NEWTOWN TOWNSHIP ZONING HEARING BOARD

MUNICIPAL BUILDING - 100 MUNICIPAL DRIVE

NEWTOWN, PA 18940

THURSDAY, JUNE 2, 2005

7:30 PM


Approval of Minutes: Mrs. Laughlin moved to approve the minutes of June 2, 2005. Mr. Lionetti seconded and the motion passed unanimously.


The Newtown Township Zoning Hearing Board met on Thursday, June 2, 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 Donna D’Angelis, 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 James Brennan – 453 Merion Drive

Application of Alan Horwitz – 1 Pickering Drive

Application of Angelene Krull – 517 Coachwood Court

Continued Application of Brandywine Realty Trust – Upper Silver Lake Road

Approval of Minutes

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

Application of James Brennan – 453 Merion Drive

Mrs. Bowe read into the record the application of James Brennan, owner, requesting a variance from Section 404(B) of the Joint Municipal Zoning Ordinance of 1983 to permit a 662 square foot inground swimming pool with 550 square feet of deck and 110 square feet of coping resulting in an impervious surface ratio of 25% where 12 % is permitted by ordinance and 20% by the Linton Hill Final Plan and a special exception under section 1208(C)(2) to permit a pool on a non-conforming lot. The subject property is 453 Merion Drive, Newtown, in the R1 Medium Density Residential Zoning District, being further known as Tax Map Parcel #29-13-41.

Mr. James Brennan was sworn in.

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

Mr. Brennan said that he would like to enter as Exhibit A-1 a letter from his next-door neighbors, Ruth and Herman Turpin of 455 Merion Drive, expressing their support of the project.

Mr. Brennan explained that he did not know until recently that his plans would require a variance. He would like to install a pool in his yard.

Mr. Lenihan said that he had visited the site. He said that he noted a stone entrance to his yard and asked if this is for the pool construction.

Mr. Brennan said that this is temporary and would be removed after the pool is built. In response to Mr. Lenihan’s question he said that only one tree would be removed. His plan omitted one of his existing trees, which is to remain. He said that the garden wall had been started, but he stopped work when he learned that variances were needed for the pool. He was not sure if he would also need a variance for the wall, which would be about 25 inches high.

Mr. Lenihan said that the codes department had only found that the pool required a variance, so the garden wall would be okay.

In response to Mr. Auchinleck’s question, Mr. Brennan said that at one time there had been a vinyl-lined pool in this yard, but it had been removed by a previous owner and filled with dirt.

In response to Mrs. Bowe’s questions, Mr. Brennan said that Mr. and Mrs. Turpin live on the corner of Linton Hill Road. He has high-tension wires behind his house. His development does not have a homeowners association.

Mr. Harwood had no comment.

Mr. Lenihan moved to grant a variance from Section 404(B) of the Joint Municipal Zoning Ordinance of 1983 to permit a 662 square foot inground swimming pool with 550 square feet of deck and 110 square feet of coping resulting in an impervious surface ratio of 25% where 12 % is permitted by ordinance and 20% by the Linton Hill Final Plan and a special exception under section 1208(C)(2) to permit a pool on a non-conforming lot. Mrs. Laughlin seconded and the motion passed unanimously.

Application of Alan Horwitz – 1 Pickering Drive

Mrs. Bowe read into the record the application of Alan Horwitz, owner, requesting variances from Section 401(B), 803(H-8)(1)(b), 803(H-3)(1)(a)(e), & 1000(E)(4) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of an inground pool, decking, paver decks, walks, cabana, shed, equipment pad and driveway with 6,681 sq. ft. of additional impervious surface resulting in an impervious surface ratio of 25.5% where only 15% is permitted, with the pool in a front yard where such is not permitted and a fence in the front yard with a height of 4.7 feet where 3 feet is the maximum permitted and where the cabana will result in a 60.2 front yard setback here 80 feet is required. The subject property is 1 Pickering Drive, Newtown, in the CM Conservation Management Zoning District, being further known as Tax Map Parcel #29-10-59-1.

Donna Wengiel represented the applicant.

Dr. Alan Horwitz and Mrs. Diana Horwitz were sworn in.

Mrs. Bowe recused herself from this application, as Dr. Horowitz is a client of her business.

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

Ms. Wengiel reviewed the application, explaining that the Horwitzes wish to install a pool on their 1.6-acre property. The house is on a corner lot at Pickering Drive and Route 532. A portion of their lot runs parallel to Rte 532, and is considered a front yard, although the front door faces Pickering Drive. She also noted that the front yard measurement is taken from the ultimate right-of-way, although there is a sixty foot buffer easement along the Rte 532 portion of the property.

