Appeal from the Order of the Court of Common Pleas of Cumberland County in the case of Borough of Mechanicsburg v. Mechanicsburg Zoning Hearing Board, No. 1977 Civil 1985.
William L. Sunday, Borough Solicitor, for appellant.
Marlin R. McCaleb, Board Solicitor, for appellee.
Joseph Fortuna, amicus curiae, for himself.
Judges MacPhail and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge Doyle dissents.
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The Borough of Mechanicsburg (Borough) appeals from an order of the Court of Common Pleas of Cumberland County affirming a decision of the Mechanicsburg Zoning Hearing Board (Board) which granted an application for a variance to Joseph Fortuna (Fortuna) at
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Charles Street, Mechanicsburg, Cumberland County, Pennsylvania. We affirm.
The primary issue presented for our resolution is whether the trial court erred in affirming the Board's grant of variance to Fortuna. Additionally, Fortuna has filed an amicus curiae brief whereby he complains that he did not receive proper notice of the appeal to the Commonwealth Court. Therefore, we must also address whether Fortuna received appropriate notice of the appeal to this Court.*fn1
Fortuna is the owner of a one story brick residential dwelling. The lot has a width of 81 feet and a depth of approximately 135 feet for a total lot area of 10,935 square feet. The front of the house is set back a distance of 30.5 feet from the front property line. The side yard to the east of the home is 11' 9" wide and the side yard to the west of the home is 11' 4" wide. Along the western side of the home is a carport which is 28 feet deep and approximately 10 1/2 to 11 feet wide. However, a chimney protrudes from the wall of the home, and at this point, the carport has a width of approximately 9' 4".
A variance has been requested by Fortuna in order to enclose the carport which is attached to his home into a garage, and because of the protruding chimney it is required that the western wall be extended six feet into the side yard in order to allow sufficient space for opening and closing car doors. This extension would reduce the western side yard to 5' 4".
The Fortuna property is located in an area zoned R-1 low density residential. Section 201.2 of the Mechanicsburg Zoning Ordinance (Ordinance) requires that side yards in R-1 low density residential districts must
[ 112 Pa. Commw. Page 267]
consist of a total of 30 feet for the two side yards, with a minimum requirement of 12 feet on one side. Thus, the Fortuna property and carport as it currently exists is non-conforming to the Ordinance's side yard requirements and Fortuna's request is to expand an already non-conforming use. No citizens have objected to the grant of the ...