HomeMy WebLinkAbout95-2905 CivilCREEDIN H. OTTO, JR.,
Appellant
V.
ZONING HEARING BOARD OF
HAMPDEN TOWNSHIP,
Appellee
V.
HAMPDEN TOWNSHIP,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-2905 CIVIL TERM
IN RE: LAND USE APPEAL
BEFORE SHEELY, P.J., HOFFER and OLER, JJ.
ORDER OF COURT
AND NOW, this ~ day of February, 1996, after careful
consideration of Appellant's land use appeal, and for the reasons
stated in the accompanying opinion, the decision of the Zoning
Hearing Board of Hampden Township is AFFIRMED.
William H. Andring, Esq.
248 Creek Road
Camp Hill, PA 17011
Attorney for Appellant
BY THE COURT,
John E. Slike, Esq.
Johnna J. Deily, Esq.
Saidis, Guido, Shuff & Masland
2109 Market Street
Camp Hill, PA 17011
Attorneys for Appellee
Richard C. Snelbaker, Esq.
Snelbaker & Brenneman, P.C.
44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055
Attorney for Intervenor
: rc
CREEDIN H. OTTO, JR.,
Appellant
v.
ZONING HEARING BOARD OF
HAMPDEN TOWNSHIP,
Appellee
v.
HAMPDEN TOWNSHIP,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-2905 CIVIL TERM
IN RE: LAND USE APPEAL
BEFORE SHEELY, P.J., HOFFER and OLER, JJ.
OPINION and ORDER OF COURT
Oler, J.
In this zoning case, a landowner has appealed from a decision
of a zoning hearing board denying his variance application. The
municipality has intervened in support of the board's decision.
No additional' evidence has been taken by this court.~
Argument on the appeal was held on December 6, 1995. For the
reasons stated in this opinion, the decision of the zoning hearing
~ Appellant filed a Motion for the Presentation of Additional
Evidence and for the Consideration of the Present Appeal upon a de
Novo Review of the Record Below As Supplemented by Additional
Evidence, on August 22, 1995. At oral argument herein, Appellant's
counsel advised that he would not pursue the portion of the motion
requesting the presentation of additional evidence, provided that
the court would consider the entire record as certified from the
zoning hearing board.
In so indicating, Appellant's counsel expressly did not
waive Appellant's position that the court should review the record
de novo, on the ground that the zoning hearing board's decision was
deficient. This issue will be discussed in the text hereafter.
In disposing of this appeal, the court has, as requested by
Appellant's counsel, considered the entire record as certified from
the zoning hearing board.
NO. 95-2905 CIVIL TERM
board will be affirmed.
STATEMENT OF FACTS
Appellant is Creedin H. Otto, Jr., who resides at 220 Silver
Spring Road, Mechanicsburg (Hampden Township), Cumberland County,
Pennsylvania.2 He is the owner of the property at which he
resides.3
Appellant's property is a more or less rectangular, 1.1 acre
lot, fronting on Silver Spring Road, having sides of 496 feet, and
front and rear lines of 99.31 feet. More exactly, the lot is a
slightly non-rectangular parallelogram, having an actual width of
97.24 feet. The front two-thirds of the lot contains a house,
garage, swimming pool and two sheds.4
Appellant purchased the property in 1978s and has lived there
ever since.6 The lot and its residential use precede the pertinent
2 N.T. 7, Hearing, Hampden Township Zoning Hearing Board,
April 5, 1995 (hereinafter N.T. __).
3 Township Exhibit 3, Hearing, Hampden Township Zoning
Hearing Board, April 5, 1995 (Building permit application, deed
attachment) (hereinafter Township Exhibit __).
Application for variance, "As-Built Survey" attachment.
s Township Exhibit 3
attachment).
6 N.T. 17, 20.
(Building permit application, deed
2
NO. 95-2905 CIVIL TERM
township zoning ordinance regulations.? The land is in an I-G,
Industrial - General, zoning district.8
There are residences on each side of Appellant's property. A
housing development lies across the street. Behind the property is
an industrial use of some sort.9
Appellant is a welder.~° He was self-employed for about ten
years, and in approximately August of 1994 became an employee of
BWB, Incorporated, a demolition or wrecking company.~ In
7 N.T. 23-24, 88; Ordinance No. 84-02 (March 29, 1984), as
amended.
