Agenda - Planning Commission - 02/06/2003

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goB. December 24, 2002 -- Page 7 Variance -- Developer seeks to build office buildings - Zoning board den. les, claiming departure from zoning ordinance· PENNSYLVANIA (11/14/02)-- Pine Creek Properties submitted a proposal to the zoning hearing board of the Town of McCandless seeking permission to build two three-story office buildings connected' by an atrium. The property was a steeply sloped vacant tract. Almost slx acres of land would need to be disturbed for the proposed construction becaUse the board considered property with a slope of Over 20 percent marshal for development. The land use. administrator informed Pine Creek that based upon the town's interpretation of certain sections of its zoning ordinance, Pine creek had' to revise its site plan and application. Under the zoning ordinance, a site capacity analysis was required. This included' subtracting the resource protection area from the total available area for development. The resource protection area which, dUe to slopes or other characteristics, was unable to be regraded or developed·in any way. Pine Creek filed a' notice of appeal with the board, claiming the term "build- able land" was not defmed in the zoning ordinance. Pine Creek also requested variances so it could disturb more of the property than Permitted in the ordi-' nance. Pine Creek believed "buildable land" represented a temporary calcula- tion used to determine actual limitations on development. It also-claimed the term had to be construed to allow the broadest possible use of the land. - In opposition, the town contended that "buildable land" was the area of the base site minus the resource protection land. The board found "buildable land" was not ambiguous. It also denied the variances because they would be a serious departure from the zoning ordi~ nance due to the steep slopes and vegetable growth on the property, Pine Creek sued, and the trial court ruled in favor of the board. Pine Creek appealed. DECISION: Affirmed. Pine Creek was not entitled to the. variances and "buitdable land" was not ambiguous. Because the site was so steeply sloped, the subject property had a resource p.rotection area. of 5.47 acres that couldn't be disturbed. That area was sub~ tracted from the total base site area of 7'.65 acres to arrive at the total "buildable land." To allow otherwise would mean Pine Creek could excavatethe resource protection area, which would make the slope more-severe and violate'the zon- lng ordinance's intent to preserve the natural topography-and wooded sl0pelands of the area. A variance did not need to be granted because-a dimensional requirement. prevented or financially burdened a property owner's ability, to employ his or her property exactly as he or she wished. A variance was appropriate· only where· the property, not the person, was subj.ect to hardshipl Pine Creek did not prove it would suffer an unnecessary hardship if it Was unable to develop the land in accordance with its proposed use. I 113