow of water including
direction and velocities.
(h) A general plan of the entire site accurately showing the
location of all proposed buildings, structures, and any
other improvements, including the location of any existing
or proposed subdivision and land development in order to
assure that:
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(I) all such proposals are consistent with the need
to minimize flood damage;
XVIl-5
(2) all utilities and facilities, such as sewer,
gas, electrical and water systems are located
and constructed to minimize or el iminate flood
damage; and
(3) adequate drainage is provided so as to reduce
exposure to flood hazards.
Detailed architectural and engineering drawings drawn at .a
suitable scale. Such drawings shall show the following:
(a) Building size, floor plans, sections and exterior bUilding
elevations.
(b) The proposed finished floor elevations of any proposed
bUilding based upon National Geodetic Vertical Datum,
related flood depths, pressures, and velocities.
(c) Complete information concerning the impact and uplift
forces and other factors assoc iated wi th a one hundred
(100) year flood.
(d)
(e)
Details of proposed flood-proofing measures.
Cross-sections for all proposed streets, drives, and other
accessways and parking areas showing all rights-of-way and
pavement widths.
(f) Profiles for all proposed streets, drives, and vehicular
accessways inclUding existing and paved grades.
(g) Plans and profiles of all proposed sanitary and storm
sewer systems, water supply systems and any other
utilities and facilities.
(h) Soil types.
The following data and information shall also be
provided:
(a) Document, certified by a registered professional engineer,
architect,or landscape architect which states that the
proposed construction has been adequately designed to
withstand the one hundred (100) year flood elevations,
pressures, velocities, impact and uplift forces and other
hydrostatic, hydrodynamic and buoyancy factors associated
with the one hundred (100) year flood. Such statement
shall include a description of the type and extent of
floodproofing measures which have been incorporated into
the design of the structure and/or the development.
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XVII-6
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(b) The appropriate component of the Department of
Environmental Resources' "Planning Module for Land,
Development".
(c) Where excavation, grading or fill is proposed, a plan
meeting the requirements of the Department of
Environmental Resources and the Middlesex Township
Subdivision and Land Development Ordinance, to Implement
and maintain erosion and sedimentation control.
N. A copy of all applications and plans for any proposed construction
or development In any Identified floodplain area to be considered
for approval shall be submitted by the Zoning Officer to the
Cumberland County Conservation District, the Middlesex Township
Planning Commission and the Township'S engineering and planning
consultants for review and comment prior to the issuance of a
building permit. Recommendations resulting from such reviews shall
be considered by the Zoning Officer for possible incorporation into
the proposed plan.
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SECTION 17.04 - CERTIFICATE OF OCCUPANCY.
A. It shall be unlawful for any person to occupy or use a building
erected, installed, reconstructed. restored, structurally altered,
moved, or any change in use of existing building until a Certificate
of Occupancy shall have been applied for and issued by the Zoning
Officer. Certificates of Occupancy shall be required only for
buildings or structures proposed for human use or habitation.
B. (NO 1 Cert I fi cate of Occupancy shall be I ssued for anl.JI-'\f\-. of a
biI 1 <!!!1g.-llJ:-JlfJand-Taqulr~ng_appr~Lb.Lth..e- JoJ!j n9 _ ~l!-a!:J!19 Jl.9ard..
o~Tor any land or use requiring Land Development ~lan approval by
the Supervisors unless and until such special exception or Land
Development Plan approval has been duly granted. Every certificate
of occupancy for which use by Special Exception or Land Development
Plan approval has been granted or in connection with which a
variance has been granted by the Zoning Hearing Board shall contain
a detailed statement of any condition to which the same is subject.
C. On a form furnished by the Township, application for a certificate
of occupancy for a new building or for an existing building which
has been altered. shall be made after the erection of such building
or part thereof has been completed in conformity with the provisions
of This Ordinance and in the case of a new building shall be
accompanied by an accurate plot plan, or if not available, by a
survey prepared by a licensed land surveyor or engineer showing the
location of all buildings as built.
XV 11-7
D. If the proposed use is in conformity with the provisions of This
Ordinance and all other app1 icab1e codes and ordinances, a
certificate of occupancy shall be Issued by the Zoning Officer
within 15 days after receipt of a properly completed application.
If a certificate of occupancy Is denied, the Zoning Officer shall
state the reasons in writing to the applicant.
E. In regard to those uses which are subject to Performance Standards
Procedure, the following requirements shall also apply:
1. Any normal replacement or addition of equipment and machinery
not affecting the operations or the degree or nature of
dangerous and objectionable elements emitted shall not be
considered a change in use;
2. After occupancy, if there occurs continuous or frequent, even
though intermittent, violations of the Performance Standards
and other provisions for a period of 5 days, without bona fide
and immediate corrective work, the Zoning Officer shall suspend
or revoke the occupancy permi t of the use and the ope rat i on
shall immediately cease until It is able to operate in
accordance with these regulations at which time the occupancy
permit shall be reinstated;
3. The Zoning Officer shall investigate any alleged violations of
Performance Standards, and if there are reasonab1 e grounds to
believe that a violation exists, the Zoning Officer shall
investigate the alleged violation, and for such investigation
may employ qualified experts.
4.. A copy of said findings shall be forwarded to the Township
Supervisors. The services of any qualified experts employed by
the Township to advise in establishing a violation shall be
paid for by the violator, if It shall be determined that a
violation is proved, and otherwise by the Township. No new
certificate of occupancy shall be Issued unless such charges
have been paid to the Township.
F. A certificate of occupancy shall be deemed to authorize, and is
required for, both initial occupancy and the continuance of
occupancy and use of the building or land to which it applies.
G. Upon written request by the Owner, and upon fee payment, the Zoning .
Officer shall, after inspection, issue a certificate of occupancy
for any bUilding or use thereof or of land existing at the time of
adoption of This Ordinance, certifYing such use and whether or not
the same and the bUilding conforms to the provisions of This
Ordinance.
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H.. A record of all certificates of occupancy shall be kept by the
Zoning Officer and copies shall be furnished on request, to any
agency of the Township or to any persons having a proprietary or
tenancy interest in the building or land affected.
SECTION 17.05 . FEES
A. ~. The Board of Supervisors shall set fees, payable in advance,
for all applications, permits, or appeals provided for by This
Ordinance to defray the cost of advertising, processing, inspecting,
mailing notices, charges of a stenographer for taking the notes of
testimony, and copying applications, permits and occupancy
certificates. Zoning Permit Fees shall not be required for any
maintenance operations such as painting, roof repair, window
replacement, installation of siding, replacement of defective
structural members or similar maintenance measures.
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SECTION 17.06 . ENFORCEMENT
A. Enforcement Notice
1. Whenever the Zoning Officer or other authorized Township
representative determines that there are reasonable grounds to
believe that there has been a violation of any provision of
This Ordinance, or of any regulation adopted pursuant there to,
the Zoning Officer shall inlt iate enforcement proceedi ngs by
sending an enforcement notice as provided in this section.
2. The enforcement notice shall be sent to the owner of record of
the parcel on which the violation has occurred, to any person
who has filed a written request to receive enforcement notices
regarding that parcel, and to any other person requested in
writing by the owner of record.
3. "An enforcement notice shall state at least the following:
(a) The name of the owner of record and any other person
against whom the Township intends to take ~ction.
(b) The location of the property in violation.
(c) The specific violation with a description of the
requirements which have not been met, citing in each
instance the applicable provisions of the Ordinance.
(d) The date before which the steps for compliance must be
commenced, not to exceed thirty (30) days from receipt of
notice, and the date before which the steps must be
completed.
XVII-9
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(e)
An outline of remedial action which, if taken, will effect
compliance with the provisions of This Ordinance, or any
part thereof, and with any regulations adopted pursuant
thereto.
A statement Indicating that the recipient of the notice
has the right to appeal to the Zoning Hearing Board within
a prescribed period of time, in accordance with procedures
set forth elsewhere in this Ordinance.
A statement indicating that failure to comply with the
notice witnin the time specified, unless extended by
appeal to the Zoning Hearing Board, constitutes a
violation, with possible sanctions clearly described.
(f)
(g)
B. Causes of Action.
In case any bUilding, structure, landscaping, or land is, or is
proposed to be, erected, constructed, reconstructed, altered,
converted, maintained or used in violation of This Ordinance or any
other Township ordinances, code or regulation, the Board of
Supervisors, or any officer of the Township, or any aggrieved owner
or tenant of real property who shows that his property or person
will be substantially affected by the alleged violation, in addition
to other remedies, may institute any appropriate action or
proceeding to prevent, restrain, correct or abate such building,
structure, landscaping or land, or to prevent, in or about such
premises, any act, conduct, business or use constituting a
violation. When such action is instituted by a landowner or tenant,
notice of that action shall be served upon the Township at least
thirty (30) day prior to the time the action is begun by serving a
copy of the complaint on the Board of Supervisors. No such action
may be maintained until such notice has been given.
C. Jurisdiction. District justices shall have Intial jurisdiction over
proceedings brought under Section 17.06 D.
D. Enforcement Remedies.
1. Any person, partnership or corporation who or which has
violated or permitted the violation of the provisions of This
Ordinance shall, upon being found liable therefor in a civil
enforcement proceeding commenced by the Township, pay a
judgement of not more than five hundred dollars ($500) plus all
court costs, inclUding reasonable attorney fees Incurred by the
Township as a result thereof. No Judgement shall commence or be
imposed, levied or be payable until the date of the
determination of a violation by the district justice. If the
defendant neither pays nor timely appeals the judgment, the
Township may enforce the Judgement pursuant to the applicable
rules of civil procedure. Each day that a violation continues
shall constitute a separate violation, unless the district
XVII-I0
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justice determining that there has been a violation further
determi nes that there was a good faith bas is for the person,
partnership or corporation violating the ordinance to have
beleived that there was no such violation, in which event there
shall be deemed to have been only one such violation until the
fifth day following the date of the determination of a
violation by-the district justice and thereafter each day that
a violation continues shall constitute a separate violation.
All judgements, costs and reasonable attorney fee collected for
the violation of the Ordinance shall be paid over to the
Township.
2. The court of common pleas, upon petition, may grant an order of
stay, upon cause shown, tolling the per diem fine pending a
final adjudication of the violation and judgement.
3. Nothing contained in this Section shall be construed or
interpreted to grant any person or entity other than the
Township the right to commence any action for enforcement
pursuant to this Section.
E. Any development initiated or any building or structure constructed,
reconstructed, enlarged, altered, or relocated, not in compl iance
with This Ordinance may be declared by the Board of Supervisors to
be a public nuisance and abatable as such.
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SECTION 17.07 _ SPECIAL EXCEE1lCN USES. It is the intent of this Section
to provide speddl controTSand regulations for particular uses which
may, under certain cond.itigns, be conducted within tne various Zoning
Distflcts establisheOlin Article III of This Ordinance.
Each subsection of this Section has particular controls and/or
requirements which must be satisfied before the use by right or by
Special Exception is permitted; and it is the intent of this Article that
these particular controls and requirements are additional to those
imposed by the District Use Regulations, Articles V through XIII, and by
the Supplementary Regulations, Article XIV, of This Ordinance.
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A. Aoolicabilitv. Limitations. Comoliance.
1. Aoolicabilitv. The controls imposed by Sections 14.27 through
14.49 of Article XIV are applicable where cited specifically as
a use by Special Exception and where cited for specific
permitted uses in Articles V through XlII of This Ordinance.
2. Limitations. Special Exception uses shall be permitted only
where specifically cited in the district use regulations,
Articles V through XI1I of This Ordinance.
XVlI -11
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3. Comoliance. Nothing in this Section shall relieve the Owner Dr
his agent, the developer, or'the applicant for a Special
Exception Use Permit from obtaining Subdivision and/or Land
Development Plan approval in accordance with the Middlesex
Township Subdivision and Land Development Ordinance. .
8. Procedures for Soecial Exceotions.
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1. AODl1cation. Each application for a Special Exception use
shall be accompanied by a proposed plan showing the size and
location of the lot, the location of all buildings and proposed
facilities including access drives, parking areas, and all
streets within 200 feet of the lot. The plan shall indicate the
use of each building located within 200 feet of the lot.
2. Referral to Middlesex Townshio Plannino Commission.
a.
In their review the Commission shall take into
consideration the public health, safety, and welfare, the
comfort and conven i ence of the pub 1 i c in general and of
the residents of the immediate neighborhood in particular,
and ~ay recommend appropriate conditions and safeguards as
may be required in order that the result of its action
may, tD the maximum extent possible, further the expressed
intent of This Ordinance and the accomplishment of the
following objectives in particular.
That all proposed structures, equi pment, or material shall
be readily accessible for fire and police protection.
That the proposed use shall be of such location, size and
. character that, in general, it will be in harmony with the
appropriate and orderly development of the district in
which it is proposed to be situated and will not be
detrimental to the orderly development of adjacent
properties in accordance with the zoning classification of
such properties.
That. in addition to the above, in the casf-: of any usn
located in, or directly adjacent to, al Residentia.!...l
District: .-
(1) The location and size of such use, the nature and
i ntens ity of operat ions i nvo 1 ved in or conducted in
connect i on therewi th, its site W.!!lJt and its
relation to access street.s shmoi! such that both
pedestrian and vehiculartraf~ to and from the use
and the assembly of persons in connection therewith
wi 11 ~ be h~~ar.4ous nr i nc:onv.en~-etI't to, or
incongruous with, said Residential District or
conflict with the normal traffic of the neighborhood;
and
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d.
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XVII-12
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(2) The l~and ~ of buildfngs, the location,
nature and height of ~~lls_and-f~nces, and the nature
and extent of landscaptng-DD the site shall be such
that the use - will not hinder or discourage the
appropriate development and use of adjacent land and
buildln s
3. Within 30 days, the
recommend at Ions to the
Zoning Hearing Board. may recommend approval,
disapproval or modification. In the case of disapproval or
modification the Commission shall set forth the reasons for the
recommendation in writing.
4. Zonina "earina Board Action. The Zoning Hearing Board shall
condUct' a public hearing on each application for a special
except i on use. Such heari ng sha 11 be conducted I n accordance
with Section IB.04 of This Ordinance.
a. The Zoning Hearing Board shall make..,its final decijlon
based upon findings Qf fact as to the general factors set
forth In Sectlon I/.07.B.2. and upon tne specific factors
for whicha special exception application Is filed.
C. Conditions and Safeauards of Soecial Exceotion Permits. The Zoning
Hearing Board \ filaYl require the special exception use permits be
'peJ:igdical-l.v...:.r-eMWSd. Such renewal shall be granted upon a
aetermination by the Zoning Hearing Board to the effect that such
conditions as may have been prescribed by the Zoning Hearing Board
in conjunction with the issuance of the original permit have not
been, or are being no longer, 'complied with. In such cases, a
period of 60 days shall be granted the applicant for full compliance
prior to the revocation of said permit.
D. Effect of Soecial Exceotlon Aooroval. Any use for which a special
exception use permit may be granted shall be deemed, to be a
conforming use in the District In which such use is located provided
that such permit shall be deemed to affect only the lot or portion
thereof for which such permit shall have been granted.
E. Soecial Exceotions - Fees and Other Costs. In addition to the
filing fee and other costs requisite 'for Land Development Plan
approval I n accordance wi th the Subdi vi sion and Land Development
. Ordinance, the applicant shall pay the following costs:
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1. All costs related to any required public hearing including but
not limited to: advertising of the hearing, services of the
Townsh ipSo 1 i c itor and Eng i neer and/ or Pl anner, pub 1 i c
stenographer, transcripts of proceedings. and similar costs.
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XVII-I3
An applicant by filing for a use by special exception shall then be
obligated to pay all costs hereinabove provided. Payment of such
costs shall be promptly submitted to the Township by the applicant
upon the submission of bills therefor from time to time. Payment
shall be by check or money order made payable to the Township of
Middlesex.' ,
No building permit or other requisite permit shall be issued by the
Township Zoning Officer until all such fees and costs have been paid
in full by the applicant.
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ARTICLE XVIII
ZONING HEARING BOARD AND OTHER ADMINISTRATIVE PROCEEDINGS
SECTION 18.01 . ZONING HEARING BOARD CREATION AND APPOINTMENTS. Pursuant
to Article IX of the Pennsylvania Municipalities Planning Code, as
amended, the Middlesex Township Board of Supervisors do hereby create a
Zoning Hearing Board consisting of five members who shall be residents of
the Township. Members of the ZonIng Hearing Board shall hold no other
office in the Township.
A. Terms of Office. The terms of office shall be five yeaJ:s and shall
be so fixed that the term of office of no more tnan one member shall
expire each year.
1. The members of the existing board shall continue In office
until their term of office would expire under the prior Zoning
Ordinance.
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2. The Zoning Hearing Board shall promptly notify the Township
Supervisors of any vacancies which occur. Appointments to fill
vacancies shall be only for the unexpired portion of the term.
B. Alternate Members. The Board of Supervisors may appoint by
resolution at least one but no more than three residents of the
Township to serve as alternate members of the Zoning Hearing Board.
The term of office of an alternate member shall be three years. When
seated in accordance with Section 18.02, an alternate shall be
entitled to participate In all proceedings and discussions of the
Board to the same and full extent as provided by law for Zoning
Hearing Board members, including specifically the right to cast a
vote as a voting member during the proceedings, and shall have all
the powers and duties set forth on thi s Ordi nance and otherwl se
provided by law. Alternates shall hold no other office in the
Township, including membership on the Planning Commission and Zoning
Officer. Any alternate may participate in any proceeding or
discussion of the Board but shall not be entitled to vote as a
member of the board nor be compensated pursuant to Section '18.03
unless designated as a voting alternate member pursuant to Section
IB.02 of this Ordinance.
C. Removal of Members. Any member of the Zoning Hearing Board may be
removed for malfeasance, misfeasance or nonfeasance in office or for
other just cause by a majority vote of the Township Supervisors
taken after the member has received fifteen days' advance notice of
the intent to take such a vote. A hearing shall be held in
connection with the vote if the member shall request it In writing.
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XVIII-I
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SECTION IB.02 . ORGANIZATION OF THE ZONING HEARING BOARD.
A. The Zoning Hearing Board shall elect from its own membership its
offi cers, who shall serve annual terms and as such may succeed
themselves. For the conduct of any hearing and the taking of any
action, a quorum shall not be less than a m"ajority of all the
members of the board, but the board may appoint a hearing officer
from its own membership to conduct any hearing on its behalf and the
parties may waive further action of the board as provided in Section
18.04 of This Ordinance.
B. rIf)by reason of absence or disqualification of. a member, a Quorum
'i?'~_reached, the chatt:!i!an of the Board shall designate as many
alternate meiilbers oftJie Board to sit on the Board as may be needed
to']provide"-a" quorum. Any alternate member of the Board shall
continue to serve on the Board in all proceedings involving the
matter or case for which the alternate was initially appointed until
the Board has made a final determination of the matter or case.
Designation of an alternate pursuant to this section shall be made
on a case-by-case basis in rotation according to declining senority
among all alternates.
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C. The Zoning Hearing Boardl"may/make, alter and rescind rules and forms
for its procedure, consiStent with ordinances of Middlesex Township
and laws of the Commonwealth of Pennsylvania. The Zoning Hearing
Board shall keep full public records of its business, which records
shall be the property of the Township, and shall submit a report of
its activities to the Township Supervisors as requested by the Board
of Supervisors.
SECTION IB.03 - EXPENDITURES FOR SERVICES. Within the limits of funds
appropriated by the Township Supervisors, the Zoning Hearing Board may
employ or contract for secretaries, clerks, legal counsel, consultants
and other technical and clerical services. Members of the Zoning Hearing
Board may receive compensation for the performance of their duties, as
may be fixed by the Township Supervisors, but in no case shall it exceed
the rate of compensation authorized to be paid to the members of the
Township Supervisors. Alternate members of the Board may receive
compensat ion, as may be fi xed by the Board of Supervi sors, for the
performance of their duties when designated as alternate members pursuant
to Section IB.02, but in no case shall such compensation exceed the rate
of compensation authorized to be paid to the members of the Board of
Supervisors. "
XVlll-2
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D.
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SECTION IS.04 . HEARINGS. The Zoning Hearing Soard shall conduct hearings
and make decisions in accordance with the following requirements:
A. Publ ic Notice. Notice shall be given and written notice shall be
given to the appl icant, the Township Zoning Officer, such other
persons as the Board of Supervisors shall designate by ordinance and
to any person who has made timely request for same. Written notices
shall be given at such time and in such manner as shall be
prescribed by rules of the Zoning Hearing Board. In addition to the
written notice provided herein, written notice of said hearing shall
be conspicuously posted on the affected tract of land at least one
week prior to the hearing.
B. fni. The Board of Supervisors may prescribe reasonable fees with
respect to hearings before the Zoning Hearing Board. .Fees for said
hearings may include compensation for the secretary and members of
the Zoning Hearing Board, notice and advertising costs and necessary
administrative overhead connected with the hearing. The costs,
however, shall not include legal expenses of the Zoning Hearing
Board, expenses for engineering, architectural or other technical
consultants or expert witness costs.
C. 0 duct 0 cln . The hearings shall be conducted by the Zoning
Hearing Board ~ the Zoning Hearing Board may appoint any member as
a ~eaririCi"officer. The decision, or, where no decision is called
for, the findings shall be made by the Zoning Hearing Soard;
however, the applellant or the applicant, as the case may be, in
addition to the Township, may, prior to the decision of the hearing,
waive decision or findings by the Zoning Hearing Board and accept
the decision or findings of the hearing officer as final.
