Newtown Township

Board of Supervisors

Minutes of October 27, 2010

The Newtown Township Board of Supervisors met on October 27, 2010 in the Township meeting room at 7:30 PM. In attendance and voting were Supervisors: Chairman Robert Ciervo, Vice Chairman Matthew Benchener, Secretary/Treasurer Jerry Schenkman and Philip Calabro and Michael Gallagher, members. Also present were: Joseph Czajkowski, Township Manager, Jeffrey Garton, Township Solicitor and Michele Fountain, Township Engineer.

Call to Order: Chairman Robert Ciervo called the regular meeting to order at 7:30 PM with a moment of silence and an invocation by Father John Atkins of Holy Nativity Episcopal Church. This was followed by the Pledge of Allegiance.

Changes to the Agenda: Mr. Czajkowski said that discussion of Eagle Scout projects would follow “special action.”

Special Action

Chadds Ford Township Presentation: Chadds Ford Township Manager Joe Barakat and Supervisor Chairman Deborah Love were in attendance to extend thanks to Newtown Township for providing Chadds Ford with the dais from the old lower level meeting room. Mr. Barakat explained that Chadds Ford is a much smaller municipality with no police force, no public works, three supervisors and he is the first Township Manager. The Board meets in an old mill which has been used at one time as a studio for students of the Wyeth family. The building has been renovated for municipal use and was recognized in 2006 for an adaptive re-use award.

Ms. Love showed pictures of the dais in its new location. She and Mr. Barakat presented the Township with a water color painting of Brandywine Battlefield with the 1777 mill in the background. The mill had been General Washington’s headquarters during the September 11, 1777 battle.

On behalf of the Board and Township, Dr. Ciervo thanked Mr. Barakat and Ms. Love and the people of Chadds Ford.

Eagle Scout Projects: Ryan Varian of Boy Scout Troop 99 and Past Commander Jim Casey of the Morrell Smith American Legion were in attendance to review Mr. Varian’s plans for an entrance wall and flags at the new Veterans Park. The monument wall will be 2 feet high by 12 feet long at the Durham Road entrance to the park. An American flag will be placed at this entrance. Each field will have a flag designating a branch of the armed services and a POW flag will be placed at the entrance on Wrights Road. Mr. Varian said that he has worked closely with Sharon Dotts of Gilmore & Associates and with the Park and Recreation Board and Director. He has shown the plans to representatives of the sports organizations which will be using the fields to determine the appropriate location of each flag pole.

Park and Recreation Board Chairman Andrew Levine said that the Park and Recreation Board is very supportive of the project. The American Legion has worked closely with Mr. Varian as well. The project has been reviewed by the Codes Department, Public Works and the Park and Recreation Board. All agree that they fully support this very ambitious project. Mr. Varian must begin his fundraising for the project, which will need about $6000. The project will need Board approval before Mr. Varian can begin his fundraising.

Mr. Casey explained that the American Legion will help with fundraising as will the sports organizations. The American Legion will provide the flags. The American flag will need to be lighted; solar lights will be used.

The Board members all thanked and congratulated Mr. Varian on this very generous and ambitious project to honor Newtown’s veterans.

Mr. Schenkman moved to approve Ryan Varian’s sketch plans for an entrance wall and flag poles at Veterans Park pending final plan review by the Board of Supervisors. Mr. Gallagher seconded and the motion passed 5-0.

Public Comment: Resident Jay Sensibaugh thanked the Township for posting the rescheduled date and time of Saturday, November 6, 2010 at 9:00 AM for the Newtown Creek Clean-Up. Volunteers will assemble at the Centre Avenue Bridge to clean the creek from Centre Avenue to Carl Sedia Park.

Mr. Sensibaugh asked whether the Township has information on the current and projected forecast of revenues and expenditures to year’s end.

Mr. Czajkowski said that the reserve is expected to be at $1.2 million.

Mr. Sensibaugh asked whether the reserve would dip below 10% and if there would be a change in the Township policy regarding the reserve fund. He expressed some concern about cost overruns.

Mr. Czajkowski said that the reserve is based on the general fund and is expected to be between 11 and 12%. The Township has not had an overage in expenditures, but has experienced lower revenues in real estate transfer taxes.

Dr. Ciervo said that although there has been a decrease of 10% in revenue, the Township has been spending less. The Board and administration are making efforts to cut back on spending.

Mr. Sensibaugh asked whether there are plans to address a difference between budgeted revenues and expenditures.

Mr. Benchener said that the difference is due to a decrease in revenue. The Township is working to keep a very lean operation, always looking for ways to save money. The Township has also begun using a new financial reporting system to keep the Board informed.

Mr. Gallagher said that he has been working to keep the Board informed of finances, watching line items, on at least a quarterly basis. The Township is doing better than had been expected in the current economy.

Mr. Schenkman suggested postponing a detailed discussion of the finances until after presentation of the next year’s budget. He acknowledged some overages, particularly snow and ice removal and labor solicitor, but overall, the Township is still where it needs to be.

Resident John D’Aprile said that he resents that in past years Boards have spent large portions of the reserve on parks. He also urged everyone to participate in the upcoming elections.

Minutes, Bills Lists and Reports

Minutes: Mr. Schenkman moved to approve the minutes of September 22, 2010. Mr. Gallagher seconded.

Discussion of motion: Mr. Schenkman acknowledged that a portion of these minutes had been re-drafted to clarify discussion of the Stoopville Road improvement project. The Board has all had an opportunity to review the amended minutes.

The motion passed 5-0.

