NEWTOWN TOWNSHIP ZONING HEARING BOARD

MUNICIPAL BUILDING - 100 MUNICIPAL DRIVE

NEWTOWN, PA 18940

MONDAY, JANUARY 6, 2005

7:30 PM


Approval of Minutes of January 6, 2005: Mrs. Laughlin moved to accept the minutes of January 6, 2005. Mrs. Bowe seconded and the motion passed unanimously.


 The Newtown Township Zoning Hearing Board met on Monday, January 6, 2005, in the Newtown Township Building. In attendance and voting were: Mario Lionetti, John Lenihan, Gail Laughlin, Victoria Bowe and William Wall. 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 7:35 PM. 

The Pledge of Allegiance 

The agenda was reviewed. 

      Reorganization of Board

Approval of Minutes of December 2, December 6, and December 13, 2004

Continued Application of Acme Supermarket – 48 West Road

Continued Application of W. David and Beverly Fleming – 258 Durham Road

Continued Application of Brandywine Realty Trust – Silver Lake Road

Application of Newtown Bucks County Joint Municipal Authority- Linton Hill Road

Application of George David and Julia Hansbarger – 35 Swamp Road 

Reorganization 

Mr. Lionetti read a statement explaining that he has been a member of the Zoning Hearing Board for 13 years, and as such, could not support the nomination of Mr. Wall as chairman. He said that there had been some off the record discussion of proposing Mr. Wall for chairman, and he felt that such an appointment had to do with political partisanship. He noted that Mr. Lenihan had been re-appointed to the Board this month to serve a five-year term, and had been part of the Board for seven years. Mrs. Laughlin has been on the Board for two years, and Mrs. Bowe has served for one year, while Mr. Wall has only served four months. He noted that the Zoning Hearing Board is a quasi-judicial Board, and as such, should not have partisan political motivations. He said that he would like to step down as chairman and nominate Mr. Lenihan, who has acted as secretary and vice chairman during his years on the Board. 

Mr. Lionetti moved to nominate Mr. Lenihan as chairman of the Zoning Hearing Board for 2005. Mr. Lenihan seconded and the motion failed 2-3, with Mr. Wall, Mrs. Bowe and Mrs. Laughlin voting nay. 

Mrs. Laughlin nominated Mr. Wall to serve as chairman of the Zoning Hearing Board for 2005; Mr. Lionetti to serve as vice-chairman; and Mrs. Bowe to serve as secretary. Mr. Wall seconded. 

Mr. Wall said that he intends to be a non-partisan member of this Board and would continue to uphold the tradition of non-partisan zoning decisions. 

Mrs. Laughlin said that she would have liked Mr. Lenihan to continue to serve as vice-chairman but he had declined. 

Mrs. Bowe said that she would keep the best interest of the community first and foremost in her decisions on the Board. 

The motion passed 3-2, with Messrs. Lionetti and Lenihan voting nay. 

Mrs. Laughlin moved to appoint James J. Auchinleck, Jr. Esquire as solicitor for 2005. Mr. Lenihan seconded and the motion passed unanimously.

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. 

Continued Application of Brandywine Realty Trust 

Mr. Auchinleck informed the Board that he had a telephone message and fax from Mr. Coughlin, attorney for Brandywine, requesting a continuance to February 3, 2005. 

Mrs. Laughlin moved to continue the application of Brandywine Realty Trust to February 3, 2005. Mrs. Bowe seconded and the motion passed unanimously. 

Continued Application of Acme Supermarket

Mr. Auchinleck reminded the Board that this application had been read into the record on December 2, 2004, and continued to December 13, 2004. Due to the length of the December agenda, it was continued to this evening. No testimony has been given. 

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

Mr. Bob Wurz of Sign Edge, representing Albertson/Acme Supermarkets, was sworn in.

Mr. Wurz explained that the Acme chain was re-branding its pharmacy as Sav-on, and would like to add the Sav-on logo to the sign to identify it. Acme would like to reduce the size of the existing Acme sign, and add a smaller channel box sign for Sav-on. The existing sign, which is 132 square feet, had been granted a variance. The new Acme sign would be 90.21 square feet, and the second sign for Sav-on would be 32 square feet. Although the total square footage would be smaller than the current sign, there would be two separate signs where only one 20 square foot sign is permitted. This second sign would be 22 feet above the ground, as is the current Acme sign. 

