HomeMy WebLinkAbout95-7157 CivilBOARD OF SUPERVISORS OF
MIDDLESEX TOWNSHIP,
Appellant
V.
MIDDLESEX TOWNSHIP ZONING
HEARING BOARD,
Appellee
V.
RODNEY E. JONES,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-7157 CIVIL TERM
IN RE: LAND USE APPEAL
BEFORE HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this~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.
Keith O. Brenneman, Esq.
SNELBAKER & BRENNEMAN, P.C.
44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055
Attorney for Appellant
BY THE COURT,
Edward W. Harker, Esq.
One West High Street
Carlisle, PA 17013
Attorney for Appellee
John M. Glace, Esq.
STEFANON & GLACE
407 North Front Street
P.O. Box 12027
Harrisburg, PA 17108-2027
Attorney for Intervenor
: rc
BOARD OF SUPERVISORS OF
MIDDLESEX TOWNSHIP,
Appellant
v.
MIDDLESEX TOWNSHIP ZONING
HEARING BOARD,
Appellee
v.
RODNEY E. JONES,
Intervenor
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 95-7157 CIVIL TERM
Oler, J.
In this
decision of
IN RE: LAND USE APPEAL
BEFORE HESS and OLER, JJ.
OPINION and ORDER OF COURT
zoning case, a municipality has appealed from a
a zoning 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 31, 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 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 Hearing 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.).
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.2
His property consists of two tandem lots - the forward lot being
under an acre in size,3 and the rear lot being 1.47 acres.4 The
~ N.T. 6, 11, Hearing, June 19, 1995; Application for Hearing
before the Zoning Hearing Board, at 1.
2 N.T. 6, Hearing, June 19, 1995; Application for Hearing
before the Zoning Hearing Board, at 1 and deed attachments.
3 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.
4 N.T. 8, Hearing, November 8, 1995; Application for Hearing
before the Zoning Hearing Board, at 1 and attachments.
NO. 95-7157 CIVIL TERM
front lot contains his home,5 and the rear lot contains a 42' by
60', three-bay garage.6 A "privacy fence" and topographical
conditions tend to conceal the garage from the road.7
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.8 This lot also is apparently
under an acre in size.9 It will be conveyed to Mr. Jones in the
near future.~°
Mr. Jones and his family moved to Sherwood Drive when he was
in the third grade.~ He was at one time an excavator, but was
crippled in an automobile accident in 1992,~2 as a result of which
5 N.T. 7, Hearing, June 19, 1995.
6 N.T. 7, Hearing, June 19, 1995; N.T. 9, 20, 24-25, Hearing,
November 8, 1995; Application for Hearing before the Zoning Hearing
Board.
7 N.T. 16, Hearing, June 19, 1995; N.T. 10, Hearing, November
8, 1995.
8 N.T. 6, Hearing, June 19, 1995; Application for Hearing
before the Zoning Hearing Board, attached drawing.
9 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.
~0 N.T. 13-14, 16, Hearing, November 8, 1995.
~ N.T. 6, Hearing, June 19, 1995.
~2 N.T. 6-7, Hearing, June 19, 1995.
NO. 95-7157 CIVIL TERM
he is "no longer able to really walk or to any effect perform any
physical labor.''~3
Mr. Jones's physical condition has frustrated his efforts to
obtain employment.~4 "Nobody wants to hire me ...," he testified.~
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.~
Because he does not seem to be employable, Mr. Jones has
decided to try to start a small business selling customized
motorcycle parts.~7 More specifically, he has applied for a
franchise from a California company named Custom Crome, Inc.;~8 the
company coats various Harley-Davidson motorcycle accessory parts
with chrome, and ships them to its dealers for retail sale.~9
The business would be required to maintain about $2,500 in
N.T. 7, Hearing, June 19, 1995.
N.T. 11, Hearing, June 19, 1995.
~ N.T. 11, Hearing, June 19, 1995. Additional surgery
remains to be performed upon him. N.T. 18, Hearing, November 8,
1995.
N.T. 7, Hearing, June 19, 1995. N.T. 7-8, Hearing,
November 8, 1995.
~7 N.T. 7-8, Hearing, June 19, 1995; N.T. 13, Hearing,
November 8, 1995
~8 N.T. 25, Hearing, June 19, 1995.
~9 N.T. 7-8, Hearing, June 19, 1995; N.T. 19, Hearing,
November 8, 1995.