Mr. Gallagher moved to approve the minutes of October 13, 2010. Mr. Schenkman seconded and the motion passed 5-0.

Bills: Mr. Schenkman moved to approve payment of bills totaling $117,903.20. This amount includes a payment to the Solicitor which had been removed from the last bills list. Mr. Gallagher seconded.

Discussion of motion: Mr. Sensibaugh questioned a legal fee of $5648 on page #8 of the bills list.

Mr. Gallagher explained that the legal fee reflects expenses involving some claims made by former employees discussed during executive session. The Township is over budget on labor solicitor expenses.

Mr. Sensibaugh said that employee wages do not appear on the bills list.

Mr. Czajkowski said that this is an issue of timing. The employees are being paid; the salaries were on the last bills list.

The motion passed 5-0.

Reports of Committees, Boards and Commissions

Chairman: Dr. Ciervo congratulated Council Rock High School North’s golf team, the state champions.

Board Members: Mr. Schenkman reported that the Joint Historic Commission met to discuss drafting letters to the Board about a few historic properties which have fallen into disrepair and are of concern to the Commission.

Mr. Schenkman also reported that the Financial Planning Committee has begun reviewing capital projects for 2011 and creating priorities.

Mr. Gallagher urged residents to vote in next Tuesday’s elections; polls are open from 7:00 AM to 8:00 PM.

Mr. Gallagher reported that he and Mr. Schenkman had recently attended the BCATO dinner and heard a presentation by Pat Walker, editor in chief of the Intelligencer.

Mr. Calabro reminded residents to be respectful of the campaign signs placed throughout the Township. These signs are printed at great personal expense to some of the candidates. He is concerned about some lack of respect shown to those who have come forward to serve the community.

Mr. Benchener reported that the Joint Traffic Committee met with the Township and Borough Police Chiefs to work on a pedestrian safety program of education for Pedestrian Safety Week.

Planning Commission: Chairman Allen Fidler reported that the Commission reviewed a Zoning Hearing Board application for Kevin DeFinis, 395 Eagle Road for a special exception and a variance for side yard setback relief of 1’10” to build a screen porch. The Commission voted 5-1 to support this application for de minimis relief. The Commission also reviewed an application of John Perry Bugnar of 25 Amy Circle for a variance for 3.78% increased impervious surface to install a swimming pool and associated decking, coping and walkways. The Commission urged the applicant to consider methods to mitigate the impact of the increased impervious surface. The applicant’s contractor will consider some stormwater management and possible use of some porous pavers. The Commission passed this application to the Board with no comment.

The Planning Commission reviewed a sketch plan for Dr. Weglos, who wishes to build a one story building to house his dental practice at 759 Newtown Yardley Road. The Commission members were in agreement that this property, which has fallen into disrepair, will probably never be developed in accordance with the current R-2 zoning for residential use. Attorney Ed Murphy and engineer Heath Dumack showed two different sketch plans, one taking access from Newtown Yardley Road and the other with an access easement through the Newtown Swim Club driveway. Both plans would require zoning relief for use, for increased impervious surface and for parking. The Commission urged the applicant to attempt to work out an easement agreement with Newtown Swim Club, as there is great concern about an additional curb cut on Newtown Yardley Road. The Commission would also recommend that the Board support the applicant’s attempt to work with the Swim Club to develop an access easement agreement.

Mr. Murphy also represented the applicants for a sketch plan for a McDonald’s Restaurant with drive through service at Village at Newtown Phase II. The plan calls for demolition of the existing doctors’ office building and construction of a smaller restaurant building. The Commission had a number of concerns, particularly of the location of the new building on the site. It appears there is an agreement in place limiting the building envelope to the location shown; however the members discussed moving the building to align with the Toll House. With that move it would be possible to direct the drive through traffic around the building while leaving the entrances clear of the queuing cars, making the entrance safer for children. It would also allow for a safer entrance/exit arrangement. The applicant’s traffic engineer is in the process of evaluating the mix of current uses and the needed parking for those uses in Phase II. The Commission is concerned that because there is a concentration of restaurant uses in Phase II, parking may not be adequate. One member suggested some additional sidewalks might be needed to provide safety for walkers from the high school and from the skate park. A number of residents of Cliveden Estates spoke about their concerns, particularly odor, light, noise, trash and loitering of young people.

In response to Mr. Benchener’s question, Mr. Fidler said that the applicant was amenable to relocating the building closer to Durham Road if the land owner would agree.

Dr. Ciervo said that he recalled trash remediation had been part of the discussion when Wendy’s was built. He asked if this had been discussed for McDonalds.

Mr. Fidler said that this would probably be part of the conditional use discussion.

Mr. Murphy represented Gene Lorenzetti for a sketch plan to build a 90 unit assisted living facility at 54-58 Durham Road. A few of the units can accommodate couples, for a maximum of 120 residents. The plan showed a combination of a one story memory impaired section and a two story assisted living section with kitchen and administrative offices separating the two sections. Engineer Heath Dumack reviewed the plan, showing that the facility requires 224 parking spaces by ordinance, and proposed stormwater management would accommodate the full parking. The applicant would prefer to only provide 88 paved parking spaces, which would keep the impervious surface at 35.9%. The Commission favored an entrance on Durham Road with a second access point also provided, as Eagle Road is very busy and the proposed entrance is very close to the signalized intersection. The members discussed the proposed parking and had concerns that 88 spaces would not be sufficient for the staff, support workers, visitors and residents who keep their cars. It was explained that residents are 70% female with an average age of 85 years. Heritage provides transportation to appointments, to shopping and to some recreation. It is very unusual for residents to keep their cars. The Commission members were in agreement that the facility would probably not need the full 224 parking spaces, but wanted to be sure that parking would be adequate for the site. The members discussed providing some sidewalks to allow residents to walk to the shopping center, although the applicant felt it would be unlikely that any residents would want to walk beyond the property. A representative of Cliveden Estates Homeowners Association said that this plan was less objectionable to the Cliveden residents than previous plans, but the residents did have concerns about light and glare, traffic, noise and the possible need to relocate telephone poles to the Cliveden side of the street. Cliveden residents would prefer that the entrance be on Durham Road.

