Newtown Township

Board of Supervisor Minutes

August 25, 2004


MINUTES WERE APPROVED at the regular meeting September 8, 2004. MINUTES OF 8/25/04 REGULAR MEETING: Mrs. Goren moved to approve the minutes of the 8/25/04 regular meeting; the motion was seconded by Mr. Harp and passed unanimously.


The Newtown Township Board of Supervisors met on Wednesday, August 25, 2004, in the Township meeting room at 8:00 PM. In attendance were Supervisors: Chairman Richard Weaver, Vice-Chairman Scott R. Harp, Secretary/Treasurer Anne Goren, Member Thomas Jirele, and Member Raymond Goodnoe. Also present were: Planning Commission Chairman Shawn Ward, Township Solicitor David Sander, Township Engineer Gerald Smith, and Township Manager Robert M. Pellegrino.

CALL TO ORDER: Chairman Richard Weaver called the regular meeting to order at 8:00 PM with a moment of silence.

INVOCATION: Given by Bill Heinemann, Clerk of Newtown Friends Meeting. This was followed by the Pledge of Allegiance.

ADDITIONS AND CHANGES TO THE AGENDA: Mr. Pellegrino asked that signing the mylars for the Village at Newtown South be removed from the Engineer’s Report; the Joint Downtown Newtown Corporation report be removed from the Reports of Committees, Boards, and Commissions; the Special Action regarding Little League achievements be postponed to the next meeting; and the appointment of a member of the Zoning Hearing be added under Old Business.

MINUTES, BILLS LIST, AND REPORTS

MINUTES OF REGULAR MEETING OF 8/11/04: Mr. Harp moved to approve the minutes of the regular meeting of 8/11/04; the motion was seconded by Mr. Jirele and passed unanimously.

BILLS LIST: Mrs. Goren moved to pay bills totaling $258,405.00. The motion was seconded by Mr. Harp and passed unanimously.

Mrs. Goren moved to make interfund transfers totaling $8,900.00. The motion was seconded by Mr. Harp and passed unanimously.

REPORTS OF COMMITTEES, BOARDS, AND COMMISSIONS: Deferred - follows Land Development Projects.

LAND DEVELOPMENT PROJECTS

CONDITIONAL USE – K. HOVNANIAN’S FOUR SEASONS – BUCK ROAD AND THE BYPASS – TMP# 29-009-003-001 and 29-009-007: Mr. Weaver opened the hearing on this application and noted that an extension to 10/31/04 was granted by John Mahoney, the applicant’s attorney, in his letter of 8/18/04.

Mrs. Goren moved to continue the hearing on this application to 9/22/04. The motion was seconded by Mr. Harp and passed unanimously.

CONDITIONAL USE – TASTEFUL TEAS AND MORE – 2 SWAMP ROAD – TMP# 29-10-85-007: Donna Liberatore was present to discuss her plan to use an existing vacant building in the PC District in the Village at Newtown Shopping Center for E-5 Eating Place Use and E-1 Retail Use. Mr. Weaver opened the hearing and Ms. Liberatore was sworn in. Mr. Weaver asked if anyone else wanted to be sworn in as a party to the hearing; there was no response.

Ms. Liberatore said she plans to establish a family-oriented tea room, open for breakfast, lunch, and afternoon tea, with an accessory retail gift shop in what is known as the former Sparkles building. The building has been empty for about a year and a half.  The ordinance requires 58 parking spaces and 130 are provided in the immediate area (it was previously reported to the Planning Commission that there were 90 spaces.)

Ms. Liberatore said the first floor would contain the main dining area and a retail gift shop selling tea-related merchandise. The second floor will house a smaller dining area and the kitchen. She hopes to rent the rooms on the third floor to craftspeople or similar vendors. She will add a handicapped restroom on the first floor.