With respect to nonconforming uses, the Hampden Township
Zoning Ordinance provides, inter alia;
Ail lawful uses of land or of a building
or other structure existing on the effective
date of this Chapter may be continued,
altered, restored, reconstructed, sold or
maintained even though such use may not
conform to the use, height, area, yard and
other regulations of the district in which it
is located ....
Hampden Township Zoning Ordinance ~2001.
The ordinance also provides for the expansion of
nonconforming uses. Id. §2004. It does not appear to contain a
provision dedicated to nonconforming lots.
8 N.T. 23, 26; Ordinance No. 84-02, part 14 (March 29, 1984),
as amended.
9 N.T. 17-18; Application for variance, "As-Built Survey"
attachment.
~0 N.T. 5.
~ N.T. 5, 9, 68-69.
NO. 95-2905 CIVIL TERM
connection with his trade, he owns a truck-mounted welder,~2 a
lathe,~3 a welder on a cart,TM an air compressor,~s various pieces of
equipment on wheels,~6 forklifts,~? pipe, fittings, pullers, jacks,
hydraulic presses,~8 trucks,~9 etc. He has at least ten vehicles,2°
and one or more2~ of his trucks bear the insignia "Otto's Equipment
Repair.,,22
On January 15, 1992, Appellant applied to the township for a
building permit.23 The application was for construction on his
premises of a new, steel-frame, one-story building, 30 feet in
width, 18 feet in height, 1800 square feet in area,24 and, by
implication, 60 feet in length. The proposed use of the new
N.T. 5, 10.
N.T. 19.
N.T. 38.
N.T. 70.
N.T. 39.
N.T. 10.
N.T. 18.
N.T. 76.
N.T. 72.
N.T. 74.
N.T. 83.
N.T. 32; Township Exhibit 1.
Township Exhibit 1.
NO. 95-2905 CIVIL TERM
building was for storage of a boat, camper, tractor and trailers.2s
The application elicited a response from the township in the
form of a request for more details, including a clarification as to
whether private or commercial storage was contemplated.26 Appellant
did not respond to this letter, and the application was treated by
both parties as abandoned.27
On October 12, 1993, Appellant filed a second building permit
application.28 The structure which resulted from this permit
application is the subject of the present litigation.29
Appellant's second application was for construction at the
rear of his property of a new 42- by 64-foot, one-story, steel-
frame building, having a height of about 21 feet, an area of
2,552.25 square feet, and no heating capacity.3° The proposed use
of the new building was given as "residential storage."3~
This application resulted in discussions between Appellant and
township officials regarding precisely what the building was to be
Id.
N.T. 32-33; Township Exhibit 2.
N.T. 33.
N.T. 33-34; Township Exhibit 3.
N.T. 34.
N.T. 33-35; Township Exhibit 3.
Township Exhibit 3.
5
NO. 95-2905 CIVIL TERM
used for.32 A document negotiated between the parties stipulated
that the storage building was to be used for "personal equipment
and vehicles only," and that "[a]ny change in use for this building
[had to] be addressed by the proper submission of plans to Hampden
Township.''3~ The township also agreed to an increase in the length
of the proposed structure to 83 feet.34
The municipality issued a permit for the structure on October
20, 1993.~s The permit authorized a "residential" accessory
building for "personal equipment and vehicles."36
Appellant constructed the building in the winter of 1994.37
The following spring, the township received a complaint of
excessive noise coming from the structure.38 An inspection of the
building revealed that two truck trailers were being refurbished in
it.39 At a May 13, 1995, meeting between Appellant and the
township's code enforcement officer, Appellant, according to the
work remained to be done as of April 5, 1995.
38 N.T. 35.
39 N.T. 38.
N.T. 36-37.
Township Exhibit 5.
Township Exhibits 3-4.
N.T. 34-35; Township Exhibit 4.
Township Exhibit 4.