In response to Mr. Wall’s question, Mr. Wurz said that Albertson’s headquarters is in Boise Idaho, and that Albertson’s is a western chain of supermarkets.  

Mr. Lionetti noted that the application requests a 38-foot sign. Mr. Wurz said that he has misspoken, and that his request is for a 38-foot sign.  

In response to Mr. Auchinleck’s questions, Mr. Wurz confirmed that the total square footage would be smaller than the existing sign, and that the color and illumination would be the same as now. He said that he would be adding to the multi-tenant sign at the entrance to the shopping center to include Sav-on, but that no variance is needed. Mr. Wurz explained that this package would be used by 10 Acme stores, and that he was attempting to stay within the 132 square feet that had already been given.  

Mrs. Bowe said that she felt that business is very good at the Acme store, and that Acme should be able to keep within the 20 square feet that the ordinance allows. She said that the neighbors to the shopping center are very sensitive to any additional lights at the shopping center. 

Mr. Harwood had no comment. 

Mrs. Laughlin moved to grant a variance from Sections 1106(H)(4)(a), 1106(H)((4(d)(2), 1106(H)(4)(c)(2)(a) of the Joint Municipal Zoning Ordinance of 1983 to Acme Supermarket, Newtown/Bucks Assoc. owners, to permit a fourth wall mounted sign where only one is permitted, with the sign height of 22' 6" where the maximum height is 9 feet, and with a sign size of 38 square feet where the maximum is 18 square feet. Mr. Lionetti seconded and the motion passed 4-1, with Mrs. Bowe voting nay. 

Continued Application of W. David and Beverly Fleming – 258 Durham Road 

Mr. Auchinleck reminded the Board that they had already heard testimony from the applicant, presenting his case, and from the Township in support of the violation notices, and this evening, Mr. James McCrane, a party to the application would present his case. Mr. Mc Crane had been sworn in at the previous meeting. 

Mr. McCrane said that the barn at the winery had burned down on August 2, 2002, after which a tent was erected on the north side of the winery property. Although he could hear noise coming from parties in the tent, he had never made a complaint, as he has assumed that the tent was erected as a temporary measure after the fire. In 2003, the tent was again erected on the north side of the property, and again Mr. McCrane made no complaint, as he was attempting to be a good neighbor and support the winery’s attempt to continue in business despite the fire. In April of 2004 a much larger tent was erected on the eastern side of the property, closer to Mr. McCrane’s property. This tent has a clear roof, and there is light visible through the roof. The music was much louder from the larger tent placed closer to Mr. McCrane’s property. Mr. McCrane said that after he was unsuccessful in his attempt to contact Mr. Fleming about the loud music he made a complaint to the Newtown police, who responded and had the music turned off at 11:00PM. 

Mr. McCrane said that he met with Mr. Fleming and learned that the tent was to be used for parties and weddings all summer, into the fall, and was not a temporary solution to the burned down barn. He also learned from Mr. Fleming that the tent had been relocated on the property because the party guests were disturbed by the noise from Rte 413. 

Mr. McCrane said that after his initial complaint, the music was turned down and the decibel level was lower, however the base sound reverberated throughout his house. He said that some of his neighbors had told him that the base sound was keeping their children awake. 

Mr. McCrane said that although the noise was very annoying to him and to his neighbors, he never telephoned the police again. Instead he spoke to the Township employees and had spoken to some of the Board of Supervisors. He had also spoken to Mr. Fleming again. 

He said that while he understood that events such as wine tastings are agricultural accessory uses, he felt that the winery was now a dance club, and should be subject to the requirements of the ordinance. He said that the testimony given by Mr. Carroll of Crossing Vineyard stressed his attempt to be a good neighbor to the residents living near Crossing Vineyards, where all amplified music was indoors only. He said that while he understood that agriculture is a permitted use in the conservation management district, these regularly scheduled large events are not an accessory agricultural use. He noted that he would not object if these events were held inside a walled building, but the tent did nothing to shield the neighbors from the sound. 

