NEWTOWN TOWNSHIP ZONING HEARING BOARD

MUNICIPAL BUILDING - 100 MUNICIPAL DRIVE

NEWTOWN, PA 18940

MONDAY, APRIL 7, 2005

7:30 PM


Approval of Minutes: Mrs. Laughlin moved to accept the minutes of April 7, 2005. Mr. Lenihan seconded and the motion passed unanimously.


The Newtown Township Zoning Hearing Board met on Thursday, April 7, 2005, in the Newtown Township Building. In attendance and voting were: William Wall, Chairman; Mario Lionetti, Vice Chairman; Victoria Bowe, Secretary; Gail Laughlin and John Lenihan, members. Also in attendance were: James J. Auchinleck, Jr., Esq., Solicitor; Thomas Harwood, Zoning Officer and Ann Pratt, Stenographer.

Call to Order

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

The Pledge of Allegiance

The agenda was reviewed.

Application of Lee Stout – 33 Winding Lane

Application of Emily Ann Riddell and Michael E. Sneed – 130 Wrights Road

Continued Application of Brandywine Realty Trust – Silver Lake Road

Approval of Minutes

Mrs. Laughlin moved to approve the minutes of March 3, 2005. Mr. Lenihan seconded and the motion passed unanimously.

Application of Emily Ann Riddell and Michael E. Sneed

Mrs. Bowe read into the record the application of Emily Ann Riddell and Michael E. Sneed, owners, requesting a variance from Section 401(C) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 24 foot by 36 foot detached garage on a flag shaped lot with a 30 foot (left corner) and 35 foot (right corner) side yard where 50 feet is required. The subject property is 130 Wrights Road, Newtown, in the CM Conservation Management Zoning District, being further known as Tax Map Parcel #29-19-38.

Mr. Auchinleck informed the Board that he had received correspondence from the applicants requesting a continuance, as they would like to amend their application.

Mr. Lionetti moved to continue the application of Emily Ann Riddell and Michael E. Sneed to May 5, 2005. Mr. Lenihan seconded and the motion passed unanimously.

Application of Lee Stout

Mrs. Bowe read into the record the application of Lee Stout, 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 in the front yard where swimming pools are not permitted and a Special Exception under 1208(C)(2) to permit construction of a swimming pool on a non-conforming lot. The subject property is 83 Winding Lane, Newtown, in the CM Conservation Management Zoning District, being further known as Tax Map Parcel #29-8-28.

Mr. Wall asked if anyone present wished to be 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. Lee Stout was sworn in.

Mr. Stout explained that he lives in a 38-year old home in the Mardot Village development, with his front door facing Winding Lane and the side and rear of his home facing Wrights Road. He said that he did not know when he applied for a permit for a pool that his rear yard is considered a front yard.

Mr. Auchinleck explained that any house with two frontages is considered to have two front yards.

Mr. Lenihan said that he visited the site and that the area where Mr. Stout would like to place his pool is the rear of the house. He asked Mr. Stout the distance from the house to the pool, and about his landscaping plans.

Mr. Stout said that the pool would be about 38 feet from the house. He said that he has contracted with a landscaper to provide a privacy buffer. He already has a split rail fence. He said that if the landscaping were not adequate to provide privacy, he would install a privacy fence.

Ms. Lee Gittens of 355 Winding Lane was sworn in.

Ms. Gittens said that she has lived in her home for 24 years. She said that when the notice arrived, the neighbors in Mardot Village discussed their concerns. Ms. Gittens submitted as Exhibit O-1 a letter and petition signed by 27 neighbors, all opposed to the pool. She said that the neighbors agreed that the Stout property is not large enough for a pool and that they have concerns about the unsightliness of a pool in the side yard. She also expressed concern about possible problems with the septic systems if a pool were installed.

In response to Mr. Lenihan’s questions, Ms. Gittens said that there are about seven other pools in the development, but most were installed before the 1983 Ordinance, and all are on larger lots.