D. The parties to the hearing shall be Middlesex Township, any person
affected by the application who has made timely appearance of record
before the Zoni ng Heari ng Board, and any other person i ncl udi ng
civic or community organizations permitted to appear before the
Board. The Zoning Hearing Board shall have the power to require
that all persons who wish to be considered parties enter appearances
in writing on forms provided by the Board for that purpose.
E. The chairman or acting chairman of the Zoning Hearing Board or the
hearing officer presiding shall have power to administer oaths and
issue subpoenas to compel the attendance of witnesses and the
production of relevant documents and papers, including witnesses and
documents requested by the parties.
F. The parties shall have the right to be represented by counsel and
shall be afforded the opportunity to respond and present evidence
and argument and cross-exami ne adverse wi tnesses on all rel evant
issues.
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G. Formal rules of evidence shall not apply, but irrelevant,
immaterial, or unduly repetitious evidence may be excluded.
XVIII-3
H. The Zoning Helrtng BOlrd or the hearing officer, as the case may be,
shill keep I stonogrlphlc record of the proceedings. The appearance
fee for I stenogrlpher shill be shared equally by the applicant and
the BOlrd. The cost. of the original transcript shall be paid by the
Board If the transcript Is ordered by the Board or hearing officer
or shill be plld by the person appealing from the decision of the
BOlrd If such Ippeal Is made, and in either event the cost of
additional coptes shall be paid by the person requesting such copy
or cop 185 . 1 n other cases the pa rty request i ng the ori g i na 1
transcript shall bear the cost thereof.
I. The Zoning Hearing Board or hearing officer shall not communicate,
directly or Indtrectly, with .any party or hisr~J:eSJ!Dta~s in
connect I on w t th any Issue i nvo 1 ved exceDt !!Jl.Oll~t~ ce and
opportunity for III parties to participate, shall not take notice of
anY-tommUnlcatlon, reports, staff memoranda, or other materials,
except advice from their solicitor, unless the parties are afforded
In opportun I ty to contest the material so not iced and shall not
Inspect the sito or its surroundings after the commencement of
heartngs with any party or his representative unless all parties are
given an opportunity to be present.
J. Decisions. The Zoning Hearing Board or the hearing officer, as the
case may be, shall render a written decision or, when no decision is
called for, ma~e en findings on the application within forty-
five (45) da~s ter thl! hot-hearing hefMe_ the Zoning Hearing
Board' or hear ng officer. !'!w1 the application is ,sQ.QtJ'd-"d-lU'
.!!!n1td.. each decision shall IleaCcompanteo Dy findings01 fact and
EDWCTUsions based thereon together with reasons therefor.
Conclusions based on any provisions of this Ordinance or any
TownShip ordinance. rule or regulation, or the Pennsylvania
Municipalities Planning Code, Act 247, as amended, shall contain a
reference to the provju..pn-f'eUe~ on and the reasons why the
conclusion Is deemeo appropriate in the light of the facts found.
If the hearing ts conducted by a hearing officer, and there has been
no stipulation that his decision or findings are final, the Zoning
Hearing Board shall make his report and recommendations available to
the parties within forty-five (45) days and the parties shall be
entitled to make written representations thereon to the Zoning
Hearing Board prior to final decision or entry of findings, and the
Board's decision shall be entered no later than thirty (30) days
after the report of the hearing officer. Where the Zoning Hearing
Board fails to render the decision within the period required by
this subsectton. or fails to hold the required hearing within sixty
(60) days from the date of the applicant's request for a hearing,
the decision shall be deemed to have been rendered in favor of the
applicant unless the appl icant has agreed in writing or on the
record to an extension of time. When a decision has been rendered
in favor of the applicant because of failure of the Zoning Hearing
Board to meet or render a decision as hereinabove provided, the
Zoning Hearing Board shall give public notice of said decision
within ten (10) days from the last day it could have met to render a
XV1l1-4
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decision in the same manner as provided in Section IB.04 A. of this
Ordinance. If the Board shall fail to provide such notice, the
applicant may do so. Nothing in this Section shall prejudice the
right of any party opposing the application to appeal the decision
to a court of competent jurisdiction.
A copy_of the final decision or, where no decision is called for, of
tliet'fndings shall be ileTivered to the applicant personally or
mailed to him not later thaI! the day fol}/)j'l.lJIt'd~l!;!t:l. To all
other persons who have filed their name and address with the Zoning
Hearing Board no later than the last day of the hearing, the Board
shall provide by mail or otherwise, brief notice of the decision or
findings and a statement of the place at which the full decision or
findings may be examined.
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SECTION 18.05 - JURISDICTION
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A. Zoninn Hearinn Board's Jurisdiction. The Zoning Hearing Board shall
have exclusive jurisdiction to hear and render final adjudications
in the following matters:
1. Substantive challenges to the validity of this Ordinance,
except those brought before the Board of Supervisors pursuant
to Sect ions 19.03 A. (Procedure for Landowner Curat i ve
Amendments) and IB.I0 (Validity of Ordinance: Substantive
Questions).
2. Challenges to the validity of this Ordinance raising procedural
questions or alleged defects in the process of enactment or
adoption which challenges shall be rai sed by an appeal taken
within thirty (30) days after the effective date of this
Ordinance.
3. Ap~eals from the determination of the Zoning Officer including,
but not 1 imited to, the granting or denial of any permit, or
failure to act on the application therefor, the issuance of any
cease and desist order or the registration or refusal to
register any nonconforming use, structure or 10t.
4. Appeals from a determination by the Township Engineer or the
Zoni ng Officer with reference to the admi ni strat i on of any
flood plain or flood hazard provisions within this Ordinance.
5. Applications for variances from the terms of this Ordinance and
the flood hazard provisions herein, pursuant to Sections IB.06
B. and C.
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6. Appl ications for special exceptions under this Ordinance or
flood plain or flood hazard provisions within this Ordinance,
pursuant to Section 18.06 D.
XVIII-S
7. Appeals from the Zoning Officer's determination of Preliminary
Opinion pursuant to the requirements of Section 18.11.
8.
Appeals from the determinatinn of the Zoning Officer or
Township Engineer in the administI:a.tilln. of any provision of
this Ordinance with reference to sedimentation and erosion
control and storm water management insofar as the same relate
to development not involving Subdivision/Land Development
Ordinance or Planned Residential Development appl.ications.
8. Board of Suoervisors'Jurisdiction. The Board of Supervisors shall
have exclusive jurisdiction to hear and render final adjudications
in the following matters:
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1. All applications for approvals of planned residential
developments under Article XVI.
2. Applications for curative amendment to this Ordinance pursuant
to Sections IB.10 and 19.03 A.
3. All petitions for amendments to this Zoning Ordinance, pursuant
to the procedures set forth in Section 19.03.
4. Appeals from the determination of the Zoning Officer or
Township Engineer in the administration of any provision of
this Ordinance with reference to sedimentation and erosion
control and storm water management insofar as the same relate
to development involving Subdivision/Land Development Ordinance
or Planned Residential Development applications.
C. Aoolicabilitv of Judicial Remedies. Nothing contained in this
article shall be construed to deny the applicant the right to
proceed directly to court wher appropriate, pursuant to the
Pennsylvania Ruloes of Civil Procedure No. 1091 (relating to action
in mandamus).
SECTION 18.06 - ZONING HEARING BOARD'S FUNCTIONS
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A. Variances. The Zoning Hearing Board shall hear requests for
variances where it is alleged that the provisions of the Zoning
Ordinance inflict unnecessary harrlship upon the applicant. The Board
may by rule prescribe the form of application and may require
pre] iminary appl ication to the Zoning Officer. ::,\The Zoning Hearing f I
Board may .grant . a variance, prOVided that (all1 of the follOWing.
!1ndings are made where relevant in a given case:
1. That there are uniqllp.. P.h.u1.W. c.ircum.J!tances or conditions,
inclUding irre~ularity, narrowness;.OF'shal~ness of lot size
of shape,~r)eMvt.ional ~oPOt~raphicaJ ~2.r phYSical <<
conditions pecul iar to the par icular property and thili the
unnecessary hardship is due to such conditions and(~"..l!!.ll
XVIII-6
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B. Variances - F100do1ain Conservation District. Requests for variances
shall be considered by the Zoning Hearing Board in accordance with
the procedures contained in Section IB.05 A. of This Ordinance, and
the following:
1. No variance shall be granted for any construction, development,
use or activity within any f100dway area that would cause any
increase in the one hundred (100) year flood elevation.
2. Except for a possible modification of the freeboard
requirements involved, no variance shall be granted for any of
the other requirements pertaining specifically to development
regu1 ated by Special Except ion or to Development Whi ch May
Endanger Human Life.
3. If granted, a variance shall involve only the least
modification necessary to provide relief.
4. In granting any variance, the Zoning Hearing Board may attach
whatever reasonable conditions and safeguards it considers
necessary in order to protect the public health, safety, and
welfare, and to achieve the objectives of This Ordinance.
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circumstances or conditions ~ener~11y created by the provisions
of the Zoning Ordinance in the neighbo'rh'iiod or district in
which the property is 10catedj"- . h. ...
That because of such physi ca1 ci rcumstances or condit ions,
there is no posslbJlity that the property can be developed in..,
s!rict conformity with the provisions of the Zoning uralnance
and that the authorization of a variance is therefore necessary
to enable the reasonable use of the propertYi
That such unnecessary hardshio has not been created by the
appell anti .,
That the variance, if authorized, will not al1er,tho-~ssential'
character of the neighborhood or district in which the property
fs located, nor subs tant ia 11 y or permanent 1 y i mpa i I" the
appropriate use or development of adjacent property, nor be
detrimental to the pub1ic~e1farei and
That the variance, if authorized, will represent the minimum
val" '" 11 afford relil'fand will represent tlie I east
modification possible of t e regu ation in issue.
3.
4.
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In granting any variance, the Zoning Hearing Board may attach such
reasonable conditions and safeQuards _ as it may aeem necessary to
implement the purposes of the Zoning Ordinance and the
Municioa1ities P1anninQ Code.
XVIII-7
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5. Whenever a variance is granted, the Zoning Hearing Board shall
notify the applicant in writing that:
(a) the granting of the variance may result in increased
premium rates for flood insurance.
(b) such variances may increase the risk to life and property.
6. In reviewing any request for a variance, the Zoning Hearing
Board shall consider, but not be limited to, the following:
(a)
(b)
that there is good and sufficient cause
that failure to grant the variance would result in
exceptional hardship to the applicant.
(c) that the granting of the variance wfll not result in an
unacceptable or prohibited increase in flood heights,
additional threats to public safety, extra ordinary public
expense, create nuisances, cause fraud on, or
victimization of the public, or confl ict with any other
applicable local Commonwealth or Federal law, code, or
regulations.
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7. A complete record of all variance requests and related actions
shall be maintained by the Zoning Hearing Board. In addition,
a report of all variances granted duri ng the year shall be
submitted to the Middlesex Township Board of Supervisors.
B. The Board of Supervisors shall include the abovementioned
report in its annual report to the Federal Insurance
Administration.
C. Soecial Exceotions. The Zoning Hearing Board shall hear and decide
requests for special exceptions in accordance with the standards and
criteria set forth in Artirla fYl~Of This Ordinance. In granting a
special exception, the Zon ng Hearing Board may attach such
reasonable conrfitinn< and ~~fpollard~ in addition to those expressed
in ArtiCle XVII, as itrnay deem necessary to implement the purposes
of This Ordinance and of the Pa. Municioalities Plannino Code.
When an application for a special exception has been filed with the
Zoning Hearing Board and the subject matter of such appl ication
would ultimately constitute either a "land development" or a
"subdivision", no change or amendment of the zoning, subdivision or
other governing ordinance or plans shall affect the decision on such
application adversely to the applicant and the appl icant shall be
entitled to a decision in accordance with the provisions of the
governing ordinances or plans as they stood at the time the
application was duly ffled. Provided, further, should such an
appl ication be approved by the Zoning Hearing Board the appl icant
shall be entitled to proceed with the submission of either land
XVIII -B
development or subdivision plans within a period of'slx months, or
longer as may be approved by the Zoning Hearing Board, following the
date of such approval In accordance with the provisions of the
govern i ng ordl nances or plans as they stood a t the time the
application was duly filed before the Zoning Hearing Board. If
either a land development or subdivision plan Is so ffled within
said period, such plan shall be subject to the relevant provisions
of Sections 50B(I) through 50B(4) of Act 247. the Municipalities
Planning Code, as amended.
SECTION IB.07 - PARTIES APPELLANT BEFORE ZONING HEARING BOARD. Appeals
under Section 18.06 A. may be ffled with the Zoning Hearing Board In
writing by the landowner affected, any officer or agency of the Township.
or any person aggrieved. Requests for a variance under Sections IB.06 C.
and D., and for speci al except ion under Sect ion IB.06 E. may be ffl ed
with the Zoning Hearing Board by any landowner or any tenant with the
permission of such landowner.
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SECTION IB.OB - TIME LIMITATIONS.
A. No person shall be allowed to file any proceeding with the Zoning
Hearing Board later than thirty (30) days after any application for
development, preliminary or final, has been approved by an
appropriate Township officer, agency or body if such proceeding is
designed to secure reversal or to limit the approval in any manner
unless such person alleges and proves that he had no notice,
knowledge, or reason to believe that such approval had been given.
If such person has succeeded to his interest after such approval, he
shall be bound by the knowledge of his predecessor in interest. The
failure of anyone other than the landowner to appeal from an adverse
decision on a tentative plan pursuant to Article XVI, or from an
adverse decision by the Zoning Officer on a challenge to the
validity of the Zoning Ordinance or Zoning Map pursuant to Section
19.03 shall preclude an appeal from the final approval except in the
case where the final submiss i on substant I ally devi ates from the
approved tentative approval.
B. All appeals from determinations adverse to the landowners shall be
filed by the landowner within thirty (30) days after notice of the
determination is issued.
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SECTION 18.09 . STAY OF PROCEEDINGS.
A. Upon filing of any proceeding referred to in Section 18.07 and
during its pendency before the Zoning Hearing Board, all land
development pursuant to any challenged ordinance, order or approval
of the Zoning Officer or of any agency or body, and all official
action thereunder shall be stayed unless the Zoning Officer or any
other appropriate agency or body certifies to the Zoning Hearing
Board facts indicating that such stay would cause imminent peril to
life or property, in which case the development or official action
shall not be stayed otherwise than by a restraining order, which may
be granted by the Zoning Hearing Board or by the court having
jurisdiction of zoning appeals, on petition, after notice to the
Zoning Officer or other appropriate agency or body. When an
application for development, preliminary or final, has been duly
approved and proceedings designed to reverse or limit the approval
are filed with the Zoning Hearing Board by persons other than the
applicant, the applicant may petition the court having jurisdiction
of zoning appeals to order such persons to post bond as a condition
to continuing the proceedings before the Zoning Hearing Board.
B. After the petition is presented, the court shall hold a hearing to
determine if the fi11ng of the appeal is frivolous. At the
hearing, evidence may be presented on the merits of the case. It
shall be the burden of the applicant for a bond to prove the appeal
is frivolous. After consideration of all evidence presented, if the
court determines that the appeal 15 frivolous, it shall grant the
petition for a bond. The right to petition the court to order the
appellants to post bond may be waived by the appellee, but such
waiver may be revoked by him if an appeal is taken from a final
decision of the court.
C. The question whether or not such petition should be granted and the
amount of t/1e bond shall be within the sound discretion of the
court. An order denying a petition for bond shall be interlocutory.
An order directing the responding party to post a bond shall be
interlocutory.
D. If an appeal is taken by a respondent to the petition for a bond
from an order of the court dismissing a zoning appeal for refusal to
post a bond, the respondent to the petition for a bond, upon motion
of the petitioner and after hearing in the court having jurisdiction
of zoning appeals, shall be liable for all reasonable costs,
expenses, and attorney fees incurred by the petitioner.
XVIII-I0
SECTION 18.10 - VALIDITY OF ORDINANCE: SUBSTANTIVE QUESTIONS
A.
A landowner who, on substantive grounds, desires to challenge the
validity of an ordinance or map or any provision thereof which
prohi bi ts or restri cts the use or development of land in wh i ch he
has an intersest shall submit the challenge either:
1. to the Zoning Hearing Board under Section 18.05 A.I. and A.2.;
or
2. to the Board of Supervisors under Section 18.05 B. 2., together
with a request for a curative amendment under Section 19.03.
B. Persons aggrieved by a use or development permitted on the land of
another by an ordinance or map, or any provision thereof, who desire
to challenge its validity on substantive grounds shall first submit
their challenge to the Zoning Hearing Board for a decision thereon
under Section IB.05 A.I.
C. The submissions referred to In subsections A. and B. shall be
governed by the following:
1. In challenges before the Zoning Hearing Board, the challenging
party shall make a written request to the Board that it hold a
heari ng on its cha 11 enge. The request shall conta in the
reaslons for the challenge. Where the landowner desires to
challenge the validity of such ordinance and elects to proceed
by curative amendment, under Section 19.03, his application to the
Board of Supervisors shall contain, in addition to the rquirements
of the written request hereof, the plans and explanatory materials
describing the use or development proposed by the landowner In lieu
of the use or development permitted by the challenged ordinance or
map. Such plans or other materials shall not be required to meet the
standards prescribed for preliminary, tentative or final approval or
for the Issuance of a permit, so long as they provide reasonable
notice of the proposed use or development and a sufficient basis for
evaluating the challenged ordinance or map In light thereof. Nothing
herei n contained shall prec1 ude the landowner from fi rst seeki ng a
final. approval before submitting his challenge.
2. If the submission is made by the landowner to the Board of
Supervisors under Subsection 18.10 A. 2.. the request also
shall be accompanied by an amendment or amendments to the
ordinance proposed by the landowner to cure the alleged defects
therein.
3. If the submission Is made to the Board of Supervisors, the
Township Solicitor shall represent and advise it at the
hearing or hearings referred to In Section 19.03.
XVlII-ll
4. The Board of Supervisors may retain an independent attorney to
present the defense of the challenged ordinance or map on its
behalf and to present their witnesses on its behalf.
5.. Based on the testimony presented at the hearing or hearings,
the Board of Supervisors or the Zoning Hearing Board, as the
case may be, shall determine whether the challenged ordinance
or map is defective, as all eged by the landowner. I f a
cha 11 enge heard by the Board of Supervi sors is found to have
merit, the Board of Supervisors shall proceed as provided in
Section 19.03. If a challenge heard by the Zoning Hearing Board
is found to have merit, the decision of the Zoning Hearing
Board shall i ncl ude recommended amendments to the chall enged
ordinance which will cure the defects found. In reaching its
decision, the Zoning Hearing Board shall consider the
amendments, pl ans and expl anatory material submi tted by the
landowner and shall also consider:
( a)
(b)
the impact of the
water supplies,
facilities;
if the proposal is for a residential use, the impact of
the proposal upon regional housing needs and the
effectiveness of the proposal in providing housing units
of a type actually available to and affordable by classes
of persons otherwise unlawfully excluded by the challenged
provisions of the ordinance or map;
propoasal upon roads, sewer facilities,
schools and other public service
(c)
the sui tabil ity of the site for the i ntens ity of use
proposed by the site's soils, slopes, woodland, wetlands,
flood plains, aquifers, natural resources and other
natural features;
(d)
the impact of the proposed use on the site's soil s,
slopes, woodlands, wetlands, floodplains, natural
resources and natural features, the degree to which these
are protected or destroyed, the tolerance of the resources
to development and any adverse environmental impacts; and
(e) the impact of the proposal on the preservation of
agri culture and other land uses whi ch are essent i al to
poublic health and welfare.
6. The Board of Supervisors or the Zoning Hearing Board, as the
case may be, shall render its decision within forty-five (45)
days after the conclusion of the last hearing.
XVIII-12
7. If the Board of Supervisors or the Zoning Hearing Board, as the
case may be, fails to act on the landowner's request within the
time limits referred to in Section 1B.10 e.6., a denial of the
request is deemed to have occurred on the 46th day after the
close of the last hearing.
D. The Zoning Hearing Board or Board of Supervi sors, as the case may
be, shall commence 'its hearings within sixty (60) days after the
request is filed unless the landowner requests or consents to an
extension of time.
E. Public notice of the hearing shall include notice that the validity
of the ordinance or map is in question and shall give the place
where and the times when a copy of the request, including any plans,
explanatory material or proposed amendments may be. examined by the
public.
F. The challenge shall be deemed denied when:
1. the Zoning Hearing Board or Board of Supervisors, as the case
may be, fails to commence the hearing within the time limits
set forth in Section 1B.10 D.;
2. the Board of Supervisors notifies the landowner that it will
not adopt the curative amendment;
3. the Board of Supervisors adopts another curative amendment
which is unacceptable to the landowner; or
4. the Zoning Hearing Board or Board of Supervisors, as the case
may be, fails to act on the request forty-five (45) days after
the close of the last hearing on the request, unless the time
is extended by mutual consent by the landowner and the
Township.
G. Where a curative amendment proposal is approved by the grant of a
curative amendment application by the Board of Supervisors pursuant
to Section 19.03 or a validity challenge is sustained by the Zoning
Hearing Board pursuant to Section 1B.05 or the court acts finally on
appeal from denial of a curative amendment proposal or a validity
challenge, and the proposal or challenge so approved requires a
further app li cat i on for subdtv is i on or 1 and development, the
developer shall have two (2) years from the date of such approval to
file an application for preliminary or tentative approval pursuant
to the requirements for Subdivision/Land Development or Planned
Residential Development. Within the two-year period, no subsequent
change or amendment in the zoning, subdivision or other governing
ordinance or plan shall be applied in any manner which adversely
affects the rights of the applicant as granted in the curative
amendment or the sustained validity challenge. Upon the filing of
the preliminary or tentative plan, the provisions of Section 508(4)
of the Pa. MuniciDalities PlanninQ Code shall apply. Where the
XVIII-l3
proposal appended to the curative amendment application or the
validity challenge is approved but does not require further
application under any subdivision or land development ordinance, the
developer shall have one (1) year within which to file for a
building permit. Within the one-year period, no subsequent change or
amendment in the zoning, subdivision or other governing ordinance or
plan shall be applied in any manner which adversely affects the
rights of the applicant as granted in the curative amendment or the
sustained validity challenge. During these protected periods, the
court shall retain or assume jurisdiction for the purpose of
awarding such supplemental relief as may be necessary.
