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HomeMy WebLinkAbout2005-4412 Civil BOARD OF SUPERVISORS OF DICKINSON TOWNSHIP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ZONING HEARING BOARD OF DICKINSON TOWNSHIP V. ENOLA CONSTRUCTION COMPANY 05-4412 CIVIL TERM IN RE: APPEAL OF BOARD OF SUPERVISORS OF DICKINSON TOWNSHIP FROM DECISION OF THE ZONING HEARING BOARD OF DICKINSON TOWNSHIP BEFORE BAYLEY. J. AND GUIDO. J. OPINION AND ORDER OF COURT Bayley, J., January 31, 2006:-- On August 23, 1994, the Zoning Hearing Board of Dickinson Township considered an application by the Enola Construction Company for a special exception to construct office buildings in a District that was then zoned Agricultural/Residential. The decision set forth that "the plan submitted by the applicant is conceptual in nature and shows the intended special exception uses which may be revised or refined in future subdivision/land development plans." The Board ordered: The Dickinson Township Zoning Hearing Board hereby grants as a special exception for the area as set forth in Sketch Plan A-1, Development Scheme dated May 23, 1994 as follows: 05-4412 CIVIL TERM 1) that tractor trailer traffic on Alexander Spring Road, the access road to the site, should be limited to drop shipments during business hours; 2) there be a minimum of 50% of the square footage of the buildings in the commercial portion be devoted to professional offices such as medical, dental, legal and accounting. 3) that the retail use be no more than 20% of the total building square footage of the commercial portion and that it be generally associated with the primary use such as pharmacy in association with medical offices and the retail uses may be combined in one or more buildings. 4) there be no drive-in/drive-thru type of business operation except for drive-thru banking facilities; 5) there be no storage or commercial activities outside of the buildings; 6) that no portion of any proposed building facing the residences be concrete block or steel; 7) there be no mobile home park or individual mobile homes; 8) that hours of operation of the business be conducted between 7:00 a.m. - 9:00 p.m.; 9) that the entrance/exit of the development not be directly across from an existing residence; 10) that screening as a vegetative buffer as set forth in the proposed new ordinance be placed; however, on the western side the 50 foot vegetative buffer zone may include parking spaces for the commercial uses and on the northern side the 50 foot vegetative buffer zone shall include the 35 foot rear setback of the residential lots. 11) that the Board notes that the developer has affirmed that he will move forward to sell the lots along the Alexander Spring Road for residential purposes only in a timely fashion and at fair market values. (Emphasis added.) In May 2005, the Enola Construction Company requested an interpretation from the Zoning Officer of Dickinson Township as to whether a specific use would be permitted in the same area in what is now a Medium Density Residential Office District (MDR-O). The proposed use in an existing building would house a business that would -2- 05-4412 CIVIL TERM be primarily engaged in the wholesale distribution of plumbing, heating, air conditioning, controls, refrigeration and industrial supplies. On May 6, 2005, the Zoning Officer issued the following interpretation: Section 3 of the Order states "that the retail use be no more than 20% of the total building square footage of the commercial portion and that it be generally associated with the primary use such as pharmacy in association with the medical offices and the retail uses may be combined in one or more buildings". It is the interpretation of this office that any retail operations to be conducted at Alexander Court must be in support of one of the primary uses, being medical, dental, legal or accounting. After consideration of the request, we have arrived at the conclusion that the occupancy of a plumbing supply store in the Alexander Court Subdivision would not be in keeping with the uses approved by the Zoning Hearing Board in 1994. We are of the opinion that a plumbing supply store would be better suited to be located in the Business-Recreational zone where it would be in compliance with the retail operations aspect or in the Business-Industrial zone to be described as warehousing, depending on the details of the operation. This decision can be appealed by submitting an application for this case to be reviewed by the Zoning Hearing Board. Applications are available at the Township Building and should be submitted at your first opportunity. (Emphasis added.) Enola Construction Company filed an appeal that set forth: "Appeal of use request denied by Zoning Officer." The appeal was heard by the Zoning Hearing Board on June 28, 2005. Evidence was taken, and at the conclusion of the hearing, the following occurred: MR. STALLSMITH: I make a motion that we have a limitation that we approve it, but there will be no outside storage