NEWTOWN TOWNSHIP ZONING HEARING BOARD

MUNICIPAL BUILDING - 100 MUNICIPAL DRIVE

NEWTOWN, PA 18940

THURSDAY, JUNE 6, 2002

7:30 PM


Approval of the Minutes: Mr. Ragan moved to accept the minutes of June 6, 2002. Mr. Leone seconded and the motion passed 4-0. 


The Newtown Township Zoning Hearing Board met on Thursday, June 6, 2002 in the Newtown Township building. In attendance and voting were Mario Lionetti, Chairman; Thomas Ragan, Vice-Chairman; John Lenihan, Secretary; Franklin Carver, Member; and Michael Leone, Member. Also in attendance were James J. Auchinleck, Jr., Esq., Solicitor; Thomas Harwood, Zoning Officer; and Linda McCormick, Stenographer.

CALL TO ORDER

Mr. Lionetti called the meeting to order at 7:35 PM

THE PLEDGE OF ALLEGIANCE

THE AGENDA WAS REVIEWED:

Approval of Minutes of May 2, 2002

Continued Application of WLM Management, Inc. (530-02)

Continued Application of Brandywine Realty Trust (538-02)

Application of Bonnie and James Parsons (539-02)

Application of Ferdinand J. and Melissa B. Petito (540-02)

Application of Craig A. and Helen K. Smith (541-02)

Application of Anil Nerurkar (542-02)

APPROVAL OF THE MINUTES OF MAY 2, 2002

Mr. Ragan noted that on page 10, the last paragraph should read "at different times".

Mr. Lenihan moved to accept the minutes as corrected. Mr. Ragan seconded and the motion passed unanimously.

Mr. Lionetti advised the Board that he would change the order of the meeting to allow the private home owners to be heard before Brandywine Associates, as they have several witnesses to give testimony.

CONTINUED APPLICATION OF WLM MANAGEMENT (530-02)

Mr. Auchinleck advised the Board that he had a letter from T.J. Walsh of Stuckert and Yates, attorneys for the applicant, requesting a continuance to August 1, 2002.

Mr. Lionetti moved to continue the application to August 1, 2002. Mr. Ragan seconded and the motion passed unanimously.

APPLICATION OF BONNIE AND JAMES PARSONS

Mr. Lenihan read into the record the application of Bonnie and James Parsons requesting a variance from the Final Plan of New Haven and from the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 22 foot by 20 foot A-frame roof over an existing concrete rear patio, resulting in a 24 foot rear yard setback where a 30 foot rear yard setback is required. The subject property is 21 Devon Road, Newtown in the R-1 Residential Zoning District.

Mrs. Bonnie Parsons and Mr. James Parsons were sworn in.

Mr. Lionetti asked if anyone wished to be a party to the application. There was no response.

Mr. Parsons explained that he wished to put a roof on an existing concrete patio 22X20 feet wide. Mr. Parsons said that he had been given a building permit from the Township at the time of construction of the patio.

Mr. Lionetti asked if there are houses on all three sides of the Parsons home.

Mr. Parsons responded that he has neighbors to the left and right of his property, but to the rear is open space, and beyond the open space is farm land. Mr. Parsons had discussed his plans with his neighbors and they have no objections.

Mr. Lenihan said that he and Mr. Ragan had visited the property. He confirmed that the nearest structure to the rear of the property is a barn, at least 500 feet away. He believes this is the Sterling farm.

Mr. Ragan noted that the exposure of the patio is to the south and too sunny to enjoy in the summer.

Mr. Harwood had no comment in this matter.

Mr. Lenihan moved to grant the variance from the final plan of New Haven and from the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 22 foot by 20 foot A-frame roof over an existing concrete patio resulting in a 24 foot rear yard setback where 30 feet is required. Mr. Carver seconded and the motion passed unanimously.

