NEWTOWN TOWNSHIP ZONING HEARING BOARD

MUNICIPAL BUILDING - 100 MUNICIPAL DRIVE

NEWTOWN, PA 18940

THURSDAY, MAY 5, 2005

7:30 PM


Approval of Minutes: Mrs. Bowe moved to approve the minutes of May 5, 2005. Mr. Wall seconded and the motion passed unanimously.


The Newtown Township Zoning Hearing Board met on Thursday, May 5, 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 Emily Ann Riddell and Michael E. Sneed – 130 Wrights Road

Application of Gregory Manning – 291 Yorkshire Drive

Application of Craig Small – 5 Madison Court

Continued Application of Brandywine Realty Trust – Upper Silver Lake Road

Approval of Minutes

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

Mrs. Laughlin moved to accept the minutes of the Special Meeting of April 14, 2005. Mr. Lenihan seconded and the motion passed unanimously.

Application of Gregory Manning

Mrs. Bowe read into the record the application of Gregory Manning, owner, requesting a variance from Section 803(H-3)(1)(a) of the Joint Municipal Zoning Ordinance of 1983 to permit 215 linear feet of fencing on a corner property with approximately 125 linear feet of 4 feet high, split-rail fence on the frontage of Hartford Lane where 3 feet is the maximum permitted height. The subject property is 291 Yorkshire Drive, Newtown, in the R-1 Medium Density Residential Zoning District, being further known as Tax Map Parcel #29-33-23.

Mr. Gregory Manning was sworn in.

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

Mr. Manning explained that his is a corner property. He would like to enclose his yard with a four-foot split rail fence. He said that there is a great deal of traffic along Hartford Lane and he would like to fence in his yard to keep his two-year-old child safe. His rearneighbor has a four-foot fence and he would like to keep the fences all the same height.

Mr. Lenihan said that he had visited the site and noted that the rear neighbor has a four-foot picket fence. He said there have been no objections from the surrounding neighbors and he did not see any problem with granting this request.

Mr. Harwood had no comment.

Mr. Lenihan moved to grant a variance from Section 803(H-3)(1)(a) of the Joint Municipal Zoning Ordinance of 1983 to permit 215 linear feet of fencing on a corner property with approximately 125 linear feet of 4 feet high, split-rail fence on the frontage of Hartford Lane where 3 feet is the maximum permitted height. Mr. Lionetti seconded and the motion passed unanimously.

Application of Craig Small

Mrs. Bowe read into the record the application of Craig Small, owner, requesting a variance from Section 803(H-30)(1)(f) of the Joint Municipal Zoning Ordinance of 1983 to permit 100 linear feet of 5 feet high fencing within a 20 feet wide storm sewer easement on the West side of the property. The subject property is 5 Madison Court, Newtown, in the R-1 Medium Density Residential Zoning District, being further known as Tax Map Parcel #29-49-25.

Mr. Craig Small was sworn in.

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

Mr. Small explained that he would like to install a privacy fence around his rear yard. There is a twenty-foot wide stormwater easement running the entire 100-foot length of his property. He would put gates at either end of this easement to allow access to the open space and retention basin.

Mr. Lenihan said that he had visited the site. He said that there is a shed in the yard that does not appear on the plan submitted with the application. He asked how long the shed has been in place and how far from the shed the fence will be. He also asked about the swale in the yard.

Mr. Small said that the shed, which is two years old, would be about 15 feet from the fence. He said that the swale is at the left of his property. The easement runs north to south although the ground slopes west to east.

Mr. Lionetti questioned whether the Home Owners Association of Pheasant Pointe had approved this fence.

Mr. Thomas Harwood was sworn in.

Mr. Harwood said that the Homeowners Association is responsible for the easement and that it must give permission for the fence to be erected.

Mr. Small entered as Exhibit A-1 a letter from Pheasant Pointe Homeowners Association dated May 4, 2005, giving permission for the fence.

