NEWTOWN TOWNSHIP ZONING HEARING BOARD

MUNICIPAL BUILDING - 100 MUNICIPAL DRIVE

NEWTOWN, PA 18940

THURSDAY, NOVEMBER 4, 2004

7:30 PM


Approval of Minutes: Mrs. Laughlin moved to accept the minutes of November 4, 2004. Mr. Wall seconded and the motion passed unanimously.


The Newtown Township Zoning Hearing Board met on Thursday, November 4, 2004 in the Newtown Township Building. In attendance and voting were: Mario Lionetti, Chairman; John Lenihan, Vice-Chairman; Gail Laughlin, Secretary; Victoria Bowe and William Wall, members. Also in attendance were: James J. Auchinleck, Jr., Esq., Solicitor; Thomas Harwood, Zoning Officer and Linda McCormack, Stenographer.

Call to Order

Mr. Lionetti called the meeting to Order at 7:35 PM.

The Pledge of Allegiance

The agenda was reviewed.

Application of Joseph and Lois Feliciani

Application of Application of Susan Hillman

Continued Application of Brandywine Realty Trust

Application of W. David and Beverly Fleming

Approval of Minutes

Mrs. Laughlin moved to approve the minutes of October 7, 2004. Mr. Lenihan seconded and the motion passed 4-0-1, with Mr. Lionetti abstaining.

Mr. Lionetti asked that in the minutes of October 14, 2004, page three, the last sentence read “…6 foot high”.

Mrs. Laughlin moved to approve the minutes of October 14, 2004, as amended. Mr. Lenihan seconded and the motion passed unanimously.

Application of Joseph and Lois Feliciani

Mrs. Laughlin read into the record the application of Joseph and Lois Feliciani requesting a variance from Section 803 (H-8)(1)(b) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a swimming pool, deck and equipment resulting in rear set backs of 3 feet for equipment, 2 feet for decking and five feet for pool, and a side yard setback of 3 feet for equipment. The subject property is 8 Devon Road in the R-1 Medium Density Residential Zoning District.

Mr. Joseph Feliciani and Mrs. Lois Feliciani were sworn in.

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

Mr. Auchinleck reminded the Board that they had heard testimony from the Felicianis at the meeting of October 14, 2004, at which time it was discovered that there was a discrepancy in the advertised setback. The advertisement had noted a setback of seven feet rather than three feet for the pool equipment. At that time Mr. Auchinleck suggested to continue with testimony, and leave the hearing open to be re-advertised with the new setback information.

Mr. Lenihan said that he had visited the site and that it conformed to the testimony given at the October 14 meeting. He did not observe any problems with locating the pool and equipment as requested.

Mr. Harwood had no comment.

Mrs. Laughlin moved to grant a variance from Section 803 (H-8)(1)(b) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a swimming pool, deck and equipment resulting in rear set backs of 3 feet for equipment, 2 feet for decking and five feet for pool, and a side yard setback of 3 feet for equipment. Mr. Wall seconded and the motion passed unanimously.

Application of Susan Hillman

Mrs. Laughlin read into the record the application of Susan Hillman t/a Soccer & Lacrosse Center, Randall S. Yardley owners requesting a variance from Section 803(E-1)(4), 1001(B)(5), 1001(F)(4), 1001(F)(6)(a), and 1001(C)(1) of the Joint Municipal Zoning Ordinance of 1983 to permit an E-1 Retail use with a reduction of parking spaces from 27 to 8, with parking in the front yard, with a 15 feet wide parking aisle instead of 25 feet, with parking in the right of way, and with uncurbed entranceway in excess of 35 feet. The subject property is 53 German Avenue, Newtown, in the CC Convenience Commercial Zoning District.

Mr. Don Marshall represented the applicants.

Mr. Randall Yardley and Mrs. Susan Hillman were sworn in.

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

Mr. Phil Newhart of 58 German Avenue requested party status. Mr. Newhart was sworn in.

Mr. Marshall said that Mr. Yardley is the owner of a property at 53 German Avenue, in the CC Convenience Commercial Zoning District, and Mrs. Hillman would like to rent space at this property for her business.