N.T. 8-9. Concrete flooring and some interior finishing
N.T. 7, 9.
NO. 95-2905 CIVIL TERM
officer, stated that
the site was being used essentially for a base
operation of his family business that involved
vehicle repair, hauling and other commercial
activities that happened off premises, [and]
that the building in the rear was used to
repair vehicles and store and service other
equipment that was used in the business.4°
The codes enforcement officer advised Appellant that such an
operation was not consistent with the accessory residential use
provided for in the permit.4~ He told Appellant that he would have
to file a land development plan, which was required for all
proposed uses of a nonresidential nature.42 Appellant failed to
comply with this directive.~3
The township filed two summary citations against Appellant for
zoning ordinance violations~ on September 22, 1994.~5 Prompted in
this manner, Appellant engaged a surveyor to prepare a land
development plan.46
~0 N.T. 39-40.
~ N.T. 40.
Id.; Township Exhibit 7.
~3 N.T. 41.
4~ Whether a summary offense prosecution is a proper means of
municipal enforcement of a zoning ordinance is not before the
court. See 2 Ryan, Pennsylvania Zoning Law and Practice §9.1.15
(1995). No disposition of these citations had occurred as of the
zoning hearing board hearing on April 5, 1995. N.T. 56-57.
4s N.T. 41-42; Township Exhibit 9.
,6 N.T. 21-23, 30.
NO. 95-2905 CIVIL TERM
The result of a survey performed by the surveyor was a drawing
dated February 27, 1995, entitled "As-Built Survey," depicting
Appellant's property and the structures on it.47 Although a welding
shop, as well as other industrial uses, were permitted in an I-G
zoning district,48 it was determined that seven variances would be
requested to accommodate such a permitted use in the building in
question:49
a.
b.
Ce
a lot width variance of about 50 feet;5°
two Side-yard variances of about 125 feet
each;5~
two side-yard buffer strip variances of 25
feet each, dispensing with buffer strips
entirely;~2
47 N.T. 22; Application for variance,
attachment.
"As-Built Survey"
Hampden Township Zoning Ordinance §1403.
~9 N.T. 24-27, 30; Application for variance, "As-Built Survey"
attachment.
s0 N.T. 24; Application for variance, "As-Built Survey"
attachment; Hampden Township Zoning Ordinance §1406. The zoning
ordinance required a lot width of 150 feet; Appellant's lot was a
little under 100 feet in width.
~ N.T. 24; Application for variance, "As-Built Survey"
attachment; Hampden Township Zoning Ordinance ~1408(2)(B). The
zoning ordinance required side yards of 150 feet where adjacent
properties were used residentially; Appellant's side yards at the
site of the building were about 25 feet.
s2 N.T. 25; Application for variance, "As-Built Survey"
attachment; Hampden Township Zoning Ordinance §1408(2)(D). The
zoning ordinance required buffer strips of 25 feet, for purposes of
visual screening, in side yards adjacent to residential uses. N.T.
44. Appellant proposed to provide so such screening.
NO. 95-2905 CIVIL TERM
d. an off-street parking variance of 18
spaces, dispensing with off-street parking
entirely in connection with the proposed
use;53 and
e. a driveway width variance of about 15
feet.54
Appellant filed a variance application with the township on or
about February 27, 1995. The application included as attachments
the "As-Built Survey" drawing and "affidavits" from certain
neighbors. The signers stated that they had "been informed by Mr.
Otto of his intended use of the property to conduct a commercial
welding shop at the rear of his property," and that they had "no
objection to this plan.''5~
The Hampden Township Zoning Hearing Board held a hearing on
the variance application on April 5, 1995. At the hearing, the
township opposed the application,~ as did the owners of a nearby
residence.~7
Evidence at the hearing included testimony that the state
53 N.T. 25; Application for variance, "As-Built Survey"
attachment; Hampden Township Zoning Ordinance §§1414(1),
1902(2)(H), (U).
54 N.T. 26; Application for variance, "As-Built Survey"
attachment; Hampden Township Zoning Ordinance ~1905(4). The zoning
ordinance required a driveway width of 24 feet; Appellant's
driveway was about nine feet at one point.