Mr. Auchinleck read into the record the letter entered as Exhibit A-1, which granted approval of the fence under the following conditions:

Mr. Auchinleck commented that the Homeowners Association is requiring that the Recorder of Deeds be notified of the conditions attached to the letter, and that these conditions be deed restrictions.

In response to Mr. Auchinleck’s question, Mr. Small said that there is no surface drainage on the property.

Mr. Lionetti moved to grant a variance from Section 803(H-30)(1)(f) of the Joint Municipal Zoning Ordinance of 1983 to permit 100 linear feet of 5 feet high fencing within a 20 feet wide storm sewer easement on the West side of the property, provided that the conditions of the Pheasant Pointe Homeowners Association letter dated May 4, 2005 are met and that the fence is recorded as a deed restriction at the County Recorder of Deeds. 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 and a special exception under section 905(IV)(B)(1) to construct a bridge within the flood plain replacing existing culvert. 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. Douglas Maloney represented the applicant in this application.

Ms. Emily Ann Riddell, applicant, and Mr. Kurt Rittler, engineer on the project were sworn in.

Mr. Wall asked if anyone present wished to be a party to this application.

Mr. Don Marshall, representing Kimberly Caputo and Todd Noe of 353 Eagle Road asked for party status.

Ms. Lynn Koenig of 170 Wrights Road asked for party status.

Ms. Caputo, Mr. Noe, and Ms. Koenig were sworn in.

Mr. Maloney said that the applicants are withdrawing their request for relief for the garage, and are only asking for a special exception to construct a bridge in a floodplain.

Mr. Maloney explained that the applicants had purchased the house at 130 Wrights Road in 2004. It is a single-family house on a 3.16-acre lot. The lot is a flag lot with a 300-yard lane, which crosses Newtown Creek. The house has no frontage on any other road.

Ms. Riddell said that she was very concerned because the culvert, bridge and lane are in disrepair. During heavy rain the creek overflows 50 yards up her driveway. The top of the bridge is beginning to collapse. Debris is carried downstream to her culvert during storms, and the debris acts as a dam. Logs have sometimes blocked the culvert. The bridge and driveway are beginning to crumble. She is very concerned that the bridge will not support heavy vehicles, such as the oil delivery truck and emergency vehicles. During very heavy rain she has been unable to get in or out of her driveway, and her house is completely cut off from the road.

Ms. Riddell consulted with Kurt Rittler of Rittler Engineering in Yardley, first to evaluate the condition of the culvert, and later to design a plan to replace the culvert.

Mr. Rittler said that he is president of Rittler Engineering of Yardley. He has prepared a floodplain study and the bridge plan that are part of this application.

Mr. Maloney entered as Exhibit A-1 the subdivision plan dated May 12, 2000, which shows the creation of this flag lot, lot number 3 on this plan.

Mr. Maloney entered a series of photographs as Exhibits:

Exhibit A-2 – the driveway facing Wrights Road

Exhibit A-3 – the driveway facing the house

Exhibit A-4 – the creek facing downstream

Exhibit A-5 – the creek facing upstream

Exhibit A-6 – the culvert and bridge facing downstream

Exhibit A-7 – the culvert and bridge facing upstream

Pointing to Exhibits A-2 and A-3, Mr. Rittler noted the erosion of the bridge and roadway, stating that because of the flooding there are exposed utility lines. He pointed to Exhibits A-6 and A-7 and noted that the culverts are made of segmented steel, which is very corroded, and no longer available for replacement. The culverts had been lined with cement, which is about 90% gone. He pointed to the deteriorated stone walls of the bridge parapet, saying that the walls are falling apart.

Mr. Rittler said that he had conducted hydrologic analysis in accordance with our zoning ordinance and found that the capacity of the existing culverts is ¼ of what is currently needed. Hesaid that the obstructions caused by debris exacerbate the conditions. He said that the existing pipes are inadequate for the 100-year storm.