Mr. McCrane confirmed that his correct address is 3 Blayze Court, Newtown. 

Mr. Marshall entered as Exhibit A-20 a letter stating that Rosebank is in an agricultural security district. 

Mrs. Laughlin said that Newtown does not have an agricultural security district, and so some Newtown farms are part of the Lower Makefield Agricultural Security District. 

Mr. Tim Deegan of 5 Blayze Court was sworn in. 

Mr. Deegan said that he had not been at home the night of the April 2004 event at Rosebank, but after the second event, he contacted Mr. Fleming about the persistent base pounding noise in his child’s bedroom. He noted that the Crossing Vineyard hosts only 5% of its events with amplified music, and he would not have objected to activities such as those described in Mr. Carroll’s testimony. He said that he objects to the events at Rosebank because these are not small wine promotion events, but a catering business with large events lasting late into the evening. 

Mr. Marshall asked if there had been any other noise issues with Rosebank after the May 29, 2004 event. 

Mr. Deegan said that there had been no other noise problems after that evening. 

Mr. William Barrier of 13 Blayze Court was sworn in. 

Mr. Barrier said that while he is in support of agriculture and a winery in his neighborhood, he is very much against the hosting of large events because of the noise. He said that he lives closest to the winery of all of the neighbors, and he hears the low base sounds that are not measured by the decibel meter. He said that the winery is producing the bulk of its revenue from the hosting of events rather than from the sale of wine, and that these events are not for the promotion of the wine business. 

Mr. Walter Iwaskiw of 144 Crittenden Drive was sworn in. 

Mr. Iwaskiw said that he is not affected by the noise, but is very concerned about the size of the commercial business in this residential neighborhood. He said that the tent has grown twice in size, and can host up to 300 people. He said that he has seen over 100 cars parked on the property. He said that the presence of a major commercial business infringes on the rural lifestyle of the neighborhood. 

Mr. Marshall asked Mr. Iwaskiw about the number of attendees and cars at the playing fields next to the winery, and about the proposed park to be built along the other side of the winery. 

Mr. Auchinleck said that Mr. Iwaskiw could not know those numbers. 

Mr. Allen Fidler of 611 Newtown Yardley Road was sworn in. 

Mr. Fidler said that he is in an agricultural business in Newtown. He has toured the winery and has seen the improvements Mr. Fleming has made to the property, including the new tent area, the restrooms and landscaping. He was given a demonstration of the amplification system with the sound box facing the dance floor and away from the residential neighborhood. He walked about 400 yards into the open space beyond the tent, and using a decibel meter was unable to measure the music. The decibel meter only registered noise from the traffic and the school playground. 

He said that while he understands the neighbors’ concerns, he thinks that for agricultural businesses to stay viable they must be allowed to have accessory uses.

In response to questions from Mr. McCrane, Mr. Fidler said that he toured the winery and measured the sound during the day. He acknowledged that the sound would travel farther on a still evening. He said that he had walked about 1/3 of the distance between the tent and the neighboring homes when the music could no longer be heard. 

Mr. Joe Doody of 15 Blayze Court was sworn in. 

Mr. Doody said that he hears the noise from the schools and playing fields but that these sounds are during the daytime. He said that the noise, especially the low base sound, is very noticeable until very late at night. He said that he does not think it is fair for the winery to be allowed to host an unlimited number of events. 

Mrs. Dorothy McCrane of 3 Blayze Court was sworn in. 

Mrs. McCrane said that when the first tent was installed she was able to hear some noise. Now that the tent is larger and relocated closer to the residential neighbors, she is much more aware of the noise. She said that she agrees with all of her neighbors that she would like to be a good neighbor and support this agricultural business, but that the events in the tent are very noisy. She said that there is very little landscape buffering between her neighborhood and the winery and the wind carries the noise to their homes. 

Mr. Marty Sommer of 250 Eagle Road was sworn in. 

Mr. Sommer said that he could hear the music from the tent, but because he is in an older home he is not bothered by the vibrations described by the neighbors on Blayze Court. He said that he does not think that the winery should be allowed to hold an unlimited number of events in a residential neighborhood. 

