Minutes of the meeting held on August 3, 2010

Present: Chairman Allen Fidler, Vice Chairmen Sue Beasley and Robert Whartenby, Paul Cohen, Michael Iapalucci, and Jay Sensibaugh, members. Also in attendance were: Michele Fountain, Township Engineer, John Torrente, Township Solicitor and Jerry Schenkman, Supervisor Liaison.

Call to Order: Mr. Fidler called the meeting to order at 7:30 PM.

Approval of Minutes: Mr. Sensibaugh asked thatpage 2, paragraph one read, “Mr. Dumack said that the Ordinance….Ms. Fountain said that she would confirm the exact number…” He also asked that page 3, Paragraph one read, “At Mr. Sensibaugh’s suggestion…”

Mrs. Beasley noted that on page 5, reference to “Funk children” should be changed to “Funk grandchildren”.

Mr. Sensibaugh moved to approve the minutes of July 20, 2010, as corrected. Mr. Whartenby seconded and the motion passed 5-0-1, with Mr. Cohen abstaining.

Conditional Use

The Barn/LaStalla, 18 Swamp Road – Continued Review: Mr. Cohen said that he is Newtown Borough’s solicitor. As the Borough has taken a position in this matter, he would recuse himself from discussion as well as any vote to be taken.

Attorney Don Marshall and owner Marc Masso were in attendance to continue discussion of this application for an amended conditional use to permit hours of operation until 2:00 AM seven days and outdoor entertainment a few nights a week.

Mr. Marshall presented a report from Articulate Pro Audio, which conducted sound tests on the evenings of July 21 and 22, 2010. The report confirms decibel levels at the LaStalla property line and at State Street in Newtown Borough, but specific decibel levels at these locations not reported. Articulate Pro Audio offered a plan to mitigate the noise. Members of the Planning Commission had been in attendance during the testing. The applicant is proposing that he will implement the procedures recommended by the experts and will adhere to the Township Noise Ordinance, which limits noise to 55 decibels between 7:00 PM and 7:00 AM.

Mrs. Beasley said that she had recently been at LaStalla for lunch and noted that there are speakers playing background music both inside and outside, although the current conditional use does not permit outside music. She said that the level of the music was low and unobtrusive. She asked if the evening entertainers use these same speakers at higher volume of if additional equipment is used.

Mr. Masso said that the entertainers bring their own sound equipment.

Mr. Fidler asked if the outside speakers were in place when Mr. Masso purchased the business.

Mr. Marshall said that the speakers were already in place when Mr. Masso purchased the business; the speakers have always been there. Mr. Masso was the owner at the time of the 2007 conditional use amendment, which prohibits outside music.

Mr. Masso said that Articulate Pro Audio is proposing a sound system which would face speakers toward the seating area and would be preset to control decibel levels to within permitted levels. The system would be permanently install and entertainers would use this sound system, only.

Mr. Fidler suggested that it might be better to see whether the system functioned effectively before granting permission.

Mr. Marshall said that this is a permitted use in the commercial zoning district. He acknowledged that there have been some legitimate complaints which the applicant is prepared to address. When considering whether this is a nuisance, he asked the Commission to keep in mind that this is “in the eye of the beholder.”

Mr. Fidler said that permitting outdoor music is a new question for the Township, although he acknowledged that it is not prohibited in the commercial zoning district and can be included in a conditional use approval.

Mr. Iapalucci said that he is supportive of the request for extended hours but has a concern that since the applicant is currently operating outside of the existing conditional use, a new conditional use with permission for music within certain decibel levels will also be ignored.

Mr. Fidler said that he would like to support the business community but not at the expense of the residents’ quality of life. He has a similar concern that if the sound system were not adequate or if the new approval were ignored, there would not be recourse. He spoke briefly about an escrow account to be held in the event of violations of a new approval.

Mr. Sensibaugh said that most of the complaints have been after 1:00 AM. He is as concerned about noise as he is about music. Vehicle noise and patrons’ voices will also create a noise disturbance.

Mr. Masso said that it has not been clear from the police reports whether the 1:00 AM complaints are about music or other noise.

Mr. Fidler said that he would be supportive of allowing outside music if the recommended sound system could be tested and results confirmed before the approval were granted.

Mr. Masso apologized to the Township and to the residents who have been bothered by the music. He would like to work with the Township to create an acceptable solution to allow outdoor entertainment. He said he could install the Articulate Pro Audio system next week for testing and demonstration. At Mr. Fidler’s request, he agreed to stop outdoor music, except for the test, until the issue is resolved.

