NEWTOWN TOWNSHIP ZONING HEARING BOARD

MUNICIPAL BUILDING - 100 MUNICIPAL DRIVE

NEWTOWN, PA 18940

THURSDAY, JANUARY 8, 2004

7:30 PM


Approval of Minutes: Mr. Lionetti noted that on page 5, paragraph six should read, “Comment number one”, and on page 6, paragraph three,”(sic)” should be inserted after 350 feet.

Mrs. Laughlin moved to accept the minutes as amended, for January 8, 2004. Mr. Carver seconded and the motion passed 4-0, with Mrs. Bowe abstaining.


The Newtown Township Zoning Hearing Board met on Thursday, January 8, 2004, 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.

Reorganization

Mr. Lenihan nominated Mr. Lionetti to serve as chairman. Mr. Carver seconded and the motion passed unanimously.

Mr. Lionetti nominated Mr. Lenihan to serve as vice-chairman. Mr. Carver seconded and the motion passed unanimously.

Mr. Lenihan nominated Mrs. Laughlin to serve as secretary. Mr. Lionetti seconded and the motion passed unanimously.

Mr. Lionetti moved to re-appoint Mr. Auchinleck as solicitor, and to compensate him at the rate of $125.00 per hour. Mr. Carver seconded and the motion passed unanimously.

Approval of Minutes

Mrs. Laughlin moved to accept the minutes of November 6, 2003. Mr. Carver seconded and the motion passed unanimously.

Mrs. Laughlin moved to accept the minutes of November 13, 2003. Mr. Carver seconded and the motion passed unanimously.

The agenda was reviewed.

Continued Application of Newtown-Yardley Road Associates

Continued Application of J.Loew and Associates – West Road

Application of Christina and Edward Murphy – 301 N. Sycamore Street

Application of Stone House Holdings, LLC – 552 Washington Crossing Rd.

Continued Application of Newtown Yardley Road Associates

Mr. Auchinleck reminded the Board that this application had already been read into the record. He said that he had received a letter from Attorney Don Marshall requesting a continuance until the meeting of February 5, 2004. He said that a portion of the original application had already been granted variances by this Board and was being appealed, and the applicant was waiting for the outcome of this appeal.

Mr. Lionetti moved to continue the application of Newtown Yardley Road Associates until the meeting of February 5, 2004. Mr. Carver seconded and the motion passed unanimously.

Continued Application of J.Loew and Associates

Mr. Auchinleck reminded the Board that this application had already been read into the record. He said that he had received a letter from Attorney Mark Kaplan, explaining that the applicant was attempting to reach an agreement with the Township, and requested a continuance until February 5, 2004.

Mr. Lionetti moved to continue the application of J. Loew and Associates until the meeting of February 5, 2004. Mr. Carver seconded and the motion passed unanimously.

Application of Stone House Holdings, LLC

Mrs. Laughlin read into the record the application of Stone House Holdings, LLC, owners, requesting an appeal from the zoning violation notice dated October 9, 2003 citing public performances as outside the scope of an eating place occupancy permit under section 803 E-3. The subject property is 552 Washington Crossing Road, in the CM Conservation Management Zoning District.

Mr. Auchinleck said that he had received a letter from Attorney John Coopman requesting a continuance until February 5, 2004, because the primary witness is out of town. He said that Stone House Holdings has received a second citation for a different violation and that Mr. Coopman has requested that both applications be heard at the same time.

Mr. Lionetti moved to continue the application of Stone House Holdings LLC until the meeting of February 5, 2004. Mrs. Laughlin seconded and the motion passed unanimously.

Application of Christina and Edward Murphy

Mrs. Laughlin read into the record the application of Christina and Edward Murphy, James D. and Ann H. Stroupe, owners, requesting a variance from Sections 902.2.b, 903b.1 & 2, 1001B.5 and 1001D1 & 2 of the Joint Municipal Zoning Ordinance of 1983 to permit a structure in a floodplain, a 16 foot driveway, internal drive and parking aisle width where 20 feet is required, drives and parking to be unpaved and without drainage. The subject property is 301 N. Sycamore Street in the TC Town Commercial Zoning District.

Mr. Edward Murphy said that he would represent himself in this application. Mr. Murphy was sworn in.

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

Mr. Auchinleck explained to those residents in attendance that if they wish to be a party to the application they would have the right to cross-examine the applicant and any of his witnesses, present evidence and witnesses, and make any statement concerning the application. Should they disagree with the decision of the Zoning Hearing Board, party status would give them the right to appeal the decision. Anyone present not wishing party status would be allowed to make statements for or against the application after the hearing and before a decision is rendered.