Mr. Lenihan explained that this application does not require a variance for impervious surface coverage, and also meets all setback requirements. He explained that the house is in the CM Conservation Management Zoning District, which requires that all lots be three acres. Because the house predates the Ordinance, it is grandfathered, and considered a non-conforming lot. For this reason any alterations to the home require a special exception. He added that it is his understanding that public sewers are to be brought to Mardot Village in the near future.

In response to Mrs. Laughlin’s question, Ms. Gittens said that two or three of the signers of the petition have pools.

Ms. Sarah McLaughlin of 107 Winding Lane was sworn in.

Ms. McLaughlin asked if there is a specific lot size requirement for a pool.

Mr. Auchinleck said that there is no specific size requirement.

Ms. McLaughlin said that she also has concerns about interference with the septic systems. She explained that when she had a new septic system installed, the Board of Health had to approve it. She questioned whether the Board of Health had approved this plan.

Mr. Auchinleck said that the plan submitted refers to the septic system and well, and advises the homeowner and contractor that it is their responsibility to locate these to insure compatibility with the pool layout and grading.

Mr. Wall said that this hearing is to decide whether a pool would be permitted in what is a front yard, according to the Ordinance. If a variance is granted, a number of permits will be issued, and the Codes department will be involved. These questions are for the Codes department, not the Zoning Hearing Board.

Ms. Laughlin also expressed concern about additional noise from children playing and late night pool parties. She said that she has already had problems with this neighbor’s motorcycle noise.

Mr. Wall again stated that this hearing is only to determine whether the pool can be located in what is considered a front yard. Noise problems should be addressed to the neighbor, or to the police department, as Newtown Township has a noise ordinance. In response to Ms. Gittens’ question he said that permits must be displayed on the property, but that the neighbors would not be notified when permits are applied for.

Mr. Harwood had no comment.

Mr. Lionetti 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 in the front yard where swimming pools are not permitted and a Special Exception under 1208(C)(2) to permit construction of a swimming pool on a non-conforming lot. Mrs. Bowe seconded and the motion passed unanimously.

Continued Application of Brandywine Realty Trust

Mr. Auchinleck reminded the Board that this application had been opened at the March meeting. He said that Mr. Coughlin had presented his first witness, Mr. Newell, at that meeting, but had not finished with his testimony, nor had the opposing parties cross-examined him.

Mr. Mark Cappuccio said that he is Mr. Mallon’s attorney, but had not been in attendance at the March meeting. He asked if he could subpoena some documents from Mr. Newell at this time.

Mr. Auchinleck suggested that this be addressed at the end of the hearing.

Mr. Coughlin recalled Mr. Newell.

Mr. Coughlin entered as Exhibit A-18, an aerial photograph of the area around the Brandywine property, and Exhibit A-19, an aerial photograph of the area around the Brandywine property photograph with an acetate overlay showing the proposed development of the site as an office complex. These exhibits are more recent than those submitted as Exhibits A-10 and A-11.

Mr. Newell marked Exhibit A-18 to show the ICT property, the CAU property and the Mill Race property. He also marked the existing 130-foot bridge on the Newtown By-Pass, Penns Trail North, Upper Silver Lake Road, and Wiltshire Walk development. He reviewed the locations of the proposed office buildings, parking areas and internal roadways, as well as the proposed 150-foot bridge. He reminded the Board that the red lines on the Exhibit A-18 and A-19 show the rise in the flood elevation during a 100-year storm. He noted that the maximum rise would be .63 feet at the bridge abutment, and would dissipate to zero in 390 feet.

In response to Mr. Coughlin’s questions, he said that the area of the CAU property on which water would be spread was 3700 square feet, .03% of the CAU property. The area of increase on the Mill Race property would be 1750 square feet, about .6% of the property.

Mr. Coughlin asked if there would be any activity in the floodway, and whether there would be an adequate storm drainage system designed. He asked if all utilities would be out of the floodway.

Mr. Newell said that utilities would not be in the floodway, and there would be no activity in the floodway. There would be a storm water management system in place.

