NEWTOWN TOWNSHIP ZONING HEARING BOARD

MUNICIPAL BUILDING - 100 MUNICIPAL DRIVE

NEWTOWN, PA 18940

THURSDAY, JULY 11, 2002

7:30 PM


APPROVAL OF THE MINUTES OF JULY 11, 2002: Mr. Ragan noted that page 8, paragraph 9 should read "or bridge". Mr. Ragan moved to accept the minutes of July 11, 2002, as corrected. Mr. Lenihan seconded and the motion passed 4-0.


The Newtown Township Zoning Hearing Board met on Thursday, July 11, 2002 in the Newtown Township building. In attendance and voting were Thomas Ragan, Vice-Chairman; John Lenihan, Secretary; Franklin Carver and Michael Leone, Members. Also in attendance were James J. Auchinleck, Jr., Esq., Solicitor; Thomas Harwood, Zoning Officer and Justine Gregor, Stenographer. 

CALL TO ORDER

Mr. Ragan called the meeting to order at 8:32 PM 

THE PLEDGE OF ALLEGIANCE

THE AGENDA WAS REVIEWED.

Approval of the Minutes of June 6, 2002

Application of Clara Bonavita

Application of Alex C. Bartos

Application of John Haberkern

Application of Ricky Lee

Application of Thomas J. Phayre

Application of Bruce and Randi Pashko

Continued Application of Brandywine Realty Trust

Application of Toll Brothers, Inc., Homes Built Pride, Inc.

APPROVAL OF THE MINUTES OF JUNE 6, 2002

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

For the benefit of those homeowners appearing before the Board for the first time, Mr. Ragan explained the procedure. 

APPLICATION OF CLARA BONAVITA

Mr. Lenihan read into the record the application of Clara Bonavita for a variance from Section 401(C) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 42 foot by 14 foot open wooden deck and a ten foot by eight foot concrete patio with a 51 foot rear yard setback where 60 feet is required. The subject property is 72 Winding Lane in the CM, Conservation Management District. 

Ms. Clara Bonavita was sworn in.

Mr. Ragan asked if anyone wished to be a party to this application. There was no response.

Ms. Bonavita explained that there was a mistake in the advertisement and that she was only planning to build a wooden deck. There currently exists  an  8X10 foot concrete patio in her yard, and her intention is to build the deck over this patio. Ms. Bonavita said that she thought that her application was correct.

Mr. Auchinleck said that this is not a problem. 

Ms. Bonavita said that her yard slopes to the rear and her patio is not level and she is not able to use it at all. Her intention is to build a wooden deck over the patio. The deck will be raised and underneath will remain grass. Ms. Bonavita stated that her property is 1 1/3 acres with woods behind her and to the side.

Mr. Lenihan stated that he and Mr. Ragan had done a site inspection and found that the yard is private and a large distance from the neighbors, and that he did not think that the deck would bother any neighbors.

Mr. Leone said that he had also done a site inspection and agreed with Mr. Lenihan.

Mr. Harwood had no comment. 

Mr. Lenihan moved to grant a variance from Section 401(C) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 42 foot by 14 foot open wooden deck with a 51 foot rear yard setback where a 60 foot rear yard setback is required. Mr. Leone seconded and the motion passed 4-0.

APPLICATION OF ALEX C. BARTOS

Mr. Lenihan read into the record the application of Alex C. Bartos requesting a variance from the Final Plan of Newtown Grant and from the Joint Municipal Zoning Ordinance of 1983 to permit construction of an 18 foot by 14 foot enclosed porch resulting in a rear yard setback of 23 feet where 25 feet is required and an impervious surface ratio of 31.32% where 30% is the maximum permitted. The subject property is 25 Crocus Lane in the R-2, High Density Residential Zoning District. 

Mr. Alex C. Bartos and Mrs. Sharon Bartos were sworn in.

Mr. Ragan asked if anyone wished to be a party to this application. There was no response.

