Minutes of the meeting held on August 16, 2011


Present: Chairman Allen Fidler and Peggy Driscoll, Dennis Fisher, Larry Galley, Michael Iapalucci and Fred Olivari, members. Also in attendance were Michele Fountain, Township Engineer, John Torrente, Township Solicitor, Stacy Yoder, Township Planner and Michael Hartey, Code Enforcement Officer.

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

Approval of Minutes: Mr. Fisher moved to accept the minutes of August 2, 2011. Mr. Iapalucci seconded and the motion passed 3-0-3, with Mrs. Driscoll and Messrs. Galley and Olivari abstaining.

Conditional Use WEN-Hamilton (The Birches) 54-84 Durham Road: Attorney Ed Murphy, Engineer Heath Dumack and Michael McCormack of The Birches, were in attendance to review these applications for conditional use C-12, nursing home. Before proceeding to the discussion of the use, Mr. Murphy said that when he prepared the applications for both conditional use and land development, he had interpreted the Ordinance to use the number of employees per shift, rather than total number of employees to calculate the parking requirements. He has spoken to Solicitor Jeffrey Garton and the Codes Department. Both recommended that the Planning Commission should discuss whether the Ordinance is requiring the per shift or maximum total number of employees for parking calculations. The use will have 30 employees on the daytime shift, 10 on the evening shift and five during the overnight shift. If the total number of parking spaces for employees is 30, then the required parking per the ordinance would be 224 spaces. If the total of 45 is used, the required number of spaces would be 239 parking spaces. The applicant did not seek a parking variance from the Zoning Hearing Board, but instead is asking the Supervisors to allow that all but 88 spaces be held in reserve. The impervious surface and stormwater management plans will accommodate the full 224 spaces. If the required number of spaces is to be 239, the impervious surface calculation would be increased by 659 square feet, or an increase of 0.2% above the 44.7% granted by the Zoning Hearing Board.

Mr. Fidler said that he is concerned that if the Planning Commission considers the per shift employees it could set a precedent for future applicants. It had been the practice of the Commission to use the total maximum number of employees when calculating parking requirements.

Mr. Fisher noted that even when using the per shift number, there is some overlapping of employees during shift changes, which would require some additional parking.

Mr. Iapalucci expressed some concern that by using the per shift number, the Planning Commission would be overriding the decision of the Zoning Hearing Board on maximum impervious surface.

Mr. Murphy expressed some concern that if he is required to return to the Zoning Hearing Board, the project’s approvals would be delayed until at least late October. He had hoped to go to the Supervisors for both conditional use and land development approval at the second Supervisors meeting in September.

Mr. Olivari said that the proposed parking would be adequate. Asking the applicant to return to the Zoning Hearing Board would be a burden.

Mr. Galley agreed that the parking will be adequate as already calculated.

Mr. Murphy said that this is not really a question of parking, as the applicant intends to hold all bot 88 spaces in reserve. Only 88 spaces will be installed initially, whether 224 or 239 spaces are required. The only issue is that if the larger number is used for the calculations, the impervious surface exceeds the permitted 44.7%. The parking requirement was not brought to the Zoning Hearing Board; at the Supervisors’ suggestion, it is to be addressed at land development instead.

Mrs. Driscoll said that using the largest shift for calculating employee parking makes sense to her.

Mr. Fisher agreed that he is comfortable with this, as the proposed increase in impervious is de minimis. He reminded the Commission that at an earlier meeting, the applicant had agreed that parking would be reviewed by the Township on an annual basis and if the parking were to be found inadequate, the reserve spaces would be installed.

Mr. Fidler noted that the majority of the members are supportive of the proposed parking calculations, but he and Mr. Iapalucci have concerns, not only about the adequacy of the parking but of the interpretation of the Ordinance as “per shift.”

Mr. Murphy said that he would ask the engineer to review the plans further to see if 659 square feet of impervious surface could be eliminated from the plan to offset the calculation for the additional parking.

The Commission returned to its review of the conditional use application. Mr. Fisher asked whether oxygen is considered a hazardous or flammable material, as the application indicates that there will not be hazardous materials on the premises.

Mr. McGrath said that while there will be oxygen on the premises, the DEP considers it an accelerant.

Mr. Fidler asked about deliveries.

Mr. McCormack said that there will be food deliveries two or three times per week, and trash pick-up twice a week. Both will be at the loading area in the rear. Most pharmacy products are delivered through the mail directly to the residents.

Mr. Murphy said that the Joint Historic Commission has already visited the site and documented the buildings. He has correspondence from Jeffrey Marshall stating that a demolition permit could be issued.

Mr. Fidler asked why tree replacement has been added to the conditional use application.

