NEWTOWN TOWNSHIP ZONING HEARING BOARD

Approval of the Minutes: Mr. Ragan moved to accept the minutes of May 1, 2003. Mrs. Laughlin seconded and the motion passed unanimously.

The Newtown Township Zoning Hearing Board met on Thursday, May 1, 2003 in the Newtown Township Building. In attendance and voting were Mario Lionetti, Chairman; Thomas Ragan, Vice-Chairman; John Lenihan, Secretary; Franklin Carver and Gail Laughlin, members. 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 7:30 PM. 

Pledge of Allegiance 

The Agenda was reviewed. 

Continued Application of Brett and Dawn Tanner

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

Application of John Bierach

Application of Colleen and Philip Mangogna

Application of Fedor and Susan Derek

Application of Yvonne Neiman 

Approval of the Minutes of April 3, 2003 

Mr. Ragan noted that page 1, paragraph four should read, "1983", page two, paragraph one should read, "subdivide the lot into two lots", and page four, paragraph two should read, "is open". 

Mr. Lenihan moved to accept the minutes of April 3, 2003, as amended. Ms. Laughlin seconded and the motion passed unanimously. 

Continued Application of Brett and Dawn Tanner 

Mr. Auchinleck reminded the Board that this matter was continued from the April 3, 2003 meeting because there was some confusion as to the calculation of the impervious surface ratio, and there was an open question as to the parking configuration. He said that prior to this evening's meeting the Board members had been provided with revised schematics showing corrected impervious surface calculations. 

Mr. Terry Clemmons represented the applicant in this matter. 

Mr. Clemmons submitted as Exhibit A-8, a two page plan showing the existing impervious surface coverage to the ultimate right-of-way and the proposed impervious coverage to the ultimate right-of-way. Mr. Clemmons said that page two of this exhibit shows the calculations of the existing impervious surface to include the store, concrete pads, driveways and stone parking areas. The total existing impervious surface is 25,882 square feet, 26.7%. With the proposed improvements and the return to pervious surface of some of the parking areas, the requested impervious surface area is 28,051 square feet, 28.9%. This represents an increase in impervious surface of 2.3%.  

Mr. Clemmons entered as Exhibit A-9 a plan of the proposed improvements, with areas currently impervious that are to be returned to pervious surface shaded in green. This plan also shows parking for 30 vehicles.  

Mr. Ragan said that at the earlier meeting, Mr. Tanner had stated that he had resolved his drainage problems with Mr. Roberts, and that Mr. Roberts had no objections to the new plans, however he had failed to obtain Mr. Roberts' signature on the petition of neighbors, Exhibit A-5. Mr. Ragan asked if Mr. Tanner had obtained Mr. Roberts' signature on the petition. Mr. Ragan said that he was concerned about this because at a previous hearing at which variances had been granted to Mr. Tanner, Mr. Roberts had objected. 

Mr. Tanner said that he has spoken to Mr. Roberts about the plans, and about the hearing, and Mr. Roberts does not object, but that he did not ask Mr. Roberts for his signature. Mr. Tanner said that he did not realize that this question was still open. 

Mr. Auchinleck advised the Board that as they consider whether to grant variances, the shaded areas in Exhibit A-8 and A-9 show areas to be returned to pervious surface, and these plans should be referenced in any relief granted. 

Mr. Lionetti asked Mr. Harwood if the Township is satisfied that the 30 parking spaces shown on the plan meet requirements of the Ordinance.  

Mr. Harwood said that the proposed parking satisfied the requirements set by previous Zoning Hearing Board relief.  

Mr. Carver suggested that relief should not exceed 29% impervious surface. 

Mr. Lenihan said that at the April meeting the Board had discussed requiring a buffering between the residence and the business, prohibiting subdivision of the property and requiring that the owner of the business live in the premises as conditions of any relief granted.  

Mr. Auchinleck said that Section 1003 requires buffering between residential and business uses. He said that no buffering is required between the Tanner property and the Township property or the Stonehouse parking lot. 

Mr. Lionetti moved to grant a variance from Section 401(A) and (B) and 1208(C)(2) of the Joint Municipal Zoning Ordinance of 1983 to permit two principal uses on a single non-conforming lot including E-1/E-7 retail lawn service and B-1 single family dwelling, with an impervious surface ratio not to exceed 29%, with the conditions that the property not be sub-divided; that owner of the retail business live on the premises; that buffering be provided in accordance with Section 1003 of the Joint Municipal Zoning Ordinance of 1983 between the home and the retail shop; and that the shaded areas shown in Exhibit A-9 be returned to pervious surface. Mr. Carver seconded and the motion passed unanimously. 