Mr. Bartos explained that he wished to put an enclosed porch over an existing deck in his back yard. He said that the deck met with all of the requirements of the Ordinance, however the overhang of the roof added to the size of the deck and required the variance. He further stated that his home backs onto woods and has woods to the left. His neighbor to the right has a fence. 

Mr. Lenihan said that he and Mr. Ragan had done a site inspection and confirmed that Mr. Bartos' property backs to a wooded area. 

Mr. Leone said that he also had done a site inspection and agreed with Mr. Lenihan. 

Mr. Harwood had no comment in this matter. 

Mr. Carver moved to grant a variance from the Final Plan of Newtown Grant and from the Joint Municipal Zoning Ordinance of 1983 to permit construction of an 18 feet by 14 feet enclosed porch resulting in a rear yard setback of 23 feet where 25 feet is required and an impervious surface ratio of 31.32% where 30% is the maximum permitted. Mr. Lenihan seconded and the motion passed 4-0. 

APPLICATION OF JOHN HABERKERN

Mr. Lenihan read into the record the application of John Haberkern requesting a variance from Section 803((H-3)(1)(a) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a five foot high fence where the maximum permitted fence height is three feet. The subject property is 438 Durham Road in the CM Conservation Management District. 

Mr. John Haberkern was sworn in.

Mr. Ragan asked if anyone wished to be a party to this application. There was no response. 

Mr. Haberkern explained that he wants to fence in his property on Durham Road for the safety of his small children and for privacy. He said that traffic moves very fast along Durham Road and it is noisy and dangerous to his little children. He said that his driveway aligns with Twining Bridge Road and cars sometimes cross Durham Road mistaking his property for a continuation of the road. Cars also frequently use his driveway for u-turns. He also expressed concern that the proposed development of an office complex to the south of his property on Durham Road and a proposed traffic light at North Drive or at Municipal Drive would cause a back-up of cars in front of his house. Mr. Haberkern has planted a staggered double row of pine trees along the front of his property, placed 6 1/2 feet and 13 1/2 feet from the edge of the road. These trees are seven feet tall and grow at the rate of one foot each year. 

 He would like to put up a five foot high vinyl fence behind the pine trees to insure his privacy, keep lights from cars from shining in his windows at night and to allow his children to play on the property safely. The proposed fence would be 28 feet from the edge of the road and extend along the sides of his property toward the rear for 300 feet. The side fence would be placed between the existing rows of trees, providing buffering both on his side of the fence and his neighbors' sides. 

Mr. Haberkern entered as Exhibits A-1 and A-2, photographs of the fence he would like to install. He said that he has chosen the fence shown in A-2, four feet of solid vinyl stockade with one foot of lattice at the top, with the post as shown in A-1. The posts are 5 feet high. 

Mr. Lenihan asked why he would like to extend the fence along the sides of his property. 

Mr. Haberkern said that he wanted to have a uniform look to the property. 

Mr. Lenihan said that he and Mr. Ragan had done a site inspection of the property and he thought that the traffic on Durham Road was very noisy and he understood Mr. Haberkern's desire to block out the noise. 

Mr. Ragan said that because the fence would be set back from the road and behind the pine trees it would not be visible to passing traffic on Durham Road. He asked if Mr. Haberkern's neighbors objected. 

Mr. Haberkern said that his neighbors liked the idea. 

Mr. Leone stated that he did not like the idea of granting variances for five foot high fences in front yards. He said that he thought that the trees were providing privacy and that a three foot high fence and gate would keep out cars and keep his children safe. He noted that the house is set back 200 feet from the road and he thought a three foot high fence would address the problems as well as a higher fence. 

Mr. Ragan said that he thought that the front yard of this property was a more desirable place for the children to play and that the fence would be completely shielded by the trees, if not now then within a year or two. 

