NEWTOWN TOWNSHIP ZONING HEARING BOARD
MUNICIPAL BUILDING - 100 MUNICIPAL DRIVE
NEWTOWN, PA 18940
MONDAY, DECEMBER 6, 2004
Approval of Minutes: Mr. Lionetti moved to accept the minutes of December 2, 2004, December 6, 2004 and December 13, 2004. Mrs. Laughlin seconded and the motion passed unanimously.
The Newtown Township Zoning Hearing Board met on Monday, December 6, 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 Connie D’Arginio, Stenographer.
Call to Order
Mr. Lionetti called the meeting to Order at 7:35 PM.
The Pledge of Allegiance
The agenda was reviewed.
Continued Application of W. David and Beverly Fleming
Mr. Auchinleck reminded the Board that this application had been opened at the November 4, 2004 meeting, at which time Mr. Sander had presented the Township’s testimony. It had been continued to the December 2, 2004 meeting, at which time, due to the length of the agenda it was again continued until this evening.
Mr. McCrane asked that the record show that he had not been notified that the application had been continued to this evening, and that as party to the application he should have been notified.
Mr. Marshall said that at the November 4, 2004 meeting the Township had presented and closed its testimony. He explained that the Flemings are owners of Rosebank Winery, an 11-acre property in the CM Conservation Management Zoning District. The winery is currently operated under an A-1 agricultural use and A-6 agricultural accessory use. The winery produces from 7,000 to 11,000 gallons of wine each year from grapes grown on the property and from grapes and other fruits grown in Pennsylvania. There are 10 paved parking spaces and a grassy area available to accommodate 200 cars. Mr. Fleming has applied for and received permits to erect a 50-foot by 110-foot temporary tent in the past, and is appealing the denial of a permit and a subsequent Enforcement Notice issued by the Township.
Mr. Marshall described the winery location as surrounded by Newtown Elementary School, the Elementary School playing fields, the Township owned Woll Tract which is to become an active recreation park, and opposite the Clark Nature Center. St. Andrew’s Briar’s Blayze Court is to the east, with the nearest home on Blayze Court 835 feet from the tent.
Mr. Marshall said that the first appeal presented is from a denial of an application for a permit for an H-7 temporary structure for the hosting of non-recurring events for not more than six months. He noted that the application had requested an eight-month period from April through November of 2004. While the appeal was pending, with negotiations with the Township underway, an Enforcement Notice was issued which is the subject of the second appeal, as Mr. Fleming has considered the events in the tent as allowed under Section 401 A-1 accessory agricultural use, that is the promotion of agricultural products.
Mr. Thomas Carroll was sworn in.
Mr. Carroll resides at 1849 Wrightstown Road, Washington Crossing. He is the owner and operator of Crossing Vineyards and Winery. In response to Mr. Marshall’s questions, Mr. Carroll said that he has lived on the property for 20 years, had begun the process of becoming a winery about six years ago and has been open as a winery for one year. He has 15 acres of vineyards in the Upper Makefield CM Conservation Management Zoning District. His business grows grapes, processes, ferments and bottles wine, and has a retail business of selling the wine and wine accessories. As part of the promotion of his business he hosts events such as birthday parties, rehearsal dinners, small weddings, corporate meetings and the Upper Makefield Township Holiday Party. These events are necessary to the promotion of his product. At all events his wine is served and sold.
He noted that his vineyard and Winery is surrounded by the Longmeadow Development on three sides. His nearest residential neighbors are about 100 yards away from his buildings. He said that under the Pennsylvania Limited Wine Act he is permitted to produce up to 250,000 gallons of wine and to promote the wine at events. He is familiar with the other wineries in the state, including Rosebank. He said that he believes that his buildings are closer to residential neighbors than the Rosebank Winery is to their neighbors. He said that there are 99 wineries in Pennsylvania, making it the fifth wine producer in the nation. He is aware that most of the state’s wineries hold functions on their properties.
In response to Mr. Sander’s questions, Mr. Carroll said that a typical 50th birthday party will have 50 people in attendance, a small wedding will have fewer than 100 people, corporate meetings have about 50 people and the Upper Makefield Holiday party had 100 people. His largest parties have had about 130 people in attendance.