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

Mr. Auchinleck reminded the Board that Mr. Melsky had applied for a variance from Section 401(B) and 1208(C)(1)(a) and 1208(C)(2) of the Joint Municipal Zoning Ordinance of 1983 to permit a single family house without combining two contiguous parcels on a lot of 1.385 acres where 3 acres are required to erect a building on a non-conforming lot. Mr. Melsky had also asked that the Board consider that he had been granted a deemed approval of his Zoning Use Permit. On December 19, 2002, the Zoning Hearing Board had found that the Zoning Use Permit had a deemed approval and that no variances were required. 

The adjoining neighbors to the property have filed an appeal to this ruling. The applicant is concerned that if the judge in the appeal should decide that there is not deemed approval, that the applicant will have to apply to the Zoning Hearing Board a second time. The applicant has asked that the application be remanded to the Zoning Hearing Board for a decision on the variance as if there had been no question of deemed approval. 

Mr. Auchinleck said that at the meetings in December the applicant had argued that the property had been purchased and maintained as two separate building lots, and had never been intended to be combined. At the time of purchase, each lot was large enough to be considered a buildable lot. Each lot was purchased at a different time, however each was purchased by the same person. The current Ordinance requires that two contiguous non-conforming lots with the same owner must be combined to become one conforming lot. 

Mr. Auchinleck said that the applicant had attempted to show that the original owners had maintained the lots as separate lots and had planted a line of trees to demarcate the two lots. This tree line was planted in 1995. The original purchaser of the lots is deceased. 

Mrs. Laughlin said that she had not been appointed to the Board at the time that the application had been heard, and would abstain from voting. 

Mr. Ragan said that he had reviewed all of the minutes from the first hearing and that his opinion had not changed. He did not think that a variance should be granted. 

Mr. Lenihan said that while he agrees that the two lots should be combined to conform to current ordinance requirements, there is a building on one of the lots already, making the remaining parcel useless, creating a hardship for the applicant. He said that he would be in favor of granting a variance. 

Mr. Carver said that he agreed with Mr. Lenihan. 

Mr. Lionetti said that he believed that the Zoning Use Permit had been deemed approved, but if the Permit is not deemed approved that the Zoning Hearing Board must uphold the current ordinance requiring the two lots to be combined. 

Mr. Lenihan moved to grant a variance from Section 401(B) and 1208(C)(1)(a) and 1208(C)(2) of the Joint Municipal Zoning Ordinance of 1983 to permit a single family house without combining two contiguous parcels on a lot 1.385 acres where 3 acres are required to erect a building on a non-conforming lot. Mr. Carver seconded and the motion failed 2-2-1, with Messrs. Lenihan and Carver voting yes, Messrs. Ragan and Lionetti voting nay and Mrs. Laughlin abstaining.  

Application of John Bierach 

Mr. Lenihan read into the record the application of John Bierach for a variance from Section 803(H-3)(1)(a) of the Joint Municipal Zoning Ordinance of 1983 to permit a front yard fence with a height of four feet where the maximum permitted height is three feet. The subject property is 304 Linton Hill Road in the R-2 High Density Residential Zoning District. 

Mr. John Bierach was sworn in. 

Mr. Bierach explained that his home is located on the corner of Linton Hill Road and Frost Lane. There is a steep slope to the road from his front yard. He said that he would like a fence that has a maximum height of 48 inches and that is scalloped to a low height of 42 inches. The maximum allowed height is 36 inches. He said that he has two small children, ages 4 and 15 months, and he is concerned about their safety when they play outside. 

Mr. Lenihan said that he and Mr. Ragan had visited the site. He said that the proposed fences will be set back from Linton Hill Road and will be adjacent to the house, and on Frost Lane there is a steep slope to the roadbed. He said that the proposed fence would be the minimum to provide security for the children. 

Mr. Ragan said that existing shrubbery would hide the fence from the road.  

Mr. Auchinleck said that Linton Hill Road is a major collector road and he was concerned that a fence could obscure sight distance for cars. He said that he would like to mark the plan submitted with the application as Exhibit A-1, and any relief granted should specify that the fence is to be located as indicated in Exhibit A-1. 