Mr. Harwood was sworn in. He said that he had concerns about the five foot high rolling gate across the driveway. He said that it could interfere with access to the property by emergency vehicles. He asked if the gate would be unlocked and easy to open. 

Mr. Haberkern said that the gate would not be locked and that the wheels do not touch the ground but that they roll on a track built into the gate and the gate folds into itself. 

Mr. Haberkern said that he had planned to place the fence 28 feet from the edge of the road but would be willing to go to 37 feet from the edge of the road. 

Mr. Auchinleck advised the board that if they were to grant this variance, it was important to specify the distance the fence would be placed from the ultimate right of way of Durham Road, as the "edge of the road" can change. 

Mr. Lenihan moved to grant a variance from Section 803(H-3)(1)(a) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a five foot high fence where the maximum permitted fence height is three feet, with the condition that the fence be four feet of solid vinyl and one foot of lattice, that the gate remain unlocked at all times,  and that the fence be placed at a distance of 28 feet from the ultimate right of way of Durham Road. Mr. Carver seconded and the motion passed 3-1 with Mr. Leone voting nay. 

APPLICATION OF RICKY LEE

Mr. Lenihan read into the record the application of Ricky Lee by Woodway Construction Co., requesting a variance from the Final Plan of Newtown Grant and from the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 14 foot by 14 foot sunroom addition resulting in a 19.7 foot rear yard setback where a 25 foot rear yard is required. The subject property is 7 Snowdrop Place in the R-2 High Density Residential Zoning District. 

Mr. Ricky Lee and Mr. Schaunn McKamey were sworn in. 

Mr. Ragan asked if anyone wished to be a party to this application. There was no response. 

Mr. McKamey explained that he had been contracted by Mr. Lee to add a sunroom to the rear of Mr. Lee's house and that his yard is not deep enough to accommodate the rear yard setback requirements. This will be a three season room, not heated, with a roof height of 14 feet. It is to be built off the existing dining room and attached to the existing deck. No variance was required for the deck because it is not an impervious surface and has a different setback requirement. 

Mr. Lenihan stated that he and Mr. Ragan had done a site inspection of the property and noted that there is a large deck surrounded by trees on the home the rear of Mr. Lee's property, affording privacy to that neighbor, and that there is a swale lined with bushes between the properties. 

Mr. Leone said that he had also done a site inspection and he felt that the yard, and all of the surrounding yards are small and the houses are already close to each other. He felt that granting each home on this street a variance for an addition would create a very crowded appearance to the neighborhood. 

Mr. Ragan noted that none of Mr. Lee's neighbors had appeared at the meeting to voice an objection to the addition. All of the surrounding neighbors had been notified. 

Mr. Harwood had no comment in this matter. 

Mr. Ragan stated that he agreed with Mr. Leone that the houses are too close together to allow for additions with setbacks that comply with the Ordinance, but that the problem should be addressed by the builder at the time of construction. 

Mr. Carver moved to grant the variance from the Final Plan of Newtown grant and from the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 14 foot by 14 foot sunroom addition resulting in a 19.7 foot rear yard setback where 25 feet are required. Mr. Lenihan seconded and the motion passed 3-1 with Mr. Leone voting nay. 

APPLICATION OF THOMAS J. PHAYRE 

Mr. Lenihan read into the record the application of Thomas J. Phayre requesting a variance from Section 803(H-3)(1)(e) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a five foot high fence where the maximum permitted height is three feet. The subject property is 345 Crittenden Drive in the R-1 Medium Density Residential Zoning District. 

Mr. Thomas Phayre was sworn in. 

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

Mr. Phayre said that the rear of his home, in Eagle View at Cliveden Estates backs onto Eagle Road, and his property is considered to have two front yards. He said that there is heavy traffic traveling at high speeds all day and evening. He would like to erect a higher stockade fence to replace the three foot high post and rail fence that currently exists in his yard, inside his property line. He said that his two year old child will soon be able to climb the three foot fence, and that sometimes people in their cars shout to him when he is sitting on his deck. 

