IN THE MATTER OF THE

1. The Applicant/Owner is Richard Yingst of 7100 Fishing Creek Valley Road, Harrisburg, Pennsylvania 17112.

2. Applicant is the equitable owner under an Agreement of Sale of an 83 acre property located south of Rabbit Lane and east of Fairville Avenue.

3. The tax parcel number for the subject property is 68-020-002.

4. The property is located within the Flexible Rural Agriculture (FRA) zoning district and partly within the Rural Residential (RR) zoning district.

5. The property is traversed by a stream known as Walnut Run and the stream is the boundary line between the RR zoning district to the north and the FRA zoning district to the south.

6. Approximately 40 of the 83 acres are located south of Walnut Run and a street and bridge over Walnut Run is necessary in order to gain access to that area.

7. By a prior Decision of the Zoning Hearing Board docketed to number 2002.03, Applicant was granted a special exception to place a private driveway and culvert/bridge over Walnut Run.

8. After issuance of that Decision, neighboring property owners were concerned about the number of homes to be built along Rabbit Lane, therefore, Applicant prepared a revised plan to attempt to reduce the number of homes along Rabbit Lane to five.

9. Applicant intended to place only four homes south of Walnut Run, but because the Township wanted a public road instead of a private road, Applicant proposed six lots south of Walnut Run to be served by the road and bridge to be constructed.

10. Applicant’s Exhibit No. 1 showing the design of the new layout was admitted into evidence.

11. Although the Federal Regulations permit no more than a one foot increase in the flood height, the hydraulic calculations made by Applicant’s representatives show a maximum flood elevation increase of .75 feet.

12. Admitted into evidence as Applicant’s Exhibit No. 2 was a plan depicting a .75 feet increase in the flood height.

13. Applicant’s representative testified that the opening of the culvert or bridge would be at least four times greater than the double pipes in Walnut Run at North Fairville Avenue, approximately 1,400 feet from the subject proposed crossing.

14. Applicant’s representative stated that the calculated increase in the flood height at the bridge itself is .78 feet, and that the increase is less farther away from the bridge.

15. Applicant’s representative stated that in order to have zero increase in the flood height, a clear span of approximately 150 feet would be required.

16. Construction of the bridge and street over Walnut Run would constitute construction of public facilities within the floodplain, which, is a permitted use if a special exception is granted by the Zoning Hearing Board.

17. The basis for the satisfaction of all requisite criteria for the special exception are contained in the decision of the Zoning Hearing Board in the prior case docketed to 2002.03, which is incorporated herein by reference thereto.

18. Although the provisions for the special exception state that zero increase in the flood height is permitted, Section 195-76.B.(1) provide that no variance for an increase in the flood heights for greater than one foot can be granted.

19. The proposed increase in the flood height would be no more than .78 feet according to Applicant’s representative.

20. The location of the proposed bridge and street also impact upon several other environmental overlay protection districts, specifically the Stream Protection Overlay District (SPOD); the Hillside and Slope Protection Overlay District (HSPOD); and the Wetland Protection Overlay District (WPOD).

21. Because construction of the bridge and street and other public facilities above ground are not specifically stated as permitted uses in the zoning ordinance section regulating the permitted uses in the SPOD, HSPOD and WPOD areas, Applicant is requesting a variance from them to permit construction of the bridge, road and related public facilities.

22. The open space depicted on Applicant’s Exhibit No. 1 shows 32 acres of open space and 14 ½ acres of open space easement, which combined total the requisite 60 percent or 46 acres.

23. The reason Applicant proposed using an open space easement as opposed to deeded open space is to improve the saleability of the lots south of Walnut Run which will make the area of the lots larger thereby generating additional tax revenue for the Township and other taxing entities.