Mr. Schenkman said that he visited the site and walked toward Newtown Borough at 11:00 PM. He confirmed that the sound seemed to be less near the property line than it was at State Street and beyond State Street. He urged the applicant to test the proposed system and demonstrate to the Township that it will be effective in controlling the sound levels.

Mr. Iapalucci said that he would be supportive of the test provided the Borough residents who have been bothered are consulted and their input is included in the result reports.

Mrs. Beasley agreed with this idea, noting that she did not want to recommend that the approval be granted unless or until it has been confirmed that the system will work to the neighbors’ satisfaction.

Mr. Marshall confirmed that LaStalla will install the system and conduct testing as quickly as possible. The Commission members and interested neighbors will be included in the testing. All other outdoor entertainment will cease until the issue is resolved. The music will be moved indoors.

In response to questions from the Commission, Mr. Masso said he had wanted the outdoor entertainment because the patio bar is larger than the indoor area and customers enjoy sitting outside more. The outdoor entertainment is now an integral part of the business. He is seeking hours of operation until 2:00 AM to be sure that his business in not in violation. Music would end at midnight.

Mr. Sensibaugh asked if the Liquor Control Board required a different license for serving outdoors.

Mr. Marshall said that LaStalla has always had a license for service on the patio.

Mrs. Beasley said that with the Commission concentrating its discussion on outdoor music, she wanted to be sure that the other conditions of the approval are not overlooked. She would like to be sure that if the hours are extended for the bar, that the kitchen continues to offer food.

Mr. Fidler said that he would like to see the applicant given the same hours as other bars in the Township. He has some ongoing concern with the issue of music. While the Commission attempts to reach a compromise, once a compromise is reached he has concerns that the conditions will be adhered to.

Newtown Borough resident Noelle Finley of 35 Court Street said that she is concerned about any approval being given as the applicant is not adhering to his current conditional use approval. The applicant has shown disregard for his existing approval. She does not support any kind of plan to escrow funds or levy fines for non-compliance, because this does not help the impacted residents.

Newtown Borough resident Paula Greg of 217 Washington Avenue said that she does not hear music at her house, but hears and feels the beat of the bass. It was much worse in the spring before the leaves were on the trees. She has called the police at midnight a few times. She said that Commission and Board members are welcome to come to her porch to verify the testing. She will also give her feedback directly to Mr. Marshall.

Newtown Borough Council President Julia Woldorf, of 440 Washington Avenue, asked whether the amendment is seeking outdoor entertainment until midnight or until closing.

Mr. Marshall said the application is seeking to have entertainment until midnight.’

Ms. Woldorf said she is concerned that if the hours of operation are extended until 2:00 AM, the entertainment will continue until 1:30 AM, as it has been recently.

Mr. Fidler said that he had received a letter from Borough resident Bruce D”Amico asking that the application be denied, citing many of the same reasons as have already been discussed by other Borough residents.

Mr. Iapalucci moved to recommend that the Board of Supervisors approve The Barn/LaStalla’s application for extended hours until 2:00 AM, Monday through Sunday, subject to the condition that the kitchen remain open for food service during all hours of operation. He moved to recommend that the request for outdoor entertainment be denied at this time..

Mr. Whartenby seconded.

Discussion of motion: Mrs. Beasley said that she disagreed with inclusion of the phrase. “at this time.” She would not support this motion because of the vague denial of outdoor entertainment.

Mr. Iapalucci said that his intention is to postpone consideration of the music request until the testing of the sound system has been done and the Board and neighbors have been satisfied that it is effective in controlling noise, at which time he would recommend reviewing the request again.

Mr. Sensibaugh said that he is concerned about having the outdoor bar opened until 2:00 AM seven days and would prefer to recommend that the hours for the outdoor bar only be extended to midnight during the week, with the 2:00 AM hours only on Friday and Saturday nights. He did not object to the extended hours for indoor use.

Mr. Iapalucci said that other bars have hours until 2:00 AM, including on their porches and patios and he did not want to offer this applicant a different closing time. He asked to review the hours permitted for The Green Parrot.

Ms. Fountain read the conditional use for The Green Parrot, noting house of operation from 7:00 AM to 2:00 AM Monday through Sunday, including on the patio, with bar hours from 11:00 AM to 2:00 AM, with 70 days per year for 7:00 AM bar hours to accommodate certain special occasions. The kitchen is to remain open throughout.