In closing, Mr. Marshall said that there are two applications to be considered, one for a variance to erect a tent for non-recurring events for seven months, and one to allow an H-5 use in the CM district. There is also an appeal from the enforcement notice of the zoning officer. Mr. Marshall reminded the Board of Exhibit A-14, the Township letter dated September 18, 2002, which assured Mr. Fleming that permits for a tent would continue to be issued in the future. He said that Mr. Fleming had relied on this letter and made improvements to his property and booked future events based on that assurance. 

Mr. Marshall said that the events held at the winery are non-recurring, as each one is a different, separate event.  

He said that the issuance of the violation notice was based on the experience at Stonehouse Bistro, and was a change in the Township’s position on the winery. Over its twenty years of operation and hosting of events, this was the first time the activities were considered in violation of the ordinance. 

Mr. Marshall reviewed the exhibits he had already entered as Exhibits A-6, A-7, A-8, A-9, and A-10, which all show that the winery is a farm and that the promotion of wine at events is an accessory use to an agricultural business. He reviewed exhibits A-13, A-14, and A-15, permits issued for the hosting of events, including weddings. 

Regarding the testimony of the neighbors, Mr. Marshall read from section 305 of the Joint Municipal Zoning Ordinance of 1983, which defines agriculture as “a significant and important use” in the CM Conservation Management Zoning District. He pointed out that ½ of Newtown Township is zoned Conservation Management, and the Township encourages farming activity in the CM district. He noted that farming has a certain nuisance quality, and that Newtown’s noise ordinance is a nuisance ordinance, and agriculture is not subject to nuisance ordinances. He said that the cluster provision of the ordinance, which allows for residential development, has not made for “good neighbors” for the farmers. He noted that the activities conducted at the winery pre-date the residential developments. He reminded the Board that the Planning Commission did not recommend that the Board of Supervisors oppose this application.  

Mr. Marshall cited DER v. Flynn, noting that Mr. Fleming had relied on the letter entered as Exhibit A-14, when he thought that permits had been issued in good faith, that he relied on the letter and permits to make improvements to his property and he had expended funds justifiably based on the letter. He said that this constituted a variance by estoppel. 

Mr. Marshall said that Mr. and Mrs. Fleming would agree to certain conditions being added to any variance granted, including:

  1. The tent be no larger than 50 by 110 feet
  2. Use of the tent be limited to April 1 through November 30
  3. All music end by 10:30 PM
  4. Tent flaps be down on the east side of the tent
  5. Noise barrier be facing east and music amplifiers face west
  6. No other amplified sound be used
  7. No off premises or on street parking
  8. An off duty police officer be employed to direct traffic for events of more than 250 guests, beginning ½ hour before the start of the event until ½ hour after the end of the event
  9. Only private parties be held at events with amplified music

Mr. Marshall again stated that the prime use of this property is agriculture and accessory to agricultural use; that viticulture is agriculture; that all other wineries in Bucks County host events which are customary and incidental to the making and selling of wine; that activities at the winery have been taking place for twenty years; that complaints of residents are new; and that the property is otherwise ideally suited for these activities, as it is surrounded by parks, open space and schools. 

In closing, Mr. Sander said that he agreed that farming has certain nuisance issues, however what the Flemings are doing at the winery has no relation to farming. He said that the erection of a 5500 square foot tent to host 300 people and 100 cars for weddings, bar mitzvahs and other parties is not the same as farming. He said this is a large-scale banquet facility, a commercial use in the middle of a farm. 

Mr. Sander said that the legal issue to be considered is whether the zoning officer acted properly in denying a permit and issuing an enforcement notice for hosting of regularly scheduled parties and events. He said that the Township permits the erection of a temporary structure during construction and in special circumstances for non-recurring events, and some of the events at the winery might qualify, however the testimony shows that the winery is marketed as hosting events throughout the spring, summer and fall, which makes them recurring.  

He said that the applicant has the burden of showing hardship, and this burden has not been met. The property is used and can be used as A-1, agricultural, A-6, accessory agricultural sales, and B-1, residential use, but this is a large-scale commercial venture. The use of this tent is not in keeping with the character of the neighborhood and the CM district. 