Application for variance, affidavit attachments.
5~ N.T. 73-82, 87-90.
57 N.T. 29.
9
NO. 95-2905 CIVIL TERM
highway occupancy permit which Appellant had received for his
driveway was limited to residential use.TM Other witnesses
testified to noise from Appellant's equipment emanating from the
building,s9 the gathering of people at the building,6° and
undesirable sights at the unscreened operation, such as rusty
equipment and men relieving themselves outside the building.6~ The
structure had been supplied with electricity and was being heated.62
Appellant maintained, perhaps surprisingly to the board in
light of his application, that he did not intend to operate a
commercial welding shop:
Q Do you do work in your garage building
when you're not at your regular employment?
A No, we don't.
Q You don't do anything? You don't weld
anything?
A I do welding down there for my own use,
making shelving and racking to try to store
some of my equipment in the evenings when I
feel up to it.~3
~8 N.T. 29.
~9 N.T. 75-76.
60 N.T. 74.
~ N.T. 74, 81-82.
~2 N.T. 83.
~3 N.T. 18.
10
NO. 95-2905 CIVIL TERM
Q These affidavits [attached to the
variance application] state, Informed by Mr.
Otto of his intended use of the property to
conduct a commercial welding shop. Is that
your plan, to conduct a commercial welding
shop?
A Not really .... 64
Q Well, you're accumulating [large amounts
of materials - pipes, fittings, pullers,
jacks, etc.] for some purpose. Are you
intending to sell it?
A Probably not .... 6s
Appellant testified that he accumulated these materials,
including long pieces of pipe, because he "enjoy[ed] making hobbies
and toys and stuff for myself."66 He said that occasionally he
would repair an item as a favor for a friend or neighbor.67 He
asserted that no customers appeared on his property.68
At other points in his testimony, however, Appellant spoke of
the possibility of customers on the property by "appointment,"69
noting that he "wouldn't work on anybody that didn't have an
N.T. 66.
N.T. 19.
Id.
N.T. 67-68.
N.T. 10.
N.T. 11-12.
11
NO. 95-2905 CIVIL TERM
appointment."7° He said that such work "would probably be on the
weekend only, on a Saturday."7~ He mentioned, with reference to
possible customers, "Mechanicsburg treatment plant and water works
up there and the Borough of Mechanicsburg."72 When asked if he
charged his neighbors for his favors, he answered only that "[m]ost
of it is pretty much free."73
Following the hearing, the zoning hearing board rendered a
seven-page opinion on May 3, 1995, denying the variance
application. The opinion included a procedural history, findings
of fact, and conclusions of law. In brief, the board noted that
there was evidence that Appellant was repairing vehicles and
equipment of third parties in the building; that the permit which
had been issued to him was for a building to be used for
residential storage only; that Appellant instead had used, and
proposed to use, the structure commercially; that Appellant had
used, and continued to use, the property residentially; that
Appellant had been given the opportunity to show the unnecessary
hardship, minimum deviation from the zoning ordinance, and absence
of self-infliction required for a variance; and that he had failed
to meet his burden of proof.
70 N.T. 15.
7~ Id.
72 N.T. 67.
73 N.T. 68.
12
NO. 95-2905 CIVIL TERM
Appellant appealed from the decision of the zoning hearing
board on May 30, 1995.TM
DISCUSSION
Statement of law. Several points of law are pertinent to the
present case. First, in a zoning variance appeal, "[w]hen a trial
court receives no additional testimony or evidence, its review will
be limited to a determination of whether the Zoning Board abused
its discretion or committed an error of law and whether its
necessary findings are supported by substantial evidence."
Rushford v. Zoning Bd. of Adjustment, 81 Pa. Commw. 274, 278, 473
A.2d 719, 722 (1984); see Enola Constr. Co. v. Board of Township
Supervisors, No. 95-2931 Civil Term, slip op. at 3 (Cumberland Co.
January 5, 1996) (Sheely, P.J.). "Substantial evidence has been
defined as such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion." Lanto$ v. Zoning Hearing
Bd., 153 Pa. Commw. 591, 597, 621A.2d 1208, 1211 (1993).