Mrs. Hillman explained that she is the owner of the Soccer and Lacrosse Corner at 2100 South Eagle Road, Village at Newtown. She said that this is a small sporting goods company whose primary business is supplying local sports teams with uniforms, warm ups and equipment. She also has some small retail business in sports equipment and soccer shoes. She said that she has been at this location for ten years. She would like to move her business to the upper floor of Mr. Yardley’s pole barn on German Avenue because the space is 3000 square feet, and her current location is 1600 square feet. She would also like to move to this less expensive location because she does not need a location that will attract foot traffic. She said that she has at most two employees at a time and her business is open from 10:00 AM to 8:00 PM on weekdays, and until 6:00PM on weekends. She said that her business has very few walk-in customers, usually only one or two adults and some children at any one time. She said that her primary business is the bulk supplying of team uniforms.

In response to Mr. Lenihan’s questions, Mr. Yardley explained that Mrs. Hillman would only be renting the upper floor of the barn. He said that the lower level is used for personal storage of vehicles, and the private home on the property is rented to a tenant.

Mr. Marshall entered as Exhibit A-1 a plan dated August 12, 2004.

Mr. Marshall said that Mr. Yardley resides at 5 North Elm Street, Newtown. He owns the property at 53 German Avenue. He explained that the 120-foot by 150-foot lot is in the Convenience Commercial Zoning District. He said that the barn has parking in front, and that the stoned area shown on the plan is the existing parking area. He noted that German Avenue has an 11-foot cartway, and a 50-foot right-of-way. He said that German Avenue has been abandoned by the Township, and that the lot calculations do not include the area in the right-of-way. He explained that the lot is surrounded by both commercial and residential lots. It is surrounded by the American Legion parking lot, a therapist office, some residential properties, a car wash, and the Tanner business properties. Portions of the rear yard are surrounded by a 6-foot fence.

Mr. Marshall said that it is Mr. Yardley’s intention to create a space suitable for the soccer and lacrosse business by installing restroom facilities and dividing the 3000 square foot space into 2000 square feet of storage and 1000 square feet of retail area. He said that the Zoning Ordinance would require 27 parking spaces for a 3000 square foot business space, however, Mrs. Hillman would never have more than two employees on the premises, and has had very few customers visit the shop at the same time. He said that they would like a variance to provide eight parking spaces, six for customers, and two for employees. The residential house on the property will also have two parking spaces. He said that the spaces would all be 10-foot by 20-foot spaces, with one handicapped space. He said that there is already parking in the front yard, and parking already exists in the right-of-way. He noted that the entrance to the property is already more than 35 feet wide. He said that this parking configuration has worked best in providing the most spaces without exceeding the 50% impervious surface ratio. He noted that this is a non-conforming lot.

Mr. Newhart asked if the property, with the proposed improvements would still meet impervious surface requirements.

Mr. Yardley said that the lot would be below the 50% ratio.

Mrs. Laughlin asked when this barn had been built.

Mr. Yardley said that it had been built in July of 2003.

Mr. Lenihan questioned what the ratio of wholesale to retail business would be.

Mrs. Hillman said that the ratio is about 50/50. She explained that she had been confused by his question, and had meant that the bulk of her business, while not wholesale, is group sales. She said that she frequently conducts her sales at the customer’s location, or at tournaments.

Mr. Auchinleck asked if there was an ordinance vacating German Avenue, and if the parking would be paved.

Mr. Marshall said that the road became a private road at the time of the sewer installation. He said that the parking areas would be crushed stone.

In response to Mr. Newhart’s question, Mr. Yardley said that there would not be any parking on the lawn, only in stone areas in front of and on the side of the barn.

Mr. Newhart said that he is opposed to the granting of these variances because he would like to preserve the quaint residential atmosphere of the area. He expressed concern for declining property values. He said that he is also very concerned about noise and flooding. He said that Mr. Yardley has stated that the barn is used for personal storage, however it is used for storage of construction equipment. It has also been used for storage of motorcycles. He expressed concern for increased traffic on this one lane street, noting that two cars cannot pass each other on the street, and that they sometimes drive onto lawns in order to pass. He said that UPS trucks are not able to turn into the street, and frequently drive over the edge of the lawns. He said he is very concerned about rutting along the edges of the lawns.

Mr. Newhart showed the Board a Decree dated December 7, 1983 saying that there is no longer public access to the road. He also said that he felt that the applicant had created his own hardship by building the pole barn at this location.

Mr. Marshall and Mr. Auchinleck reviewed the Decree and its Exhibit “A”, and determined that the reference was to paper streets in the area, not to the paved street.

