Judges Opinions Public Notices, — November 6, 2019 11:11 — 0 Comments

Public Notices, November 6, 2019

 

Volume 57, No. 14

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

ARTICLES OF INCORPORATION

 

TABLE OF CONTENTS

Roberto Olan v. Zoning Hearing Board of the City of Lebanon

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF FREDERICK F. WIEGAND, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Fred Wiegand, Executor

 

Young and Young

44 S. Main Street

P.O. Box 126

Manheim, PA 17545

 

ESTATE OF JOHN A. OVATES a/k/a JOHN A. OVATES, JR., late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

  1. Nancy DeLiberty, Co-Executrix

William F. DeLiberty, Co-Executor

114 Maple Avenue

Hershey, PA 17033

 

Christa M. Aplin, Esquire

JSDC Law Offices

11 East Chocolate Avenue, Suite 300

Hershey, PA 17033

 

ESTATE OF ROBERT H. RICHARDS, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kevin R. Richards, Executor

444 W. High Street

Womelsdorf, PA 19567

Sean J. O’Brien, Esquire

Mogel, Speidel, Bobb & Kershner

520 Walnut Street

Reading, PA 19601

 

ESTATE OF GAIL DIMAIO, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Michael DiMaio, Executor

76 Lightcap Road

Second Floor

Pottstown, PA 19464

 

Kari E. Panza, Esquire

R.J. Marzella & Associates 3513 North Front Street

Harrisburg, PA 17110

 

ESTATE OF MAE E. REED, late of the Borough of Palmyra, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Robert R. Reed, Executor

253 Homestead Court

Palmyra, PA 17078

 

Christa M. Aplin, Esquire

JSDC Law Offices

11 East Chocolate Avenue, Suite 300

Hershey, PA 17033

 

ESTATE OF OPHELIA F. GAMBLER, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Gilbert J. Mason, Co-Executor

750 Pine Street

Lebanon, PA 17046

 

Linda J. Moyer, Co-Executrix

905 N. 8th Street

Lebanon, PA 17046

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys at Law

36 West Main Street

Myerstown, PA 17067

ESTATE OF KENNETH E. BUCKWALTER, late of the Borough of Palmyra, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Ruth Wagner, Executrix

 

Joan Craver, Executrix

 

Khervin D. Smith, Esquire

30 Valley Drive

Annville, PA 17003

 

ESTATE OF SHEILA E. THOMPSON, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Betty Johnston, Executrix

111 N. Ramona Road

Lot 67

Myerstown, PA 17067

 

Sean J. O’Brien, Esquire

Mogel, Speidel, Bobb & Kershner

520 Walnut Street

Reading, PA 19601

 

 

SECOND PUBLICATION

 

ESTATE OF JOYCE ARLENE RODKEY, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

James M. Rodkey, Co-Executor

Duane T. Rodkey, Co-Executor

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF DOROTHY A. SHELTON, late of the Borough of Palmyra, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Robert J. Shelton, Executor

67 Springhaven Court

Palmyra, PA 17078

 

Stanley A. Smith, Esquire

Barley Snyder

213 Market Street

12th Floor

Harrisburg, PA 17101

 

ESTATE OF ANITA M. SIMON, late of Myerstown, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Patricia K. Moyer, Executrix

6857 Old Route 22

Bethel, PA 19507

 

Robin S. Levengood, Esquire

1136 Penn Avenue

Wyomissing, PA 19610

 

ESTATE OF ESTHER S. YOUD, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Mary Ann Hoover, Co-Executrix

Dorcas G. Breckbill, Co-Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

 

ESTATE OF DOROTHY M. PURCELL, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Zabrina Marie Hart, Executrix

 

Matthew M. Karinch, Esquire

Weiss Burkett, LLC

802 Walnut Street

Lebanon, PA 17042

 

ESTATE OF MARGUERITE L. SHUTTER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Gina A. Wessner, Executrix

 

Harry W. Fenton, Esquire

809 Chestnut Street

Lebanon, PA 17042

 

THIRD PUBLICATION

 

ESTATE OF CRAIG D. SCHULZE, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Administrator.