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SECTION IB.ll - PROCEDURE TO OBTAIN PRELIMINARY OPINION
In orde~to unrpa~nnahly delay the time when a landowner may secure
assuran~~t the ordinance or map under which he proposed to build is
free from challenge, and recognizing that the procedure for prel iminary
approval of his development may be too cumbersome or may be unavailable,
the landowner may advance the date from which time for any challenge to
the ordinance or map WIll run under Section 18.08 by the fOllowing
procedure:
A. The landowner may submit plans and other materials describing his
proposed use or development to the Zoning Officer for a preliminary
opinion as to their compliance with the applicable ordinances and
maps. Such plans and other materials shall not be required to meet
the standards prescri bed for pre li mi na ry, tentat i ve or fi na 1
approval or for the issuance of a building permit so long as they
provide reasonable notice of the proposed use or development and a
~fficie~for a preliminary opinion as to its compliance.
B. fif")the Zoning Officer's preliminary opinion is that the use or
~elopment complies with the ordinance or map, ~ therof shall
be published once each week for two successive w~n a newspaper
of general circulation in the Township. Such notice shall include a
gemeral description of the proposed use or development and Its
location, by some readily identifiable directive, and the place and
times where the plans and other materials may bE! examined by the
public. The favorable preliminary approval under Section 18.08 and
the time .therein specified for commencing a proceeding with the
Zoning Hearing Board shall run from the time when the second notice
thereof has been published.
SECTION IB.12 - MEDIATION OPTION
A. Parties to proceedings authorized in This Article and in Article XX
(Appeals to Court) may utilize mediation as an aid in completing
such proceedings. In proceedings before the Zoning Hearing Board, in
no case shall the Board initiate mediation or participate as a
mediating party. Mediation shall supplement, not replace, those
XVlII-14
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procedures in This Article and in Article XX once they have been
formally initiated. Nothing in this Section shall be interpreted as
expa"ding or limiting municipal police powers or as modifying any
principles of substantive law.
B. Participation in mediation shall be wholly voluntary. The
appropriateness of mediation shall be determined by the particulars
of each case and the willi ngness of the part i es to negot late. The
Township shall assure that in each case, the mediating parties,
assisted by the mediator as appropriate, develop terms and
conditions for:
1. Funding mediation.
2. Selecting a mediator who, at a minimum, shall have a working
knowledge of municipal zoning and subdivision procedurs and
demonstrated skills in mediation.
3. Completing mediation, including time limits for such
completion.
4. Suspending time limits otherwise authorized in this Ordinance
and the Pa. Municioalities Plannino Code, provided there Is
written consent by the mediating parties, and by an applicant
or municipal decision-making body if either is not a party to
the mediation.
5. Identifying all parties and affording them the opportunity to
participate.
6. Subject to legal restraints, determining whether some or all of
the mediation sessions shall be open or closed to the public.
7. Assuring that mediated solutions are in writing and signed by
the parties, and become subject to review and approval by the
appropriate decision-making body pursuant to the authorized
procedures set forth in the Pa. Municioalities Plannino Code.
C. No offers or statements made in the mediation sessions, excluding
the final written mediated agreement, shall be admissible as
evidence in any subsequent judicial or administrative proceedings.
XVIll-1S
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APPLICATION FOR HEARING DEFORE THE
ZONING HEARING BO).',AO
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I. IDENTIFICATION
H,m.
MIIlI", AGII'.... numb,,_ ''''''. ~/ry ."d Jr."
ZI' COG.
T.l.phon, No
Rodne E. Jones
363 Sherwood Drive
Carlisle, PA 17013
363 Sherwood Drive
Carlisle, PA 17013
243-0945
,243-0945
1. Appll..nt
, 2.
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Owner
of
L.nd
E. Jones
Rodne
I her.bv c..tlfv thlt th. p.opoltd wo.k II lutho./ud bv th. own.. of reeo.d Ind thlt I hlYI bOln luthorlzed bv thl owner to mlk.
thl. Ippil..tion "' hi. lutho.lzld Ig.nt.
Sign."". of 'Dpllunl Applluuon .1.
II. TYPE OF REQUEST
I, CD SPECIALEXCEPTIO/i
2. Cl VARIANCE
3. c::J APPEAL FROM ACTION OF ZONING OFFICEF
~. c::J OTHER
III. BRIEF DESCRIPTION OF REQUEST
Applicant owns two (2) plots of land known collectively as 363 Sherwood Drive
within an RF zone. He purchased these plots from his p~rents on January 6, l!
and continued to use them for recreational motor vehicle repair. Applicant
became disabled in a motor vehicle accident and with his civil settlement has
, nvested greatly in lot clean-up. Applicant rec;uests 'a spec'ial exception to u
the rear rd~ (~ot B) accessed through Lot A as a business address to obtain a
franchise to sell custom motorcyle parts. Only a limited amount of inventory
would be sold to customers at that location. Special exception uses in RF zon
permit retail sales (See ~ 6.04(a),(m),(n). [. (o).Ap?1icant's requested exception
would require no further property mod'ification (unless requested) to permittab
IV~~OPERTYINFORMATION ~~I~tIAg~~~e~5rvais~rrct~~ld"not be detrimental to
.
PROPERTY LOCATION: 363 Sherwood (Also 1'-503) Drive
Lot A and Lot B (the 1.47 acre tract immediately)
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ZONING DISTRICT: Residential Farmino
DATE PURCHASED: 1/6/94 (From Parents)
PREseNT USE: Lot A=Residence/Lot
PROPOSED USE: Lot B onl y 11mi ted
NOTE: Arr,ch ,urv.., Of ',g,' d,u,iplian af p'Dp.fT'(. ""K'JUry.
LOT AREA (Sq. F:.): Lot A= 19. 700sq. ft.
Lot B=66.Z00sq.ft.
B=?ri va1t.EbTWIDTH: Lot A=400ft.: Lot B=200ft.
Garage
retail LOT DEPTH: Lot A=197ft. :Lot B=331ft.
sales.
V. CERTIFICATION BY APPLICANT
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I hereby certiry that all or the above statements and the statements contained in any
papers or plans submilled herewith are true to the best or my knowledge and belier.
, '1?c,d.-)J7, r....~.~/ ;Dated 0, " t, ~ fie
d $lt~""f'. 1
Rodney E. Jones .
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VI. REQU.EST FOR SPECIAL EXCEPTION
THE PROPOSED USE IS CLAIMED BY THE APPLICANT:
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III. REQUEST FOR VARIANCE
(SEE ATTACHMENT)
1. To bl In hlrmony with thl vlrloul ellmlnu Ind objectlvel of the Comprehenllve Plen: (c/~ uctlon, of th.1'11lI1
Section 6.04(a) permits those special uses, which protect and stabalize the RF
essentail characteristic. The property in question Is located within apcrnvima
15 residences, III ~butting Sherwood Drive in closv proximity to each other, ral.
from .5 acre to 5 acre tracts; mobile homes to two unit dwellings; with minimal
structures to properties with multiple out bmildings. ~he area in question hasl
not been used for farming in recent memory. i
2. Not to bl dOlrlmln"1 to thl chlrlctlr of the nllghborhood for the following rellonl:
Applicant expended time and money to clean-up both Lot A and Lot B, movin.
junked vehicles, constructing an attractive private garage and privacy
fence. No further alteration would be required because Applicant's
requested special use would be either self-contained in his garage or off
premises.
6.04(a)
3. To be conllstent with IUch othlr IUlndl,dl II rlqulred by the Zoning Ordlnlnce In Section S 14. 39 , 14 . 40
'Anau. .clClillan.1 "'..sa. If n.c....ryJ
Stlndlrd Provlllon for comolllnCI
14.39 Auction House As to both standards, Applicant
14.40 Farm Equipment ,or Lawn .and will comply with a.11 regulations
Garden Sales and Service and requirements but for minimum
NOTE: $H $ft._"f rite Zonln, Orrl/nun 10,. rill ,randw, Illr/l:JtJ.nc. of. IPftl.I..c,prJon. lrJ t. are B .
1. The IppllClnt belleVlI thlt thl vlrilncl thould be granted because:
He II uneble to meke rellonlble use of hll propeny for the.followlng rlllon(l):
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2. The proposed vlrilnce will not lit.. the 1,,"n,I.1 .h...,.... of the nllghborhood for the following rlllon(I):
.I. ,n...Ilt~ll"osht\llhtffcflf!l."~cord with thl purpolu Ind Intent of the Zoning Ordlnlnce for the following re..onb):
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ATTACHMENT TO
APPLICATION FOR BEARING
BEFORE ZONING BOARD
Applicant: Rodney E. Jon..
3. standard
6.04(a)
provision for ComDliance
The zoning Hearing Board is vested with discretion at 56.0l(a)
to permit by Special Exception those uses within a RF zone which
are of similar character to other Special Exception uses delineated
at 5S6.04(b) through (p) and are not detrimental to the intended
use of R. F. zone (i.e. district where "predominant land use is
agriculture and low density residential", see 56.01). The
Applicant's property is located along a road with longstanding
residences, most with outbuildings. It is .2 of a mile from the
entrance to "the Ridings", a PRD within a RF zone and from the
entry into "The Meadows", a RC zone surrounded totally by RF and OS
zones. The Applicant's property, as well as his neighbors (those
dwellings of 300 block of Sherwood Drive), were never used for
agricultural purposes although both of the above residential
developments were.
Other retail sales/automobile service
locations, pre-existent to the present zoning ordinances, also
exist on Sherwood Drive in the RF zone.
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Retail sales are permitted by Special Exception in a RF zone
see inter alia: auction houses and household and other goods at
6:04 (m)1 Farm equipment sales and service at 6:04(n)1 lawn and
garden equipment and supplies sales and service at 6:04(p).
Applicant's proposed Special Exception will be less intrusive
than any of the above uses permitted by special exception. Most
envisioned retail sales of Applicant will be off-premises through
conveyance of inventory in a van.
Applicant's prospective
franchisor requires that Applicant have a business address and he
seeks to use the 363 Sherwood Drive address (Lots A and B).
All of his necessary on-site modifications for limited retail
sales pre-exist this application and are compliant with the area
and bulk regulations and supplemental regulations of 5514.39 and
14.401 but for lot size.
Applicant's combined acreage is
approximately 2 acres. However, because of the limited size of his
garage, the actual proposed site of any retail sale, parking exists
for all anticipated customers.
Applicant is willing to comply with all reasonable
restrictions imposed by the zon~ng Board. All neighbors are
informed of Applicant's proposed Special Exception and no
objections have been proffered.
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MADE THE ~ .rf. day of 9..~
one thousand nine hundred ninety-four f1994).
in the year of our Lord
BETWEEN GEORGE R. JONES and SHIRLEY L. JONES, husband and wife, of
Middlesex Township, (R.D. #8, Bo% , Carlisle), Cumberland County,
Peansylvania, parties of the Drst part,
Grantors,
and
RODNEY E. JONES, a single man of Middlesex Township, Cumberland
County, Peansylvania, parties of the second part,
Grantees,
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WITNESSETH, that in consideration of One and 00/100 ($1.00) Dollars, in hand paid,
the receipt whereof is hereby acknowledged, the said grantors do hereby grant and
convey to the said grantees, their heirs and assigns, as tenants by the entireties,
ALL that certsin tract 'of land situate in Middlesex Township, Cumberland
Countr" PeDDsylvania, bounded and described as follows:
BEGINNING at a point at the Southwestern corner of other land of George
Jones and wife, formerly of David M. Brownawell and wife, which IJoint at the place
ofbegiDning is South 23 degrees 45 minutes West, a distance of One Hundred Ninety-
Beven and Seven Tenths (197.7) feet from the center line of Bernhisel Mill Road in
line of land now or formerly of Clair Hardy and wife; thence from said point at the
place of beginning along the Soutern liDe of said land of George Jones and wife and
continuing along the Southern liDe of land now or formerly of R. Matlack, South 63
degrees 15 minutes East, a distance of Two Hundred (200) feet to a point; thence
along line of land of Lynell W. Wolf and wife, South 23 degrees 45 minutes West, a
distance of Three Hundred Eleven (311) feet to a point; thence still along liDe of land
of Lynell W, Wolf and wife, Westwardly a distance of Two Hundred (200) feet, mor~
or less, to a pointj thencs North 23 degrees 45 minutes East, a distance of Three
Hundred Thirty-one (331) feet to a point, the place of BEGINNING. _
BEING a part of the tract of land which Lynell W. Wolf and Edith V. Wolf, _
, husband llDd wife, by deed dated October 11, 1972 llDd recorded in the Office of the
Recorder of Deeds in and for Cumberland county at Carlisle, PeDDsylvania, in Deed
Book."V", Vol. 24, page 988, granted and conveyed to George Jones and Shirley Jones
husband llDd wife, GrllDtors herein. '
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This transaction shall be a:empt from any real estate transfer taz as it is a
conveyence from a Cather to son.
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AND tlu. said grantors lureby covenant and alfl"ee that they will warrant
specially the property hereby conveyed. ..
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IN WITNESS WHEREOF, said grantors have hereunto set their hands and
seals the d4y and year first abolJe written.
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Signedi'tJaled
in the ~ ce :
Delivered
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. .AI, ~~rge ~~i (Seal)
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i do hereby certify that the precise residence and complete post omce address
oC the within named Grantees is: .%3 'Shen.vood O\'I"e. ,CQl"II~e. p,+ 11 015
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Attorney for Grantees
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Stateof ~
County of &vm.l'~~ 1- #ff..41_
oflicer,~~;:O~~fz~ea;~ G~b~~Qr ~:~~J~NE~':r~~
and wife, known to me (or satisfactorily proven) to be tM persons whose names are
subscribed. to the within instrzunent and acknowledged that they e:ecuted the same
for the purposes therein contained.
IN WITNESS WHEREOF, I hUeunto set my hand and offidaJ sed',
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COMMONWEALTH OF PENNSYLVANIA :
. County' 'of
RECORDED on this
. in
: 88
.
.
A.D, 19
day of
the Recorder's Otice of said County, in Deed Book . Vol.
.
Page
Given under my hand and the seal of the said office, the date above written.
. Recorder.
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MADE THE (, oM.. day of ~..- -7
one thousand nine hundred ninety-four ( 994),
in the year of our Lord
BETWEEN. GEORGE R. JONES and SHIRLEY L. JONES, husband and wife, of
Middlesex Township, (R.D. #8, Box , Carlisle), Cumberland County,
Pennsylvania, parties of the first part,
Grantors,
and
RODNEY E. JONES, a single man of Middlesex Township, Cumberland
County, PennsylVania, parties of the second part,
Grantees,
.'
WITNESSETH, that in consideration of One and 00/100 ($1.00) Dollars, in hand paid,
the receipt whereof is hereby acknowledged, the said grantors do hereby grant and
conul!;)' to the said grantees, their heirs and assigns, as tenants by the entireties,
ALL that certain tract of land situate in Middlesex ToWDBhip, Cumberland
County... Pennsylvania, bounded and describsd as follows:
BEGINNING at a point in the center line of Township Road T.508 known as
. Burnheisel Mill Road at corner of land now or formerly of David M. Brownawell and
wife described in Cumberland County Deed Book "D", VoL 21, page 585, which point
at the Placs of Beginn;ng is One Hundred (100) fest East of the Northeastern corner
of land now or formerly of Clair E, Hardy and wife descnbed in Cumberland County
Deed Book "Goo, Vol. 20, Page 478; thence from said point at the Place of Beginn;ng
along the center line of said Burnheisel Mill Road, South 68 degrees 15 minutes East,
a distance of One Hundred (100) feet to a point in line of land now or formsrly of
Lynell W. Wolf and wife; thence along siad line of land now or formerly of Lynell W.
Wolf and wife, South 23 degrees 45 minutes West, a distance of One Hundred Ninety-
seven and Seven Tenths (197.7) feet to a point; thence still along line ofland of Lynell .
W. Wolf and wife, North 63 degrees 15 minutes West, a distance of One Hundred
ClOD) feet to a point at the Southeastern corner of said land now or formerly of David
M. Brownnwell and wife; thence wong the Eastern line of said land now or formerly
of David M. Brownawell and wife, North 23 degrees 45 minutes East, a distance of
One Hundred Ninety-seven and Seven Tenths (197.7) feet to a point in the center line
of said Burnheisel Mill Road at the Place of BEGINNING. -.~ .
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CONTAINING One Hundred (100) feet in front along the center line of
Bumheisel Mill Road and extending South!t'JU'dly therefrom at an even width a
distance of One Hundred Ninety-seven and Ssven Tenths (197.7) feet.
BEING ths same premises which L. B. PhiWps, Jr. and Robert M. Frey, as
Trustees of Edlu Corporation Profit Sharing Trust by deed dated September 12, 1978
and recorded September 18, 1978 in the Office or the Recorder of Desde in and for
Cumberland County at CarliBle, PellJlBylvaniain Deed Book "A., Volume 28, Page 986,
granted ancl conveyed to George R. Jones and Shirley L. Jones, his wife, Grantors
herein.
This transaction shall be exempt from any real estate transfer tu as it is a
conveyence from a father to SOil.
THE above-mentioned Township Road T-508 now known as Sherwood Drive,
was formerly known as BUrnheisel Mill Road.
.AND the said grantors hereby covenant and agree that they will warrant
specially the property hereby conveyed.
.-
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IN WITNESS WHEREOF, said grantors have hereunto set their hands and
seals the day and year first above written.
.
l!i ~:~ Seale d Delivered
In jrl~ne .
.)~-<-- A. ~ (Seal)
~Olp~ Jones
4~J~PA~Seal) .
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. I do hereby certify that the precise residence and complete post office address :
of the within named Grantee. is: 5 I I D.. /'I 1,-.1 P A /'
'. /I~/"'1 AJ;t'Vl~: 3 ~3 11!tW~ r1~,. ~a".. fie
Attorney for Grantees
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Slate of ~ :
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County of C_"tI ~<4~ :
On Ihi6, 1M ~.IJt day day of Q- - vy ,1.994, befbrtl me, 'the undenlgned
officer, personally appeared GEORGE R. JONiS and SHIRLEY L. JONES, husband
and wife, /mown to me (or satlsfactorily proven) to b. the persons whose names are
,ubscribed to the within instrument arid acknowledged that they a:ecuted the same
for the purposes therein contained.
.
IN WITNESS WHEREOF, 1 hereunto ,et my 1umd and official .ea2..
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C0M149NWEALTH OF PENNSYLVANIA :
County of
RECORDED on thi6
'. in
: B'
.
.
day of
A.D. 19
the Recorder's'O{ice of said County, in Deed Book . Vol.
Page
Given under my hand and the seal of the said offics, 1M date above written,
.
. Recorder.
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BOARD OF SUPERVISORS OF :
MIDDLESEX TOWNSHIP :
:
v. :
:
ZONING HEARING BOARD OF :
MIDDLESEX TOWNSHIP :
I
v.
I
RODNEY E. JONES I
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-7157 CIVIL TERM
Second hearina on zoninQ aDDlication - November 8. 1995
Mr. Harker on behalf of the zoning hearing board indicates
that this is "actually the amended application of Rodney E. Jones."
2
A fourth board member is apparently also at this meeting. 2
JOHN GLACE
Mr. Glace indicates that the first application has been
withdrawn and is a nullity. 2
Mr. Glace withdraws the first application for the record. 3
The new application requests a special exception for the use
and a variance for the size. 3
Mr. Glace states that the planning commission has recommended
approval of the special exception use but attached conditions,
"[a]nd so, we are here today only to discuss the lot size
dimensions as a variance." 3
A discussion is held about incorporating the record from the
earlier hearing. 4
The fourth member of the zoning hearing board withdraws from
voting on this item. 4
Mr. Glace now says that Mr. Harker "correctly characterized
this as an amended application." ?
Apparently it is decided that the record from the first
hearing will be incorporated. 7
The applicant Rodney Jones is called as a witness on his own
behalf.
.
RODNEY JONES
Mr. Glace summarizes the background I Mr. Jones purchased land
owned by his father and mother on Sherwood Drive, he cleaned up the
land and built a house on the front (lot Al on Sherwood Road at
3631 he owns a 1.47 acre lot (lot B) beside tl his mother resides
next door at 367 Sherwood. B
The franchise according to Mr. Glace requires that he be in
compliance with the zoning ordinances of his location and that he
have a place where parts can be shipped. B-9
Mr. Glace states that the planning commission has approved
this proposal with two contingencies - that the three bay garage
remain as it is in terms of size and that a variance be obtained as
to the five acres requirement in section 6.05 of the zoning
ordinance (special exception uses in an RF zone). 9
The acreage of all the property is a little less than four
acres according to Mr. Glace. 9-10
The building is not visible according to Mr. Glace from
Sherwood Road because of a privacy fence that has been built. 10
The board looks at a photograph which apparently has not been
sent up with the record. 10
Mr. Glace requests a variance for the property which is "a
little less than four acres, rather than the five acres." 11
Mr. Glace indicates that Mr. Jones will be testifying that his
mother intends to leave him her lot. 11
Or possibly she will sell it to him. 11
According to Mr. Glace, "[i]t is the game plan of Rodney
simply to have the motorcycle parts delivered to the pre-existing
garage, contain them in the garage, and use the garage as the
precondition for his business address." 13
The applicant testifies that he tried to have his mother
present but she was not home from work. 13
Mr. Jones testifies that he "paid for everything when my
father died." 13
He gives some explanation involving inheritance taxes for why
the lot on which his mother resides was not transferred to him when
his father died. 13
A board member, Ms. Neiderer, discusses the possibility of
conditions being imposed upon the applicant. 14-15
;(
.