Mr. Auchinleck explained that a “paper street” is one that appears on a plan, but has not been paved. He said that there is an implied easement to paper streets, and this decree extinguishes only easements onto the paper streets.

Mr. Newhart said that German Avenue was not paved in 1983. He said that it was a dirt road until 1996.

Mr. Auchinleck said that the road might have been dirt, but it was a road in use at the time of the decree.

Mr. Lenihan asked Mr. Newhart to discuss the noise problems he has experienced.

Mr. Newhart said that his home is opposite the American Legion parking lot. He said that the barn is used for storage, and that early on Sunday mornings groups of motorcycles were left idling in the driveway. There was also a lot of slamming of car doors. He said this would be as early as 8:00AM most Sundays.

Mr. Marshall reviewed with the Board the areas surrounding the property that are zoned CC Convenience Commercial, noting that at one time the entire area between Swamp Road and Newtown Richboro Road was zoned commercial. The Commercial area now stops at Linden Avenue. He noted that some of the commercial properties along Swamp Road are in the residential zoning district.

Mr. Wall said that he had visited the site and agreed that Mr. Newhart has legitimate concerns. He asked Mrs. Hillman to give some examples of her busiest times.

Mrs. Hillman said that at the start of the seasons in March and August, she might have three parents bringing in a few children for shoes in the afternoon, after school. She said that she frequently has orders shipped directly from manufacturers to embroiderers and silk screeners, then shipped directly to customers. She has also picked up orders in her van and delivered them directly to customers. Occasionally a customer will come in to pick up a team order.

Mr. Lionetti said that he thought that having the business open until 8:00 PM indicated foot traffic. He asked if it would be possible to access the property off Linden Avenue.

Mr. Yardley said that this would require going through the American Legion property and would also require too much impervious surface.

Mr. Auchinleck asked what use was given in the building permit.

Mr. Marshall entered as Exhibit A-2 the Newtown Township Zoning Construction Permit, which indicates residential storage as the use.

Mr. Newhart entered as Exhibit N-1 the Decree dated December 7, 1983, noting that Exhibit “A” referenced in the decree was not included.

Mr. Yardley said that his parking plans would improve the turning radius for entry onto the property and for turning around to exit. He said that he had a permit for the temporary rental of the lower level of the barn to Council Rock School District for storage.

In response to Mr. Newhart’s questions, Mrs. Hillman said that she would have deliveries by UPS style trucks only. She repeated that bulk orders are shipped directly from manufacturers to embroiderers then to customers. She said that she does not have tractor-trailer deliveries.

Mrs. Bowe asked if Mrs. Hillman conducts seasonal sales that would generate large foot traffic.

Mrs. Hillman said that she does not conduct such sales.

Mr. Newhart asked if she would open her business on Sundays.

Mrs. Hillman said that her business is currently open on Sunday, but she would be willing to close on Sundays.

Mr. Harwood was sworn in.

Mr. Harwood said that this building was permitted for residential use. He said that had it been presented for retail use, a land development process would have been required. He also noted that there is no permit for water and sewer hook-ups, and such connections exist. He said that the certificate of occupancy was issued before the construction of the sewer and water hook-ups.

Mr. Auchinleck asked if the Township was aware that this application is for stone parking areas.

Mr. Harwood said that paving and drainage must be reviewed by the Township Engineer.

In response to Mr. Marshall’s question, Mr. Harwood said that the Engineer had reviewed the plans as a residential accessory building. In response to questions from Mr. Auchinleck and Mr. Lenihan, Mr. Harwood said that there would be different code requirements for a retail business, but that the building would be inspected by the fire marshal to be sure that it meets the requirements for commercial use. He also noted that the parking aisle requested would be adequate for cars to turn around, and that there is no prohibition against backing out of the lot.

Mr. Lenihan said that he had visited the site and he agreed that cars would be able to turn around and drive out of the lot.

Mr. Marshall said that this plan would still have to be reviewed by the Planning Commission and the Board of Supervisors to be given conditional use approval. He said that without the variances they could not get approval, so he is asking for the variances first, rather than asking for conditional use approval with the condition that variances be granted.

Mr. Lionetti said that the hardship in this situation is Mrs. Hillman’s, and is not of her own making. He said that the property is zoned commercially, and that this is a permitted use. He asked if variances could be granted that would not carry with the property, but would be limited to this use only.