Mr. Sander reviewed the conditions recommended in the 8/19/04 Planning Commission letter. Ms. Liberatore said she is agreeable to all except #3 regarding hours of operation. She said she would like to be able to stay open later on Mothers Day and Fathers Day. Mr. Sander commented that the restriction recommended by the Planning Commission was based on anticipated shortages of parking spaces in the area shared by this and three other businesses.

Mr. Jirele said it did not seem fair to restrict only this applicant’s hours of operation when parking facilities are a shared issue. There was general agreement among the Supervisors that the phrase “from October 31 through April 30” should be dropped from the Planning Commission’s recommendation.

Nancy Crescenzo, a Township resident, asked to speak and was sworn in. She said she is concerned about parking in the area of the proposed tea room.

Mr. Harp moved to approve the conditional use application of Tasteful Teas subject to the following conditions:

  1. Deliveries for the retail use will be by UPS-type trucks once or twice a month; deliveries for the food service will be by UPS-type trucks daily in the early morning hours
  2. There will be an average of six and a maximum of 14 employees on site
  3. Hours of operation will be from 8:00 AM to 4:00 PM Tuesday through Sunday, with occasional evening hours to 8:30 PM
  4. No hazardous materials will be stored or used on the site
  5. There will be no negative environmental effects
  6. Fourteen parking spaces for employees will be provided on the west side of S. Eagle Road
  7. There will be no drive-in service
  8. There will be no alcoholic beverages sold
  9. Approval will be obtained from the Fire Marshal and the Newtown Area Joint Municipal Authority
  10. A Certificate of Appropriateness will be obtained from the Board of Supervisors through application to HARB
  11. The applicant will pay any required traffic impact fees
  12. The applicant will pay all costs of review

The motion was seconded by Mrs. Goren and passed unanimously.

PRD VARIANCE – BECKSTED – 35 HIGH STREET – TMP# 29-5-11: Howard Becksted and attorney Wayne Cordes were present to discuss their request for a variance to allow 42.9% impervious surface where a maximum of 30% is permitted. The applicant has installed a 616 SF crushed stone driveway extension on a 10,243 SF property in the R-1 District.

Mr. Sander noted that the hearing on this request was opened at the 8/11/04 meeting and continued to tonight. The parties are still under oath but the evidentiary record was closed at the previous meeting.

Mr. Cordes said that the only objection to Mr. Becksted’s request was from Mr. Sensibaugh, who is a neighbor and a member of the Planning Commission. He said the ordinance does not prohibit Mr. Becksted from parking his RV on the side of his house, the relief requested is not inconsistent with present conditions in the development, the relief is similar to what the Board has granted other residents in the past, and the RV is parked in this location only three or four months a year.

Mrs. Goren asked if Mr. Becksted and Mr. Sensibaugh were able to come to an agreement since the previous meeting. Mr. Cordes responded that they met but were not able to reach an agreement. He said Mr. Becksted was willing to provide ten arbor vitae plants to Mr. Sensibaugh at his own expense, but this was not enough. Mr. Cordes said this is an open offer to Mr. Sensibaugh even if relief is granted.

Jay Sensibaugh asked to speak and was sworn in. He said that Mr. Becksted’s offer addressed only one of his concerns. The other is the impervious surface ratio. He said he wanted Mr. Becksted to return his property to 40% impervious surface, which is consistent with the ordinance maximum for a PRD. He said he would like this to be a condition of approval.

Mr. Sensibaugh also said he is concerned about how long it will take for the arbor vitae plants to grow tall enough to buffer the RV, and what will happen if the plants die. He would prefer to build a fence along the property line, approximately 10’ to 12’ high, but this would involve obtaining a variance from the Zoning Hearing Board.

Mrs. Goren said Mr. Becksted is seeking only 2.9% more impervious surface than the ordinance maximum, which is usually considered de minimus. Mr. Sensibaugh responded that 30% is permitted and the Board of Supervisors can allow another 10%.