 

Chad A. Schulze, Administrator

 

Horace M. Ehrgood, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF ROBERT F. KLICK, a/k/a, ROBERT FRANCIS KLICK, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Agatha M. Klick, Executrix

28 Arbor Drive

Myerstown, PA 17067

 

Jonathan B. Batdorf, Esquire

317 East Lancaster Avenue

Shillington, PA 19607

 

ESTATE OF MARGUERITE L. SHUTTER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Gina A. Wessner, Executrix

 

Harry W. Fenton, Esquire

809 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF MARY WARNER, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Sharon Frederickson, Co-Executrix

 

Bruce Frederickson, Co-Executor

 

Melanie Walz Scaringi, Esquire

Scaringi Law

2000 Linglestown Road, Suite 106

Harrisburg, PA 17110

 

ESTATE OF CONSTANCE J. NACE, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Wendy J. Kozicki

685 Newberry Road

Middletown, PA 17057

 

John D. Enck, Esquire

Spitler, Kilgore, & Enck, PC

522 S. 8th Street

Lebanon, PA 17042

 

ARTICLES OF INCORPORATION

 

Notice is hereby given that SUNSHINE TRAILS RETREAT has been incorporated on 10/22/19, under the provisions of the PA Nonprofit Corp. Law of 1988. The corp. is organized exclusively for charitable purposes. NEVIN D. BEILER, Solicitor, BEILER LEGAL SERVICES PC., 105 S. Hoover Ave., New Holland, PA 17557.

 

 

JUDGE’S OPINION

 

Roberto Olan, v. Zoning Hearing Board of the City of Lebanon

 

Civil Action-Property Law-Zoning-Dimensional Variance-Use Variance-Unnecessary Hardship

 

Appellant contracted with a company for construction of a prefabricated pole building on property located in a commercial auto zoned district. No permits were sought for the construction of the building. Following completion of the construction of the building, the City of Lebanon issued a notice of violation on the basis that the building failed to comply with minimum setback requirements for that zoning district and the building encroached upon an adjoining property by ten (10) inches. The Zoning Hearing Board of the City of Lebanon (“Zoning Hearing Board”) denied Appellant’s request for a dimensional variance from which Appellant appealed.

 

  1. Where the trial court does not hear additional evidence, the applicable standard of appellate review of a decision of a zoning hearing board is whether the zoning hearing board committed a manifest abuse of discretion of error of law.

 

  1. A zoning hearing board abuses its discretion when its necessary factual determinations are not supported by substantial evidence.

 

  1. There is a strong policy against assisting a landowner who violate a zoning ordinance whether negligently or intentionally.

 

  1. A dimensional variance involves a request to adjust zoning regulations to use the property in a manner consistent with the regulations.

 

  1. A use variance involves a request to use property in a manner that wholly is outside of that permitted by zoning regulations.

 

  1. In order to find unnecessary hardship to justify the grant of a dimensional variance, the court may consider multiple factors including the economic detriment to the applicant if the variance were to be denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood.

 

  1. The Zoning Hearing Board committed no abuse of discretion or error of law in denying the request for dimensional variance where the record establishes that Appellant presented no testimony or evidence of undue hardship from use of the property in compliance with the Ordinance or that the property could not be developed in conformity with the Ordinance and Appellant contracted to construct the building without obtaining required permits such that any undue burden was self inflicted.

 

L.C.C.C.P. No. 2018-01404, Opinion by Samuel A. Kline, Judge, March 12, 2019.

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION

ROBERTO OLAN,

Appellant,

vs.

 

ZONING HEARING BOARD OF THE CITY OF LEBANON,

 

Appellee.

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No. 2018-01404

 

LAND USE APPEAL

ORDER

AND NOW, to wit, this 12th day of March, 2019, upon consideration of Appellant’s appeal of the decision of the Zoning Hearing Board of the City of Lebanon, the record of the case and the arguments of the parties, the decision of the Zoning Hearing Board of the City of Lebanon is hereby AFFFIRMED.

 

BY THE COURT,

 

______________________ J.

SAMUEL A. KLINE

cc:           Joseph A. Crowe, Esq.

Keith L. Kilgore, Esq.

Court Administration (order only)

Matt Cole // Law Clerk (order only)

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION

ROBERTO OLAN,

Appellant,

vs.

 

ZONING HEARING BOARD OF THE CITY OF LEBANON,

 

Appellee.

