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HomeMy WebLinkAbout2004-5093 Civil SCOTT D. WAGNER and CHARLEEN P. WAGNER, APPELLANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ZONING HEARING BOARD OF MECHANICSBURG BOROUGH, APPELLEE V. STEVEN CADWALLADER, LEE ANN CADWALLADER and AUTOBODIES BY LUCAS, L TD, INTERVENORS 04-5093 CIVIL TERM IN RE: LAND USE APPEAL OPINION AND INTERIM ORDER OF COURT Bayley, J., April 5, 2005:-- Intervenors, Steven Cadwallader and Lee Ann Cadwallader, are the owners of 526 East Main Street, Mechanicsburg, Cumberland County. They operate Autobodies by Lucas, LTD., which has an auto body repair shop on the property. The property is bounded on the north by East Main Street, on the east by 530 East Main Street, on the south by a public alley, and on the west by property of appellants Scott D. Wagner and Charleen P. Wagner. The Cadwalladers have acquired equitable title to 530 East Main Street on which there is a gas station and a two car garage. They plan to remove those buildings and construct an addition to the east side of the auto body shop which will extent onto 530 East Main Street. The existing shop has eight service bays and a paint booth. If expanded the facility will have fourteen service bays and additional office, storage and training space. Vehicles will enter the building from East Main Street and 04-5093 CIVIL TERM Norway Street, and leave on Norway Street or the public alley. The plan for the enlarged facility has 40 parking spaces: 22 outside the building and 18 inside. That meets the requirements of the Zoning Ordinance of the Borough of Mechanicsburg. The Cadwalladers sought a variance from the requirements in Sections 1404.2.A and 1404.2. B of the Zoning Ordinance. Section 1404.2.A requires that all access drives be at least five feet from any building for purposes of pedestrian access. The access drive from East Main Street along the northern portion of the property will directly abut the front of the existing building and the proposed addition. Appellee, the Zoning Hearing Board of Mechanicsburg, while acknowledging that there are no unusual or unique physical characteristics or conditions applicable to the property that create unnecessary hardship, granted a variance. It concluded that the front of the building: [c]ontains overhead doors that directly access service bays (interior spaces 3-7). Those doorways must directly access the access drive for traffic to enter and leave those bays. Thus, any deviation for the remainder of the access drive is de minimis. Section 1404.2. B of the Zoning Ordinance, requires that all access drives and parking spaces be at least five feet from any exterior property line. Exterior spaces 1-3 directly abut the northern property line, 14-20 are within three feet from the southern property line, and 21 and 22 directly abut the southern property line and the public alley. The Zoning Hearing Board granted a variance, concluding that these deviations were -2- 04-5093 CIVIL TERM "de minimis."1 The Wagners filed this appeal which was briefed and argues on March 23, 2005. Having not received additional evidence, our review consists of ascertaining whether the Zoning Hearing Board committed an abuse of discretion or an error of law. See C & M Developers, Inc. v. Bedminster Township Zoning Hearing Board, 820 A.2d 143 (Pa. 2002). An abuse of discretion is where the Board's findings are not supported by substantial evidence. Id. The Municipalities Planning Code at 53 P.S. Section 10910.2 provides that a zoning hearing board may grant a variance when all of the following findings are made where relevant in a given case: (1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located. (2) That because of the physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and the authorization of a variance is therefore necessary to enable the reasonable use of the property. (3) That such unnecessary hardship has not been created by the appellant. (4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, 1 The Cadwelladers also sought a variance from Section 1404.1. B of the Ordinance that requires that the aisle width of driveways between perpendicular parking spaces be at least twenty-four feet and that aisles for parking spaces at sixty degrees be at least eighteen feet wide. The Board denied the variance. -3- 04-5093 CIVIL TERM nor significantly or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare. (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 in issue. Notwithstanding, a de minimis variation from the provisions of a zoning ordinance does not have to meet these requirements for the grant of a variance. Township of Middletown v. Zoning Hearing Board of Middletown Township, 682 A.2d 900 (Pa. Commw.1996). In Township of Middleton, the Commonwealth Court of Pennsylvania stated: Although a board could consider the size of the proposed deviation in determining whether a variance is de minimis, this Court reiterates that it is equally important for a board to consider whether rigid compliance is necessary to preserve the public interest sought to be protected by the ordinance. (Emphasis added.) While there is some reference in the brief filed by the Zoning Hearing Board as to the public interest sought to be protected by Sections 1404.2.A and 1404-2.B of the Mechanicsburg Zoning Ordinance, the opinion of the Board is silent. It is also silent on whether rigid compliance is necessary to preserve such interest rather than grant the two variances as de minimis. Therefore, we are unable to fully address the issues raised by the Wagners in this appeal. Accordingly, the following order is entered. INTERIM ORDER OF COURT AND NOW, this day of April, 2005, IT IS ORDERED: (1) The case is remanded to the Zoning Hearing Board of Mechanicsburg. -4- 04-5093 CIVIL TERM (2) The Board shall expeditiously file a supplemental opinion as to the grant of the two variances addressing whether rigid compliance with the Mechanicsburg Zoning Ordinance is necessary to preserve the public interest sought to be protected by the Ordinance. (3) Upon the filing of the supplemental opinion with the Prothonotary, it shall be forwarded to chambers. (4) Within fifteen days thereafter, all parties may file in this chambers a supplemental brief. (5) The court will decide the appeal without further oral argument unless any party requests argument. By the Court, Edgar B. Bayley, J. Michael L. Bangs, Esquire For Appellants Marlin R. McCaleb, Esquire For Appellee Gerald J. Shekletski, Esquire For Intervenors :sal -5-