The applicant is subjected to cross-examination by the
township solicitor, Keith Brenneman. 15-16
The applicant concedes that he does not own the lot that his
mother lives on now. 16
He expects the property to be given to him before her death.
16
He got the other two lots from his mother and father on
January 6, 1994. 16
Deliveries might be made to the property by UPS once or twice
a week. 16
Most of his sales would be at swap meets rather than on the
property. 17
His hours would be 9:00 to 5:00. 1B
These hours would be during weekdays. 1B
The doctors want to operate on him again and he may be laid up
for six months. 1B
On redirect examination by Mr. Glace the applicant says that
he does not intend to have any employees. 1B
Upon questioning by the board, Mr. Jones states that he is
required to keep a level of inventory of around $2500. 1B
The product is "like little bolt on chrome accessories." 19
The applicant does not want to get into putting the chrome on
the motorcycles himself. 19
On the other hand, he testifies that "[t)here could be some
guys that ask me to do that." 20
The operation will be confined to the garage and the garage is
42 x 60. 20
Mr. Jones testifies that he might do some installation but
"nothing real drastic." 21
Mr. Glace states that the neighbors seem to approve. 21-22.
Mr. Jones states that there might be an objection from "the
guy that lived in that trailer directly right beside me. He has
not been here. I mean, I've talked to him." 22 (I think Mr.
Jones is indicating the trailer occupant does not have an
objection) .
3
.
Mr. Jones discusses a "little sign" that he might want to put
up. 24
Mr. Harker makes the decision of the planning commission part
of the record.
Mr. Barker then reads the following into the record apparently
from the planning commission minutes: "The motion being that for
approval for special exception make the motion that we recommend
the petition exception upon the following conditions: that the
garage is situated on lot B, as identified in his application on
deed 1-6-94, the proposed use be limited to that lot, and that it
be contained and not go beyond the present garage base of 25 20
square feet, present building being a three-bay garage 42 x 60
approximately 1 and that the recommendation for the use be also
contingent upon the applicant getting the required variances to
allow this use in the RF district. Second by Mrs. Law. Not
opposed. Motion passed." 24-25
Mr. Brenneman and Mr. Glace make closing arguments to the
board, which are not transcribed. 25
,
4
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STEFANON & GLACE
ATIOIINllYS AT I.AW
407 NORn I "IIONT S'I1umT
"OST OI'l'ICI! 1I0X 12027
HAIIRISnUIIG, I'I!NNSYI.VANI^ 171ll1l.2027
AUG 3 1 REC'D
AN11iONY 511!I'ANON
JOHN M. GLACIl
!'1I0NIl 717.232.0511
11lLl!I'AX 717-233-2657
August 29, 1995
Middlesex Township Zoning Board
c/o Frank Gall, Jr., Zoning Officer
350 North Middlesex Road
Carlisl&, PA 17013
BE-1.URH RECEIPT REOUESTED
RE: Pending Zoning Relief Request Applicant: RODNEY B. JONES
Property: 363 Sherwood Drive
NOTICE OF AMENDED
APPLICATION FOR
HEARING BEFORE
ZONING HEARING BOARD
In light of Middlesex Township Planning Commission
recommendation of August 2B, 1995, in favor of the grant of the
pendant Special Exception request contingent upon the approval by
the Zoning Board of size variance from five (5) acres for non-
single family use to 1.47 acres, (the size of Lot B as described in
the pendant application), please amend the zoning relief
application before the Board to include a request for a size
variance as to lot size and lot width. The Planning Commission
recommendation also attached two (2) conditions: containment of the
limited retail sale enterprise described in the application to Lot
B and containment of that enterprise within the existing 3-bay
garage of approximately 2520 square feet. Applicant aqrees with
these restrictions.
Procedurally, Applicant applied on April 27, 1995 for a use
variance, that Zoning Board Hearing was held June 19, 1995 and was
closed, briefs were submitted, and the decision is pending.
Applicant has agreed to toll during this pendency the forty-five
(45) day requirement for a written decision. On July 2B, 1995
amended by agreement of parties on August 1B, 1995, Applicant
submitted the request for Special Exception now before the Board.
Applicant, by this notice seeks to amend that application to
include a request for a size variance, relief previously not
requested by either previous zoning relief application, but
specifically provided as a contingency to Planning Commission
recommendation for approval of August 2B, 1995.
.
Frank Gall, Jr., Zoning Officer
August 30, 1995
Page 2
During the application process for zoning relief and prior to
closure of the record, amendment for appropriate zoning relief is
permissible subject to a fair opportunity to any objectors to
present relevant evid~nce in opposition see Re ADDeal of Booz, 111
Pa. Cmwlth 330,533 A2d 1096 (19B7). The Zoning Ordinances of
Middlesex Township (Ord. No. 3-B9 as amended through August, 1994)
at Art:\cle XVIII do not proscribe or attach procedural
prerequisites to amendment of a pendant application for zoning
relief. Also, pursuant to Section 1B.04A of Middlesex Zoning
Ordinance and Section 90e ( 1) of th9 Municipal Planni'1g Code,
written notice of this amended request for zoning relief can be
posted for a time greater than the required one (1) week thereby
appropriately notifying potential objectors of the amended
application and complying with 1l22.z., supra. Accordingly, your
receipt on this amendment notice allows sufficient time to "re-
advertise" this amendment prior to September 13, 1995 Zoning Board
meeting.
Therefore, Applicant respectfully requests to amend his
Special Exception application to include a concurrent request for
a size variance of Section 6.05 of the Middlesex Zoning Ordinances,
more specifically as to minimum lot area and minimum lot width for
non-reeidential structures. Attached hereto is Section VII of the
application delineating the reasons for Applicant's request for a
size variance to be appended to the pendant Special Exception
request.
Please contact me relative to any notice or hearing
rescheduling problems.
JMG/kr
Enclosure
pCI Rodney E. Jones, w/enclosure
Edward W. Harker, Esquire, w/enclosure
Keith O. Brenneman, Esquire, w/enclosure
..
VI. .
hEQUEST FQR SPECIAL EXCEI'TION
THE PROPOSED USE IS CLAIMED BY THE APPLICANT:
""nalvl PI,": (III,. m:tlQll, of 1Ir. 1'111I/
1. To blln hllmonv wllh thl verloualllmlnlllnd obJlctlvlI 01 thl Campr
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2. Not 10 blI dllrlmlnullo thl chlrlctlr ollhl nllghborhood lor thl followIng rllaona:
.
T bl conlllllnt wllh such othlr lundlldl la rlqulrtd bV thl Zoning OrdlnlnClln Sletion
3. 0 IANch .ddltIDn.IIh..... If nle.SlIIY) Provision for compUlnc.
SlIndl,d
._ ._ of rII. Zonln, Ottlln_ fa, rII. .lMId.ttII fOt I........ of. IPfC/tI...."r/on.
NOTE: __._
VII. REQUEST FOR VARIANCE
...
.
1. ThtlppllClnt bllllVllkthtt thl Vblfl~"~: :;~~~dp~:p~~t;:r ':C:~:~~Wlng rlllon(I):
HI II unlbll to ml I ,,'lOnl
Unnecessary hardship peculiar to property (Lot B) exists. Middlesex
Planning Commission has recommended special exception for non-residential
use of Lot B in a RF zone. Lot B is 1.47 acres and in combination with
Lot A and 367 Sherwood Drive, property of Applicant's mother constitutes
approximate1y.4 acres. .
. "-hbo,hood for thl 'ollowlng rlllon(I):
2. Thl proposed vllllnCl will not Iller thl 1..lntlll cherlctll ,,: tool n...
The special exception use recommended by Planning Commission will be
self-contained in a pre-existing building on Lot B. No detrimental use
occur nor any alteration of neighborhood. By previous advertisement no
objectors presented themselves, but, to the contrary, several neighbors
have appeared of record to support special exception use and commend the
property clean-up.
i
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I
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will
I
I
I
d I t t of thl Zoning O,dlnlnCl for thl following renon(l):
. 3. Thl propolld Vllllnel II In Iccord with thl purposel In n In ~ ;
As demonstrated by the Planning Commission recommended approval of
Applicant's special exception use contingent upon grant of size variance,
the proposed enterprise as a use for .the property will not be detrimental
within the zoning district. The size of Lot B pre-existed the
present zoning ordinance as well as the nature of the 300 block of Sherwood
Drive (multiple residences and out buildings). No farm land will be forfeit
by grant of size variance.
BOARD OF SUPERVISORS OF
MIDDLESEX TOWNSHIP
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
ZONING HEARING BOARD OF
MIDDLESEX TOWNSHIP
CIVIL ACTION - LAW
v.
RODNEY E. JONES
NO. 95-7157 CIVIL TERM
Hearina before Middle.ex TownshiD Zonina Hearina Board - Mondav.
June 19. 1995
Introductions of parties. 3-5
John Glace, Esq. is representing the applicant, and is sworn
in to testify. 5
JOHN GLACE
Mr. Glace recites the history of the property, indicating that
the applicant's father, George Jones, died in January of 1993. 6
The Jones were residents of Middlesex Township for over 30
years, since the applicant was in the third grade, at the location
in question. 6
Prior to Mr. Jones' death, the Jones had transferred two of
their three lots to the applicant. 6
The applicant's mother still retains and lives at 367 Sherwood
Drive. 6
In November of 1992 the applicant, who had been an excavator
for John Gleim, was disabled in an automobile accident and is no
longer able to "really walk or to any effect perform any physical
labor." 7
As a result of a civil settlement in connection with the
accident, he "cleaned up the lots, he basically tore down the
residence, I believe there was a mobile home here, moved that, took
20 loads of scrap out - there were over 20 vehicles in this lot
cleaned it all up." 7
The applicant built his residence at 363 Sherwood Drive and a
garage on the rear lot with an easement driveway between the two
lots. 7
He is requesting a variance so that "he would have a home-
based, income-producing property." 7
'"
He would be a franchisee from a California corporation (he has
been approved) called Custom Chrome, Inc. 7
"What they do is they take Harley Davidson parts and they
chrome them and then he will retail sale them either from this
location but probably to the much greater extent ... from a truck."
7-B
He will be eesentially going around to shows in a trailer and
truck which he owns, this will be a sole proprietorship, and he
needs a business location. B
Mr. Glace shows some pictures to the board. B
A privacy fence has been installed. B
Mr. Glace passes around a tax map. 9
The neighbors have appreciated the fact that the applicant
cleaned up the properties. 10
"Now what he's doing is asking the board to grant a variance
to allow him to use 363 as a business address to get the motorcycle
parts, to put them in his trailer and go out to shows or" to have a
customer come to the rear property, not the property abutting the
road, coming through his driveway." 10
RODNEY E. JONES
The applicant calls himself Rodney E. Jones as a witness. 11
He lives at 363 Sherwood. 11
He corroborates Mr. Glace's testimony. 11
He has applied to 50 to 75 places for jobs but nobody wants to
hire him because of his leg, which has a steel femur in it. 11
The chrome custom parts franchise is available to the
applicant. 12
He has been in communication with Chrome Custom Parts for a
few months. 12
The parts would be delivered by UPS. 12
He has built a privacy fence. 12
Mr. Jones is subjected to cross-examination by the board. 13
The applicant indicates in response to the chairperson's
question that his hours would be 9: 00 to 3: 00 or 9: 00 to 5: 00
2
,.
Monday through Friday. 13
He does not intend to publicize this as a business location.
13
Any retail sales would be conducted inside the building if the
sales were at the premises. 13-14
The company requires him to have a "home base." 14
He would not do any chroming in the building, the company
would do all of that and he would merely sell the chromed parts
from the building or out of his truck. 14
He has had a sign prepared which could be hung on the
building. 14-15
There would not be "meets" at his house. 15
JOHN CHURLICK
John Churlick is called as a witness on behalf of the
applicant. 15-16
Mr. Churlick and his wife live at 329 Sherwood Drive, she is
also present. 16
Mr. Churlick.praises the applicant for improving the property
by cleaning it up and indicates that you have to look hard to see
the garage from the road. 16
Mr. Churlick indicates his wife agrees with his testimony. 16
JOHN GLEIM
John Gleim raises his hand and is sworn in to testify. 16-17
The property that the applicant lived at used to be a "rat
hole." 17
Mr. Gleim lives at 450 Sherwood Drive. 17
A person would not even know the business would be in
operation unless he looked for it. 1B
Mr. Gleim has heard no complaints among the neighbors about
the applicant's proposal. 1B
RODNEY JONES
The applicant Rodney Jones is recalled for cross-examination
by the township solicitor, Keith Brenneman. 1B
3
At the present time the applicant sells a few of his own
motor-cycles from the premises. 19
The applicant has gotten a few parts from the company and uses
them on his own motorcycles. 19-20
Be has been getting things in "maybe once or twic& a week."
20
He expects that the ratio of off premises business to on
premises business would be about 3 to 1. 21
His request is limited to the sale of chrome parts through
this one supplier. 21-22.
The supplier is CCI, Custom Chrome, Inc. 22
This is an "after-market place" enterprise. 22
The building in question is 42 x 60. 22
The applicant's femur is still in his leg but he has a steel
rod so that it is called an affixiated femur. 23
He is allowed to be on his leg 2 or 3 hours at a time. 24
He can lift up to 50 pounds but is not supposed to squat or
climb. 24
JOHN GLACE
Mr. Glace reads a letter which he wrote to Custom Chrome, Inc.
concerning the present application for a variance. 25-26
This letter was dated April 4. 26
FRANK GALL
Frank Gall, zoning officer for Middlesex Township, presents
himself as a witness.
The property is locate.sl, "about 500 feet approximately from
residential country area." :1' 2. b
Mr. Gall says that the lot is 60,000 square feet, that the
zoning book at page 3-89 "identifies it for other uses as permitted
uses, it would be 5 acres single family dwellings under this
ordinance, which is 60,000 square feet." (This testimony is
unclear. ) ~ 1.'7
The garage is barely visible from the road. 27
4
The garage is visible from the road but you might miss it
driving by. 27
Mr. Gall's testimony is very confusing as to the lot size and
conformity with the ordinance. 27-2B
RODNEY JONES
The applicant Rodney Jones is recalled for testimony. 2B
In response to a question from the chairperson, Mr. Jonea
indicates he would not object to a condition that there be no
employees. 29
He pledges no advertising. 30
The applicant states that he does not intend to restore
motorcycles. 31
FRANK GALL
The township zoning officer, Mr. Gall, interjects that the
problem here is that the use proposed is not a permitted use and
not allowsd by special exception. 32
Mr. Gall states that it would be more appropriate for village
center, commercial highway, or light industry, probably in that
order. 32
MARY CHURLICK
Mary Churlick presents herself as a witness. 33
Ms. Churlick says that she knows Rodney and his property is
cleaner than another in that area. 33
Mr. Glace makes a closing statement. 33-34 (not transcribed).
Mr. Harker requests memoranda from counsel as to their legal
positions and indicates that a public meeting will be held at a
subsequent date to review the matter further. 34
5
1
n
1
MIDDLBSBX TOWNSHIP ZONING HEARING BOARD
CUMBBRLAND COUNTY, PBNNSYLVANIA
PUBLIC HEARING
2
3 IN RB:
APPLICATION OF RODNEY E' JONES
4 RBQUEST FOR VARIANCB
5
6
Middlesex Township Municipal Building
350 North Middlesex Road
Carlisle, Pennsylvania
7
8
Monday, June 19, 1995
Met, pursuant to notice, at 7:00 p.m.
9
10
.,
f:>
11 BBFORE:
JOAN PATTISON, Chairperson
12 LOIS WEARY, Board Member
KBLLY NBIDBRBR, Board Member
13
14
15 ALSO PRESENT:
16 FRANK GALL, Zoning Officer
17
18 COUNSEL PRBSBNT:
19
20
21
22
23
24
~.,
0 25
EDWARD W. HARKBR, BSQUIRE
Middlesex Township Zoning Hearing Board
KBITH BRBNNEMAN, ESQUIRB
Middlesex Township Board of Supervisors
ORI 81 NAL
CENTRAL PENNSYLVANIA COURT REPORTING SERVICBS
(717) 258-3657 or (800) 863-3657
CENTRAL PENNSYLVANIA COURT REPORTING SERVICES
(717) 258-3657 or (800) 863-3657
3
~
1
THB CHAIRPBRSON: Good evening, ladies and
2 gentlemen. I'd like to call the meeting to order. This is
3 the Middlesex Township Zoning Hearing Board. To my right is
4 Lois Weary and Kelly Neiderer. My name is Joan Pattison. I'
5 the cochairman tonight.
6 We're going to hear two applications, the
7 application for variance for Rodney Jones and the application
8 for Mr. David Lutz and Virginia Smith for a special
9 exception.
10 Mr. Gall, have these applications been properly
11 advertised and posted?
12
MR. GALL: Yes, they have.
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13
THE CHAIRPERSON: Our solicitor is Mr. Ed Harker.
14 Mr. Harker.
15
MR. HARKER: Good evening.
THE CHAIRPERSON: Good evening. Would you explai
16
17 the procedure?
18
MR. HARKER: Well, the procedure is very simple
19 and informal by comparison to what some of you might see in
20 court. We pretty much allow all evidence, including hearsay
21 to the extent that it can be verified or corroborated and
22 relevant, but we would like to exclude any repetitious or
23 unduly redundant evidence or irrelevant evidence.
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24 Persons who are interested in the proceeding can
25 enter a written appearance if they choose to do so. It's not
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1 required, but we have a form for that purpose if they wish to
2 be considered parties of record. The applicants will speak
3 first and present their case, after which we can hear from ou
4 zoning officer, Mr. Gall, and anyone else interested in the
5 matter.
6 Is Rodney E. Jones present and prepared to
7 proceed?
8
MR. GLACE: Yes, he is. And he's represented by
9 counsel John Glace.
10
MR. HARKER: Mr. Glace, you can, if you're more
11 comfortable
12
MR. GLACE: Is this a call to the bar?
13
MR. HARKER: I think, it's not necessary, but you
14 might feel more comfortable there. Mr. Glace, now we would
15 like to swear in all the witnesses who are going to testify i
16 this matter at one time.
17
MR. GALL: Mr. Harker, we're expecting Keith
18 Brenneman and he's not here. I wonder if we can have a few
19 moments.
20
MR. GLACE: We have no objection if the other
21 matter would go first, if they're prepared to proceed.
22
MR. HARKER: I think the other matter was
23 expecting to come a little later so you could go first.
24
MR. GLACE: Here's Keith now.
25
MR. HARKER: Just in the nick of time. We were
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1 about to proceed. Do you need any time to prepare with
2 Mr. Gall?
3
MR. BRBNNEMAN: No, I don't.
4
MR. HARKBR: Do you know Mr. Glace, attorney for
5 the Jones?
6
MR. GLACE: Mr. Brenneman.
7
MR. HARKER: We've made the introductions. Now I
8 think we're ready to proceed.
9
MR. GLACB: Prior to presenting testimony for
10 Rodney I'd like to make a brief -- several brief opening
11 statements.
12
MR. HARKBR: Would you like to have your comments
.
13 considered testimony and be sworn too?
14
MR. GLACE: I beg your pardon?
MR. HARKER: Would you like to have your comments
15
16 considered to be testimony? You can be sworn in as well.
17
MR. GLACE: That sounds fine to me. Normally as
18 an attorney I don't testify but I will.
19
MR. HARKBR: Why don't you all who are going to
20 testify stand and raise your right hand, please.
21 (Sworn en masse.)
22
MR. HARKBR: Mr. Glace.
23
24
JOHN GLACB, called as a witness, being duly sworn,
\.)
25 was examined and testified as follows:
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DIRECT TESTIMONY
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MR. GLACE: The application which we submitted
3 really I think encompasses everything, but there are two
4 events that lead to this request. The first really occurred
5 in January of 1993, and that was the untimely and sudden deat
6 of George Jones, who is Rodney's father. And the Jones's hav
7 been a resident of Middlesex Township for well over 30 years,
8 really since Rodney was in the third grade, at the Sherwood
9 Drive location. Prior to Mr. Jones's sudden death he and his
10 wife Shirley who survives him, his widow, now transferred two
11 of their three plots to Rodney.
12
If you have the application, I have a
I've mad
o
13 some things here too, but the application as well as this, the
14 plots -- and this is the Sherwood Drive (indicating), this is
15 from the tax map so this is the entire group of residence.
16 And this is an expansion of it. The lots that were
17 transferred are the orange lots; and the yellow one, 367, is
18 where his mother still lives. They transferred these two lots
19 to Rodney (indicating), and then unfortunately Mr. Jones
20 died.
21 The next event that really occurred before this
22 and actually it occurred before Mr. Jones's death, was in
23 November of 1992. Rodney who was employed for a great number
24 of years as an excavator for John Gleim, was in a severe moto
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25 vehicle accident. Three people were very seriously injured,
;
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lone was killed. He was disabled. He had a crushed femur. H
2 is no longer able to really walk or to any effect perform any
3 physical labor. In anticipation of a civil settlement this is
4 why the transfer occurred.
