IN THE MATTER OF THE APPLICATION OF

1. The Applicants and Owners are Roger and Alice Cackovic of 7856 Appleby Road, West Hanover Township Dauphin County, Pennsylvania.

2. The subject property is located to the south of Fishing Creek Valley Road and has approximately 573.33 feet of frontage on Appleby Road.

3. The tax parcel number for the subject property is 68-005-009.

4. The subject property is located in the Flexible Rural Agriculture (FRA) Zoning District.

5. In addition to the frontage on Appleby Road, the subject property has 50 feet of frontage on Fishing Creek Valley Road. The 50 feet wide strip of land fronting on Fishing Creek Valley Road was added to the residual part of the Cackovic farm by subdivision plan approved by the supervisors on December 20, 1982 and recorded in the Dauphin County Recorder of Deeds Office on January 5, 1983 in Plan Book Q, Volume 3, Page 93.

6. The purpose of the subdivision referenced in the foregoing paragraph was to create a 50 feet wide access to Fishing Creek Valley Road for ingress and egress to lands of Cackovic.

7. The aforesaid plan added the 50 feet wide strip to the other lands of Cackovic, thereby combining the two tracts into one.

8. The notes on the subdivision plan recorded at Plan Book Q, Volume 3, Page 93 state that no new homes or construction is proposed or contemplated.

9. Applicants have constructed a new home on the southwest corner of the subject property.

10. The subject property is also improved with an existing farmhouse and other outbuildings located to the north of the new home.

11. Applicants propose to subdivide the property so that the lot on which the new home was constructed would consist of approximately 5 acres, the farmhouse and other buildings would be on a lot of approximately 90 acres and the third lot would be approximately 20 acres along the northern line of the subject property with the 50 feet wide access to Fishing Creek Valley Road.

12. Applicant is requesting the variances only for that portion of the property accessing Fishing Creek Valley Road. Applicant stated he can satisfy all township requirements for the 5 acre lot containing the new house and the 90 acre tract containing the farmhouse which have frontage on Appleby Road.

13. Applicant stated that his plan is to sell the farmhouse with the approximate 90 acres, retain the 5 acre lot with his new home as well as the approximate 20 acre lot with the 50 feet access to Fishing Creek Valley Road.

14. Applicant stated that he had no plans to build or sell the 20 acre lot but wished to retain it for family purposes.

15. Although Applicant testified that he wished to have the 50 feet wide right-of-way for access to the 20 acre lot, his testimony was inconsistent with the application submitted for the first hearing which stated that the existing plans for the property would be to have the 50 feet frontage as the lot width for a single lot with an existing farmhouse and barn.

16. At the hearing held on November 14, 2002, Applicant testified that he is in the process of having the property surveyed but it has not yet been complete and no scaled plan was available at that time.

17. The Township representative indicated that there was not sufficient information provided for an adequate review and a survey containing the proposed subdivision would be necessary.

18. The Township representative also testified that the new home at the southwest corner of the subject property was built over the last four or five months without having been subdivided and, therefore, there are now two homes on one tract.

19. Applicant testified he does not intend to abandon or raze the existing farmhouse.

20. At the hearing held on November 14, 2002, there was public testimony by four nearby property owners opposing the application as presented.

21. Two of the nearby property owners opposed the requests for variances generally for the reason that the property already had three means of access to public roads and there was no basis for arguing a hardship.

22. Two of the nearby property owners indicated that if a plan were submitted limiting further subdivision they probably would not be opposed.

23. Because of the lack of detail and absence of a survey and scaled drawing, Applicants’ request for a continuance until the December 2002 meeting of the Zoning Hearing Board was approved unanimously by the four Zoning Hearing Board members present.

24. The hearing was reconvened on December 12, 2002 at which Applicant submitted a new narrative bearing the date 12/5/02 requesting relief from three provisions of the Zoning Ordinance, i.e., minimum lot width, frontage on a public street, and prohibition of flag lots.

25. In addition, Charles R. Cook, RLS, appeared and testified for Applicant concerning the survey of the property, the pre-existing subdivision plan recorded in Plan Book Q, Volume 3, Page 93, and the deed dated December 28, 1982 whereby Applicants acquired the 50 feet wide strip of land from Joseph M. Hawthorne. The survey plan, copy of Plan Book Q, Volume 3, Page 93, and a copy of the deeds were admitted into evidence.

26. The new narrative for the December 12, 2002 hearing referenced three proposed lot sizes, one of 5 acres on which the new home was constructed, 22 acres at the northern part of the subject property and the residue containing the farmhouse of 88 acres. The narrative again stated that the 22 acre tract would be a residual tract not to be built upon at the present time.

27. Applicant and his representative confirmed that the only area where variances are being requested is along Fishing Creek Valley Road where a 150 feet variance from the minimum lot width requirements is required and from the prohibition against flag lots because the plan as proposed for the 22 acre parcel would constitute a flag lot as defined in the Zoning Ordinance.

28. Applicant’s representative testified the hardship for the subject property is its irregular shape.

29. Mr. Cook also testified that in order to construct a road within the 50 feet wide strip side easements would be necessary for attaining the required site distance and the required slopes on the embankments.

