NEWS

The wall will stand on Greencastle property

PAT FRIDGEN, Echo Pilot
Bud and June Marshall do not have to tear down the wall they constructed without first getting a land use permit. They successfully appealed the borough decision that the structure did not meet regulations, and received a variance from the Zoning Hearing Board.

It all came down to the definitions of wall, retaining wall and fence.

Waldo “Bud” Marshall and his wife June appealed a land use permit denial by Greencastle zoning officer Susan Armstrong for a brick wall constructed on their property at 160 S. Washington St. without going through proper channels.

Zoning Hearing Board chair Michele Emmett and members Emile Charest and Gerald Pool heard arguments from two sides before ruling on Marshall’s request for a zoning variance for the wall constructed last May and June on the northern side lot line of his residence.

In November Marshall heard “street talk” that there was a problem with his wall, he told the board and its solicitor Jeffrey Evans at a hearing Jan. 26. A pressure-treated wooden two-foot retaining wall, which corrected the grade in his back yard, and a five-foot fence on top of it had become unsightly and unstable.

“We considered this unsatisfactory,” Marshall said.

He told his neighbors he intended to replace them and received the people’s  approval. The contractor notified PA One Call before digging, and borough personnel came out to mark the water and sewer lines, Marshall testified.

He built a six foot high, 36 foot long brick wall.

“We did not know we needed a variance,” he said. “We thought everything we did was right.”

Arguments

Marshall said the fence was needed for insurance purposes and to meet borough code requirements for a back yard pool.

According to borough ordinances, a retaining wall may be at the lot line or wherever needed, a fence must meet a five-foot setback, and a wall fell into the accessory building category, which meant it had to be a minimum of five feet from the property line.

No height restriction was attached to a retaining wall in the code. A wall could contain masonry materials, but a fence could not.

Armstrong had denied the belated permit application.

“Under the definition of a wall, it is a manmade barrier used as a line of demarcation to separate an area, but not as a base for a fence,” she said. “I acknowledge there is some  merit for the soil being retained. It is difficult for me to say it takes five feet of wall to retain two feet of soil.”

Duane Kinzer, owner of Century Inc., and his lawyer A. J. Benchoff, agreed with her. Benchoff got Marshall to admit the fence portion could have been built elsewhere to meet the setback.

“It would look stupid, but yes,” Marshall said.

Kinzer had photos of other retaining walls in Greencastle, which were as high as the ground they were supporting.

“I’m here to see the borough is enforcing its ordinances,” he stated.

Lucy Schemel, neighbor to the north, testified that the wall was an upgrade to the previous one and her family had no problem with it.

Benchoff concluded, “The language is clear in the ordinance. This does not pass the straight face test. It is not a retaining wall.”

The verdict

After 30 minutes of deliberation, the Zoning Hearing Board said it was indeed a retaining wall and the borough should issue Marshall a land use permit.

Emmett said there were contradictions in the ordinance. Because the code did not restrict the height of retaining walls, the three members had determined this was one.

“It wouldn’t hurt for borough council to review the ordinance,” she said.

The board had 45 days to write its decision, followed by a 30-day appeal period to the Franklin County Court of Common Pleas, should anyone choose to oppose the ruling, said Evans.