Mr. Carroll described his facilities as a 6,000 square foot winery building with a barrel room; a tasting and event building of about 2,500 square feet; and a patio with permanent tent structure of about 2,000 square feet. He explained that the gabled tent structure is aluminum and remains in place, however the canvas cover is removed in the winter months. The tent is surrounded on two sides by the walls of the building, and has canvas sides that are dropped in bad weather.
In response to Mr. Sander’s questions, Mr. Carroll said that he was not sure of the capacity of the event building or tent, as posted by the fire marshal. The two buildings are entirely enclosed, with tables and bar set up for the hosting of functions. His tasting rooms and barrel room are large and can be used for hosting functions. During functions he is available to inform attendees on wine education. He has three full time employees and 15 part-time employees who help with set-up, serving and clean-up at functions. He generally employs one server per 10 attendees at a function. He has a contracted caterer, and does not allow a guest to bring in a caterer of his own. It is a condition that only his wine is served at functions, but not a written law. He has been issued permits by Upper Makefield Township and had a certificate of occupancy, although he is not sure of the zoning use his certificate is issued for.
In response to questions from Mr. Sander, Mr. Carroll said that he has held some functions with live music, including a concert series on a grassy knoll outdoors, which ended after 8:30PM. He has held more than 20 functions outdoors in 2004, with a maximum of about 130 attendees, although there were more than 200 at the summer music series. He has parked about 100 cars on his property He advertises for these functions and has a Web site. Generally he does not serve alcohol other than his own wine. He said that he rarely serves mixed drinks at these functions, nor does he serve wine other than that produced on site. Regarding noise on the property, Mr. Carroll said that he has had no complaints from neighbors, and he absolutely attempts to be conscious of noise levels so as not to disturb his residential neighbors.
Mr. Sander questioned Mr. Carroll about the percentage of his wine sales that took place during functions. Mr. Carroll said that he has not broken down figures on sales at functions.
Mr. Marshall said that these functions serve as promotion of the product, and that sales result from the functions, although they do not necessarily take place during the functions.
In response to Mr. Sander’s questions, Mr. Carroll repeated that he does not allow hosts of events to bring in their own caterers or other wines. He said he is not allowed to serve alcohol other than his own wine unless it is brought in by the hosts. Neither he, nor the caterer, is allowed to provide liquor. He is rarely asked to serve liquor brought in by hosts of events.
In response to questions from Mr. McCrane, Mr. Carroll said that he holds a couple of events with music each week, in addition to the summer music series. Less than 10% of events have amplified sound, probably about 5%. 1% of events have a DJ providing amplified music. DJ events are not held on the patio. The area surrounding his vineyards is planted with a buffer that Longmeadow development was required to plant by Upper Makefield Township. His property fronts onto Wrightstown Road, and the opposite side of the street is wooded.
Mr. McCrane asked whether Mr. Carroll’s vineyard description on the PA Wineries Web site includes mention of functions held at the vineyard. Mr. Carroll agreed that it does not mention the hosting of weddings or birthday parties.
In response to Mr. Lenihan’s questions, Mr. Carroll explained that it is difficult to estimate the percentage of his revenues generated by the hosting of functions, but he guessed that there would be some overlap between the functions and wine tastings, with at least 50% of his business the result of the functions.
In response to questions from Mr. Auchinleck, Mr. Carroll said that his caterer provides chefs, and the servers are his own employees. He said that he has 26 paved parking spaces in the front of his business, and 50 paved spaces in the rear, with some grass parking available for up to 100 cars total. His driveway exits directly onto Wrightstown Road without any acceleration or deceleration lanes or left turn lanes. He does not have public water or sewer, and his restroom facilities are inside the main building. He has brought in port-o-potties for large events. He has not been issued a temporary structure permit because his tent is not temporary. The tent structure was part of his original building permit. His nearest residential neighbors, in Longmeadow development, are about 75 yards from his buildings.
In response to Mr. Lionetti’s questions, Mr. Carroll said that his driveway is wide enough for a car to exit while another car is entering.
