NEWTOWN TOWNSHIP ZONING HEARING BOARD
MUNICIPAL BUILDING - 100 MUNICIPAL DRIVE
NEWTOWN, PA 18940
THURSDAY, DECEMBER 5, 2002
Approval of the Minutes: Mr. Ragan moved to approve the minutes of December 5, 2002. Mr. Carver seconded and the motion passed unanimously.
The Newtown Township Zoning Hearing Board met on Thursday, December 5, 2002 in the Newtown Township Building. In attendance and voting were Mario Lionetti, Chairman; Thomas Ragan, Vice-Chairman; John Lenihan, Secretary; and Franklin Carver, Member. Also in attendance were James J. Auchinleck, Jr., Esq., Solicitor; Thomas Harwood, Zoning Officer; and John McHugh, Stenographer.
Call to Order
Mr. Lionetti called the meeting to order at 7:40 PM
Pledge of Allegiance
The Agenda was Reviewed
Continued Application of John W. Melsky, Estate of Ruth Melsky
Continued Application of Raymond J. Menna and Mary Menna
Continued Application of Newtown Center Associates
Application of Platinum Executive Suites
Continued Application of Raymond J. Menna and Mary Menna
Mr. Auchinleck advised the Board that the notice had been advertised with an incorrect address. The notice had been re-advertised with the address corrected, as 417 Taylor Avenue. The application had been read into the record at the November 7, 2002 meeting.
Mr. Raymond J. Menna was sworn in.
Mr. Lionetti asked if anyone present wished to be a party to this application. There was no response.
Mr. Menna explained that he wishes to enlarge his kitchen. The plans call for a 29 foot by 16 foot one story addition to the rear of his house. He would also like to put an 8 foot by 14 foot shed in his yard. This would bring his impervious surface ratio to 18.57%, and the Ordinance only permits 13%. He said that he has a family of six, and they have outgrown the small kitchen.
Mr. Carver asked if the property currently has 16% impervious surface.
Mr. Menna said that he does have 16% impervious surface now.
Mr. Lenihan said that he had visited the site, and he does not believe that the addition would cause any drainage problems for the neighboring properties. He said that this home had predated the current Ordinance, and that the previous maximum impervious surface ratio had been 20%.
Mr. Ragan said that there have been other variances granted in this neighborhood for similar additions without any drainage problems.
Mr. Harwood had no comment on this matter
Mr. Lenihan moved to grant a variance from Section 405(B) and a special exception under 1208(C)(2) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 29.8 by 16 foot one story addition and an 8 by 14 foot shed resulting in a maximum impervious surface ratio of 18.57% where 13% is the maximum permitted, and to permit expansion of a building on a non-conforming lot. Mr. Ragan seconded and the motion passed 4-0.
Continued Application of Raymond J. Melsky, Estate of Ruth Melsky
Mr. Auchinleck said that the matter had been continued in order for Mr. Harwood to produce, and Mr. VanLuvanee to examine, the Township files.
Mr. David Sander, representing Newtown Township, said that Mr. Harwood had reviewed the files and would clear his testimony. He said that the Township would be a party to this application, only as to the question of deemed approval of the Permit Application.
Mr. Harwood said that he had reviewed his files and found a copy of a written decision dated April 15, 2002, and previously submitted at Exhibit A-5.
Mr. Sander submitted as Exhibit T-2, an unsigned copy of this same document, "Notice of Zoning Disapproval of Application for Use Permit".
Mr. Harwood stated that T-2 is his April 15, 2002 opinion on the question of placing a detached house on subject 1.385 acre lot. This document was drafted by Mr. Harwood's secretary and reviewed, and approved by Mr. Harwood. It is a standard procedure for Mr. Harwood's secretary to draft such notices for his review and approval.
Mr. Sanders asked if Mr. Harwood knew if Exhibit T-2 had been mailed.
Mr. Harwood said that Exhibit T-2 had not been mailed. He said that Exhibit A-5, page two, with his signature affixed, had been mailed, along with Exhibit A-5, page one, a post it note signed by his secretary.
Mr. Harwood explained that the MEA system referred to in T-2 is an electronic program that accesses real estate at the Bucks County Courthouse.
Mr. Sanders submitted as Exhibit T-3, a map generated by the MEA system showing the subject parcel as "lot 3". This map is based on Bucks County records and documents on file at the County Courthouse.
Mr. Harwood explained that Exhibit T-2 makes reference to Section 401(B) of the Joint Municipal Zoning Ordinance of 1983, which requires lots in the CM, Conservation Management District, to obtain a variance from the Zoning Hearing Board to build a house on a lot of less than three acres, and the subject lot is in the CM district and is less than three acres. Exhibit T-3 shows the parcel as 2.521 acres.