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No. 2018-01404

 

LAND USE APPEAL

APPEARANCES:

Joseph A. Crowe                                                               for Appellant

Keith L Kilgore, Esq.                                                        for Appellee

 

OPINION, KLINE, J., MARCH 12, 2019

 

                Before the Court is the appeal of Roberto Olan from the decision of the Zoning Hearing Board of the City of Lebanon denying his request for a dimensional variance. For reasons set forth herein, we affirm the decision of the Zoning Hearing Board of the City of Lebanon.

 

FACTUAL BACKGROUND

This matter involves the property located at 17 North Second Avenue, Lebanon, Pennsylvania (“the Property”). The Property is situated in the Commercial Auto (CA) Zoning District at the intersection of Spring Street and North Second Avenue and consists of a total of .04 acres with dimensions of 15’ x 101.50’.

Roberto Olan (“Appellant”) contracted with a company to have a 15’ x 50’ prefabricated pole building (“the Building”) constructed on the Property. Appellant claimed that the company stated they would take care of everything. However, no permits were ever sought or granted for the Building.

After construction, the City Zoning Officer sent notice to Nathaldi Calzado, the record owner of the Property at the time, citing the Building as being in violation of Section 1321 of the Zoning Ordinance of the City of Lebanon, Pennsylvania (“the Ordinance”), which provides that in CA districts, the minimum setbacks for the front of the Property is 30 feet and the minimum setback for the rear of the Property is 20 feet with a maximum lot coverage of 30%. Furthermore, the Building encroaches upon an adjoining property by ten inches.

PROCEDURAL HISTORY

 

Ms. Calzado brought the initial action before the Zoning Hearing Board of the City of Lebanon (“the ZHB”). A hearing was originally held on May 16, 2018, where it was discovered that the Property had since been sold to Appellant. The hearing was continued so that Appellant could obtain a plot plan from a registered surveyor to present to the ZHB and to amend the petition to name Appellant as petitioner.

The next hearing was held on June 20, 2018.   At the June hearing, the ZHB heard further testimony from Appellant reiterating that fact that a company had constructed the Building and assured him that they would take care of everything after he leveled the lot. (Notes of Testimony of June 20, 2018 Board Hearing “6/20/19 Hearing N.T.” at 17). The Building has no foundation and is sitting on stone and anchored to the ground. (6/20/18 Hearing N.T. 18). Ms. Calzado received a letter from the city indicating that the Building was in violation of the Ordinance. (6/20/18 Hearing N.T. 18). Appellant asserted that the Building was situated at the center of the Property allowing 20 – 27 feet from what he considered the front of the Property, abutting North Second Avenue, and 24 or 25 from what he considered the back of the Property, along the property line adjacent to another property along Spring Street. (6/20/18 Hearing N.T. 22).

The City Zoning Officer, Karen Zaporozec, testified that she sent the notice to Ms. Calzado regarding the Ordinance violation on the Property. (6/20/18 Hearing N.T. 20). Ms. Zaporozec viewed the Property as having two front lawns — one running along Spring Street and the other adjacent to North Second Avenue. (6/20/18 Hearing N.T. 20-21). Both of the front yards would require 30 foot setbacks pursuant to Section 1321, Appendix A.

The ZHB heard from one neighbor objecting to the variance and complaining about various issues in regards to Appellant’s Property. The hearing then took a short recess.

Upon returning, the ZHB voted unanimously to deny Appellant’s request for a variance. The ZHB further directed that the Building should be removed. In the written decision, issued July 20, 2018, the ZHB discussed its findings of fact, including that the Building sits on the front and rear property line and therefore does not meet the front and rear setback requirements. Further, the ZHB found that the Building exceeded the maximum 30% lot coverage under the Ordinance. In its conclusions of law, the ZHB determined that any hardship was self-inflicted and that the variance does not represent a minimum variance or the least possible modification of the regulation that would afford relief.

On August 17, 2018, Appellant appealed the ZHB’s decision to this Court. The ZHB filed the return of writ on October 15, 2018, along with a Praecipe for Disposition. The matter was listed for the December Term of Argument Court. Appellant filed his brief in support of the appeal on November 8, 2019. The ZHB filed its brief in opposition on November 21, 2019. Both parties appeared at oral arguments. The matter is thus before this Court and ripe for disposition.

