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IN THE MATTER OF THE APPLICATION OF WILLIAM “AL” SOMERS |
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WEST HANOVER TOWNSHIP ZONING HEARING BOARD DAUPHIN COUNTY, PENNSYLVANIA DOCKET NO. 2004.02 |
DECISION DENYING USE VARIANCE TO PERMIT A MOTOR VEHICLE GARAGE TO DO EMISSION TESTING, PENNSYLVANIA STATE INSPECTION, AND MINOR REPAIRS
Applicant has requested a use variance from the permitted uses in the Village (V) zoning district to permit use of a portion of the subject property for a motor vehicle garage to perform emission testing, Pennsylvania State Inspection and minor motor vehicle repair.
Findings of Fact
1. The Applicant/Owner is William “Al” Somers of P.O. Box 60804 Harrisburg, Pennsylvania 17106.
2. The subject property is located at 7048 Linglestown Road, West Hanover Township, Dauphin County, Pennsylvania at the northwest quadrant of the intersection of Linglestown Road and Walnut Avenue, depicted as parcel 72 on the copy of the tax map admitted into evidence as Exhibit No. 1.
3. The tax parcel number for the subject property is 68-018-072.
4. The subject property is located in the Village (V) zoning district.
5. The subject property consists of 2.593 acres and is improved with two primary buildings and a smaller detached storage garage.
6. The detached storage garage is located to the west of Walnut Avenue.
7. Building number 1 as depicted on the plot plan admitted into evidence as Exhibit No. 2 is an 1800 square foot single story metal structure known as 7044 Linglestown Road.
8. Building number 2 as depicted on the plot plan admitted into evidence as Exhibit No. 2 is an 8,000 square foot block and brick building containing five apartments, four garages, one store front, and a two car attached garage at the front of the property along Linglestown Road.
9. The two bay garage is located at the southwestern corner of building number 2 as depicted on the site plan admitted into evidence as Exhibit No. 2.
10. Admitted into evidence as Exhibit No. 3 were eight pictures of the subject building and the surrounding area of Applicant/Owner’s property.
11. The two bay garage is currently vacant and Applicant proposes to use that facility for operation of a motor vehicle garage to perform emissions testing, Pennsylvania State Inspection, and minor repairs.
12. The subject property has been used for numerous commercial type activities.
13. In May of 1992 a certificate of non-conformance was issued for the structure for use as retail sales of antiques, five apartments, and storage for the businesses and apartments. At the time, the property was zoned Residential Suburban Single Family (RSS).
14. On June 8, 1995, the Zoning Hearing Board granted five variances and approved changes in some of the non-conforming uses such that the property was used, in addition to the five apartments, for retail sales of carpets and flooring and for a four unit self-storage unit in the basement of the building.
15. The zoning of the property was changed to Village thereafter, as a result of which retail sales became a permitted use for the subject property.
16. Applicant/Owner purchased the property in 1995.
17. From the time of his purchase of the subject property until 1998 the storefront and the subject two bay garage were used for retail sales of carpets and flooring.
18. The carpet and flooring business was discontinued in 1998 and thereafter the storefront and two bay garage were used for a retail sales business called Cakes-N-Things which continued to operate in the storefront and two bay garage until June of 2003.
19. The two bay garage has been vacant since June 2003.
20. Applicant proposes to use the two bay garage to perform Pennsylvania State Inspections, emissions testing and minor repairs on vehicles as needed for the inspection, generally not to exceed one to two hours per vehicle.
21. Applicant will perform no engine re-building, transmission repairs, body work, or alignment work in the garage.
22. Applicant also indicated that he might be engaged in installation of motor vehicle accessories such as audio, video and ground effects.
23. Applicant testified that he would have a minimal parts inventory on the property and that he has made appropriate arrangements to have any hazardous waste disposed of by Safety Kleen.
24. The two bay garage is 24 feet by 25 feet with 11 feet high ceilings. There is no dividing wall between the two bays.
25. The two garage bays are separated from the rest of the building to the east and to the rear by a concrete block wall.
26. There is an access door from the rear of the two bay garage to a 4 foot by 12 foot loading dock at the rear of the building, access to which requires passage through a 12 by 25 foot area which Applicant intends to be used for office space.
27. Applicant testified his hours of operation will be 8 a.m. until 8 p.m. Monday through Friday with possible hours on Saturday.
28. Applicant testified that he would be actively involved in managing the business and that his partner is a licensed mechanic who will be performing the work.
29. Applicant testified that he and his partner might hire one additional employee.
30. Applicant testified that the equipment in the garage will consist of two lifts, emissions testing equipment, light aimer, miscellaneous mechanic hand tools, and such tools as are required by regulation to operate a Pennsylvania State Inspection Station.
31. The property is served by an on-lot septic system and a well. The septic system is located to the rear of the property.
32. The property slopes downward from the rear of the buildings and parking area toward the field where the septic system is located.
33. Applicant proposes to make no structural modifications in this building nor any changes in the driveways and parking area in connection with his proposed use.
34. Applicant testified that the two garage bays cannot be used in strict compliance with the ordinance because the area is too small for the listed uses and most of the uses would require more parking than is available and would require renovations and structural changes to the two garage bays.
35. Applicant testified that to use the two garage bays for one of the permitted uses would require significant expenditure of money to perform the requisite modifications and improvements.
36. Applicant testified as to the various commercial uses in properties near the subject property and submitted seven photographs of those surrounding properties which were admitted into evidence as Exhibit No. 4.
37. Applicant provided further testimony as to some of the other commercial uses in the general vicinity including a body shop located approximately one-half mile away.
38. Applicant’s purpose in submitting Exhibit No. 4 and the testimony regarding other uses was to establish that there would be no change in the character of the neighborhood resulting from his proposed use and that his proposed use would service the local community.
