IN THE MATTER OF THE

1. The Owner and Applicant is Buonarroti Trust of 3601 Vartan Way, Harrisburg, West Hanover Township, Dauphin County, Pennsylvania 17112.

2. Applicant is the owner of the subject property which is located at the southeast quadrant of the intersection of Allentown Boulevard and Clover Lane.

3. The tax parcel numbers for the subject property are 68-032-001 and 68-032-003. The subject property is located in the Commercial Highway (CH) Zoning District.

4. The subject property has in excess of 420 feet frontage along Allentown Boulevard and approximately 300 feet frontage along Clover Lane.

5. The subject property is currently unimproved but Applicant proposes to construct a Vartan Bank containing approximately 2,618 square feet.

6. Applicant has submitted a land development plan which, if approved, would combine the two parcels into one parcel.

7. Applicant proposes to install sidewalks in accordance with the Zoning Ordinance requirements along Clover Lane, but is requesting a variance from the sidewalk requirement for that portion of the property abutting Allentown Boulevard.

8. Submitted as Applicant’s Exhibit No. 1 was a copy of the proposed grading and utility plan for the Final Subdivision and Land Development Plan marked Sheet No. LD2, 4 of 11, dated August 2, 2001 last revised 1/2/02.

9. Applicant’s representative identified unique topographical physical conditions at the northeastern corner of the subject property and identified steep slopes and a portion of the property located in the Hillside Overlay Protection District and within the Wetlands Protection Overlay District.

10. Applicant’s Exhibit No. 1 depicts those physical features and shows that the steep slope between the legal right-of-way line and the existing guide rail starts approximately 30 feet west of the eastern property line of the subject property.

11. Applicant’s Exhibit No. 1 depicts the sidewalk along Allentown Boulevard, but has it terminated approximately 60 feet west of the eastern property line of the subject property.

12. In the area between the existing guide rail and the wetlands limit, there is approximately 11 or 12 feet within which there is a total slope away from the road of approximately 7 feet.

13. In the area where the sidewalk would be installed, there is a slope of approximately 4 feet from the edge of the guide rail to where the southern edge of the sidewalk would be located.

14. Other than that 30 feet of sloped area at the northeastern corner of the subject property, Applicant identified no unusual physical condition or unique topographical feature of the subject property which would prohibit installation of sidewalks.

15. Applicant’s representative also testified that if sidewalks were to be installed at the northeast corner of the subject property, it would be necessary to place fill within the wetlands.

16. Applicant’s representative testified that the land adjacent to Allentown Boulevard and immediately to the east of Applicant’s Property is a low lying wetland area, east of which is a property for which a governance agreement has been signed obligating the owner to install sidewalks at such time as the Township should require them.

17. Applicant’s representative also testified that safety of pedestrians would be jeopardized if sidewalks were installed along Allentown Boulevard and were in fact used by pedestrians.

18. At the hearing held on February 14, 2002, the Chairman of the Zoning Hearing Board suggested that the Board might consider a temporary variance from the sidewalk requirements at the northeast corner of the subject property, subject to Applicant executing a governance agreement with the Township to install sidewalks in the future at such time as required by the Township.

19. Applicant’s representative requested a continuance of the hearing so that it could review the terms and conditions of a governance agreement referenced by the Chairman of the Zoning Hearing Board.

20. The hearing continued on March 14, 2002, at which time Applicant’s representative indicated it would not agree to sign a governance agreement with regard to the sidewalks to be installed at the northeast corner of the subject property.

21. Applicant relied upon the testimony elicited at the February 14, 2002 hearing and stressed the location of the wetlands, and topographical features at the northeast corner of the subject property as well as the safety issue with respect to sidewalks being located adjacent to an arterial street.

22. Applicant conceded that the proposed location for the sidewalk would not be within the wetlands.

23. However, its representative testified that it may be necessary to place some fill in the wetlands to construct the sidewalks.

24. Residents of the Township appeared at both hearings and testified as to their opposition to the requested variance from installing sidewalks along Allentown Boulevard.

25. Notice of the public hearing held on February 14, 2002 was properly advertised, notice was posted at the municipal building, the subject property was properly posted and all adjoining property owners were notified by certified mail.