Second, a zoning hearing board is required to "issue an
opinion which sets forth the essential findings of fact and
sufficient of the Board's reasoning to show that its action was
reasoned rather than arbitrary." Lando v. Springettsbury Township
Zoning Bd. of Adjustment, 4 Pa. Commw. 312, 316-17, 286 A.2d 924,
927 (1972). If a board's opinion is deficient in a factual sense,
74 Appellant's counsel on this appeal was not involved in the
prior proceedings or permit applications.
13
NO. 95-2905 CIVIL TERM
the trial court may make its own findings of fact based on the
record below. Act of July 31, 1968, P.L. 805, S1005-A, as added,
53 P.S. §l1005A (1995 Supp.); see 2 Ryan, Pennsylvania Zoning Law
and Practice ~9.4.24 (1981). "[A]n opinion in a variance case [has
been held] sufficient if it covers the matters at issue in the
proceeding, even though it is cryptic and fails to include findings
with respect to all of the criteria of [the] Planning Code
[respecting variances] .... " Id. ~9.4.23, at 165.
Third, the requisites for a variance, where relevant, are set
forth in Section 910.2 of the Municipalities Planning Code as
follows:
(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 such 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 that 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
14
NO. 95-2905 CIVIL TERM
neighborhood or district in which the property
is located, nor substantially 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.
Act of July 31, 1968, P.L. 805, §910.2, as added, 53 P.S. §10910.2
(1995 Supp.).
Fourth, "[t]he applicant [for a variance] ... must show that
the property is rendered practically valueless," in the absence of
the variance. Board of Commissioners v. Decision and Action of
Zoning Board, 25 Pa. Commw. 626, 630-31, 361A.2d 455, 458 (1976).
Finally, where a nonconforming structure has been built
pursuant to a permit obtained by misrepresentation, and where the
property in question has been, and can continue to be, lawfully
used for residential purposes without regard to the additional
structure, any financial hardship claimed by the landowner with
respect to the structure will be deemed to have been self-
inflicted, and a variance to permit its continuation will be
denied. Garnick v. Zoning Hearing Board, 58 Pa. Commw. 92, 427
A.2d 310 (1981).
Application of law to facts. An application of the foregoing
principles of law to the facts of this case leads the court to
affirm the decision of the zoning hearing board. First, the
15
NO. 95-2905 CIVIL TERM
board's opinion is sufficiently complete, when read in its
entirety, to show that its action was reasoned rather than
arbitrary; the decision should accordingly be reviewed using the
general standard applicable to cases where no additional testimony
or evidence has been received by the court. Even if the board's
opinion were deemed inadequate, a de novo consideration of the
record below by this court would result in the statement of facts
recited above and the same disposition of the appeal.
Second, on the merits of the variance request Appellant's
position is not persuasive. The variances are not necessary to the
lawful use of Appellant's property, and he is in fact using the
property, and intends to continue to use the property, as his
residence. The land is not practically valueless in the absence of
the variances. Any financial hardship arising out of the
construction of the nonconformity at issue for the use intended is
a self-inflicted consequence of Appellant's permit
misrepresentations, and will not support a variance. Finally,
major elements of the variance proposal - e.g., exemption from
buffer strip, driveway width, and off-street parking regulations --
represent far greater deviations from ordinance requirements than
the lot could accommodate.
For these reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this 5th day of February, 1996, after careful
16
NO. 95-2905 CIVIL TERM
consideration of Appellant's land use appeal, and for the reasons
stated in the accompanying opinion, the decision of the Zoning
Hearing Board of Hampden Township is AFFIRMED.
BY THE COURT,
William H. Andring, Esq.
248 Creek Road
Camp Hill, PA 17011
Attorney for Appellant
John E. Slike, Esq.
Johnna J. Deily, Esq.
Saidis, Guido, Shuff & Masland
2109 Market Street
Camp Hill, PA 17011
Attorney for Appellee
Richard C. Snelbaker, Esq.
Snelbaker & Brenneman, P.C.
44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055
Attorney for Intervenor
: rc
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
17