Ms. Fountain explained that this seemed the appropriate place to address this. The Supervisors had asked the Zoning Hearing Board to require tree replacement either on site or elsewhere in the Township in parks or public areas. The Zoning Hearing Board declined to require such a condition, noting that it was a land development, not a zoning matter.

Mr. Murphy said that the plans show about half of the trees to be replaced on the open space at the rear of the property, with the other half to be planted at the Township’s direction.

Mr. Fidler expressed some concern about accepting trees as a condition of approval, as these trees would not be subject to the 18 month maintenance period. This could burden the Township with tree replacement.

Ms. Fountain said it was her understanding that some cash equivalent would be offered for purchase of trees by the Township.

Mr. Murphy said that the applicant would find a space for tree replacement on the property.

Mrs. Driscoll moved to recommend that the Supervisors approve conditional use for The Birches, WEN-Hamilton, LLC, for use C-12, Nursing Home, tax map parcels 29-6-6 through 29-6-12, subject to the following conditions:

  • That the applicant complies with the CKS Engineers, Inc. review letter dated August 9, 2011.
  • That the applicant complies with the Boucher and James review letter of August 2, 2011.
  • That the proposed use satisfies the specific requirements applicable to the proposed use, C-12, under Section 803.C.12 of the JMZO.
  • That the maximum per shift number of employees shall be 30, with an average of 15. More specifically, 30 on the daytime shift, 10 in the evening shift and 5 overnight shift,
  • No hazardous, flammable or explosive material, which require special handling shall be stored or used in the building.
  • 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.
  • Parking shall comply with Section 1001 of the Zoning Ordinance, with 88 parking spaces to be installed as depicted in the Preliminary as Final Plan dated January 11, 2011 and last revised on July 6, 2011 along with 136 additional parking held in reserve (for a total of 224 parking spaces), subject to annual review by the Township Code Enforcement Officer as outlined in section 1001 of the JMZO, subject to elimination of approximately 659 square feet of additional impervious surface or variance relief granted by the Newtown Township Zoning Hearing Board
  • All review fees must be paid.
  • Signage shall conform to the Township sign ordinance.
  • A correspondence from the Joint Historic Commission shall be secured confirming that it has had the opportunity to visit and photograph the Property,
  • The premises shall be ADA compliant.
  • The following tree replacement criteria shall be incorporated into the conditional use decision:

Every tree equal to or greater than six inches in caliper that is removed from the site during construction of the improvements shall be replaced with trees of equal or greater caliper. The minimum caliper of replacement trees shall be 3 to 3.5 inches. The existing trees that are to be removed that are six inches or greater in caliper shall be shown on the existing features plan.

  • That the proposed use satisfies the specific requirements applicable to the proposed C-12 use under Section 1301.B of the JMZO.
  • The hours of operation may be 24 hours a day, seven days per week.
  • No loud noise shall be generated on site and no music shall be permitted to be audible from the premises.

Mr. Olivari seconded and the motion passed 6-0.

Land Development – WEN Hamilton, LLC (The Birches) 54-84 Durham Road – Preliminary as Final Plan: Mr. Murphy reminded the Commission that this plan had been reviewed at a previous meeting and has been revised to comply with that earlier review. The plan consolidates tax map parcels 29-6-6, 29-6-7, 29-6-8, 29-6-9, 29-6-10, 29-6-11 and 29-6-12 to form an approximately 8.56 acre parcel for development as an 87,243 square foot assisted living facility with associated parking access drive improvements, landscaping and stormwater management.

Mr. Dumack reviewed the parking, showing the 88 parking spaces to be installed, the remaining spaces to be held in reserve. He noted the 7 handicapped spaces.

Mr. Fidler said that he continues to have concerns about the proposed 88 spaces. It might not be adequate for all of the employees, residents with cars and visitors. He noted that Chandler Hall does not have enough parking, particularly when it hosts events.

Mr. Murphy said that the applicant only wants to install the number if spaces that will be necessary. The Township will be reviewing the parking annually and can require installation of some or all of the reserved parking as needed.

Mrs. Driscoll said that this facility will be assisted living, only, whereas Chandler Hall has a public gym, a pool and many levels of care. She did not think it would have the same parking needs.

Mr. Fidler also expressed some concern about the burden to the Township of future parking reviews. As time passes, this agreement to review parking could be forgotten.

Mr. Iapalucci agreed with Mr. Fidler, noting that if there are to be 7 handicapped spaces, that leaves 81 spaces, minus the 30 for employees, or 51 for all others. He said he would prefer to see an additional 12 spaces installed at the time of construction.

Mr. Olivari said that he felt the parking would be adequate. He would rather not see the entire property paved for unneeded parking.

