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West Penn market owners appeal zoning board rulings

Published January 02. 2013 05:02PM

Operators of a farmers market have filed appeals in Schuylkill County court to reverse the action of the West Penn Township Zoning Hearing Board's findings that they violated the township's zoning ordinance.

The appeals was filed by Steven and Valerie Dunn, of 59 Peach Drive, New Ringgold, who operate a roadside produce stand at the intersection of state routes 309 and 443 in South Tamaqua.

The Dunns have filed the appeals seeking a review of the decisions of the township's zoning officer, Herb Woodring, and the zoning hearing board and are asking the court for an interpretation of the township's zoning ordinance with regard to the rulings made by the zoning hearing board.

The buildings at the disputed property consists of a main building which is two sheds put together to form one building, a canopy behind the main building, a concrete pad in front of the main building, which is covered by a canopy, an ice cream trailer, a sign on top of the produce stand from which they sell agricultural products, also scented oils, crafts, and Leiby's ice cream and ice cream sundaes.

They appeal from a number of zoning violation citings as follows:

Failure to obtain a permit for seasonal roadside stand and portability. The zoning officer ruled that the zoning permit for the property was originally issued for a seasonal roadside produce stand and no further zoning permit was obtained.

The zoning hearing board ruled the expansion of the business, both in size and product, requires a permit and the failure to remove the buildings at the end of the season is a violation of the zoning ordinance for failure to secure the appropriate permits.

Failure to obtain permit for the seasonal roadside stand and portability section of the zoning ordinance. The board ruled the ordinance defines seasonal roadside product market as an accessory use for the sale of dairy, farm, greenhouse or nursery products and by the Dunn's selling candles, crafts, and scented oils are not included in the list of permitted products and also that the space occupied by all buildings or structures exceeds 800 square feet and are not removed in the off-season.

Failure to obtain a certificate of use and occupancy permit. The board ruled the ordinance requires a use and occupancy permit for the seasonal roadside stand

Failure to secure permit for placing an ice cream truck on the property which sold ice cream. The zoning hearing board ruled the ordinance defines an accessory use as, "A use subordinate and customarily incidental to the principal use on the same lot"; and that the Dunn's failed to acquire a permit for the ices cream truck.

Failure to get a permit for erecting a sign on top of the market. The board ruled the ordinance requires a permit for any sign exceeding two square feet in area and that the Dunn's failed to acquire a permit for the Dunn's Farm Market sign.

Failure to obtain permit for erection of a canopy and pad. The Dunn's erected a canopy to the rear of the two main structures on the property and further erected a concrete pad to serve as a base for the canopy. The board ruled the zoning ordinance defines structure in part as follows, "Any man-made object having an ascertainable, stationary location on or in land or water, whether or not affixed to the land." The term structure shall include: building, signs, fences, walls, towers, swimming pool, porches, garages and similar structure. The board concluded the canopy and pad meet the definition for a structure which requires a permit.

The township Zoning Hearing Board, whose members are, Anthony J. Prudenti, David Imschweiler and Ronald Calarco, upheld the appeals of the Dunn's from the following violation charges:

Off-Street Parking - The board ruled it was unable to determine the number of employees or the actual square footage in use which relates to off-street parking and the appeal was sustained.

Driveway Ordinance - The board ruled it has no jurisdiction to hear appeals on violations of the township's driveway ordinance because the ordinance clearly provides that any person found to be in violation of the driveway ordinance shall be guilty of a summary offense and summary offenses are not within the board's jurisdiction

Land Development Plan - The board ruled it has no jurisdiction in matters involving land development plan.

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