7:30 PM

Approval of Minutes of December 19, 2002:  Mr. Ragan moved to approve the minutes of December 19, 2002. Mr. Lenihan seconded and the motion passed unanimously.

The Newtown Township Zoning Hearing Board met on December 19, 2002. In attendance and voting were Mario Lionetti, Chairman; Thomas Ragan, Vice-Chairman; John Lenihan, Secretary; Franklin Carver and Michael Leone, Members. Also in attendance were James J. Auchinleck, Jr., Esq., Solicitor and Ann Pratt, Stenographer.

Call to Order

Mr. Lionetti called the meeting to order at 7:30 PM.

Pledge of Allegiance

The Agenda was reviewed.

Continued Application of John W. Melsky, Estate of Ruth Melsky.

Approval of the Minutes.

Mr. Ragan moved to approve the minutes of December 5, 2002. Mr. Carver seconded and the motion passed unanimously.

Continued Application of John W. Melsky

Mr. Auchinleck explained that Mr. Leone had attended the meeting of November 7, 2002, and had carefully reviewed the minutes of the December 5, 2002 meeting, when testimony had been continued. He said that it is the custom of the Board to allow a member to participate in deliberations in these circumstances.

Mr. Auchinleck stated that all parties had submitted Memoranda of Law in this matter and that he had reviewed all memoranda. He said that the Board must consider three issues: are there two lots or one lot; has a deemed approval occurred; is applicant entitled to variances and a special exception to build on a non-conforming lot.

Mr. Auchinleck said that Mr. VanLuvanee has cited cases that support that the two contiguous lots have not retained single and separate ownership and are automatically combined by the Zoning Ordinances. Mr. Auchinleck said that his research has confirmed that case law supports this conclusion, although a door had been left open for an interpretation of single and separate ownership. He said that each case relies on the wording of the applicable ordinances. Some ordinances allow separate and single ownership if the lots have been maintained in different physical condition or have had different uses. He explained that the Newtown Township Ordinance does not allow for this door to remain open, as its definition states that lots owned by the same person, persons, corporate entity, etc., and that abut or are contiguous are joined as one lot.

Mr. Auchinleck said that his research has found statutes that state that if a municipality regulates construction by means of a permit, then a time limit applies, and applications must be acted on, and decisions rendered in a timely fashion. The Township has argued that its Building Permit has a time requirement for response, but that the applicant has submitted a Use Permit, which does not have a time limit. The statutes require that if the municipality regulates construction by means of permit, then to have different permits, some not requiring a timely response, is considered an attempt to circumvent the timely response requirement. Mr. Auchinleck advised the Board that it is his opinion that, because Mr. Melsky did not receive a response within the required time period, as confirmed by the Zoning Officer, then his application is deemed approved.

Mr. Auchinleck said that if the Board agrees that there is only one lot, and if the Board does not agree that a deemed approval has occurred, then the Board must consider whether the applicant is entitled to the variances and special exceptions applied for, that is to divide the lot into two separate non-conforming building lots.

Mr. Leone asked if the applicant would have to come back to the Zoning Hearing Board if the parties objecting to the application were successful in appealing a decision of deemed approval. He asked if the Board should consider finding a deemed approval and granting variances.

Mr. Auchinleck said that if the Board finds that there had been deemed approval, then they do not need to decide on the variances.

Mr. Lionetti asked if the Zoning Hearing Board has jurisdiction to find a deemed approval.

Mr. Auchinleck said that in the Steen case, the Commonwealth found that in the interest of judicial economy, the Zoning Hearing Board should consider and act on the question of deemed approval.

Mr. Ragan asked if the Zoning Hearing Board, in considering the variances applied for, would be granting approval to build a second house on one lot, or if they would be granting approval to sub-divide the single lot into two buildable lots.

Mr. Auchinleck said that the Board had considered a similar case in November, when they granted permission to divide a six acre lot into two buildable lots, one less than the required three acres. The Board would be considering granting permission to sub-divide into two non-conforming buildable lots. The Board could consider the hardships in the case and grant a variance, but the special exception criteria do not apply.

Mr. Ragan asked if the Board found that there had been deemed approval because of a clerical mistake, will the applicant have to go through the land development process.

Mr. Auchinleck said that by finding that the applicant has been granted a deemed approval for his Use Permit, he will not have to appear before this Board for permission to build on less than three acres in the CM Conservation Management Zoning District. He will, however, be subject to other land development procedures.

Mr. Ragan asked whether the applicant would have been notified at the time of the changes in the Ordinance, that his properties were being combined, or were required to be combined.

Mr. Auchinleck said that when the Ordinance was approved, there would have been a newspaper advertisement notifying the entire township of all changes being made. He did not believe that the individual property owner would have been notified of specific changes in the Zoning Ordinance.

Mr. Ragan asked if the owner would have been informed that the property that he retained after the Melsky farm was sold to Council Rock School District was considered one lot only and had been conjoined to better meet the three acre zoning requirement.

Mr. Auchinleck said that he did not think that the owner would have been informed at that time that the remaining property was considered one lot.

Mr. Leone asked whether the Board should consider granting the variances applied for together with the question of deemed approval and possibly grant both.

Mr. Auchinleck said that if the Board finds that the applicant has been granted deemed approval, he would not have to return to the Zoning Hearing Board unless his building plans required other variances, such as setback or impervious surface variances. The applicant would still be required to apply to the Township for land development approval.

Mr. Lionetti moved to grant the appeal of the applicant from the decision of the Zoning Officer on the basis of a deemed approval of a use permit application. Mr. Carver seconded.

Mr. Ragan suggested that the Board be polled individually on this vote. Mr. Lionetti agreed to poll the Board individually.

The motion passed 4-1, with Mr. Ragan voting nay.

Mr. Lionetti moved to adjourn at 8:30PM. Mr. Ragan seconded and the motion passed unanimously.


Respectfully submitted


Mary Donaldson, Recording Secretary