Dickerson v. Lower Swatara Township Zoning Hearing Board, 111319 PACCA, 1544 C.D. 2018

Docket Nº:1544 C.D. 2018
Opinion Judge:MICHAEL H. WOJCIK, JUDGE
Party Name:Fritz Lee Dickerson IV, Ashton Chase Dickerson, Thomas N. Steele, Ann M. Korb and Fritz Lee Dickerson III, Appellants v. Lower Swatara Township Zoning Hearing Board v. Lower Swatara Township
Judge Panel:BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge.
Case Date:November 13, 2019
Court:Commonwealth Court of Pennsylvania
 
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Fritz Lee Dickerson IV, Ashton Chase Dickerson, Thomas N. Steele, Ann M. Korb and Fritz Lee Dickerson III, Appellants

v.

Lower Swatara Township Zoning Hearing Board

v.

Lower Swatara Township

No. 1544 C.D. 2018

Commonwealth Court of Pennsylvania

November 13, 2019

OPINION NOT REPORTED

Argued: September 10, 2019

BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge.

MEMORANDUM OPINION

MICHAEL H. WOJCIK, JUDGE

Applicants1 appeal the October 22, 2018 order of the Court of Common Pleas of Dauphin County (trial court), dismissing Applicants' land use appeal and affirming the January 26, 2017 decision and order of the Zoning Hearing Board (ZHB) of Lower Swatara Township (Township), denying Applicants' request for a use variance under the Township's Zoning Ordinance (Ordinance).2 Applicants contend they met their burden of establishing all of the elements for a variance set forth in Section 910.2(a) of the Pennsylvania Municipalities Planning Code (MPC), 3and the ZHB's denial of the variance request is not supported by substantial evidence, and is therefore an abuse of discretion. Upon review, we affirm.

I.

Background

Applicants are individuals who own or have an ownership interest in the five contiguous residential parcels (Property)[4] at issue in the variance request. The Property, totaling 17.08 acres, is located in a Residential-Suburban (R-S) district. The Property is bounded by Pennsylvania Route 283 (Rt. 283) to the north, North Union Street to the west, the Swatara Creek to the east, and residential parcels to the south.

On April 28, 2016, Applicants collectively submitted an application for a land use variance to the ZHB for the Property. Applicants requested relief from Section 27-502 of the Ordinance, 5 regarding the permitted uses within an R-S district, and from Section 27-508 of the Ordinance, imposing a 30% impervious coverage limit for R-S zoned lots. If the variance is granted, Applicants intend to combine the Property's five residential parcels into a single parcel, which they will subdivide and develop as a five-lot commercial property (the Proposed Development). The Proposed Development will consist of one restaurant, one office building, two small retail buildings, and a 79-room hotel. As a self-imposed condition, Applicants agreed that they, or their successor(s) in interest, will expand public water and sewer services to the Proposed Development, thereby bringing the services to the residential area immediately south of the Proposed Development.

The ZHB held four public hearings on Applicants' variance application. Applicants testified and presented four additional witnesses: (1) Robert Shaffer, a professional engineer and a sewage enforcement officer; (2) William Gladstone, a commercial real estate agent; (3) Jarred Neal, a licensed professional traffic engineer; and (4) Thomas Luttrell, a development consultant. The Township presented the testimony of two witnesses: (1) Eric Stump, a licensed professional traffic engineer; and (2) Jamie Keener, a certified land planner. The ZHB granted intervenor party status to 11 neighboring property owners (Intervenors).6

The testimony revealed that the Property is currently improved with eight residential dwellings. Several Applicants reside in homes located on the Dickerson I, Dickerson II, and Korb Parcels, which rely on private wells and septic systems. The Steele Parcel, which contains four homes, is not currently used for residential purposes. The Church Parcel is undeveloped.

Steele testified that he purchased the Steele Parcel in 2002 and lived in one of the homes from 2002 to 2007. During that time, Steele rented the other three homes out as residences. However, in 2007, Steele began having septic issues on the parcel. In 2008, Steele built a new private septic system and connected two of the four homes. The size and topography of the lot prevented the connection of the two remaining homes to the new septic system, rendering them unsuitable for human occupancy. Steele, who does not currently reside on the parcel, testified that it would be possible for him to live in one of the two serviced homes. However, he said that all four of the homes have fallen into disrepair. R.R. at 42a-56a.

Applicants testified about significant industrial growth in the area north of the Property over the last decade. Many large warehouses have been constructed, including an expansive FedEx facility. The FedEx facility operates 24/7, creating significant noise, light, and dust pollution, as well as increased vehicle and foot traffic in the vicinity. Additionally, directly across North Union Street from the Property, there is a 200-acre parcel of land zoned as "Commercial Highway," known as the Shope Property. The Shope Property has been zoned Commercial Highway since 2008 and remains undeveloped. R.R. at 35a-37a, 39a, 64a, 73a, 82a-83a, 90a-92a.

Applicants who currently reside on the Property testified that they wish to move to a more desirable residential location, and believe that they will be unable to market and sell their properties as residences. However, they have not attempted to place their properties on the market in recent years, and both Dickerson, IV and Dickerson testified that they have not had their homes appraised. R.R. at 32a-33a, 36a, 39a-40a, 65a, 69a, 70a, 75a, 77a.

Shaffer, Applicants' professional engineer, testified that connecting the Property to public water and sewer services would cost between $400, 000 and $500, 000. These costs would be paid by a developer if the variance was granted, per Applicants' stipulation. Otherwise, the Property will either continue without access, or the costs will be borne by the Township. Shaffer conceded that the Property could be developed residentially without connecting it to public water and sewer services, but added that there would "not [be] a lot of room for density" of development, due to the space required for private septic systems. R.R. at 475a-482a.

Gladstone, Applicants' commercial real estate expert, testified that...

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