NEWTOWN TOWNSHIP ZONING HEARING BOARD

MUNICIPAL BUILDING - 100 MUNICIPAL DRIVE

NEWTOWN, PA 18940

THURSDAY, MARCH 6, 2003

7:30 PM


Approval of Minutes of March 6, 2003: Mr. Ragan moved to approve the minutes of March 6, 2003. Mr. Carver seconded and the motion passed 4-0, with Ms. Laughlin abstaining.


The Newtown Township Zoning Hearing Board met on Thursday, March 6, 2003 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 Ann Pratt, Stenographer.

 Call to Order 

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

The Pledge of Allegiance 

The Agenda was reviewed.

Approval of Minutes of January 16, 2003

Application of Robert J. and Tammy Lynn Sutton

Application of Joseph Zook, Zook Crafts, Newtown Central Associates

Approval of the Minutes of January 16, 2003 

Mr. Lionetti noted that on page two, paragraph four should read "no children's classes", and "refreshments might be served".

Mr. Ragan moved to accept the minutes of January 16, 2003, as amended. Mr. Lenihan seconded and the motion passed 4-0.

Application of Robert J. and Tammy Lynn Sutton 

Mr. Lenihan read into the record the application of Robert J. and Tammy Lynn Sutton requesting a variance from Section 404(B) and 404(C) and a Special Exception under 1208((C)(2) of the Joint Municipal Zoning Ordinance of 1983 to permit a garage, kitchen, and porch addition resulting in a 19.47% impervious surface ratio instead of the maximum permitted 12%, a 14' 3" side yard instead of 60 feet, and a 10' 3" rear yard instead of 40 feet; the Special Exception to permit expansion of a building on a non-conforming lot. The subject property is 86 Vera Avenue, in the R-1 Medium Residential Zoning District. 

Mr. Don Marshall represented the applicants in this matter.

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

Mr. Paul Beckert, representing Robert and Carol Evans of 74 Vera Avenue asked for party status to oppose the application.

Mr. Auchinleck granted party status to Mr. And Mrs. Evans. 

Mr. Marshall entered as Exhibit A-1, the Deed to 86 Vera Avenue, and as Exhibit A-2, the plan for improvements dated November 14, 2002.

Mr. Marshall explained that he did not think that the front yard variance is needed, because the property is currently non-conforming and the improvements planned would not further encroach on the non-conformity, as the concrete handicapped ramp is to be removed and replaced with a porch of the same size. He noted that the rear yard is in fact a side yard because this is a corner property. He noted that the required rear yard setback is 40 feet, however the required side yard setback is 23 feet. He said that the applicants required a setback of 10 feet 3 inches. 

Mr. Robert J. Sutton and Mrs. Tammy Lynn Sutton were sworn in. 

Mrs. Sutton explained that her home, a corner property, is a 1576 square foot, one story ranch home, with three bedrooms, one bath, a kitchen, living room and garage. It was built prior to 1970, predating the current ordinance and the lot is 18,510 square feet. They are in the process of acquiring public water and sewer. 

Mrs. Sutton said that she would like to expand her home to include a larger kitchen, a veranda style front porch and three bedrooms on the second floor. She would like to expand her existing garage. The concrete ramp and a portion of her driveway will be removed to accommodate the improvements. Mrs. Sutton explained that the oldest of her four children, Robbie, has cerebral palsy and is confined to a wheelchair. He currently shares a bedroom with two younger brothers. The improvements will allow for handicapped accommodations such as wider doorways for his bedroom and bathroom, separate bedrooms and a bathroom for the other children, and a garage large enough for lowering the lift on the handicapped van. Currently, Robbie must exit the home through the front door, and enter the van outside.

Mr. Marshall explained that the current side yard setback is 19 feet, and at one point the setback will be 10 feet 3 inches. He said that the kitchen expansion would add 580 square feet of impervious surface, a 3.13% increase to 19.47%. He said that the new garage will be placed over existing concrete, and will be 31.8 feet long by 20 feet wide, to allow for a ramp and space to maneuver the wheelchair to the side-entry wheelchair lift on the van. 

Mr. Marshall noted that the entire house at 86 Vera Avenue currently is within the 60-foot front yard setback.

Mrs. Sutton said that the front porch will improve the appearance of her home, and that hers will not be the only two-story home on the street. The variances requested are the minimum requirements to accommodate the handicapped van and lift. 

Mr. Beckert asked how long the Suttons had lived in the house, and if they had four children at the time of purchase.

Mrs. Sutton said that her family purchased the home four years ago, and that they had three boys at the time of purchase. Their daughter was born after they owned the home. 

Mr. Beckert asked if the Suttons were aware that theirs was a non-conforming lot, and if they has shown their plans to Mr. and Mrs. Evans.