5 Subsequent, there has been a civil settlement and
6 with that wherewithal that he gained he cleaned up the lots,
7 he basically tore down the residence, I believe there was a
8 mobile home here, moved that, took 20 loads of scrap out --
9 there were over 20 vehicles in this lot -- cleaned it all up.
10 And on my other display I will show you what is resulted. He
11 basically has built his residence at 363 and then his garage
12 in the rear lot with an easement driveway between the two
13 lots, of course the other one being his mother, mother's lot.
14
He has received the settlement now. He is
15 basically looking to get on with his life. As a disabled
16 person then, he is essentially asking the Zoning Board to
17 grant a variance so that he would have a home-based,
18 income-producing property.
19 As the application says, though, that no
20 modifications whatsoever is needed. The reason why he needs
21 it home based is he needs an address because he will be a
22 franchisee from a California corporation. He's approved but
23 for this. It's called chrome -- CUstom Chrome, Incorporated.
24 What they do is they take Harley Davidson parts and they
25 chrome them and then he will retail sell them either from this
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1 location but probably to the much greater extent -- and I'll
2 have him testify to this -- from a truck. Where's the pictur
3 of the truck?
4 This is essentially a situation where he's going
5 around to shows -- he already owns the trailer and the truck.
6 I'll pass it to the board. In fact, you might want to pass it
7 to them. He already owns the trailer. What is important is
8 that he has a business location. He has -- he's qualified to
9 collect sales tax. He has the federal EIN numbers. This will
10
11
12
0 13
be not a corporation or anything but simply a sole
proprietorship, and he needs this as a business location.
(Exhibits A and B were marked.)
Now, the first exhibit, and then I will pass it
14 here, is how the property exists now. There is one
15 modification that has occurred. His neighborhood, this is th
16 mobile home, he has built a privacy fence, so basically he has
17 a parking lot that is fenced off from everybody but his
18 mother's property. This is the house (indicating). In fact,
19 there's the advertisement; front of it the modular home that
20 Rodney has built to live in. There are several views of
21 this. This is the rear of the house with the parking lot
22 before the garage. This is the garage. This is up on the
23 hill where you can see where the trailer's parked behind
24 (indicating).
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25
Now, actually we did the estate, and with 20
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1 vehicles registered to his father we had to get a valuation.
2 I apologize for the snow here, but this is the way it used to
3 look. So anything below this is prior to clean up.
4 And finally I refer on the application to a sign.
5 Now the sign wouldn't be on Sherwood Drive but it would be
6 placed on the garage. It's called -- it basically says
7 Jones's and this -- it's not attached or anything. It's just
8 leaning against it, but the sign is already painted and withi
9 Middlesex parameters.
10 I'll pass this forward for the board to look at.
11 And if you have any questions of me I'd be glad to answer the
12 as you're looking at that.
Q
13
In this second and larger exhibit, as the tax map
14 points out, there are several properties, so I wanted
15 everybody -- I'm sure everybody knows Sherwood Drive, but this
16 gives you a brief encapsulation of what the nature of the
17 neighborhood is. This is the area, oh, about three quarters
18 of a mile, half a mile up from the Ridings. And this road
19 extends around the bend there, so these properties are all
20 grouped together. Beginning right here is 393, 391. You can
21 see some of the properties are grouped together, the numbers.
22 And there are a number of outbuildings attached to many of th
23 properties. It extends all the way down to his neighbor's.
24 This motorcycle was for sale by his neighbor, not by him. But
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25 that's the neighbor 361. All right. I'll pass the board this
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1 exhibit as well.
2
Now, this is a long-standing neighborhood. And
3 again, Rodney will discuss that, but essentially he knows all
4 the neighbors. They came up, they saw the property being
5 cleared, actually John Gleim helped him move away the disable
6 vehicles. There were a lot of trailers, actually excavated
7 for the new house. The neighbors knew what was going on.
8 They also knew Rodney was in this accident, so they also
9 understood the source of his money from his settlement. He
10 has had many comments about their appreciation for the
11 property clean up. In fact, I'm told -- I wasn't there -- but
12 Rodney and Mr. Gall were there when Chief Sherman was there
o
13 when he posted it. He even commented, wow, you've cleaned
14 this up.
15 What we're asking for, and this is -- is a
16 circumstance where this individual who is now disabled will b
17 able to continue on with his livelihood. Now before this
1B admittedly he was a motorcycle hobbyist. He built and
19 restored motorcycles. Now what he's doing is asking the boar
20 to grant a variance to allow him to use 363 as a business
21 address to get the motorcycle parts, to put them in his
22 trailer and go out to shows or to have a customer come to the
23 rear property, not a property abutting the road, coming
24 through his driveway.
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(Witness was excused.)
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MR. GLACE: I'd like to call Rodney to the stand
2 or wherever he testifies from.
3
4
MR. HARKER: He can stay right there.
5 RODNEY E. JONES, called as a witness, being
6 previously sworn, was examined and testified, as follows:
7 DIRECT EXAMINATION
8 BY MR. GLACE:
9
Q
10
A
11
Q
12
A
o
13
Q
14
A
15
Q
16 I've said?
17
A
18
Q
19 elsewhere?
20
A
Can you state your full name for the record?
Rodney E. Jones.
And you live at 363 Sherwood?
Yes.
And you heard all the comments I made?
Yes.
Do you have any additions or deletions to what
No, not really.
All right. Have you tried to find employment
21 applications in.
Yes. I have probably about 50 to 75 job
22
Q
23
A
And what seems to be the hold up?
Nobody wants to hire me because of my leg. I have
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25 insurance.
24 a steel femur now. Everybody's afraid to put me on their
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Q
All right. I've represented to the board that th
2 franchise is available to you if they grant their approval to
3 use it as a business address. Is that a correct statement?
4
A
Yes.
Q
How long have you been in communication with
5
6 chrome -- what is it Chrome CUstom Parts, correct?
7
8
9
10
A
A few months.
Q
All right. How will they deliver the parts?
A
U.P.S.
Q
Now, again, I represented to the board you have
11 built a privacy fence; is that correct?
o
12
A
Yes, yeah. It's -- I talked it over with my
13 neighbor. He didn't care.
14
15
16
Q
You're saying you talked some with your neighbors?
A
Yeah.
Q
This has been advertised in the neighborhood and
17 you've talked to the neighbors?
18
19
20
21
A
Yes.
Q
Have you heard any adverse comments from anybody?
No.
A
Q
All right. Now about the property clean up, have
22 you heard any comments?
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24
25
A
Yeah, I've heard about a few about that.
Q
What were they? Were they good or bad?
A
Yeah, yeah, good on what I did.
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Q
All right. And do you have any intent to move
2 away from this and just turn it into a business property?
3 That's where you're going to live, right?
4
A
Yeah, yeah, I'll live there. I didn't do all that
5 for nothing.
6
MR. GLACE: All right. Does anybody else have an
7 questions?
8 CROSS EXAMINATION
9
THE CHAIRPERSON: Are you planning on having
10 hours?
11
THE WITNESS: Yeah, it would probably be nine to
12 three or five or something like that.
0 13 THE CHAIRPERSON: What days?
14 THE WITNESS: Monday through Friday. I like my
15 weekends.
16 MR. GLACE: Let me ask this, Rodney: Are you
17 going to advertise this as a business location?
18
THE WITNESS: No, not really, no.
19
MR. GLACE: In other words, you're not going to
20 publicize this as a business location?
21
THE WITNESS: No, no.
22 BY THE CHAIRPERSON:
23
Q
So if you had retail sales they would be in the
24 building?
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A
Yeah.
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A
14
Is that the picture?
But I have a truck with the trailer I'd like to --
3 that's where a lot of it -- you can go to swap meets and stuff
4 like that, like when they have Carlisle in town.
5
6
Q
A
I meant at your property.
Yeah, it would be inside, yeah. What this is is
7 the company that I want to go with, they want you to have
8 they want, you know what I mean, they want to have an
9 address. They want to have a home base, you know, to do
10 anything, you know, that's --
11
Q
But you would chrome some of the parts and you
12 would do that?
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13
A
14
Q
15
A
16
Q
17
A
18
Q
19
A
20
Q
21
A
22
Q
No. They do all that. I do --
They do that?
I get it from them through U.P.S.
So you would sell the chromed parts
Yeah.
-- in your building?
Yeah.
-- or out of your truck?
Yeah.
And the sign is going to be placed against your
23 building the way it's pictured, is that what your intent was?
24
A
Well, I could hang -- I could hang it on there. I
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25 guess what he was getting at, like putting it out along the
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2 THE CHAIRPERSON: Any questions?
3 MS. WEARY: You don't intend to come to your hous
4 and have meets?
5 THE WITNESS: No, no, no.
6 MS. WEARY: It's just the business?
7 THE WITNESS: Yeah. No, nothing like that.
8 FURTHER DIRECT EXAMINATION
9 BY MR. GLACE:
10
Q
The chairwoman's brought up a resilient point.
11 But for water out there, you're not going to dispose of any
12 sort of cleaning fluid or anything like that?
0 13 A
14 Q
15 something?
16 A
17 that's, you
No, no.
There won't be anything but water maybe to wash
Most -- yeah, wash my own vehicles. But I mean
know, most you have is boxes and Sterofoam pellets
18 or whatever they put in that they pack the stuff.
19
Q
What do you do with your trash now?
Trash man takes it.
20
A
21
MR. GLACE: Does anybody else have any questions
22 of Mr. Jones?
23 (Witness was temporarily excused.)
24
MR. GLACE: I have some brief testimony from John
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25 Churlick then.
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1
JOHN CHURLICK, called as a witness, being
2 previously sworn, was examined and testified, as follows:
3 DIRECT TESTIMONY
4
MR. CHURLICK: My is name John Churlick, 329
5 Sherwood Drive. Rodney's done vast improvement to clean up
6 the property and is very pleasing to the eye. The garage
7 itself, unless you look hard you can't see it from the road
8 when you go by. And it's a vast improvement to the
9 neighborhood.
10
MR. GLACE: This is your wife beside you. She
11 concurs why with your testimony?
12 (Witness nodded head.)
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13
CROSS EXAMINATION
14
MR. NEIDERER: Do you have any concerns about the
15 traffic that would be --
16
MR. CHURLICK: No not all -- pardon me.
MR. NEIDERER: entering or exiting the
17
18 property.
19
MR. CHURLICK: No, but he has made the property
20 look quite well. I've been there many times. You see no
21 trash, no junk laying around. It's -- he keeps it very
22 clean.
23 (Witness was excused.)
24
MR. GLACE: There's a gentleman raising his hand.
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MR. GLEIM: May I make a comment about this?
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THE CHAIRPERSON: Yes, you may.
MR. HARKER: Do you want this to be testimony.
MR. GLEIM: You can put it in testimony.
MR. HARKER: Then you'll have to be sworn.
JOHN GLEIM, called as a witness, being duly sworn,
was examined and testified, as follows:
DIRECT TESTIMONY
MR. GLEIM: John Gleim, 450 Sherwood Drive.
10 Rodney has lived down there since, like they said, third
11 grade. This boy worked for my brother. And to give you an
12 idea of some of his character, this isn't his first major
13 physical mishap that he's had. Going to work one morning for
14 my brother he hit a deer on his motorcycle. They hauled him
15 away in an ambulance. And he still came back to work and
16 could hardly walk some days then. So he is not a lazy person
17 and he tries to work. Then he had this last accident and he
18 can't work anymore.
19
I've been around him. I've seen him try to do
20 things that he used to do without a thought and now it almost
21 brings tears to his eyes from the physical pain. And this
22 property that he lived at used to be a rat hole. And he has
23 cleaned it up, and I know because I hauled a lot of it away
24 myself.
25
Like John said, this business that he intends to
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1 operate, you don't even know it's there from the road unless
2 you look for it. And as far as staying there, if you knew th
3 hassle he went through to build this home that he just built,
4 we had three different
how many, three different house
5 contractors you dealt with. First they were going to set a
6 modular home on a pier, now it's on a basement, poured
7 concrete walls. So the man doesn't intend to build a business
8 and move out. This is Rodney's home. This is where he's
9 going to live the rest of his life. At least from the
10 investment he's made if he moves away he's a fool.
11 And if you envision packs of motorcycles coming
r,:>
12 down there, most of the people that are coming for parts are
13 working on the motorcycles so it's already disabled and they
14 come in pickups or cars, whatever. No one in the neighborhoo
15 that lives on Sherwood Drive, I have not heard anyone have an
16 complaints or fears of him operating this business. So that's
17 all I wanted to add.
18 (Witness was excused.)
19
THE CHAIRPERSON: Thank you very much. Anyone
20 else? Mr. Brenneman.
21
22 (Rodney Jones, recalled.)
23 CROSS EXAMINATION (Cont'd.)
24 BY MR. BRENNEMAN:
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25
Q
If could ask some questions of the applicant.
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1 Mr. Jones, are you conducting any business on that site right
2 now?
3
A
Just of my own, doing my own things helping other
4 people out till I learn what I do. I've all been self taught
5 what I do.
6
Q
Are you conducting any sort of business for a
7 profit or gain?
8
A
9
Q
10 do sell?
11
A
No, no.
In other words, are you repairing motorcycles you
My own, yeah, I' sell a few of my own. I grow
o
12 tired of them and get rid of them, you know, something like
13 that.
14
Q
Have you ever serviced anybody's motorcycle on
15 your property for money?
16
A
No. People pay for their parts. They get their
17 parts and pay for them. They get their own parts at the auto
18 shop or something.
19
Q
20
A
21
Q
Have you been selling parts from the property now?
No.
The franchise that's available to you, if I
22 understand what your attorney said, that is not available
23 until you get approval; is that correct?
24
A
Well, they did it, you know what I mean, I have
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25 some parts there now that I have got from them, but they
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1 don't, you know, they can stop it, you know. They want it
2 legal. They want it -- they don't want to -- they're worried
3 about their thing, you know what I'm saying? They don't want
4 to -- they don't want to do it unless it's legal, you know.
5 That's the way they like to operate.
6
Q
7
A
8
Q
9
A
So they've provided you with parts and you're --
Yes.
-- you're
I'm using them up myself. I do my own bikes. I
10 own quite a few bikes myself.
11
Q
Are you traveling around with those parts at this
12 point selling them?
o
13
A
I haven't lately. I've done one thing, you know,
14 I went to one swap meet.
15
Q
The parts that are going to be delivered or are
16 being delivered to the property, are they delivered by U.P.S.
17 on a regular basis?
18
A
19
Q
20
A
Yes.
With what frequency?
Of the stuff I've been getting I'd say maybe once
21 or twice a week, twice a week maybe.
22
Q
23
A
24
Q
Depending when you place an order?
Yeah.
And is it your intention to do the majority of
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25 your sales off premises at these meets?
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A
Yeah, that's where most of the stuff I get, you
2 know, you know what I mean, a lot of it's going to be for
3 myself or on bikes that I fix up and do myself. It's a great
4 savings to me to be able to do that than have to go buy it
5 from somebody else being able to buy it at cost. That's, you
6 know
7
Q
Can you quantify for the Zoning Hearing Board what
8 amount you expect to sell off premises as opposed to the
9 amount that you would expect to sellon?
10
Oh, I would say it would be triple off premises of
A
11 what it would be on premises.
12 Q About three to one?
0 13 A Yeah, with the swap meets and stuff that's
14 that's what it's all about really. That's, you know.
15 Q Your advertising, how do you tend to advertise?
16 Is this something you do in the phone book? You just do just
17 by word of mouth? How's it done?
18 A Word of mouth, yeah. It's, you know, I've just --
19 I've been around this all my life, you know what I mean, and
20 people know what I do. I mean, I've always
you know,
21 something I've always done on the side, that's why I decided
22 this is the only other thing I can do, you know, it's the onl
23 thing I know.
24
Q
Your request then is limited to simply the sale of
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25 these chrome parts through this one supplier; is that correct?
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2
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3
A
4
Q
5
A
6
Q
7 of them?
8
9
A
Q
10
A
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Q
22
Yeah, yeah.
No plans on expanding product line --
No.
-- in any other area?
No.
And this franchiser is who again? What's the nam
CCI, CUstom Chrome, Incorporated.
And are they related to Harley Davidson?
It's an after-marketplace is what it is.
The garage in which you're going to be doing
12 business, that was built some time ago, was it not, as a
o
13 storage facility?
14
A
Yeah. I have, like, for my own motorcycles and
15 things that's, you know -- but I have a real nice truck,
16 that's where I keep my truck at.
17
Q
18
A
19
Q
20
A
21
Q
22
A
23
Q
24
A
"._-,
U
Was that constructed by your father?
No, Morton Building put the shell up.
For your father?
No.
No?
No.
And how big is that building again?
Forty-two by sixty. I used to have a boat, that's
25 what I did. I wanted to keep my boat inside and all that
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1 stuff.
2
3
Q
Oh, okay. You got a permit to build that then?
Yeah.
A
4
Q
So does that house your boats and your vehicles
5 and things like that?
6 A Yeah.
7 Q Let me ask you about your disability, if you don't
8 mind. You indicated you have a steel rod in place of where
9 your femur was; is that correct?
10
A
My femur's there but I have a steel rod. They
11 call it an affixiated -- it's an affixiated femur right now.
12 They're thinking about operating again.
o
13
Q
To take it out?
14
A
Yeah.
15
THE CHAIRPERSON: Mr. Brenneman, could I interrupt
16 your questioning?
17
MR. BRENNEMAN: Certainly.
18 (Representative Masland presented testimony for
19 the succeeding hearing.)
20
THE CHAIRPERSON: Mr. Brenneman, do you want to
21 continue?
22
MR. BRENNEMAN: Thank you.
23 BY MR. BRENNEMAN:
24
Q
Mr. Jones, I was asking you about your medical
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25 condition. What specific physical limitations do you have?
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A
Well, the doctor has a stipulation I'm allowed to
1
2 lift, I think it's like 50 pounds. I'm not allowed to squat.
3 I'm not supposed to climb. I'm only allowed to be on my leg
4 like two or three hours at a time. It's, you know
5
Q
Do your limitations interfere with your ability t
6 load your truck and travel around to different swap meets?
7
I -- I wouldn't carry as big boxes what I did
A
8 before, you know. That it would probably -- things take me
9 longer now than what they used to. I mean I don't -- you
10 know, I try to do what I can. A lot of things would probably
11 be left in the trailer, you know what I mean. Once they were
12 boxed up they would just be left in there. That was the idea
o
13 of having a big trailer which you could let things in, you
14 ain't unloading and loading it all the time. That's mainly
15 what that's about.
16
Q
Do you anticipate having any employees, anyone to
17
assist you?
18
A
Not now. This is all pretty new to me. I -- you
19 know what I mean? I mean, I have guys, you know, come down
20 and help me out that just, you know -- you know, guys in the
21 neighborhood or whatever just help me, but -- guys that I
22 help, but there's no nothing like that. I don't -- I don't
23 really foresee that, no.
24
MR. BRENNEMAN: That's all the questions I have.
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25 Thank you.
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1
MR. GLACE: Possibly to clarify Mr. Brenneman's
2 question, I apologize for not making a copy of it but I have
3 an April 4th, 1995 letter that I wrote to Barbara Pokrin,
4 p-o-k-r-i-n, it's dealer development CUstom Chrome, Inc.,
5 16100 Jacqueline Court, Morgan Hill, California, 95037. It's
6 two paragraphs and I'd like to read it in the record and
7 represent that I telefaxed it and mailed it to this customer
8 development representative. She was asking what the status
9 was of formation of Rodney's business. I was advising him ho
10 to get an EIN, how to get a tax number, and as well recognize
11 that there would be a a zoning problem and advised him the
12 channels to go through. I faxed that letter and mailed it.
o
13
It basically says, "please be advised that this
14 law firm represents Rodney E. Jones, your applicant for a
15 dealership in your custom products. Mr. Jones has asked this
16 firm to make application for zoning variance to permit retail
17 sales of your product in his specialty constructed garage. It
18 is my understanding that he has previously submitted
19 photographs of this garage as well as proof of his issuance of
20 a Pennsylvania sales tax number. In regard to the zoning
21 variance, please be advised that the application has been
22 submitted and is now under review by the Zoning Review Board
23 of Middlesex Township, Carlisle, Pennsylvania. I prefer not
24 to speculate on the outcome of his application for variance,
u
25 but please be advised that Mr. Jones will zealously pursue
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1 this application. If you have any questions whatsoever,
2 please don't hesitate to contact this office."
3 That was the status on April 4th, what we
4 advised. It's CUstom Chrome, Inc. And I'm reading that in
5 the record to clarify maybe some of the questions
6 Mr. Brenneman asked, that Rodney does have some parts for his
7 own use where you can buy them, but he has not yet entered
8 into the retail sales per se.
9
MR. HARKER: Do you have any other witnesses,
10 Mr. Grace?
11
MR. GLACE: We don't have any at this time.
12
MR. HARKER: Are there any other persons present
o
13 this evening who care to participate or give testimony in the
14 Rodney Jones matter? Mr. Gall, are you going to speak as
15 zoning officer this evening or has it been covered?
16
17 FRANK GALL, called as a witness, being previously
18 sworn, was examined and testified, as follows:
19
MR. GALL: It's essentially been covered. The
20 location itself
well, yes, I would like to speak. Just to
21 insure -- although we've gone over it already -- to insure
22 where the location is, the location of the property is
23 essentially right here (indicating). It's about 500 feet
24 approximately from residential country area. This road right
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25 here goes into the Meadows, and as you may be familiar, on
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1 this side it goes into the Ridings. The Meadows is in the
2 residential country area. The Ridings is in residential
3 farm. Primary density is located along this road, as the
4 pictures you were shown earlier depicts, and it goes basicall
5 up to the curve right here. So that's basically it.