He first evaluated the condition of the existing culverts and bridge, and was then asked to design a replacement bridge that would work aesthetically with the surrounding area and would meet the requirements of the Ordinance.

Mr. Rittler said that he has designed a free span bridge that would not obstruct the streambed environment. The bridge would be constructed of rolled steel beams with concrete abutments. The parapet walls would have a stone veneer. The crossing would be at this same location and the same width as the existing crossing.

Mr. Maloney entered as Exhibit A-8 a letter from Pennoni Associates, the Township Engineers, dated April 26, 2005.

Referring to Exhibit A-8, Mr. Maloney said that the Township engineer had agreed that:

“…the project represents an improvement in the upstream conditions during flood conditions. The proposed improvements will remove the current stream obstruction and return the creek to near unobstructed conditions by reducing the water surface level, during flood conditions, by several feet. The analysis also indicates that the hydraulics of the Newtown Creek at a point 100 feet down stream, will remain the same as post-construction condition.”

Mr. Rittler said that there would be no adverse impact up or downstream of the proposed bridge. The construction would require regulatory approval of the DEP and the Bucks County Conservation District. The EPA requires that the bridge be environmentally friendly and cause the least disruption of the streambed. He said that the new bridge would reduce the 100-year flood level. The bridge would be anchored firmly. Debris would be able to pass through it. All necessary permits from DEP, Bucks County Conservation District and Newtown Township would be applied for.

Mr. Marshall asked Mr. Rittler the width of the pole of the flag lot at the bridge.

Mr. Rittler said that it is 34 feet at that point, the cartway is 11 feet wide, and the walls of the bridge are 18 inches. In response to Mr. Marshall’s question, Mr. Rittler said that 100 feet upstream of the bridge the topography features a wooded area, some mature trees and some brush. The ground has a 2% slope. Heading downstream conditions are similar, and then it breaks into open space.

Mr. Marshall referred to the five-sheet plan submitted with the application. He asked if the drawing on sheet 4, which shows the elevation, abutments, steel beams and parapet walls of stone veneer, would have the same veneer both up and downstream.

Mr. Rittler said that both sides would have the same appearance.

Referring to Sheet 3, Mr. Marshall reviewed the construction sequence, which includes the installation of control measures, a stone filter for sedimentation, and sandbag dykes upstream. He noted that these plans call for a temporary construction easement. He asked whether the bridge could be constructed without encroaching onto adjoining properties. He asked what equipment would be needed and if the construction could be completed within the confines of the flag lot.

Mr. Rittler said that the temporary construction easement had not yet been obtained. If necessary, the project could be completed without encroaching on other properties. A backhoe, a crane to lift the steel beams and abutments and grading equipment would be needed. Upon completion there would be no impact upstream and no change downstream in existing drainage and conservation easement. Any changes would be temporary.

In response to Mr. Auchinleck’s question, Mr. Rittler said that the creek flows from west to east.

Mr. Lionetti asked the diameter of the two existing tubes and the length of the free span.

Mr. Rittler said that the two tubes are 9 feet in diameter, and the replacement bridge would be a 30 foot free span.

Ms. Koenig said that she agrees with Ms. Rittler and Mr. Sneed that the bridge needs to be replaced, as it frequently overflows their driveway. However she expressed concern that the proposed wider opening will increase flooding downstream. She noted that the existing culvert act as a dam when they become jammed up with logs and debris. She said that in recent years, there has been an increase in flooding, and this area floods about four times a year. She said that the Township has not adequately addressed this problem, despite the flow restrictors at Newtown Grant.

Ms. Koenig entered as Exhibits K-1 and K-2 a series of photographs of her property, and Exhibit K-3 a letter dated May 5, 2005 from Site Works Consultants, which states that the construction of the bridge would cause “overtopping of your driveway on a more frequent basis”.