Mrs. Kathleen Lanning of 437 Merion Drive, Mrs. Janet Adamusko of 433 Merion Drive and Mrs. Roberta Taylor of 397 Washington Crossing Road wished to be parties to the application.

Mr. Murphy said that he wished to question the parties about the location of their properties in relation to his property, and their interest in his project.

Mrs. Kathleen Lanning was sworn in.

Mrs. Lanning stated that she lives upstream of Mr. Murphy's property, and a portion of her property abuts the floodplain. She said that she does not live within 500 feet of Mr. Murphy's property, but is not sure of the distance.

Mr. Murphy asked if he could ask the parties to note their properties on a flood insurance rate map that he would later present to the Board as an exhibit.

Mrs. Lanning stated that she felt that this application had not been properly advertised. She said that the advertisement referred to a "structure" in the floodplain, and that this does not give any indication of the size of the proposed project. She had assumed it would only be a small shed of some kind, and felt that the choice of the word structure was deceptive, as she has learned that the applicant wishes to build an office building in the floodplain. She asked that the application be continued and that it be re-advertised as "office building" in floodplain.

Mr. Auchinleck said that the advertisement is legally correct, and it was up to the Board whether they wish to consider Mrs. Lanning's objections.

Mr. Lenihan stated that this Board is considering whether a structure can be placed in the floodplain at all, and that the size of the structure is not the reason for the request for a variance.

Mr. Lionetti said that he would like to continue to take testimony, and consider Mrs. Lanning's objection to the advertisement after all testimony has been given and before a decision is rendered.

Mrs. Lanning marked what she believes is her property on Mr. Murphy's map using the letter "L".

Mrs. Janet Adamusko was sworn in.

Mr. Murphy asked Mrs. Adamusko to mark her property on his map, using the letter "A". He asked her to estimate the distance from her property to the subject property.

Mrs. Adamusko located her property on Mr. Murphy's map, marking it with a letter "A". She said that she estimated that she lives about 1/8 mile from the subject property.

Mrs. Roberta Taylor was sworn in.

Mrs. Taylor stated that she is not sure of the distance between her property and the subject property. She marked her property on Mr. Murphy's map using the letter "T",

Mr. Murphy said that he would enter the map as an exhibit later in the proceeding, but he wished to object to the party status granted Mrs. Taylor, Mrs. Lanning and Mrs. Adamusko, as it appears that none has direct concern with the subject property, and all are considerably farther upstream.

Mr. Auchinleck stated that it is the Board's practice to grant party status with the understanding that the Court of Appeals might not consider them aggrieved parties.

Mr. John Genovesi and Mr. Kevin Doherty were sworn in.

Mr. Murphy said that he and his wife are equitable owners of a 46,550 square foot parcel at 301 North Sycamore Street in the TC Town Commercial Zoning District. He entered as Exhibit A-1, his application for variances and a zoning variance plan dated November 26, 2003, and Exhibit A-2, a color version of his plan, prepared by Pickering Corts and Sommerson.

Mr. Murphy said that the property is rectangular and has a two and one half story frame dwelling on it. He proposes to build a 4,000 square foot building to be used as office space, which is permitted by conditional use. He said that the property is bisected by the Newtown Creek, and is within the floodplain. He said that there is an easement for access through the shopping center in front of the property along Sycamore Street.

Mr. Genovesi said that he is a licensed civil engineer with the firm of J.G. Park & Associates. He has been a civil engineer for over twenty years, and has provided services to the municipalities of Bristol Borough, Langhorne Borough, Middletown Township and Tullytown. He has prepared the floodplain study for the subject property, as required by Section 905 of the Joint Municipal Zoning Ordinance.

Mr. Murphy entered as Exhibit A-3 an Assessment of Floodplain Impact, as prepared by John V. Genovesi, P.E., P.L.S, of J.G. Park Associates on December 29, 2003.

Mr. Genovesi explained that in evaluating the floodplain, he had reviewed the existing floodplain study prepared by FEMA, the flow rates for a 100-year storm, and the FEMA maps of the creek. Copies of these are contained within the Assessment packet. He also performed on site field studies of the area, a hydraulic study and, with Pickering Corts and Summerson, a site survey, to determine if the proposed structure would affect the stream. Referring to Exhibit A-2, Mr. Genovesi explained that the creek flows through the property, portions of which are in the floodway and portions in the flood fringe. He said that the floodway is identified by a heavy dotted line. This is the area of highest velocity during a flood, and it extends to the banks of the creek. The flood fringe is the area in the floodplain that would experience some pooling of water during a flood. He noted that the existing house is within the flood fringe, but elevated above the floodplain.