Mr. Auchinleck said that the variances could be granted for only this proposed use, if the applicants agreed to the condition. He also noted that Section 1001(A)(5) of the Ordinance requires that parking areas and driveways be graded and paved with asphalt or other suitable material, and reviewed by the Township Engineer for water flow. He noted that no variance had been requested for stone instead of asphalt.

Mr. Marshall said that the plan has been reviewed by the Township Engineer, and that stone is another suitable material.

Mr. Harwood said that he thought that this project might be eligible for an administrative conditional use since the Soccer and Lacrosse Corner had already been granted a conditional use at its current location.

Mr. Yardley and Mrs. Hillman agreed that they would accept variances with the condition that they be limited to the business described in their testimony, and that hours of operation would be limited to 10:00AM to 6:00 PM, Monday through Saturday, with no Sunday hours. Mr. Yardley agreed to pay the cost of transcribing the testimony to be attached to the decision.

Mr. Lionetti moved to grant variances from Section 803(E-1)(4), 1001(B)(5), 1001(F)(4), 1001(F)(6)(a), and 1001(C)(1) of the Joint Municipal Zoning Ordinance of 1983 to permit an E-1 Retail use with a reduction of parking spaces from 27 to 8, with parking in the front yard, with a 15 feet wide parking aisle instead of 25 feet, with parking in the right of way, and with uncurbed entranceway in excess of 35 feet, with the conditions that use be limited to that described in the transcript of the testimony given at this hearing; that the applicants pay costs for transcribing the testimony and that hours of operation be limited to Monday through Saturday from 10:00AM to 6:00 PM, with no Sunday hours. Mr. Lenihan seconded.

Mrs. Laughlin expressed concern about granting the variance to eliminate the curbing, as she felt it might cause water problems. She asked if the conditional use process would re-instate the curbing requirement.

Mr. Auchinleck said that he is not sure if this project will go through land development, however if a variance is granted, the applicant cannot be compelled to install curbing.

Mr. Lionetti expressed concern about cars backing out onto German Avenue.

Mr. Lenihan noted that when he visited the site he saw that the area is bermed in such a way that cars will not be able to back out, and that there is sufficient room to turn around.

The motion passed 3-2 with Mrs. Laughlin and Mr. Wall voting nay.

Application of Pier 1 Imports

Mrs. Laughlin read into the record the application of Pier 1 Imports, Kramont Realty Trust, owners requesting a variance from Section 1106(H) of the Joint Municipal Zoning Ordinance of 1983 to permit two 160 square feet roof-mounted identification signs 21'10'' in height where only wall or fascia signs under 9 feet in height with a maximum size of 20 square feet are permitted. The subject property is 2807 Eagle Road, Newtown, in the PC Planned Commercial Zoning District.

Ms. Tami Derkson of Access Signs and Mr. Michael Malia, regional Vice President of Kramont Realty Trust were sworn in.

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

Ms. Derkson said that Pier 1 Imports would like to erect rooftop signs on the two sides of the building formerly occupied by Zany Brainy. She said that the standard Pier 1 signs are channel lit on the white letters only, and that the blue area is not lit at all. She said that the letter “P” is three feet high, and the other letters are smaller. She noted that in other municipalities where Pier 1 has locations, only the channel lighted letters were used to calculate the sign size, which is 3 feet high by 25 feet long, and that the blue aluminum background had never been included in the calculation.

Ms. Derkson entered as Exhibits P-1 and P-2 photographs of Pier 1 Imports signs from other locations, noting that these signs are the same as what is being proposed for the Village at Newtown location. She noted that these signs are smaller than the 5-foot 7-inch signs that Zany Brainy had used at this location. She said that the company required the large signs for visibility. She entered as Exhibits P-3 and P-4, photographs of the Zany Brainy signs.

Mr. Lionetti asked if any other businesses at Village at Newtown had roof-mounted signs and if there were any signage packages with smaller signs.

Mr. Malia said that Genuardi’s has a roof-mounted sign, and Ms. Derkson said that there is a package with signs measuring 112.5 square feet. Mr. Malia said that he has been with Kramont since 1975, and it has been his experience that signs usually are placed to scale for aesthetic purposes, and that these signs are relatively small, taking only about 25% of the store’s frontage.