The Board agreed that the entrance on Durham Road might be preferable. The plans had also been presented to the Board of Supervisors at a prior meeting and all felt the plans were attractive.

Park and Recreation Board: Chairman Andrew Levine announced that the skate park will have its grand opening beginning at 2:00 PM on Sunday, October 31, 2010. Eagle Scout Chris Davis will be selling refreshments to raise funds for the signs and bench he has put at the site. Mr. Levine introduced the skate park committee: Michael Iapalucci, Dennis Darcy, Mr. and Mrs. Davis, Perry Katz and Christine Edmunds of Newtown Borough Park and Recreation Board.

Mr. Iapalucci presented the Supervisors with a check in the amount of $31,483, representing the fundraising efforts of the committee. He announced that the committee had received an additional $5,000 from an anonymous donor. He asked that the Board consider placing a port-a-potty at the location permanently for the skate park and all purpose field. He also announced that the skate park committee had made a donation to Chris Davis for the signs and bench he installed as his Eagle Scout project. Mr. Iapalucci then showed the skate park sign which acknowledges the Board, Park and Recreation Board, skate park committee, Township officials and the many generous donors to the project. It is to be installed tomorrow.

Mr. Darcy said that he would like the Board to consider some kind of safety fencing around the park, or possibly adding Jersey barriers around the edge of the pad to protect the users should a car veer off the road. It could also be used as an additional feature to be used by the skaters.

Mr. Gallagher reminded the Board that the Township only owns the skate park land and would have to work with the shopping center on additional fencing.

Mr. Levine suggested that the Park and Recreation Board review any proposals; he expressed some reservations about considering additional skate equipment as providing safety.

Dr. Ciervo thanked the Board, the skate park committee’s volunteers, the Park and Recreation Board and Department and Public Works for the tremendous efforts to make this idea into a reality.

Mr. Gallagher said that he had initially had some reservations about the skate park but was now very impressed by the public/private cooperation to build the park.

Mr. Calabro noted that Marcus Zotter, as a high school freshman, presented the idea to the Park and Recreation Board, and went on to do considerable research to promote the park. Although he has since grown up, he urged the committee to acknowledge his effort and extend an invitation to him and his father for the grand opening festivities.

Mr. Levine reported that the Park and Recreation Board has tentatively approved another Eagle Scout project to build a shed at Veterans Park for storage of field equipment. He thanked Troop 99 for the efforts so many of its members have made to contribute to the Township parks.

Mr. Levine reported that the Township has a grant to complete an update of the Recreation Comprehensive Plan. Heritage Conservancy and former Park and Recreation Director Bill Wert will be consulting on the update. Heritage Conservancy has recommended that a twelve member committee, comprised of representatives of the Planning Commission, Park and Recreation Board, Board of Supervisors, Finance Director, Park and Recreation Director and one resident not affiliated with a committee, be formed for the update. The project must be completed next year, so it is recommended that the committee be formed and begin meeting in December.

Mr. Gallagher asked why this is necessary.

Mr. Levine explained that typically comprehensive plans are updated every ten years. The open space plan has recently been updated. This plan will review existing facilities, demographics and changes to our current recreational facilities and programs.

Mr. Gallagher noted that the Township expects to see fewer developer fees collected in the future. He suggested including members of the financial planning committee on the new committee.

Mr. Benchener agreed, noting that the Board is hoping that the financial planning committee will take a more active role in long term planning.

Mr. Gallagher moved to create an ad hoc committee to update the recreational comprehensive plan. The committee would be comprised of the Township Manager, Park and Recreation Director, 2 supervisors, 2 planning commission members, 2 financial planning members, 2 park and recreation board members and 2 additional residents. Mr. Benchener seconded.

Discussion of motion: Mr. Sensibaugh suggested that the Environmental Advisory Council should also participate in the committee.

Mr. Levine said that the committee would be focused on recreational programming and facilities, not on preservation of open space or other environmental issues. He did not object to the EAC’s participation, but did not think it would be necessary.

Mr. Calabro suggested that an EAC member could act as a liaison or could be chosen in place of a resident appointee.

The motion passed 5-0.

Manager’s Report

Dehab Associates: Mr. Czajkowski reviewed the consulting agreement with Dehab Associates for management of the Township’s pension funds. The agreement would call for payments of $18,000 for the first year, $16,500 in year two, $17,000 in year three and $17,500 in year four. The agreement has been reviewed by the Township Solicitor.

Mr. Garton suggested incorporating the RFP into the agreement.

Mr. Gallagher questioned a reference on page 3. He asked that the reference include advising the Board of Supervisors.

Mr. Benchener said that Dehab would be involved in selecting fund managers for the pension funds, not for the Board of Supervisors.

Mr. Czajkowski said he would speak to Dehab about adding the Board to the reference on page 3 if appropriate.

Mr. Calabro expressed some concern about whether the Board should be directly involved in hiring fund managers.

