Minutes of the meeting held on August 2, 2011


Present: Chairman Allen Fidler, Vice Chairman Robert Whartenby and Paul Cohen (late), Dennis Fisher, and Michael Iapalucci, members. Also in attendance were Maureen Griet, Township Engineer, John Torrente, Township Solicitor, Kevin Kochanski, Township Planner and Richard O’Brien, Code Enforcement Officer.

All to Order: Mr. Fidler called the meeting to order at 7:35 PM.

Conditional Use - Red Berry Yogurt, 2830 South Eagle Road: David Wheeler, owner, was in attendance to review this application for a frozen yogurt shop, uses E-5 and E-6, in the Village at Newtown Shopping Center. Mr. Wheeler explained that the site had been a chiropractic office. He intends to have limited seating for less than 15 seats.

Mr. Fidler advised that the Sewer Authority might have a different EDU requirement for an eating place than for the medical use which had been at that location.

Mr. Wheeler said that he had spoken to the Sewer Authority. The site has one EDU which is sufficient for ten seats. The Sewer Authority was amenable to purchase of an additional EDU and then evaluating use for a six month trial period.

(Mr. Cohen arrived at this point.)

Mr. Wheeler explained that he has owned Rita’s Water Ice shops and has another Red Berry shop. The shops usually are opened noon until 9:00 PM with three employees. He might have additional employees during the grand opening weeks when customers might need additional attention.

Mr. Fidler advised Mr. Wheeler to seek the maximum number of employees he could have during busy times and to seek the longest hours to address special events or busy times. He would not be obliged to remain open during those hours, but if he wishes to change later, it would require a second approval. It is better to seek longer hours now.

Mr. Torrente said that the application could be amended at the Supervisors meeting.

Mr. Wheeler agreed to seek a maximum of seven employees and extended hours until 11:00 PM.

Mr. Fidler suggested that Mr. Wheeler point out to the Supervisors the seasonal nature of the business. He noted that the number of employees would impact parking requirements.

Mr. Iapalucci asked about deliveries. He had some concern that, since this store does not have a rear entrance, deliveries would be through the front door.

Mr. Wheeler said that he had similar concerns, as he would not want deliveries arriving through the front when customers are coming in and out. He has no tractor trailer deliveries. There are a total of 5 or 6 deliveries each week, some in refrigerated trucks, some UPS style trucks.

Mr. Fidler noted that the Supervisors might require off-peak deliveries.

Mr. Wheeler said that in the past he has arranged for regular vendors to have the key to his businesses for delivery of products during off-peak hours. He would speak to his vendors to see if such an arrangement could be made for this shop.

Mr. Iapalucci asked whether there are fire concerns because the shop has only one exit.

Mr. O’Brien said that the shop is 1,000 square feet and so meets the threshold for a single access. There are other precautions in place, including emergency lighting and a repression system. There are no cooking surfaces in the shop.

Mr. Fisher noted that the use E-6 specifically references drive through windows.

Mr. Kochanski explained that the ordinance has two separate uses, one for eating in and one for drive through/take out. The E-6 use is used for carry out service; a large number of this business’s customers will take their yogurt out of the restaurant.

Mr. Fisher asked about trash.

Mr. Wheeler said that the shopping center has a number of dumpsters at the rear. He would bring his trash to the dumpsters every day. They appear to be sufficient for his business. Outside of the shop there are trash receptacles in front of the shop which the shopping center attends to.

Mr. Iapalucci asked whether the applicant plans to put tables outside of the shop.

Mr. Wheeler said that he would probably place a few benches in front of the shop window. He showed the members photographs of sample benches.

Mr. O’Brien said that using the area under the shopping center’s canopy for benches is permitted. It will be part of the tenant fit-out permit.

Mr. Kochanski said that the only possible restriction is that the sidewalk and entrance are still ADA compliant with benches on the sidewalk out front.

Mr. Iapalucci asked about signage.

Mr. Wheeler said that he would use the existing channel sign which runs along the front of the entire shopping center.

Mr. Fidler said that the Planning Commission tries to help the applicant prepare for his hearing before the Supervisors. He briefly discussed the parking impact of this use on a busy shopping center. The center had been granted parking for shared and complimentary uses and too many eating places can impact the parking calculations.

Mr. Kochanski noted that this eating place is ancillary to other restaurants, since it only sells dessert products. His busier times will be after school and after meals. Many of the customers will already be at the shopping center and will make an additional stop.