In response to Mrs. Laughlin’s question, Mr. Carroll repeated that he did not know what use his occupancy permit was issued for. He did not have to go through a land development process when he started the winery. Upper Makefield Township required Longmeadow, not the winery, to provide buffer plantings. He did apply for and was granted building permits from Upper Makefield Township. Most of his buildings were renovated existing structures. He was not required to improve the road. He said that it had been his understanding that his agricultural buildings were not subject to a land development process.
In response to Mr. Lionetti’s questions, Mr. Carroll said that his driveway was modified to comply with Township requirements, and he made some improvements to the property to create better sight line distances, as required by PennDot. He has installed tanks for wine run-off. He did not recall if other improvements made were requirements. He agreed that Rte 413 was more heavily trafficked than Wrightstown Road. He created the paved parking for the winery. His property is twenty acres, of which 15 acres are vineyards.
W. David Fleming was sworn in.
Mr. Fleming said that he resides at 258 Durham Road. He owns and operates Rosebank Winery.
In response to Mr. Marshall’s questions, Mr. Fleming said that he acquired the winery and vineyards in 2000 and immediately began holding functions there. He grows grapes, makes and sells wine on the property. He said that the previous owner had also held functions on the property. He said that caterers are hired for the functions, and the caterers provide servers.
Mr. Marshall entered as Exhibit A-1 a plot plan of the property prepared by Richard Walker, Architect.
Mr. Fleming reviewed the locations on the plan showing his residence, wine barn, tenant house, vineyards, parking area, proposed warehouse, and tent area. He indicated that prior to 2004 he had erected the tent on the north side of the property. He pointed out the surrounding properties. The tent is 110 feet by 50 feet with a gabled roof, wooden floor and sides that are dropped when needed. The tent is more than 150 feet from Durham Road and all property lines, as required by the Ordinance. The parking area at the northeast corner of the property can accommodate 200 cars.
Mr. Marshall entered the following exhibits:
Mr. Marshall said that under these Ordinances Mr. Fleming’s application for a temporary tent should have been granted as a non-residential farm building or an accessory building, either of which is permitted 150 feet from property lines outside of a floodplain and as a subordinate ancillary building to the principal business, the making and selling of wine.
In response to Mr. Marshall’s questions, Mr. Fleming said that he had been issued permits for temporary structures by the Township for four years, however in 2004 the Township took a different position. At the time that his 2004 application had been denied, no mention had been made of difficulties with events at the Stonehouse Bistro. He noted that his 2004 application had requested a temporary structure to remain in place for eight months, and the Ordinance limits the time to six months, but otherwise he complied with all requirements of the Ordinance. He also said that in the past the events held in the tent had been considered non-recurring, as each one was different, but this year the Township has taken the position that the events were recurring.
Mr. Marshall entered as Exhibit 6 Pennsylvania Act 319, and as Exhibit 6-A the definitions section, with “agricultural commodity” and “agricultural use” underlined.
Mr. Fleming explained that at his winery he grows grapes for use in the making of wine, and also purchases grapes, fruits and juices from other vineyards, mostly in the state of Pennsylvania. He is permitted to sell the wine he produces at the winery at tastings and events, and also at five satellite locations.
Mr. Marshall entered as Exhibit A-7, a letter dated March 22, 1984 to the Pennsylvania Liquor Control Board from the Newtown Township Zoning Officer.
Mr. Fleming read the letter confirming that the winery “conforms with the zoning regulation governing agricultural sales and is a permitted use” into the record. Mr. Fleming noted that he had purchased the winery from Mr. Selesnick in 2000, and that it had been operating as a winery at the time of purchase.
Mr. Sander objected, saying that the letter does not say that the Township is granting the property status as a limited winery.
Mr. McCrane also objected.
Mr. Marshall asked if there had ever been any issues with the Township prior to 2004.
Mr. Fleming said that there had never been an issue with In and Out Winery, or with Rosebank until this year.
Mr. Marshall entered as Exhibit A-8, the Joint Municipal Zoning Ordinance Section 275.b, accessory use.
Mr. Marshall said that this section addresses the accessory use and reminded the Board of the importance of promotion of the product as discussed by Mr. Carroll, the previous witness.
Mr. Sander objected, saying that he did not agree that this is an accessory, but the primary use.
Mr. Marshall again stated that the primary use is the making and selling of wine.