Mr. Benchener agreed, saying that the Board is contracting with Dehab, who will then select the fund managers.

Mr. Garton said that Dehab is assisting in the preservation and growth of the plans. He suggested wording in the agreement to include, “in accordance with applicable pension ordinances.”

Mr. Benchener moved to approve the agreement with Dehab Associates for pension investment management services, subject to the condition that the words, “in accordance with applicable Township pension ordinances” be added to paragraph 3F. Mr. Calabro seconded.

Discussion of motion: Mr. Benchener noted that the fees are structured to reflect the additional work in the first year of the agreement to craft a revised pension investment policy statement.

Mr. Schenkman questioned reference in the agreement to the State of New York.

Mr. Garton said that New York is considered the bellwether on investment law.

The motion passed 4-1, with Mr. Gallagher voting nay.

Mr. Czajkowski reported that the wind generator pad is to be installed later this week.

Solicitor’s Report

Penns Trail Storage, 104 Penns Trail: Mr. Garton reported that Penns Trail Storage had been granted land development approval subject to the condition that nine trash receptacles be located on the site. The project is completed. The applicant is seeking to have the record plan revised to remove the requirement for trash receptacles.

John Barry, owner of Penns Trail Storage, explained that he also owns a similar facility in Mannheim Township. He had acquired the land and approvals from another entity with the trash requirement already in place. It has been his experience that trash is not a problem at his storage facility if receptacles are not provided. Tenants carry their trash off the premises with them. If a dumpster or trash cans are provided, tenants might pile up things they do not want. He showed the Board a series of photographs of his facility in Mannheim, with no trash receptacles, and the dumpsters at Newtown Self Storage, with trash in and around the dumpster.

Mr. Schenkman asked about trash receptacles for the management’s use.

Mr. Barry said that there are trash cans in the office for management use. At the Mannheim facility, they put out about one trash bag each week.

Mr. Czajkowski said that the Township does have littering ordinances; businesses could be cited if trash becomes a problem.

The Board briefly discussed providing some signage citing the Township trash ordinance and advising tenants to remove litter. Mr. Barry agreed that he would comply if required. There are rules in the tenant agreement about litter.

Mr. Gallagher moved to approve an amendment to the Penns Trail Storage record plan to waive the requirement for trash receptacles. Mr. Benchener seconded and the motion passed 5-0.

Rockbridge Estates Subdivision, Washington Crossing Road: Mr. Garton explained that Rockbridge’s approved plans provide for public water and sewer on the residential lots. The developer is asking to be permitted to install private wells for the two homes rather than to connect to the public water.

John Gigliotti, developer of the property, explained that the original plans had shown a public water connection at Cliveden Estates on Washington Crossing Road. That connection does not exist; to connect the two houses would now require a connection inside the Cliveden development’s water main, which would be very costly. He is asking to drill two private wells. The homes would still be connected to public sewers.

Mr. Schenkman asked whether there would be a negative environmental impact.

Ms. Fountain said that the wells must meet requirements of the County Board of Health in order for permits to be issued.

Dr. Ciervo asked if the other private homes in the area are connected to public water.

Mr. Gigliotti said that all three adjoining properties have private wells and septic systems. It had been a condition of approval for his development to extend sewer laterals to those three homes.

Mr. Gallagher noted that the developer had been cooperative with the Township in helping to preserve over 7 acres at the site as open space.

Mr. Calabro said that this was done not out of a sense of altruism, but in order to gain approvals for the two developed building lots.

Mr. Gigliotti noted that this was a win/win for both himself and the Township.

Ms. Fountain assured the Board that the private wells would not be located near existing septic systems and would be drilled at least 100 feet deep.

Mr. Gallagher moved to approve the modification of the Rockbridge Final Plan to allow private wells and to not require connection to public water. Mr. Benchener seconded and the motion passed 3-2, with Messrs. Calabro and Schenkman voting nay.

Newtown Joint Municipal Authority: Mr. Garton reminded the Board that the Authority’s 50 year charter is up for renewal. The Board is being asked to adopt an ordinance extending the charter for another 50 years. Newtown Borough has already adopted such an ordinance.

Mr. Schenkman moved to authorize advertisement of an ordinance extending the charter of Newtown Joint Municipal Authority for an additional 50 years. Mr. Calabro seconded.

Discussion of motion: Mr. Gallagher said that although there have been lengthy discussions among the Board and with the members of the Sewer Authority, he still has some concerns about ongoing litigation. He asked if the Board were to authorize advertisement, when would the ordinance be acted on.

Mr. Garton said that the charter will expire in May of 2011. If authorized this evening for advertisement, action could be taken some time in December.

Mr. Calabro said that the Sewer Authority has met with the Board and been cooperative with discussing ongoing issues in executive session. The Board has met with special counsel to discuss the litigation. He does not want to put off action any longer.

Mr. Schenkman agreed that the Board has been provided with all of the information it has requested. The ongoing litigation will not impact the residents, the customers. The system is in good condition and is well maintained by competent directors, providing the lowest rates in the County. Any unresolved concerns of Mr. Gallagher’s should be able to be addressed in the next 4-6 weeks. He does not want to postpone advertising any longer.

Mr. Gallagher said that he does not want to put a timeclock in place. The special counsel has only begun to review the issues and has not had time to adequately advise the Board.

Mr. Schenkman said that the litigation is a red herring and has nothing to do with Newtown Township.

Mr. Benchener said that he is concerned about outstanding questions and the possibility of potential liability. He would prefer having input from third party counsel before making such a long term decision.