Mr. Harwood had no comment on this application. 

Mr. Ragan moved to grant a variance from Section 803(H-3)(1)(a) of the Joint Municipal Zoning Ordinance of 1983 to permit a front yard fence with a height of four feet where the maximum permitted height is three feet, to be located as shown on Exhibit A-1.  Mr. Lenihan seconded and the motion passed unanimously. 

Application of Colleen and Philip Mangogna 

Mr. Lenihan read into the record the application of Colleen and Philip Mangogna requesting a variance from Section 401(B) (Penns Preserve Final Plan) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 20 foot by 42 foot pool with 1356 square feet of decking and patio resulting in an impervious surface ratio of 7,810 square feet where 5,292 square feet is the maximum permitted. The subject property is 10 Millstone Drive in the CM Conservation Management Zoning District. 

Mr. Philip Mangogna and Mrs. Colleen Mangogna were sworn in. 

Mr. Mangogna explained that at the time that he purchased his home he had discussed his plans for a swimming pool with the builder. His lot was chosen, with a $20,000 lot premium, specifically because it is the largest in his development. His house was built with many upgrades designed for the pool that he plans to build. His closing papers show that his one-acre lot had a 20% impervious surface ratio. With the pool and decking that he plans his lot will have 17.5% impervious surface. 

Mr. Mangogna said that when he applied to the Codes Department for a permit to build his pool, he learned that the plans filed with the Township and County show a different allowable impervious surface ratio than the papers he had been given at closing. He said that he had never been told that the 20% impervious surface ratio was for the entire development, and that his lot's share of impervious surface is 5,292 square feet. The current impervious surface coverage is 5,610 square feet, an excess of 318 square feet.  

Mr. Lenihan said that he and Mr. Ragan had visited the site and felt that the lot is sufficient to handle the increased impervious surface. He said that the developer had appropriated impervious surface from this lot to meet the requirements of the entire development, and that this has created a hardship for this applicant. 

Mr. Auchinleck noted that the plan that is recorded in Doylestown shows only a certain percentage of impervious surface. He advised Mr. and Mrs. Mangogna to consult an attorney because the discrepancy could create a title problem. 

Mr. Mangogna said that he has consulted his attorney and been assured that there is not a title problem.  

Mr. Lionetti said that the Zoning Hearing board cannot consider injustices of the builder, but must make any decision on the request only. 

Mr. Harwood was sworn in

Mr. Harwood said that it is his opinion that the notes on the plan were made at the time that the application for the pool permit was made. He said that the builder had not been granted a variance for the additional impervious surface on this lot, and that it is the only lot in the development that exceeds its allowable impervious surface. He noted that no variance would have been required had this lot's impervious surface ratio been based on 20%. 

Mr. Lenihan moved to grant a variance from Section 401(B)(Penns Preserve Final Plan) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 20 foot by 42-foot pool with 1356 square feet of decking and patio, resulting in an impervious surface of 7,810 square feet where 5,292 square feet is the maximum. Mr. Ragan seconded and the motion passed unanimously. 

Application of Fedor and Susan Derek 

Mr. Lenihan read into the record the application of Fedor and Susan Derek requesting a variance from Section 401(B) and (C) (Eagle Glen Final Plan) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 29 foot by 40 foot deck, 8 foot by 8 foot hot tub, 12 foot by 14 foot addition, 562 square foot patio, 170 square foot pool, 301 square foot walkway, and 116 square feet of planters and stones resulting in a rear yard setback of 16 feet where 40 feet is required and an impervious surface ratio of 27.3% where the maximum impervious surface ratio is 20%. The subject property is 43 Sibelius Road in the CM Conservation Management Zoning District. 

Mr. Fedor Derek and Mr. Gerard Higgins, the architect for the project, were sworn in. 

Mr. Lionetti asked if anyone present wished to be a party to the application. Mr. Michael Peters and Mrs. Jean Peters of 45 Sibelius Road asked for party status in this application. 

Mr. Auchinleck advised the Board that there had been a technical defect in the notice and a change in the calculations of the application. He said that the application must be re-advertised. He suggested that the Board hear testimony this evening, and then continue the matter to the June 5, 2003 meeting. 