of any type, and no duct cutting machine installed inside, and try to get the least audible sound on a forklift that's available, to the lowest DB rating. MR. LOWRY: I'd second that. -3- 05-4412 CIVIL TERM MR. STALLSMITH: Okay. CHAIRMAN EBY: You two are in favor, so I guess it passes. If it's going to pass, then we need to delay the final thing until we can meet with our solicitor and make up the conditions that are enforceable for the use of that building. MR. LEFEVER: Okay. CHAIRMAN EBY: He's given us a general guideline on what they're going to be. I would like to have our solicitor help us write that. *** MR. WERTIME: David Wertime. Are you continuing this matter to another date so that the final decision then will be made publicly? MR. LEFEVER: There was a motion made and passed tonight. CHAIRMAN EBY: Right. The motion was made and passed. He's just going to help us write those conditions. .. (Emphasis added.) On July 29, 2005, the Board issued the following written decision and order in support of its vote on June 28, 2005: FINDING OF FACT: 1. The matter came before the Zoning Hearing Board on an application to interpret the Zoning Officer's decision to deny occupancy to APR distribution which desires to operate a plumbing, heating and air conditioning supply house, at 8 Kuhn Drive, as a branch to their main distribution center in Lebanon, Pennsylvania. The location is zoned MDR-O and is subject to a special exception granted in August, 1994. 2. The APR representative testified that there would generally be no more than one daily delivery by a 24 foot box truck between the hours of 5:00 p.m. to 7:00 p.m. This truck would be loaded at the distribution center in Lebanon, Pennsylvania and arriving at the aforesaid hours. 3. The business operation at the location would operate between the hours of 7:30 a.m. to 5:00 p.m. It was anticipated that two employees would staff the location. These employees would perform the majority of their work by receiving telephone calls from contractors. The orders, in turn, from the contractors would generally be shipped from the Lebanon, Pennsylvania distribution center directly to the customers [sic] business location or job site. 4. In addition to the telephone orders they anticipated that -4- 05-4412 CIVIL TERM approximately 30 to 50 customers would visit the location to pick up plumbing, heating and air conditioning items at the location. 5. On an occasional basis, an emergency delivery from the location could be made to a customer by a pick up truck that would be utilized by one of the employees at the location. 6. There will be no outside storage at the location. 7. There would be no duct board fabrication at the location. 8. Refrigerant would be available at the location in a 30 pound sealed canister. No sales would take place to any customer that did not have the proper state and federal permits. There would be no Refrigerant processing done at the location. 9. The location would have a small forklift, electric or propane. If the forklift were propane, the fuel would be stored inside the facility in a [sic] OSHA approved location. 10. There are currently 14 branch locations of the business. The business has been developing smaller branch size locations and concentrating all of the storage and delivery from the distribution center in Lebanon, Pennsylvania. 11. There would be a small sign without lighting that would probably be metal and vinyl lettering. The sole purpose of the sign would be to identify the building as the location of the branch operation. 12. There would be minimal outdoor security lighting which would be above the entrances and directed downward. 13. There were several neighbors adjacent to the location who were concerned about the business activity as well as the interpretation of the 1994 decision by the Zoning Hearing Board in considering the uses that would be permitted at this particular location and the surrounding locations. (Emphasis added.) ORDER After hearing the Dickinson Township Zoning Hearing Board issues the following decision and Order: 1. The determination by the Zoning Office is set aside. All prior provisions of the 1994 Zoning Hearing board Findings of Fact and Order are adopted and incorporated herein. 2. In addition to the provisions of the 1994 Findings of Fact and Order, and in relation to the use by APR Supply Company, the Board Orders that: a. That there be no outside storage permitted at the location. One dumpster shall be allowed. b. That no duct fabrication or other fabrication is -5- 05-4412 CIVIL TERM permitted at the location. c. That during business operations as well as during the unloading of the delivery truck to the location, that the company utilize equipment to minimize any sound traveling outside the building to the lowest decibel level possible, to the neighboring residences. d. That the business shall be permitted to have signage of 3' by 4', and there be no lighting of the sign. e. That lighting on the building for security purposes is permitted at