BZA Morris June 21, 2011

The Newbury Township Board of Zoning Appeals public hearing was called to order by Ms. Mary Lee Brezina, Vice Chairman, at 7:30 p.m. on June 21, 2011 with Board members, Bill Skomrock,Sr., Tezeon Wong, Ken Blair (sitting for Glen Quigley) and Chris Yaecker (sitting for Ray Fidel) present. Ms. Endres distributed photos of the site for board review.

All in attendance for this hearing were duly sworn and asked when testifying to state their name and confirm being sworn in. Mary Lee Brezina read the applicants request:

Paul & Tamara Morris request an area variance to construct an 864 sq.ft. detached garage 10 ft. from the north side lot line at 14605 Stone Rd. in the R-1 district (vs. Art. V, Sec. 5.05 req’d 30 ft. side setback).

Ms. Brezina asked the applicant to state his case. Mr. Morris said he wants to build a replacement 3 car garage 10 ft. from the north side property line because the lot drops off sharply to a ravine on the south side. Before building the new garage he will tear down the old garage that has structural foundation issues on the south and east sides. The new garage will be 3 cars wide but have only 2 single garage doors.

Mr. Yaecker asked whether this would be a pole barn structure? Mr. Morris said no - it will have a permanent foundation. He purchased the property about 3 years ago and pointed out the location of the septic between the house and old garage and well in the front yard.

Ms. Endres asked what the buildings were close to the lot line. Mr. Skomrock Sr. asked if the newer building had a permanent foundation or was it moveable. Mr. Morris indicated that one had been torn down and the other could be moved to a more suitable location – to be determined.

Mr. Wong asked whether the new garage site was the best possible location – Mr. Morris answered it was the only site given the topography restrictions to the rear and south. The foundation of the old garage is splaying out due to the sloping foundation.

At this time Mr. Larry Morrison, neighbor to the north asked to speak. He said the former owner had dumped fill dirt to level the slope, then built the old garage that now has its foundation sliding out from under. He said he is here to support Paul Morris and has helped him install drainage to correct and divert the water run-off down the slope. He verified that the new garage site is the only solid suitable base.

Ms. Endres confirmed that a 1961 permit existed to build the old garage. Mr. Skomrock asked whether the new gable ran north-south – Mr. Morris could not confirm. Mr. Yaecker asked if he had contracted a builder – yes. Neighbor Ryan Endres (via Karen Endres) had no objections.

Ms. Brezina suggested moving the garage 5 to 10 feet further to the south. She pointed out that he may not always own this property and a new neighbor may object to this structure so close to the line. Mr. Morrison confirmed he had his property surveyed and could locate the stakes to accurately establish the north property line. Mr. Yaecker agreed it was a challenge to locate an alternate site due to the topography sloping to the south. Mr. Morrison said he had built a French drain to redirect the water away from the house and into the swale along the north property line. He added that Paul Morris in industrious and a hard worker – an asset to the neighborhood.

Mr. Wong suggested revising the setback to 15 feet to forestall future problems. Mr. Morris agreed to amend his application from 10 ft. to a 15 ft. north side setback.

Ms. Endres said she still had questions about the location of the other accessory (10’ x 14’) structure built without a permit and should have been within the allowable setbacks. Mr. Morrison said this building replaced an older one that had been damaged during a storm by a falling tree crushing bicycles and contents – he agreed it could be moved into compliance. Ms. Endres said she was unaware of this accessory structure till she took photos (6/20) and it could not be combined with the garage variance as it had not been advertised.

There being no more questions, Ms. Brezina called for a motion stating that a yes vote would grant the variances.

Tezeon Wong moved to accept the 15 ft north side setback (was 10 ft.) variance for the amended site plan as requested; Bill Skomrock seconded the motion. Ms. Endres pointed out that this 15 ft. north side setback would impact the south setback that would now have a 29 ft. setback requiring it to be included as a variance. The board unanimously agreed to revise the 15 ft to 14 ft. to avoid a second variance. Mr. Morris agreed as well.

A roll-call vote was as follows:
Tezeon Wong yes
Bill Skomrock, Sr. yes
Chris Yaecker yes
Mary Lee Brezina yes
Ken Blair yes

Ms. Brezina informed the applicant his variance request was granted.

Ms. Brezina read to the Appellant and audience, “Within 30 days after service of the minutes granting your request, if someone wishes to challenge this decision through the court, he or she may. The challenge could reverse or negate our decision. Ms. Brezina informed the Appellant and the audience that the 30-day period commences with the Appellants’ signing receipt of the signed minutes. They will be mailed registered return receipt to the Appellant. All persons receiving notice of the hearing will receive copies of the minutes. At the time you receive your permit you must also comply with all other requirements of Newbury Township zoning”.
Ms. Brezina adjourned the BZA hearing at 8:10 p.m.

As the applicant left, Board members wished him good luck.
Board members resumed their meeting to establish the conclusions of fact:

Based on the following FINDING OF FACTS for the revised variance requested:
1) The parcel could yield a reasonable return without the variance but the larger garage replaces an old unsafe garage improving overall value.
2) The variance is substantial but reasonable considering the restrictive rear and south lot topography.
3) The essential character of the neighborhood would not be substantially altered and the adjoining property owners would suffer no detriment as a result of this variance.
4) The variance has no effect on delivery of governmental services.
5) The property owner was unaware of the zoning restrictions at the time of purchase.
6) The owner’s predicament could not be obviated through some method other than the variance to meet both side setback requirements on this 80 ft. wide lot.
7) The spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance. Such other criteria, which the Board believes relates to determining whether the zoning regulation is equitable; the new garage will be safer and also enhance the property. There were no adjacent property owners in attendance to object.

Ms. Endres shared her concerns regarding recent zoning incidences with the board. Several recent court appeals were discussed relating to agriculture, wineries, conditional uses, specific answers to Duncan Factor questions - SUBSTANTIAL has been identified as anything over 25%, etc. She indicated that model zoning allows for separate setbacks for principal uses and accessory buildings; several townships have adopted such distinctions. Given that many recent BZA hearings involved accessory building setbacks, a recommendation could be made to the Zoning Commission to adopt new setback rules thus reducing BZA hearings for that purpose. She cited the permitted “within the original house envelope” expansions as eliminating about 30% of variance requests for older-zoned houses.

Ms. Brezina adjourned the meeting at 8:25 p.m.