Mr. Cordes said the increase in the impervious surface is de minimus, and Mr. Sensibaugh has already testified that he is experiencing no problems on his property due to the impervious surface.

Mr. Goodnoe moved to grant the variance sought by Mr. Becksted, with the understanding that Mr. Becksted is willing to provide at his own expense ten 6’ arbor vitae plants to Mr. Sensibaugh, with no guarantee regarding their survival. The motion was seconded by Mr. Harp.

Discussion of motion: Frank Mendicino, a Township resident, asked for a clarification of the definition of “structure”. He also suggested that the Zoning Hearing Board fees for the variance Mr. Sensibaugh would need in order to build a high fence be waived.

Mr. Goodnoe said Mr. Sensibaugh has not requested the variance or the waiver, and the Board should not waive the fees under these circumstances. Mr. Weaver agreed that a decision on the waiver of fees could be deferred now.

Mr. Goodnoe’s motion passed unanimously.

REPORTS OF COMMITTEES, BOARDS, AND COMMISSIONS

PLANNING COMMISSION: Commission Chairman Shawn Ward reported on their 8/17/04 meeting, at which they reviewed the conditional use application for Tasteful Teas and More and recommended approval. A conditional use application for K. Hovnanian’s Four Seasons was also discussed; the applicant was asked to return after doing a new traffic count.

The Commission heard a presentation from the Park and Recreation Board about access for the Woll Tract and made several suggestions, although they did not unite on a preferred access option. Seven Zoning Hearing Board applications were reviewed, and the Commission made formal comments on two. They stated they had no objections to the request from Newtown Corporate Center, and recommended that the Board of Supervisors oppose the request of Silver Lake Executive Campus for 10’ X 17’ parking spaces.

A preliminary proposal for a new Transitional Residential zoning district for the Fidler/Roberts tract was received, and the Commission will invite Toll Brothers to attend a future meeting to discuss the proposal more fully. Mr. Ward noted that the proposal did not originate with the Planning Commission but came out of a Board of Supervisors work session. He said the Commission has historically opposed rezoning of this property.

The Commission canceled its scheduled 9/7/04 meeting; the next meeting will be 9/21/04.

MEMBERS COMMENTS: None.

COMMUNITY COMMENTS (FIRST SESSION)

Sue Herman, a Lower Makefield resident, said she asked the municipalities involved in the Traffic Task Force to post the group’s minutes on their websites. She asked if that has been done in Newtown. Mr. Weaver said he spoke with Mr. Pellegrino, who told him this will not be a problem. Other municipalities may create a link to the Township’s website in order to make the minutes available to their residents.

Mike Iapalucci, a Township resident, asked if there has been any response to the Township’s letter to PennDOT concerning the detour signs. Mr. Pellegrino said there has been none. Mr. Iapalucci also asked if anything will be done about the way Stockburger is parking cars at their business. Mr. Pellegrino said he would look into it.

Nancy Crescenzo read a letter from Ed Harrison who was born and raised in the Martindell House. Mr. Harrison asked that the house be preserved for its historic value. Mr. Jirele said he has asked the Joint Historic Commission to study the house; Mr. Pellegrino said the Heritage Conservancy has also been asked to evaluate it.

REPORTS OF OFFICIALS

CHAIRMAN

EXECUTIVE SESSION: Mr. Weaver said the Board of Supervisors met in executive session at 7:00 PM tonight to discuss matters of real estate acquisition.

OTHER BOARD MEMBERS

FINANCIAL PLANNING COMMITTEE: Mrs. Goren reported on the 8/17/04 meeting of the Committee. They heard a presentation by the Delta Development Group and discussed the anticipated loss of non-resident Earned Income Tax. Mrs. Goren said she supported hiring the company to help the Township increase its revenues. Mr. Weaver said he also supports this idea.

SOUTHEAST BUCKS LEAGUE OF MUNICIPALITIES: Mr. Harp reported on their most recent meeting. The proposed transport of nerve gas through the area was discussed. Mr. Harp previously shared some materials on this issue with the other Supervisors.