the entrances and exits, which lighting shall be downward directed so as not to impact on the neighboring uses. f. The size of the building shall not be increased. g. The property shall be planted with lawn and shrubs and maintained in a fitting manner to be compatible with the adjoining residential uses. (Emphasis added. ) The Board of Supervisors of Dickinson Township filed an appeal which was briefed and argued on January 11, 2006. The Supervisors maintain that the Zoning Hearing Board failed to address the interpretation of the Zoning Hearing Officer, and abused its discretion by extending to Enola Construction Company the use for a wholesale plumbing distribution business on its site. In Hopkins v. North Hopewell Township Zoning Hearing Board, 154 Pa. Commw. 376 (1993), an owner submitted an application to the zoning hearing board entitled "Request for Interpretation," asking the Board to interpret a section of the zoning ordinance as to whether their tract could be subdivided into six residential lots, and in addition contain a seventh dwelling for their use as a "prime farmstead" as that term was defined in the ordinance. The Board issued a decision interpreting the ordinance as allowing only six single-family detached dwellings and no prime farmstead. Unsatisfied with this interpretation, the owner filed -6- 05-4412 CIVIL TERM an appeal. The trial court declined to address the merits and vacated the zoning hearing board's determination. It concluded that the Board lacked jurisdiction to grant the interpretation that the owner sought. The Commonwealth Court of Pennsylvania affirmed, concluding that the Municipalities Planning Code does not empower a zoning hearing board to issue an interpretation of a zoning ordinance. The Court noted that the owner alternatively suggested: . . . that the zoning board had before it a request for specific relief in the nature of a variance to move the non-conformity [i.e., the preexisting farmstead] to a new area...." The Hopkinses certainly did not submit an application for a variance, with its attendant requirement to make out a case for unnecessary hardship due to the unique physical circumstances or conditions of the property. In their application, the Hopkinses asked for an interpretation of the zoning ordinance, not a variance from it. The Municipalities Planning Code (MPC) at 53 P.S. Section 10614, sets forth the powers of a Zoning Officer. It provides in pertinent part: The zoning officer shall administer the zoning ordinance in accordance with its literal terms, and shall not have the power to permit any construction of any use or change of use which does not conform to the zoning ordinance. Section 205-79 of the Dickinson Township Zoning Ordinance sets forth the duties of the Zoning Officer. Like the MPC, it does not authorize the Zoning Officer to issue an interpretation of a zoning ordinance. In the case sub judice, the Zoning Hearing Officer considered a request by the Enola Construction Company for an interpretation of whether a specific use would be permitted in a particular area of the Township. That interpretation is a nullity. Enola Construction Company filed an appeal -7- 05-4412 CIVIL TERM from the interpretation that set forth: "Appeal of use request denied by Zoning Officer." The Zoning Officer did not deny a use request. The Zoning Hearing Board, in its findings of fact dated July 29, 2005, stated that the matter came before it "on an application to interpret the Zoning Officer's decision to deny occupancy to APR Distribution which desires to operate a plumbing, heating and air conditioning supply house, at 8 Kuhn Drive. . . ." There had been no application for an occupancy permit before the Zoning Hearing Officer, and the officer did not deny such an application. As in Hopkins, the order of the Zoning Hearing Board will be vacated. The action it took on June 28, 2005, and the order in support of it on July 29, 2005, were not properly before it on appeal. Any interpretation made by the Board is a nullity. ORDER OF COURT AND NOW, this day of January, 2006, the order of the Zoning Hearing Board of Dickinson Township on July 29,2005, IS VACATED. By the Court, Edgar B. Bayley, J. Marcus A. McKnight, III, Esquire For Board of Supervisors of Dickinson Township Donald E. LeFever, Esquire For Enola Construction Company :sal -8- BOARD OF SUPERVISORS OF DICKINSON TOWNSHIP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ZONING HEARING BOARD OF DICKINSON TOWNSHIP V. ENOLA CONSTRUCTION COMPANY 05-4412 CIVIL TERM IN RE: APPEAL OF BOARD OF SUPERVISORS OF DICKINSON TOWNSHIP FROM DECISION OF THE ZONING HEARING BOARD OF DICKINSON TOWNSHIP BEFORE BAYLEY. J. AND GUIDO. J. ORDER OF COURT AND NOW, this day of January, 2006, the order of the Zoning Hearing Board of Dickinson Township on July 29,2005, IS VACATED. By the Court, Edgar B. Bayley, J. Marcus A. McKnight, III, Esquire For Board of Supervisors of Dickinson Township Donald E. LeFever, Esquire For Enola Construction Company 05-4412 CIVIL TERM :sal -2-