Ms. Wangle entered a packet of exhibits as follows:

Ms. Wengiel said that Pickering Chase is a development of 15 large homes on 50 acres. Most homes sit on 1.5-acre lots, and 17 acres are reserved as open space. The Horwitz house is located 200 feet from Rte 532. All of the surrounding neighbors have signed the letter in support of the plan, including Mr. Serrini, who owns the 10-acre parcel to the rear of the Horwitz property.

Ms. Wengiel said that this house is part of a sub-division in the Conservation Management Zoning District, which requires three acres per home. The Ordinance does allow for less than three acres if the difference is kept as open space. Pickering Chase is a 50-acre sub-division, with 3.8 acres developed. The Ordinance would allow 7.38 acres to be developed. With the proposed improvements this property will have 25.5% impervious surface, however if the property were “credited” with the open space to total 3 acres, then the improved property would be only 12% impervious. She also noted that our ordinance considers pools and ponds as impervious, although they do catch rainwater.

Ms. Wengiel said that the applicants were also requesting a variance for a 4.7-foot high fence to provide adequate security around the pool, and additional impervious surface is requested to expand the existing driveway.

Ms. Wengiel reviewed the improvements made to other homes in the development, including swimming pools at two other homes and an additional two-car garage added to one home. She noted that the relief sought is similar to that granted to Frederick Marshall at 3 Pickering Drive, in this same development.

In response to Mrs. Laughlin’s questions, Dr. Horwitz said that he wanted to widen his driveway in the circle and the area near the garage because it is difficult for cars to exit his garage without damaging his lawn.

Mrs. Laughlin expressed concern that the increase to the driveway would be too much paving.

In response to Mr. Lionetti’s question, Dr. Horwitz said that the increase in width to the driveway would be 7 feet, making the driveway 30 feet wide.

Mr. Lionetti and Mrs. Laughlin both expressed concern about the proposed width of the driveway.

Mr. Lenihan said that he visited the site. He agreed that all of the testimony given was accurate. He also expressed concern for the large increase in impervious surface, noting that the 10-acre property to the rear of this home could be subdivided at a later date, and this large paved area could present a problem in the future. He did not have any concerns about the higher fence or the location of the pool.

The Board discussed reducing the size of the increase in impervioussurface for the driveway, and Ms. Wengiel said that her clients would agree to some reduction in the driveway width; however Mr. Auchinleck recommended that the Board grant an increase in impervious surface of a certain percent and allow the applicants to redesign their improvements to meet that percentage.

In response to Mr. Auchinleck’s question, Dr. Horwitz said that he agreed with the facts presented by Ms. Wengiel.

Mr. Harwood had no comment.

Mr. Lionetti moved to grant variances from Section 401(B), 803(H-8)(1)(b), 803(H-3)(1)(a)(e), & 1000(E)(4) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of an inground pool, decking, paver decks, walks, cabana, shed, equipment pad and driveway resulting in 20% impervious surface ratio where only 15% is permitted, with the pool in a front yard where such is not permitted and a fence in the front yard with a height of 4.7 feet where 3 feet is the maximum permitted and where the cabana will result in a 60.2 front yard setback here 80 feet is required. Mr. Lenihan seconded and the motion passed 3-1-1, with Mrs. Laughlin voting nay and Mrs. Bowe abstaining.

Application of Angelene Krull

Mrs. Bowe read into the record the application of Angelene Krull, owner requesting a variance from Section 405(C) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 12 feet by 18 feet paver patio with porch and steps in rear of a townhouse with reverse frontage lot resulting in a 42 foot front yard setback where 50 feet is required. The subject property is 517 Coachwood Court, Newtown, in the R-2 Residential Zoning District, being further known as Tax Map Parcel #29-43-547.

Ms. Angelene Krull was sworn in.

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

Ms. Krull said that she had moved into her end-unit townhome in November. She understood that the previous owner had applied for a permit for a patio, but that it had never been built. She said that the steps leading out of her home need to be replaced, and her contractor suggested putting the stairs sideways to step onto the patio giving more room. She had submitted her plans to the Ravens View II Newtown Grant Homeowners Association and had been given approval.

Mr. Auchinleck read into the record the letter of Ravens View Homeowners Association giving approval with the conditions that all necessary permits be acquired; all common areas be restored if damage occurs; that there be no deviation from the submitted plan; and that a certificate of insurance naming Ravens View as co-beneficiary be acquired.

Mrs. Bowe said that she had visited the site. She asked if the blue spruce tree is to remain or if a fence is planned.

Ms. Krull said that the tree would remain. She does not plan to put up a fence, but would plant some shrubs for privacy.

Mr. Harwood had no comment.

