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LOWER PROVIDENCE TOWNSHIP ZONING HEARING BOARD APPEAL APPLICATION AMENDMENT


  1. Type of Appeal Sought:

    Variance Appeal X

    Special Exception Appeal

    Interpretation of Zoning Ordinance X

    Enforcement Notice Appeal

    Other Appeal _(Describe)


    You must list all sections of the Lower Providence Township Zoning Ordinance in which you are seeking zoning relief from on the following lines: (Please note that if this section is not complete, the appeal will not be heard)


    In addition to those Sections already submitted, Section 143-77.B(4)(e) i. Variance, or ii. favorable interpretation


  2. State in narrative form the nature of your appeal including the primary relevant facts intended to be presented to the Zoning Hearing Board. Please include a description of all explosive or toxic materials to be stored on this site. Please reference to your attachment if additional space is needed.


    1. Variance: Exceptional topographical conditions make the reasonable permitted development of the property impossible without extraordinary expense and difficulty. ii. Favorable interpretation: the ordinance states: “At least 20% of the proposed site of a life-care facility, not including land subject to flooding or on slopes in excess of 5%, shall be developed for passive recreation, including, but not limited to, outdoor sitting areas, decks, patios, gazebos, picnic areas, and pedestrian walks.” This section should be interpreted to mean that the total area, for calculation of the passive recreation requirement, should be a minimum of 20% of the proposed site of a

life-care facility, not including land subject to flooding or on slopes in excess of 5%.


17. (I) (WE) believe that the Board should approve this request because: (include the grounds for the zoning appeal or reasons both with respect to case law and fact for granting this use requested. Please reference to your attachment if additional space is needed.)

  1. Variance to Section 143-77.B(4)(e)


    Following the most conservative calculation of total passive recreation space required and total passive recreation space available, the Applicant believes that it requires a Variance to be permitted to develop a total of 2.22 acres or 10.34% of the total site acreage rather than the 20% required by Section 143-77.B(4)(e). If the Applicant were permitted to locate passive recreation in areas subject to flooding then it could allocate much more of its site to passive recreation.


    § 143-168

    Specific standards for variances and special exceptions.


    A. Variance. The Board shall hear requests for variances where it is alleged that the provisions of the Zoning Ordinance inflict unnecessary hardship upon the applicant. The Board may grant a variance, provided that all of the following findings are made where relevant in a given case:


    1. That there are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions and not the circumstances or conditions generally created by the provisions of the Zoning Ordinance in the neighborhood or district in which the property is located.


      As one can see from the plan of existing site features, and for anyone who knows the property along the Perkiomen River, there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located, specifically, exceptional topographical conditions peculiar to the property, which can be minimized, but which must be addressed to allow reasonable use of the property.


    2. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the Zoning Ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.


      Because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.


    3. That the unnecessary hardship has not been created by the applicant.

      The hardship has not been created by the applicant but is inherent in the property.


    4. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.


      The variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare. The permitted use is in conformity with the Zoning District and will enhance the character of the neighborhood, will aid the appropriate use or development of adjacent property and will not be detrimental to the public welfare.


    5. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation at issue.


    The variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue. There is no less variance that will allow for the reasonable permitted use of the property. The plan and requested variance have been crafted to provide the minimum required variance to the Ordinance to allow for the reasonable use of the property.


    SEE case law attached to Application


  2. favorable interpretation to Section 143-77.B(4)(e)


The existing site, not including land subject to flooding or on slopes in excess of 5%, is a total of

3.17 acres of ground (including building area and pavement). 20% of 3.17 acres equals 0.634 acres. 0.634 acres is 20% of the total area of the (existing) site “not including land subject to flooding or on slopes in excess of 5%.” Applicant can meet the requirement to provide 0.634 acres of passive recreation and its plans meet the requirements of the Zoning Ordinance with respect to Section 143-77.B(4)(e).

The plain language interpretation of Section 143-77.B(4)(e) leads to the conclusion that the area to be developed for passive recreation should only be calculated using the total “proposed site of a life-care facility, not including land subject to flooding or on slopes in excess of 5%.”

The question can be raised whether the Supervisors meant 20% of the site not located in a floodplain and not on a slope of 5% shall be developed for passive recreation, however, that does not reflect the apparent reading or meaning of the language. It does not say, not located in, it says “not including.” Areas “subject to flooding” can be elevated or dyked, slopes can be regraded, there would be no reason to prohibit the development of an area with a slope of 6%

into an area or amenity suitable for passive recreation. No, the meaning must have been that the calculation of the 20% required to be developed is based upon the total area of the site of a life- care facility exclusive of “land subject to flooding or on slopes in excess of 5%.”


At least 20% of the proposed site of a life-care facility, not including land subject to flooding or on slopes in excess of 5%, shall be developed for passive recreation, including, but not limited to, outdoor sitting areas, decks, patios, gazebos, picnic areas, and pedestrian walks.