Mrs. Bowe asked if Pier 1 Imports would be using the box signs that the other businesses in the shopping center have, and that appear in Exhibits P-3 and P-4.

Ms. Derkson said that the box signs were removed and would not be used.

Mr. Harwood said that the previous relief for a roof-mounted sign for Zany Brainy had been an amendment to the final plan for the shopping center, not a variance.

Mr. Wall expressed concern that if one business is granted a variance, that other businesses in the shopping center would also ask for variances.

Ms. Judy Norkin of 149 Cliveden Drive was sworn in.

Ms. Norkin said that she was speaking on behalf of the Cliveden Estates Homeowners Association. She said that residents of her development were concerned that the sign would be an eyesore and that the light would shine into their windows at night. She said that the homeowners in Cliveden had purchased their homes with the understanding that the existing rules prohibited lighted, roof-mounted signs, and that they would like to see these rules upheld.

In response to questions from Mr. Lenihan, Ms. Norkin said that she was not bothered by the Zany Brainy sign, but that she did not know if those residents whose homes are closer to the shopping center were bothered by it.

Mr. Malia said that the darker background does not light up, and the white light is softer and is absorbed by the dark background on the sign.

Mrs. Laughlin noted that the signs are almost ¼ mile from the nearest house.

In response to Mrs. Bowe’s question, Mrs. Derkson said that the sign would be lit when the store is open.

The Board discussed whether a smaller sign could be used on the side of the building that faces Durham Road.

Mr. Malia entered as Exhibit P-5, a scale drawing, showing the two sides of the building with the roof signs in place. He noted that the signs are not large when compared to the side of the building. He also said that the signs are on the two corners of the building and should be the same size to create a symmetrical appearance.

Mr. Lionetti said that he thought that the smaller signs would be very visible, and that the location was such that business would be very good, and customers would easily find the store.

Mr. Wall moved to grant a variance from Section 1106(H) of the Joint Municipal Zoning Ordinance of 1983 to permit two 112.5 square feet roof-mounted identification signs 21'10'' in height where only wall or fascia signs under 9 feet in height with a maximum size of 20 square feet are permitted. Mrs. Laughlin seconded and the motion passed unanimously.

Application of Brandywine Realty Trust

Mr. Auchinleck informed the Board that he had received a letter from Mr. Coughlin, attorney for the applicant, requesting that this application be continued to the December meeting.

Mr. Lionetti moved to continue to application of Brandywine Realty Trust to December 2, 2004. Mr. Wall seconded and the motion passed unanimously.

Application of W. David and Beverly Fleming

Mrs. Laughlin read into the record the application of W. David and Beverly Fleming, W. David and Beverly Fleming owners requesting a variance from Section 803 (H-7) and 401(A)(1) of the Joint Municipal Zoning Ordinance of 1983 to permit temporary tent for recurring events and to allow weddings, parties and other events as accessory to winery in the CM District, and appealing the action of the zoning officer determining that weddings and other events are not accessory to a winery. The subject property is 258 Durham Road, Newtown, in the CM Conservation Management Zoning District.

Mr. Don Marshall represented the applicants.

Mr. David Sander represented the Township as a party in opposition to the application.

Mr. Lionetti asked if anyone present wished to be party for or against this application. He said that any residents in attendance would be permitted to comment after testimony has been given and before the Board renders a decision.

Mr. Jim McCrane of 3 Blayze Court requested party status.

Mr. W. David Fleming and Mr. Jim McCrane were sworn in.

Mr. Lionetti asked that anyone present who wished to speak be sworn in at this time.

Mr. Jay Sensibaugh, Mr. Shawn Ward, Mr. Walter Iwaskiw, Mr. Allen Fidler, and Mr. Martin Sommer were sworn in./p>

Mr. Marshall said that this application had been revised and a second application has been combined requesting an appeal from violation notices from the Zoning Officer. He said that he and Mr. Sander had agreed that Mr. Sander would present testimony on the violation notices, if it was agreeable to Mr. McCrane.

Mr. McCrane had no objection.

Mr. Sander said that the Township carries the burden of proof for the denial of a permit for a tent and with the enforcement of violation notices.

Mr. Sander entered the following Exhibits:

In response to questions from Mr. Sander, Mr. Harwood reviewed the Certificate of Occupancy, which was granted in 1999 for the making and selling of wine, an A-6 agricultural sales use, which is a permitted use in the CM Conservation Management Zoning District.