Mr. Auchinleck overruled the objections.
In response to the questions of Mr. Marshall, Mr. Fleming said that he had checked with the other wineries in the area to determine if they hold functions similar to his winery, including:
Mr. Marshall entered as Exhibit A-9, the Right to Farm Statute, and as Exhibit 9-A, the amendment to the statute, which includes viticulture as agriculture.
Mr. Marshall noted that this statute does not exempt farms from zoning ordinances however does exempt them from nuisance statutes. He said that Pennsylvania has a policy of encouraging farming.
Mr. Fleming said that his Limited Winery License, issued by the Pennsylvania Liquor Control Board, allows him to make and sell wine 365 days a year at his location and five satellite locations, and to promote his wine through events such as tastings, music festivals, and other events.
Mr. Marshall entered as Exhibit 10, “selected Sections of the Liquor Code and Title 40, Pennsylvani a Code Pertaining to Limited Wineries”.
Mr. Fleming read into the record portions of Liquor Code, section 505.2, which permits “…arts and crafts, musical activities, cultural exhibits, agricultural exhibits and similar activities.”
Mr. Marshall entered as Exhibit A-11, a monthly report of inventory, explaining that Mr. Fleming is required to account to the state for all sales activities at the winery.
Mr. Marshall entered the following exhibits:
In response to Mr. Marshall’s questions, Mr. Fleming said that he had relied on Mr. Harwood’s assurances, and his history of obtaining permits from the Township in 2002 and 2003, and had booked weddings for 2004. He explained that he had applied to the Township for a permit for the tent for the 2004 season and had been denied because the Township had considered his application differently than they had in the past. He had made some permanent improvements to his property based on his belief that he would continue to be issued tent permits, including leveling the ground at the tent site, and bringing water and electricity to the tent area and vineyards. He had also done some landscaping and installed a walkway to the tent area and had advertised for events at the winery.
He said that he has attempted to negotiate with the Township, and had learned that the Township had reached an agreement with Stonehouse Bistro. After the noise complaint in April of 2004, he first rented and then constructed a sound box, which is an insulated wooden box, to keep the sounds of music from traveling toward the residential neighbors. He purchased a decibel meter and measured sound at 84 decibels in the tent, but could no longer be heard at the boundary of the property.
Mr. Marshall entered as Exhibit A-17, an agreement between the Township and Stonehouse Bistro, which is also in the Conservation Management Zoning District, and is a non-conforming use; and Exhibit A-18 an Enforcement Notice dated September 24, 2004.
In response to Mr. Marshall’s questions, Mr. Fleming explained after the denial of a permit, he continued to hold events in the tent, while continuing to negotiate an agreement with the Township. He said that the Enforcement Notice stated that the activities in the tent were in violation of the Certificate of Occupancy, and are not accessory agricultural sales, although he, and the previous owner, had been conducting similar activities for twenty years, all with Township permits granted
Mr. Marshall entered as Exhibit A-19 the Newtown Township Noise Ordinance.
Mr. Fleming began to explain that he was trying to come to an agreement with the Township.
Mr. Sander objected saying that he should not reveal settlement terms that had been discussed.
Mr. Marshall withdrew his questions.
Mr. Marshall asked Mr. Fleming to explain his attempts to contain noise from the music.
Mr. Fleming said that the sound box he had built sits behind the amplification system and blocks sound traveling toward Blayze Court. He said that after he began using the box he was unable to measure any sound from the music at the boundary with Blayze Court. He said that after the one complaint in April he had not received any additional noise complaints.
In response to Mr. Sander’s questions, Mr. Fleming said that he provides Rosebank wines at weddings held at the winery. Host families bring in their own caterers who provide servers. The caterers do not provide other alcoholic beverages, however they do serve alcohol brought in by the host family. Most of the weddings have other alcoholic drinks served.
Mr. Sander asked about the size of the tent, number of guests accommodated and times of weddings and parties.
