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HomeMy WebLinkAbout02-5928 CivilRONALD B. BLAUCH and GEORGIA L. BLAUCH, Appellants THE BOROUGH OF MECHANICSBURG, Appellee IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-5928 CIVIL TERM CIVIL ACTION - LAW SHERRY L. HUGHES and MARK A. HUGHES, Intervenors IN RE: LAND USE APPEAL BEFORE HOFFER, P.J., OLER, J. Hoffer, P.J. This matter involves a Land Use Appeal filed by Appellants Ronald B. Blauch and Georgia L. Blauch ("Appellants" or "Blauchs"). The real estate subject to the appeal is located at 220-222 South Washington Street in the Borough of Mechanicsburg ("Borough"), and is owned by Intervenors Sherry L. Hughes and Mark A. Hughes ("Hughes" or "Developer"). The plan is known as Mechanicsburg Commons, and is located in Mechanicsburg's RM-Residential Medium Density zoning district. The Blauchs' property is located at 215 South Broad Street, immediately adjacent to the Mechanicsburg Commons plan ("Plan") abutting the southern side of the proposed West Coover Street. Factual and Procedural Background The Hughes are the owners of four contiguous tracts of land in the Borough totaling approximately 3.5 acres, lying between Washington Street and Broad Street. After meeting on January 31,2002 with Borough staff, engineers and legal counsel, the Hughes in February, 2002 submitted a sketch plan and waiver requests with respect to the above- referenced land.1 At a February 10, 2002 meeting, the Borough Council considered the sketch plan, Borough engineer and solicitor comments, and the standards for the grant of waiver requests under the Pennsylvania Municipalities Planning Code. With respect to the sketch plan, four waivers were considered and decided upon. The Council waived the requirement that both a preliminary and final subdivision plan be submitted. It also waived the requirements that sidewalks be installed on 1 Pursuant to §401(1) of Borough of Mechanicsburg Zoning Ordinance ("Zoning Ordinance"): Ten (10) days prior to a regular meeting of the Planning Commission the subdivider shall submit five (5) copies of the pre-application data obtained through compliance with Section 401 (1) and Section 401 (2) or 401 (4) and five (5) copies of subdivision sketch plans as further described in Article V of this ordinance [Part 5 this chapter] to the Borough Manager for distribution as directed by the Planning Commission... Zoning Ordinance §401 (1). 2 both sides of West Coover Street and that the proposed street have super elevation based on curves. The Council denied the request that the extension of West Coover Street have a twenty-four foot cartway width as opposed to the thirty-four foot cartway width required by the Borough's Subdivision and Land Development Ordinance ("SALDO"). At the meeting, the Borough engineer suggested that two pending plans the Hughes had submitted earlier be combined for a final submission.2 Also, the Borough Solicitor asked whether the Hughes were willing to withdraw the plan for 220-222 South Washington Street and resubmit it with the Mechanicsburg Commons Plan. The Hughes submitted a new plan for Mechanicsburg Commons to the Borough on April 17, 2002, that was consistent with the waiver decisions made by the Council on February 10, 2002, and included the 220-222 South Washington Street land. After the submission of the new Plan, the Blauchs, whose property abuts the southern side of the proposed West Coover Street, raised opposition to the Plan, beginning at the time of the first meeting of the Borough Planning Commission after the Plan's submission and continuing until the Plan's approval in November, 2002. 2 The Hughes previously had two subdivision plans pending in the Borough. A plan for 220-222 Washington Street involved land on the west side of Washington Street and north of West Coover Street. Another plan involved land south of West Coover Street, adjoining Washington Street and extending west to South Broad Street. The Council denied these plans on April 16, 2002 (Borough Council Meeting Minutes, April 16, 2002, Record 10). 3 On September 4, 2002, the Planning Commission recommended to the Borough Council the Plan and all requested Plan waivers. On November 19, 2002, the Borough Council approved all waiver requests and conditionally approved the Plan. On December 12, 2002, Appellants Blauchs filed a Notice of Land Use Appeal. On December 16, 2002, the Hughes filed a timely Notice of Intervention pursuant to 53 P.S. §11004-A. On December 28, 2002, Appellee Borough of Mechanicsburg filed both a Response to Land Use Appeal and the Record. The matter was listed for argument by the Intervenors on January 7, 2003. On January 21,2003, the appellants filed a Motion to expand the record and delay argument. A Supplemental Record was filed by appellants the following day. On January 23, 2002, the Hughes filed a response to the appellants' Motion to Expand the Record. The appellants' motion to delay argument was denied by Order dated January 27, 2003.3 However, the request that the record be expanded with depositions was deferred by the Court to the time of argument, February 12, 2003. Discussion Pursuant to 53 P.S. §11002-A, the Court has jurisdiction over land use appeals. 3 Court Order, before Hess, J., dated January 22, 2003. 4 In a land use appeal where the Court takes no additional evidence, the scope of review is limited to determining whether the governing body committed an error of law or an abuse of discretion. Brouios v. Carlisle Borouqh Council, 685 A.2d 620, 622 n.4 (Pa. Commw. 