Referring to the line dividing the lot into two separate lots, Mr. Harwood said that Exhibit T-2 sites Section 1208(C)(1)(a) of the Joint Municipal Zoning Ordinance of 1983 which requires, "that an owner of two or more contiguous non-conforming lots at the time of the effective date of the Ordinance, which when combined, would create a lot of conforming size, or which could be consolidated to minimize non-conformity, shall be required to combine such lots". Section 1208(C)(2) of the Ordinance requires that a special exception must be granted by the Zoning Hearing Board to alter or erect a building on a non-conforming lot. Exhibits T-2 and A-5 conclude that the applicant must seek relief from the Zoning Hearing Board for permission to build.
Mr. King asked if Mr. Harwood's files show that Mr. Cordes sent him a fax of the sewer easement plan on April 16, 2002.
Mr. Harwood said that he did receive such fax on or about April 16, 2002, and that the file contained additional and different information shortly after April 15, 2002, than it did when Exhibit T-2/A-5 was written on April 15, 2002.
Mr. Harwood confirmed that Exhibit T-3 was obtained from a system that uses the Bucks County Recorder of Deeds, the Tax Map Office and the Board of assessment as sources.
Mr. King said that T-2/A-5 states that compliance shall be met by obtaining a variance and special exception, and that the application before the Board is seeking such relief.
Mr. VanLuvanee noted that on the sewer easement map attached to the application, each parcel is labeled as the same lot. He said that the lot/lots became non-conforming in 1983. He asked Mr. Harwood if the Joint Municipal Zoning Ordinance (JMZO) of 1983 places any time restrictions on acting on a zoning permit.
Mr. Harwood said that it does not.
Mr. VanLuvanee asked if, in Mr. Harwood's opinion, the JMZO permits two homes on the same lot.
Mr. Harwood said that this is not permitted.
Mr. King asked Mr. Harwood if his file contained a copy of Exhibit A-1, Mr. Cordes' letter to Mr. Harwood regarding Mr. Melsky's formal application for a use permit as required by section 1403 of the JMZO.
Mr. Harwood confirmed that his file contains a copy of this letter, and a copy of Exhibit A-2. He said that his files do indicate that he had a telephone conversation with Mr. Cordes on March 26, 2002, in which he advised Mr. Cordes to use a "Newtown Township Building Permit" form in place of a "Zoning Use Permit Application".
Mr. Auchinleck asked Mr. Harwood to clarify the date of the signature on Exhibit A-5.
Mr. Harwood stated that Exhibit A-5 was signed immediately prior to mailing on or about July 25, 2002. He said that Township Exhibit T-2, the unsigned copy of A-5 had not been signed, nor had it been mailed.
Mr. VanLuvanee entered as Exhibit H-2, Newtown Township Zoning Ordinance of 1959, and H-3, the Ordinance as amended in 1979.
Mr. King stipulated as to the contents.
Mr. VanLuvanee stated that in 1979 the Ordinance required a minimum lot size of 130,000 square feet, or three acres. The subject tax parcel was non-conforming in 1979.
Ms. Mary Ann Miller of 285 Stoopville Road was Sworn in.
Ms. Miller said that she had known Ruth and Steve Melsky for as long as they had owned the first lot in 1956. She said that the Melsky family had purchased two buildable lots with the intention of eventually building homes on them. She is aware that many development builders construct homes on smaller lots throughout Newtown, and she feels that it is unfair to require the Melsky family to conform to the three acre requirement when exceptions have been made for the large developments. She said that she hoped the Board would consider that this family had been a part of the community for many generations, and had owned this property for nearly a half-century.
Ms. Michele Black was sworn in.
Ms. Black said that she has lived next to the subject lot since 1977, renting from the Melsky family. She said that she feels the Zoning Hearing Board should consider that the lot had been purchased as a buildable lot long before the Ordinance changed, and an exception should be made. She said that she has heard of other exceptions being made in the Township for conditions that pre-date ordinances. She hopes that the Zoning Hearing Board will allow a building on this lot which had originally been intended as a buildable lot.
Mr. Gene Mannherz was sworn in.
Mr. Mannherz said that he had known the Melsky family all of his life. He said that the properties had been purchased in 1956 and 1959 as buildable lots. He said that the previous owner of the lot, Mr. Johnson, had sold it as a building lot. He felt that because the surrounding lands are being sold to developers who build homes on less than three acre lots, that Mr. Melsky should be granted the same exception.