Mr. Genovesi stated that in performing the hydraulic study he used HECRAS software, and the Army Corp of Engineers survey to prepare cross-sections at strategic points along the stream. These, along with FEMA studies, give water levels for certain storms. The 100- year storm is what is used to regulate development in a floodplain. He said that he ran the simulation studies first without improvements, then with the proposed improvements, and has concluded that in a 100-year flood, there would be no rise in elevation if the project were placed where it has been proposed. He said that at the proposed location the water moving through is not of great volume or velocity, and the depth would be eight inches or less. He said that the dam upstream of the project limits the amount of water, and the existing structure on the property separates flowing water, creating currents that would not hit the proposed structure head-on.

Mr. Genovesi said that the applicant is prepared to implement all safeguards required by section 905 of the Joint Municipal Zoning Ordinance. He said that the proposed project would not endanger life or property, there is no danger that materials would be swept away, and there would be no adverse impact on others. He said that there would be no impairment of safe access by emergency vehicle. He said that there would be no impairment of safe access by emergency vehicles.

Mr. Murphy entered as Exhibit A-4 a letter of Pennoni Associates, the Township Engineers, who found that the study submitted is acceptable. Comment one of the letter confirms that there is no rise in the 100-year flood elevation.

Mr. Lionetti asked if the proposed building would have impact on the flood fringe.

Mr. Genovesi said that the cross sections submitted show that there is no impact in the floodway or the flood fringe. He said that the water is very shallow and moving very slowly at the point of the proposed building during a 100-year storm.

Mr. Lenihan asked how large an area was used to prepare the survey.

Mr. Genovesi said that the survey is measured from the center of the creek about 150 feet on either side of the creed, a total of 350 feet across, and the cross sections show the upper property boundary, at the existing structure, at the proposed structure site and at the FEMA cross section, a total distance of 600 feet. Mr. Genovesi said that using hydraulic methodology as the Army Corp of Engineers has done, they have run calculations before and after construction of the proposed structure, and the elevation of the water surface is 162.67 feet in both instances, no increase.

Mr. Lionetti asked about the Pennoni letter’s point regarding proposed parking.

Mr. Murphy responded that his plan shows that the parking can be provided but that he does not intend to build the parking area, rather he intends to hold it in reserve. He said that he has been working with the Heritage Conservancy to place a historic barn on the property, and renovate it as an office for himself. It will not be commercial or retail space, and it will conform to all requirements of the historic district.

Mr. Murphy entered as Exhibit A-5, a FEMA Flood Insurance Rate Map, panel 431 of 532, with ink markings of the parties against this application, using letters “L”, “A”, and “T”. Mr. Murphy noted that property “A” is 2,000 feet upstream of the northern boundary of the property, “L” is 2200 feet upstream of the northern boundary and “T” is 2500 feet upstream of the northern boundary of his property.

Mrs. Laughlin asked how current the Army Corp of Engineers data is.

Mr. Genovesi said that the map submitted is dated May 18, 1999.

Mrs. Lanning and Mrs. Adamusko had no questions of this witness.

Mrs. Taylor asked if Mr. Genovesi was aware that since the FEMA map was prepared there has been a 500-year flood in Newtown.

Mr. Genovesi said that the map shows a 500-year flood elevation. He said that the study shows the 500-year flood elevation to be 164 feet.

Mrs. Taylor asked if any soil studies had been conducted.

Mr. Genovesi said that while no soil studies were done, but that the soil is alluvial soil and will percolate well.

Mrs. Taylor said that the soil along Newtown Creek is Bowmansville soil. Mrs. Taylor then asked about Mr. Genovesi’s statement that the creek depth was eight inches. She asked when the water levels were taken.

Mr. Genovesi said that the water depth at a 100-year flood would be eight inches at the proposed building site. He said that calculations were made using the 100-year flow rate.

Mrs. Taylor asked if the study has taken into account water released by the dam upstream.

Mr. Genovesi said that this is part of the data used in the study. He explained that in a 100-year storm 7.6 inches of rain will fall in a 24-hour period. He said that there is a 1% chance for such a storm in any given year. This statistical number is based on historic data collected from rain gauges. He said that the data used is revised every 20 to 25 years.

