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John S. Morrell and Nancy L. v. the Zoning Hearing Board of the

April 4, 2011

JOHN S. MORRELL AND NANCY L. MORRELL, APPELLANTS
v.
THE ZONING HEARING BOARD OF THE : BOROUGH OF SHREWSBURY, PENNSYLTUCKY, : LLC AND JOEL ZALDIVAR :



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Argued: December 6, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE McCULLOUGH

John S. Morrell and Nancy L. Morrell (Objectors) appeal from the March 24, 2010, order of the Court of Common Pleas of York County (trial court), affirming the October 8, 2009, decision of the Shrewsbury Borough Zoning Hearing Board (Board), which granted Pennsyltucky LLC's application for a special exception to operate a restaurant. We affirm.

Pennsyltucky LLC owns real property located at 14 North Main Street, Shrewsbury Borough, York County, Pennsylvania (Property) in a village zoning district. On July 16, 2009, Pennsyltucky applied to the Board for a special exception to operate a restaurant*fn1 with a business office pursuant to section 205.3(b) of the Ordinance, which permits the use of the property as a retail store or personal service business by special exception. The Board and respective parties reviewed the application pursuant to section 205.3(a) of the Ordinance, which provides as follows:

Uses by Special Exception: The following principal uses shall be permitted as Special Exceptions when authorized by the Zoning Hearing board. The Zoning Hearing Board shall hear and decide requests for such use according to criteria established in PARTS V and VI of this Ordinance.

a) Eating establishment.

On August 13, 2007, the Board held a hearing at which the proposed lessee of the Property, Joel Zaldivar (together with Pennsyltucky, "Applicant")

appeared before the Board. Zaldivar testified that he wanted to open a restaurant specializing in handmade sausages, cured and smoked meats, cheese, and bread that would be sold as part of a menu and for carry-out. Smoking would take place in an indoor electric smoker that would be vented through the roof. The restaurant would offer breakfast and lunch from 7:30 a.m. to 4:00 p.m. and dinner, by reservation, on Fridays and Saturdays, with the last seating at 8:30 p.m. and the restaurant closing by 11:00 p.m. Zaldivar proposed constructing a ten by twelve patio at the rear of the property for outdoor dining and a stick-built addition for indoor dining. Altogether, the restaurant would accommodate up to fifty-five patrons. Zaldivar testified that he would install a fire suppression system, a new electrical system, and appropriate drainage as required to comply with the Borough's building code. Zaldivar also presented a letter of support signed by twenty-one of the neighboring property owners, including both adjoining property owners. Fifteen of the twenty-one property owners who signed the letter also appeared before the Board to testify in support of the proposed use of the Property as a restaurant.

Objectors*fn2 appeared before the Board in opposition to the proposed use of the Property as a restaurant. Objectors testified that the restaurant is not set back fifteen feet from adjoining properties as required by section 607(b) of the Ordinance which, in pertinent part, provides that "all buildings must be set back at least 15 feet from any property line and 15 feet from a street line." Objectors also expressed their belief that the proposed use of the Property presents an increased risk of fire, which is contrary to the public health, safety and welfare. Finally, Objectors asserted that the restaurant will disrupt the peace and quiet enjoyment of their home, which is located directly behind the Property.

By decision dated October 8, 2009, the Board granted Applicant a special exception to operate the restaurant, concluding that Applicant met all of the general and special standards required for an eating establishment. (Reproduced

Record (R.R.) at 2a.) The Board acknowledged that the Property did not meet the setbacks required by section 607(b) of the Ordinance, but concluded that the pre-existing nonconforming setbacks established on the lot were at least equal to the average setbacks of existing adjacent properties as required to comply with section 406 of the Ordinance.*fn3 Section 406 of the Ordinance provides the following for lots of record located in any of the Borough's zoning districts:

On a lot held in single and separate ownership on the effective date of this Ordinance or any amendment thereto, which does not fulfill the regulations for the minimum lot area and/or lot width for the district in which it is located, a building may be erected, altered and used and the lot may be used for a conforming (permitted) use providing setbacks established on the lot are at least equal to the average setbacks on existing adjacent properties.

(emphasis added.) The Board also observed that the Property has an area of 8,712 square feet and a width of 33 feet, which does not satisfy the minimum area and width requirements of section 205.4 of the ...


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