APPLICATION OF FERDINAND J. AND MELISSA B. PETITO (540-02)

Mr. Lenihan read into the record the application of Ferdinand J. and Melissa B. Petito, requesting a variance from Section 404(B) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 391 square foot rear patio and a 513 square foot driveway extension resulting in a 16.68% impervious surface ratio where the maximum permitted impervious surface ratio is 12%. The subject property is 47 Cloverlea Lane, Newtown in the R-1 Residential Zoning District.

Mr. Ferdinand J. Petito was sworn in.

Mr. Lionetti asked if anyone wished to be a party to the application. There was no response.

Mr. Carver advised the Board that he resides at 95 Cloverlea Lane, and asked if anyone objected to his participation in the hearing.

Neither Mr. Petito nor the Board had any objection.

Mr. Petito explained that he wished to add a patio to the rear of his house and he wished to widen his driveway. His driveway is currently a single car driveway fanning out to a double width at the two car garage entrance with a total paved surface of 768 square feet. He would like to widen the driveway to double width for the entire length for a total of 1281 square feet of paved surface.

Mr. Lenihan noted that a shed was marked as "to be removed" on the plan that Mr. Petito had submitted, and asked if the shed had been removed.

Mr. Petito said that the shed would be moved to his neighbor's property within the next few weeks, and that the concrete slab the shed is on would be removed.

Mr. Leone noted that the increase in impervious surface is more than the Board usually grants. He thought that the driveway width could be tapered to limit the impervious surface ratio to 15%.

Mr. Lionetti agreed with Mr. Leone that the increase was more than he was inclined to grant.

Mr. Harwood had no comment on this matter.

Mr. Carver said that he did not think that the impervious surface ratio requested was inconsistent with the rest of Cloverlea Lane.

Mr. Ragan said that if the driveway was consistent with those of neighboring houses he had no objections.

Mr. Lionetti said that he did not think the Board should grant variances based on the existing conditions in a neighborhood, but rather on the requirements of the Ordinance.

Mr. Lionetti moved to grant a variance for an impervious surface ratio of 15% where the maximum permitted impervious surface ratio is 12%. Mr. Leone seconded and the motion failed 2-3, with Mssrs. Carver, Lenihan and Ragan voting nay.

Mr. Lenihan moved to grant a variance from Section 404(B) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 391 square foot rear patio and a 513 square foot driveway extension resulting in a 16.68% impervious surface ratio where the maximum permitted impervious surface is 12%. Mr. Ragan seconded and the motion passed 3-2 with Mssrs. Lionetti and Leone voting nay.

APPLICATION OF CRAIG A. AND HELEN K. SMITH

Mr. Lenihan read into the record the application of Craig A. and Helen K. Smith requesting a variance from Section 830(H-3)(1)(a) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 10 foot high chain link fence around the perimeter of a 60 foot by 120 foot tennis court to be located in the side yard of the property where the maximum permitted height is 7 feet. The subject property is 372 Swamp Road, Newtown in the CM Conservation Management district.

Mr. Craig Smith was sworn in.

Mr. Lionetti asked if anyone wished to be a party to the application. There was no response.

Mr. Ragan advised the Board that his property is adjacent to Mr. Smith's and that his rear yard faces the proposed tennis court. He asked if anyone objected to his participation in the hearing.

Neither Mr. Smith nor the Board had an objection.

Mr. Smith entered as Exhibit A-1, photographs taken from the area of the proposed tennis court facing north, south, east and west.

Mr. Smith explained that the fence would be around the tennis court only, and would be black to blend in and be less visible. He said that his property is large and he does not have a clear view of his neighbors. He has spoken to his neighbors and none have any objections to his plan.

Mr. Smith pointed out a stone wall in the photographs and stated that the wall ranges in height from 9 to 10 feet and is at the same elevation as the proposed tennis court. He said that the fence would be of a similar height.

Mr. Smith said that he has attempted to plant bushes to create a buffer at points in his property and that his cows eat the plantings, and so he is not planning to screen the fence with plants.

Mr. Auchinleck asked if Mr. Smith gives riding lessons, boards horses or intends to use the tennis court for other than personal use, and if the court would be lighted.

Mr. Smith said that he does not give riding lessons or board horses. His tenants are allowed to own horses. The tennis court will be unlighted and for personal use only.

