WEST HEMPFIELD TOWNSHIP ZONING HEARING BOARD

November 9, 2010

The West Hempfield Township Zoning Hearing Board met in the meeting room of the West Hempfield Township Building at 3401 Marietta Avenue, Lancaster, PA, on Tuesday, November 9, 2010.  Gary Lintner called the meeting to order at 7:30 P.M.  Board members Amelia Swiernik and Daryl Peck were also present, along with Rhonda Adams, Court Reporter; Bernadette Hohenadel, Solicitor; Edward C. Hinkle, Zoning Officer; and Darlene Diffenderfer, Recording Secretary.

Stacy Morgan, Solicitor, was also present for Case 1112.  She left the meeting following the conclusion of that case and Ms. Hohenadel presided over the remainder of the hearing.

Approval of Minutes

Amy Swiernik moved, seconded by Daryl Peck, to approve the minutes of the meeting held October 12, 2010 as presented.  Carried 3-0.

Case 1112 – Ray M. Kreider (continued)

Ms. Morgan stated that this case has been kept open to allow submission of legal briefs from both attorneys.  She stated the briefs were received and reviewed by the Board members. She added that she then polled the Board members individually and wrote a decision based on those discussions, but the Board had not deliberated the case jointly.

The Board members reviewed the written decision prepared by Ms. Morgan and stated they had no further questions or discussion.

Motion:  Amy Swiernik moved, seconded by Daryl Peck, to deny a variance for minimum lot size for Section 303.3.A.1 for Case 1112 at 656 Charelle Drive.  Carried 3-0.

The Board members signed the decision and copies were presented to Ms. Cleary and Mr. Kreider.

At this time, Mr. Lintner acknowledged Evan Shenk, a Boy Scout, who was present as part of earning a merit badge.

Case 1113 – Hempfield School District

This application was submitted by Hempfield School District, 200 Church Street, Landisville, PA for a Special Exception to Section 303.2.B.3 to expand a school use at Farmdale Elementary School, 695 Prospect Road, zoned R-2.

Daniel Forry, Hempfield School District; Brent Detter, Landscape Architect, ELA Group, 743 South Broad Street, Lititz, PA; and David Simpson, Architect, Crabtree, Rohrbaugh & Associates, 401 East Winding Hill Road, Mechanicsburg, PA were present and all were sworn to provide testimony. 

Mr. Detter presented an aerial photograph of the Farmdale site as it currently exists and a second photograph which indicated the proposed changes to the property.

Mr. Detter stated  the Farmdale Elementary School currently has an enrollment of 509 students with a projected maximum enrollment of 700 students being accommodated after the proposed renovations.  He stated the property is 22.34 acres in size.

Mr. Detter testified that the proposed expansion and changes include the following:

            1)  addition of a new classroom wing to the north and gymnasium to the southwest

            2)  student drop-off area reconfigured with an additional access aisle to the north

            3)  creation of a second interior courtyard with existing parking and loading area

                  relocated to the southwest portion of the site

            4)  proposed elimination of exit onto Prospect Road and relocating exit to Marietta

                  Avenue

            5)  current paved play area would be integrated into other existing play area with

                  possible expansion of the play area

            6)  existing storm water basins would be expanded with one possibly relocated or

                  placed underground

            7)  proposed walking trail around the perimeter of the property in lieu of sidewalks

                  along Prospect Road and Marietta Avenue

Mr. Detter stated more than the required number of parking spaces will be provided and that all setbacks can be met.  He stated the maximum height of the building will be 35 feet.  He added that the school has been located at this site since the 1950’s and the last addition to the building was completed in 1989.

Mr. Lintner questioned the deliberations with PennDot in regards to relocating the exit to Marietta Avenue.  Mr. Detter stated they are in the preliminary stages and PennDot will be doing traffic and speed studies next week.

Mr. Lintner questioned what increase in impervious surface would result from the proposed changes.  Mr. Simpson replied that the building itself would increase by 36,000 square feet.  Mr. Forry added that some of the additions would be built over impervious area that already exists.  Mr. Detter stated that the open space, after the additions and changes are completed, would be 73% with the ordinance requiring only 30%.