 

DISCUSSION

 

Where a trial court does not hear additional evidence, “the applicable standard of appellate review of the zoning board’s determination is whether the zoning board committed a manifest abuse of discretion or an error of law. Larsen v. Zoning Bd. of Adjustment of City of Pittsburgh, 672 A.2d 286, 288–89 (Pa. 1996). A zoning board abuses its discretion when its “necessary factual determinations are not supported by substantial evidence.” German v. Zoning Bd. of Adjustment, 41 A.3d 947, 952 (Pa.Cmwlth. 2012).

Pursuant to section 910.2(a) of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 10910.2(a), an applicant seeking a variance must prove, where relevant, that: (1) there are unique physical circumstances or conditions “peculiar to the particular property” resulting in an unnecessary hardship; (2) because of the physical circumstances or conditions the property cannot be developed in strict conformity with the ordinance; (3) the hardship is not self-inflicted; (4) granting the variance will not alter the essential character of the neighborhood or be contrary to the public interest; and (5) the variance sought is the minimum necessary to afford relief. An applicant seeking either a use or dimensional variance “must, at a minimum, demonstrate that an unnecessary hardship will result if a variance is denied and that the proposed use will not be contrary to the public interest.”

McCarry v. Haverford Twp. Zoning Hearing Bd., 113 A.3d 381, 385 (Pa.Cmwlth. 2015)(internal citation omitted).

“A dimensional variance involves a request to adjust zoning regulations to use the property in a manner consistent with regulations, whereas a use variance involves a request to use property in a manner that is wholly outside zoning regulations.” Tri-Cty. Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 520 (Pa.Cmwlth. 2014). In order to find demonstrated unnecessary hardship “[t]o justify the grant of a dimensional variance, courts may consider multiple factors, including the economic detriment to the applicant if the variance was denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood.” Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 554 Pa. 249, 264, 721 A.2d 43, 50 (Pa. 1998).

Section 1321.04(e) of the Ordinance states that the CA district is “designed to facilitate commercial enterprises which are definitely enhanced by proximity to a major thoroughfare, are associated with automobile shopping and are not particularly compatible with a retail business or a Commercial Shopping District.” Appellant seeks a variance from Section 1321, Appendix A, which sets forth the minimum yard requirements for a lot in the CA district including 30 foot setbacks for front yards, 20 foot setbacks for rear yards and 10 foot setbacks for side yards. Appellant also seeks a variance to the maximum lot coverage for a lot in a CA district at 30% in Section 1321, Appendix A.

Appellant claims that the ZHB erred or abused its discretion in denying the dimensional variance. Appellant claims that a variance can be granted based on the factors set forth in the MPC and in Section 1307.08 of the Ordinance.

Appellant first argues that the Property, which is 15 feet wide and 101.50 long, is irregular and extremely narrow in shape. This, he asserts, demonstrates the unique physical circumstances and conditions present in the Property.

Appellant next argues that given the requirements for maximum lot coverage of 30% and for minimum setbacks, the Ordinance precludes any reasonable use of the Property. Appellant maintains that the size and shape of the Property would render it useless without a variance. Specifically, to comply with all the setback requirements and the maximum lot coverage, the entire Property would be prohibited from use.

Appellant further contends that the unnecessary hardship is not self-inflicted, but is instead created by the unique characteristics of the property coupled with the Ordinance requirements. Citing Sombers v. Stroud Twp. Zoning Hearing Bd., Appellant states that “a landowner’s hardship is self-inflicted only where he has paid a high price for the property because he assumed that a variance which he anticipated would justify that [high] price.” 913 A.2d 306, 312 (Pa.Cmwlth. 2006). Appellant claims that such is not the case in the instant matter as he merely purchase the Property intending to use it as it was. Furthermore, Appellant argues that he did not create or change the physical characteristics of the Property, but such hardship was present prior to his acquisition of the Property.

Appellant upholds that the grant of the variance would not alter the essential character of the neighborhood or be contrary to the public interest because his intended use would comply with the uses permitted under the Ordinance. Appellant states that surrounding properties are similarly narrow with unique dimensions and include buildings that exceed the 30% maximum lot coverage. Therefore, his usage on the Property would not alter the characteristic of the neighborhood if the variance was granted.