Mr. Wall said that the Site Works letter is very imprecise.

Ms. Koenig responded that Site Works had told her that she would see a significant increase in flooding.

In response to Mr. Auchinleck’s question, Ms. Koenig said that the distance from the Riddell/Sneed bridge to hers is about 300 feet.

In response to Mr. Lionetti’s question, Ms. Koenig said that she would like to see the bridge replaced with something smaller than what is proposed. She would like a box culvert rather than a free span bridge.

Ms. Caputo said that she lives at 353 Eagle Road, the property immediately upstream of this property. She said that she does not disagree with any of the testimony given.

Mr. Marshall entered as exhibits C1 through C-9 a series of photographs of the stream area taken from Ms. Caputo’s property, and C-10 and C-11, photographs of the area on the Caputo property to be affected by the temporary measures during construction.

Ms. Caputo said that she purchased her property because of the creek. She objects to any disturbance to her woods and to her front yard. She said that no time frame has been given for the temporary easement, and that portion of her property would be unusable during the time of construction. She expressed concern that her property would not be restored to its current condition. She said that her home is of historic significance, and she objects to this bridge, with its concrete abutments and steel beams. She noted that the existing culvert is not a danger, but the replacement bridge will be six feet above the streambed, and during dry times would be an open area. She is afraid that this increase in the height of the bridge could be a danger to her little children. She said that the existing culvert does have a damming effect during storms, but that she does not object to this build-up because it is in a mostly wooded area.

Mr. Maloney noted that the bridge could be built without the temporary construction easement. He said that the bridge is in a wooded area and could easily be concealed from the Caputo property by planting a few bushes. He noted that beyond the woods a new subdivision adjoins the Caputo home. In response to Ms. Caputo’s safety concerns, he said that during high water the existing bridge is very dangerous, and a child could get caught in the rush of water through the culvert. He noted that while the current flooding conditions do not affect the Caputo property, the Riddell/Sneed property is inaccessible.

Ms. Caputo said that she does not object to the repair or replacement of the bridge, but only to the design of this bridge.

Mr. Rittler said that he has reviewed the Site Works letter and noted that the Koenig bridge is also undersized, but in better condition than the applicants bridge. He said that he and the Township Engineer agree that the new bridge would reduce the peak flows downstream. He said the Site Works letter is not specific. He said that in a 100-year storm the existing culvert is acting as a detention basin, but that the increase in peak flow with the new bridge would be ½ cubic foot per second, and would dissipate 100 feet downstream. He said that the new bridge would improve conditions upstream, but the effect downstream would be insignificant.

Mr. Harwood had no comment.

Mr. Lionetti asked the distance between the two bridges.

Mr. Rittler said that the bridges are 400 feet apart. He and the Township Engineer found that there would be no difference in conditions 100 feet downstream. The Koenig bridge would not have any change.

Mrs. Nancy Crescenzo was sworn in.

Mrs. Crescenzo commented that the creek has serious flooding issues and any change would have an impact both upstream and downstream. She said that although the township engineer has reduced the flow from the Newtown Grant retention basins, they acknowledge that there has still been increased flooding since the new construction at the corner of Wrights Road. She requested that the Zoning Hearing board grant no change in the size of the bridge, and that the historic look of the bridge be maintained.

Mr. Tony Posella was sworn in.

Mr. Posella said that he thought that the main concern in this situation is that the Riddell/Sneed property is not accessible during storms and that the driveway has become unsafe for large vehicles. He said that it is essential that relief be granted so that Ms. Riddell can have access to her home during storms.

Mrs. Koenig said that she is not only concerned with the flooding on her own property but with the entire creek has been destroyed in recent years. She said that she fears that the entire creek will suffer with this increase in water capacity.

Mr. Lionetti moved to grant a special exception under section 905(IV)(B)(1) to construct a bridge within the flood plain replacing existing culvert. Mrs. Bowe seconded and the motion passed unanimously.