Ms. Swiernik read into the record the minutes of the Planning Commission meeting held October 21, 2010.  A copy of those minutes are attached to these minutes.

Motion:  Daryl Peck moved, seconded by Amy Swiernik, to approve a Special Exception to Section 303.2.B.3 to enlarge the Farmdale Elementary School at 695 Prospect Road subject to Section 702 and Section 1005 of the Zoning Ordinance.  Carried 3-0.

Case 1114 – Ken Lang

This application was submitted by Ken Lang, 3662 Keen Avenue, Columbia, PA as an appeal of the Zoning Officer’s Cease and Desist Order citing Sections 303.2.A and 701.14 of the Zoning Ordinance.  Mr. Lang’s property is zoned R-2.

Josele Cleary, Attorney, was present to represent the Township and stated the Township would present its case first.

Ms. Hohenadel questioned if there were any parties present interested in this case and explained Party Status.  Michael and Danielle Marin, 3661 Keen Avenue, Columbia, PA were both present and requested Party Status stating they wanted to provide testimony and submit evidence.

The Marins, Mr. Hinkle and Mr. Lang were all sworn to provide testimony.

Ms. Cleary called Ed Hinkle as the Township’s witness.  He stated he has been the Township’s Zoning Code Enforcement Officer since October 2006.

Ms. Cleary presented Township Exhibit 1 which Mr. Hinkle described as a copy of the deed to the property owned by Mr. Lang and Eliza Lang at 3662 Keen Avenue.  Mr. Hinkle described the property as 15,500 square feet with a residential structure and attached garage and a fenced back yard located in the R-2 zoning district.

Mr. Hinkle testified that he observed the Lang property after receiving complaints about it.  He stated he observed construction vehicles and materials being stored on the property and took photographs of his observations on March 29, 2010.

Ms. Cleary presented Township Exhibit 2 which Mr. Hinkle described as four photographs he took on March 29, 2010 at the Lang property.  He stated the first picture showed a steel beam, tires and a parked van; the second showed material stored on the west side of the property; the third showed storage of materials in front of the fence nearer to the street; and the fourth showed materials being stored in front of the garage facing Keen Avenue.

Ms. Cleary submitted Township Exhibit 3 which Mr. Hinkle identified as a copy of the first warning letter he sent to Mr. Lang on April 9, 2010 concerning a complaint and the issues that were in violation of the Ordinance.  Mr. Hinkle stated that Mr. Lang did not bring the property into compliance after this letter was sent.

Ms. Cleary submitted Township Exhibit 4 which Mr. Hinkle described as a copy of a formal enforcement notice he sent to Mr. Lang dated August 31, 2010.  He added that he had visited the property before sending the formal notice and found that it still was not in compliance.

Additional photographs, taken by Mr. Hinkle before sending the notice on August 31, 2010, were submitted as Township Exhibits 5 and 6.  Mr. Hinkle described three pictures in Exhibit 5 and four pictures in Exhibit 6 which showed a construction trailer owned by Mr. Lang parked on a neighbor’s property, building materials stored in front of the garage, a construction truck and trailer parked on the street, and material stored on the west side of Mr. Lang’s house.

In response to Ms. Cleary’s questions, Mr. Hinkle testified that Mr. Lang’s statement included with his application for an appeal was incorrect.  He stated that Mr. Lang indicated that the zoning went into effect in 1989 when, in fact, it went into effect in 1968 and 1978. 

Mr. Hinkle stated that he copied a portion of the zoning map included with the Zoning Ordinance of 1978 and circled the location of 3662 Keen Avenue on that copy.  Ms. Cleary submitted the copy of the map as Township Exhibit 7.  Mr. Hinkle stated that the zoning map of 1978 indicated that the property at 3662 Keen Avenue was zoned R-2 at that time and was zoned R-2 when acquired by Mr. Lang.

Ms. Cleary submitted a copy of an excerpt of the R-2 regulations from the 1978 Zoning Ordinance as Township Exhibit 8.  Mr. Hinkle testified that the 1978 Zoning Ordinance did not permit a use such as shown in the pictures submitted as exhibits.