He said that the enforcement notice was properly issued, as the use of the property is the growing of grapes, and the making and selling of wine, not the hosting of weddings, reunions, etc with amplified music, and catered food. This large commercial venture, which generates traffic of up to 200 cars and 300 people, is not an accessory to the winery business. He said that the events now being hosted are on a much larger scale than the reunions and seminars for which permits had been issued in 2002. He said that these larger events make the winery into an E-5, eating place, and E-9 entertainment venue, neither of which are permitted uses in the CM district. 

He again stated that an accessory use must be subordinate to and incidental to the agricultural use. He cited Champaine v Zoning Hearing Board of East Bradford Township, which found that to show that the hosting of weddings is customary, it must show that other wineries are also hosting such large-scale events. The applicant has not shown that the other wineries are hosting large-scale events. He said that this is not a realistic accessory use, and that eating-places and banquet facilities are not permitted. 

Mr. Sander said that the tent is not a non-residential farm building just because it is on a farm. It is not a barn or a silo, and Section 1403(C)(1)(b) of the Ordinance does not apply. He also noted that no evidence has been presented that supports the test that these events are in support of the sale of agricultural products.  

In reference to Exhibit A-14, the Township letter dated September 18, 2002, Mr. Sander reminded the Board that at that time there had been a smaller tent at a location farther away from the residential neighbors and the events taking place were much smaller in scale, such as wine tasting parties, without amplified music. 

Mr. Sander asked that the Zoning Hearing Board uphold the notice of violation and deny the variances. 

Mr. McCrane made no closing comments. 

In rebuttal to testimony given and closing statements of Mr. Sander, Mr. Marshall said that the record had shown that the party rental revenue for Rosebank had been $15,000 and the wine sale income had been $135,000. Mr. Marshall read Exhibit A-14, a letter dated September 18, 2002, from Newtown Township to Mr. Fleming, confirming that future permits would be issued. He noted that the letter specifically refers to “weddings”. He asked that the Zoning Hearing Board deny the notice of violation and issue a variance for the tent to remain in place for seven months. He said that the winery is not requesting a use variance, as the use is an accessory use to the vineyard. 

Mr. Auchinleck reviewed the questions before the Board. He said that the Board must consider whether the hosting of events is an accessory use allowed by the Ordinance or not. If it is an allowed use, then no variance from Section 401 (A)(1) is needed, and the action of the Zoning Officer in issuing a notice of violation should be reversed. If this is not an allowed use under the Ordinance, then the Board must decide if they wish to grant or deny a variance for this use. If the Board decides that the hosting of events is a permitted use, then they must decide if they wish to grant a variance from Section 803(H-7) of the Joint Municipal Zoning Ordinance of 1983 to permit a temporary tent to conduct functions accessory to a lawfully existing winery which may be recurring where temporary structures for recurring events are not permitted, and for the tent to remain in place for seven months. If the Board wishes to grant this variance, they could place conditions on the variance, such as those suggested by Mr. Marshall. The Board has the option of denying both applications and upholding the action of the Zoning Officer. 

In response to Mr. Wall’s questions, Mr. Auchinleck explained that if a use variance were granted, then this would apply only to this winery for this use. If the Board reverses the actions of the Zoning Officer, they will be interpreting the Ordinance to include the functions as an accessory use to a winery. 

At Mr. Wall’s suggestion, the Board discussed the options presented by Mr. Auchinleck off the record. 

Mr. Wall moved to grant an appeal from the actions of the Zoning Officer determining that weddings, parties and other functions are an accessory to retail sales of wine in the CM District, and to deny the application for a variance from Section 401(A)(1) of the Joint Municipal Zoning Ordinance of 1983; and to grant a variance from Section 803(H-7) of the Joint Municipal Zoning Ordinance of 1983 to permit a temporary tent to conduct functions accessory to a lawfully existing winery in which may be recurring where temporary structures for recurring events are not permitted with the following conditions:

Mr. Auchinleck suggested that the Board consider requiring the applicant to pay for transcription by the stenographer of the proceedings, and that the use be consistent with the testimony given. 