Mr. Harwood reviewed the series of permits entered as Exhibit T-2. He noted that four permits had been issued between March 20, 2000 and October 9, 2001 to erect tents for single events, each permit requiring that the tent be removed a few days after the event. On August 12, 2002, a permit was issued to erect a tent to host “weddings, parties and festivals” until November 15, 2002, at which time the tent was to be removed. On January 21, 2003, a permit was issued to erect a tent for “weddings, parties and festivals” during the six months from May 1 through November 1, 2003. There was also a permit given for a single event in April of 2003. On April 8, 2004, a permit was issued for a single event on April 30, with tent to be removed by May 3, 2004.

Mr. Sander asked if the tent was removed after May 3, 2004.

Mr. Marshall objected to this question.

Mr. Sander said that the tent had not been removed by agreement with the Township while an appeal was pending.

In response to Mr. Sander’s questions, Mr. Harwood said that Exhibit T-3, the police report, describes a noise complaint from Mr. McCrane, which was investigated. He said that the police found a party in progress with a disc jockey playing music through two small speakers. There were between 100 and 150 people in attendance. When the police arrived, the noise was reduced. After this, Mr. Fleming applied for a permit for a temporary tent to remain in place until November, 2004, which application was denied. Mr. Harwood explained that the permit was denied because the continuous events were not consistent with the approved uses of this property, and because there had been a noise complaint. He said that the prior permits had been issued for single events. He said that now the homes in St. Andrews Briar and Pheasant Point are occupied and the permit requested would have allowed such events to recur every weekend. He mentioned a similar situation that had been a problem at Stonehouse Bistro. He said that he thought that Pheasant Point is closer to the winery property.

Mr. Harwood said that he was familiar with the Rosebank Winery Web site, which describes the Winery as a location to host events in an “incredible tent” which can accommodate up to 300 people.

Mr. Harwood said that the current use permitted is A-6 Agricultural sales, and he noted that the Ordinance describes this as the sale of farm products, and that the auxiliary structure for such sales is not to exceed 400 square feet in area. He also said that a temporary structure is permitted when necessary during construction, and for non-recurring events. He also said that he thought that a temporary structure should be subordinate to the principal structure, and in this case the wine barn is smaller than the tent. He also said that he did not think that the hosting of weddings was an accessory use incidental to the production of wine. He also noted that while the Ordinance does permit accessory non-residential farm buildings if they meet setback requirements, he did not consider the tent an accessory farm building.

Mr. Marshall asked Mr. Harwood if, in his opinion, an accessory structure could be larger than a primary structure.

Mr. Harwood said that it could not be larger.

Mr. Marshall reminded Mr. Harwood that in a pervious hearing this evening he had acknowledged a 6000 square foot pole barn as an accessory structure to a small single family home. He said that the Ordinance did not cite any size criteria.

Mr. Marshall asked Mr. Harwood to explain what activities were taking place in 2004 at the winery that were different than the activities for which permits were issued in 2003.

Mr. Harwood said that while the events were similar in nature, weddings, and parties, they were now to be held on a recurring basis. He said that because the Township had problems with the tent events at Stonehouse Bistro, he felt it was no appropriate to issue a permit for recurring events, as it was disturbing to residential neighbors.

Mr. Marshall asked why, although In-and-Out Winery had existed for a number of years, the Certificate of Occupancy was issued in 1999.

Mr. Harwood said that the fire department noticed that it was missing. Mr. Harwood discussed the principal use of the property as A-1 agriculture, and A-6 as the accessory use, the sale of agricultural products. He said that the vineyards and wine production are the principal uses, and that the Ordinance requires a percentage of the products sold to be produced on the property.

Mr. Marshall again reviewed the permits entered as Exhibit T-2, and asked if Mr. Fleming had ever asked if he would continue to be issued permits, as he would like to book events in advance. He asked Mr. Harwood to read into the record his letter to Mr. Fleming. Mr. Marshall said that he would enter this letter, dated September 18, 2002, as Exhibit A-14.

Mr. Harwood read his letter in which he said that Mr. Fleming would be issued permits if the tent was inspected by the fire marshal as was up to code. In response to Mr. Marshall’s questions, Mr. Harwood said that the Enforcement Notice was issued to Mr. Fleming (Exhibit T-5) because the activities went beyond those for which a temporary permit is issued. He said he reached this decision in part because of the police complaint and the experience at the other facility.