30. The enunciated hardship is that Applicant has an approved plan containing a 50 feet wide strip of land for access to the subject property and he now cannot subdivide the proposed 22 acre tract without a variance.

31. Mr. Cook testified that there is enough room within the 50 feet wide strip of land to install a driveway to a single family home.

32. The plan of the survey admitted into evidence depicts Lot No. 1 as the residue containing the farmhouse and other outbuildings containing 87.795 acres.

33. The plan shows proposed Lot 2 containing Applicant’s new home as containing 5.179 acres and having 366.76 feet of frontage on Appleby Road.

34. The proposed Lot 3 with the 50 feet wide frontage on Fishing Creek Valley Road contains 21.814 acres.

35. The proposed Lot 1 containing the farmhouse has 206.57 feet frontage on Appleby Road.

36. With regard to the request for variance from the prohibition against flag lots, the Township representative testified that Section 195-96.D. of the Zoning Ordinance prohibits flag lots except in accordance with Section 195-88.L., which deals with increasing the number of lots abutting open space in open space subdivision and land development plans. He testified that this plan is not an “open space” plan, and therefore, the exception permitting flag lots is inapplicable.

37. The Township representative also testified that the current farm without the subdivision plan complies with all requirements of the FRA Zoning District with regard to use, frontages, widths, etc. He stated that the Zoning Ordinance has no adverse affect on the use of the land, but that the problem was caused by a number of sales of lots from the farm abutting public roads.

38. The Township representative also raised concerns regarding the sight distance along Fishing Creek Valley Road, but also pointed out that Fishing Creek Valley Road is a state road and the state requirements would have to be satisfied by Applicant.

39. The Township representative pointed out that in 1982 when the 50 feet wide lot was added to the subject property the required width for a lot was 150 feet and that the sole purpose of the 50 feet wide strip was for additional access to the farm. The 50 feet wide strip was not approved to give access to a subdivision plan containing three lots.

40. Applicant stated upon questioning from the Board that he has made no efforts to purchase additional land from Hawthorne adjacent to the existing 50 feet wide strip fronting on Fishing Creek Valley Road.

41. Four adjoining nearby property owners testified at the hearing. One opposed the variance requests, one reiterated his position that although he would like to see a final subdivision plan, if it was generally in accordance with the sketch plan of the survey submitted at the hearing he would have no opposition so long as proposed Lot No. 3 was restricted that it could never be subdivided.

42. Richard Yingst also testified indicating that he has properties abutting the subject property and has entered into an agreement with Applicant for the sale of the farm. The only question is whether or not the proposed Lot No. 3 can be subdivided off so that it can be retained by Applicant.

43. Applicant was asked if he could agree to a condition, if the Board were to grant a variance request, that there would be no further subdivision of the properties. Applicant refused to agree to that condition.

44. Applicant did indicate his agreement to a condition that if the Board were to grant the variances, Lot No. 3 could be used for only one single family residence and that there could be no further subdivision of Lot No. 3.

45. Mr. Cook testified that if Lot 3 is restricted to one single family dwelling, a private driveway would be the only requirement for access and it could be constructed within the 50 feet wide land fronting on Fishing Creek Valley Road in compliance with Township ordinance requirements regarding private drives.

46.

CONCLUSIONS

1. Section 195-24.C. of the Zoning Ordinance requires the minimum lot width of 200 feet at the front building set back line.

2. Section 195-96.C. of the Zoning Ordinance requires that all lots abut a public street and must meet the lot width requirements in the district in which it is located.

3. Section 195-96.D. of the Zoning Ordinance prohibits flag lots except as provided in Section 195-88.L.

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

5. Section 195-199 of the Zoning Ordinance provides that a variance may be granted if 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 as a result of these 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. There was no testimony as to any unique physical circumstances or conditions or topographical features of the subject property which prohibit it from being used in strict conformity with the provisions of the Zoning Ordinance.

6. There was testimony from Applicant’s professional as to the irregular shape of the tract of land.

7. The subject property is currently being used in accordance with permitted purposes of the FRA Zoning District, that is a farm and a separate newly constructed single family residence at the southwest corner of the subject property.

8. Applicant did not demonstrate any legal hardship with respect to the subject property.

9. With regard to the alleged hardship, Applicant demonstrated nothing more than that the Zoning Ordinance itself creates the inability for him to subdivide the subject property in such a manner that proposed Lot 3 has only 50 feet of frontage on Fishing Creek Valley Road.

10. Applicant has not satisfied his burden of proof in establishing an “unnecessary hardship”.

11.

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 requested variances be and are hereby DENIED for the reason that the Applicant did not demonstrate any unnecessary hardship resulting from unique physical circumstances or conditions of the land itself and that due to such physical circumstances or conditions there is no possibility the property can be used in strict conformity with the provisions of the Zoning Ordinance.

DATE: WEST HANOVER Township ZONING HEARING BOARD

Ruth C. Shields

Linda L. Turns

DISSENT: