NEWTOWN TOWNSHIP ZONING HEARING BOARD

Approval of Minutes: Mrs. Laughlin moved to accept the Minutes of September 4, 2003. Mr. Carver seconded and the motion passed 4-0.

The Newtown Township Zoning Hearing Board met on Thursday, September 4, 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 Justine Gregor, Stenographer. 

Call to Order 

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

The Agenda was reviewed. 

Continued Application of Piccolo Trattoria

Application of Newtown Yardley Road Associates

Application of Ferdinand and Melissa Petito

Application of Eric D. Wahrhaftig – Martial Arts Training Academy 

Continued Application of Piccolo Trattoria 

Mr. Auchinleck reminded the Board that at their August meeting, Mr. Fami  Piccolo had presented an application to install a walk-in freezer in the loading berth area behind his restaurant. The Board had expressed concern about the adjustments to the curbing and grassy areas that Mr. Piccolo had proposed and about increased impervious surface. They had agreed to continue the application to allow Mr. Piccolo to produce more detailed plans. 

Mr. Lionetti reminded Mr. Piccolo that he was still under oath. 

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

Mr. Piccolo entered as Exhibit A-1, a plan of the Newtown Shopping Center, showing changes to the curbing in the driveway behind the restaurant. 

 Mr. Piccolo said that the owner of the shopping center has seen this plan. He explained that he has reduced the size of the freezer to a 6-foot by 13-foot freezer. He said that he intends to remove the curbing opposite the freezer and make the grassy area narrower to preserve the 30-foot setback. He is eliminating one parking space, which is currently occupied by his dumpster. He will move the dumpster to another parking space. He said that the parking area behind the restaurant is only used early in the day by High School students. His customers do not park there at all. He said that by eliminating one parking space he exchanges this impervious surface for the area he will take to widen the loading area to preserve the 30-foot setback, thereby retaining the same impervious surface ratio. 

Mr. Harwood was sworn in. 

Mr. Harwood said that the final plan for this shopping center calls for a 15 foot by 30 foot loading berth for each store, although the ordinance requires a 15-foot by 50 foot loading berth. He noted that tractor-trailers are 48 feet in length. He pointed out that each unit, regardless of the size of the store, requires the 15X30 foot-loading berth. 

Mr. Piccolo said that he only has one tractor trailer delivery each week, early in the morning, and none of the other businesses have regular tractor-trailer deliveries. 

Mr. Auchinleck asked if the elimination of one parking space would be a problem. 

Mr. Harwood said that it is not a problem.

Mr. Carver moved to grant a variance from Section 1002(D) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 6 foot by 13 foot walk-in freezer/cooler within the required loading area, leaving a 15 foot by 30 foot berth where 15 feet by 50 feet are required, with the condition that the curbing be modified in accordance with the site plan entered as Exhibit A-1. Mr. Ragan seconded and the motion passed unanimously. 

Application of Newtown Yardley Road Associates 

Mr. Lenihan read into the record the application of Newtown Yardley Road Associates, LLC, requesting a variance from Section 705(B) of the Joint Municipal Zoning Ordinance of 1983, to permit construction of four two-story office buildings resulting in an impervious surface ratio of 64.5% instead of the maximum permitted 50%. The subject property is Newtown Yardley Road and Friends Lane in the O-LI Zoning District. 

Mr. Doug Terry, Mr. Bill Messick and Mr. Dan McCloskey, partners, were sworn in. 

Mr. Terry explained  that Mr. Jim Worthington, a partner of Newtown Yardley Road Associates, is not present. 

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

Mr. Auchinleck explained that after the hearing members of the public would be allowed to comment, however those with party status could ask questions of the applicant, give testimony and present witnesses. Parties to the application have a right to appeal the Zoning Hearing Board's decision. 

Mr. Terry said that he would like to amend the application to also request a variance to reduce the size of 408 of the 504 parking stalls to 9 feet by 18 feet. He said that they would be asking to keep 125 spaces in reserve. 

Mr. Auchinleck said that a change in the application would have to be re-advertised and continued to the October hearing. 

Mr. Terry said that the previous owners of the property, Third Federal, had gone through the land development process for this site and had been granted waivers for reduced parking stall size. He said he was not sure if he would need a variance for reduced parking stall size, or if the previous owner's waivers are carried over. He said that if the previous owner's waivers apply to the current owners, he would have to calculate whether he would need a variance for some additional parking spaces. 

Mr. Auchinleck said that a variance goes with the property, and a new application might not be necessary, but it would be best to re-advertise  as a modification of the original variance, as some additional relief will be needed. 

Mr. Lionetti suggested that testimony be given at tonight's hearing, and that a vote on  the question of reduced parking stall size be continued to the meeting of October 2, 2003. 

Mr. Terry entered as Exhibit A-1, the Minutes of the Newtown Township Zoning Hearing Board for April 6, 2000, granting variances for reduced size parking stalls, and Exhibit A-2, the Minutes of the Board of Supervisors meeting of June 28, 2000, Final Plan Approval for buildings with reduced parking stall size. 

Mr. Terry said that Newtown Yardley Road Associates had purchased a 9.147-acre vacant lot on Newtown Yardley Road, opposite Newtown Swim Club. The property is in the O-LI zoning district. 

Mr. Terry said that he is currently a member of the Newtown Township Economic Development Committee (EDC), an advisory committee involved in researching ways to work with HARB and the Business Development Council to improve the Newtown Business Commons. He said that while he has no legal basis for relief right now, he is aware that the EDC has recommended to the Board of Supervisors that the impervious surface ratio in the entire Newtown Business Commons, both LI and O-LI zoning districts, be increased to 65%. This recommendation is based on research of surrounding communities and the recommendation of Township Planner Judith Stern Goldstein. 

Mr. Terry entered as Exhibit A-3 the EDC packet containing Ms. Goldstein's memo, and pointed out that page two refers to the impervious surface ratio. 

Mr. Terry said that the Board of Supervisors had decided not to act on this recommendation at this time, but to wait until the EDC has completed its recommendations on impervious surface, parking, and zoning. He said that Ms. Goldstein's memo recommends that up to 80% of parking stalls be 9 feet by 18 feet, although the EDC has voted to recommend 75% of parking at this reduced size, with the remaining spaces at 10 feet by 20 feet, and that the full size spaces be located closest to buildings for visitors, and with the condition that the sites meet all storm water management criteria. 

Mr. Messick said that the site plan calls for 9X18 parking spaces. The plan would have to be reconfigured if full size spaces are required. He said that the plan calls for four two-story buildings, with a total of 80,560 square feet of offices. The buildings will be 50% medical use and 50% general office use. He said that the approved Third Federal plan called for 74,250 square feet of offices. 

Mr. Terry entered as Exhibit A-4 a full set of site plans.

Mr. Ragan asked if handicapped spaces are included in the plan. 

Mr. Messick said that 2% of parking spaces must be for handicapped spaces. There will be 10 handicapped spaces. 86 spaces will be 10 feet by 20 feet, 22 spaces contiguous to each building. 

Mrs. Laughlin asked if Newtown Yardley Road would be widened for this project. 

Mr. Messick said that there will be a deceleration lane and an egress lane for the site. There would also be egress onto Walker Lane. There has been no discussion of an additional traffic signal. 

Mr. Messick pointed out that the green area along the roadway is not part of the impervious surface calculation because it is in the ultimate right-of-way, and the parking held in reserve is part of the impervious surface calculation. He said that there are 18,970 square feet of green in the ultimate right-of-way. If included in the calculations, there would be 62% impervious surface. 

Mr. Terry entered as Exhibit A-5 a letter from First Federal supporting the plan. 

Mr. Lenihan asked if Mr. Terry had any indication that the Board of Supervisors would approve the impervious surface recommendations of the EDC. 

Mr. Terry said that two Supervisors are on the EDC, and had participated in discussions about the recommendations. A decision has been postponed until the EDC presents all of its recommendations for impervious surface, parking and zoning, so that they can be voted on together. 

Mr. Harwood had no comment. 

Dr. Joseph Kipp, M.D. was sworn in. 

Dr. Kipp said that he is the owner of Village at Newtown Medical Center, a primary care facility with six physicians. He said the lease on his 10,000 square foot office is expiring, and he has been looking for a new location for two years. He is considering this project for a new location for his practice. 

Mr. Bernard Bires was sworn in. 

Mr. Bires said that he is President of the Headley Homeowners Association. The residents of Headley are very concerned about increased traffic along Newtown Yardley Road. He asked if the project would include a traffic light. 

Mr. Messick said that a traffic study is being conducted, but that decisions on traffic lights are made by the Township with the approval of PennDot. 

Mr. Carver asked Mr. Bires if the new traffic light at Penns Trail has helped calm traffic. 

Mr. Bires said that there is no difference. At certain times of the day it is impossible to make a right turn out of the Headley development. 

Mrs. Laughlin asked if the ordinance allows the applicant to ask the Board of Supervisors for 60% impervious surface. 

Mr. Terry said that only the LI zoning district can request an increase in impervious surface to 60%. This property is in the O-LI district. He said that the EDC supports this increase in impervious surface, and they feel confident that the Board of Supervisors will support it as well. 

Mrs. Laughlin said that Ms. Goldstein's memo states that some, more developed, municipalities have increased impervious surface ratio. She said that she does not think that Newtown is a more developed municipality. She said that the applicant does not have a legal reason to seek relief  and the Zoning Hearing Board is being asked to change the Zoning Ordinance. She said that there is a process in place to change the ordinance and that these recommendations should go through that process, and the applicant should await the outcome. 