In response to Ms. Cleary’s questions, Mr. Hinkle testified that he reviewed the Township’s files and could find no evidence of permits being issued to allow Mr. Lang to use his property for anything other than as a single family dwelling.  He stated there is no registration of the Lang property having a non-conforming use. 

Mr. Hinkle stated he has observed Mr. Lang’s property since he issued the enforcement notice in August and the condition remains pretty much the same.  He stated he last observed the property the morning of November 9, 2010 and observed that the front yard had been cleaned up, but the remainder of the property remained unchanged.

At this time, Mr. Lang asked Mr. Hinkle how many non-conforming properties were actually registered when the ordinances of 1978 and 1989 were enacted.  Ms. Cleary objected stating it was irrelevant and since Mr. Hinkle only became Zoning Officer in 2006, he couldn’t possibly know.  Ms. Hohenadel allowed the question, and Mr. Hinkle stated that, as far as he knew, there were none.

Mr. Lang stated that the white van has been removed from his property to which Mr. Hinkle agreed.  Mr. Lang further stated that he felt he had cleaned up immensely.  He stated that the truck referred to as a construction truck is less than one ton and is fully inspected.  He stated that he had brought a statement to the Township to verify that it is a one ton truck.  Mr. Hinkle stated Mr. Lang brought information, but not proof of the weight of the truck;  that the Township had requested documentation to verify the empty weight of the truck which Mr. Lang never provided.

 In response to Mr. Lang’s question, Mr. Hinkle stated that Mr. Lang did have a building permit for work being done at his neighbor’s house where the construction equipment is parked. 

Mr. Hinkle testified that he did not know that Mr. Lang had been operating a business from his house until Mr. Lang told him.

As follow-up, Ms. Cleary asked Mr. Hinkle what the deadline was for Mr. Lang to make all corrections to his property.  Mr. Hinkle stated the deadline had been September 30, 2010.  Mr. Hinkle added that the deadline had not been met; that all violations had not been rectified by that date or by today’s date. 

Mr. Lang presented a packet of statements signed by some of his neighbors on Keen Avenue which he stated would be proof he had been operating his business from his home since 1982.  Ms. Cleary objected stated the material would be hearsay.  The Board members and Ms. Hohenadel reviewed the information supplied by Mr. Lang, and Ms. Hohenadel stated she would agree that it would be deemed to be hearsay.

Ms. Cleary noted that the initial paragraph on the statements supplied by Mr. Lang is a false statement; that Mr. Lang’s claim to be a non-conforming use when starting out in 1982 with zoning enacted in 1989 is false.

Ms. Hohenadel agreed that the items should not be accepted as an Exhibit before the Board.

Mr. Lang questioned what the Board would accept; whether affidavits were required.  He offered to have the documents notarized.  Ms. Hohenadel stated there is no way to determine whether the documents accurately reflect what is before the Board in this proceeding.  She added that interested parties could attend as a witness or submit a written statement to the Township and the Board could determine whether or not to take those statements into consideration.

At this time, Mr. Lang requested  a continuance of his case so that he could get a letter sent to the Township.  Ms. Cleary objected stating the Township could not cross examine written statements and that Mr. Lang had his chance to present his witnesses at this hearing.  Ms. Cleary added that having witnesses state they have no objection to what Mr. Lang is doing is irrelevant as to whether what he is doing is a violation or not.

Mr. Lintner asked Mr. Hinkle why there was such a delay between the initial warning letter in March and the violation notice being sent in September.  Mr. Hinkle responded that the Township gave many grace periods to Mr. Lang in response to his promises to remedy the situation, but that Mr. Lang always had excuses as to why he could not meet the deadlines.

Mr. Peck asked Ms. Cleary about her statement that Mr. Lang’s statement was false.  Ms. Cleary stated that Mr. Lang’s statement says he has been operating from his home since 1982 and is a non-conforming use.  She stated he may have been operating for quite some time, but is not a lawful non-conforming use because he commenced his business after zoning was enacted in 1978.  She added that this ordinance actually predates Mr. Lang’s purchase of the property.  She also stated that Mr. Lang’s claim that zoning originated in 1989 is not accurate.  Ms. Cleary stated that each individual who signed the statement prepared by Mr. Lang was given a false statement.