Continued Application of Brandywine Realty Trust

Mr. Auchinleck reminded the Board that the applicant still had witnesses to present, and that at the last meeting, the Township had presented one witness out of order.

Mr. Sander noted that on the cover page of the transcript of the meeting of April 14, 2005 he was incorrectly identified as counsel to Upper Makefield. He asked that the record show that he is counsel to Newtown Township in this application.

Mr. Coughlin called Thomas F. Smith, II.

Mr. Smith was sworn in.

Mr. Coughlin entered as exhibit A-26 the Curriculum Vitae of Mr. Smith.

Mr. Smith said that he is Vice President of Conver and Smith Engineering, Inc of Royersford, PA. He is a graduate of Penn State University and a licensed civil engineer in Pennsylvania and Maryland, and a licensed land surveyor in Pennsylvania. He has managed departments of engineers and construction inspectors for five municipalities, and has been responsible for roadway design, traffic studies and design of private subdivisions and municipal engineering with emphasis on stormwater management, floodplain studies, bridge and culvert design. He is a guest instructor at Penn State, teaching seminars on stormwater management. He is the co-author of the Virginia Tech-Penn State Urban Hydrology Model, which is a computer model for storm water management. He is also the author of RATHYD Rational hydrograph computer program and EMT1 sediment basin dewatering time computer program.

Mr. Smith was accepted as an expert witness in civil engineering.

Mr. Smith said that he was engaged by Brandywine to review the Nave Newell study for a 125-foot bridge in December of 2004, after the initial application has been submitted to the Township.

Mr. Coughlin noted that the application had been submitted on July 28, 2004, amended and submitted in October 2005, and amended and submitted again in February of 2005.

Mr. Smith said that he was asked by Brandywine to perform an independent analysis to assure that the bridge was in compliance with the requirement that the rise in the flood level be less than one foot. Nave Newell provided the Township and consultant review letters, plans, HEC-2 data, and the 2002 files.

Mr. Smith explained that a HEC-2, Hydraulic Engineering Center, program is a computer program used by the Army Corp of Engineers to determine floodplain elevations. It is a program using punch cards on a mainframe computer. The HEC-RAS (River Analysis System) program is a windows application, which has been adapted from the HEC-2 program.

Using the FEMA flood study of 1978 provided by Nave Newell Mr. Smith said that he performed independent runs of the HEC-RAS program, comparing the 100-year flood level without the bridge and with the bridge. He found that FEMA had provided two different cross-sections about 1000 feet apart, and when he compared the HEC-2 and HEC-RAS results he noted some slight differences. He found that the Manning N values in FEMA did not agree with the Nave Newell Manning N factors. He explained that the original FEMA study had used an average Manning N factor of 0.065 and Nave Newell had used an average of 0.048. He said that he was of the opinion that the more conservative FEMA factors should be used. He said that this FEMA data was only recently available, and it made a minor difference in the cross-sections. He said that Nave Newell should use more the conservative co-efficients. Nave Newell conducted additional surveying, and conducted a study using additional cross-sections. He reviewed this new study, which now used a 150-foot bridge, and additional revised plans. He reran the HEC-RAS program and concluded that the rise in flood elevation was less than ½ foot. In this review everything matched the FEMA studies and a Manning factor of 0.065, as in the FEMA study, was used.

Mr. Coughlin read into the record from Exhibit A-15, Mr. Smith’s letter dated February 23, 2005, to Brandywine:

“Since the Core Creek has been studies by FEMA and floodplain computations have resulted in Flood profiles along this reach of the Creek, my review also considered how the NN study matched the FEMA study…
My work included analysis of the NN data, as well as independent computations of the 100 year flood profile using RAS. I concluded that the existing conditions were modeled properly. The same cross-section data was modified by NN to incorporate the computations for the proposed bridge.
My review and independent computations conclude that the NN study was performed according to Standard Engineering Practice, and methodology recommended by the U.S. Army Corp of Engineers for the HEC-RAS computer model, and that the results are conservative. My own computations showed close agreement with all of the results of this study, except that my analysis of the bridge resulted in a slightly lower rise in the 100 year flood elevation caused by the bridge.”