Mr. Lenihan moved to grant a variance from Section 705(B) of the Joint Municipal Zoning Ordinance of 1983, to permit construction of four two-story office buildings resulting in an impervious surface ratio of 64.5% instead of the maximum permitted 50%, and to continue the hearing to October 2, 2003  to consider the reduction in parking stall size. Mr. Lionetti seconded. 

Mr. Terry asked if the variance was for 64.5% or 64.8%. 

Mr. Auchinleck said that the application was advertised for 64.5%, and that is the most that can be granted. 

The motion passed 4-1, with Mrs. Laughlin voting nay. 

Application of Ferdinand and Melissa Petito 

Mr. Lenihan read into the record the application of Ferdinand and Melissa Petito requesting a variance from Section 404(B) and a Special exception under Section 1208(C)(2) of the Joint Municipal Zoning Ordinance of 1983 to permit an 18.5 foot by 36.5 foot inground swimming pool with an impervious surface ratio of 22.45% where the ordinance permits 12% and a previous variance permitted 16.68%, and to permit construction on a non-conforming lot. The subject property is 47 Cloverlee Lane in the R-1 Medium Density Zoning District. 

Mr. Fred Petito and Mr. John Migliaccio, pool contractor, were sworn in. 

Mr. Auchinleck said that he has discussed this application with Mr. Carver, and they agree that, because Mr. Carver is a neighbor of the applicant, that he should recuse himself for this application. 

Mr. Petito said that he would like to install an 18.5 by 36.5 foot swimming pool in his backyard. He said that he had already been granted a variance for increased impervious surface last year to install a patio and widen his driveway. He said that a plan was included in his application. 

Mr. Lenihan said that he was concerned because the impervious surface ratio applied for is twice what the Ordinance permits. He said that although the pool surface is 689.4 square feet, the Ordinance counts this as impervious surface. 

Mr. Auchinleck said that pool surfaces are considered impervious because the Ordinance is addressing ground water re-charge as well as run-off. 

Mr. Ragan said that he had visited the site. He noted that the fence is 10 feet from the property line at some points, and that Tyler Walk common ground is to the rear of the property. 

Mr. Lionetti asked if the pool itself is 18.5X36.5 feet or if this number includes the paved  walkway around the pool. 

Mr. Migliaccio said that there is a 3-foot wide concrete collar surrounding the 18.5X36.5 foot swimming pool. The 3 foot wide collar is necessary for the stability of the pool. 

Mr. Lenihan asked if Mr. Petito had considered reducing the size of the pool. 

Mr. Petito said that he has visited other pools, and feels that this size will be most comfortable for his family. 

Mr. Migliaccio said that there will be a forty-foot setback on all sides, and that Mr. Petito's neighbors are aware of his plans and have no objections. 

Mr. Harwood had no comment on this application. 

Mr. Lionetti said that Mr. Petito had already been granted a large variance, and he said that because of the high density of the area, he is reluctant to grant a variance larger than 18% impervious surface. He said that it is up to the applicant how he uses the impervious surface, either reducing his driveway and patio, or building a smaller pool. 

Mr. Ragan moved to approve a variance from Section 404(B) and a Special exception under Section 1208(C)(2) of the Joint Municipal Zoning Ordinance of 1983 to permit an 18.5 foot by 36.5 foot inground swimming pool with an impervious surface ratio of 18% where the ordinance permits 12% and a previous variance permitted 16.68%, and to permit construction on a non-conforming lot. Mr. Lenihan seconded and the motion passed 3-1, with Mrs. Laughlin voting nay. 

Mrs. Laughlin said that she would have voted for the full 22.455 impervious surface. She said that she did not think it was an unreasonable request. 

Application of Eric D. Wahrhaftig – Martial Arts Training Academy, Inc. 

Mr. Lenihan read into the record the application of Eric D. Wahrhaftig – Martial Arts training Academy, Inc., Kramont Realty trust, owners, requesting a variance from Section 602(A) of the Joint Municipal Zoning Ordinance of 1983 to permit a C-3, commercial school use where such use is not permitted. The subject property is 2852 South Eagle road, in the PC Planned Commercial Zoning District. 

Mr. Jamie Sutton represented the applicant. 

Mr. Eric D. Wahrhaftig, Mr. Anthony Guardiscione, Mr. Allen Levin, and Mr. Steve Seidner were sworn in. 

Mr. Sutton explained that Mr. Wahrhaftig intended to move his Karate Studio into the Village at Newtown Shopping Center, near Genuardi's. He said that in the PC Planned Commercial Zoning District, commercial schools are not permitted. He said that his school falls between an athletic facility, which is a permitted use, and a commercial school. He pointed out that both the Little Gym and the Center Club offer some classes similar to his program. 