Mr. Thomas Harwood was sworn in.

Mr. Harwood asked if the plans presented were recent, as the wall seemed to be at a higher elevation. He asked if the applicant would be excavating for the tennis court.

Mr. Smith said that there would be no excavation done. He said that the plan is old.

Mr. Carver moved to grant a variance from Section 830(H-3)(1)(a) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 10 foot high chain link fence around the perimeter of a 60 feet by 120 feet tennis court to be located on the side yard of the property where the maximum permitted height is 7 feet with the condition that there be no lighting on the court. Mr. Lenihan seconded and the motion passed unanimously.

APPLICATION OF ANIL NERURKAR (542-02)

Mr. Lenihan read into the record the application of Anil Nerurkar requesting a variance from Section 803(H-3)(1)(a) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of an 8 foot high ornamental driveway entrance gate supported by two 10 foot high brick columns located in the front yard, where the maximum permitted height is 3 feet. The subject property is 12 Eldridge Road, Newtown, in the CM Conservation Management Zoning District.

Dr. Anil Nerurkar was sworn in.

Mr. Lionetti asked if anyone wished to be a party to the application. There was no response.

Dr. Nerurkar explained that he lived at the end of a dead end street, and that his driveway appears to be a continuation of Eldridge Road. His driveway is very long and narrow, and if someone drives up his driveway by mistake, he must drive all the way up to the house to turn around. He said that both he and his wife frequently work nights at St. Mary's Hospital and are not comfortable with strange cars on the driveway when they are not home. He said that he would like to erect the gate to indicate his property as private property.

Mr. Lenihan said that he and Mr. Ragan had done a site inspection of the property and agreed with Dr. Nerurkar that cars mistakenly entering the driveway would have to continue to the house to turn around. He noted that the driveway is about 500 feet long and lined with pavers.

Mr. Ragan noted that the plan submitted would be in keeping with the look of the driveway. He thought that it would enhance the appearance of Dr. Nerurkar's property, and he noted that it would not be visible from Washington Crossing Road, only from Eldridge Road.

Mr. Auchinleck asked if Dr. Nerurkar's wife was an owner of the property as her name was not on the application.

Dr. Nerurkar stated that he and his wife own the property jointly.

Mr. Harwood noted that a 3 foot high fence would serve the purpose of demarcation of the Nerurkar property line. He asked if Dr. Nerurkar intended to keep the gate locked.

Dr. Nerurkar stated that the gate would be left open most of the time, and when it is closed it would not be locked. His intention is to clearly mark his property as private property to discourage cars from continuing along Eldridge Road up to his house. He has chosen this gate design because it is an attractive enhancement to his property.

Mr. Leone moved to grant a variance from Section 803(H-3)(1)(a) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of an 8 foot high ornamental driveway entrance gate supported by two 10 foot high brick columns, located in the front yard, where the maximum permitted height is 3 feet. Mr. Ragan seconded and the motion passed unanimously.

CONTINUED APPLICATION OF BRANDYWINE REALTY TRUST, UPPER SILVER LAKE ASSOCIATES (538-02)

Michael Coughlin, Esq. of Kaplin Stewart Meloff Reiter and Stein represent the applicant in this matter.

Mr. Lionetti asked if anyone wished to be a party to this application.

Paul R. Beckert, Jr., Esq., representing Mr. Larry Fyock of 45 Autumn Drive, Mr. Jeffrey Trayvor of 57 Autumn Drive and Arthur Micchelli of 51 Autumn Drive requested party status for his clients.

Mr. Coughlin objected to granting party status for Mssrs. Fyock, Trayvor and Micchelli as he said that only aggrieved parties can be granted party status. Mr. Coughlin stated that all three of Mr. Beckert's clients' properties are over 1000 feet from the flood plain crossing for which a special exception or variance is being sought. He further stated that both Brandywine and the Township have met to discuss this application and have agreed that only Millrace Office Campus and CAU are affected in any way by this matter.

