IN THE MATTER OF THE APPLICATION OF

1. The Applicant is Linda O’Mara of 185 Orchard Circle, Greencastle, Pennsylvania 17225.

2. Applicant is the Executrix for the Alexander Estate which Estate owns two farms, one of which is located at 425 South Oak Grove and the other at the northeast intersection of Devonshire Heights and Green Hill Drive.

3. The subject property is located within the Flexible Rural Agriculture (FRA) Zoning District.

4. The tax parcel numbers for the subject property are 68-028-054 and 68-037-040.

5. Farm number 1 consists of 83.9 acres and farm number 2 consists of 86.8 acres.

6. The owner of both farms, Hubert Alexander, died in August of 2000 and in his Will provided that his property should be divided equally among his six children.

7. The children retained the services of Mellott Engineering to assist them in preparing a subdivision plan to divide each of the two farms among the six children in accordance with the terms of their father’s Will.

8. The first hearing was held on December 12, 2002, at which time Applicant and Mr. Mellott were requesting a variance from the provisions of 195-84 of the Zoning Ordinance which require open space for a subdivision which involves the creation of four or more lots.

9. At that hearing there was considerable opposition to the variance from the open space requirements from members of the public and from the Township itself.

10. In addition to the opposition to the requested variance from provision of open space, concerns were raised that there was no plan presented to the Board depicting the areas which could be provided as open space in strict conformance with the terms and provision of the Ordinance.

11. Because of these concerns and the opposition, the Applicant requested a continuance until the next meeting of the Zoning Hearing Board.

12. At the next meeting of the Zoning Hearing Board held on January 9, 2003, Applicant withdrew her prior two variance requests and resubmitted the request for a variance from only the ownership requirements for open space, not a variance from the open space requirements themselves.

13. Applicant’s professional, Mr. Mellott, submitted a plan depicting farm number one and farm number two along with the proposed six lots subdivision for each farm and depicting the proposed open space locations.

14. The amount of open space provided on the subject plan is in compliance with the requirements of Zoning Ordinance.

15. Rather than having the open space owned and maintained by a homeowners association or other separate entity in accordance with Section 195-91 of the Zoning Ordinance, Applicant requested that the open space be an open space easement, owned and maintained by the respective property owner on which the open space easement is located.

16. Applicant requested no other variances or waivers from the permitted uses nor amounts of open space to be provided for the subdivision of the two farms.

17. The new plans submitted at the hearing on January 9, 2003 depict at least 60% open space, which is in accordance with the Ordinance.

18. During 2002, over 50% of each farm was in active agriculture use.

19. In addition to the overall subdivision providing for 60% open space, each lot has 60% open space as depicted on the plans submitted on January 9, 2003.

20. Frank Chlebnikow, on behalf of the Township, made several observations including lack of access to one lot as set forth on general note number 5 on the plan, a concern about a 100 feet by 100 feet tract along Devonshire Heights Road with no access depicted and the concern that the approved layout of the open space must also be overlaid on the subdivision plan when submitted.

21. Frank Chlebnikow indicated that as an option as to specifically approving the open spaces as depicted on the subject plan that the Board could, on the consent of the Applicant, merely act to give a variance from the ownership requirements of the requisite open space, deferring to the planning commission and the supervisors to act on the location and layout of the open space.

22. Applicant specifically agreed that if the variance were granted it would be subject to the reasonable condition that the use of the open space easements be limited to those permitted by Section 195-87 of the Zoning Ordinance as amended from time to time.

23. Applicant also agreed with the reasonable condition that the layout and location of the open space be configured in such a manner that the open spaces would be contiguous.

24. Applicant also agreed with the reasonable condition that the Deed and subdivision plan contain references to the open space requirements and the conditions imposed by the grant of the variance.

25. Applicant also agreed with the reasonable condition that the variance from the ownership of the open space requirements would be granted with respect to only this proposed two farm subdivision and that any future subdivision would have to comply with all then existing Ordinances, including required ownership of open space.

26. No member of the public spoke in opposition to the variance from the ownership requirements of the open space.

27. The Environmental Advisory Council reviewed the revised submission with regard to the open space and found it to be satisfactory.

28. Frank Chlebnikow indicated that the two farms could be subdivided into one hundred forty-seven (147) separate lots, instead of the twelve (12) separate lots as proposed by the Applicant.

29.

CONCLUSION

1. Open space standards are applicable to any residential subdivision involving four acres or more pursuant to Section 195-84 of the Zoning Ordinance.

2. Section 195-91.A. of the Zoning Ordinance requires that the open space be owned by a homeowners association or other separate entity.

3. 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 the request for variances and to grant such requests under certain conditions of hardship and may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the Zoning Ordinance.

4. With regard to the requested variances from the ownership requirements of the open space, the quantum of proof required to establish an unnecessary hardship is less than with regard to a use variance.

5. Due to the fact that the combined acreage of the two farms is over 170 acres and that 170 acres is to be divided into only 12 separate lots, 2 of which would be owned by each of the six children, creation and operation of a homeowners association or similar separate entity would be financially prohibitive, which constitutes a hardship under the particular facts of this case.

6. A variance from the ownership requirements for the open space, if approved, would not alter the essential character of the neighborhood or district in which the property is located nor would it substantially or permanently impair the appropriate use or development of adjacent property nor would it be detrimental to the public welfare.

7. The variance requested, subject to the conditions hereinafter set forth as specifically agreed to Applicant would represent the minimum variance that would afford relief and represent the least modification possible for the regulation in issue.

DECISION

In view of the foregoing findings and conclusions, and in view of the evidence and testimony presented to the Zoning Hearing Board, the requested variance from Section 195-91 of the Zoning Ordinance with regard to ownership of the open space by a homeowners association or separate entity is GRANTED subject to the following conditions:

1. The open space easements shall be depicted on the subdivision plan and referenced in the Deeds for each of the lots to be subdivided, the use of which shall be restricted to those uses provided in Section 195-87.A. of the Zoning Ordinance;

2. Open space provided for the proposed subdivision shall be contiguous open space;

3. The grant of the variance from the ownership of the open space easements is specifically limited only to this 12 lot subdivision of the two farms consisting of approximately 170 acres and any future subdivision or further subdivision must comply with all then existing Ordinance requirements, including the ownership requirements for open space.

4. The subdivision plan and Deeds for each of the lots to be subdivided shall set forth the foregoing conditions.

DATE: WEST HANOVER TOWNSHIP ZONINGHEARING BOARD

Brian F. Jacobeen

Ruth C. Shields

Norma J. Gruber