39. Applicant testified that the nearest state inspection station from the subject property is on Piketown Road, approximately seven-tenths of a mile away.
40. Applicant testified that a four lane road is expected to be constructed in the area and he believes that his use will have less of an impact on the character of the neighborhood than that which will be caused by the four lane road.
41. Applicant testified that there will be no bathroom in the facility, but later indicated that if it became necessary he could provide access to the bathroom which is located in the storefront.
42. Applicant testified there will be no air compressor in the building for use in connection with the inspections, testing and minor repairs.
43. Applicant agreed with the Township representative that his proposed use is not of the same general character as those uses specifically permitted in the Village Zoning District.
44. Eleven neighboring property owners asked questions of Applicant and provided testimony in objection to the requested variance.
45. Applicant’s partner who will be performing the mechanic and inspection work in the proposed garage lives in the apartments and manages the complex for the Applicant.
46. The mechanic testified that he owns seven cars which are kept on the property and that he has a right to work on them anywhere on the property and at any time as he desires.
47. Also, testifying on behalf of Applicant was Lois Graham, a licensed realtor associated with Howard Hanna.
48. Ms. Graham testified that she is a former builder/developer and a former codes enforcement officer.
49. Ms. Graham was not offered as an expert in codes or zoning, but rather as an expert in the buying and selling of real estate and the valuation of real estate.
50. Ms. Graham testified she is familiar with the area and the property itself and is of the opinion that the two garage bays are not suitable for any of the 35 permitted nonresidential uses in the Village District.
51. She testified that many of the permitted uses are more intensive and would create more traffic problems than the proposed use.
52. Ms. Graham also testified that the proposed use is compatible with the neighborhood.
53. Ms. Graham also testified that the two garage bays are small when compared with the size of bays for a commercial garage and that to use those two garage bays for anything other than garage purposes would require significant renovation of the building.
54. The only unique physical feature of the land identified by Applicant was the fact that the property sloped downward from the rear of the buildings and parking areas toward the septic system.
55. Neither Applicant nor Ms. Graham testified that it was impossible to renovate the two garage bays to be used in strict conformity with the Zoning Ordinance, but that such renovations would be expensive.
56. Notice of the public hearing held on March 11, 2004 was properly advertised, notice was posted at the municipal building, the subject property was properly posted and all adjoining property owners were notified of the hearing by certified mail.
Conclusions of Law
1. A motor vehicle garage to perform Pennsylvania State Inspections, emissions testing and minor repairs is not one of the principal permitted nonresidential uses under Section 195-51.B. of the Zoning Ordinance.
2. Although Section 195-51.B.(36) permits any use determined by the Zoning Officer to be of the same general character as any of the other 35 permitted uses, Applicant specifically testified he did not contend that the proposed use was of the same general character as any of the other uses.
3. Applicant attempted to argue that his proposed use was more like a personal service in performing work on individuals’ motor vehicles.
4. However, Applicant did not appeal from the Zoning Officer’s interpretation of the Ordinance that his proposed use was not a permitted use within the Village District.
5. Applicant conceded that his proposed use is not a permitted use and not of the same general character as a permitted use, by virtue of his requesting a use variance.
6. The use of the two bay garage as proposed by Applicant involves inspection, testing and minor repairs on motor vehicles.
7. There is no permitted nonresidential use in the Village District relating to motor vehicles.
8. Motor vehicle related uses, such as service stations, automobile garages, car washes, repair garages, etc. are permitted in the Commercial Highway and Interchange Districts.
9. Applicant did not identify any unique physical circumstance or condition of the subject property which precludes its use in strict conformity with the provisions of the Zoning Ordinance.
10. Applicant identified only the downward slope from the rear of the buildings and parking area to the field in which the septic system was located as a unique physical circumstance or condition of the subject property.
11. Applicant did not establish that such slope in any way precluded using the two garage bays for a permitted use.
12. Applicant and his expert witness both testified that the two garage bays could be used for a permitted use if structural changes and renovations were made.
13. Applicant and his expert testified that such structural modifications and renovations would be expensive.
14. The testimony of Applicant and his expert that the two garage bays could not be used in strict accordance with the provisions of the Zoning Ordinance is not credible and is contradicted by the fact that the two garage bays were used from 1998 through June 2003 for a permitted use by Cakes-N-Things.
15. Any hardship to the Applicant would be from the circumstances generally created by the applicable provisions of the Zoning Ordinance in the Village Zoning District in which the subject property is located since the proposed use is not permitted by right or by conditional use.
16. There was no evidence submitted at the time of the hearing to establish that there is no possibility that the property can be developed in strict conformity with the provisions of the Zoning Ordinance.
17. To the contrary, Applicant’s testimony established that the two garage bays were used for a permitted use from 1998 through June 2003.
18. There was no evidence submitted at the time of the hearing to establish that the authorization of a variance is necessary to enable the reasonable use of the subject property.
19. Any hardship alleged by the Applicant has been created by the Applicant because his proposal for development of the subject two garage bays as a motor vehicle Pennsylvania State Inspection, emissions testing and minor repair facility in the Village District is not permitted by Article XI of the Zoning Ordinance.
20. The proposed use variance does not represent the least modification possible, because the property can be put to other permitted uses.
21. Applicant has failed to meet his burden of proof that there are unique physical circumstances or conditions of the subject property, which are peculiar to the subject property creating a hardship such that there is no possibility it can be developed in strict conformity with the provisions of the Zoning Ordinance.
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 use variance from Section 195-54.B. of the Zoning Ordinance is DENIED.
Date: WEST HANOVER TOWNSHIP
ZONING HEARING BOARD
Linda L. Turns, Chairperson
George O. Kline
393780v1
Beth Carricato