6
The lot itself I think is around 300 -- well, a
7 little bit over 60,000 square feet I believe. And as the
8 zoning book 3-89 identifies it for other uses as permitted
9 uses, it would be five acres single family dwellings under
10 this ordinance, which is 60,000 square feet. Of course lot A,
o
11 which is the front of the property, would be exempted from
12 this as a preexisting condition. However, lot B in the back
13 of it would qualify for a single family housing. It's a larg
14 lot. And that's all I have. Any questions?
15
THE CHAIRPERSON: Is the garage visible?
MR. GALL: The garage is visible from the road.
16
17 It's a very large garage. But if you weren't paying any
18 attention and driving quickly you'd probably go right on by
19 it. It's like I said, not very far from this entranceway
20 here, which crosses over at the intersection to the Ridings.
21
THE CHAIRPERSON: Is it the right -- is it the
22 size it's allowed for zoning residential farm? Is it
23 consistent with the size of the lots?
24
MR. GALL: The lot is consistent with what I have
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25 right now as residential farm.
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1
MR. GLACE: It's 4.47 acres. This is the rear.
2
MR. GALL: For single family dwellings, the
3 location of the garage itself, I'm not sure where the garage
4 is placed right now on the lot when it was built for the
5 setback.
6
MR. GLACE: I think it would be a clarification.
7 Mr. Brenneman, get a look
actually the other one. I might
8 as well leave these here and for purposes of exhibits. The
9 one picture, the smaller one, we'll call Exhibit A and we'll
10 call this Exhibit B. But this again there's -- there's a
11 privacy fence here now, but here's the large garage, here's
12 the lot in front of it, the house in front would be his
o
13 residence. This is the picture directly from the road. And
14 when you say you can see the garage, you really have to be
15 looking for the garage. This lot is 200 feet deep and a
16 hundred feet of road frontage. Again here's a closer picture
17 of that and you still can't really see the garage, although
18 you can see the garage has three bays and an office area.
19
20
(Rodney Jones, recalled.)
21
CROSS EXAMINATION (Cont'd.)
22
THE CHAIRPERSON: Mr. Jones, when you were asked
23 about employees do you plan on having any employees?
24
THE WITNESS: I really don't -- I don't really
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25 foresee this thing being that big of a thing. I mean, I'm
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1 just, you know, alls I'm trying to do is make a living. I'm
2 not -- I don't plan on being able to retire from this or, you
3 know what I mean. I don't really see that, no.
4
THE CHAIRPERSON: Would you be adverse to us
5 putting into our decision no employees?
6
THE WITNESS: No, I have no objection to that, no.
MR. GLACE: Maybe to clarify, when we were doing
7
8 business planning I explained to him exactly what a sole
9 proprietorship was and then indicated again you can't tell th
10 future about his legs, and if he had somebody to -- had
o
11 somebody to help maybe move, do some moving, I explained to
12 him what an independent subcontractor was. But you know, he
13 clearly isn't anticipating anybody now. And again, if there
14 was anybody it might be somebody that would be hired on a per
15 diem basis to help him move the heavy moving.
16
THE CHAIRPERSON: That's kind of vague. I'm
17 trying to pin it down so that if it's approved it's approved.
18
MR. GLACE: If that's a restriction that you deem
19 it necessary, fine.
20
THE CHAIRPERSON: The other thing a little bit
21 vague to me, maybe I could say, is where you say make limited
22 retail sales. Limited to me isn't clear.
23
MR. GLACE: Well, okay, that is a little vague
24 this is from the application. In other words, there won't
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25 any advertisement per se, come to Jones's on Sherwood Drive t
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1 buy motorcycle parts. It's word -- it's word of mouth.
2 Secondly, it's not motorcycle parts for Kawasakis or Hondas.
3 It's chrome
a chrome part that is chromed out in Californi
4 and is sold to him wholesale and for a person who's doing
5 restoration of his bike. He would then buy it either at a
6 swap meet or at the 363 location. And that's what I mean by
7 limited.
8
THE WITNESS: I think what she's worried about is
9 how many people is going to be coming there.
10
THE CHAIRPERSON: Well, and I'm thinking how big
11 of a parts operation it could be.
12
THE WITNESS: It's mainly like friends and stuff,
o
13 you know what I mean, that they would be the only people that,
14 you know, would come to the place. It's not going to be on
15 the radio or TV or --
16
THE CHAIRPERSON: No advertising.
17
THE WITNESS: No, I -- you know I really don't --
18 no.
19
MR. NEIDERER: Is there any seasonality to this
20 business? Would you say like you would not be doing it all
21 winter long or would that be when you would be busier?
22
THE WITNESS: In the wintertime there's not a lot
23 of swap meets to be traveling to. That's when I do a lot of
24 my own things, you know. That's -- in the summertime you hav
~
25 like Carlisle fairgrounds, that's one of the main places that
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1 I would go to in there, you know, things like that. That's
2 what you do with the truck and the trailer. But that's a
3 seasonal thing, you know.
4
MR. NEIDERER: The other question I wasn't quite
5 clear of, I know he said no repairs of motorcycles would be
6 taking place. How about installation of these parts that you
7 are selling?
8
THE WITNESS: Yeah, maybe a few. It's mostly it's
9 my own, that I do my own.
10
MR. NEIDERER: But for money, would you be
11 installing these parts for money?
12
THE WITNESS: I customize a lot of my own. This
o
13 mainly helps me do it at cost that I can do it at, you know
14 what I'm saying, being able to get the parts at cost, you
15 know.
21
THE WITNESS: Which takes
when you do somethin
16
MR. GLACE: Maybe to clarify, you're not a
17 motorcycle dealer?
18
THE WITNESS: No.
19
MR. GLACE: Although you may restore a motorcycle
20 and sell it, you're selling less than
22 like that, that could be a six month to a year project, you
23 know, to just to do one bike. But I do for myself and things.
24 THE CHAIRPERSON: But that's not your plan to
v
25 restore them, that's not part of this?
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1
THE WITNESS: No, no.
MR. HARKER: Not just custom vehicles?
THE WITNESS: No, it helps me do my own.
MR. NEIDERER: And along with these specialized
2
3
4
5 chrome parts, and I don't mean to be redundant, are there any
6 plans of selling chemicals for
7
THE WITNESS: No.
8
9
MR. NEIDERER: taking care of these parts?
THE WITNESS: No, there's nothing involved there.
10 That's -- that's why you got to do these chrome things.
11 Chroming's tough. There's a lot of chemicals involved to do
12 that. That's you know -- no, no nothing like that.
o
13
MR. GLACE: When you say no, no you're not going
14 to do any of that?
15
THE WITNESS: No, I wouldn't do that anyhow.
16
THE CHAIRPERSON: Mr. Gall, as the township zonin
17 officer do you see any problem with this?
18
MR. GALL: The problem is why we're here and
19 that's because it is not a permitted use in the area and not
20 allowed by special exception. A use of this kind would be
21 more appropriate for village center, commercial highway, or
22 light industry, probably in that order.
23
THE CHAIRPERSON: Thank you. Mr. Harker reminded
24 me that's my job to decide that. Thank you.
u
25
MR. HARKER: Yes, ma'am.
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1
MRS. CHURLICK: May I make a comment?
2
MR. HARKER: Well, you weren't sworn were you?
3
4 MARY CHURLICK, called as a witness, being duly
5 sworn, was examined and testified, as follows:
6 DIRECT TESTIMONY
7
MS. CHURLICK: A few years ago this township
8 approved for Bill Klusman to open a garage on his property at
9 the corner of Sherwood Drive and Bernheisel Bridge Road. The
10 garage is right next to the road, the business is no longer
11 there, and he's got trash setting everYWhere. It looks like
12 junkyard. Rodney's place there is a wooded area buffering it
13 from the Meadows and the Ridings and I do not believe it woul
14 look like the Klusman's garage. I know Rodney. He's a lot
15 cleaner than that.
16
THE CHAIRPERSON: Thank you. Are there any other
17 questions? Do you have any other comments? Would you like t
18 make a closing statement?
19
MR. HARKER: Do you have a closing statement,
20 Mr. Brenneman?
21
MR. BRENNEMAN: Yes, very briefly if I may.
22 (Whereupon, Keith Brenneman, Esquire, presented
23 closing arguments on behalf of the Township.)
24
THE CHAIRPERSON: Mr. Glace.
25
(Whereupon, John Glace, Esquire, presented closin
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1 arguments on behalf of the Applicant.)
2
THE CHAIRPERSON: Thank you, Mr. Glace,
3 Mr. Brenneman. I would like to move that we table this for
4 now. Would you be able to do some research?
5
MR. HARKER: Surely. I would like to have some
6 legal authority from counsel on the merits of the position
7 that they stated. This is obviously a case that will turn
8 strictly on the laws. I think the facts weigh heavily in
9 favor of the applicant but we still must abide by the law.
10 The Zoning Board cannot legislate new ordinances that the
11 board of supervisors has not enacted. That is the main
12 concern that we have here. With this in mind what I'd like t
o
13 do is get perhaps a letter brief from each of you within the
14 next ten days.
15
MR. GLACE: Submitted to your office?
MR. HARKER: Yes. And I will in turn at the next
16
17 public meeting review these things and the board will
18 deliberate on this matter and reach a decision. I do not do
19 that in private. It can only be done at a public meeting, so
20 it will have to be rescheduled until that time. That is a
21 delay, but it's to keep the door open in your favor,
22 Mr. Jones.
23
THE CHAIRPERSON: Thank you very much for coming.
24 We appreciate your application.
u
25
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35
I hereby certify that the proceedings and evidence are
2 contained fully and accurately in the notes taken by me on th
3 within proceedings and that this is a correct transcript of
4 the same.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
~()"J.111'::A ~
Heather L. Artz,
Notary Public
1'1 'InUI1IAl er.AL
Hr..~I';h I .\nfl.. ~1.llJY Public
I;.... .,'..... r.,,,"".uI1.tOlfCounty
My'''''II'~''[,''hpl;:lSf.b,14,1998
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1
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3 In reI
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QR\~\~~\..
MIDDLESEX TOWNSHIP ZONING HEARING
CUMBERLAND COUNTY, PENNSYLVANIA
Rodney E. Jones
TRANSCRIPT OF PROCEEDINGS
Before:
JOAN PATTISON, Co-Chairperson
KELLY NEIDERER, Member
LOIS WEARY, Member
DICK BOYER, Co-Chairman
ED HARKER, ESQUIRE,
Solicitor for the Board
Date:
November 8, 1995, 7:00 p.m.
350 North Middlesex Road
Carlisle, pennsylvania
Place:
19 APPEARANCES:
20 STEFANON & GLACE
BY: JOHN GLACE, ESQUIRE
21 FOR - APPLICANT
22 SNELBAKER & BRENNEMAN
BY: KEITH BRENNEMAN, ESQUIRE
23 FOR - MIDDLESEX TOWNSHIP
24
25
Stacey L. Daywalt,
Court Reporter
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1
2
PRO C E E 0 I N G S
MS. PATTISON:
Are the applicants from Rodney
3 Jones present? Would you please come forward.
4
5
This is the application of Rodney E. Jones.
MR. HARKER:
For the record, this is actually the
6 amended application of Rodney E. Jones. Mr. Jones had
7 previously filed an application requestinq simply a variance
8 at which a hearinq was held for which the board members,
9 Weary and Kelly and Joan, were present. Mr. Boyer, who is
10 present this eveninq, was not present at the variance
11 application. However, he can participate in this matter
12 and, havinq done so, will be able to vote on the amended
c:> IJ application, but not as to the previous variance
14 application.
15 Do you have any objection to that?
16
MR. GLACE:
Actually, I have just a little
17 clarification. The first application which was heard by the
18 three ladies of the zoninq board. There was no decision
19 rendered, and I withdrew it and it is a nUllity now.
20 I filed a zoninq relief as a special exception
21 and.. I believe it was Auqust 28th .. appeared in front
22 of the planninq commission and received their recommendation
23 for a special or an exceptional use. Their recommendation
24 was couched with two continqencies. First, the qaraqe -.
V'
25 and I have photoqraphs .- I'll explain this to Mr. Boyer.
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1
Well, before you qet into that,
MR. HARKER:
2 let's qet this clear because I have no indication on the
3 record or in my file that you have withdrawn the previous.
4
I will withdraw it on record. I
MR. GLACE:
5 believe it would be of record in that there has been a
6 second application fee filed. So, what is before the board
7 today is a second application. It is amended in that it was
a oriqinally a special use application, but the continqency
9 that arose from that application, in addition to the
10 confininq the use into the buildinq that exists, was that
11 there would be a size variance, and that's what we are here
12 today requestinq.
13
All riqht. But you're no lonqer
MR. HARKER:
14 requestinq the variance for the use.
15
MR. GLACE: The use has been
16
MR. HARKER: You're requestinq a special
17 exception for the use and a variance for the size.
18
Yes. The planninq commission has
MR. GLACE:
19 already recommended approval of the special exceptional use
20 but attached conditions. And so, we are here today only to
21 discuss the lot size dimensions as a variance.
22
MR. HARKER:
So, the previous record now has
23 nothinq to do with the furtherance of this.
24
MR. GLACE:
I would ask that it would be
25 incorporated, if need be transcribed, because there has been
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1 testimony presented at the prior record and that is relevant
2 for your consideration today.
3
MR. HARKER:
But only to the extent that it bears
4 on the qrantinq of a special exception for the use and the
5 variance for the size of the lot.
6
MR. GLACE:
Exactly. In other words, I don't
7 want the record to be disreqarded, if the need be arise.
8 However, I would like to make a new record today.
9
MR. HARKER:
Now, do you aqree then to have Mr.
10 Boyer, who was not present durinq that first hearinq,
11 nevertheless act as a votinq member on the special exception
12 and size variance?
o
13
MR. BOYER:
Excuse me, Mr. Solicitor. I would
14 like to voluntarily withdraw from a votinq position on this
15 one because -. and you may want me to withdraw altoqether
16 if I do that -- because I do not feel competent to decide
17 anythinq on the basis of a record of which I know nothinq.
18
MR. HARKER:
All riqht. That settles that then,
19 unless there's an objection to this.
20
MR. GLACE:
What I'm sayinq is I am holdinq off
21 incorporatinq the record. Believe me, I'm not qoinq to
22 close this until I know everythinq is presented and before
23 the board so there isn't a need to make a third application.
24
MR. HARKER:
Well, it doesn't make any difference
~ 25 because Mr. Boyer has indicated he doesn't wish to
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1 participate in it, and he won't.
2
MR. BRENNEMAN:
If I could, Mr. Harker, I was not
3 aware that before the board this evening would be a request
4 for a variance, a commercial variance. I was under the
5 impression that this was strictly a special exception
6 request on the new application that was filed. If he wants
7 to proceed by arnendinq the application for request for a
8 variance, that's, of course, within the board's discretion,
9 but that's somethinq that I was not aware of that was goinq
10 to happen this eveninq.
11
MR. GLACE:
On my application of Auqust 29th, the
12 day after the planninq commission meetinq, even before I
<:) 13 received the written exception, I -- that was qranted -- I
14 submitted a new application explaininq and citinq some case
15 law saying that this would be a size variance that we were
16 requestinq, and it was amendinq the zoninq relief special
17 exception that the board had qranted but for this
18 continqency. And I believe the application, and especially
19 the accompanyinq letter of Auqust 29th, speaks only that
20 this would be a request for a size variance.
21
MR. HARKER:
I have a copy of your letter and a
22 copy of the -- which attached is the copy of the
23 application paqe wherein you request a variance at Item
24 Roman Numeral 7. Now, I don't know whether, in fact. that
~ 25 was copied to all the board members and to Mr. Brenneman as
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~ 1 well. But I note that your letter was copied to Mr.
2 Brenneman, but I don't know if the attachment was, and I
9
10
11
12
t.o 13
14
15
16
17
18
19
20
21
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3 don't know if the copyinq was in any way done by the
4 township either, whether the township served Mr. Brenneman.
5
MR. GLACE:
But to be perfectly clear, Mr. Harker
6 has correctly characterized this as an amended application,
7 but the application for zoninq relief that was amended was a
8 special exception and the planninq commission said, stated,
basically, they attached a continqency to that. We have to
address the five-acre prescription, and that's appropriately
before the board because it is a variance request. So,
essentially --
MR. HARKER:
It's a little confusinq. Mr.
Brenneman has acknowledqed now that he has found this in his
file.
MR. BRENNEMAN:
I received it by telefax from the
township.
MR. HARKER:
So, you're not in any way prejudiced
by the circumstances.
MR. BRENNEMAN: No.
MR. HARKER: The board members aren't prejudiced
22 because theY're qoinq to hear your request either way and
23 want to qive you full reiqn to qet all of this in. But we
24 don't want to have the record from the first hearinq brouqht
25 in only if you decide you want it later. It's either in now
C.P.C.R.S.
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7
,., 1 or it's out altoqether, and I suqqest that it be brouqht in
2 now completely since you have the same board members.
3
MR. GLACE:
Now that -- aqain I would then move
4 that the record that was presented at the first hearinq be
5 made part of this record. We have a small amount of
6 additional testimony.
7
MR. HARKER:
We have a small amount of additional
8 time that we'll have to take here, because I took so much
9 time here that we need an adjournment.
10 MS. PATTISON: We'd like to take a five-minute
11 break, if that be would all riqht.
12 (Five-minute recess taken.)
0 13 MS. PATTISON: We're ready to proceed, if you
14 are.
15 MR. GLACE: May it please the board, as I'm
16 oftentimes more comfortable standinq, I'd like to address
17 you like that. I think Rodney is qoinq to add a little
18 testimony. Maybe we should allow him to be under oath
19 first.
20
21 RODNEY JONES, called as a witness beinq duly
22 sworn, was examined and testified as follows:
23
MR. GLACE: Briefly, I refresh your memory. This
24 is a situation where the -- Mr. Jones is a disabled
.~ 25 individual and he purchased a land owned by his father and
C.P.C.R.S.
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~
8
1 mother on sherwood Drive. He cleaned up the land, he built
2 a house on the front, which is on the application. That is
3 called Lot A, which is on Sherwood Road. That's,
4 appropriately, 363 Sherwood Road. There's a 1.47-acre Lot
5 B, which he also owns beside it. His mother is his next
6 door neiqhbor and resides at 367.
7 The special use that was reviewed by the planninq
8 commission was a franchise, and this franchise aqreernent he
9 has is a little bit different, if I could compare and
10 contrast it with the last situation. The last situation was
11 where, I believe, it moved from Hanover Street out to the
12 Carlisle pike and it was the purchase of a business. This
c;) 13 is a situation where an individual no lonqer can work as an
14 excavator and he looked for somethinq else.
15 He had the physical plant, that beinq the qaraqe
16 that we looked at before, and the franchise is to sell
17 custom chrome parts for Harley Davidson motorcycles that are
18 manufactured in California and would be delivered there. If
19 you recall also, at least. if not more than 50 percent of
20 his sales, will be done at different swap meets or
21 motorcycle meets, and he owns the equipment to transport the
22 motorcycles.
23 The franchise required that he qet an PIN, he have
24 a reqistered fictional name, he have a sales tax number,
.~ 25 which he immediately was in compliance with, and that he be
C.P.C.R.S.
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~,
9
1 in full compliance with the zoninq ordinances of his
2 business location, his business location beinq an area where
3 the parts could be shipped, they could be sold there. There
4 will be retail sales at this qaraqe. But more so, it would
5 be a location that was a prerequisite to qet the franchise.
.6 So, the franchise remains in hiatus while the matter's in
7 front of the board.
8 We addressed the planninq commission concerninq
9. all these circumstances, and, aqain, I think it's very
10 important the two continqencies they provided after
11 reviewinq all the circumstances were, first off, there be no
12 expansion of his physical plant of the three-bay qaraqe.
c:; 13 That is well in excess of the size that he would need for
14 this enterprise and he would aqree to that. The second one
.
'-'
15 would be that there would be a variance on the five acres,
16 which is provided, I believe, it's section 6.05 of the
17 zoninq, of your zoninq ordinances describing special
18 exceptional uses to an RF zone.
19
Aqain, I have the photoqraphs in front of me. The
20 only qermane further consideration, other than what we
21 reviewed, if you recall from the earlier hearinq, is Lot
22 367 -- that's the mother's lot -- is the combination of
23 Lot 367 and Lot 363, the two residences which are
24 approximately one acre each and the lot behind it, which is
25 one and a half acres, adds up to an acreaqe of a little less
C.P.C.R.S.
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~
1 than four acres.
2 The second consideration, of course, which the
3 planninq commission was impressed with .- and I believe you
4 may recall .- is 361. This is the buildinq itself and this
5 is from Sherwood Road. (Indicatinq.) So, this is no lonqer
6 visible because there is a privacy fence built. This
7 (indicatinq) you can see at 367 behind the tree is the
8 mother's residence, but you cannot really from the road, and
9 that would be the second photoqraph.
10
See this buildinq. (Indicatinq.) And, aqain, this
11 is 363 where Mr. Jones resides and this is lookinq directly
12 at it. It's on a rise. The topoqraphy of it actually, it's
i~ 13 built on the top of the ridqe and it slopes down. Aqain,
14 here (indicatinq) is where the privacy fence is built
15 between he and his neiqhbor. So, you really cannot see this
16 three-bay qaraqe unless you enter on this driveway.
17
MS. PATTISON:
The fence is in front of this
18 buildinq?
19
MR. GLACE:
This is the fence. (Indicatinq.)