MANAGER

PLAN EXPIRATIONS Mr. Pellegrino said there are no plan expirations requiring action by the Board.

REQUEST FOR PAYMENT #3 – SYCAMORE STREET PROJECT: Mrs. Goren moved to approve payment #3 on the Sycamore Street project in the amount of $158,528.80, as recommended by Pennoni Associates in their memo of 8/19/04. The motion was seconded by Mr. Jirele and passed unanimously.

SOLICITOR

PUBLIC HEARING – ORDINANCE 2004-O-17- ESTABLISHING STOP INTERSECTIONS IN PHEASANT POINTE: Mr. Weaver asked for comments from the Board and the public; there was no response.

Mr. Harp moved to enact Ordinance 2004-O-17 establishing stop intersections in Pheasant Pointe. The motion was seconded by Jirele and passed unanimously.

ROSE BANK WINERY AGREEMENT: Mr. Sander explained that if the Flemings agree to comply with the draft agreement provided earlier to the Supervisors the Township will drop its opposition to the Flemings’ Zoning Hearing Board application for relief to allow the use of a temporary structure for recurring events. The agreement would be submitted to the Zoning Hearing Board to be attached to any grant of relief.

Mrs. Goren said the requirement that the Flemings cease their use of the tent forever if they violate noise restrictions just once seems overly punitive. She suggested the agreement call for a fine for each violation instead.

Mr. Goodnoe asked if the Flemings will have to go through the land development or conditional use approval process. Mr. Sander said a “non-residential farm building” has to meet only setback requirements.

Mr. Goodnoe said that the Supervisors wanted the ability to review and approve the use of the temporary tent each year, and he did not see this requirement in the draft agreement. There was general agreement with this suggestion, and Mr. Sander said he will discuss this requirement with the Flemings.

Regarding Mrs. Goren’s concern, Mr. Sander said the maximum fine the Township can levy for a violation of the noise ordinance is $1,000. He said the Stonehouse Bistro agreed to a similar provision in their agreement, which required them to stop using their tent if there was one violation, and the Flemings’ attorney did not object to it in their proposed agreement. Mrs. Goren said Mr. Fleming told her in a private conversation that he does not like the provision.

Mr. Jirele said he does not support dropping this provision. He said the winery is in a residential area in the CM District and the agreement will allow the Flemings to run events approximately every other weekend from May to November. He suggested they could build a permanent structure and solve the noise problem.

Mr. Sander asked what criteria the Board of Supervisors will use in reviewing and approving the use of the tent each year. Mr. Goodnoe said his intention was that the Board would review the use itself each year, not the erecting of the tent. Mr. Sander responded that the use is not the issue before the Zoning Hearing Board.

Mr. Jirele said he would like to have the applicant come to a Supervisors’ meeting to explain what uses are planned. Mr. Sander responded that the applicants will have to do that before the Zoning Hearing Board, which may attach conditions if they grant relief. Nearby residents will also have the opportunity to have their concerns heard there.

Mr. Jirele moved to continue the Township’s opposition to the Rose Bank Winery’s variance application and send the Solicitor to the hearing to oppose it. The motion was seconded by Mr. Goodnoe.

Discussion of motion: Mr. Goodnoe said he would like to have the applicant appear before the Board of Supervisors and discuss issues other than noise, including those that are addressed in the land development and conditional use process.

Mrs. Goren said that the agreement will give residents some protection if the Zoning Hearing Board grants the requested variance. Mr. Goodnoe responded that the Flemings would still have to comply with the Noise Ordinance. He also said the Stonehouse Bistro went through the land development and conditional use processes, so this is a different situation.