Mr. Lenihan stated that he and Mr. Ragan had done a site inspection of the property and that he noted a steep slope at the rear of his yard. He asked Mr. Phayre how high above the roadway his deck is. 

Mr. Phayre said that the slope begins inside his yard and continues on the other side of the fence. His yard is about six feet above the road bed and his deck is three feet above the ground, nine feet above the roadway. The existing fence is four feet above the roadway. If he places the new fence at that spot, people sitting on his deck would not be visible to passing motorists. 

Mr. Phayre said that his Homeowners Association requires a solid, natural wood fence, and the one he'd chosen is cedar. He did have a letter of approval from the Homeowners Association. 

Mr. Ragan said that at this particular location he is concerned that all of the homes backing onto Eagle Road will want to put up five foot fences, creating a "fort" look to the development. 

Mr. Leone said that he has noticed a fence a few doors down from Mr. Phayre in the same development, and does not recall the Board giving a variance for it. He said that the Ordinance exists to help keep the roadways from becoming unsightly. 

Mr. Lenihan said that this is a rear yard, and Eagle Road has become a very busy road. He said that the Board should be concerned first for the residents' safety, and secondly for aesthetics. 

Mr. Harwood had no comment on this matter. 

Mr. Lenihan moved to grant a variance from Section 803(H-3)(1)(e) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a five foot high fence where the maximum permitted height is three feet. Mr. Carver seconded and the motion passed 3-1, with Mr. Leone voting nay. 

APPLICATION OF BRUCE AND RANDI PASHKO

Mr. Lenihan read into the record the application of Bruce and Randi Pashko requesting a variance from the Final Plan of Newtown Grant and from the Joint Municipal Zoning Ordinance of 1983 to permit construction of a patio resulting in a 34.74% impervious surface ratio where a maximum of 30% is required. The subject property is 7 Saffron Court in the R-2 High Density Residential Zoning District. 

Mr. Bruce Pashko and Mrs. Randi Pashko were sworn in. 

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

Mr. Ragan said that he had been told by Alex Bartos, a Homeowner Association Board member,  prior to the start of the meeting that all applicants from Newtown Grant had Homeowner Association approval. 

Mr. Pashko explained that he wished to add a patio to his back yard. He had chosen E.P. Henry pavers because he had understood that they are sometimes considered pervious. He said that the design for the patio meets all setback requirements. 

Mr. Ragan said that he and Mr. Lenihan had done a site inspection of the property. He noted that there is a swale that handles run off from the property, and that the plan does meet setback requirements. 

Mr. Leone said that he had also done a site inspection. He noted that although the yards on that street are small, this patio is not too close to the neighbors. He expressed concern should every house in the area request a 4.74% increase in the impervious surface ratio. 

Mr. Pashko said that all the other homes in his section of the development already had decks or patios. His is the last home to install a patio. He is the original owner and has lived in the house for eight years and has not had any flooding problems in that time. 

Mr. Harwood had no comment in this matter. 

Mr. Leone moved to grant a variance from the Final Plan of Newtown Grant and from the Joint Municipal Zoning Ordinance of 1983 to permit construction of a patio resulting in a 34.74% impervious surface ratio where a maximum of 30% is allowed. Mr. Lenihan seconded and the motion passed 4-0. 

CONTINUED APPLICATION OF BRANDYWINE REALTY TRUST 

Mr. Michael Coughlin appeared representing Brandywine. Mr. Coughlin said that he would present testimony from three additional witnesses. Jeremy Maziarz, who had already been sworn in, would continue his testimony first. 

Mr. Mark Roth, Traffic Engineer, Mr. Richard Paresi, Bridge Engineer and Mr. Tony Remikis, Vice President of Brandywine were sworn in. 