Mr. Lang stated that Charlie Douts, previous Township Manager, and previous Zoning Officers, Abe Kauffman, Sherry Myers and Jonathan Heilman never had any problem with him operating his business at this location.  He stated that Mr. Douts did ask him to clean up a few years ago and told him to just keep it off the road.

Mr. Lang pointed out that there are many other properties within the Township that are in violation of the Zoning Ordinance.  Mr. Lintner replied that Mr. Hinkle cannot possibly catch every one of them, but when a complaint does come to the Township, action must be taken.

Mr. Lang stated that he has down sized his operation from what he used to do, but was never told he had to stop his business operation.  He stated he obtained a permit in 1994 to build his garage 10 feet high so he could work on his equipment and was never told it was a problem.

Ms. Hohenadel pointed out that there was two matters before the Board that needed to be decided; one being Ms. Cleary’s objection about the material being hearsay and the other being Mr. Lang’s request for a continuance. 

At this time, Mr. Marin stated he had some questions.  He stated that the issue of Mr. Lang having permits to work at a neighbor’s property has been ongoing for years and he felt Mr. Lang’s actions were bringing down the value of his property.  He added that he also had photographs he would like to submit which Ms. Hohenadel stated would be addressed at a later time.

Ms. Hohenadel stated that she believed Ms. Cleary’s objection should be sustained and all Board members agreed.  As to a continuance, Ms. Cleary and the Marins objected.  Ms. Cleary stated the Marins could not be at the December meeting and she would request that they be allowed to testify at this time.

Ms. Marin submitted several pictures as Exhibit M 1.  She stated the pictures were taken in February 2010 prior to making a complaint to the Township.  She stated the pictures represent things that they have to look at on a daily basis.  The pictures included a dump truck parked on the street directly across from the Marin’s property and heavy equipment on a trailer also parked on the street.  Ms. Marin stated the truck comes and goes and is not always parked on the street.  She stated the noise level at 5 AM created by Mr. Lang loading equipment and running diesel engines is a disruption to her children’s sleep.  She agreed that Mr. Lang has recently cleaned up the property, but that a lot remains to be done.  Ms. Marin stated that they have lived at their property for 10 years, but the problem with Mr. Lang has gotten worse over the past two years.

The Marins thanked Mr. Hinkle and Mr. Youtz for the time they have spent on the issue which has resulted in some improvement to the situation.

Ms. Hohenadel returned to the issue of Mr. Lang’s request for a continuance.  Mr. Lang stated his request remains before the Board and clarified that it was for the purpose of bringing in witnesses to verify that the business has been ongoing and the Township has never objected previously.

Mr. Lintner stated that since this situation has been ongoing since March 2010 with no forward progress, his opinion would be to make a decision at this time with no continuation.

Ms. Hohenadel explained to Mr. Lang that the Zoning Hearing Board is an independent body of the Township that is separate from the Board of Supervisors and is given the responsibility of upholding the Township’s Zoning Ordinance.

Mr. Lintner stated that, if a decision is made at this hearing, Mr. Lang would still have recourse to the Lancaster County court system.

Mr. Lang stated that his request for a continuance remains.  Mr. Hinkle stated that the situation has been ongoing since March 2010 and will continue to drag out if the Board does not make a decision.  Mr. Marin stated that Mr. Lang continues to mention that the Township has never objected to his action previously.  He added that he was told the process is complaint driven and maybe he is the first to file a complaint and followed up to see the process through.

Motion:  Gary Lintner moved, seconded by Daryl Peck, to not continue Case 1114 to the next meeting.  Carried 2-1 with Daryl Peck opposed.

Motion:  Daryl Peck moved, seconded by  Amy Swiernik, to uphold the Cease and Desist order issued to 3662 Keen Avenue.  Carried 3-0.