Mr. Beckert stated that his clients properties all adjoin the Brandywine property and as such should be granted party status.

Mr. Auchinleck stated that party status is different for Zoning Hearing Boards than for appeals in the Court of Common Pleas.

Mr. Lionetti said that it was his understanding that anyone that the Township had notified of the application could be a party to the proceeding.

Mr. Auchinleck said that he would grant Mr. Beckert's clients party status in this matter.

Mr. Larry Fyock of 45 Autumn Drive was sworn in.

Mr. Coughlin asked Mr. Fyock to mark the location of his property on Applicant's Exhibit A-6, a site plan for The Newtown Corporate Center.

Mr. Fyock noted his address on the appropriate location on the plan, north of the flood plain crossing. Mr. Fyock stated that the proposed buildings are 300 feet from his property line, and that he would agree that the flood plain crossing is more than 500 feet from his property.

Mr. Fyock agreed that he purchased his home in 1995, and that it is zoned OR Office Research, as is the Brandywine property. Mr. Fyock understood at the time of purchase that the Brandywine property could be developed as an office complex.

Mr. Fyock said that an engineer had not reviewed any of the plans for the flood plain crossing on his behalf, and he did not know if an engineer had reviewed them on behalf of the other parties in this matter. He said that he felt he would be affected by the flood plain crossing as flooding has been a problem at his house during heavy rain storms and he feared that crossing the flood plain would exacerbate the problems. Currently rain water flows into a small tributary in the front of his house and his neighbors' houses, running north to south into Core Creek. He further explained that there is a detention basin to the right of his property, that serves his development of 25 homes. This basin drains into Core Creek at the CAU property. Mr. Fyock indicated the detention basin, the tributary, his neighbors properties and the point on CAU property where the water emptied into Core Creek. He expressed concern that putting pillars for a bridge would raise the flood plain at his property.

Mr. Jeffrey Trayvor of 57 Autumn Drive was sworn in.

Mr. Trayvor said that he did not know at the time of purchase that his home was in the OR Office Research district, but that he was aware that the Brandywine property was zoned for Office Research and that an office complex could be built there. He agreed with all of Mr. Fyock's testimony, except that he noted that the tributary runs to the rear of his property. He confirmed that he is farther away from the flood plain crossing than Mr. Fyock, but was not sure if it was more than 1000 feet. Mr. Trayvor has reviewed the plans, but they have not been reviewed by an engineer on his behalf. He was not aware that both Brandywine and Newtown Township had agreed that only Mill Race Office Campus and CAU were affected by the flood plain crossing.

Mr. Coughlin reserved the right to question Mr. Arthur Micchelli.

Mr. Auchinleck again confirmed that Mssrs. Fyock, Micchelli and Trayvor have party status in this matter.

Mr. Michener of 158 Silver Lake Road asked that he be allowed to speak at the conclusion of the proceedings.

Mr. Lionetti said that he would be heard at the conclusion, before a decision is rendered.

Mr. Jeremy Maziarz, Civil Engineer for Nave Newell, Mr. Anthony Remikis of Brandywine Associates and Mr. Richard Paresi, Structural Engineer for McMahon Associates were presented as possible witnesses by Mr. Coughlin.

Mr. Coughlin explained to the Board that Brandywine Realty Trust are developers and owners of the 58.77 acre property formerly known as the Roberts Tract. They have already developed the 106,000 square foot ICT building on a 15.11 acre parcel at the By-pass and Lindenhurst Road, adjoining the Roberts Tract, and they intend to develop the Roberts tract as five office buildings with 405,000 square feet of office space. The entire development will be known as Newtown Commons. It will adjoin the proposed Doorley development of Mill Race Office Campus and CAU.

At the request of the Township, Brandywine proposes to build a connector loop road through the office complex, connecting the By-pass with Upper Silver Lake Road. Brandywine is working with Orleans, developers of Wiltshire Walk, to coordinate the road.

McMahon Associates had prepared a traffic study for Newtown Township and Lower Makefield Township in 1998 and recommended the construction of this connector road to help alleviate traffic on the By-pass and at Lindenhurst Road.