Jim McCrane, a resident of St. Andrews Briar, said his house is 1,550’ away from the tent on the Flemings’ property. He asked that the Board of Supervisors oppose the variance request and the proposed agreement. He also said that Mr. Harris promised at a previous meeting to share the proposed agreement with him. Mr. McCrane said that the agreement will mean the Flemings will never have to pay permit fees or traffic impact fees, which will deprive taxpayers of some income. He also said the Jointure is working on developing a new ordinance regarding accessory agricultural uses.

Mr. Jirele’s motion failed 2-3, with Mrs. Goren, Mr. Harp, and Mr, Weaver voting “nay.”

Mr. Sander read the terms of the agreement and commented that he still questions on what basis the Township will review and approve erecting the tent annually. If the Board of Supervisors does not approve it their decision would be in conflict with the Zoning Hearing Board’s decision if they grant the variance.

Mr. Jirele asked if the agreement covered unamplified sound at events. Mr. Sander said it does not.

Mrs. Goren moved to approve the agreement as drafted by the Solicitor with the addition of a requirement that the applicant appear annually before the Board of Supervisors for review and approval before erecting the tent. The motion was seconded by Mr. Harp.

Discussion of motion: Mr. Goodnoe suggested waiting to vote on the agreement until Mr. Sander determines if the applicant will agree with the added provision. Mrs. Goren responded that tonight is the last opportunity the Supervisors have to vote on the agreement before the Zoning Hearing Board meeting.

Mr. Weaver said the Supervisors could vote to oppose the application if the Flemings do not agree with to amended version.

Mike Iapalucci said the Township should either allow the tent or not. He objected to requiring the applicant to make a case for the tent each year.

Nancy Crescenzo said she does not understand why the Township is negotiating with the Flemings. She is also concerned about public safety, sanitation, traffic, access, parking, and other issues.

Brandon Wind, a Township resident, asked several questions about the agreement. In response, Mr. Sander said a severability clause is not needed in an agreement, the agreement does not apply to future owners of the property, the applicant cannot challenge the consequences of a violation because it is an agreement that he will sign. If the Zoning Hearing Board does not grant relief the agreement will not exist, even if the decision is successfully appealed. The Township does have standing in any appeal of a Zoning Hearing Board decision regardless of whether they were a party in the original hearing.

Walter Iwaskiw, a Township resident, said the agreement does not cover other concerns like safety, traffic, and parking. He fears that something will happen on this property and the Township will be held liable, which will cost the taxpayers money.

Phil Calabro, a Township resident, said the proposed agreement would set a precedent that would allow anyone to erect a tent illegally. He said the Flemings are also the owners of Shady Brook Farms, and Lower Makefield would not allow them to do similar activities there even though that facility is larger.

Anthony Lauro, of 4 Blayze Court, said he cannot sit outside his home when there is an event at the winery because of the noise. He also asked how the Township would monitor noise violations if the monitoring machine is on the Fleming property.

Karen D’Aprile, a Township resident, said the events at the winery should be in a building to protect the neighbors from the noise.

Jim McCrane said a majority of the residents of St. Andrews Briar have either spoken at a Board meeting or sent e-mails protesting the activities at the winery. He said the Flemings are trying to put a permanent business in a temporary structure. He asked that the Board reject the agreement and oppose the request.

Mrs. Goren said the Board of Supervisors is not giving the Flemings permission for the activities. She said the proposed agreement would put some restrictions on the applicant if the Zoning Hearing Board grants the variance.

Ethel Hibbs, a Township resident, asked why the Flemings have not appeared during the discussion of the agreement, as they live close to the Municipal Complex.

Mrs. Goren’s motion passed 3-2, with Mr. Goodnoe and Mr. Jirele voting “nay.”

ZONING HEARING BOARD APPLICATIONS: Mr. Sander reviewed the applications scheduled for the 9/2/04 Zoning Hearing Board meeting and asked if the Board of Supervisors wished to send the Solicitor to any of the hearings. He noted that the request from Mr. and Mrs. Snarponis should be a PRD Variance and has been removed from the Zoning Hearing Board agenda.