Case 1116 – Warren W. Diffenderfer Family Trust

This application was submitted by the Warren W. Diffenderfer Family Trust, 750 Summit Drive,

Lancaster, PA for a variance to Section 301.3.A.1 for lot size for lots 1A and 1 B; a variance to Section

403.4.A.1 for a variance for relief of the requirement of public water for lot 5; a variance to Section 701.8 for a variance to allow more than one principal use on lot 5; and a variance to Section 403.3.A.4.c for a variance for rear yard setback on lot 5 to allow a subdivision of the remaining properties at the west side of Summit Drive and the south side of Marietta Avenue, zoned Traditional Village and Rural Agricultural.

William Sell, Light-Heigel & Associates, Inc., 805 Estelle Drive, Suite 111, Lancaster, PA was present to represent the trust as well as Mark Diffenderfer, 962 Anderson Ferry Road, Mount Joy, PA, one of the owners of the property.   Mr. Sell and Mr. Diffenderfer were both sworn to provide testimony.

Ms. Hohenadel again explained the meaning of Party Status and questioned if anyone present was requesting that status.  The following were granted Party Status and were all sworn to provide testimony:  Robbie Peitzman, 682 Summit Drive; Rod Heisey, 624 Hope Avenue, Orwigsburg, PA; Elizabeth Rowe, 684 Summit Drive; Melvin Hartman, Jr., 690 Summit Drive; and Michael Baltozer, 600 Summit Drive. 

Mr. Sell submitted a plot plan of the proposed subdivision as Applicant Exhibit #1 and a plot plan showing details of Lot 2 and Lot 5 as Applicant Exhibit #2.  He submitted a narrative explaining the proposal as Applicant Exhibit #3. 

Mr. Sell stated that the property is approximately 89.2 acres and is located along both sides of Summit Drive and the South side of Marietta Avenue.  He stated a portion of the property is zoned Traditional Village and a larger portion is zoned Rural Agricultural.  Mr. Sell stated the property is traversed by an abandoned railroad line, a PPL Electric right-of-way, and a stream.

Mr. Sell indicated there are three dwellings on the property; two along Marietta Avenue and one on Summit Drive.  He added that the two dwellings along Marietta Avenue are multi-family with four units in one dwelling and two units in the second dwelling.  He stated these units are served by public sewer and a private well.  Mr. Sell stated the dwelling along Summit Drive has two units and both are served by on-lot septic and private well.

Mr. Sell stated the Trust is proposing to subdivide the property into six lots and would need four variances to achieve that division.  He stated four of the lots would be within the TV zoning and two would be Agricultural.  Mr. Sell described the six lots as follows:  Lot 5 would be along Marietta Avenue and would have the two multi-family dwellings on it;  Lots 3 and 4 would remain vacant at this time; Lot 2 would be along Summit Drive and would include the existing farmhouse and storage facility; and Lots 1A and 1 B would remain as agricultural lots.  Mr. Sell pointed out that Lot  4 would be split by the railroad bed and Lots 1A and 1B would be split by Summit Drive. 

Mr. Sell stated that the variances being requested apply to various portions of the proposed subdivision.  He stated the variance to Section 301.3.A.1 for lot size would apply to Lot 1A since it would be only 20.47 acres instead of the 25 acres required. 

Mr. Sell stated the other three variances would apply to Lot 5.  He stated the dwellings on the proposed Lot 5 are currently served by a private well and the Trust would like to continue using the well until such time as it may fail.  Mr. Sell added that since there are two multi-family dwellings on the proposed lot the variance would be needed to allow more than one principal use.  He stated the third variance is requested for Lot 5 because the proposed lot line would place the rear dwelling too close to the setback.

Mr. Sell stated that there is no potential buyer for any of the lots at this time.

Ms. Swiernik stated if they added a portion of Lot 4 to Lot 5 they would not need a variance for the rear yard setback.  She stated that the proposed lot lines are a self-created hardship; that land is available to meet the setback if the lines are redrawn.  She stated that variances cannot be granted to make a lot more attractive to a developer; that Lot 4 could still be developed even if it were smaller.  Mr. Lintner stated that since Lot 4 will be accessed from Summit Drive, it would not need the frontage on Marietta Avenue for access.  Mr. Diffenderfer stated that they had looked at the highest and best use when creating the proposed lot lines.