Mr. Coughlin entered as Exhibit A-20 a series of three photographs of a stub road leading to the area of the proposed bridge.

Mr. Newell marked Exhibit A-18 to show this stub road.

In response to Mr. Coughlin’s questions, Mr. Newell said that the increase in water onto the Mill Race and CAU properties would have no impact on any of the buildings or parking areas on either property. He noted on Exhibit A-18 the location of all structures on these properties, and pointed out the distance from the area of increase in water during the 100-year flood. He said that Mr. Winokur, an independent engineer for Mill Race had also agreed that there would be no adverse impact on the buildings on the properties.

Mr. Newell reviewed the storm water management system on the CAU property, which includes a basin with a headwall and outlet structure. He noted a swale on the western property line, which picks up run-off from Autumn Drive and directs it to Core Creek. He said that the CAU storm water management system includes underground pipes directing water to the basin. He said that the CAU property could not be developed at the point where the increase in water in the 100-year storm would be because it would interfere with the existing storm water management system. He said that this portion of the CAU property is wooded.

Mr. Coughlin entered as Exhibit A-21 a list of definitions from the Joint Municipal Zoning Ordinance. Mr. Coughlin asked Mr. Newell to review Exhibit A-4, the amendment to the floodplain provisions of the Zoning Ordinance, and to read section 905.V. He asked Mr. Newell if the increase in water from the proposed bridge would flood, as defined in Exhibit A-21, onto adjoining properties.

Mr. Newell noted that the definition refers to an inundation of water, and he did not think that the increase that would occur would be an inundation.

Mr. Coughlin entered as Exhibit A-22, a copy of the Webster’s Collegiate Dictionary page with the definition of “inundate”.

Mr. Beckert objected.

Mr. Auchinleck overruled Mr. Beckert’s objection.

Mr. Newell said that the area on the adjoining properties would experience an increase of water during the peak of the most severe storm, and that this would be the area where the water would recede the quickest. He also noted that the definition of flood referred to a “normally dry area” and said that the area that would experience the increase of water on the adjoining properties is always damp and marshy. He said that the area has always been wet on every visit he has made to this site.

Mr. Coughlin entered as Exhibit A-23 a series of photographs of the affected areas of the CAU and Mill Race properties, taken earlier this week.

Mr. Beckert objected, noting that there had been a severe storm and flooding throughout the County over the weekend, and these pictures would not reflect the typical appearance of the area.

Mr. Auchinleck accepted the photographs.

Mr. Newell said that the pictures were typical of what he has observed at this site, although there were more puddles and areas of standing water than usual. He said that it has always been wet and marshy.

Mr. Coughlin asked Mr. Newell to review the reasons for the change in the proposed bridge from a 125-foot span to a 150-foot span.

Mr. Newell said that the original plan called for a 125-foot bridge, which would have caused an increase of .99 feet in a 100-year storm. A second engineer, Thomas Smith, PE, of Conyer and Smith, was consulted in December of 2004. At that time additional information was obtained from FEMA. The original FEMA study had been conducted in 1978, possibly for the 130-foot bridge on the by-pass. He said that using this new data from FEMA, he and Mr. Smith re-evaluated their calculations and decided to take a more conservative approach.

Mr. Newell explained that he used what are called Manning coefficients, which assign a value to the velocity of water flow over different surfaces. He and Mr. Smith felt that they could reduce the velocity of water in the 100-year storm from a Manning factor of .1 to .3, and reduce the rise in the flood level to .63 feet by expanding the bridge to 150 feet, well below the one foot increase allowed by the Ordinance.

Mr. Coughlin asked Mr. Newell to explain whether it would be possible for a bridge to span the entire floodplain.

Mr. Newell said that to span the entire floodplain the bridge would have to be 400 feet long, and would require several piers. The piers would also create a backwater effect, but it would be about 350 feet, still crossing the Brandywine property line. He said that the difference between the 390 feet of increase for the 150-foot bridge and the 350 feet of increase with a 400-foot bridge was not significant.