Dr. Ciervo said that he has had his questions answered by the Sewer Authority and feels it is time to advertise. He did not think the litigation is a threat to the Authority. He said that the time might come when the Township might consider a need for sewer districts, but he is ready to authorize advertisement now.

The motion passed 3-2, with Messrs. Benchener and Gallagher voting nay.

Mr. Calabro said that this vote only authorizes advertisement. The vote to extend the charter could still fail. He urged the public to participate in the hearings.

Conditional Use, LaStalla Restaurant: Mr. Garton reminded the Board that this hearing to amend the conditional use approval of LaStalla to extend hours or operation until 2:00 AM seven days a week and to permit outdoor music four nights has been continued a number of times. Letters about the continued application have been sent to all parties. He asked if anyone present wished party status for this hearing. Mr. Garton explained to those residents in attendance that if they wish to be a party to the application they would have the right to cross-examine the applicant and any of his witnesses, present evidence and witnesses, and make any statement concerning the application. Should they disagree with the decision of the Board of Supervisors, party status would give them the right to appeal the decision. Anyone present not wishing party status would be allowed to make statements for or against the application after the hearing and before a decision is rendered.

Gavin Laboski, representing Yoga Sphere, LLC, a tenant in the Lovett Barn, the same building as LaStalla, asked for party status.

Mr. Marshall had no objection.

Noelle Finley, 35 Court Street, Newtown Borough, asked for party status.

Mr. Marshall had no objection.

Party status was granted to Yoga Sphere and Noelle Finley. Newtown Borough had been granted party status at a previous hearing.

Mr. Marshall entered the following exhibits:

A-1 – Plot Plan

A-2 – Zoning Violation dated May 28, 2010

A-3 – Letter from Mr. Marshall to Mr. Boyle in response to violation notice

A-4 – Original LaStalla Conditional Use dated January 2001

A-5 – Conditional Use approval dated 2007

A-6 – Letter dated July 23, 2010 from Articulate Pro Audio

A-7 - Township stand alone noise ordinance dated 2004

A-8 – Planning Commission recommendation letter dated August 4, 2010

A-9 – Lease

A-10 – Articulate Pro Audio report dated October 7, 2010

The exhibits were received into the record.

Mr. Marshall explained that the applicant has been given two prior conditional use approvals for use E-5 eating place for 5532 square feet of dining with 130 interior seats and 80 patio seats, no outdoor music and hours of operation until 11 PM, with bar hours until 1:00 AM on Fridays and Saturdays, only. The second conditional use also required valet parking, to be shared with Rouget on weekend evenings. The two restaurants have determined that valet parking is not needed as parking has been adequate for both locations. Because the business environment has changed, the applicant is now seeking extended hours until 2:00 AM and outdoor entertainment on Wednesdays through Saturdays until midnight. The entertainment would be two nights with acoustic guitar and two nights with a DJ and dance music. All entertainment would use the system installed by Articulate Pro Audio and would comply with the sound levels outlined in Exhibit A-10. The sound levels are permanently set such that entertainers could not alter the settings. The applicant would also like to modify the valet parking requirement.

Marc Masso was sworn in. He said that he is the owner and general manager of LaStalla. He confirmed Mr. Marshall’s statements. He is eager to continue to offer outdoor entertainment and will comply with sound level requirements in deference to the nearby residential neighbors. He would like hours of operation consistent with those of other restaurants in the Township and Borough. He is seeking hours until 2:00 AM every night, although would probably close earlier on weekday evenings. He acknowledged that he had received a cease and desist order. He hired sound experts to improve the sound quality so as to no longer disturb complaining neighbors. The sound travels to the Borough because of the slope of the land down toward Sycamore Street and up again toward State Street. The new system has removed sub-woofers and controlled the volume. A test was conducted on October 7, 2010 with a number of Borough and Township officials and interested residents in attendance. A Borough official was also monitoring sound with a meter. The results of the Articulate Pro Audio testing are included in Exhibit A-10. The sound levels measured were no louder than the ambient noise without music.

Mr. Masso acknowledged that the complaints from residents about the noise had been accurate. He was issued a citation by Newtown Township, pled no contest and paid the fine. He no longer has outdoor entertainment but would like to resume as the success of his business increasingly depends on it. He has read the proposed conditions of approval recommended by the Planning Commission and would agree to those conditions.

Colin Jenei, representing Newtown Borough asked whether Mr. Masso had been owner of LaStalla at the time of the 2007 conditional use application.

Mr. Masso said that he was the applicant in 2007. In response to Mr. Jenei’s further questions, he said that he knew that the 2007 approval did not permit outdoor music or late hours of operation; he did provide late hours and outdoor entertainment without the required special permit. He had been issued cease and desist orders but did not stop the entertainment. Instead he contacted Mr. Marshall who filed an amended conditional use application instead. He had been issued a citation by the Liquor Control Board on September 9, 2010. He did say that he would stop outdoor entertainment, but continued to provide outdoor entertainment. He has reviewed the Township’s noise ordinance and acknowledged that some sound levels are louder than permitted by that ordinance, however the sound is not louder than ambient noise.

Mr. Leboski asked whether Mr. Masso conferred with other tenants in the building about the entertainment.