A brief discussion was held regarding the availability of public water for the lots along Marietta Avenue.  Mr. Hinkle stated that properties are not required to connect to the water line by the water company, but the Traditional Village ordinance does require a connection.  Mr. Sell stated that he received a letter from Columbia Water Company stating they would serve Lot 5 in the future, if requested.

Mr. Lintner questioned whether the proposed lines for Lots 1A and 1B were determined by the street.

Mr. Sell stated the lot lines will follow the zoning division line and the street was a natural division between the two lots since there could be two separate owners for the lots.  Ms. Hohenadel stated there are cases where the road can be deemed a natural subdivision.

A brief discussion was held regarding the abandoned railway bed and the PPL right-of-way.  Mr. Diffenderfer stated that he has title insurance that states the Trust owns the land; that it is a right-of-way for PPL.  Mr. Sell stated the PPL right-of-way nearly coincides with the abandoned railway bed, and they are trying to determine ownership of the rail bed.  Mr. Hinkle stated that most times the Railroad company doesn’t know they own any land and simple title transfers are made for $1.00.

Ms. Peitzman stated her main concern was that the agricultural land would be rezoned as Traditional Village.  Mr. Sell stated that was not planned and the agricultural lots would not be divided into building lots; that the Lots 1A and 1B would remain as agricultural land as required by the current ordinance.  She added that residents on Summit Drive are concerned about the traffic and speed of traffic along that road.  Mr. Sell suggested she approach the Board of Supervisors with those concerns.

Mr. Heisey questioned whether there would be any building restrictions on the agricultural lot that would be less than 25 acres.  Mr. Hinkle stated it would be possible for the Board to place conditions on the lot, but there should be no restrictions other than meeting setbacks as required by the ordinance.  Mr. Lintner stated that any conditions would probably not hold up in any court.

Mr. Baltozer questioned why Lot 1A couldn’t be added to Lot 2 so there would be no lot less than the required 25 acres.  Mr. Sell stated that Lot 2 is zoned Traditional Village and is better for a residential use while the proposed Lot 1A is zoned Rural Agricultural.  Mr. Diffenderfer stated they tried to do what is practical based on uses and zoning districts.

Mr. Hinkle referred the Board to the comments made by the Lancaster County Planning Commission regarding this proposed subdivision.  Specifically, comment #6 which expressed concern over the creation of an agricultural lot less than 25 acres.  Mr. Hinkle also pointed out that the Traditional Village zoning does require that lots be connected to public water.  Mr. Hinkle’s third point was that there is land available to create lots that would meet all setback requirements.

Mr. Peck questioned whether the request for relief from connecting to public water was economics.  Mr. Diffenderfer stated that it was, and that the well had served the property for many years without any problems.

Motion:  Amy Swiernik moved, seconded by Daryl Peck, to grant a variance of 4.53 acres to Section 301.3.A.1 for the property at 750 Summit Drive to allow creation of Lot 1A at 20.47 acres with the condition that it be carried out as described before the Board.  Carried 2-1 with Mr. Peck opposed.

Motion:  Amy Swiernik moved, seconded by Daryl Peck, to Section 403.4.A.1 to allow creation of Lot 5 without public water with the condition that it be connected if the lot is sold to a new owner or well is deemed unfit.  Carried 2-1 with Mr. Peck opposed.

Motion:  Amy Swiernik moved, seconded by Daryl Peck, to grant a variance to allow the creation of Lot 5 with more than one principal use.  Carried 3-0.

Motion:  Amy Swiernik moved, seconded by Daryl Peck, to deny a variance to Section 403.3.4.A.c for rear yard setback at the southern boundary of Lot 5.  Carried 3-0.

There being no further business to come before the Board, the meeting was adjourned at 10:30 P.M. 

Respectfully submitted,

Daryl S. Peck

Secretary