Appeal from the Order of the Court of Common Pleas of Lancaster County, in the case of In Re: The Appeal of Titus Shirk from the decision of the Zoning Hearing Board of Salisbury Township, No. 2364-1985, and In Re: The Appeal of Salisbury Township from the decision of The Salisbury Township Zoning Hearing Board, No. 2680-1985.
James R. McManus, IV, with him, Thomas L. Goodman, Goodman & Kenneff, for appellant.
James H. Thomas, with him, Frank J. Vargish, III, Blakinger, Byler, Thomas & Chillas, P.C., for appellee.
Judges Doyle, Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.
[ 114 Pa. Commw. Page 494]
This is an appeal by Salisbury Township from a decision of the Court of Common Pleas of Lancaster County which determined that the construction of certain single family dwellings on property owned by Titus Shirk (Shirk) were permitted uses pursuant to Article V, Section
[ 114 Pa. Commw. Page 495]
OS.02(e)(5) of the Salisbury Township Zoning Ordinance (Ordinance).
Shirk is the owner of certain property known as Lots 22 and 23.*fn1 Portions of Lots 22 and 23 are located in both Caernarvon Township and Salisbury Township. On April 9, 1981, portions of Lots 22 and 23 located in Salisbury Township were rezoned as part of Salisbury Township's Open Space (OS) District and therefore were made subject to Section OS.02(e)(5) of the Ordinance. Section OS.02(e)(5) of the Ordinance provides that permitted uses in the OS District include "[p]ermanent single family residences, erected on minimum one (1) acre lots, when the residential building is within 500 feet of any existing state or township road. . . ." (Emphasis added.) In 1982, Caernarvon Township accepted dedication of Ellwood Street. All of Lot 22 and part of Lot 23 are located within 500 feet of Ellwood Street.
On December 6, 1984, Shirk requested building permits from Salisbury Township in order to construct single family dwellings on Lots 22 and 23 from the Salisbury Township Zoning Officer. The permits were denied. On January 3, 1985, Shirk appealed to the Salisbury Township Zoning Hearing Board (Board) requesting an interpretation of Section OS.02(e)(5) of the Ordinance which would permit construction of single family dwellings on Lots 22 and 23 or in the alternative that variances from the 500 feet requirement be granted with respect to Lots 22 and 23. The Board granted Shirk a variance as to Lot 22 based upon the "de minimis" impact the proposed construction would have on the OS District. However, with respect to Lot 23, construction of a single family dwelling was denied because
[ 114 Pa. Commw. Page 496]
the Board interpreted the phrase "existing state or township road" as found in Section OS.02(e)(5) of the Ordinance to require such township or state road to be in existence on or before April 9, 1981, the date of the OS District amendment to the Ordinance.
Shirk appealed to the trial court with respect to the Board's denial of construction of a single family dwelling on Lot 23 and Salisbury Township appealed the Board's grant of a variance with respect to Lot 22. The trial court dismissed Salisbury Township's appeal, but sustained Shirk's appeal noting that the phrase "existing state or township road" was not defined in the Ordinance and was ambiguous. The trial court opined that Section OS.02(e)(5) of the Ordinance must be liberally construed to allow construction within 500 feet of roads in existence at the time of application for permit, and if Salisbury Township had intended a more restrictive interpretation of the phrase "existing state or township road" it could have done so by adding either an appropriate definition or limiting ...