Mr. Wall amended his motion to include that the applicant assume the costs for transcription of the proceedings and that the use be consistent with testimony given. Mr. Lionetti seconded the motion as amended.  

Mr. Lenihan said that he is very concerned about the traffic issues, as the accessory use has evolved to what he would consider no longer only accessory.  He said that he has experienced problems on Rte 413 when a driver is looking for the winery entrance, and backs up after he has passed the driveway. He said that he would like a traffic study required. 

Mr. Fleming said that he is only permitted one sign and it is north of the driveway on Rte 413.  

Mr. Lionetti said that maybe a deceleration lane of a widening of the driveway would be necessary. He suggested that perhaps the motion should be amended to require the use of an off-duty policeman for parties of fewer than 250 people. 

Mr. McCrane asked that the music end by 10:00 PM. 

Mr. Auchinleck said that additional signage would require another variance.  

Mr. Marshall said that the applicant would apply for temporary signage for the day an event is held. After some discussion, the applicant agreed to hiring a policeman to help with traffic for smaller events. 

Mr. Wall amended his amended motion to require That an off duty police officer be employed to direct traffic for events of more than 200 guests, beginning ½ hour before the start of the event until ½ hour after the end of the event. Mr. Lionetti seconded and the motion passed 4-1, with Mr. Lenihan voting nay. 

Application of Newtown Bucks County Joint Municipal Authority- 

Mrs. Bowe read into the record the application of Newtown Bucks County Joint Municipal Authority, Harry Patel, owners requesting a variance from Section 401(B), 401(C) and 903(B)(1)&(2) and Special Exception under 401(A)(3)(e) and 905(IV)(B) of the Joint Municipal Zoning Ordinance of 1983 to permit wastewater pumping station and gravity sewer line on 13,158 square foot lot where 10 acres is required and to permit minimum front yard of 50 feet where 100 feet is required, rear yard of 20 feet where 60 feet is required, lot width of 135 feet where 200 feet is required, crossing within the floodplain by a wastewater pumping station and gravity sewer line and installation of a sanitary sewer line and related facilities within mapped floodplain, mapped flood plain soils and/or Waters of the Commonwealth. The subject property is Linton Hill Road, Newtown, in the CM Conservation Management Zoning District. 

Mr. Ed Murphy represented the applicant as special council. 

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

Mr. Murphy reminded that Board that at the December 2, 2004 meeting, the Sewer Authority had presenting testimony about this pumping station. He had asked for party status at that time, representing Harry Patel, the property owner whose lot was to have been subdivided for the pumping station. When it was discovered that the original application had included the entire property rather than the 13,158 square foot lot to be subdivided, Mr. Murphy said that the Sewer Authority asked him to be special council and to revise the application to clarify the relief sought. 

Mr. Ken Finger, of Gannett Fleming, Planners and Engineers, had been sworn in at the December 2, 2004 meeting. Mr. Auchinleck reminded Mr. Finger that he was still under oath. 

Mr. Murphy entered as Exhibit A-1 a site plan of the Patel property. 

Referring to the plan, Mr. Finger pointed out that the northwest quadrant of the property, outlined by a red dash line, is a 13,158 square foot lot to be subdivided for the Sewer Authority to use as a pumping station. He noted that the red and green dashed line indicated a 30-foot easement for a gravity sewer along the north of the property line. The gravity sewer line is to run from Rte 532, through some private properties to the pumping station. A minor sub-division plan would need to be submitted to the Board of Supervisors. 

Mr. Murphy entered as Exhibit A-2 a pumping station layout plan dated December 2, 2004. 

Referring to A-2, Mr. Finger said that the gravity sewer leads to a wet well below grade, then into the pumping station. Wastewater is then pumped through a force main to Linton Hill Road, then to Wrights Road where it connects with the Golden Acres line where the creek crosses Wrights Road. The 10 by 20 foot building would resemble the Patel home, using similar colors and materials. Only the structure is above grade. The width of the lot would be 135 feet, where 200 feet is required, the side yard would be 24 feet, the front yard would be 50 feet where 100 feet is required. There is to be a side yard setback of 12 feet from the paved area, 20 feet from the building, where 60 feet is required. 