Mr. Wheeler noted that he has recently incorporated ad “Just Yogurt, Inc.” Red Berry will be the name of his shop.

Mr. Iapalucci moved to recommend that the Board of Supervisors approve Just Yogurt’s application for conditional use for an E-5 eating place and E-6 drive-through/carry out eating place at 2830 South Eagle Road in the PC, Planned Commercial Zoning District, subject to the following conditions:

  1. That the applicant comply with the CKS Engineers, Inc. review letter dated July 26, 2011, paragraph #5, deliveries shall be during non-peak hours and no tractor trailer deliveries,
  2. That the applicant comply with the Boucher and James review letter dated June 23, 2010,
  3. That the proposed use satisfies the specific requirements applicable to the proposed uses, E-5 and E-6, under Section 803 of the JMZO,
  4. Outdoor seating shall be limited to benches,
  5. That the number of employees will be 3 to 4 per shift for a maximum of 7;
  6. That the hours of operation will be 9:00 AM to 11:00 PM, Monday through Sunday,
  7. No hazardous, flammable or explosive material which require special handling shall be stored or used in the building,
  8. No noxious, hazardous or offensive impact upon surrounding areas be created by the proposed use by reason of dust, odor, smoke, gas, vibration, illumination or noise, or which constitutes a public hazard by fire, explosion or otherwise.
  9. No loud music shall be generated on site and no music shall be audible from the premises .
  10. Signage shall conform to the Township sign ordinance;
  11. All deliveries will be during off peak hours;
  12. The premises shall be ADA compliant.
  13. That the proposed use satisfies the specific requirements applicable to the proposed use under Section 1301.B of the JMZO;
  14. Parking is deemed adequate;
  15. All review, legal, engineering, administrative and other review fees shall be paid to the Township;
  16. A copy of the lease, as required under Section 1302.B of the JMZO shall be provided to the Township.

Mr. Cohen seconded.

Discussion of motion: Mr. Iapalucci asked whether the condition which does not permit “offensive impact to surrounding areas created by…illumination” would prohibit the use of neon signs inside the shop which are visible from outside.

Mr. O’Brien said that this condition refers to lighting beyond the property, such as spotlights.

The motion passed 5-0.

Approval of Minutes: Mr. Fisher moved to approve the minutes of July 19, 2011. Mr. Whartenby seconded and the motion passed 4-0-1, with Mr. Fidler abstaining.

Subcommittee & Liaison Reports

Board of Supervisors: The recording secretary reported that at its last meeting the Supervisors agreed to accept donations to install a fence around the skate park.

Environmental Advisory Council: Mr. Fisher reported that Newtown Creek Coalition is sponsoring a creek clean-up on August 6, 2011 at 9:00 AM at the Centre Avenue bridge. The EAC has been working with Ms. Fountain to develop a brochure on stormwater management measures to serve as a guide for residents planning projects which will increase their impervious surface.

Joint Historic Commission: Mr. Fidler said that he has learned that the Commission is interested in expanding the historic district on Sycamore Street. If this were to occur after the Township has adopted a new TC Zoning Ordinance, Mr. Fidler asked whether the ordinance would need to be amended.

Mr. Torrente said that properties can be reclassified later.

Mr. O’Brien said that extending the historic district would involve the Pennsylvania Historic and Museum Commission, which would have to approve any change to the existing historic district.

New Business:
Mr. Fidler said that the Commission has struggled in recent months to have a quorum due to members’ other commitments, health issues, etc. He has urged the Supervisors to appoint a new member to the Commission and not wait until the reorganization meeting in January, but wondered whether the members would be supportive of a more formal request.

Mr. Fisher moved to formally request that the Board of Supervisors appoint a new member to the Planning Commission as soon as possible. Mr. Whartenby seconded and the motion passed 5-0.

Mr. Fisher said that he had been asked whether there are any Township ordinances to address a neighbor’s concerns about spraying of herbicides. Someone had asked whether he would have any recourse if sprays were drifting onto his residential property from an adjoining commercial property.

Mr. Fidler said that it is his understanding that such matters are addressed by the DEP and the Department of Agriculture.

Mr. O’Brien said that this is not addressed by the Township.

Mr. Kochanski said that he has seen some model ordinances from other states addressing this issue. There is disagreement as to whether this is a local or state matter.

Mr. Iapalucci moved to adjourn at 8:40 PM. Mr. Cohen seconded and the motion passed 5-0.


Respectfully Submitted:


Mary Donaldson, Recording Secretary