Mr. Coughlin again asked Mr. Newell to refer to the definitions submitted earlier for “flood” and for “inundate” and he asked if the proposed bridge would flood the CAU and Mill Race properties.

Mr. Newell said that they would not be “flooded”, because the area of impact is very small at the far reaches of the increase and would only be impacted during a 100-year storm, and because the Ordinance uses the words “normally dry area” and the area of impact is not normally dry.

Mr. Coughlin asked Mr. Newell to review the reasons for the location of the site chosen for the bridge.

Mr. Newell said that other locations had been investigated, however this site was chosen to match up to the existing stub road and driveway to access Route 332, a limited access highway. The site chosen is the narrowest part of the floodplain. PennDot, the Army Corp of Engineers and DEP have evaluated this location and have expressed a preference for it.

In response to Mr. Coughlin’s question, Mr. Newell explained that a free span bridge of 400 feet would have to be a suspension bridge, which is not economically feasible. The bridge being proposed would be similar in appearance to the bridge on the by-pass.

Mr. Auchinleck said that at the last meeting there had been an objection to the acceptance of Exhibit A-2, the Newtown Township Zoning Hearing Board decision dated August 1, 2002. He ruled that this exhibit would not be admitted, and the Board would not take cognizance of this prior decision.

Mr. Sander, representing Newtown Township, had no questions for this witness.

Mr. Cappuccio asked if, using the dictionary definition of “inundation” any of the red outlined areas on Exhibit A-19 would be inundated.

Mr. Newell said that they would not be “inundated”, using the dictionary definition.

In response to Mr. Cappuccio’s questions, Mr. Newell said that the photographs in Exhibit A-23 are of the areas on the Mill Race and CAU properties that would experience an increase in water in the 100-year flood if the bridge were built. He said that the photographs were taken on Monday or Tuesday of this week, and that the area was very wet. He said that he did not think it was to be expected after the rains of the past weekend because there had been two to three inches or rain. A 100-year flood produces seven to eight inches of rain in a twenty-four hour period.

Mr. Cappuccio asked if a longer bridge would decrease the backwater onto adjoining properties.

Mr. Newell said that a 400-foot bridge with piers would create less backwater than the 150-foot bridge.

Mr. Cappuccio asked if other types of bridges had been considered, such as trestle bridge or a suspension bridge.

Mr. Newell said that other types of bridges were discussed, but no detailed analyses of their feasibility were conducted.

In response to Mr. Cappuccio’s questions, Mr. Newell said that the plans submitted with this application were prepared by his office, not by him personally, but that he did seal page 7 of 7. Referring to those plans, Mr. Newell agreed that the south abutment is 10 feet below existing grade and the north abutment is 12 feet below existing grade.

In response to Mr. Cappuccio’s questions, Mr. Newell said that Brandywine had employed a geotechnical firm to conduct borings at the site, but he did not recall the name of that firm. He said that their reports were probably at his office. He was not able to determine the distance between the abutment and the floodway from page 7 of the plans, but using a plan showing the abutment in profile he estimated that the closest point from abutment to floodway is about 13 or 14 feet. Mr. Newell said that he has no experience in building large bridges.

Mr. Newell said that he has made applications to FEMA in the past. He said that the EPA and the local ordinance do not allow encroachment into the floodway. He did not know how long the building of the bridge would take, nor was he sure of exactly what equipment would be used in construction.

Mr. Cappuccio asked what length bridge would prevent any backwater, and whether any sediment would be carried into the creek, or whether any sediment would pollute the creek.

Mr. Newell said that a bridge that spanned the entire 400-foot floodplain would prevent backwater. A 400-foot bridge with piers would have less impact than the proposed bridge. The plan includes sediment control curtains. He did not know whether sediment would be a pollutant in Core Creek.

Mr. Cappuccio asked if Mr. Newell was aware of a recent TMDL study conducted by the EPA at Core Creek.

In response to Mr. Wall’s question, Mr. Cappuccio said that TMDL is Total Maximum Daily Load.