26. Notice of the continued hearing held on March 14, 2002 was properly given.

CONCLUSIONS

1. Section 195-126.A.(1) requires sidewalks in the Commercial Highway (CH) Zoning District.

2. Section 195-199 of the Zoning Ordinance and Section 910.2 of the Pennsylvania Municipalities Planning Code allow the Zoning Hearing Board to act on requests for variances and to grant such requests under certain conditions of hardship.

3. The Board may grant a variance provided that Applicant establishes 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 generally created by the provisions of the Zoning Ordinance and that because of such physical circumstances there is no possibility that the property can be developed in strict conformity with the Zoning Ordinance.

4. It is also necessary that Applicant establish that the unnecessary hardship has not been created by him and that the variance, if authorized, would not alter the essential character of the neighborhood or district in which the property is located nor substantially or permanently impair the use of development of adjacent property nor be detrimental to the public welfare.

5. The only unique physical circumstances or conditions identified by Applicant were the slope and wetlands area at the northeast corner of the subject property.

6. Even those physical conditions were restricted to only the northeastern 30 feet of the subject property where sidewalks are to be installed.

7. Although there are steep slopes in that area where the sidewalk would be installed, Applicant did not testify that it would be physically impossible to install the sidewalk.

8. One of Applicant’s representatives testified that the variance was necessary in that area because even though the sidewalk itself would not be in the wetland, it would be necessary to place some fill in the wetlands.

9. However, placement of fill in the wetlands is not impossible and, as stated by one of Applicant’s other representatives, Wetland Disturbance Permits are issued if an Applicant can demonstrate that disturbing the wetland is needed for the health, safety and welfare of the general public.

10. Applicant provided no evidence or testimony that there are any unique physical conditions of the other 390 feet of frontage along Allentown Boulevard which would prevent installation of sidewalks.

11. In fact, Applicant’s Exhibit No. 1 depicts the sidewalk extending eastwardly along Allentown Boulevard to within approximately 60 feet of the eastern property line of the subject property.

12. The Zoning Hearing Board specifically rejects Applicant’s rationale for granting a variance from sidewalks along Allentown Boulevard that installation of such sidewalks would create a risk of harm to pedestrians.

13. It would be reasonable to grant a temporary variance delaying installation of the sidewalks within the eastern 50 feet of the subject property until such time as the Township requires them to be installed in connection with installation of sidewalks on the contiguous property to the east.

14. Grant of a temporary variance from installing the 50 feet of sidewalk in the northeastern corner of the subject property can be effectuated only if Applicant provides assurance in the form of executing a Sidewalk Agreement that it will install those sidewalks at such time as directed by the Township when sidewalks are required to be installed on the property to the east of the subject property.

DECISION

In view of the foregoing findings and conclusions, and in view of the evidence and testimony presented to the Zoning Hearing Board, it is the Decision of the Board that the variance from the installation of sidewalks along the entire portion of the property abutting Allentown Boulevard be and is hereby DENIED. A temporary variance from installation of sidewalks in the eastern most 50 feet of the northeast corner of the subject property is granted subject to the condition that Applicant shall forthwith execute written Agreements with the Township upon terms and conditions acceptable to the Township, obligating the owner to construct the sidewalks in that 50 feet area on the south side of Allentown Boulevard at its sole cost and expense in accordance with all applicable Township requirements at such time as sidewalks are required to be installed on the adjoining property on the east and when notified to do so by the Township. The foregoing Agreement and conditions pertaining to the sidewalks shall be deemed covenants running with the land and shall be recited in all deeds conveying title to the subject property so that each successive owner of the subject property is expressly apprised of his/her/its liability to perform such covenants.

In the event Applicant fails to execute the written Sidewalk Agreement with the Township within 30 days after the date of this Decision, the temporary variance from installation of 50 feet of sidewalks at the northeast corner of the subject property shall automatically expire and be null and void.

DATE: WEST HANOVER TOWNSHIP ZONING HEARING BOARD

Brian F. Jacobeen, Chairman

Ruth C. Shields

Norma J. Gruber

Neil Shatto