Mr. Auchinleck advised Mr. Derek that the notice for the May meeting had not been sent to all homes within 500 feet on the Derek property and so must be re-advertised and notices must be mailed again. He said that he understood that the shed on the Derek property is not included in the impervious surface calculations because it is on blocks. 

Mr. Derek entered as Exhibit A-1, the Eagle Glen Final Plan, Exhibit A-2, Eagle Glen Plan with proposed improvements, Exhibit A-3, Letter of Eagle Glen Community Association re Architectural Provisions in By-Laws dated April 29, 2003, Exhibit A-4, Letter of Eagle Glen Community Association re request for variances dated April 29, 2003, and Exhibit A-5, photograph of Derek home with superimposed outline of proposed improvements. 

Mr. Derek explained that his home is located at the end of a cul-de-sac. Penns Preserve open space is to the rear of his home, to the east is a drainage easement and drainage lot, and to the west is the Peters property. He said that the Peters home is not part of Eagle Glen development, but was built by another builder. 

Mr. Derek said that he had discussed his plan for improvements with the builder at the time of purchase of his home, and had been assured that that there was no problem. He said that his lot is an irregular shape and his house is placed on the lot in such a way that it would be impossible to add any improvements within the setback requirements. He pointed out that the improvements, when superimposed on the other homes in the development, as shown in Exhibit A-2, all fall within the setback line. He said that to the rear of his property is the Penns Preserve open space.   

Mr. Derek said that at the time that he contracted with his builder, the plans called for 18% impervious surface. He said that because of a mistake in construction, his foundation is higher than had been planned, and his driveway had to be re-graded to allow for a k-turn into his garage. This resulted in 375 square feet of additional impervious surface, or 21%. 

Mr. Derek said that there have been misrepresentations by the builder regarding the setback and impervious surface requirements, and with the open space that was to have been part of the development. He said that he felt that because of the various misrepresentations and mistakes by the builder, as well as the unusual shape of his lot, there is a hardship. 

Mr. Derek said that the Peters lot is not part of Eagle Glen Development and that Mr. and MRs. Peters are not members of the Eagle Glen Homeowners Association. He said that there are three other homes on Sibelius Road that are not part of the Homeowners Association. 

Mr. Michael Peters and Mrs. Jean Peters were sworn in. 

Mr. Auchinleck explained that as parties to the application they could ask questions of the applicant, but not give testimony until later in the proceeding. 

Mr. Peters asked if the Derek family had been the first to purchase a lot in this phase of Eagle Glen, and if they had specifically chosen this lot. 

Mr. Derek said that he purchased his lot on the first day it became available, but he was not sure if he was the first to purchase a lot that day. He said that he had chosen the lot because of its cul-de-sac location. 

Mr. Higgins showed the plans to Mr. and Mrs. Peters, pointing out the 11.9 by 14 foot three season room, a deck facing open space, and the small "endless" pool, chosen to limit the impervious surface. He said that part of the impervious surface will be planters to help provide a privacy barrier between the Derek and Peters properties. 

Mr. Carver asked if the 120 foot wide drainage lot would ever be built on.  

Mr. Derek said that this lot would be deeded to the Herlihy family at 41 Sibelius Road, and would remain open space. 

Mr. Carver asked the acreage of the Penns Preserve open space to the rear of the Derek property. 

Mr. Derek said that the Penns Preserve open space is 18 acres. 

Mr. Peters asked if he would be permitted to give additional testimony when the application is continued to June. 

Mr. Auchinleck said that Mr. Peters could give testimony at tonight's hearing and add to it at the June meeting. 

Mr. Peters said that he is the neighbor to the west of the Derek property. He said that he did not receive the Notice of Hearing in the mail. He said that there had been some drainage issues in the past and he was concerned if the impervious surface was increased that there will be additional drainage problems. He is also concerned that the setback variance requested is so large. He said that he had purchased his lot in the Conservation Management Zoning District because there are setback requirements and impervious surface limitations. He has complied with these requirements and would like them upheld for the other homes in the development. He said that while he agrees that the Derek lot is an irregular shape and is difficult to add to, he said that the Dereks chose this lot when other lots in the development were still available, and that could better have accommodated their plans for a pool and hot tub. He said that he thought that there was not a hardship, because this irregular lot was chosen by the Dereks, and that the ordinances should be upheld. He said that he did not think that the builder’s mistakes and misrepresentations should be corrected by the Zoning Hearing Board. 

Mr. Auchinleck said that the Zoning Hearing Board does not correct the errors of builders and realtors. 