1996). The governing body abuses its discretion if its findings of fact are not supported with substantial evidence. Id. 1. The Plan does not violate section 1601(4) of the Zoning Ordinance. In order to determine whether the approved Plan is in violation of section 1601(4) of the Zoning Ordinance, the Court must construe the ordinance using basic principles of statutory construction. Rules of statutory construction are applicable to statutes and ordinances alike. Appeal of Neshaminy Auto Villa, Ltd., 25 Pa. Commw. 129, 133, 358 A.2d 433, 435 (1976). "The polestar for construction of a statute or ordinance is the intention of the legislative body." Id., 358 A.2d at 435. In addition, words and phrases of local ordinances shall be sensibly construed according to the rules of grammar and according to their common and approved usage. Tobin v. Radnor Township Board of Commissioners, 142 Pa. Commw. 567, 578,597 A.2d 1258, 1264 (1991). Further, undefined terms in a zoning ordinance shall be given their plain, ordinary meaning, and any doubt must be resolved in favor of the landowner and least restrictive use of the land. Id., 597 A.2d at 1264. Finally, in interpreting a zoning ordinance, a particular section of a zoning 5 or subdivision code must be read as an integral part of the whole and not as a separate portion with an independent meaning. Tobin at 578,597 A.2d at 1264. Article 5, section 508 of the Zoning Ordinance requires that parking and access to lots applicable to areas of the R-M Residential District Medium Density zoning district be provided in accordance with Article 16 of the Zoning Ordinance. Zoning Ordinance §508. Article 16 of the Zoning Ordinance provides regulations for situations where motor vehicle access is provided from a street or private road onto a lot. Zoning Ordinance §1601. With regard to driveways and curbs, section 1601(4) states, in part, that the access to the lot shall comply with regulations such as Driveways shall not cross the street right-of-way line within forty (40) feet of the street right-of-way line of an intersecting and in no case less than ten (10) feet from the point of tangency when the intersecting street lines are joined by a curve. Zoning Ordinance §1601(4). This subsection, as well as the rest of section 1601, addresses access to lots by use of driveways. Subsection 1601(4) does not address access to lots by use of a street. Further, the Zoning Ordinance distinguishes between driveways and streets in the definitions under section 203.'~ The entire section also provides requirements of '~ Section 203 of the Zoning Ordinance defines driveway as, "a private roadway providing access for vehicles to a parking space, garage, dwelling, or other structure." In the same section, street is defined as "a public or private right-of-way constructed to municipal standards which 6 driveway access, location and use. The section does not specify the same requirements for streets.5 Therefore, because the installation of a street adjacent to the appellants' property was proposed in the Plan rather than the installation of a driveway, section 1601(4) does not apply, and a variance from it was never necessary. Further, to require compliance with section 605(F) of SALDO is not necessary. Under section 605(F): Private driveways on corner lots should generally be located at least forty (40) feet from the intersection and should have such grades as to furnish a safe and convenient parking space. Curb cuts for driveways shall be not less than 12 feet wide. Curb height shall be at least one inch high above gutter at driveway entrances. SALDO §605(F). While the Borough Council did provide a waiver of this section, it was not necessary due to the language of the section. The forty feet distance is not mandatory, but should be applied "generally." Due to the ambiguity of the language of section 605(F) (specifically "should generally... "), it was proper for the Borough Council to resolve the meaning of the provision in favor of the developer. See 53 P.S. §10603.1.6 affords primary vehicular traffic or pedestrian access to abutting properties, which includes avenue, boulevard, road, highway, freeway, parkway, and viaduct, but shall not include an alley for the purposes of this Chapter." 5 Section 604 of the Mechanicsburg Subdivision and Land Development Ordinance ("SALDO") separately provides the criteria for streets. 6 In interpreting the language of zoning ordinances to determine the extent of the restriction upon the use of the property, the language shall be 7 2. The Zoning Officer's Determination was not appealed. The Zoning Officer's determination regarding the application of section 1601(4) of the Zoning Ordinance is sound. The Zoning Determination, dated August 29, 2002, specifically states, "1 can find no section of the Zoning or Subdivision/Land Development Code that prohibits construction of a new street within forty feet of an existing driveway." After reviewing the record, the Court does not find evidence by which to disturb that determination. Further, an appeal to the Court in this matter is not proper. Under the Pennsylvania Municipalities Planning Code, the jurisdiction of a zoning hearing board is as follows: (a) The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudication in the following matters: (3) Appeals from the determination of the zoning officer, including, but not limited to, the granting or denial of a permit, or failure to act on the application thereof, the issuance of any cease and desist order or the registration or refusal to register any nonconforming use, structure or lot. 53 P.S. [}10909.1. This language clearly indicates that it is the zoning hearing board, not the Court, who is to make a final adjudication as to an interpreted, where doubt exists as to the intended meaning of the language written and enacted by the governing body, in favor of the property owner and against any implied extension of the restriction. 