Ms. Finley said that she has concerns about the outdoor bar remaining open until 2:00 AM. While other businesses in the area are open until 2:00 AM, there is table service on the patios. The bar would be a different atmosphere and would be noisier.

Mr. Iapalucci amended his motion to remove the words, “at this time,” and to include compliance with the other conditions of the 2001 and 2007 conditional use approvals, except where conflicting.

Mr. Whartenby amended his second.

The motion failed 2-3-1, with Mrs. Beasley and Messrs. Fidler and Sensibaugh voting nay and Mr. Cohen abstaining.

Mrs. Beasley said that she is concerned that the Commission is asking the applicant to test the sound system but the motion does not address the testing.

Mr. Sensibaugh moved to recommend that the Board grant the Barn/ La Stalla’s application for extended hours until 2:00 AM Monday through Sunday, for indoor operations and limiting until 12:00 AM outdoor patio bar hours Sunday through Thursday. Friday and Saturday patio bar hours may be extended until 2:00 AM. All other conditions of the 2001 and 2007 conditional use approvals are affirmed.

Mrs. Beasley seconded.

Mr. Iapalucci disagreed with this recommendation, stating that he would like approvals for hours of operation to be consistent with the other similar businesses in the Township.

Mr. Sensibaugh said that he would not object to use of the patio until 2:00 AM with table service, as is the case at The Green Parrot.

Mr. Whartenby said that he did not think closing the bar and using table service only would change the noise levels.

Mr. Schenkman said that he would support hours similar to The Green Parrot; he thought the other supervisors would probably be willing to consider the same hours as other businesses. He said that if the Commission recommends postponing consideration of the music issue the Board of Supervisors would probably agree.

Mrs. Beasley said that she thought the two businesses could be treated differently because The Green Parrot was approved as a sports bar; La Stalla is a restaurant in the historic district with certain requirements and restrictions set by HARB.

Mr. Sensibaugh withdrew his motion. Mrs. Beasley withdrew her second.

Mrs. Beasley reviewed the Green Parrot’s conditional use approval, which included provisions for valet parking on weekend evenings.

Mrs. Beasley moved to recommend that the Board of Supervisors grant The Barn/La Stalla expanded hours of operation consistent with those of The Green Parrot, with the same valet parking requirements. Mr. Iapalucci seconded.

The motion passed 4-1-1, with Mr. Sensibaugh voting nay and Mr. Cohen abstaining.

Mrs. Beasley recommended that the Board postpone finalizing a decision on outdoor entertainment until testing of the Articulate Pro Audio sound system has been completed. Mr. Iapalucci seconded.

Discussion of motion: Mr. Fidler said that the motion should state that the Township and Borough Planning Commissions as well as the impacted Borough residents should be included in the testing.

Mr. Sensibaugh said that if the applicant can demonstrate that the system will comply with Township noise ordinances, he does not object to outdoor music. The motion does not clarify the Commission’s position.

Mrs. Beasley said she was hesitant to include “compliance with Township noise ordinance, as the ordinance could be changed.

The Commission was in agreement that if the applicant demonstrates to the satisfaction of the Borough and Township as well as the impacted neighbors that the sound system effectively keeps noise within acceptable levels in compliance with the Township noise ordinance, they would be supportive of granting the request for outdoor entertainment. It is also the Commission’s understanding that the applicant would cease outdoor entertainment until a new conditional use has been approved, with the exception of the testing of the Articulate Pro Audio system.

Mrs. Beasley amended her motion to add that a test of the sound system outlined in the memo of Articulate Pro Audio dated July 23, 2010 is to be conducted. Planning Commission members and complaining neighbors are to be notified in advance of the test. In the event the test confirms to the satisfaction of the Township the outdoor music complies with existing Township Noise Ordinance decibel levels, and if the system is satisfactory to the complaining neighbors, then non-amplified outdoor music will be permitted on Wednesdays and Saturdays until 12:00 AM and amplified music will be permitted until 12:00 AM on Thursdays and Fridays.

Except where conflicting, applicant shall comply with all conditions of the prior conditional use approvals dated January 24, 2001 and August 13, 2007, all of which are reaffirmed.

The Applicant should address with the Board of Supervisors the outstanding violations to the existing conditional use decisions.

The Applicant shall address with the Board of Supervisors future enforcement of all conditions of all conditional use approvals.