Mr. Coughlin noted that Core Creek crosses the property, running east to west, at the site of the proposed road. Brandywine would like to construct a 125 foot bridge over the creek, requiring construction in the 400 foot wide flood plain. This is the point at which the flood plain is narrowest, and would cause the least disruption.

Mr. Coughlin stated that Brandywine was seeking a Special Exception to Section 903(B)(1)of the Zoning Ordinance to build a bridge in the floodplain, and/or a variance from section 905(IV)(B)(!) to construct a public road in the flood plain.

Mr. Coughlin entered as Exhibit A-1 the first and last pages of the Agreement of Sale of the property, as Exhibit A-2, Joinder and Consent to Zoning Hearing Board Application, and Exhibit A-3 a letter from Pennoni Associates Inc. dated April 30, 2002.

Mr. Coughlin stated that the Newtown Township Board of Supervisors had voted, at the April 24, 2002 meeting, not to oppose this application if the Township Engineers had reviewed the information submitted for the application and agreed that the bridge construction would not affect the proposed development of Millrace Office Campus. The Pennoni letter confirms that the construction will raise the flood plain approximately one foot immediately upstream of the bridge and will be attenuated to a minimal increase approximately 400 feet upstream of the bridge, and will not affect the proposed Millrace development.

Mr. Coughlin entered as Exhibit A-4 a letter to the Zoning Hearing Board from Daniel Doorley, partner in Millrace Office Campus, dated June 6, 2002, in support of Brandywine's application.

Mr. Jeremy Maziarz of Nave Newell, was sworn in.

Mr. Coughlin entered as Exhibit A-5, Mr. Maziarz' Curriculum Vitae, showing Mr. Maziarz as a Civil Engineer licensed in Pennsylvania, New Jersey and Delaware, and an expert witness in over 25 municipalities.

Mr. Maziarz is the consulting engineer on this project.

Mr. Coughlin entered as Exhibit A-6 the Site Plan for Newtown Office Commons, and as Exhibit A-7 the Newtown Commons Final Plan. (note that this was a large copy of the plan and had been damaged by the evening's rainstorm, and not kept by the Zoning Hearing Board)

Mr. Maziarz confirmed all of Mr. Coughlin's statements about the proposed 405,000 square foot office complex and the proposed connector road and bridge. Mr. Maziarz stated that this construction is permitted by right in the OR Office Research District.

Mr. Maziarz said that the Township is not opposing the application, and that the Township has requested a 60 foot easement on the road to be maintained by the Township.

Mr. Maziarz stated that it is not possible to construct the road without crossing Core Creek, and the location was chosen at the recommendation of the Department of Environmental Protection (DEP) and the Army Corps of Engineers because it will have the least impact, crossing the flood plain at its narrowest point.

Mr. Beckert objected to this as hearsay.

Mr. Auchinleck overruled Mr. Beckert's objection.

Mr. Maziarz stated that the bridge would be a 125 foot span from abutment to abutment. He said that the bridge on the By-pass crossing Core Creek is 130 feet.

Mr. Maziarz confirmed that Brandywine would obtain permits from the DEP. He said that the proposed bridge would not cause damage to life or property; would provide an important public service to the community; would be compatible with existing and proposed development in the vicinity; will be accessible to emergency vehicles in times of flood; would not materially increase the height, velocity, duration, rate of rise, or sediment transport of flood water at the site; will not create a nuisance; and will not result in extraordinary public expense.

Mr. Coughlin entered as Exhibit A-8, portions of Alternatives Analysis Study OR Zoning District, prepared for Newtown Township and Lower Makefield Township by McMahon Associates, Exhibit A-13 Technical Memorandum Alternatives Analysis Study OR Zoning District, and Exhibit A-14 Alternatives Analysis Study OR Zoning District.

Mr. Beckert objected as there was no witness present to testify on the McMahon Study, and no qualified traffic engineer present.

Mr. Coughlin stated that he did not intend to enter these exhibits as a traffic study, but to show that the recommendation for the connector road had been made.