Mr. Jirele moved to send the Solicitor to support the variance request of Brandywine Realty Trust to permit construction of a bridge and public road within the floodplain. The motion was seconded by Mr. Goodnoe.

Discussion of motion: Mrs. Goren said she did not see the need to use taxpayer money to support a developer’s application. Mr. Harp added that the developer has an attorney.

Mr. Jirele said that the Board did this twice last year. He said the Township should support the application because it instructed the developer to build the bridge and road. Mrs. Goren responded that she did not remember the Township telling the developer to build the bridge and road; Mr. Jirele said this was done at a public meeting.

Nancy Crescenzo said the Township did ask Brandywine Realty Trust to do this work and the Solicitor should attend the hearing to support the applicant.

Frank Mendicino said the Board of Supervisors should be consistent about sending the Solicitor to the Zoning Hearing Board.

Mr. Jirele’s motion passed 3-2, with Mrs. Goren and Mr. Harp voting “nay.”

ENGINEER

STOOPVILLE ROAD CLOSING: Mr. Smith announced that Stoopville Road will be closed all day and night, on either 8/27/04 or 8/30/04, for Sewer Authority work.

TRAILS: Mr. Smith said all trails at the schools will be paved in the next few days.

OLD BUSINESS

APPOINTMENT TO ZONING HEARING BOARD: Mr. Harp moved to appoint William Wall to the Zoning Hearing Board. Mrs. Goren seconded the motion.

Discussion of motion: Nancy Crescenzo said she was told that several applications for Township appointments were lost, including hers and one from Paul Salvatore. Mr. Weaver said he has been sent both applications. Mr. Pellegrino said the Administrative office could not locate their file when Ms. Crescenzo called, but all resumes submitted have been sent to the Supervisors several times.

Mr. Weaver said the appointment was discussed in executive session by all Supervisors. Ms. Crescenzo questioned whether all the Supervisors were satisfied with the nomination process.

Phil Calabro asked what an alternate member of the Zoning Hearing Board does. Mr. Sander said he fills in at a meeting when a regular member is missing. Mr. Sander said Mr. Wall was previously appointed alternate member and resigned when his appointment was challenged.

Frank Mendicino said majority rule is an essential part of democracy and people need to accept it.

Mr. Harp’s motion passed 3-2, with Mr. Goodnoe and Mr. Jirele voting “nay.”

NEW BUSINESS: None.

COMMUNITY COMMENTS (SECOND SESSION)

Walter Iwaskiw said the Township should require a fence along the trail in Newtown Office Park because it comes very close to Newtown-Yardley Road.

Phil Calabro thanked the three Board members who voted to appoint Mr. Wall to the Zoning Hearing Board; he said they transcended party politics. Mr. Jirele responded that his nay vote on the appointment did not indicate political bias.

Nancy Crescenzo complained about the Township’s nominating process.

Bill Wall, a Township resident, thanked the Board of Supervisors for his appointment to the Zoning Hearing Board.

Brandon Wind said he did not feel the Supervisors’ appointments have been along political lines entirely.

EXECUTIVE SESSION: Mr. Weaver said there was no need for a further executive session tonight.

ADJOURNMENT: With no objections, the meeting was adjourned at 11:35 PM. 

 Respectfully Submitted:

 

 ____________________________________
Gretta Stone, Recording Secretary

 

Minutes Approved as submitted __________ as corrected___________

 

Attest: _________________________                                                         ___________________________
           Robert M. Pellegrino, Manager                                                            Richard Weaver, Chairman

 

                                                                                                                        ___________________________
                                                                                                                        Scott R. Harp, Vice-Chairman

 

                                                                                                                         ___________________________
                                                                                                                        Anne Goren, Secretary/Treasurer

 

                                                                                                                        __________________________
                                                                                                                        Thomas Jirele, Member

 

                                                                                                                        __________________________
                                                                                                                        Raymond Goodnoe, Member