Mr. Galley agreed that the parking would be adequate for the proposed use. Additional parking can be added if the use expands as it has at Chandler Hall.

Mr. Murphy noted that the applicant runs twelve other, similar facilities, and would not want to provide insufficient parking. He has suggested this number based on his experiences elsewhere.

Mr. Fidler said that in this community, many assisted living residents have daily visitors. The residents will probably have family living close by, who will want to drop in often.

Mr. Fisher said that he would be comfortable with 88 to 100 installed parking spaces. He felt that 88 would probably be adequate.

Mr. Murphy reviewed the plans for the Eagle Road secondary entrance. The Planning Commission and surrounding residential community have favored a right in/right out access on Eagle Road, so the plans have been revised for that. A sidewalk is planned from the building to the corner of Eagle and Durham, where there is a crosswalk. He asked that no trail be continued along the facility’s Eagle Road side.

The Commission agreed that it would be better not to install a trail on that side of the street, which would end abruptly, forcing people to cross to the other side of the street where there is no crosswalk.

Mr. Murphy said that the applicant will comply, or has complied, with the remaining points in the review letters.

Mr. Fidler asked whether PennDOT has granted a highway occupancy permit.

Mr. Dumack said that the traffic engineer on the project is preparing the submission. It will be shared with the Township.

Ms. Fountain said that there is ample time to have the Township’s traffic engineer review the highway occupancy permit. She asked whether there are plans for widening the intersection at Eagle Road.

Mr. Dumack said that the project’s traffic engineer did not think this would be necessary; any widening would require relocation of the traffic lights.

Mr. Fidler asked whether the new Township traffic engineer has reviewed the plans.

Ms. Fountain confirmed that Amy Kaminski of Gilmore & Associates has reviewed the plan.

Mr. Iapalucci asked whether curbing would be extended on Eagle Road and on Durham Road.

Mr. Dumack said that the curbing would be placed on Eagle and he was waiting to hear from PennDoT about Durham, which is a state road.

Mr. Fidler asked about the proposed retaining walls.

Mr. Dumack said that he was waiting to hear from the supplier of the materials for the retaining walls, but would be submitting the plans to the Township Engineer before construction.

Mr. Olivari moved to recommend that the Supervisors approve the preliminary as final plan for Land Development of The Birches, WEN-Hamilton, LLC (“Applicant”) for the premises located at the northwest corner of Durham and Eagle Roads, Newtown Township, Bucks County for Tax Map Parcels ##29-006-006 through 29-006-012 prepared by Dumack Engineering dated January 11, 2011, last revised on July 6, 2011 and consisting of 18 pages, subject to the following conditions and variances previously granted:

  • Compliance with the August 10, 2011 Review Letter from CKS Engineers, except for the following comments, which shall be resolved as indicated:
  • Section I. Zoning:

No 7. – The Supervisors approve the conditional reduction in the no. of parking spaces from 224 to 88 subject to the following: (1) Applicant shall provide 88 parking spaces and an additional 136 parking spaces to be held in reserve (for a total of 224) subject to an annual review by the Township for parking adequacy as outlined in section 1001(g) and (2) the elimination of excess impervious surface by the Applicant or variance relief for the approximate 659 square feet of excess impervious surface is granted by the Township Zoning Hearing Board.

  • Section II. Subdivision and Land Development.

No. 4 – The Applicant’s Engineer will work with the Township Engineer to determine if a deceleration lane is required along Durham Road at the South Eagle Road intersection and abide by the township recommendations.

No. 6. – The Eagle Road entrance shall be right in/right out only.

No. 9. – A trail is not required from the Eagle Road entrance to the Durham Road/Eagle Road intersection.

  • The following waivers are requested and recommended:

(1.) Section 514.9, which requires the edge of a parking area to be more than twenty (20´) feet from the nearest building (the Plan shows only 13.57´.)

    • Section 516.2, which requires curbing along Durham Road. (no curbing is proposed)
    • (3.-5.) Section 521.5.G, 521.5.Q, and 522.4.A – which requires excavation or fill to be made with a face steeper then 4:1. (Applicant’s plan permits these slopes throughout the site and within the detention basin

(6.) Section 522.4.B, which requires the edges of slopes to a minimum of five feet from property lines or right of way lines of streets in order to permit the normal rounding of the edge without encroaching on the abutting property. (Applicant is requesting relief to show the retaining walls within five feet of the property line.)

2. Compliance with the July 29, 2011 Review Letter from Gilmore and Associates, Inc.

3. Compliance with the August 9, 2011 Review Letter from Boucher & James, Inc.

4, Compliance with the April 12, 2011 Review Letter from the Bucks County Planning Commission.