Mr. Fleming said that the tent is 5500 square feet, and can accommodate up to 350 guests. The weddings generally end at 10:00PM, although there had been one event that ended at 11:00PM. About 80 to 90% of weddings have DJ’s with amplified music. Most of the weddings are in the tent, although smaller events have taken place in the wine tasting room. During the hours that an event is taking place, Mr. Fleming said that he is available to conduct wine tastings in the barn, which is about 30 yards from the tent. This barn also houses the restrooms. He explained that there is a lighted, paved walkway from the tent to the barn, and that some guests do participate in wine tasting, but he could not estimate the number. He said that mostly guests participate in wine tasting before the start of the weddings, while the bride and groom have pictures taken. He has a ladies room with three stalls and a men’s room, also with three stalls. He has one other employee, and brings in two additional for large weddings. For events of more than 250 people he has hired someone for traffic control. His largest wedding in 2004 had 246 guests; one wedding had 200 guests; most weddings had about 150 guests. His barn area can seat 48 people, or have 75 for a cocktail party. He also has a deck covered by a tent, which can accommodate 125 people.
Mr. Sander questioned Mr. Fleming on the events for which permits were issued in 2002 and 2003, and of events hosted by Mr. Selesnick, the previous owner.
Mr. Fleming said that he had learned through conversations with Mr. Selesnick that he had hosted various types of events at the winery, but he did not know the number of people in attendance at these events. During 2002 and 2003 the tent had been at the North side of his property, but in 2004 it was placed at the rear of his property, closer to Blayze Court.
Mr. Sander reviewed the list of other wineries in the area, and repeated the types of events Mr. Fleming was aware were being held at these locations. Mr. Fleming said that he did not know if these events were held with permits from their municipalities; if they were considered accessory uses; or the number of people in attendance. He said that he had attended an event at Chadds Ford Winery that lasted until 8:30PM, but he did not know of typical hours for events at other wineries. He said that he did not know of any local ordinances governing the operation of these other wineries, however Title 40 of the State Code did give wineries the right to hold functions.
Mr. Sander referred Mr. Fleming to Title 40, Pennsylvania Code Pertaining to Limited Wineries, Section 505.2.4.(Exhibit A-10). He asked Mr. Fleming if he had obtained a “special permit to participate in alcoholic cider, wine and food expositions off the licensed premises”, and if so how many had been obtained. He also asked how many events were held in the tent in 2004.
Mr. Fleming said that he has obtained such permits, but never more than five in a year, and that 10 events were held in the tent. No such permits were required, as the special permit is for “off premises”.
In response to Mr. Sander’s questions, Mr. Fleming said that he has accepted bookings for the tent for 2005. He had also continued to accept bookings in 2004 after his permit application had been denied, relying on the fact that he had been able to get permits in past years, and had gotten a permit for an individual event in April of 2004.
Mr. Marshall objected, noting that the continued bookings had been part of the settlement negotiations. Mr. Sander withdrew his questions.
Mr. Sander asked if Mr. Fleming understood that permits issued in 2003 would expire at the end of the year. Mr. Fleming said that he did.
Mr. Sander asked Mr. Fleming a series of questions about his knowledge of the business conducted at Lavender Hall. Mr. Fleming said that he did not know about their catering business.
Mr. Sander referred to exhibit A-18, and noted that the Enforcement Notice did not preclude Mr. Fleming from hosting wine tastings and promotional events for wine education.
In response to Mr. Sander’s questions, Mr. Fleming said that his winery produces between 7,000 and 10,000 gallons of wine. He sells about 4000 gallons of wine a year. He grows some grapes, but also must buy some. In addition to on site sales and satellite sales, he sells some wine to restaurants. His total gross income from wine sales is about $150,000. In 2001 he had to purchase some outside wine for some events, when his supply ran low, but since then, all wine sold is made on the premises. He acknowledged that he does not make champagne, which he purchases to serve at weddings. His gross income from the sale of wine accessories is about $5,000. He said that it is difficult to calculate the portion of his gross income form the holding of events, but he estimated that about $15,000 is earned from the hosting, and $135,000 from the sale of wine. He explained that he does not sell wine during the events, but that his wine is purchased to be served at events. He is prohibited from selling wine by the glass. He can only sell or give away one-ounce samples or sell bottles of wine.
Mr. Fleming repeated that the hosting of events draws attention to his product, and is a way to promote and educate about his product. He said that the state had determined that wine tasting is education. He does not educate on wine tasting in the tent but in his tasting room.