Mr. Cappuccio asked if Mr. Newell was aware of this study or of an Act 167 Study as it applies to Neshaminy and Core Creeks, or of recent water quality studies of Core Creek and Silver Lake.

Mr. Coughlin objected, noting that Mr. Cappuccio had not established that there are such studies.

Mr. Cappuccio withdrew the questions.

Mr. Cappuccio asked Mr. Newell to review his testimony at the March 3, 2005 meeting regarding basins on the south side of Core Creek.

Mr. Newell said that the development would change the existing ground conditions of the area, which would change the amount of run-off. A storm water management system must be designed so that the run-off is not greater after construction. The system would be designed using best management practices to control the peak flow rate of run-off.

Mr. Cappuccio asked whether Mr. Newell had calculated the volume of the flow or only the rate of flow when the property is developed, and whether this increase in volume will increase flooding of Core Creek.

Mr. Newell said that the storm water management system would release water over a longer period of time, preventing flooding. He had not calculated the increased volume of water.

Mr. Cappuccio questioned whether an increase of 2.8 million gallons of water would not increase flooding. He asked whether a system could be designed to prevent any increase in volume of water, and whether this increase in volume would increase pollution in Core Creek.

Mr. Newell said that he did not know if the increased volume of water could infiltrate the soil. He said that using best management practices the system is designed to release the increased volume over a longer period of time. This project has been reviewed by the Newtown Township engineers and meets all Township criteria. The Township has given it preliminary plan approval. It would not increase pollution in Core Creek.

Mr. Beckert questioned Mr. Newell on the history of his affiliation with Brandywine as an engineer and as an expert witness.

Mr. Newell said that he has testified on behalf of Brandywine a number of times in the last five years, once at a Zoning Hearing Board meeting, about five times at Planning Commissions and a few times at Board of Supervisors meetings. He said that the original 125-foot bridge plan was designed by Jeremy Maziarz, who is no longer with Nave Newell.

Mr. Beckert questioned Mr. Newell on the amendments made to the Zoning Hearing Board application, and whether the second amendment, which expanded the bridge to 150 feet, had been made in response to subpoenas of records and data.

Mr. Newell said that when new data became available the plan was re-evaluated and the second amendment was made. He is not aware of the timetable for when the data became available and when the records were subpoenaed.

In response to Mr.Beckert’s questions, Mr. Newell said that he did not know how long it would take to build the bridge, nor was he familiar with exactly what specific pieces of equipment would be used. He knew that large, heavy machinery would be required. He said that he has designed bridges but has not been involved with construction.

In response to Mr. Beckert’s questions, Mr. Newell said that he was aware that the property has frontage on Upper Silver Lake Road, but that he does not know whether the Ordinance requires that the property have access to the by-pass.

Mr. Beckert said that in previous testimony Mr. Newell had referred to meetings with PennDoT, the Army Corp of Engineers, and DEP. He asked Mr. Newell to give the dates and attendees of these meetings. He asked if any of these entities had provided anything in writing authorizing him to proceed in this fashion.

Mr. Newell said that there had been at least two meetings with these entities before he began working on the project, but that he had only attended one such meeting in January of 2005. In attendance were Dr. Thomas Cordry of DelVal Soils, Craig Bryson and John Hogan of Brandywine, Cary Trevor of DEP and he did not recall the names of the others. There is no written documentation from the Army Corp of Engineers, PennDot of DEP authorizing the location of the bridge. The Township has granted preliminary plan approval.

Mr. Beckert said that Mr. Newell had not used the word backwater, but questioned whether the area outlined in red on Exhibit A-19 is backwater. He asked if, during a 100-year flood, materials could be swept into the creek and then onto other properties, and if materials could then flow upstream in the backwater.

Mr. Newell said that the red outlined area represents backwater in the 100-year flood, and that materials could be carried into the creek during a 100-year flood.

In response to Mr. Beckert’s questions, Mr. Newell said that backwater would also flow onto the ICT property during a 100-year storm. He did not know the tax map parcel number for this property, but he believes that it is also owned by a Brandywine company. He does not know the square footage of area to be impacted by backwater on the ICT property, but it is a non-developed wooded area.