53 P.S. [}10603.1; see also Rabenold v. Zoninq Hearing Board of Borouqh of Palmerton, 777 A.2d 1257, 1263 (Pa. Commw. 2001)(stating zoning ordinances must be construed expansively so as to afford the landowner the broadest possible use and enjoyment of his land). 8 appeal from a determination made by a zoning officer. Since this appeal should have been made to the zoning hearing board, it is therefore not proper for the Court to grant further discovery on the issue of what notice, if any, the appellants received of the zoning officer's determination. This argument by appellants seeking further discovery is baseless. 3. The Plan is not in violation of Zoning Ordinance sections 1108, '1'109.'1.A and '1'109.6. Appellants contend that the Plan violates sections 1108, 1109.1 .A and 1109.6 of the Zoning Ordinance with respect to a proposed four feet high railing that will run along a retaining wall adjoining a sidewalk beside West Coover Street, thereby creating an obstruction to vision. Section 1108 of the Zoning Ordinance states: Section 1108. Obstruction to Vision. 1. Walls, fences, signs or other structures shall not be erected or altered, and hedges, trees or other growth shall not be planted or maintained, which may cause danger to traffic on a street or road by obstructing the view. 2. A clear-sight triangle of twenty-five (25) feet, measured along the street lines of intersecting streets and/or alleys, shall be maintained; within which such structures or plantings shall be limited to a height of not more than three (3) feet or less than ten (10) feet above the street grade, except the trunks of street trees or other ornamental trees whose foliage is kept trimmed to a height of ten (10) feet above the street grade. Zoning Ordinance §1108. In addition, sections 1109.1 .A and 1109.6 provide: 9 1. Fences and walls may be erected, altered and maintained within the yards, excluding required buffer yards, with the following provisions: A. Any such fence or wall in the front yard shall not exceed three (3) feet in height. 6. No fence shall be constructed in any street or alley right-of- way. Zoning Ordinance §§1109.1 .A, 1109.6. Further, a fence in the Zoning Ordinance is defined as: Any freestanding and uninhabitable structure constructed of wood, glass, metal, plastic materials, wire, wire mesh, or masonry, singly or in combination, erected for the purpose of screening or dividing one (1) property from another to assure privacy, or to protect the property so screened or divided, or to define and mark the property line of any front, side or rear lot line; for the purpose of this Chapter, a freestanding masonry wall when so located is considered to be a fence; also for the purpose of this Chapter, when the term "lot line" is used in relation to fences, it shall be synonymous with "rear yard lot lines," "side yard lot lines" and "front yard lot lines." Fences are not synonymous with "garden structures" which are defined elsewhere herein. Zoning Ordinance §203. According to section 203, the proposed railing does not fall within the meaning of a fence. The purpose of the proposed open hand rail is to provide pedestrian safety, not screen or divide one property from another to assure privacy, protect or define those properties. Further, since the open railing does not fall within the meaning of a fence, the height requirements in sections 1108, 1109.1 .A and 1109.6 are not applicable to a railing that poses no visual safety concern· 10 Accordingly, for the above-stated reasons, the Borough Council properly approved the Plan as it relates to sections 1108, 1109.1 .A and 1109.6. 4. The Plan does not violate SALDO by creating a "Double Frontage" lot. Appellants contend that the approved Plan violated section 607.G of SALDO, which states, "Double frontage lots are permitted only where lot is adjacent to major traffic street." SALDO §607.G. Specifically, the appellants argue that the Plan converted their lot into a "double frontage" lot which is in violation of the SALDO provision. "Double frontage lot" is not defined in the Zoning Ordinance or in SALDO. While "front yard" can be found in the Zoning Ordinance,7 no reference is made to "double frontage." Other provisions of SALDO do provide guidance on the meaning of the term, though. Section 607.E.5 provides that "[r]esidential lots shall in general front on a municipal street, existing or proposed." SALDO §607.E.5. This section suggests that "frontage" is a reference to a residential lot having land adjoining a street. Further, when a court is required to determine the meaning of a zoning 7 The Zoning Ordinance defines "front yard" as an open unoccupied space on the same lot with a building, extending the full width of the lot and situated between the street line and the building line projected to the side lines of the lot. The depth of the front yard shall be measured between the front building line and the street line. Yard, Front, Zoning Ordinance §203. 