5. Compliance with the July 18, 2011 Review Letter from Newtown Emergency Services Department.

6. Compliance with the June 30, 2011 Review Letter from the Bucks County Conservation District with regards to the NPDES permit application. Applicant shall provide an adequate letter from the Bucks County Conservation District as to erosion and sediment control.

7. Applicant shall comply with any and all terms and conditions of the variances granted by the Township Zoning Hearing Board on February 21, 2011 and August 4, 2011.

8. Applicant shall secure conditional use approval from the Board of Supervisors for the C-12 use and comply with any and all terms and conditions of the approval.

9. Applicant shall supply all permits required by all Township, County, State and Federal governmental agencies.

10. Applicant shall execute and fund the Development and Financial Security Agreements in a form satisfactory to the Township Solicitor.

11. Applicant shall provide a will serve or appropriate agreement from the appropriate water and sewer authorities confirming the availability of public water and sewer to the project.

12. Applicant shall provide an adequate letter from the Bucks County Conservation District as to erosion and sediment control.

13. All lighting shall comply with all Township Ordinances (except to the extent any waivers or variances have been granted), no glare shall extend onto adjoining properties and a note shall be added to the Plan so indicating.

14. Applicant shall comply with all storm-water management ordinances and the Township Engineer recommendations as to storm-water and best management practices, and Applicant shall execute a storm-water management agreement in a form acceptable to the Township’s professionals.

15. No use shall be permitted which is noxious or offensive to the immediate area by reason of odor, dust, smoke, gas, vibration, illumination or noise, or which constitutes a public hazard by fire, explosion or otherwise, and a note shall be added to the Plan so indicating.

16. Applicant shall pay a traffic impact fee on the Schedule of Fees of Newtown Township, and as assessed by the Township Traffic Engineer.

  • Applicant shall execute a Declaration of Unilateral Restrictions and covenants as to the notes of the plan, which said declaration shall be subject to the approval of the Township Solicitor.
  • All review and professional fees, as required under the Township SALDO, shall be paid by applicant.
  • Applicant shall provide sufficient landscape buffering so as to preclude headlights from impinging upon nearby intersections.

20. All signs shall be subject to, and comply with, Township Sign Ordinances.

21 . A fee-in-lieu-of-dedication of park and open space area shall be paid in accordance with the Township fee schedule; and

22. The property shall be ADA-compliant.

Mr. Fisher seconded.

Discussion of motion: Mr. Iapalucci said that he would not vote to support the recommendation because he would want to see 100 parking spaces. He has no other concerns or objections, and is supportive of the plan, except for the parking.

Mr. Fidler said that he agreed with Mr. Iapalucci. He is not comfortable with the recommendation for annual reviews of the parking, but would prefer that parking be expanded now.

The motion passed 4-2, with Messrs. Fidler and Iapalucci voting nay.

Subcommittee and Liaison Reports

Board of Supervisors: Mr. Fidler reported that he had attended the recent Supervisors work session meeting. A resident of Newtown Grant sought to erect a paver patio in deed restricted preserved open space. The Traffic engineer gave a lengthy presentation of possible traffic calming solutions for Upper Silver Lake Road/Penns Trail North. Included were suggestions for additional 4-way stop signs.

The Supervisors heard a presentation for revisions to the Promenade plan, which would eliminate underground parking and reduce the size of the building to include 26 small apartments instead of 25 large condominiums. There is a reduction in the retail space by about 30,000 square feet. The group of investors indicated that they would need quick approval or the anchor tenant would pull out of the deal. The applicants are seeking a waiver of land development to move the project along quickly. Since this was a work session, the Board did not make any decisions regarding the plan.

Joint Historic Commission: The Commission members were provided with copies of a letter from the Commission to the Pennsylvania Historical and Museum Commission seeking advice on extending the historic district further south along Sycamore Street to include “post-war automotive age” buildings.

Mr. Fidler said that the Jointure has been working on a historic preservation ordinance for a number of years. It is very difficult to develop an inventory of historic structures and to place restrictions that both protect the structures and do not overburden the owners.

General Discussion

Mrs. Driscoll asked whether the Supervisors had appointed any new members to the Planning Commission.

Mr. Fidler said that the Board had briefly discussed two possible appointees, one a former supervisor and the other an architect. The discussion was tabled until the full Board is in attendance.

Mr. Fidler suggested that when a new member is chosen, the Planner and Engineer could do a review session before a meeting. It has been some time since the last training and review had been done and all of the members could use a refresher.

Mrs. Driscoll moved to adjourn at 9:20 PM. Mr. Fisher seconded and the motion passed 6-0.


Respectfully Submitted:


Mary Donaldson, Recording Secretary