In response to Mr. Coughlin’s question, Mr. Smith repeated that he agrees with the Nave Newell study, except that Nave Newell shows a higher elevation in the 100-year flood level. He said that right where the creek enters the bridge he found a maximum rise of 0.5 feet or less. He said that the final bridge structural design has not been completed. He read into the record his Summary and Conclusions from Exhibit A-15:

“It is my professional opinion, with a reasonable degree of engineering certainty, that the methodology and results of the Nave Newell Floodplain Analysis are conservative and appropriate. This type of analysis is very specialized and requires extensive expertise to be completed properly. Significant care was exercised by Nave Newell to assure the results dovetailed into existing FEMA study as far as peak flows, cross—section spacing, and choice of Manning “n” values are concerned. The bridge modeling was also performed using recommended values and cross-section spacing as recommended by the U.S. Army Corp of Engineers and accepted practices. It is my opinion and conclusion that the proposed 150’ span bridge will create a rise in the BFE on the order of less than 0.5 feet at cross-section 4, and that the design complies with the Township’s requirement that the rise in BFE cannot exceed one foot”.

In response to Mr. Beckert’s questions Mr. Smith said that he had not done work for Brandywine before. He has designed about six bridges and had supervised construction of some bridges.

Mr. Beckert asked Mr. Smith to discuss the results of his review of the Nave Newell study of the 125-foot bridge, and asked if he thought that Nave Newell had “massaged” the factors.

Mr. Smith said that his review resulted in a rise in the 100-year flood elevation of 1.3 feet. He said that he did not think the factors had been “massaged” but that the data he used had only become available in October of 2004.

Mr. Coughlin said that he would stipulate that the original study showed a rise of 0.99 feet.

In response to Mr. Beckert’s question, Mr. Smith said that he was aware that the Township engineer had agreed that the 0.99 rise in the floodplain was correct.

Mr. Beckert asked if Mr. Smith had seen the design for the bridge, and if he was aware that one of the abutments is located six feet from the floodway. He asked how far from the floodway should the abutments be to construct the bridge.

Mr. Smith said that he has not seen a design for the bridge, and does not know how close the floodway abutments would be. He said that there is no required distance from the floodway for construction.

Mr. Coughlin noted that no plans for design of the bridge have been submitted.

In response to Mr. Beckert’s questions, Mr. Smith said that he has conducted flood studies and is familiar with FEMA regulations. He is aware of the permitted rise in the floodplain level after a detailed study has been done, but that this is governed by state and local regulation, not by FEMA.

Mr. Cappuccio referred to Mallon Exhibit M-10, page 7 of 7 of the plans. He asked if field boring have been conducted where the bridge abutments are 10 and 12 feet below existing grade.

Mr. Smith said that he did not know. He said that the structural design of the bridge had not been completed. In response to Mr. Cappuccio’s questions, Mr. Smith scaled that distance to the floodway of the abutments, and agreed that the abutment on the south side of the bridge would be about 7 feet from the floodway at its closest point. He did not agree that it would be impossible to construct the bridge without encroaching on the floodway. He said that application could be made to DEP to allow encroachment to construct the bridge. When Mr. Cappuccio pointed out that Township Ordinance does not permit encroachment, Mr. Smith said that he was not familiar with the Ordinance.

Mr. Coughlin objected to Mr. Cappuccio’s reading of the floodplain ordinance, saying that it calls for a legal conclusion.