Mr. Masso said that he did not confer with Sleepy’s or Yoga Sphere, nor did he invite them specifically to the sound testing. The outdoor bar existed before either business moved into the building. In response to Mr. Leboski’s further questions, Mr. Masso said that the restaurant has 60 outdoor seats for dining. There is additional standing room around the outdoor bar. The outdoor facilities are not used year-round, but only from May through September. The heaters on the patio are used for waiting patrons in the cooler months. He does have a permit for the tent. The outdoor music begins between 8:00 and 8:30 PM and ends between 12:30 and 1:00 AM. An advertised event for October 29, 2010 will be indoors, with indoor music. No tests were conducted with indoor music inside the building, only at the outside of the building. The tests were conducted October 7, 2010 at 8:00 PM. The restaurant was full, with about 100 patrons.

Ms. Finley asked whether Mr. Masso was aware that the police had been dispatched 13 times. She also asked whether the amended application limits outdoor entertainment to spring and summer.

Mr. Marshall said that the applicant was aware of the police response to complaints. The applicant would accept a seasonal restriction.

Mr. Masso said that he is willing to work with the Township on a solution to permit some outdoor entertainment.

Mr. Benchener expressed some concern about the impact LaStalla has on Yoga Sphere. He asked again whether Yoga Sphere’s owners had been consulted.

Mr. Masso said he did not speak to anyone at Yoga Sphere nor did he measure sound inside the building.

Mr. Calabro asked to review the sound test results. He asked whether the speakers or musical instruments were enclosed in some way to muffle sound.

Mr. Masso said that Articulate measured sound, as did a Borough official with a sound decibel meter, on the patio, at the property line and periodically along Swamp Road walking toward Newtown Borough. The sound measured differently as the testers walked up to the higher elevation at State Street. The speakers are not enclosed, but are placed so that sound projects down, rather than out.

Mr. Marshall explained that the tests were conducted with and without music at the locations outlined by Mr. Masso. The person from the Borough was measuring and getting the same results. Comparisons were being made between the two testing devices throughout.

Mr. Calabro asked about whether, once installed, the levels of sound volume could be altered by the owner or by performers.

Mr. Masso said that the controls are only able to be altered by the owner of the system. Entertainers must plug into the pre-set system.

Dr. Ciervo said that the second conditional use application had been filed in response to a violation for seating and number of employees. He asked why the applicant had not included the later hours and outdoor entertainment at that time.

Mr. Masso said that he did not know about some of the restrictions when he purchased the business in 2004. He applied for 80 outdoor seats; there are some seats in an enclosed area which is open during summer months and enclosed during the colder months. He acknowledged that in the 2007 approval he had agreed to provide valet parking on weekends unless he notified the Township in writing and the Township determined the valet was no longer needed.

Dr. Ciervo said that it has been a practice of both the Planning Commission and the Board to encourage applicants to ask for the maximum number of employees, the longest hours, etc., so that the applicant does not have to return if the business changes. He asked why Mr. Masso did not ask for the longer hours at the first and second applications.

Mr. Masso said it was a mistake to not seek extended hours in the earlier applications. He did not think later hours would be needed.

Mr. Gallagher said that the Green Parrot has hours until 2:00 AM with service of alcohol beginning at 11:30 AM, with 90 days of service of alcohol beginning at 7:00 AM for special events, such as televised international sporting events. Would LaStalla seek similar permission.

Mr. Masso said that he did not need the early morning hours. He would want to use the outdoor patio from late April until late September.

Mr. Gallagher suggested that the Board address the hours of operation now but table consideration of the outdoor music until the spring.

Mr. Masso said that he understands the Township’s skepticism that the sound system will be a real solution to the problem. He is asking for a chance to work with the Township to create a compromise.

Mr. Schenkman said that he wants to be sure that whatever the Board decides will adequately handle the problem.

Mr. Calabro asked about diners during the dinner hour, prior to the start of the entertainment.

Mr. Masso said that the restaurant has diners prior to the start of entertainment. They might linger after dinner for drinks to listen to the music; they may move to the bar. The entertainment draws additional customers to the bar for drinks and light snacks.

Dr. Ciervo asked about seating in the indoor bar during the winter.

Mr. Masso said that there are 9 seats at the indoor bar. It is first and foremost a restaurant.

Mr. Jenei entered the following exhibits:

NB1 – Mr. Jenei’s e-mail to Mr. Marshall about LaStalla’s outdoor music

NB2 – 2007 Conditional Use

NB3 – a. Cease and Desist Order

b. Civil Complaint

NB4 – Expert Report

NB5 - Installer Web site stating sound system installed August 12, 2010

NB6 – LCB violation for outdoor entertainment

NB7 – a. LaStalla Web site dated October 26, 2010

b. LaStalla Web site dated August 5, 2010

Each Web page advertises outdoor music

NB8 – Past reports and complaints to Township Police about outdoor music

NB9 – Newtown Township Noise Ordinance

Mr. Marshall objected to the exhibits. Mr. Leboski and Ms. Finley had no objections. The exhibits were received.

Mr. Jenei said that LaStalla’s 2007 agreement had been violated, citations issued had been ignored. Mr. Masso had made statements that he would stop offering outdoor entertainment, but the entertainment continued. He continues to advertise outdoor entertainment. The expert who tested the system is the same as the installer of the system. That expert is not in attendance to be questioned. It is difficult to trust that any new conditions would be honored by the applicant.

Noelle Finley was sworn in. In response to Mr. Jenei’s questions, Ms. Finley said that she has lived at 35 Court Street for five years with her husband and three children, ages 8 and 4. She confirmed that on September 8, 2010 she heard music in her bedroom at 10:30 PM, which continued to get louder. She went outside and drove to confirm that the music was coming from LaStalla. She made a video of the music on her iPhone. The music woke her children. This was a Thursday night, a school night for children.