Mr. Beckert asked whether Mr. Newell had reviewed Exhibit A-14, the traffic study prepared by McMahon Associates. He asked whether he had reviewed the recommendation on page 63 of the report, which recommends a “northern by-pass” at Twining Road, and whether this report has been adopted as an official working document.

Mr. Newell said that he was familiar with those portions of the study dealing with this specific site. He said that he thought that the zoning map reflects the results of this study.

Referring to Exhibit A-9, Mr. Beckert asked Mr. Newell about the appearance of the bridge, the distance from the abutments to the property line.

Mr. Newell said that the bridge itself has not yet been designed; only the size and location have been designed. From Exhibit A-9, it appears that the abutments would be about ten feet from the property line, but because the bridge has not yet been designed he cannot tell how close they will be.

Mr. Beckert noted that Brandywine had submitted as Exhibit A-5 a letter from Daniel Doorley, owner of the Mill Race property, stating that he is in support of this application. Mr. Beckert asked if Mr. Newell was aware that the Mill Race property is for sale.

Mr. Newell said that he did not know that it was for sale, and although he has made numerous trips to this site, he had not noticed “for sale” signs.

In response to Mr. Beckert’s question, Mr. Newell said that the stub road pictured in Exhibit A-20 is currently used and an ingress to the ICT property.

Mr. Beckert asked whether there are culverts and pipes running under the red area of backwater on the CAU property.

Mr. Newell said that there are no pipes in this area. He did not recall how far from the pipes and culverts the red outlined area is although he had done field measurements.

Mr. Beckert asked Mr. Newell if he agreed that three properties would be impacted by backwater if this bridge were allowed. He asked if the red outlined areas to be flooded were wetlands.

Mr. Newell said that the overflow would not be an inundation, nor is this a normally dry area, although the area is not entirely wetlands. In response to Mr. Beckert’s question regarding Exhibit A-4, the amendment to the floodplain ordinance, Mr. Newell said that he did not know whether an area must be completely flooded to be considered flooded. He noted that the area of the adjoining properties to experience an overflow would be a very small portion of the property.

In response to Mr. Beckert’s questions about the photographs in exhibit A-23, Mr. Newell said that Mr. Coughlin took the photographs on Monday or Tuesday of this week, and that they are at the CAU property, near the ICT property line, but he was not sure of the exact location. He said that the photographs were representative of typical wet conditions in the area. He was aware that there had been a very bad storm over the weekend.

Mr. Beckert questioned whether other bridge lengths had been considered.

Mr. Newell said that free span bridges of 125 to 150 feet and a 400-foot bridge with piers had been discussed. He said that a bridge longer than 150 feet would need support piers.

On re-direct Mr. Coughlin asked Mr. Newell to discuss the increased volume of water created by additional buildings on the property, and how this volume is handled by the stormwater management system.

Mr. Newell said that water is collected in basins and discharged gradually. In a 100-year storm it typically takes a few days to discharge the basins. The discharge would occur downstream of the proposed bridge and would not cause additional backwater.

In response to Mr. Auchinleck’s question, Mr. Newell said that the release of water from the basins would not cause additional backwater because the release would be calculated at the peak flow.

Mr. Coughlin asked if “wetlands” is an engineering term of art.

Mr. Newell said that DEP and EPA define wetlands, but that it is also used in a generic sense. “Normally dry” is not an engineering definition.

In response to Mr. Coughlin’s questions, Mr. Newell said that Mr. Maziarz left his firm in August of 2004 to take another job that involved a promotion. His leaving did not have anything to do with this application.

Mr. Newell said that during the preliminary plan approval process the stormwater management plan was reviewed by the Township engineers, and approval had been granted. He is working on a Chapter 105 Highway Occupancy Permit. No construction would begin until all necessary permits have been granted and all necessary approvals have been given.

Mr. Newell said that no buildings, parking areas or walking trails on the ICT, Mill Race or CAU properties would be impacted by an increased flow of backwater during a 100-year storm.