Mr. Coughlin informed the Zoning Hearing Board that the Newtown Township Planning Commission had voted to recommend that the Board of Supervisors approve the Newtown Corporate Center Preliminary Plan at their July 2, 2002 meeting. 

Mr. Coughlin presented as Exhibit A-22 the Carroll Engineering letter of  June 14, 2002. The Planning Commission's recommendation of approval was conditioned upon compliance with this letter. Mr. Coughlin pointed out that the Carroll letter refers to crossing of the flood plain and to the Pennoni letter dated April 30, 2002, entered as Exhibit A-3. Mr. Coughlin reminded the Board that this Pennoni letter confirms that four Engineers, Pennoni and Carroll for Newtown Township, Nave Newell for Brandywine and  D.S. Winokur for Mill Race Office Campus and CAU agreed that the crossing would not adversely affect the adjoining properties. 

Mr. Maziarz confirmed that it is not possible to construct a road, pier of bridge in the flood plain without any increase in the flood level. 

Mr. Beckert asked if Mr. Maziarz had previously stated that it would be possible to build a small pier in the flood plain without any measurable increase in the flood level. 

Mr. Maziarz  again stated that it was not possible to build without any increase in the flood level.

Mr. Auchinleck asked it there is a way to build an access from the By-Pass to the site without increasing the flood plain. 

Mr. Maziarz said that it is not possible. 

Mr. Coughlin presented as Exhibit A-20 the Curriculum Vitae of Mark Roth. 

Mr. Roth confirmed that he is a Registered Professional Engineer, licensed in Pennsylvania and that he has appeared as an expert in Traffic Engineering before this and many other municipal boards. 

Mr. Roth stated that he has visited the site and  was familiar with the study prepared by McMahon Associates and presented as Exhibits A-13 and A-14, including its conclusions and recommendations. He said that the study estimates a full build-out of the OR district and recommends traffic improvements. Of the four recommended improvements the study proposed, recommendation 3, the road being presented to the Board at this time, was the preferred improvement because it would provide an alternate route for local traffic, relieve back-up on the By-Pass and relieve congestion of Lindenhurst Road. He said that if relief is not granted the only access to the property is on Silver Lake Road. 

Mr. Beckert objected to this testimony as not relevant. 

Mr. Coughlin said that he was trying to show that the road is necessary. 

Mr. Auchinleck said that the Zoning Hearing Board would allow the testimony. 

Mr. Roth said that upon completion of the project there would be 2000 trips by cars entering and exiting daily. 70% of the traffic would be coming from the By-Pass, 40% going east and 30% going west. 30% of the traffic would not use the By-Pass, but would be using local roads. 

Mr. Beckert asked if McMahon Associates is currently involved in the project. 

Mr. Roth said that they are. He said that the study was conducted in 1997/98 and that he was a staff engineer on the study, not the project manager. 

Mr. Beckert referred to Exhibit 8, Alternatives Analysis Study OR Zoning District. He said that there are nine recommendations in the study, and he asked if any of the recommendations had been implemented. 

Mr. Roth said that he did not know. 

Mr. Beckert said that none of the recommendations had been implemented. 

Mr. Coughlin presented as Exhibit A-21, the Minutes of the Newtown Township Planning Commission meeting of November 3, 1998. On page two, the OR District Traffic Study was presented by McMahon Associates and the Planning Commission voted to recommend to the Board of Supervisors that this connector road be planned. 

Mr. Beckert stated that the Planning Commission is only an advisory board. 

Mr. Tony Remikis said that he has been employed by Brandywine for five years as Senior Vice-President for Development and Construction. He said that Brandywine currently has 500 acres to be developed and 14,000,000 square feet of office space from Long Island to Virginia, primarily in the Delaware Valley. He said that he had attended a meeting on July 31, 2001 with representatives of Lower Makefield, the Lower Bucks Planning Commission, Penn DOT, and Newtown to discuss regional traffic issues, including the gravel trucks on Lindenhurst Road. The proposed connector road was discussed as a solution for developing the OR district without burdening local roads. 