In response to Mr. Marshall’s question, Ms. Finley said that she did not go into LaStalla. She did not know whether the music was coming from inside the restaurant.

In response to Mr. Schenkman’s questions, Ms. Finley said that she has not heard music since September 8, 2010. Prior to that, she had heard it most Thursdays and Fridays. She phoned the police twice; the police responded to the restaurant, but not to her home.

In response to Dr. Ciervo’s questions, Ms. Finley said that the noise became an issue in April of this year and has persisted very Thursday and most Fridays.

In response to Mr. Calabro’s questions, Ms. Finley said that she has dined at LaStalla about 100 times since it opened. She goes early, before entertainment begins. Her home is about 5 blocks from LaStalla. It is definitely music that she hears, not just noise from the bar. She can identify the songs being played.

Mr. Leboski called Laura Rothstein, owner of Yoga Sphere at 18 Swamp Road. Ms. Rothstein said that her business, a yoga studio, occupies the third floor of the barn. She has about 25 classes a week for children and adults. The total staff is 16 people. Each class has about 10 to 15 students. Her hours of operation are from 7:30 AM or 9:00 AM for morning classes and 4:30 PM to 9:00 PM for evening classes. She uses the space after 9:00 PM for private classes and teacher training classes. The business opened in April of 2005. It is important to have a quiet atmosphere to practice yoga, which concentrates on breathing. Since the Yoga Sphere first opened there has been outdoor dining at LaStalla in nice weather. She could always hear voices, but the noise has been getting louder as LaStalla has changed from a family restaurant to a night club atmosphere. The studio is on the third floor but it is surrounded by windows and the noise from the patio travels up. When the music starts her students leave. Some do not come back at all. She did not receive any notice about the sound testing; the notice was sent to the building owner, not to the tenants. She has heard music on Sunday afternoons and recorded dinner music earlier in the evening.

Mr. Leboski entered as Exhibit R-1 a series of letters from Yoga Sphere students confirming the conditions described. The ten letters were received.

Ms. Rothstein said that she is asking that no changes be made to the existing conditional use.

Mr. Benchener asked whether Ms. Rothstein would agree to sound testing in her studio.

Ms. Rothstein said she would permit testing.

Mr. Schenkman asked whether she would agree to music beginning at 9:00 PM.

Ms. Rothstein said that she would not agree to that because she uses the studio after 9:00 PM for private sessions. She also does not trust Mr. Masso to honor any new agreement. In response to Mr. Schenkman’s further questions, Ms. Rothstein said that her only complaint is the music; she is not bothered by parking problems or odor. She does not have a regular schedule for classes after 9:00 PM and does not want to be restricted or boxed in.

Mr. Gallagher asked Ms. Rothstein what her approved hours of operation are.

Ms. Rothstein did not know what hours her business might be restricted to by her approval. She does not want music permitted at all.

In response to Mr. Calabro’s questions, Ms. Rothstein said that she has eaten at LaStalla and has hosted some parties there. During the earlier hours it is a family atmosphere. Later in the evening the atmosphere is more like a night club. Her 16 employees are part time. She usually has a staff member on duty along with an instructor and 10 to 15 students. She explained the location of her studio next to Sleepy’s. She leaves windows open during nice weather; she does not use central air conditioning because it is better to be warm in the studio for the practice of yoga. She has spoken to Mr. Masso about the noise, but she has mostly dealt with Mr. Vincent Masso.

Mr. Calabro said that he would like to find a compromise that will work for LaStalla and for Yoga Sphere.

Ms. Rothstein said that she is unwilling to compromise as she has no confidence that LaStalla will honor any agreement.

Kathy Frank was sworn in. Ms. Frank said that she is the office manager for Yoga Sphere. She has gone downstairs to ask that the music be turned down on numerous occasions. She has either spoken to the manager or the bartender. The music is too loud in the evening two or three times each week throughout the summer.

In response to Mr. Calabro’s questions, Ms. Frank said that she has gone to LaStalla for a drink after 9:00 PM once or twice.

Sean Kaplan, co-owner of Yoga Sphere and Newtown Borough resident was sworn in. He said that LaStalla has repeatedly disregarded complaints of residents and notices from the Police and Township. He is unwilling to make any compromised because of the disregard for the current approved conditions. He noted that although permission is sought for entertainment on Wednesdays through Saturdays, he has seen entertainment on Sundays and Mondays as well. He said that the voice levels on the outdoor patio also exceed the decibel levels permitted under the Township noise ordinance.

Resident John D’Aprile was sworn in. Mr. D’Aprile said that while he is not anti-business, this business has ignored its existing conditional use, He has heard very loud music late on Thursday nights. He is not supportive of granting this amended conditional use.

Mr. Garton said that the record is closed. The Board could give the participants 30 days to prepare findings of fact and conclusions of law before the Board renders a decision.

Dr. Ciervo moved to deny the application for conditional use approval. Mr. Benchener seconded.

Discussion of motion: Dr. Ciervo said that because there have been ongoing complaints about the business and because the applicant has not complied with the existing approval or with any promises made to stop the music he does not want to consider any changes to the current approval.

Mr. Benchener suggested that perhaps the Board should ask for an extension to work out some kind of compromise.

Mr. Gallagher agreed that he would like to postpone a decision until next spring when outdoor dining would begin again. A lot of people do not believe that LaStalla will comply with a compromise. He would like to have a trial period for testing the system. He would prefer asking for an extension.

Mr. Schenkman said that he also understands the lack of trust among the complaining parties. He would like to consider possibly including penalties for violations to any new approval. He would like to be fair to all involved and would prefer working out some kind of compromise. Because it is winter, he would be inclined to vote no on the application and perhaps revisit the application in the spring.