Mrs. Laughlin asked if the study was prepared in accordance with Section 905 Exhibit B.

Mr. Murphy said that it was prepared according to Section 905 Exhibit B, and that the HECRAS study is an update of the HEC2 required by the Ordinance.

Mr. Kevin Doherty said that he is the project manager for Pickering Corts and Summerson and had prepared Exhibit 2 and some additional survey work. He said that they were requesting relief for a 16-foot driveway rather than the required 20 feet because they felt that 16 feet would be adequate for the proposed use, and it would save impervious surface. He said that the Town Commercial District allows for 80% impervious surface, within the floodplain 50% is allowed and this plan calls for 24% impervious surface.

Mr. Doherty said that they would like to build without curbing and storm water management because a detention and release system would be detrimental in a driving rain as detention basins upstream of the project will be releasing water. He said that it would be better to just let water flow. He said that drainage pipes would be in the floodplain and would not function. He said that the plan calls for porous paving, which uses larger aggregate so water can flow through. This was encouraged by the Township Engineers and was included in the impervious surface calculations.

Mr. Murphy entered as Exhibit A-6 Section 902 of the Joint Municipal Zoning Ordinance Environmental Performance Calculations, which sows a gross site area of 1.07 acres, a 30 foot sanitary sewer easement on the western line, leaving .89 acres, of which .84 acres are within the floodplain.

Mrs. Laughlin asked the width of the existing driveway.

Mr. Doherty said that the existing driveway is eight feet wide. By widening it to 16 feet, two vehicles can pass each other. If the driveway were constructed at the required 20 feet, the impervious surface would be 26%.

Mr. Murphy said that he has planned for parking for up to twelve cars, which is more than he needs. He has begun discussion with the owners of the shopping center about a cross easement, but has not had a formal agreement.

Mrs. Lanning, Mrs. Adamusko and Mrs. Taylor had no questions for Mr. Doherty.

Mr. Harwood had no comment on this application.

Mrs. Adamusko said that she is very concerned about this Board’s disregard for building in the floodplain. She said that there has been flooding along the creek this past December, and she is very concerned that all of the construction is having an impact on the creek. She said that she also owns a property at the south end of the creek, and has observed the creek eroding. She said that she does not think that measuring the creek using software does not address what is actually happening.

Mrs. Lanning said that she thinks that this is a poorly conceived plan. She also said that the advertisement that appeared in the newspaper for this application was skewed in favor of the applicant. She asked that the Board visit the site in person. She also commented that Mr. Genovesi kept his back to Mrs. Taylor, always addressing the Board, even in answer to Mrs. Taylor’s questions, and she thought that this was very rude and disrespectful.

Mrs. Taylor said that the ordinance states that the floodplain and floodplain soils should remain as open space. She said that she thought this would set a detrimental precedent. She noted that in a recent State Supreme Court decision in Upper Makefield v. Toll Brothers, the Court has shown increased awareness in preserving floodplains and wetlands.

Mr. Lionetti said that he thought that the advertisement was adequate for the variances requested. He said that there is no attempt to deceive the public, as the advertisement is written to make the public aware of the variances being sought, not the scope of the entire project being planned.

Mr. Ragan and Mr. Carver agreed that the advertisement was adequate in describing the variances being sought.

Mr. Auchinleck asked Mr. Murphy if the Board were inclined to grant variances, would Mr. Murphy agree to the condition that he comply with Section 905IV E2 Section d.

Mr. Murphy said that Mr. Genovesi is prepared to provide that information, and he would agree to comply with all requirements of the ordinance.

Mr. Lenihan stated that he has been sensitive to the question of building in the floodplain. He said that he has visited the site several times in the last few weeks to observe the area in different weather conditions. He said that he felt that there would be de minimus effect on the property and on the creek and that there will be no impact downstream of the property.

Mr. Lionetti moved to grant a variance from Section 902.2.b, 903.b.1&2, 1001B.5 and 1001D1&2 of the Joint Municipal Zoning Ordinance of 1983 to permit a structure in a floodplain 16 foot driveway, internal drives and parking aisle width where 20 feet is required, drives and parking unpaved and without drainage, with the condition that the requirements of Section 905IV E2 be adhered to. Mr. Carver seconded. The motion passed unanimously.

Mr. Murphy asked that the record show that he is the “equitable owner” of the property.

Mr. Lionetti moved to adjourn at 10:15PM. Mr. Lenihan seconded and the motion passed unanimously.

 

Respectfully Submitted:

 

___________________________ 
Mary Donaldson, Recording Secretary