Agenda - Planning Commission - 12/07/2006

Home

Page 6 - November 25,2006 Z.B. The appeals court stated that a board may properly impose conditions on property and land use. However, where there is an ambiguity on the face of a variance, the ambiguity must be resolved against the party holding the varIance. The central question in this case was whether the variance, which allowed for the construction of a 22-square foot attached garage, also allowed for the construction of a second floor living area. Words that are undefIned by zoning laws are construed in accordance with their customary usage. A garage is generally used as a place to store motor vehicles and household items. Since the use of the second story as living space fell outside the accepted definition of a garage, then the proposed use violated the terms of the variance. The court also found that a portion of the proposed second floor addition was outside the 22-square foot plan specifIed in the original variance. As such, the lower court's decision was reversed. see also: DiGiovanni v. Board of Appeals of Roclcport, 474 N.Ed.2d 198 (1985). Statute of Limitations - Property owner who was denied variance for tower claims due process violations Borough passes ordinance, rezones its own property to allow tower Citation: Stawairski v. Summit Hill Borough, U.S. District Courtfor the Middle District of Pennsylvania, No. 3:06-CV-0668 (2006) PENNSYLVANIA (10/20/06) - Stawairski owned land in Summit Hill Borough. In March 2001, he leased the property to SBA Properties Inc. for the placement of a cell phone tower. SBA fIled variance requests in April and May 2001. SBA's applications were denied by the borough, and Stawairski appealed. The zoning board held a hearing in August, but it also denied the approval of the applications. In December, the borough passed a new ordinance regulating cell phone to~er~., and it rezoned a parcel of land that it owned so that it would conform to the ordinance. Then, in July 2002, the borough leased the land to Atlas Tower .:Network Inc. Atlas fIled a zoning application in May 2003, which was approved without a hearing. Stawairski sued the borough, claiming that it had violated his due process rights. The borough asked the court to dismiss the claims. DECISION: Dismissed. There was a two-year statute of limitations for constitutional due pro- cess violation claims. In zoning cases, the date that triggered the statute of limitations period was the date that the zoning board denied the zoning application. Here, the date of the original permit denial was in May 2001. Even con- @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 78 .-::.;;.;......... . , \ / \ }