20 This is the east side or headinq toward the Ridens.
2l
MS. PATTISON:
That's the neiqhbor's buildinq,
22 thouqh, riqht there? (Indicatinq.)
23 MR. GLACE: This is the neiqhbor's buildinq and
24 there is a fence built here now. (Indicatinq.) There isn't
'~ 25 a fence on the other side which would be up here.
C.P.C.R.S.
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11
~ 1 (Indicatinq.) This is standinq on his mother's property,
2 which is up the hill and this is a little further up.
J For his use, which has already been before the
4 board, we are askinq for a variance that the property that
5 is controlled, which is a little less than four acres,
6 rather than the five acres. We present that this property
7 is a deminimus or we're only talkinq about a one acre
8 difference. Now, I'm qoinq to present Rodney'S testimony.
9 We were tryinq to qet his mother here, but she was workinq
10 in Mount Holly Sprinqs
11
MR. JONES: York Sprinqs.
12
MR. GLACE:
York Sprinqs, whatever. The
<:) 1J essential -- what he will testify under oath to, the
14 mother's plan is either to convey that property to him so he
15 can join all three of those lots, or it's her testamentary
16 intent. In other words, it will either be willed to him or
17 he will buy it. That property is not qoinq anywhere else.
18 This is 367. So, we are talkinq about almost four acres.
19 The other thinq, if you reviewed the ownership of
20 the property, and I have -- this is the facts map.
21 (Indicatinq.) These are the -- this is the qroup of homes
22 in Sherwood Drive. (Indicatinq.) This is what is expanded
23 on that map here. (Indicatinq.) Directly behind it is 37.55
24 acres. It's the Beaver tract. It's owned by Richard
\.J 25 Beaver.
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~
1
Now, he considered first off maybe leasinq the
2 additional acreaqe to render a movinq sort of
3 consideration. The Beavers weren't prone to commit their
4 property in such a lease. However, the property is used for
5 partial aqricultural uses. They qrow alfafa in not a real
6 field settinq because there are forests back there. There
7 are larqe rocks.
8 The use that Rodney proposed for the property
9 before the planninq commission, the parkinq requirements
10 aren't that qreat. There is a qreat deal of square footaqe
11 in the front and behind the buildinq and that's exposed here
12 (indicatinq) for parkinq. I believe there is a view of
(~ 1J what -- here's a view of the rear of the property or the
14 beqinninq of the Beaver tract. (Indicatinq.) All riqht?
15 So, it is not -- it's not property that lends itself
16 readily to aqricultural use. This is also a picture of the
17 equipment that Rodney will use to transport his merchandise.
18 Therefore, there are some topoqraphical
19 considerations involved in this, but we are presentinq to
20 the board today -- and, aqain, I do want to qet Rodney's
21 testimony just briefly on the record to confirm this --
22 that we have almost four acres rather than the five acres
23 that the ordinance enactors required. However, they also
24 have provided us with the request for variances.
v
25
This is a situation, since the planninq commission
C.P.C.R.S.
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13
,~ 1 has recommended, and reviewed and recommended the use that
2 we've proposed, it's a situation that would be appropriate
3 for a variance just on the size. I believe, also, that if
4 you attach any conditions for safety or for further
5 nondevelopment or for eqress and access within that, they
6 would certainly be reasonable and there'd be no objection.
7 It is the qame plan of Rodney simply to have the
8 motorcycle parts delivered to the preexistinq qaraqe,
9 contain them in the qaraqe, and use the qaraqe as the
10 precondition for his business address.
11 BY MR. GLACE:
12
Rodney, I'm qoinq to ask you to testify a little
Q.
(:> 1J about your mother's property and about the use that you
14 intend on your property.
, .....)
15
Well, my mom has no problem with the property.
A.
i6 The property was qoinq to be siqned over to me anyhow. I
17 paid for everythinq when my dad died, you know. It's just
18 it turned into a thinq when my dad died of the property
19 beinq siqned over to me within a year. That's why that
20 couldn't be done at that time because then I would have to
21 pay an inheritance tax on it, which wasn't fair because, you
22 know, of what was qoinq on. We tried to have her here
23 toniqht. I just tried to call her. She wasn't home from
24 work yet.
25
One further thinq. You have, what, a brother and
Q.
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14
~ 1 sister. Riqht?
2
3
A.
I have two sisters.
Q.
Two sisters. That's riqht. And your
4 contribution, really, on the purchase of fair market value
5 of the two lots actually added to your dad's estate for your
6 mom?
7
A.
They have already siqned the papers to the effect
8 that they didn't want to be involved. They didn't want
9 nothinq to do with this. It was mine anyhow. I took care
10 of my parents, you know.
11
Q.
But when you purchased the properties, 363 and Lot
12 B, you paid fair market price?
o
13
A.
Yes.
14
MR. GLACE: Do you have any questions?
15
MS. PATTISON: Do you have any questions before
16 Mr. Brenneman asks?
17
MS. NEIDERER:
If I remember correctly, with the
18 last hearinq we had asked for in depth detail about the
19 types of retail sales, the volume of retail sales, and that
20 sort of thinq. And if we were
were we proposinq any
21 restrictions to that? I can't quite remember.
22 MR. HARKER: The conditions could limit the
23 nature and scope of the business consistent with his
24 testimony as to what it would be, yes. You could put
\.I 25 conditions on the decision that would make them live up to
C.P.C.R.S.
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15
~ 1 the representations that he said, includinq the use of the
2 three lots of land, if you felt that there would be an
3 entitlement to a variance. Is that what you mean?
4 MS. NEIDERER: Yes.
5
MR. GLACE:
Even thouqh we're only here for the
6 size, we would put on the record riqht now we would waive
7 any objection to any additional conditions on the use of the
8 land even thouqh it was addressed by the planninq
9 commission.
10
In other words, he's here. He's told you
11 everythinq that he plans on doinq, and this is where he's
12 qoinq to live for the rest of his life, and any conditional
<:) 13 use you put onto it would be aqreeable to him. I believe we
14 talked a little bit about makinq sure that there was no
15 disposal on lot. There was qoinq to be a limited number of
16 delivery trucks a day. There miqht be a consideration
17 because it's a shale parkinq lot rather than a fully paved
18 one. Those were some of the conditions we talked about.
19
MS. PATTISON:
When you say we, do you mean the
20 planninq commission or our board?
21
MR. GLACE:
Excuse me. When we were oriqinally
22 before this board.
23
MR. HARKER: Keith, do you have questions?
24
MR. BRENNEMAN: Yes, I do.
V 25 BY MR. BRENNEMAN:
C.P.C.R.S.
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n
~,~
1
\ ~
16
Q.
Mr. Jones, you do not own the lot that your mother
3
4
6
7
8
12
2 has riqht now?
14
15
A.
Yes.
Q.
And it's your expectation that upon her death that
5 will be qiven to you?
A.
No. It's qoinq to be done before she dies.
Q.
Okay.
A.
The papers were -- it was already to be done when
9 my dad had a heart attack. I mean, that was a sudden -- it
10 was -. you know, he was in a coma, that was it, and I
11 stopped everythinq riqht there.
Q.
The tract advanced to you will happen sometime in
c:> 13 the future, in other words.
v
A.
Yes, yes.
Q.
You obtained from your father and your mother on
16 January 6, 1994 the two other lots that you now own. Is
17 that correct?
18
19
A.
Yes.
Q.
And could you refresh my memory, please, as to how
20 you intend to use this property as a commercial use? Are
21 you qoinq to have deliveries of parts to your property?
22
A.
Yes. And I'd say a UPS truck miqht be cominq once
23 a week. I'd say twice to be safe, you know. But once, you
24 know-.
25
Q.
Mr. Glace has indicated that about 50 percent of
C.P.C.R.S.
(7l7) 258-3657 or (800) 863-3657
~ 1 your sales will be conducted at swap meets.
11 a family. I'm not qoinq to be out there. The thinq is I do
12 it as a hobby for myself, for one thinq. I have a
<:) 13 motorcycle now that I finished that I am takinq to a swap
14 meet on the 19th that I've been buildinq for a year. That
~ 25 come into my property to buy?
17
2
A.
Yes.
3
And the other 50 percent, of course, would have to
Q.
4 happen at your property.
5
I wouldn't say it would even be 50/50. Most of it
A.
6 is qoinq to be swap meets.
7
What are your proposed hours for the sales that
Q.
8 you will conduct on your property?
9
well, you know, you're probably lookinq at maybe
A.
10 9:00 to 5:00. That's what I'd like to do. You know, I have
15 was somethinq that I've been doinq for a year and just now
16 that I would be able to sell it, you know.
17
But the sales of parts, thouqh, are parts that
Q.
18 you're buyinq to pass on to customers?
19
Most of the parts that are beinq sold that are out
A.
20 throuqh there are mine. I purchase them myself for me to be
21 able to do a bike myself and do it at cost.
22
But what you're conternplatinq to sell to the
Q.
23 public are parts that you're buyinq to sell to the public?
24
Yes. Are you sayinq how many people are qoinq to
A.
C.P.C.R.S.
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18
r-,
1
Q.
I'm interested in the hours of operation for those
2 sales that would be conducted on your property.
3
A.
I'd say 9:00 to 5:00. On weekends I'd be qone
4 because that's when you do your swap meets is on weekends.
5
Q.
Your physical handicap, does that impact on your
6 ability to conduct this business in any way?
7 A. I don' t do thinqs as easy as I used to do. It
8 doesn't stop me, no. I can do it. The problem I had with
9 my disability is just like riqht now they want to operate on
10 me aqain. I could be laid up for six months theY're tellinq
11 me.
12 Q. As your condition is now, you can conduct the
0 13 business you're intendinq to conduct?
14 A. Sure. I wouldn't be tryinq it.
15 MR. BRENNEMAN: That's all the questions I have.
16 BY MR. GLACE:
17
Q.
Do you plan on havinq any employees?
18
A.
No.
19
MS. NEIDERER: Mr. Jones or Mr. Glace, does the
20 franchise aqreement require a certain level of inventory to
21 be carried by Mr. Jones that you're aware of?
22
MR. JONES:
I think it was like $2,500 or
23 somethinq like that worth of parts.
24
V 25 them?
MS. NEIDERER:
That you are required to qet from
C.P.C.R.S.
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19
.~
1
MR. JONES:
Yes. None of their siqninq .- like
2 he said if I could talk about the last case, there's no
3 siqns involved. I don't have to do none of that because I
4 know that wouldn't have worked anyhow. So, I'd have never
5 did it. So, it's, you know, they don't require no siqns, no
6 nothinq like that, you know. I'm just -- I was just ..
7 they wanted to me to be zoned to do what I do, to have their
8 franchise. ~hat's what I was after.
9
MS. NEIDERER:
And it's a chrominq operation. Is
10 that correct? The parts are chrome but you will not be
11 chrominq.
12
MR. JONES:
They do it in California and they're
() 13 just packaqed and sent to me. It's an after-market. It' s
14 like an after-market ordeal is what it is. Like little
15 bolt-on chrome accessories, that's what it is.
16
MS. PATTISON:
So, you carry the parts in your
17 qaraqe and some people may stop and buy these parts?
18
19
MR. JONES: Yes.
MS. PATTISON: And do you put them on, or do they
20 just purchase a part?
21
MR. JONES:
Most of them will purchase them
22 theirself and put them on theirself. I really don't want to
23 qet into that. I'd sooner do my own.
24
MS. PATTISON:
So, you won't be havinq other
'~ 25 people brinq their motorcycles there for you to work on?
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o
20
1
There could be some quys that ask me
MR. JONES:
2 to do that. If that's a problem, I won't do it, you know.
3 I mean, I have nothinq, you know.
4
And you and Mr. Glace were sayinq
MS. PATTISON:
5 everythinq would be confined within this qaraqe?
6
By the conditions imposed by the
MR. GLACE:
7 planninq commission, which was one that we suqqested to
8 them.
9 What is the dimension of the qaraqe?
10
MR. JONES:
42 by 60.
11
You've seen the pictures. It's a
MR. GLACE:
12 considerable size qaraqe, plus the inventory that you're
(~ 13 talkinq about is very minimal. Aqain, it's motorcycle
14 parts. If he had a built up inventory, it could be stored
v
15 in a closet. So, it's not somethinq that will be a qrowth
16 sort of enterprise.
17
MR. JONES: I have a lot of room inside. There's
18 no reason to be outside. I wouldn't, you know what I mean,
19 there is no reason to be outside. It ain't the type of work
20 that you do outside, for one thinq. You don't hanq your
21 parts outside or anythinq. You know what I mean? Nothinq
22 would be outside. It's not somethinq you have outside.
23
MR. HARKER:
You wouldn't be servicinq customer's
24 motorcycles there, but you miqht install
25
MR. JONES:
If a quy wanted a part installed, if
C.P.C.R.S.
(717) 258-3657 or (800) 863-3657
~ 1 I could install a couple parts, that's --
21
2
Riqht. You miqht install some of
MR. HARKER:
3 your after"market parts but you wouldn't do enqine overhauls
4 or brake jobs or anythinq?
5
I wouldn't want to qet into nothinq
MR. JONES:
6 real drastic. You know what I mean? I like to do my own.
7
And I think -- and this, I'll refer
MR. GLACE:
8 back to the first application where they were talkinq about
9 interstate truckers and askinq you to recoqnize the
10 tendencies of those individuals, that they miqht be a little
11 tired or they miqht miss a siqn. The customer base that
15 specialized market, but the people he's sellinq to would
16 prefer to let only themselves touch their own motorcycle.
17 This is a -- there has to be at least a recoqnition of the
18 type of customer that's involved here.
19
Mr. Glace, if I'm rememberinq
12 Rodney has are very independent sort of person, a person who
c:) IJ wants chrome motorcycle parts.
14 He is an outlet for this area for a very
, .
~ 25 Secondly, he has been a qood neiqhbor to everybody because
MR. NEIOERER:
20 correctly, we had heard testimony previously that all of the
21 neiqhbors were in aqreement with that.
22
I believe there's even some neiqhbors
MR. GLACE:
23 here today. I think that the basic aqreement was
24 threefold. First off, he did a considerable clean up.
C.P.C.R.S.
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~:.)
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22
1 he is mechanically inclined. Thirdly, everybody knows that
2 Rodney has been a lonq time aficionado of motorcycles. He's
3 rebuilt his own and they've had no objection to his
4 motorcycle avocation. And they understand his circumstances
5 now physically and they have no objections to turninq it
6 into a vocation.
7
MR. JONES:
I have people that come to me in the
8 neiqhborhood now, they come to me and their lawn mowers
9 don't start. Can you do this? Yes, you do it. What do you
10 want? Nothinq. That's just somethinq that I've always
11 done, you know. That's not what I'm there for, to charqe
12 them to do that kind of work.
13
You know, a quy can -- take for instance like
14 Tracy, you know what I mean, if his tractor breaks down,
15 somethinq happens, you know, we fix it. There's no money
16 exchanqed there. That is just somethinq that's done. You
17 scratch my back, I scratch yours. That's what qoes on in
18 our neiqhborhood. That's the way it's been.
19 If anybody had any complaints to what I was doinq,
20 it would be that the quy that lived in that trailer directly
21 riqht beside me. He has not been here. I mean, I've talked
22 to him. Riqht now he probably has a few of my tools. You
23 know what I mean? That's just -- nobody seems to have any
24 problem with what I do.
25
MR. GLACE:
Has anybody moved in and out of that
C.P.C.R.S.
(717) 258-3657 or (800) 863-3657
(') 1 neiqhborhood recently?
2 MR. JONES: Them people are purchasinq that
3 trailer now.
4 MR. GLACE: How lonq have they lived there?
5 MR. JONES: TheY've lived there for a few years.
6 They are purchasinq it now to buy it. I'm pretty sure they
7 are buyinq it, she told me, from her dad. Her dad used to
8 rent it out and now they are supposed to be qoinq to buy it.
9 I talked to them when I put the fence up. I said I'm not
10 doinq this to be, you know, disneiqhborly, you know what I
11 mean, not to keep you away, you know, for courtesy to you.
12 They're like, why, I don't care. That's what I qot from
o
13 them, you know. That's
I don' t know.
14
MS. PATTISON:
Miqht you have a person sometimes
15 to answer the telephone in your buildinq?
16
MR. JONES: I don't have to, no.
17
MS. PATTISON: Miqht you foresee that or want
18 that?
19
MR. JONES:
No. I don't ever plan on hirinq an
20 employee. I don't ever foresee that. I don't. There's no
21 reason what I do now, you know, for the -- to have a -- to
22 have somebody answer the telephone.
23 MS. WEARY: Oriqinally, you had asked for a small
24 siqn on the qaraqe. Would you still like to have that?
v
25
MR. JONES:
Yes. It's no biq deal.
C.P.C.R.S.
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24 situated on Lot B, as identified in his application on deed
~ 25 1/6/94, the proposed use be limited to that lot, and that it
o
o
24
1
MS. WEARY: The siqns were discussed and it said no
2 siqn would be
3
I have a little siqn that a friend of
MR. JONES:
4 mine painted for me. We set it there. It's still settinq
5 there. It's just settinq there in a horseshoe thinq, you
6 know.
7
Here's the photoqraph, the sign, his
MR. GLACE:
8 fictitious name will be Jonesies. (Indicatinq.) If there is
9 no prescription, at best, he would hanq that on the qaraqe
10 itself which isn't seen from the road. He would aqree to
11 put no siqns other than maybe a mailbox on the road sayinq
12 Jonesies.
13
14
MR. JONES: I have a mailbox there now.
MR. GLACE:
Maybe the mailbox miqht want to say
15 Jonesies Motorcycles, and that would be, if nothinq else,
16 for quidance for the UPS truck.
17
DO you have a copy of that decision
MR. HARKER:
18 by the planninq commission? I qot one. We're qoinq to make
19 this, the decision of the planninq commission, part of the
20 record.
21 The motion beinq that for approval for special
22 exception make the motion that we recommend the petition
23 exception upon the fOllowinq conditions: That the qaraqe is
C.P.C.R.S.
(717) 258-3657 or (800) 863-3657
~
o
~
25
1 be contained and not qo beyond the present qaraqe base of 25
2 20 square feet, present buildinq beinq a three-bay qaraqe 42
3 by 60 approximately; and that the recommendation for the use
4 be also continqent upon the applicant qettinq the required
5 variances to allow this use in the RF district. Second by
6 Mrs. Law. None opposed. Motion passed.
7
DO you have any concludinq remarks
MS. PATTISON:
8 Mr. Brenneman?
9
10
11
12
13 Glace?
14
15
16
17
18
19
20
21
22
23
24
25
(Whereupon, Mr. Brenneman presented closinq
arqurnent to the board on behalf of Middlesex
Township.)
MS. PATTISON: Thank you, Mr. Brenneman. Mr.
(Whereupon, Mr. Glace presented closinq arqurnent
to the board on behalf of the Applicant.)
MS. PATTISON:
We will now close the record.
(Whereupon, the zoninq hearinq was concluded at
9:53 p.m.)
C.P.C.R.S.
(717) 258-3657 or (800) 863-3657
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26
1
I hereby certify that the proceedinqs and evidence
2 are contained fully and accurately in the notes taken by me
J on the within proceedinqs, and that this copy is a correct
4 transcript of the same.
5
6
7
~OC'~L ,D~ v&.t
Stacey L aywalt ~
Court Reporter
8
9
10
11 The foreqoinq certification does not apply to any
reproduction of the same by any means unless under the
12 direct control and/or supervision of the certifyinq
reporter.
IJ
14
15
16
17
18
19
20
21
22
23
24
C.P.C.R.S.
(717) 258-3657 or (800) 863-J657
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95-7157 Civil Term - eaw
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! I PS Form
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DOMESTIC RETURN RECEIPT
. Oocombor 1991
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I. TBB COURT or COMMO. PLBAS
or CtDlBBRLIUID COUIIT~
Board of Supervisors of I
Middlesex Township, I
Appellant I
and
I
I
I
I No. 95-7l57 Civil Term
I
I
I
I
I
I
I
VB.
The Zoning Bearing Board
of Middlesex Township,
Appellee
Rodney E. Jones
Intorvenor
BOTICB or IHTBRVBln!IO.
Please take notice that RODNEY E. JONES, the owner of premises
363 Sherwood Drive, Lots A and B, Middlesex Township, Cumberland
County, Pennsylvania, the property directly involved in the
decision of the Zoning Bearing Board of Middlesex Township from
which this appeal has been lodged, intervenes in this appeal in
support of the decision of the Board.
BY
ULLY SUBMITTED,
Glace, Esqu re
& GLACE
or h Front Street
Bo 12027
s rg, PA 17108-2027
32-0511
.23933
-' .
CIRTIFlCATI OF SIRYICI
The undersigned hereby certifies that, on the date below he
served a true copy of the Rotice of Intervention on the persons
listed below, at the addresses set forth, by First Class United
States Maila
Keith O. Brenneman, Esquire
Snelbaker & Brenneman P.C.
P.O. Box 318
44 West Main street
Mechanicsburg, PA 17055
Edward W. Harker, Esquire
One West High Street
Carlisle, PA 17013
RESPECT ULLY SUBMITTED,
DATE a
fk Z1 rB3\'
lace, Esquire
& GLACE
Front Street
12027
H ri rg, PA 17108-2027
(717) 232-0511
1.0. 23933
By
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Board of SuperviBorB of
Middle.ex TownBhip,
Appellant I
ORIGINAL
I
I
VB.