11 ordinance provision, undefined terms must be given their plain, ordinary meaning. Federici v. Borouqh of Oakmont Zoninq Hearing Bd., 583 A.2d 15, 17 (Pa. Cmmw. 1990) (citing Appeal of Mt. Laurel Racinq Ass'n, 458 A.2d 1043 (Pa. Cmmw. 1983)). Accordingly, Black's Law Dictionary defines "frontage" as "[t]he part of land abutting a street or highway or lying between a building's front and a street or highway." BLACK'S LAW DICTIONARY 678 (7th ed. 1999). Given the plain meaning, a reasonable interpretation of "double frontage" is a reference to a lot that fronts on two adjoining streets. The other term at issue in section 607.G of SALDO is "major traffic street." "Major traffic street" is defined in SALDO as, "streets serving large volumes of comparatively long distance traffic at high speed, and intended primarily for inter-city and commuter traffic and include facilities classified as main and secondary highways by the Pennsylvania Department of Transportation." SALDO §603.5.E. The appellants concede that one of the existing adjacent streets, Valley Street, is not a "major traffic street.''8 The addition of West Coover Street, therefore, does not create "double frontage" in the appellants' lot, because, according to the proposed Plan, that double frontage already exists in their lot. 8 "It is clear from the Plan that Valley Street and the proposed West Coover Street do not qualify as 'major traffic streets.'" Brief for Appellants at 14. 12 5. The Plan does not violate section 708 of SALDO. The appellants argue that the proposed Plan violates section 708 of SALDO, and that it was not proper for the Borough Council to grant a waiver of that section. Section 708 provides: Releases Required. When any street, drainage facility or other improvement within a subdivision abuts or traverses lands of persons other than the person holding legal title to the lands of the subdivision, the applicant or owner of the subdivision shall, at his own costs, obtain from the owner of the lands so abutted or traversed full releases from all damages which may result to said lands of the owners thereof from the change in grade, construction or otherwise, of the street, drainage facility or other improvement, and such release shall inure to the benefit not only of the owner of the subdivision but to the Borough. SALDO [}708. The Hughes directed an interpretation request of this section to the Zoning Officer on August 28, 2002. In addition, the engineer for the Hughes submitted a request for a waiver of section 708 on October 22, 2002. Further, at the October 14, 2002, Borough Council meeting, when asked about the requirement for releases under section 708, the Borough Solicitor advised the Council that section 708 dates back to 1973 and would probably not hold up under the Municipalities Planning Code because it gives power to the adjacent property owners to prevent development of a parcel by refusing to sign a release. See Borough 13 Council Meeting Minutes, October 14, 2002, Supplemental Record 4. Given the current language of section 10603.1 of the Municipal Planning Code, which sets out an interpretation of a zoning ordinance in favor of the property owner and against any implied extension of a restriction, the Solicitor's opinion was sound. See 53 P.S. §10603.1. On November 19, 2002, the Borough Council considered the requirements of section 708. The Council was informed at that meeting that a release from an abutting property owner, the Mays, had been obtained. After consideration and acceptance of the release, the Council granted a waiver of the requirements of section 708. Upon review of the record, the Court finds that in the proposed Plan, no street, drainage facility or other improvement within the subdivision traverses lands other than that of the developer. Further, there is no physical impact or encroachment upon any adjoining property associated with the proposed development. All proposed improvements were considered and approved by the Borough's engineer. See e.g., Record at 16. Therefore, the Borough Council properly granted the waiver of section 708. 6. The Plan does not violate section 605(F) of SALDO. The appellants contend that the Plan violates section 605(F) of SALDO, and that that section was not properly waived by the Borough 14 Council. A discussion of this waiver is discussed in Section 1, supra. Pursuant to that discussion, the Court finds this waiver proper. 15 RONALD B. BLAUCH and GEORGIA L. BLAUCH, Appellants THE BOROUGH OF MECHANICSBURG, Appellee IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-5928 CIVIL TERM CIVIL ACTION - LAW SHERRY L. HUGHES and MARK A. HUGHES, Intervenors IN RE: LAND USE APPEAL BEFORE HOFFER, P.J., OLER, J. ORDER OF COURT Hoffer, P.J. AND NOW, this ~ day of ,2003, upon consideration of Appellants' Land Use Appeal, IT IS ORDERED that the decision of the Mechanicsburg Borough Council approving the preliminary subdivision and land development plan of Mechanicsburg Commons, IS AFFIRMED. By the Court, George E. Hoffer, P.J. 16 Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 For the Appellants Edward L. Schorpp, Esquire Martson, Deardorff, Williams & Otto, P.C. 10 E. High Street Carlisle, PA 17013 For the Appellees Keith O. Brenneman, Esquire Snelbaker, Brenneman & Spare, P.C. 44 W. Main Street P.O. Box 318 Mechanicsburg, PA 17055 For the Intervenors 17