In response to Mr. Cappuccio’s questions, Mr. Smith said that it is possible to build the bridge without encroaching on the floodplain. He said he did not know how deep the supports would have to be because he did not know what the surfaces were. He said thatif it were rock, the supports would only have to be a few feet deep. He said that even if the supports had to be 10 feet deep, using sheet pilings it would be possible to build the bridge without encroaching on the floodway. When Mr. Cappuccio began to ask Mr. Smith about other possible methods for bridge construction, Mr. Smith responded that he had not investigated the construction of this bridge; he had only reviewed this structure for rise in the 100-year floodplain.

Mr. Auchinleck said that these questions were beyond direct, and Mr. Smith has not reviewed the structural aspect of the bridge.

In response to Mr. Coughlin’s question, Mr. Smith said that structural plans would have to be submitted to the municipality before final plan approval is given.

Mr. Sander said that he would like to recall Mr. Fountain to address some questions Mr. Beckert had asked about the Township review of the Nave Newell study.

Mr. Coughlin asked to introduce Exhibits A-15, A-26, A-16 and A-17.

Mr. Beckert objected to Exhibit A-16, a letter dated July 30, 2004 from David Sander to Michael Coughlin re: interpretation of Section 905 Exhibit “B”, paragraph 5 of the Zoning Ordinance as amended by JMZO Ordinance No. 2004-3, and A-17, the transcript of the proceedings before the Newtown Township Board of Supervisors on July 14, 2004, where JMZO no 2004-3 was adopted. He said that the Township is a party to this case and was not given the authority to render an opinion. He said that there is no relevance, and it is up to the Zoning Hearing Board to interpret the Ordinance.

Mr. Cappuccio objected to Exhibits A-16 and A-17. He said that they are irrelevant. The township is free to argue at the time of closing, and he said that he does not care what Mr. Sander’s opinion is.

Mr. Coughlin said that Mr. Sander wrote the letter Exhibit A-16 months before the Township became a party in this case.

Mr. Sander said that the Township is not offering Exhibit A-16; the applicant is offering it.

Mr. Cappuccio noted that the Township is fully in support of the applicant and it is up to the Zoning Hearing Board to decide on the interpretation of the Ordinance.

In response to Mr. Auchinleck’s question, Mr. Coughlin said that Mr. Sander’s letter and the first Brandywine application were written simultaneously.

Mr. Auchinleck said that the objections were overruled. Exhibits A-1 through A-26 were accepted, except for Exhibit A-2. Exhibit A-2 would be included in the court record as not admitted, in the event that there is an appeal.

Mr. Fountain was recalled.

Mr. Sander asked Mr. Fountain if he had heard Mr. Beckert question Mr. Smith on the 2004 Nave Newell study, and if Mr. Fountain had reviewed that original study.

Mr. Fountain said that he had heard the questioning. He said that he did not review a 2004 study. He reviewed a study dated February 3, 2005 in 2002 he had reviewed a study for the Newtown Township Planning Commission.

In response to Mr. Auchinleck’s question, Mr. Fountain said that the 2002 study showed a 0.99-foot increase in the flood elevation. He reviewed that study and said that it was correct.

In response to Mr. Beckert’s questions, Mr. Fountain said that he reviewed a study in 2002 that showed an increase in the flood elevation of 0.99-feet, which is within the Township Ordinance. He found the study to be accurate.

Mr. Beckert said that Mr. Smith reviewed the study for a 125 foot bridge and found that the co-efficients were wrong and determined that the rise would be 3/10 over one foot.

Mr. Fountain said that he had heard that Mr. Smith had reviewed a study in 2004, but that he had not.

Mr. Beckert said that this was the same study for the same bridge.

The applicant rested.

The Township rested.

Mr. Lenihan moved to continue the application of Brandywine realty Trust to June 2, 2005. Mr. Lionetti seconded and the motion passed unanimously.

Mr. Lenihan moved to adjourn at 10:40PM. Mr. Lionetti seconded and the motion passed unanimously.

Respectfully Submitted

 

________________________
Mary Donaldson, Recording Secretary