Mr. Coughlin asked Mr. Newell if he was aware of whether the Board of Supervisors had taken action on any portion of the McMahon Study entered as Exhibit A-14.

Mr. Newell said that Penns Trail had been extended to Upper Silver Lake Road and this plan had been given preliminary plan approval subject to receiving a variance for the connector road and bridge.

Mr. Coughlin referred to Exhibit A-9, and asked Mr. Newell if he knew who owns the property of the southern bridge abutment.

Mr. Newell said that the abutment is close to the property line between this property and the ICT property, which is also owned by a Brandywine company.

Mr. Coughlin said that Brandywine owns the ICT property and he would provide a deed to that property at the next meeting.

Mr. Cappuccio asked Mr. Newell whether the bridge would cause backwater onto the Mill Race and CAU properties, and whether water from the basins would cause backwater onto these properties.

Mr. Newell said that water from the basins would not cause backwater but that the bridge would cause backwater onto CAU and Mill Race.

Mr. Cappuccio asked if FEMA forbids construction in a floodway.

Mr. Newell said that he did not know if FEMA forbids construction, only that DEP and Newtown Township do not forbid construction.

Mr. Cappuccio entered as Exhibit M-1 Code of Federal Regulations Title 44- Emergency Management and Assistance - Chapter 1 – Federal Emergency Management Agency, Department of Homeland Security Subchapter B—Insurance and Hazard Mitigation – National Flood Insurance Program Part 60 Criteria for Land Management and Use – Subpart A – Requirements for Flood Plain Management Regulations. He read into the record page 4, (3)

“Prohibit encroachments, including fill, new construction, substantial improvements and other development within the adopted regulatory floodway unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment would not result in any increase in the flood levels within the community during the occurrence of the base flood discharge;”

Mr. Beckert questioned Mr. Newell about the land development process and the 125-foot bridge.

Mr. Newell said that the stormwater management studies prepared by Mr. Maziarz and approved by the Township were based on a 125-foot bridge. The plans were not amended because of inaccuracies, but because of new data made available.

Mr. Lionetti asked if the velocity of the flow of water in the creek would increase as water constricts to pass under the bridge and if the discharge from the basins would have an impact on the existing bridge.

Mr. Newell said that the velocity would increase as water passes under the bridge, but that the water being released from the basins would not have impact on the existing bridge.

Mrs. Bowe asked if Brandywine would build the Newtown Corporate Center without the bridge.

Mr. Coughlin said that he would present testimony to address that question.

In response to Mrs. Bowe’s question, Mr. Newell said that the 150-foot free span bridge is the best choice because it decreases the backwater. A 400-foot free span bridge over the floodplain would have to be a very large structure.

Mr. Auchinleck asked if anything could be done to the depth of the creek on the Brandywine property or downstream of the bridge to help reduce backwater.

Mr. Newell said that because of the location at a curve in a limited access highway nothing could be done downstream.

Mr. Cappuccio asked to submit two subpoenas, to Brandywine and to Mr. Newell, requesting documents relating to the proposed bridge, the geotechnical borings, the floodway line, depictions of the proposed bridge, its footings, and construction in a floodway.

Mr. Coughlin said that he would check on the geotechnical and bridge documents, however the floodway and floodplain documents have already been provided.

Mr. Auchinleck said that he was not convinced that this is relevant to the issue before the Zoning Hearing Board.

Mr. Auchinleck said that a special meeting would be held on April 14, 2005 to continue this application. He said that there are only a few other applications on the May 5, 2005 agenda, and this application could continue at that meeting if necessary. He said that additional time would be allowed for public comment, and that an additional meeting would be scheduled if necessary.

Mr. Lionetti moved to continue the application of Brandywine Realty Trust to April 14, 2005. Mr. Wall seconded and the motion passed unanimously.

Mr. Lenihan moved to adjourn at 11:30 PM. Mr. Wall seconded and the motion passed unanimously.

 

Respectfully Submitted

 

__________________________
Mary Donaldson, Recording Secretary