24. Applicant specifically agreed with the suggested conditions that if the special exception and variances from the several environmental overlay protection districts and open space requirements were granted that it would agree with the following conditions:

(a) if there is any increase in the flood height on adjacent property owned by others outside the WPOD, Applicant shall obtain an occasional flowage easement from the owner of said property;

(b) increases in flood heights must be less than 9.5 inches (0.79 feet) on Applicant’s property and less than 1.5 inches (0.125 feet) on any other property;

(c) on behalf of the Township, the developer or Applicant must prepare, submit, and conduct all coordination for any revisions to the FEMA floodplain mapping that may be required;

(d) the final design of the bridge must be approved by the Township;

(e) the right-of-way for the construction width through the floodplain, and the several environmental protection overlay districts shall not exceed 70 feet;

(f) there shall be no further subdivision of the subject property or any part thereof; and

(g) the uses permitted in the open space conservation areas and the open space easements shall be limited to those permitted uses specified in section 195-87.A. of the Zoning Ordinance.

1. Residents of the vicinity appeared at the hearing and testified that the revised plan was more acceptable than the prior plan which was the subject of the Decision entered to Docket No. 2002.03.

2. Notice of the public hearing held on March 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.

CONCLUSIONS

1. Section 195-72.B.(2)(b) permits construction of public facilities and improvements such as streets, bridges and other similar or related uses within the floodplain.

2. The improvements proposed by the Applicant are permitted by special exception by the foregoing section of the West Hanover Township Zoning Ordinance.

3. The Decision of the Zoning Hearing Board in Docket No. 2002.03 is incorporated herein by reference thereto with regard to the justification and satisfaction of all of the standards and criteria necessary for the special exception for the proposed bridge and street through the floodplain area.

4. Applicant needs a variance from certain provisions of the Zoning Ordinance in order to complete the project which includes construction activities within the SPOD, HSPOD and WPOD.

5. Specifically, Section 195-79.(C) of the Zoning Ordinance does not permit the proposed uses within the SPOD; Section 195-80.(B) does not permit the proposed uses within the HSPOD; and Section 195-82.(C) does not permit the proposed uses within the WPOD.

6. 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 and may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the Zoning Ordinance.

7. There are unique physical circumstances or conditions of the subject property, including exceptional topographical and physical conditions along Walnut Run and the presence of many environmental protection overlay districts which interfere with the ability to utilize the property for its permitted use.

8. The unique physical circumstances or conditions of the subject property have not been created by the Applicant.

9. A variance from the limitations and uses within the environmental protection overlay districts and from open space requirements, if approved, would not alter the essential character of the 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.

10. The variance from the environmental protection overlay district restrictions and from open space requirements, subject to the conditions hereinafter set forth as agreed to by Applicant, will represent the minimum variance that will afford relief and represent the least modification possible for the regulations in issue.

11. With regard to the requested variances from the restrictions of the environmental protection overlay districts and from open space requirements, the quantum of proof required to establish an unnecessary hardship is less than in a use variance case in accordance with the holding of Talkish v. Zoning Hearing Board of Harborcreek Township.

12. Approval of the request for a special exception to permit construction through the floodplain and grant of the requested variances would be subject to the reasonable conditions specifically agreed to by Applicant, as stated above under the Findings of Fact.

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 special exception and variances from the limitations of the environmental protection overlay districts contained in Section 195-79(C), 195-80(B), and 195-82(C) of the Zoning Ordinance and the requested variance from the open space requirements to permit 14.5 acres to be private open space easement are hereby GRANTED, subject to the following conditions:

(1) if there is any increase in the flood height on adjacent property owned by others outside the WPOD, Applicant shall obtain an occasional flowage easement from the owner of said property;

(2) increases in flood heights must be less than 9.5 inches (0.79 feet) on Applicant’s property and less than 1.5 inches (0.125 feet) on any other property;

(3) on behalf of the Township, the developer or Applicant must prepare, submit, and conduct all coordination for any revisions to the FEMA floodplain mapping that may be required;

(4) the final design of the bridge must be approved by the Township;

(5) the right-of-way for the construction width through the floodplain, and the several environmental protection overlay districts shall not exceed 70 feet;

(6) there shall be no further subdivision of the subject property or any part thereof; and

(7) the uses permitted in the open space conservation areas and the open space easements shall be limited to those permitted uses specified in section 195-87.A. of the Zoning Ordinance.

DATE: WEST HANOVER TOWNSHIP ZONING HEARING BOARD

Brian F. Jacobeen

Ruth C. Shields

Norma J. Gruber

Neil R. Shatto

ABSTAINED:

Linda L. Turns