Mrs. Sutton said that she had not been aware of the non-conformity at the time of purchase, and she had not shown her plans to the Evans family. 

Mr. Ragan asked if the Suttons had other vehicles, and if they would also be parked in the garage. 

Mr. Sutton said that the family also has a truck. The new garage is for the handicapped van with the lift on the side. The truck will be parked on the driveway. 

Mr. Lenihan asked if the kitchen addition would be built over the existing concrete patio. 

Mr. Sutton said that the kitchen will replace the patio, and that the second story will not extend over the new kitchen.

Mr. Lenihan asked if the van is currently parked in the carport. 

Mrs. Sutton said that the carport is to be removed. The van does not fit in the carport.

Mr. Carver asked if the second story would extend over the new garage. 

Mr. Sutton said that the expansion would extend over the new garage, but not over the new kitchen. He said that the interior plans had not been finalized, and they were not certain of exactly where the new interior wall between the house and garage would be, or where the ramp to the garage floor would be. 

Mr. Beckert asked if the van was newly purchased, and if the old van fit in the carport.

Mrs. Sutton said that the van is new. She said that the old van did fit in the carport, but that the lift could not be lowered under the carport.

Robert and Carol Evans were sworn in. 

Mr. Evans said that he lived next door and slightly to the rear of the Sutton home. He had built his home four years ago. He lived there with his wife, two little daughters and one adult daughter. He specifically chose to build in this area of Newtown because he liked the feeling of open space, and he was aware of the zoning requirements that provide for setbacks and impervious surface. He said that he was opposed to the variance and special exception because the increase in impervious surface is 70%. He said that the construction would alter the character of the neighborhood and of his home. He said that the addition of a second story to the Sutton home would block the sunlight to his property. He said that because his home is set back from the road, the second story would block the view of his home from the street, and decrease his home's value.

Mr. Beckert entered as Exhibits O-1 and O-2, photographs of the Evans home and the Sutton driveway. 

Mr. Marshall asked Mr. Evans if he understood that the Sutton property had an existing impervious surface of 16.34% and that the proposed increase would only be 580 square feet. 

Mr. Evans said that he did not know that the property was already more than the permitted 12% impervious surface.

Mr. Marshall asked Mr. Evans how wide is the frontage of his home on Vera Avenue. 

Mr. Evans said that his home has a frontage of the width of his driveway and about six feet on either side of the driveway.

Mr. Marshall asked if the Evans property, a flag lot, had required any variances for impervious surface at the time of construction.

Mr. Evans said that he did not know, that his builder had taken care of any Township permits. Mr. Evans said that the setback from the edge of his house to the Sutton property line is 31 feet. 

Mr. Lionetti asked if a building had been removed before his home was built.

Mr. Evans said that his home was purchased from Edgewater builders and that there had been remnants of an old stone house on the property, which had been removed prior to his purchase of the property. 

Mr. Lionetti asked if the small plants in Exhibit O-1 marked the property line.

Mr. Evans said that the plants are on the Sutton side of the property line. The large tree sits in the middle of the two properties.

Mr. Lenihan asked if the addition would make the Sutton house the same size as the Evans house. 

Mr. Evans said that he thought that the two houses would be the same size. 

Mr. Lenihan noted that he did not think that the location of the Sutton house would cast a shadow to block the sun on the Evans property. Mr. Lenihan said that when he visited the site he noted that the house next door to the Suttons was 58 Vera Avenue.

Mr. Sutton said that 58 was right next-door, and that 74 Vera Avenue is set back behind his house.

Mr. Lionetti asked if the Suttons had considered building on the other side of the house. 

Mr. Sutton said that if the addition were on the other side, entrance from the garage would be through bedrooms and a bathroom. On the side proposed, entrance would be through the kitchen.

Mr. Marshall said that he thought that the front yard request was not necessary, as there is no further encroaching on the non-conformity. He said that all that is necessary is the side yard setback and the impervious surface increase. The second story addition can be done without variances. He said that the increase in impervious surface is only 580 feet, not really a great increase.

Mr. Beckert said that the applicants do not have a right to a special exception for a residential expansion for a residential use. He said that this is not a non-conforming use but a non-conforming lot. He said that Section 1208(A)(2) does not allow for expansion that exceeds the dimensional requirements by more than 25%. 

Mr. Beckert said that the applicants do not have a right to a variance. He said that they are entitled to build up, or expand the basement, but that the side yard setback sought is 62% over what is permitted. He said that the hardship is self-inflicted, as the old van did fit in the carport. He said that the changes sought would change the character of the neighborhood and the Evans property.