The Zoning Bearing Board
of MiddleBex TownBhip,
Appellee
No. 95-7157 Civil Term
and
Rodney B. JoneB
Intervenor
PRABCIPB FOR BHRY OF APPBARARCB
TO THB CLERK OF COURT I
Bnter my appearance as counsel on behalf of Intervenor RODNBY
B. JONBS in the above-captioned matter.
.....---Wv ~ 7 <111)
,
RBSPBCTFU
SUBMITTED
M Glace, BBqU re
N & GLACB
rth Front Street
ox l2027
17108-2027
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CIRTIFICATI OF SIRVICI
The undersigned hereby certifies that, on the date below he
served a true copy of the pra.oip. for Intry of App.arano. on the
persons listed below, at the addresses set forth, by First Class
united states Haill
Keith O. Brenneman, Esquire
Sne1baker & Brenneman P.C.
P.O. Box 318
44 West Main Street
Mechanicsburg, PA 17055
Edward W. Harker, Esquire
One West High street
Carlisle, PA 17013
RESPECTFULLY SUBMITTED,
By
DATE I
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(
Glace, Esquire
& GLACE
N h Front Street
P.O Box l2027
Harrisburg, PA 17108-2027
(717) 232-0511
I.D. 23933
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BOARD OF SUPERVISORS OF :
MIDDLESEX TOWNSHIP, .
.
Appellant
:
Vs. .
.
.
.
MIDDLESEX TOWNSHIP ZONING .
.
HEARING BOARD, :
Appellee .
.
.
.
Vs. .
.
:
RODNEY E. JONES, .
.
Intervenor .
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-7l57 CIVIL TERM
LAND USE APPEAL
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STATEMENT OF POSITION
The Appellee, Middlesex Township Zoning Hearing
duly appointed body of municipal government of Middlesex
Township. It is the function of the Zoning Hearing Board to
receive, hear, and decide cases over which it has jurisdiction
pursuant to the Zoning Code. The Zoning Board performs a quasi-
judicial function and does not act in an adversarial manner.
Accordingly, it is the position of the Zoning Hearing Board that
it would be improper for it to proceed as an advocate in this
proceeding.
The Zoning Hearing Board submits that its decision was based
upon substantial competent evidence and in accordance with the
limits of its discretion under the Zoning Code.
.- .\__~~1!f~.~i:~~~r-"~~_.;:::,,. '.,' ~:';;;t~" ;'-'
The zoning Hearing Board of Middlesex Township will
respectfully abide by the decision of this Honorable Court and
respectfully declines to participate further as an advocate
herein.
Date:
J-t7--Jf.
.
.
CERTIPICATE OP SERVICB
AND NOW, this l8th day of January, 1996, I, Edward W.
Harker, Esquire, One West High Street, Carlisle, Pennsylvania
do certify that I mailed a true and correct copy of the
foregoing Statement of Position, by United States Mail,
first class delivery, upon:
Keith O. Brenneman, Esquire
SNELBAKER & BRENNEMAN
44 West Main Street
Post Office Box 318
Mechanicsburg, PA 17055
John M. Glace, Esquire
STEFANON & GLACE
407 North Front Street
Post Office Box l2027
Harrisburg, PA l7l08-2027
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(tbIt be typewritten IIlld subnitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter far the next Arg\Jllent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption IlUIIt be stated in full)
BOARD OF SUPERVISORS OF MIDDLESEX
TOWNSHIP,
Appellant
(~
va.
THE ZONING HEARING BOARD OF
MIDDLESEX TOWNSHIP,
Appellee
vs.
RODNEY E. JONES,
(~~lJ
Intervenur
No. 7157
civil Term
19 95
1. State matter to be argued (i.e.. plaintiff's IlDtion for new trial, defendant's
denurrer to ~laint, etc.):
Appellant's Land Use Appeal
2. Identify counsel who will argue case:
(a) far plaintiff:/Appellant:
J\ddress:
Keith O. Brenneman, Esquire
Snelbaker & Brenneman, P. C.
44 W. Main Street
Mechanicaburg, PA 17055
Edward W. Harker, Esquire
One Wellt High Street, Carlisle, PA 17013
(b) far defendanttJlppellee:
J\ddress:
(c) fur Intervenur:
3. I will notify all parties
been listed for argunent.
Juhn M. Glace, Esquire
P. o. Box 12027, Harrisburg, PA 1710B-2027
in writing within two days that this case has
4. Argunent Court Date: January 31, 1996
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Dated: January 3, 1996
Attorney for Appellant
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BOARD OF SUPERVISORS OF
MIDDLESEX TOWNSHIP,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
MIDDLESEX TOWNSHIP ZONING
HEARINQ BOARD,
Appellee
CIVIL ACTION - LAW
v.
RODNEY B. JONBS,
Intervenor NO. 95-7157 CIVIL TBRM
IN RB: LAND USB APPBAL
BEFORE HESS and OLER. JJ.
ORDER OF COURT
AND NOW, this tz.Jday of February, 1996, upon consideration of
Appellant's land use appeal, and for the reasons stated in the
accompanying opinion, the decision of the Middlesex Township Zoning
Hearing Board is AFFIRMED.
BY THE COURT,
J Wesley Oler
Keith O. Brenneman, Esq.
SNELBAKER & BRENNEMAN, P.C.
44 West Main Street
P.O. Box J18
Mechanicsburg, PA l7055
Attorney for Appellant
Edward W. Harker, Esq.
One West High Street
Carlisle, PA 170lJ
Attorney for Appellee
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John M. Glace, Esq.
STEPANON , GLACE
407 Ncrth Pront Street
P.O. Box 12027
Harri.burq, PA 17108-2027
Attorney for Intervenor
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BOARD OF SUPERVISORS OF
MIDDLESEX TOWNSHIP,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
MIDDLESEX TOWNSHIP ZONING
HEARING BOARD,
Appellee
CIVIL ACTION - LAW
v.
RODNEY E. JONES,
Intervenor NO. 95-7157 CIVIL TERM
IN RE I LAND USE APPEAL
BEFORE HESS and OLER. JJ.
OPINION and ORDER OF COURT
Oler, J.
In this zoning case, a municipality has appealed from a
decision of a zoninq hearing board granting a landowner's
application for a special exception and a variance. The landowner
has intervened in support of the board's decision.
Two issues are involved in the appeal. The first is whether
the board erred in interpreting the municipality's zoning ordinance
to include a certain business activity within the class of uses
permitted by special exception. The second is whether the board
abused its discretion or otherwise erred in granting a dimensional
variance.
No additional testimony or other evidence has been received by
the court. Argument on the appeal was held on January 3l, 1996.
For the reasons stated in this opinion, the decision of the zoning
hearing board will be affirmed.
NO. 95-7157 CIVIL TERM
STANDARD OF REVIEW and STATEMENT OF FACTS
"When a trial oourt receivee no additional testimony or
evidence, its review will be limited to a determination of whether
the Zoninq Board abused its discretion or committed an error of law
and whether its necessary findings are supported by substantial
evidence." Rushford v. Zoning Hearing Bd. of Adjustment, 8l Pa.
Commw. 274, 278, 473 A.2d 7l9, 722 (l984)~ see Enola Constr. Co. v.
Board of Township Supervisors, No. 95-293l civil Term, slip op. at
3 (Cumberland Co. January 5, 1996) (Sheely, P.J.).
The facts in this case are not substantially in dispute.
Appellant is the Board of Supervisors of Middlesex Township,
Cumberland County, Pennsylvania. Intervenor is Rodney E. Jones, an
adult individual residing at 363 Sherwood Drive, Carlisle
(Middlesex Township), Cumberland County, Pennsylvania.'
Mr. Jones is the owner of the premises upon which he resides.'
His property consists of two tandem lots - the forward lot being
under an acre in size,' and the rear lot being l.47 acres.. The
N.T. 6, ll, Hearing, June 19, 1995~ Application for Hearing
before the Zoning Hearing Board, at l.
, N.T. 6, Hearinq, June 19, 1995~ Application for Hearing
before the Zoning Hearing Board, at 1 and deed attachments.
· A statement was made at the zoning hearing board hearing
that the forward lot was "approximately one acre." N.T. 9,
Hearing, November 8, 1995. Documents attached to the application
of Mr. Jones for a special exception and variance seem to indicate
that it may be closer to a half acre. See Application for Hearing
before the Zoning Hearing Board, at 1 and attachments.
· N.T. 8, Hearinq, November 8, 1995~ Application for Hearing
before the Zoning Hearing Board, at 1 and attachments.
2
. ",. ". ..~.~. "'. '<e:
NO. 95-7l57 CIVIL TERM
front lot contains his home,' and the rear lot contains a 42' by
60', three-bay garage.'
A "privacy fence" and topographical
conditions tend to conceal the garage from the road.'
A lot adjacent to Intervenor's front lot, and having an
address of 367 Sherwood Drive, is owned and occupied by Mr. Jones's
mother, who was recently widowed.' This lot also is apparently
under an acre in size.' It will be conveyed to Mr. Jones in the
near future. I.
Mr. Jones and his family moved to Sherwood Drive when he was
in the third grade.lI He was at one time an excavator, but was
crippled in an automobile accident in 1992,'2 as a result of which
,
N.T. 7, Hearing, June 19, 1995.
, N.T. 7, Hearinq, June 19, 1995; N.T. 9, 20, 24-25, Hearinq,
November 8, 1995; Application for Hearing before the Zoning Hearing
Board.
, N.T. l6, Hearinq, June 19, 1995; N.T. lO, Hearinq, November
8, 1995.
, N.T. 6, Hearing, June 19, 1995; Application for Hearing
before the Zoning Hearing Board, attached drawing.
, A statement was made at the zoning hearing board hearing
that the mother's lot was "approximately one acre." N.T. 9,
Hearing, November 8, 1995. A document attached to the application
of Mr. Jones for a special exception and variance seems to indicate
that it may be closer to a half acre. See Application for Hearing
before the Zoning Hearing Board, attached drawing.
I.
N.T. l3-l4, l6, Hearing, November 8, 1995.
N.T. 6, Hearing, June 19, 1995.
N.T. 6-7, Hearing, June 19, 1995.
11
12
3
.
NO. 95-7157 CIVIL TERM
he is "no longer able to really walk or to any effect perform any
physical labor."u
Mr. Jones's physical condition has frustrated his efforts to
obtain employment.14 "Nobody wants to hire me ...," he testified. 15
Using settlement proceeds from the accident, Mr. Jones
purchased the two lots mentioned above in 1994 from his parents.
He removed a house trailer, numerous vehicles, and 20 loads of
scrap, and built his home at 363 Sherwood Drive.11
Because he does not seem to be employable, Mr. Jones has
decided to try to start a small business selling customized
motorcycle parts. 17
More specifically, he has applied for a
franchise from a California company named Custom Crome, Inc.; 11 the
company coats various Harley-Davidson motorcycle accessory parts
with chrome, and ships them to its dealers for retail sale.1t
The business would be required to maintain about $2,500 in
13
N.T. 7, Hearing, June 19, 1995.
N.T. ll, Hearing, June 19, 1995.
15 N.T. 11, Hearing, June 19, 1995. Additional surgery
remains to be performed upon him. N.T. l8, Hearing, November 8,
1995.
14
II N.T. 7, Hearing, June 19, 1995.
November 8, 1995.
N.T. 7-8, Hearing,
17 N.T. 7-8, Hearing, June 19, 1995; N.T.
November 8, 1995
II N.T. 25, Hearing, June 19, 1995.
11 N.T. 7-8, Hearing, June 19, 1995; N.T.
November 8, 1995.
4
l3, Hearing,
19, Hearing,
,. .~
NO. 95-7l57 CIVIL TERM
inventory. 20 It would receive a shipment via UPS once or twice a
week from California.at
The enterprise would not involve any advertising,U employees,n
motorcycle restoration24 or chroming on the part of Mr. Jones. n
Customer transactions would usually take place at "swap" meets,
off-premises. 2&
The franchisor, however, does require that a franchisee have
a physical business address.27 Mr. Jones would like to use his
garage for that purpose. 21
Under the township's zoning ordinance and map, the Jones lots
are in an RF-Residential Farm zoning district.2t Uses permitted by
right in such a district include single-family dwellings, farms,
parks,
schools and municipal activities and various accessory
20 N.T. 18, Hearing, November 8, 1995.
at N.T. l6, Hearing, November 8, 1995.
22 N.T. 30, Hearing, June 19, 1995.
22 N.T. l8, Hearing, November 8, 1995.
2& N.T. 3l-32, Hearing, June 19, 1995.
n N.T. l4, Hearinq, June 19, 19951 N.T. 19, Hearing, November
8, 1995.
2&
N.T. 30-3l, Hearing, June 19, 1995.
N.T. l4, Hearing, June 19, 1995.
Application for Hearing before the Zoning Hearing Board.
2' N.T. 27, Hearing, June 19, 19951 Middlesex Township zoning
Ordinance, art. VI.
21
21
5
NO. 95-7157 CIVIL TERM
uses.20
Uses permitted by special exception include eawmills, farm
equipment sales and service, lawn and garden equipment and supplies
sales and service, and auction houses. 21 Also allowable are "[ u] ses
which, in the opinion of the Zoning Bearing Board, are of the same
general character as those listed as permitted uses and which will
not be detrimental to the intended purposes of these districts."22
All special exception requests are reviewed initially by the
planning commission.22
Finally, under the ordinance a minimum lot size of five acres
is required in this district for any activity other than a single-
family residential use. 20 The undersized Jones lots apparently
antedate this provision.25
Mr. Jones filed an application with the township for a special
exception (to conduct the aforesaid business on the premises) and
a variance (to do so on less than five acres). See Application for
Bearing before the Zoning Bearing Board.
The planning commission recommended approval of the special
20 Middlesex Township Zoning Ordinance S6.02.
21 Middlesex Township Zoning Ordinance S6.04.
22 Middlesex Township Zoning Ordinance S6.04(A).
22 Middlesex Township Zoning Ordinance Sl7.07(B).
24 Middlesex Township Zoning Ordinance S6.05(A).
25 See note 40 infra.
6
NO. 95-7l57 CIVIL TERM
exception. 31 A hearing was held by the zoning hearing board on June
19, 1995, and November 8, 1995. At the hearing, it appeared that
the neighborhood was not opposed to the request I
Q Have you heard any adverse comments from
anybody?
A No.n
* * * *
Rodney's done vast improvement to clean
up the property and [it] is very pleasing to
the eye. The garage itself, unless you look
hard you can't see it from the road when you
go by. And it's a vast improvement to the
neighborhood. 31
* . * *
I've been around him. I've seen him try
to do things that he used to do without a
thought and now it almost brings tears to his
eyes from the physical pain....
Like John [a previous witness] said, this
business that he intends to operate, you don't
even know it's there from the road unless you
look for it.... This is Rodney's home. This
is where he's going to live for the rest of
his life.3t
31 N.T. 3, 9, Hearing, November 8, 1995. The recommendation
was subject to the conditions that the variance be granted and that
the garaqe not be expanded. Id.
31
N.T. 12, Hearing, June 19, 1995.
N.T. l6, Hearing, June 19, 1995.
N.T. l7-l8, Hearinq, June 19, 1995.
31
3t
7
8
NO. 95-7157 CIVIL TERM
On November 17, 1995, the zoning hearing board issued a
decision granting the special exception and variance... The
approval was subject to eight conditionsl
a. The aforesaid special exception and
variance are limited to the Applicant and
shall not be transferable or assignable.
b. The Applicant shall limit his
business activity to the sale, display and
occasional installation of aftermarket
motorcycle accessories and parts. The
Applicant's premises and business shall not be
used or extended to general motorcycle or
vehicle service and/or repair. No other
business activity shall be carried on nor
shall the special exception or variance be
expanded or modified.
c. Business hours for customers,
delivery and shipment shall be limited to the
period between 9:00 A.M. and 5:00 P.M.
d. All business shall be done within the
existing facility (Lot B - deed dated l-6-94)
.. The board found, inter alia, that the applicant's proposed
business would "not be detrimental to the area or in conflict with
other existing land uses"l that the three lots available for the
use totaled "slightly less than 4 acres" in areal and that the lots
had been "established by subdivision prior to enactment of the
[zoning ordinance's] 5 acre area requirement." Opinion of zoning
hearing board, Findings of Fact ll, 7, l2. The last finding does
not appear to be contested by any party, although the court has
been unable to locate its source in the record.
The board concluded, inter alia, that the zoning
ordinance's authorization for the board to approve as special
exceptions "uses of the same general character" in a district where
"sawmills, retail lawn and garden sales, and auction houses" could
be permitted sugqested a certain degree of discretion on the part
of the board in classifying such uses. It also concluded that the
preexistence of the undersized Jones lots constituted a hardship.
Opinion of zoning hearing board, Conclusions l, 3-4, 7.
NO. 95-7157 CIVIL TERM
and no outdoor activity including storage or
disposal shall be permitted.
e. Applicant shall erect only a single
unlighted exterior sign, not greater than 10
square feet in area which shall be affixed to
the building.
f. Applicant shall retain ownership or
control of all three lots as indicated on the
plan submitted and shall not further subdivide
or separate the ownership, possession or
control thereof during the period in which
Applicant shall operate his business.
g.
vehicles
premises.
h. No wastes, solvents or fuels shall be
disposed or discharged on site at any time.
No painting or plating of customers
or parts shall be done on the
The township filed an appeal from the board's decision on
December l5, 1995. The bases for the appeal, as noted previously,
are (a) that the board misinterpreted the zoning ordinance when it
classified the use proposed by Mr. Jones as a permissible special
exception and (b) that the evidence did not support the need for a
variance.u
DISCUSSION
Scecial excection.
II [A] principle, now codified as to
statutory interpretation under section 1921(c)(8) of the Statutory
Construction Act, 1 Pa. C.S. S 1921(c)(8), [is] that courts should
give great weight and deference to the interpretation of a
.1 Brief of Board of Supervisors of Middlesex Township in
Support of Land Use Appeal.
9
NO. 95-7157 CIVIL TERM
statutory or regulatory provision by the administrative or
adjudicatory body that is charged with the duty to execute and
apply the provision at iuue. " Johnston v. Upper Hacungie
Township, l62 Pa. Cornrow. l70, l76, 638 A.2d 408,412 (1994). This
principle has led Pennsylvania courts to defer, in appropriate
circumstances, to the interpretation placed upon a zoning ordinance
by the zoning hearing board charged with adjudicating it. ld.
It is also a "rule of interpretation that the courts should
construe ambiguous zoning ordinance provisions ... against the
municipality and in favor of the freer use of land." Abernathy v.
Zoning Hearing Board, ll9 Pa. Cornrow. 193, 200, 546 A.2d 13ll, l315
(l988) (Craig, J., concurring); see Appeal of Eureka Stone Quarry,
ll5 Pa. Cornrow. 1, 539 A.2d l375 (l988).
In this case, the zoning hearing board's interpretation of the
municipality's ordinance is not so clearly unreasonable that the
court is disposed to reject it. Where the township has considered
such activities as sawmills, equipment sales and auction houses to
be compatible with uses by right in the district, the board's
determination that the limited home business proposed by Mr. Jones
is "of the same general character as those listed as permitted
uses" will not be disturbed on statutory construction grounds,
particularly where the ordinance provides that such a determination
is to be made by the board on the basis of its "opinion."
Variance. An examination of Pennsylvania variance cases has
lO
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NO. 95-7157 CIVIL TBRM
been said to reveal that "a lesser hardship is likely to suffice in
the usual dimensional case than in an application involving use
regulations." 2 Ryan, Pennsylvania Zoninq Law and Practice 56.3.1,
at 29 (1981). For instance, "a dimensional variance may be granted
where the variance sought is minor or de minimis and rigid
compliance with the ordinance is not absolutely necessary to
protect the underlying public policy concerns." In re Appeal of
Ressler Mill Found., l32 Pa. Cornrow. 569, 57l, 573 A.2d 675, 676
(1990) .
In addition, .. [a]n undersized lot constitutes the physical
circumstances which may entitle one to a variance provided the
other variance criteria are met." N. Pugliese, Inc. v. Palmer
Township Zoning Hearing Bd., l40 Pa. Cornrow. l60, l65, 592 A.2d 118,
l2l (l99l).
In this case, the record can be read to support the
landowner's position that the dimensional variance approved by the
board was minor and entirely inoffensive to underlying public
policy concerns as evidenced in the ordinance. The board's
decision assumed the integrity of all three lots discussed aboveJ
if this integrity should cease, the authority for Mr. Jones to
continue his business would terminate.
In addition, it appears that the substandard size of the Jones
lots (whether viewed individually or as a unit) for purposes of
almost every use permitted by right or special exception in an RF-
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NO. 95-7157 CIVIL TERM
Residential Farm district was a condition which predated the
ordinance provision &s to minimum lot size. U
Under these
circumstances, the court does not believe that it can say that the
board abused its discretion or otherwise erred in granting the
minimum lot size variance.
For these reasons, the following order will be enteredl
ORDER OF COURT
AND NOW, this 22nd day of February, 1996, upon consideration
of Appellant's land use appeal, and for the reasons stated in the
accompanying opinion, the decision of the Middlesex Township Zoning
Hearing Board is AFFIRMED.
BY THE COURT,
sl J. Weslev alar. Jr.
J. Wesley Oler, Jr., J.
Keith O. Brenneman, Esq.
SNELBAKER & BRENNEMAN, P . C .
44 West Main Street
P.O. Box 318
Mechanicsburg, PA l7055
Attorney for Appellant
Edward W. Harker, Esq.
One West High Street
Carlisle, PA l70l3
Attorney for Appellee
.2
See note 40 supra.
l2
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NO. 95-7157 CIVIL TERM
John M. Glace, Esq.
STEFANON , GLACB
407 North Front street
P.O. Box 12027
Harrisburg, PA l7108-2027
Attorney for Intervenor
Irc
l3