Mr. King presented to the Board a Memo of Law that he said addressed the issues to be considered. He referred to page five of the memo, which cites cases which find that whether two lots have one tax parcel number is immaterial. He said that his memo also cited cases supporting his premise that it is a legal hardship to force the owner to combine two contiguous lots. He said that the Melsky family separately acquired each lot and that each acquisition pre-dates the Ordinance. He said that it was never the Melskys' intention to combine the lots, as evidenced by the treatment of each parcel as separate; one lot was farmed, one landscaped; trees were planted to demarcate the lot line. Mr. King said that he felt that the proper way to address the Melskys' application was with a variance, however he thought that the Board could also find that the original application had been deemed approved because a decision had not been rendered, nor his clients been notified of a decision in the required 90 days.
Mr. Sanders said that regarding the deemed approval of the original application, there is no time restriction on the code department to respond to a Use Permit according to the Zoning Ordinance. He said that the Ordinance does place a 90 day limit for review of a Building Permit, but that this is not a Building Permit, but a Use Application.
Mr. VanLuvanee said that the Codes Department did take action on the Application, notifying the applicant in July. He said that the Zoning Hearing Board does not have jurisdiction to rule on the issue of deemed approval, only on the Special Exception and Variance.
Mr. VanLuvanee said that every property is subject to change under Ordinance. The parcel is 2.5 acres and does not conform to the Ordinance. He said that this has been considered one tax map parcel for 45 years. He said that Exhibit H-3 shows that this parcel had been non-conforming prior to the current Ordinance. He said that there is no evidence of hardship to grant a special exception as one owner owns the entire 2.5 acres which are required to be combined. He said that the two parcels had not been maintained as two parcels, but as one tax map parcel.
Mr. Auchinleck advised the Board that he was not sure if the Zoning Hearing Board has the authority to rule on the question of deemed approval. He said that if approval had been denied, the Zoning Hearing Board could grant variances and special exceptions. He said that he would like to do additional research before he advised the Board on the q1uestion of deemed approval.
Mr. Lionetti asked if the property owner had communicated with the taxing authority to join the two properties into one tax map parcel.
Mr. Auchinleck said that if one owner owns two contiguous lots they are combined by the Ordinance, however if the properties had separate ownership, even one lot belonging to Mr. Melsky and one to Mrs. Melsky, they could not compel the owners to combine the lots.
Mr. Carver asked Mr. Auchinleck if this case was similar to one before the Board a few years ago, in which non-conforming properties on Cloverlee Lane had been granted a variance.
Mr. VanLuvanee said that in the Cloverlee Lane application there was evidence of separate interest, such as separate sewer lines.
Mr. Auchinleck said that he would like to research whether the Board has authority to rule on the question of deemed approval. He said that if the application is deemed denied, then the Board could consider the granting of a variance and a special exception, but he wanted to determine whether the Zoning Hearing Board could rule that the application had been deemed approved.
Mr. Lionetti suggested that testimony be closed at this point and that the matter be continued to a special meeting on December 19, 2002 at 7:30 PM, to allow Mr. Auchinleck to research the question of deemed approval, at which time the Board would render a decision.
Mr. VanLuvanee asked if the Board would accept additional Memoranda of Law.
Mr. Lionetti said that they would accept additional Memoranda of Law.
Mr. Lionetti moved to continue the Application of Raymond J. Melsky, Estate of Ruth Melsky to December 19, 2002, to render a decision only. Mr. Carver seconded and the motion passed 4-0.
Continued Application of Newtown Center Associates
Mr. Harwood advised the Board that this applicant had requested a continuance, and may possibly withdraw the application.
Mr. Ragan moved to continue the application of Newtown Center Associates to January 2, 2003. Mr. Lenihan seconded and the motion passed 4-0.
Continued Application of Platinum Executive Suites
Mr. Lenihan read into the record the application of Platinum Executive Suites, LLC., KJMED LLC., owners requesting a variance from Section 1403(D)(1)(c) of the Joint Municipal Zoning Ordinance of 1983 to permit under a blanket certificate of occupancy instead of securing individual certificates of occupancy. The subject property is 12 Penns Trail in the LI Light Industrial Zoning District.
Mr. Auchinleck advised the Board that he had a letter from the attorney for the applicant requesting a continuance to January 2, 2003.
Mr. Ragan moved to continue the application of Platinum Executive Suites, LLC to January 2, 2003. Mr. Lionetti seconded and the motion passed 4-0.
Approval of the Minutes of November 7, 2003
Mr. Lenihan moved to accept the minutes of November 7, 2003. Mr. Carver seconded and the motion passed 3-0-1, with Mr. Ragan abstaining.
Mr. Lionetti moved to adjourn at 9:30 PM. Mr. Carver seconded and the motion passed 4-0.
Mary Donaldson, Recording Secretary