Mr. Finger said that he had submitted the Act 537 plans to the DEP, and had received voicemail with some technical comments, but assurance that the plan as designed and submitted to this Board would be approved for this location. 

Mr. Murphy submitted as Exhibit A-3 plans of Eagle Glen and Eagleton Farms pumping stations. 

Mr. Finger noted that the Eagle Glen station is on a 100 by 135 foot lot and the Eagleton Farms station is on a 67 by 89 foot lot. Both pumping stations are similar in size to that proposed for this station, and both have been designed to resemble the surrounding homes. 

Mr. Murphy entered as Exhibit A-4 elevation plans for Eagle Glen and Eagleton Farms pumping stations; Exhibit A-5 a photograph of Eagle Glen station on Sibelius Way; Exhibit A-6, a photograph of Eagleton Farm pumping station at Eagle and Stoopville Roads; and Exhibit A-7, the Resolution of the Newtown Township Board of Supervisors dated July 14, 2004 approving the Act 537 plan.  

Mr. Finger said that the Township had held meetings at which it was agreed that because of malfunctioning septic systems in the Mardot Village/Winding Lane area, sewers were needed. Because this site is downstream of the homes to be served, it was determined that this would be the best site. 

Mr. Harwood was sworn in. 

Mr. Harwood asked if the application had been amended and if the property is to be purchased. 

Mr. Murphy confirmed that this property would be subdivided and purchased by the Sewer Authority. 

Mr. Lionetti moved to grant a variance to Newtown Bucks County Joint Municipal Authority, from Section 401(B), 401(C) and 903(B)(1)&(2) and Special Exception under 401(A)(3)(e) and 905(IV)(B) of the Joint Municipal Zoning Ordinance of 1983 to permit wastewater pumping station and gravity sewer line on 13,158 square foot lot where 10 acres is required and to permit minimum front yard of 50 feet where 100 feet is required, rear yard of 20 feet where 60 feet is required, lot width of 135 feet where 200 feet is required, crossing within the floodplain by a wastewater pumping station and gravity sewer line and installation of a sanitary sewer line and related facilities within mapped floodplain, mapped flood plain soils and/or Waters of the Commonwealth. Mrs. Bowe seconded and the motion passed unanimously. 

Application of George David and Julia Hansbarger 

Mrs. Bowe read into the record the application of George & Julia Hansbarger - Holland Floor Covering, requesting a variance from Section 405(A), 405(C), 803(E-1)(4) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 2,991 sq. ft. sales and showroom addition to existing 4,900 sq. ft. building (where such use is not permitted) with a 40 ft. front yard setback instead of 100 ft., and 29 parking spaces where 70 are required.  The subject property is 35 Swamp Road, Newtown, in the R-2 High Density Residential Zoning District. 

Mr. Don Marshall represented the applicant. 

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

Mr. Roger Hansbarger and Mr. David Hansbarger, Jr. were sworn in. 

Mr. Marshall entered the following exhibits:

§         A-1 the plan for improvements

§         A-2 the deed to the property

§         A-3 the previous decision of the Zoning Hearing Board

§         A-4 the plot plan for the property as originally developed as C-1 Commercial property

§         A-5 the old C-1 Zoning Criteria

§         A-6 photographs of the property 

Mr. Marshall noted that at the time of the decision entered as Exhibit A-3, only Mr. Lionetti and Mr. Lenihan were on the Board.  He said that the property, located at 35 Swamp Road, is zoned R-2, Residential, although it is surrounded by Pizza Hut/Wendy’s, the High School, a car wash and the Meglio’s shopping center. To the rear of the property, along German Avenue are a dance studio and an auto body shop. He said that the property had been developed as a nursery school when the area was zoned C-1 Commercial. When the area was re-zoned, this portion of Swamp Road to the Church became residential. Although the nursery school had been a permitted use in the R-2 district, the carpet showroom was not, and a use variance had been granted in 2002. 

Mr. Marshall reviewed that use of the property. He reminded the Board that this is a flooring showroom only. Holland Flooring has a warehouse location in the Business Commons, from which all deliveries are made. Customers come into the showroom to select flooring and place orders, but it is not a retail business.  