Mr. Iapalucci amended his second.

Mr. Whartenby said that the tests should be evaluated by the Township’s sound professionals as well. He expressed some concern about addressing noise on other patios and about possible changes to the noise ordinance.

Mr. Fidler suggested that this be included in the Sycamore Street visioning discussions.

The motion passed 5-0-1, with Mr. Cohen abstaining.

Mrs. Beasley said that she has noticed heaters on the patio. She asked how long the patio season would be.

Mr. Masso said that this depends on the weather, but he expected the patio to be open from May through September.

Sycamore Street Visioning

Bucks County Planning Commission Executive Director Lynn Bush was in attendance to review a series of questions she prepared to aid the Commission in formulating recommendations for the TC Zoning District.

The first questions dealt with the marketability and economic feasibility of non-residential uses. The members asked whether there are any resources at the County level doing surveys and trending studies to help determine whether new uses should be added to the approved uses.

Mr. Schenkman said that he and Ms. Bush have participated in an economic development group whose focus has been the Business Commons. This group might be able to contribute some information.

Mr. Fidler said that he has also attended this group’s meetings. The discussion has primarily focused on business/corporate development rather than the retail or service sector. He suggested seeking input from commercial real estate developers.

Ms. Bush indicated that most businesses coming to Bucks have not done any serious research into economic viability.

Mr. Schenkman said that perhaps a new TC district ordinance could require some kind of economic feasibility study.

Ms. Bush said that she has given some thought to the performance standards to be required because Sycamore Street has a historic district. She mentioned a historic district in Vermont whose McDonalds had adhered to a certain standard. The building did not look like McDonalds. It did not remain a McDonalds and is used now for another business and was easily adapted to that other business. This should be considered when developing standards, because, for example, if the appearance is too much identified with the business, such as Pizza Hut, it makes adaptive reuse difficult.

Mr. Sensibaugh said that he would be hesitant to recommend allowing chain fast food because they are destinations which need large volumes with quick turn over. The goal here is to bring people in to walk around and go from shop to shop.

The Commission briefly discussed possibly providing incentives to developers who use green building practices or who include public amenities. Ms. Bush noted that this has been successful in Doylestown Borough for promoting green building. She could provide the Commission with more detailed information on this.

When considering dimensional standards such as height, setbacks and distance between buildings, Mr. Fidler suggested that the standards could be dependent on the lot size.

Mr. Fidler said that he has some concerns about requirements for this historic district. While preserving the historic structures, he would not want to require owners to use only historic materials in an adaptive reuse. Some new products can be used which would still be consistent with the historic character.

Mr. Schenkman agreed, saying he would not want to tie developers’ hands with historic requirements for new construction, but would want the size and setback to retain a human scale.

Ms. Bush said that there are two road connections she had presented to the Supervisors which she would want some input on the Commission’s reactions.

Mr. Schenkman said that he did not think there would be sufficient support for a road connection from South Eagle to Sycamore Street. The Commission members agreed, noting that this would require an additional cut on Sycamore Street, which is already very busy.

Mr. Schenkman said that the Board of Supervisors had informally discussed opening Howard Avenue, possibly as a driveway or a through street. Meglio’s has expressed interest in building a new restaurant taking access from Howard Avenue.

The members briefly discussed the ultimate right of way on Swamp Road. It might be possible to tie a connection through the existing parking lot opening to a new Meglio’s within the right of way.

Ms. Bush said that she would review the Commission’s past discussions to prepare an outline to be used for a joint Planning Commission/Board of Supervisors. Once she has a clearer idea of the direction to take, the Planning Commission agreed to ask the Board to authorize the Bucks County Planning Commission to draft an ordinance template.

Other Business: Mr. Fidler provided the members with copies of a Zoning Hearing Board application of Thomas and Carol Boyle, 43 Providence Court, seeking setback relief for a patio.

The members agreed to review this application at home and communicate any concerns with each other via e-mail, asking the recording secretary to forward any questions to the Board of Supervisors.

Mr. Cohen asked if this property backed to open space.

The members agreed that it appeared to have common open space at the rear, and that they typically pass such applications to the Board without comment.

Due to the late hour, Mr. Fidler tabled liaison reports.

Mr. Fidler moved to adjourn at 10:30 PM. Mr. Whartenby seconded and the motion passed 6-0.

Respectfully Submitted:


Mary Donaldson, Recording Secretary