Mr. Benchener said that he would like to create a pro-business atmosphere, but not favoring one business over another. He said that he is very concerned that Yoga Sphere is losing students because of the noise. He said that there is room for some compromise and he does not want to deny the entire application. He would want additional testing which would include Yoga Sphere.

Mr. Calabro said that he is concerned that without some compromise, two businesses will suffer. It is clear that the people complaining have enjoyed going to LaStalla. He suggested creating a probationary period to test whether a compromise is effective. He is not ready to completely deny the application.

Dr. Ciervo disagreed. He said that the conditional use approval is useless if it is ignored and not enforced. The existing approval has been ignored repeatedly. It has been the Board’s practice to ask applicants to apply for everything they might possibly want to better accommodate changes in businesses, but this business asked for the minimum. The business has changed to an outdoor night club. Newtown does not need night clubs, which will have detrimental impact on residents and other businesses. He suggested denying the application completely. If, at a later time, the applicant has shown compliance with the existing approval, the Board could reconsider an new application. He urged the Board to put the burden on the applicant to comply with the limits set by the Township.

Mr. Garton said that it appears the Board is suggesting two different options, to either deny and allow the applicant to re-apply at a later date, or to craft a compromise which would require the cooperation of all parties. He suggested asking the parties for a 90 day extension to draft parameters of a compromise solution.

Ms. Finley said that because the Police have no means to enforce the noise ordinance she is asking that the application be denied.

The motion failed 1-4, with Messrs. Benchener, Calabro, Gallagher and Schenkman voting nay.

Mr. Marshall said that the applicant would agree to an extension but asked that the Board address the hours of operation. It had been the applicant’s decision to come to the Board when the citation was issued rather than to the Zoning Hearing Board. The applicant has invested substantially in the sound system.

Mr. Gallagher agreed that he would prefer addressing the hours separately and continuing the question of the entertainment until the spring.

Mr. Garton explained that if there is to be a compromise or a trial period, it would take about 60 days to put together parameters for the test. If no action is taken on the application it is deemed approved.

Mr. Gallagher said that he wanted to have a trial period without any parameters.

Mr. Jenei said that Newtown Borough does not agree to an extension.

Mr. Marshall noted that the contestants do not have to agree; only the applicant needs to agree to granting an extension.

The Board discussed possibly extending the application 60 days while guidelines for a trial period and approval of residents is gauged. The members also considered denying the application and asking the applicant to return in the spring.

Mr. Gallagher disagreed with both concepts. He urged the Board to consider the request for hours of operation similar to the other restaurants in the Township.

Mr. Gallagher moved to ask the applicant for an extension until the end of May, 2011 on this application. Mr. Calabro seconded.

Discussion of motion: Mr. Schenkman disagreed with the extension, as it presented too much opportunity for outdoor entertainment without any limitations. He favored disallowing outdoor music. Guidelines could be considered in the interim.

Mr. Gallagher said that he would like to allow outdoor music next April and May, instructing the Township staff to not enforce the existing conditional use.

Mr. Calabro said he favored Mr. Garton’s idea to draft guidelines before considering the question of outdoor music.

The Board discussed possible solutions, including extending the application while drafting a compromise, denying the application but continuing to draft a compromise or granting only the extended hours.

Mr. D’Aprile said that he favors denying the application now, but possibly revisiting the question later.

Janet Beasley of 27 Court Street, Newtown Borough said that the Township Planning Commission strongly recommended to the applicant to separate the application for changed hours but the applicant refused. She urged the Board to deny the application.

Ms. Frank urged the Board to deny the application.

The motion failed 2-3, with Dr. Ciervo, Mr. Benchener and Mr. Schenkman voting nay.

Mr. Gallagher moved to approve the amended application for extended hours of operation 7:00 a.m. to 2:00 a.m., 7 days a week; the hours of operation for alcohol service shall be 11:00 a.m. to 2:00 a.m. Mr. Benchener seconded.

Discussion of motion: Mr. Marshall said that the Planning Commission felt strongly that when alcohol is served, some food service should be available.

Mr. Gallagher said that he had not included the requirement of food service in his motion.

Mr. Benchener withdrew his second. The motion failed to be seconded.

Mr. Schenkman moved to grant the amended conditional use application to extend hours of operation to 7:00 a.m. to 2:00 a.m., 7 days a week; the hours of operation for alcohol service shall be 11:00 a.m. to 2:00 a.m., on the condition that food will be served at all times when there is alcohol service.The portion of the application seeking outdoor music is denied. Mr. Benchener seconded.

Discussion of motion: Mr. D’Aprile asked whether the 2:00 AM hours would be for the outdoor patio as well as indoors.

Mr. Gallagher said the hours would apply to the entire premises.

The motion passed 4-1, with Dr. Ciervo voting nay.

New Business

Dr. Ciervo asked Mr. Czajkowski to look into the condition of the handicapped ramps at South Eagle Road between Wendy’s and Genuardi’s.

Dr. Ciervo reported that the Board had met in Executive Session prior the meeting to discuss litigation.

The meeting adjourned at 12:20 AM.

 

Respectfully Submitted:
Mary Donaldson, Recording Secretary

 

Attest:

Joseph S. Czajkowski, Township Manager


Robert Ciervo, Chairman

Matthew Benchener, Vice-Chairman

Jerry Schenkman, Secretary/Treasurer

Philip Calabro, Member

Michael Gallagher, Member