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NO. 95-7157 CIVIL TERM
inventory.2° It would receive a shipment via UPS once or twice a
week from California.2~
The enterprise would not involve any advertising, ~ employees,~3
motorcycle restoration~4 or chroming on the part of Mr. Jones.25
Customer transactions would usually take place at "swap" meets,
off-premises .26
The franchisor, however, does require that a franchisee have
a physical business address.2./ Mr. Jones would like to use his
garage for that purpose.
Under the township's zoning ordinance and map, the Jones lots
are in an RF-Residential Farm zoning district.29 Uses permitted by
right in such a district include single-family dwellings, farms,
parks, schools and municipal activities and various accessory
20
21
22
23
24
25
1995
2'/
N.T. 18, Hearing, November 8, 1995.
N.T. 16, Hearing, November 8, 1995.
N.T. 30, Hearing, June 19, 1995.
N.T. 18, Hearing, November 8, 1995.
N.T. 31-32, Hearing, June 19, 1995.
N.T. 14, Hearing, June 19, 1995; N.T. 19, Hearing, November
N.T. 30-31, Hearing, June 19, 1995.
N.T. 14, Hearing, June 19, 1995.
Application for Hearing before the Zoning Hearing Board.
N.T. 27, Hearing, June 19, 1995; Middlesex Township Zoning
Ordinance, art. VI.
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NO. 95-7157 CIVIL TERM
30
uses.
Uses permitted by special exception include sawmills, farm
equipment sales and service, lawn and garden equipment and supplies
sales and service, and auction houses.3~ Also allowable are "[u]ses
which, in the opinion of the Zoning Hearing 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.''32
All special exception requests are reviewed initially by the
planning commission. 33
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.34 The undersized Jones lots apparently
antedate this provision.3s
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
Hearing before the Zoning Hearing Board.
The planning commission recommended approval of the special
Middlesex Township Zoning Ordinance S6.02.
Middlesex Township Zoning Ordinance §6.04.
Middlesex Township Zoning Ordinance §6.04(A).
Middlesex Township Zoning Ordinance §17.07(B).
Middlesex Township Zoning Ordinance §6.05(A).
See note 40 infra.
6
NO. 95-7157 CIVIL TERM
exception.36 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:
Q Have you heard any adverse comments from
anybody?
A No. 37
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.38
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.39
36 N.T. 3, 9, Hearing, November 8, 1995. The recommendation
was subject to the conditions that the variance be granted and that
the garage not be expanded. Id.
N.T. 12, Hearing, June 19, 1995.
N.T. 16, Hearing, June 19, 1995.
N.T. 17-18, Hearing, June 19, 1995.
NO. 95-7157 CIVIL TERM
On November 17, 1995, the zoning hearing board issued a
decision granting the special exception and variance.4° The
approval was subject to eight cOnditions:
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. Ail business shall be done within the
existing facility (Lot B - deed dated 1-6-94)
40 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"; that the three lots available for the
use totaled "slightly less than 4 acres" in area; 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 11, 7, 12. 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 suggested 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 1, 3-4, 7.
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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.
ge
vehicles
premises.
No painting or plating of customers
or parts shall be done on the
h. No wastes, solvents or fuels shall be
disposed or discharged on site at any time.
The township filed an appeal from the board's decision on
December 15, 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.4~
DISCUSSION
Special exception. "[A] principle, now codified as to
statutory interpretation under section 1921(c)(8) of the Statutory
Construction Act, 1 Pa. C.S. ~ 1921(c)(8), [is] that courts should
give great weight and deference to the interpretation of a
4~ Brief of Board of Supervisors of Middlesex Township in
Support of Land Use Appeal.
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 issue." Johnston v. Upper Macungie
Township, 162 Pa. Commw. 170, 176, 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. Id.
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, 119 Pa. Commw. 193, 200, 546 A.2d 1311, 1315
(1988) (Craig, J., concurring); see Appeal of Eureka Stone Quarry,
115 Pa. Commw. 1, 539 A.2d 1375 (1988).
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
10
NO. 95-7157 CIVIL TERM
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 Zoning Law and Practice §6.3.1,
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., 132 Pa. Commw. 569, 571, 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., 140 Pa. Commw. 160, 165, 592 A.2d 118,
121 (1991).
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 above;
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 as to minimum lot size.42 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 entered:
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,
Keith O. Brenneman, Esq.
SNELBAKER & BRENNEMAN, P.C.
44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055
Attorney for Appellant
Edward W. Harker, Esq.
One West High Street
Carlisle, PA 17013
Attorney for Appellee
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
42
See note 40 supra.
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NO. 95-7157 CIVIL TERM
John M. Glace, Esq.
STEFANON & GLACE
407 North Front Street
P.O. Box 12027
Harrisburg, PA 17108-2027
Attorney for Intervenor
: rc
13