Mr. Coughlin asked Mr. Remikis what the outcome of the meeting was. 

Mr. Beckert objected, as the outcome would be Mr. Remikis' opinion of the outcome. 

Mr. Auchinleck said that he would allow it. 

Mr. Remikis said that Lower Makefield and Newtown agreed that the connector road would be an acceptable solution. 

Mr. Beckert asked if Mr. Remikis could produce a document that would show that Lower Makefield and Newtown agreed that the road would be the preferred solution. 

Mr. Remikis said that he had no official document stating such. 

Mr. Beckert asked Mr. Remikis if the proposed 59 acre property could be developed with 414,000 square feet of office space and adequate parking with no other variances required. 

Mr. Coughlin objected, reminding the Board that Mr. Remikis was not an attorney. Mr. Coughlin stated that the Planning Commission had approved the development, and that it only required the variance sought for crossing the flood plain. 

Mr. Beckert asked if any substantial waivers would be required. 

Mr. Coughlin objected to the term "substantial waivers" since it is a subjective term and any waiver could be considered "substantial". 

Mr. Beckert asked if the project could be built without the connector road. 

Mr. Remikis said that it could be built without the road, but he was not sure that he would build it. He said that throughout his discussions with Newtown Township officials, the number one issue of concern was traffic. He said that he believed that the residents and officials had given support to the project because the road would be built to alleviate traffic problems. He said that he had been encouraged during the planning of Newtown Commons to provide access to the Roberts Tract because there was an understanding that the bridge and road would be built. 

Mr. Remikis said that the marketability of a 414,000 square foot office complex without traffic solutions would be severely impacted. He repeated that the Township officials he had met with lead him to believe that they wanted a first class corporate headquarters with a connector road. 

Mr. Coughlin referred the Board to Exhibit A-12, the curriculum vitae of Mr. Richard Paresi, a licensed Civil Engineer for McMahon Associates with an expertise in bridge engineering. 

Mr. Paresi said that he had reviewed the Nave Newell bridge plan and felt that it is appropriate. He said that to build a bridge that would span the entire flood plain would not be possible because it would be 400 feet in length and require a depth of 14 feet. The road would be raised eight feet, and there is not enough land to build the approach to such a bridge. He said that there are wetland restrictions that also must be considered. 

Mr. Beckert asked if this were true only at this site or at any site along the creek. 

Mr. Paresi said that this would be true anywhere along the creek. The proposed crossing is the narrowest point. Anywhere else on the property the bridge would have to be longer. 

Mr. Auchinleck asked if using multiple span piers, such as four 100 foot spans, a bridge could be built without affecting the flood plain. 

Mr. Maziarz answered that there would be an increase in the flood plain with such a bridge, and that the area of inundation would be almost the same as with a 125  foot bridge. 

Mr. Coughlin entered Exhibits A-20, Curriculum Vitae of Mark Roth, A-21, Newtown Township Planning Commission Minutes of 11/3/98, and A-22, Carroll Engineering Letter of 6/14/02. 

Mr. Harwood had no comment in this matter. 

Mr. Larry Fyock had been sworn in at the last meeting. Mr. Fyock stated that he lives at 45 Autumn Drive, adjoining the Brandywine property. He said that he is very concerned about the impact the flood plain crossing would have on his home and the other homes on Autumn Drive. He said that he does not want to see any increase in the flood plain. 

Mr. Richard Mulcahy was sworn in. Mr. Mulcahy resides at 40 Autumn Drive. He said that he agrees with Mr. Fyock. He also felt that the hardship Brandywine suffers is self imposed, by placing office buildings in a location without convenient access to major roads. 

Mr. Jeff Trayvor had been sworn in at the last meeting. Mr. Trayvor resides at 57 Autumn Drive. He is also concerned about the impact on the flood plain and the traffic impact. 