Mr. Sutton entered as Exhibits A-1 through 5, a binder including a sketch plan of the location, correspondence from adjacent property owners at Village at Newtown and from his two other locations at Huntingdon Valley and Village Shires, and letters from parents of current students, which refer to carpool arrangements. 

Mr. Wahrhaftig said that he is a resident of Newtown and a graduate of Council Rock High School. He has been a Martial Arts instructor for 16 years. He has had a studio at Village Shires for ten years, and one in Huntingdon Valley for two years. He also conducts after school programs at Shir Ami, St. Bede's and a number of Council Rock elementary schools. At his proposed new site, he will be conducting 4 to 5 classes each day, with about 15 children per class. 

Mr. Wahrhaftig said that he wants to move to Newtown, and is particularly interested in being near a supermarket. He said that at his Huntingdon Valley location it has worked out very well, because parents drop the children off then do some shopping. He said that he has never had any traffic or parking problems, or any complaints from his near neighbors. In fact, he said that his neighbors have been happy with his school, because parents bring business while they wait for the children. He said that most of his students are in carpools, so while a class might have fifteen students, there are not fifteen cars. 

Mr. Wahrhaftig said that he does not permit parents to stay and watch the classes, and he would not have a store window. He said that the location has had a lot of turnover because it is in the corner of the shopping center without a window, and businesses requiring foot traffic have not done well. He said that his business is destination oriented, and he feels that he will be successful here. 

Mr. Wahrhaftig pointed out that among his letters of support from his neighbors at Huntingdon Valley are letters from West Coast Video, Eckerd Drugs and Pet Value, all having branches at Huntingdon Valley and Village at Newtown. 

Mr. Wahrhaftig said that he did not know that the Martial Arts Academy was not a permitted use at the shopping center. He said that he has invested all of his money in this location. 

Mr. Allen Levin of Churchville said that he and his two children are enrolled in the Martial Arts Academy. He said that the program has been very beneficial to them, and that it has been beneficial to the community. He said that his mother-in-law owns a business in the Huntingdon Valley location and she feels that the Academy has been a very good neighbor. 

Mr. Anthony Guardiscione of Warminster said that he owns a restaurant at the Huntingdon Valley location, and the Academy has been a good neighbor, and has been good for his business. He said that because of carpooling, he has never had any parking or traffic problems. 

Mr. Steve Seidner said that he owns Bagel Junction at Village at Newtown, and he looks forward to the opening of the Academy. He feels that the Academy will be good for the shopping center and will generate some additional business for him. He said that because the classes are in the late afternoon he did not think there would be traffic or parking problems. 

Mr. Lionetti asked what the hours of operation would be. 

Mr. Wahrhaftig said that classes are from about 4:30PM to 9:30PM weekdays, and from 9:00AM to 1:30PM on Saturdays. His students are mostly between the ages of 4 and 13, with an adult class at 8:30 PM. He said that he and another instructor are always on the premises. He does not conduct demonstrations, shows or competitions on site. 

Mr. Ragan said that he had visited the site. He asked if there would be any retail sales. 

Mr. Wahrhaftig said that he would have uniforms, tee shirts, motivational patches and bottled water for sale to his students only. 

Mr. Lenihan said that he had also visited the site. He noted that there are no letters of support from the nearest neighbors to the Academy. 

Mr. Wahrhaftig said that he was not able to get in touch with the owners of Patio World or Normans because the owners are never on site. 

Mr. Lenihan asked if the Academy would hold any special events. 

Mr. Wahrhaftig said that his ceremonies are held at Welch Elementary School. He said that twice a year he holds an overnight sleepover for his students, and when birthday parties are held they are at 2:00PM on Saturdays, and that the parents do not stay. 

Mr. Sutton said that both Center Club and Little Gym offer karate classes at Village at Newtown Shopping Center, and Golden Fists Karate School has a variance. 

Mr. Harwood had no comment. 

Mr. Mike Lanzolotti was sworn in. Mr. Lanzolotti said that he is a resident of Newtown and his three children are enrolled in the Martial Arts Academy. He said that it is the best Karate program in Bucks County and would be a good addition to Village at Newtown. 

Mr. Lenihan moved to grant requesting a variance from Section 602(A) of the Joint Municipal Zoning Ordinance of 1983 to permit a C-3, commercial school use where such use is not permitted. Mr. Ragan seconded and the motion passed unanimously. 

Mr. Ragan moved to adjourn at 10:00PM. Mr. Lenihan seconded and the motion passed unanimously. 

Respectfully Submitted

_____________________________
Mary Donaldson,  Recording Secretary