Mr. Marshall said that recent changes in the law for dimensional variances no longer hold to the "strict hardship" requirement, but allow for "reasonable hardship". 

Mr. Harwood had no comment.

Mr. Auchinleck explained to the Board that recent case law has allowed for a standard of reasonable hardship that is not self-inflicted. He advised the Board that if they are inclined to grant a variance for the setback, that they could limit the variance to the plan submitted in Exhibit A-2.

Mr. Lenihan moved to grant a variance from Section 404(B) and 404(C) and a special exception under 1208(C)(2) of the Joint Municipal Zoning Ordinance of 1983 to permit a garage, kitchen and porch addition resulting in a 19.47% impervious surface ratio instead of the maximum permitted 12%, a 14 foot 3  inch side yard instead of 60 feet and a 10 foot 3 inch side yard instead of 24 feet, and a special exception to permit expansion of a building on a non-conforming lot, limited to expansion submitted as Exhibit A-2 to the Zoning Hearing  Board. Mr. Carver seconded and the motion passed 4-0. 

Application of Joseph Zook, Zook Crafts, Newtown Central Associates 

Mr. Lenihan read into the record the application of Joseph Zook, Zook Crafts, Newtown Central Associates, requesting a variance from Sections 602(A), 803(H-6)(a) and 803(H-6)(c) of the Joint Municipal Zoning Ordinance of 1983 to permit H-6, outside storage use in the District allowing display of retail crafts on the sidewalk outside a retail store which can be viewed from public streets. The subject property is 2150 South Eagle Road, in the PC Planned Commercial Zoning District. 

Mr. Joseph Zook was sworn in. 

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

Mr. Zook explained that he has display cases on the outside wall of the Newtown Farmers Market. He said that when he opens the display cases to sell craft items, there is still a seven-foot wide sidewalk for shoppers to walk into the buildings. He said that his display does not face the street, but it acts as an indication that the Farmers Market is open. He said that he has been displaying crafts outside since May 2002, but that there has been an outside display since November of 2000. 

Mr. Elmer Zook was sworn in. 

Mr. Elmer Zook explained that he had been displaying and selling crafts outside on weekends for more than two years, but he sold the business in May 2002 to Joseph Zook. 

Mr. Ragan asked if the display cabinets remain outside when the Farmers Market is closed.

Mr. Elmer Zook said that the cabinets are attached to the outside wall. They open to display craft items, and are painted so that when closed they blend into the exterior walls of the Market building. They are not brought inside. 

Mr. Ragan noted that he has seen furniture items displayed on the sidewalk as well as the craft items in the cases.

Mr. Elmer Zook explained that the furniture business has a booth inside the Farmers Market, and that the furniture items on the sidewalk are orders, already sold, to be picked up that day, not display items. 

Mr. Elmer Zook said that the display acts as a sign that the Farmers Market is open and active.

Mr. Ragan said that the Ordinance does not allow for stores in the strip to sell merchandise outside. He said that the ordinance only allows outside sale and storage of items associated with agribusiness, such as livestock. 

Mr. Lionetti said that the Zoning Hearing Board must be careful to not allow one business to sell and store merchandise outside, because then other businesses will also want the same variances. This could create a flea market atmosphere.

Mr. Carver asked if the business also has a booth inside, where the cabinets can be stored if removed.

Mr. Joseph Zook said that the cabinets could easily be removed and stored in the indoor booth. 

Mr. Harwood was sworn in. 

Mr. Harwood stated that there is a provision in the Ordinance that allows seasonal sales and temporary displays. No permit is required for a sidewalk sale that is temporary. He said that the Codes department has dealt with such sales at Acme and Genuardis. The sales are permitted if they are temporary, such as Mothers Day plants left out for a short time before the holiday.

Mr. Auchinleck explained that if the variance is denied, that Mr. Zook could put merchandise outside for special holiday or seasonal sales, provided that they are removed when the holiday, or sale is over. 

Mr. Elmer Zook asked, if the cabinets are put on casters, could they be rolled outside for holidays, continuously, as one holiday season leads into another, such as Easter to Mothers Day to Fathers Day. 

Mr. Auchinleck said that the Ordinance allows some flexibility, but that the displays must be pulled in for periods of time, and not be displayed every weekend. He said that the porch awning is not part of the building, and no permanent display is permitted.

Mr. Lionetti moved to deny the request for a variance. Mr. Ragan seconded and the motion passed 3-1 with Mr. Carver voting nay.

Mr. Auchinleck advised Mr. Joseph Zook that he has 45 days to comply with the Ordinance. 

Mr. Lenihan moved to adjourn at 9:30 PM. Mr. Lionetti seconded and the motion passed 4-0.

Respectfully Submitted

 

________________________
Mary Donaldson, Recording Secretary