In summation Mr. Beckert said that the Ordinance was drawn to preserve the entire flood plain. He stated that to grant a variance the applicant must show undue hardship that is not self-imposed. The property can be developed without any variances. Mr. Beckert further stated that in Section 903(E)(1)(a) the Ordinance states that no special exception shall be granted. 

Mr. Beckert referred the Board to the Petullo case in Delaware County, in which the Commonwealth affirmed the Zoning Hearing Board's decision to deny a variance from a similar ordinance. In this case a barn expansion would have raised the flood plain one foot, and the Ordinance said that the flood plain cannot be raised. Mr. Beckert said that a de minimus concept is absolutely limited to dimensional variances, not use variances. He asked that as the Ordinance states that "no variance shall be granted", that the application be denied. 

In summation Mr. Coughlin said that first in response to neighbors' fears of floods, four different engineers had agreed that there would be no adverse affects on their properties; that only Mill Race and CAU were in any way affected. He said that if the project were to be built with existing road access through Penns Trail and Upper Silver Lake Road, there would be many more residents objecting to the project. 

Mr. Coughlin said that he felt that the Ordinance suffers from latent ambiguity. He said that the language in the Ordinance appears to be unambiguous, "no variance shall be granted", however this must be viewed in light of  Section 905(4)(B), which allows for special exceptions. This, he said, creates the latent ambiguity. 

Mr. Coughlin said that the DEP uses less that one foot as its standard for de minimus increase in the flood level. He said that this increase would not cause a danger to life or property in the event of a 100 year flood. When the two Sections of the Ordinance are viewed together, this request for a special exception or variance complies with the requirements. 

Mr. Coughlin said that the Petullo case referred to by Mr. Beckert, dealt with very different circumstances than this variance request. In Petullo, the applicant already had buildings and parking in the flood plain. The increase requested was found to be a risk to the health and safety of the surrounding area, and Petullo had failed to comply with requirements for storage of flammable materials. No hardship unique to the property was proven. In this case the Court did not address the ambiguity of the two Sections of the Ordinance together. 

Mr. Coughlin said that Brandywine had met all requirements for a variance: that there is a hardship unique to the  property; because of the location it is not possible to span the flood plain entirely with  a 400 foot  bridge; not putting in the connector road would be a hardship; and buying a property in need of a variance is not a self-imposed hardship. 

Mr. Coughlin pointed out that there are already bridges in the area and that the proposed office use is also consistent with the area. 

Mr. Harwood had no comment in this matter. 

Mr. Ragan moved to grant a variance from Section 905(B)(5) to permit construction resulting in an increase in the 100 year flood level by less than one foot and to allow backwater onto adjoining property and to allow a Special Exception under Section 903(B)(1) in relation to 905(IV)(B)(1) to allow construction of a public road within the flood plain for the property at Silver Lake Road known as tax map parcel number 29-10-76. Mr. Leone seconded and the motion passed 3-1, with Mr. Lenihan voting nay. 

APPLICATION OF TOLL BROTHERS, INC., HOMES BUILT PRIDE, INC. 

Mr. Lenihan read into the record the application of Toll Brothers Inc., Homes Built Pride, Inc. requesting a variance from Section 401(B), 902(B)(4)(d) and 902(B)(2)(b) of the Joint Municipal Zoning Ordinance of 1983 to permit 35 dwelling units where only 33 are permitted and to permit disturbance of 50% of Class I and II agricultural soils where only 30% and 25% respectively are  permitted. The subject property is 37 Stoopville Road in the  CM Conservation Management district. 

Mr. Ed Murphy represented the applicant in this matter. 

Mr. Murphy explained that Toll Brothers owns 39 acres, known as the McLaughlin Tract, on the northwest corner of Stoopville Road, at the Creamery and Linton Hill Road intersection. The property fronts Stoopville Road for 1050 feet. Toll Brothers had been granted a Conditional Use approval for a single access loop road with 35 homes, a B-14 use in the CM District. The 35 homes on 6,500 square foot lots complies with the Ordinance. The Planning Commission recommended approval of this plan in December of 2001. 