Appellant then cites to the preceding factors in support of his assertion granting the variance would present the minimum variance affording relief and representing the least modification possible. Appellant argues that unlike “other buildings in the surrounding area, Appellant’s Building does not occupy the entire portion of the land, but is located in the center of the Property and is easily capable of being with the Property’s boundary lines.” (Appellant’s Br. 12).

Appellant finally attacks the ZHB’s conclusion that the grant of the variance is not de minis. Again, referring to the preceding factors, Appellant alleges that the grant of the variance is “one of the few reasonable uses” for the Property and “reasonably represents a minimum use and minimum variance. (Appellant’s Br. 12-13).

The ZHB counters that its decision is properly supported by substantial evidence. The ZHB concluded that Appellant’s asserted hardship was self-inflicted, the variance requested does not represent a minimum variance and that the variance does not represent the least possible modification of the regulation that would afford relief. The ZHB argues that Appellant inflicted the hardship upon himself in contracting to have the Building installed without obtaining the appropriate permits as required under the ordinance. Furthermore, Appellant’s requested variance is not de minimis.

Our review of the record, reveals that Appellant presented no testimony or evidence of an undue hardship at the hearing before the ZHB. Additionally, Appellant failed to present any evidence of other claims made on argument to this court.

Our scope of review in land use appeals where we have not received additional testimony or evidence is “limited to determining if there was abuse of discretion or error of law by the zoning hearing board.” Appeal of Rizzone, 490 A.2d 26, 29 (Pa.Cmwlth. 1985). As stated above, the ZHB abuses its discretion when its findings are not supported by substantial evidence. See 53 P.S. § 11005-A.

The ZHB found that Appellant contracted to have the Building erected without obtaining the required permits. This finding is supported by the record. The ZHB further found that the Building does not meet the required setbacks as set forth in the Ordinance. Again, these findings are undisputed and supported by the record.

While our Supreme Court provided a relaxed standard for dimensional variances in Hertzberg, such a relaxed standard does “not alter the principle that a substantial burden must attend all dimensionally compliant uses of the property, not just the particular use the owner chooses.” Yeager v. Zoning Hearing Bd. of the City of Allentown, 779 A.2d 595, 598 (Pa.Cmwlth. 2001)(emphasis in original). Appellant failed to present any evidence or testimony to demonstrate that the Property could not be developed in conformity with the Ordinance, but merely asserts that no reasonable use is possible.

We agree with the ZHB that any undue burden was self-inflicted by Appellant’s actions in having the Building erected without seeking proper permits as required.   Citing to Sombers v. Stroud Twp. Zoning Hearing Bd., Appellant asserts that no such finding of self-inflicted burden can be found without finding that the landowner “has paid a high price for the property because he assumed that a variance which he anticipated would justify that [high] price.” 913 A.2d at 308 (Pa.Cmwlth. 2006). However, we disagree with Appellant.

In the case of Appeal of Gro, 269 A.2d 876 (Pa. 1970), in which the Pennsylvania Supreme Court first articulated the argument Appellant now presents, the Court clearly limited its holding by stating that such a finding of unnecessary hardship is applicable when a case is brought by either an equitable owner, whose interest is promulgated by a pending sale conditioned on the grant of a variance, or the original owner who seeks to “test the restriction by showing he cannot sell the property because of the zoning restrictions.” Id. at 880.

In the instant matter, such is not the case. Clearly the undue hardship Appellant faces is self-inflicted. Appellant contracted to have the Building constructed without first ensuring that the required permits were obtained. Appellant now seeks a variance so that action already taken can be justified. Allowing such a result would render the ZHB impotent. “The zoning power is one of the tools of government which, in order to be effective, must not be subjected to judicial interference unless clearly necessary.” Id. at 879. As our Commonwealth Court has stated: “There is a strong policy against assisting landowners who violate a zoning ordinance, whether negligently or intentionally, long apparent in this Court’s jurisprudence.” Appletree Land Dev. v. Zoning Hearing Bd. of York Twp., 834 A.2d 1214, 1218 (Pa.Cmwlth. 2003). Therefore, we affirm the decision of the ZHB in denying Appellant the requested variance.

 

 

 

 

 

 

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