Mr. Marshall said that the property is 32,709 square feet. The existing building is 4900 square feet. The addition would bring the size to 7891 square feet. As an E-1 retail use, 70 parking spaces would be required for the expanded building. The property has 18 spaces on site, and there are 11 on-street spaces available at the rear of the building along German Avenue. The other relief requested is for a 40-foot front yard setback. Because the rear of the building faces German Avenue, this property has two front yards. 

Mr. Roger Hansbarger said that he is the son of the applicants. He works in the business at this location. They currently have display areas for flooring samples and five employees. At the location, a sales associate shows samples to customers. Occasionally a customer would take a sample home to view, but no sales are made directly from the location. The additional space is needed to expand the selection available. Some floor area would be used for tables to view the samples.  

Mr. Hansbarger said that since he moved into the location in 2002, he has never filled all 18 parking spaces. He has 5 employees, but they do not all work at the same time. Typically there are 3 or 4 sales associates and at most 6 customers. He said that he does not want the space to increase the number of customers, but to increase the available samples. He said that his inventory is in the Business Commons, and all deliveries are made from there. 

Mr. Marshall noted that the property had originally been developed as commercial, and under the commercial criteria retail sales were permitted. He noted that the property is serviced by public water and sewer, as required. He said that the nature of this business is more like a wholesale business, for which only 1 parking space per 1000 feet is required. Deliveries are made to the Business Commons site. Display items are brought to this location from the Business Commons in a van, not a delivery truck. 

Mr. Marshall said that the plan currently shows 50.9 % impervious surface. After the addition is built there will be 48% impervious coverage because the paved playground area and sidewalks around the building are to be removed. 

Mr. Marshall said that the addition to this business would not change the neighborhood, would not increase traffic, and because it is a use variance, a new variance would be needed if the building were to be sold. 

In response to Mrs. Bowe’s question, Mr. Hansbarger said that he has not considered other properties because he wants to provide convenience to his customers.  

Mrs. Bowe reminded Mr. Hansbarger that the last time he had appeared before the Zoning Hearing Board he had said that he would not be back. 

Mr. Lionetti said  that he did not think that this was conducive to the area. He said that Mr. Hansbarger had created his own hardship in moving a retail business to the R-2 district. 

Mr. Harwood was sworn in. 

Mr. Harwood reviewed the plans and commented that the parking spaces along German Avenue are on a private road and should not be included if relief is granted. 

Mr. Auchinleck said that these parking spaces exist and are currently being used. He said that the Zoning Hearing Board does not have the right to say that these spaces are for Holland Flooring. Any variance granted should be for 18 spaces only. 

Mr. Harwood also noted that no reference had been made to the 5 unit residential building on the other side of German Avenue. 

Mr. Chuck Tompkins was sworn in. 

Mr. Tompkins said that Holland Flooring has another showroom in Holland, which is primarily filled with tile. They would like to broaden the assortment of samples carried. They never have more than 5 customers at a time. 70% of their business is with builders. He said that the shopping center next door is very busy, and that customers of those businesses sometimes use their parking spaces.  They are a family business and they are trying to remain competitive by offering a large selection. 

Mrs. Laughlin said that she passes this business often and has never seen the parking lot busy. 

Mr. Marshall said that while he understands the concerns of Mrs. Bowe and Mr. Lionetti, he feels that when Holland Flooring first applied for a variance the building was an eyesore and had been vacant for two years. The property should not be zoned R-2 at all, but there is not adequate parking for a commercial business. This business should be welcome in the Township. 

Mr. Lenihan moved to grant a variance from Section 405(A), 405(C), 803(E-1)(4) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 2,991 sq. ft. sales and showroom addition to existing 4,900 sq. ft. building (where such use is not permitted) with a 40 ft. front yard setback instead of 100 ft., and 18 parking spaces where 70 are required. Mr. Wall seconded and the motion passed 3-2, with Mrs. Bowe and Mr. Lionetti voting nay. 

Mr. Lionetti moved to adjourn at 11:15PM. Mrs. Bowe seconded and the motion passed unanimously. 

Respectfully Submitted

 

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Mary Donaldson, Recording Secretary