There have been ongoing discussions with the Planning Commission and the Board of Supervisors about a realignment and improvement of Stoopville Road.  Pennoni Associates and Carroll Engineering have been involved in designing the proposed realignment, which would encroach on the McLaughlin Tract. This realignment would make Stoopville Road safer, for the new residents of the Toll  development and for current residents of Stoopville, Linton Hill and Creamery Roads. 

Toll Brothers has evaluated the costs involved in the realignment and improvement project. To cover the cost of the project, they have re-designed the proposed development to build more expensive homes. They have changed the size of the lots to 16,000 square feet. The proposed large lot  development still meets open space requirements, however with the loss of 1.4 acres of right of way for the road realignment project, that land is no longer included in the calculation for density requirements and they are now only entitled to 33 homes. 

Mr. Murphy presented as Exhibit A-1 the small lot plan, Plan A,  and the large lot plan, Plan B, for the development, and as exhibit A-2, Section 902 Site Capacity Calculation for Existing Stoopville Road Alignment and Realigned Stoopville Road. 

Mr. Murphy said that the request for a variance  for 35 homes would permit the same entitlement as the development without the Stoopville Road improvements and the lose of 1.4 acres of right of way. 

Mr. Murphy said that as the lot size is larger and the homes are larger, more soil must be moved. Mr. Murphy reminded the Board that they had granted similar relief for Penns Preserve Development which required 79% disturbance of agricultural soils. 

Mr. Auchinleck read into the record a letter from John Rice, Solicitor for Upper Makefield, expressing Upper Makefield's concern about disturbance of agricultural soils. 

Mr. Leone said that Upper Makefield had not enforced the Ordinance consistently. He said that he thought that this matter had been taken to court and that there had been a Curative Amendment. 

Mr. Murphy said that Upper Makefield had not always been consistent with the Ordinance, however Newtown has always required a variance for disturbance of agricultural soils. He said that this application sought not 100% as stated in the Upper Makefield letter, but an increase from 20% to 50%. 

Mr. Murphy said that the realignment will not go to the south side of Stoopville Road at all, but will go 40 to 60 feet to the north. The homeowners to the south will gain the land that will be abandoned when the project is completed. He said that the Township Engineer had verified these figures, and that Upper Makefield has expressed support of the realignment. 

Mr. John Mangano was sworn in. Mr. Mangano is Vice President of Toll Brothers in charge of  overseeing development of the McLaughlin Tract. He confirmed the accuracy of Mr. Murphy's testimony. 

Mr. Harwood had no comment. 

Ms. Manya Deehr was sworn in. Ms. Deehr said that she resides at 21 Stoopville Road, a few miles west of the McLaughlin Tract. She expressed concern about the development in the Conservation Management District, as it is supposed to preserve open space. Ms. Deehr asked if the project could be completed with only 33 houses.

Mr. Auchinleck asked Mr. Murphy if the project could be completed with only 33 houses. 

Mr. Murphy said that the 35 houses would cover the costs for the road realignment project. 

Mr. Lenihan moved to grant a variance from Section 401(B), 902(B)(4)(d) and 902(B)(2)(b) of the Joint Municipal Zoning Ordinance of 1983 to permit 35 dwelling units where only 33 are permitted and to permit disturbance of 50% of class I and II agricultural soils where only 30% and 25% respectively are permitted, with the condition that Toll Brothers make improvements to Stoopville Road as shown in Exhibit A-1. Plan B, including dedication of land for the road. Mr. Carver seconded and the motion passed 4-0. 

Mr. Carver moved to adjourn at 11:15PM. Mr. Leone seconded and the motion passed 4-0. 

Respectfully Submitted

 

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Mary Donaldson, Recording Secretary