IN THE MATTER OF THE

APPLICATION OF RICHARD YINGST

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:

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WEST HANOVER TOWNSHIP

ZONING HEARING BOARD

DOCKET NO. 2003.02

 

 

DECISION GRANTING VARIANCE FROM OPEN SPACE AREA

AND OWNERSHIP REQUIREMENTS

 

 

            Applicant has requested a variance from the ownership and area requirements for open space development.

 

FINDINGS OF FACT

 

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

2.         The owners of the subject property are Roger and Alice Cackovic of 7856 Appleby Road, West Hanover Township.

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

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

5.         The subject property is located in the Flexible Rural Agricultural (FRA) zoning district.

6.         Applicant, as equitable owner pursuant to an Agreement of Sale is seeking to subdivide the subject property by subdividing a five (5) acre tract on which is located a recently constructed home from the remaining acreage.  The entire tract contains approximately one hundred fifteen (115) acres.

7.         The proposed five (5) acre lot is identified as Proposed Lot 2 on the sketch plan submitted by Applicant. 

8.         Because the size of the proposed lot involves four (4) acres or more, Section 195-84.E.(3) of the Zoning Ordinance provides that the open space standards are applicable.

9.         Under those open space standards, of the five (5) acres, three (3) acres would be required to be open space in accordance with Section 195-86.A.  If Proposed Lot 2 were 3.99 acres, the requirements for open space would not be applicable and the request for variance would be unnecessary.

10.       Cackovics intend to reside in the dwelling which is already constructed and to keep horses on the property, which will require construction of a barn or stable.

11.       The owner cannot place the barn in the open space area and, because of the set back requirements for a stable, there is a restricted location on Proposed Lot 2 within which the barn can be constructed.

12.       Applicant’s engineer testified that in order to keep the barn one hundred fifty (150) feet from the residence, and to meet the required side yards, there is only a one hundred fifty (150) feet by one hundred sixty (160) feet area within which to build the barn.

13.       Applicant’s engineer testified that when considering the location of the residence, it is impossible to comply with both the three (3) acres open space requirement and the required set backs.

14.       Originally the Applicant had requested a variance from providing any open space, but at the hearing amended the application to seek a variance from the ownership requirements of the open space as set forth in Section 195-91 and the size of the open space requirements as set forth in Section 195-86.

15.       Applicant agreed with the proposed condition if the variance were to be approved that there be no further subdivision of Proposed Lot 2.

16.       There was no opposition to the requested variances as amended, but one neighboring property owner indicated his desire that the three survey pins located at the southeast corner of the property along Appleby Road be placed by Applicant or Owner.

17.       Applicant agreed that those pins would be placed.

18.       Notice of the public hearing held on April 10, 2003 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 195-84.A.(3) provides that the open space standards of Article XVII apply to subdivisions involving four (4) acres or more.

2.         In accordance with Section 195-86.A. in that the size of the proposed lot is greater than two (2) acres, the required open space must be sixty (60%) percent of the total lot, or approximately three (3) acres.

3.         Section 195-91 of the Zoning Ordinance requires that the open space within a development shall be owned, administered and maintained by a homeowners’ association, condominium, private or public non-profit conservation organization or other third party entity, as opposed to the owner of the lot itself.

4.         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.

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

6.         A grant of the variance from the ownership and area 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 variances, as requested, subject to the conditions hereinafter set forth as specifically agreed to by 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 is GRANTED permitting the open space to be owned by the lot owner and the requested variance from Section 195-86.A. of the Zoning Ordinance is GRANTED so that proposed Lot No. 2 will have two (2) acres of open space, both of which variances are subject to the following conditions:

                        (1)            There shall be no further subdivision of Proposed Lot 2 as depicted on the Plan submitted to the Zoning Hearing Board at its hearing held on April 10, 2003;

                        (2)            The open space easement for the two (2) acres shall be depicted on the subdivision plan and referenced in the Deed for Proposed Lot 2, the use of which shall be restricted to those uses provided in Section 195-87.A. of the Zoning Ordinance;

 

(3)            The subdivision plan and Deed for proposed Lot No. 2 shall set forth the foregoing conditions; and

                        (4)            Applicant shall install the three (3) survey pins located at the southeast corner of the property along Appleby Road.

 

DATE:                                                                        WEST HANOVER TOWNSHIP ZONING                                                                                  HEARING BOARD

                                   

                                                                       

                                                                                   

                                                                                                                                                                                                           

                                                                        Linda L. Turns

                                                                                                                                   

 

                                                                                               

                                                                                                                                                                                                           

                                                                        Norma J. Gruber

 

 

 

                                                                                                                                                                                                            

                                                                        George O. Kline

 

 

 

                                                                                                                                                                                                           

                                                                        Mary Ann Yahn

 

Abstained:

 

 

 

                                                           

Beth Carricato