Mr. Auchinleck said that he would accept Exhibit A-8, but would reserve ruling on Exhibits A-13 and A-14 at this time.

Mr. Beckert stipulated that A-8 was a excerpt of A-14 and repeated his objection to all three exhibits.

Mr. Auchinleck repeated that he would allow Exhibit A-8.

Mr. Coughlin stated that the McMahon study offered four recommended alternatives and that Brandywine was proposing to construct Alternative #3, a connector road to tie in to Penns Trail.

Mr. Coughlin offered as Exhibit A-9 a diagram of the Proposed Increase in the 100 Year Flood Plain, prepared by Nave Newell.

Mr. Maziarz pointed out that the proposed increase in the 100 year flood plain would occur upstream of the bridge and would be less than one foot and would dissipate in 400 feet. He pointed out that there would be no impact on the Doorley/Millrace property or on the Doorley parking lot for which a variance was granted on March 6, 2002.

Mr. Maziarz stated that the elevations change on the property as there is a slight slope. He said that the water would not rise or spread out to the residential properties. He explained the Cross Section Data on Exhibit A-9 to the Board, so they were better able to see how the water dissipated, beginning at the abutment of the bridge at .99 feet.

Mr. Maziarz said that it is not possible to build in the flood plain without any increase in the water level. He said that it would not be possible to build a bridge that would go completely over the flood plain as a bridge that would span 400 feet would need to place supports in the flood plain.

Mr. Coughlin entered as Exhibit A-10 a Plan and Profile for a 400 foot Bridge and the proposed increase in the 100 Year Flood Plain with a 400 foot Bridge.

Mr. Maziarz pointed out that while the increase in the water would be .12 feet at the bridge, the dissipation would be 370 feet, not very different from the 125 foot bridge.

Mr. Coughlin entered as Exhibit A-15 a copy of the DEP regulation relating to construction in a flood plain.

Mr. Maziarz noted that there would be construction in the "floodway", which is 90 feet wide at the point of the bridge construction.

Mr. Coughlin offered as Exhibit A-16 Floodplain Analysis dated March 29, 2002, prepared by Nave Newell, Exhibit A-17, the existing 100 Year Floodplain, Exhibit A-18, the proposed 25 year and 100 year floodplain, and A-19, a plan and profile of the proposed road.

Mr. Beckert said that he had no objection to Exhibits 9, 10, 15, 16, 17, 18, or 19, but renewed his objection to Exhibits 13 and 14.

Mr. Maziarz said that the Army Corp of Engineers and other regulatory agencies physically measure the flood plains, and also use some computer modeling.

Mr. Beckert asked Mr. Maziarz if he had visited the Autumn Drive properties adjoining the Brandywine property.

Mr. Maziarz said that he had visited the Autumn Drive development with representatives of Toll Brothers, Carroll Engineering and Pennoni Associates. He has walked along the streams. He had not done a flood plain analysis of Autumn Drive, because there was no increase in the flood plain beyond the CAU property.

In response to Mr. Beckert's questions, Mr. Maziarz said that any deviation in the .99 foot increase in the event of a 100 year flood was acceptable to the DEP. He noted that the bridge could not be moved to cross the flood plain at another location because it would encroach on wetlands. He said that to build a bridge completely over the 400 foot wide flood plain, a bridge would have to rise 8 feet high, and it would impact on adjoining properties.

Mr. Beckert agreed to reserve the rest of his questions until the next meeting.

Mr. Coughlin said that he has three more witnesses to give testimony and estimated that it would take an additional 45 minutes.

Mr. Leone asked if the property was accessible for a site inspection.

Mr. Remikis said that there is thick vegetation in summer, but that the property is accessible.

Mr. Ragan moved to continue the application to July 11, 2002. Mr. Lenihan seconded and the motion passed unanimously.

ADJOURNMENT

Mr. Lenihan moved to adjourn at 11:00 PM. Mr. Lionetti seconded and the motion passed unanimously.

 

Respectfully submitted

 

_____________________________
Mary Donaldson, Recording Secretary