Mr. McCrane asked Mr. Fleming to confirm the time noted on Newtown Township Police Department Investigation Report dated May 4, 2004. (Exhibit T-3)
Mr. Fleming said that the time noted is 10:58 PM. In response to Mr. McCrane’s questions he said that he did not think any other events were later than 10:00 PM.
In response to Mr. McCrane’s questions, Mr. Fleming said that he had not received any other police complaints, but had received two telephone calls, one from Mr. McCrane and one from a Mr. Deegan, both on the night of April 30, 2004. He had not had any complaints since then. He said that he did not consider the statements of residents at Board of Supervisors meetings complaints but exaggerations and lies.
In response to Mr. Marshall’s question, Mr. Fleming said that he had booked events for 2005 before he had received the denial of his application, as well as after. He said that in prior years he had asked if permits would be issued in the future and had always been told that they would be. He had never been told that there would be a problem with receiving permits.
Mr. Sander referred Mr. Fleming to Exhibit A-14, which is dated September 14, 2002. He asked Mr. Fleming if he understood that Mr. Harwood’s assurance that permits would be issued the following year referred to 2003.
Mr. Fleming said that he took the assurance to mean “in the future”. He confirmed that he had been issued permits in 2002 for single events. He said that his application was denied in 2004 even though he was in compliance with fire, building and zoning codes.
Mr. Shawn Ward was called as a witness. Mr. Ward had been sworn in at the November 4, 2004 meeting.
Mr. Ward said that he is a member of the Newtown Township Planning Commission. It is the practice of the Planning Commission to review the applications to the Zoning Hearing Board to make recommendations to the Board of Supervisors as to a position to take on the applications. He said that the Planning Commission reviewed this application in April of 2004 and had no comments, however when it was presented again at the October 19, 2004 meeting the Planning Commission voted 5-1 to recommend that the Board of Supervisors not oppose. He said that the Planning Commission looked into the matter of noise complaints. He said that he visited the winery and was shown the sound system and the sound box by Mr. Fleming. Using a decibel meter he measured the music at between 86 and 90 decibels in the tent. He then walked across the field toward Blayze Court, where he was not able to measure the music at all. He said that at Blayze Court he could not hear any noise from the Winery.
Mr. Jay Sensibaugh was sworn in.
Mr. Sensibaugh said that he is also a member of the Planning Commission. He had also visited the winery and seen the sound box. He also measured the sound inside the tent at 90 decibels, however when he walked toward Blayze Court the decibel meter could only measure the ambient noise of traffic at 50 decibels. He said that he was unable to hear or measure noise from music at the winery.
Mr. Marshall asked if Mr. Sensibaugh, as a Planning Commission member, had formed an opinion as to whether the hosting of events is an accessory use.
Mr. Sander objected as this is beyond the scope and Mr. Sensibaugh is not an expert witness.
Mr. Auchinleck overruled the objection.
Mr. Sensibaugh said that the Planning Commission has looked into accessory agricultural uses, and acknowledges that agriculture is a business that requires access to allow the business to be successful, and that the Planning Commission is interested in studying this further and learning more about it.
In response to Mr. McCrane’s questions, Mr. Sensibaugh said that he had walked the same distance as Mr. Ward. He said that he did not know if Mr. Fleming offered the same demonstration to the residents who had complained of noise. He said that to his knowledge, the Planning Commission members did not offer to escort the complaining residents to the demonstration, nor did they inform the neighbors that the demonstration was taking place.
Mr. Lionetti moved to continue the application of W. David and Beverly Fleming to January 6, 2005. Mr. Lenihan seconded and the motion passed unanimously.
Application of Shannon and Nancy Wilson
The Board discussed continuing the application with the applicants and Mr. Marshall, their attorney. Due to the late hour all agreed to a continuance to the special meeting to be held December 13.
Mr. Lionetti moved to continue the application of Shannon and Nancy Wilson to Monday, December 13, 2004. Mrs. Laughlin seconded and the motion passed unanimously.
Mr. Lenihan moved to adjourn at 11:05PM. Mrs. Laughlin seconded and the motion passed unanimously.
Mary Donaldson, Recording Secretary