Mr. Marshall asked if Mr. Harwood was aware that Mr. Fleming had relied on Mr. Harwood’s assurance that permits would be issued as he booked events for the following year.

Mr. Harwood said that he did not know.

Mr. Marshall asked Mr. Harwood to explain what “recurring” means.

Mr. Harwood said that “recurring” means happening frequently, continually or consecutively. He said that it did not matter who the principals involved are, but that every weekend an event is taking place.

In response to Mr. Marshall’s questions, Mr. Harwood said that Mr. McCrane’s complaint was the only one that the police received, and that the noise ended within 32 minutes of the complaint. He said that this was an event for which a permit had been issued.

Mr. Harwood said that he did not think that weddings are an accessory use to an agricultural business. He said that an accessory use is one that is customarily incidental to the principal use. He said that in this case the production of wine is the principal use, with the selling and tasting of wine as accessory uses. Mr. Harwood said that he thought that the principal structure on this property is the wine barn, and that there are vineyards on the property, but that he does not know whether they do crushing of grapes and fermenting and bottling in the barn.

In response to Mr. Sander’s questions, Mr. Harwood said that his letter of September 18, 2002, makes reference to temporary structures for events of a non-recurring nature, which is consistent with the permits that had been granted to this applicant.

Mr. Marshall asked why Mr. Harwood had granted permits for a three-month period in 2002 and for a six-month period in 2003, but then denied a permit for the same use in 2004.

Mr. Harwood said that he had denied the permit in 2004 because of the development of the surrounding area and because of the experiences the Township had with another business hosting events in an outdoor tent.

Mr. McCrane asked Mr. Harwood if he knew whether St. Andrew’s Briar is closer to the winery than Pheasant Point.

Mr. Harwood said that he was not sure.

Mr. Sander asked Mr. Harwood if the tent had been placed in the same location on the property every year.

Mr. Harwood said that in 2002 and 2003, the tent had been installed to the north, alongside the barn, but in 2004 in had been located to the rear of the barn, closer to the homes in St. Andrew’s Briar, but that the location would not have made a difference in his decision to deny the permit.

Mr. Auchinleck asked Mr. Harwood if there are any other wineries in Newtown, or if he has been a zoning officer in any other municipalities that had wineries. He also asked if Mr. Harwood had done any research to learn if any other wineries were hosting large parties and weddings.

Mr. Harwood said that Rosebank is the only winery in Newtown, and that he had not been a zoning officer in other municipalities, but had worked as a township manager. He said that he was aware of a number of wineries on the east end of Long Island that have become wedding venues, but that they are not in residential areas.

Mr. Wall asked Mr. Harwood what the negative experiences at Stonehouse Bistro had been.

Mr. Harwood said that there had been a number of noise complaints, and that there had been traffic issues. He explained that the parking for Stonehouse Bistro is on the opposite side of Washington Crossing Road, and that there had been problems with customers crossing the street in the dark, and with cars exiting the lot to cross over the street to the restaurant.

Mr. Wall asked if there had been any other complaints against Rosebank Winery, or if there had been traffic issues.

Mr. Harwood said that there had only been the one noise complaint, and that there has not been any parking problem along Durham Road. He said that he did have concerns about cars exiting the winery onto Durham Road, because the driveway is at a low point in the road, with poor sight distances on a high-speed road.

In response to Mr. Lionetti’s question, Mr. Marshall said that the Fleming family lives in the house on the winery property.

Mr. Lionetti suggested that because of the lateness of the hour, if Mr. Harwood’s testimony were complete, he would like to continue this hearing to December.

The Board discussed the possibility of a very full agenda for the December meeting, and Mr. Marshall, Mr. Sander and Mr. McCrane agreed to continue the hearing to the December 2, 2004 meeting, with the understanding that they would be the last on the agenda at that meeting.

Mr. Lionetti moved to continue the application of W. David and Beverly Fleming to December 2, 2004. Mrs. Bowe seconded and the motion passed unanimously.

Mr. Lionetti moved to adjourn at 11:40 PM. Mr. Lenihan seconded and the motion passed unanimously.

 

Respectfully Submitted

 

__________________________
Mary Donaldson, Recording Secretary