Mr. Lionetti said that while applicants may give testimony about errors and misrepresentations, the Zoning Hearing Board does consider these as factors in making decisions. 

Mr. Lenihan asked Mr. Peters if he is having drainage problems now. 

Mr. Peters said that prior to the building of his house, Mr. Derek had told him that water drainage had been a problem on his own property. He said that last summer was very dry and he had no drainage problems. 

Mr. Ragan said that he had visited the site and did not think that there would be a problem with drainage onto the Peters property. 

Mr. Derek responded that he did not know why the Peters did not receive a notice in the mail, but that the notice had been posted on his property. He said that he had spoken to Mr. Peters prior to the building of the Peters house about draingage problems because he had some wet areas and was concerned that there would be run-off from the Peters property to his own. He said that his back yard has been re-graded and that there have not been any drainage problems, 

Mr. Higgins said that there is a swale between the Penns Preserve open space and the rear of the Peters property, and that the run-off is directed toward the street. 

Mrs. Laughlin asked if the walkway from the house is necessary. 

Mr. Derek said that he recognized that the 27.8% impervious surface ratio requested is high, and he could make adjustments in the walkway if necessary to reduce the ratio. 

Mr. Lionetti suggested that since the matter will not be decided until the June meeting, that Mr. Derek should try to alter his plan to reduce some of the impervious surface. 

Mr. Peters said that he was very concerned about the size of the setback variance requested. 

Mr. Harwood said that regarding any drainage issues, the Township Engineers would evaluate this project. He said that no structures would be permitted in the swale, and if the setback variance is granted they would not be given a permit to build in the swale. He said that the swale could be changed to accommodate the project. 

Mr. John Herlihy was sworn in. 

Mr. Herlihy said that he resides at 41 Sibelius Road and is the next-door neighbor to the east of the Dereks. He said that he did receive a Notice of Hearing in the mail. He said that other homes in the development have been granted variances for similar projects. He said that he has no objections and hopes that the Zoning Hearing Board will grant the variances requested.  

Mr. Carver moved to continue the application to June 5, 2003. Mr. Ragan seconded and the motion passed unanimously. 

Mr. Lionetti advised the applicant that the record is still open for additional testimony at the June meeting. 

Application of Yvonne D. Neiman 

Mr. Lenihan read into the record the application of Yvonne D. Neiman requesting a variance from Section 1000(E)(3)(b)(2) and 405(B)(Newtown Grant Final Plan) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 317 square foot patio walkway addition resulting in a 5 feet rear yard setback where 15 feet is required and an impervious surface ratio of 63.24% where the maximum permitted is 60% under the final plan and 30% under the ordinance. The subject property is 14 Cypress Place in the R-2 High Density Residential Zoning District. 

Ms. Yvonne D. Neiman was sworn in. 

Ms. Neiman explained that she would like to build a patio over the lawn at the rear of her townhome. She said that her yard is surrounded by a fence and her dogs have destroyed her grass. She would like to eliminate the lawn and just have a patio surrounded by planting beds. 

Mr. Ragan said that he and Mr. Lenihan had visited the site. He said that he is concerned about water run-off to neighbors properties. 

Ms. Neiman said that she backs onto open space, and she would make her flowerbeds wider to prevent run-off.  

Mr. Lionetti asked if the patio could be placed closer to the house rather than as shown in the plan to conform to the setback requirements. 

Ms. Neiman said that the landscaping plants are already in place and she would like the patio to replace the dirt in the center where she has been unable to grow a lawn. 

Mr. Harwood had no comment. 

Mrs. Laughlin said that she thought that the plans were appropriate for a small townhome backyard, and that if there are no drainage concerns and no neighbors objecting, that a variance should be granted. 

Mrs. Laughlin moved to grant a variance from Section 1000(E)(3)(b)(2) and 405(B)(Newtown Grant Final Plan) to permit construction of a 317 square foot patio walkway addition resulting in a 5 foot rear yard setback where 15 feet is required and an impervious surface ratio of not more than 63.24% where the maximum permitted is 60% under the final plan and 30% under the ordinance. Mr. Carver seconded and the motion passed unanimously. 

Mr. Lenihan moved to adjourn at 10:40 PM. Mr. Lionetti seconded and the motion passed unanimously. 

Respectfully submitted:

_________________________________
Mary Donaldson, Recording Secretary