Mr. Lionetti moved to grant a variance from Section 405(C) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 12 feet by 18 feet paver patio with porch and steps in rear of a townhouse with reverse frontage lot resulting in a 42 foot front yard setback where 50 feet is required. Mr. Lenihan seconded and the motion passed unanimously.

Continued Application of Brandywine Realty Trust

Mr. Cappuccio called Mr. Thomas H. Cahill.

Mr. Thomas Cahill was sworn in.

Mr. Coughlin asked for a determination as to the testimony to be given, and an offer of proof of the testimony.

Mr. Cappuccio said that Mr. Cahill is a water engineer and would give testimony on backwater and stormwater effects on the floodplain.

Mr. Coughlin asked whether this testimony would address stormwater from the Brandywine development or from the floodplain crossing that is the subject of this application.

Mr. Cappuccio said that Mr. Newell had addressed stormwater in his testimony and this would be discussed by Mr. Cahill.

Mr. Auchinleck said that he would allow testimony on stormwater management.

Mr. Cahill said that he is a water engineer and President of Cahill Associates of Westchester, PA. He has a Bachelor of Science degree in Civil Engineering from Drexel University and a Master of Science in Civil Engineering (Water Resources) from Villanova University. He is a licensed engineer in Delaware, New Jersey and Pennsylvania and a professional planner in New Jersey. He has been a practicing engineer for 43 years. His specialty is water supply, wastewater and stormwater. He reviews and interprets municipal ordinances. He has helped draft municipal ordinances, and has testified as an expert in Pennsylvania, New Jersey, Virginia, Delaware, and Maryland. He is currently involved in a stormwater study of the Rancocas Creek, which had an extreme flood event in 2004, during a 1000-year storm. He has also studied the Pennypack Creek in 2001 and a creek on the George School property that feeds into the Newtown Creek.

In response to Mr. Coughlin’s questions, Mr. Cahill said that he has not designed bridges, but has selected culverts for location of bridges, has conducted floodplain studies and has designed stormwater management for office complexes.

Mr. Cahill was received as an expert witness.

In response to Mr. Cappuccio’s questions, Mr. Cahill said that he had been retained in September of 2004 to review the information submitted by Brandywine in support of this application, including the 2002 Nave Newell report. He ran the HEC-RAS program using the Nave Newell data and found the data to be wrong. He also reviewed the 2005 Nave Newell report, and using the same data evaluated the hydrologic conditions under different sized bridges. He reviewed the Newtown Township ordinance, the FEMA regulations, the stormwater study of Core Creek and the Core Creek watershed.

Mr. Cahill said that he has been involved for more than 20 years in studying the Neshaminy Creek. After two hurricanes in 1955 a plan was designed for stormwater flood protection, which included eight impoundments. He has studied the impoundment at Core Creek, which was built in the 1970’s to reduce flooding. In 1985 there was a study of the sediment in the reservoir in Core Creek Park. At that time most drainage was from farmland. The Core Creek reservoir has a capacity for storage of 100 years of sediment, but it has filled in ten years. The same is also true of Silver Lake.

Mr. Cappuccio offered the following exhibits:

Exhibit M-1 – FEMA Regulation 44CFR § 60.3

Exhibit M-2 – Curriculum Vitae of Thomas H. Cahill, P.E.

Exhibit M-3 – Map including Core Creek

In response to Mr. Cappuccio’s questions, Mr. Cahill explained that above the Core Creek reservoir the watershed has been in a state of change for 30 years. There has been an increase in both the rate and volume of run-off. He explained that in areas of undeveloped land, during a typical year there are 45 inches of rain, which would produce 9 inches of run-off. When land is covered by impervious surface an additional three feet of water each year is produced for every square foot of impervious surface. The amount of water coming down the creek is increasing every year.

Mr. Cappuccio entered as Exhibit M-4 a FEMA Flood Insurance Rate Map for Core Creek.

Mr. Cahill explained that the map shows the flood insurance rates. He said that the darkened area would be inundated with water during a 100-year storm. He said that the boundary is not constant, but changes with increased development.

Mr. Auchinleck said that the copies of the map provided were too dark and the Board could not see the differentiation between the 100-year floodplain and the 500-year floodplain.

Mr. Cahill attempted to point out that the crosshatched area is the floodway, and the darker shaded area is the 100-year floodplain, the lighter shaded area is the 500-year floodplain. He said that the water in the center of the floodway moves downstream at a higher velocity, and that the area being inundated during the storm is not moving at the same rate. He explained that the culvert on the Newtown Bypass creates a backwater.

Mr. Lionetti questioned the legend on the side of the map, noting that he thought that the dark area was the normal condition, not a flood condition.

In response to Mrs. Laughlin’s questions, Mr. Cahill said that the flood insurance map has not changed, but that construction upstream of the mapped area have changed. He said it takes about three years to update these maps.

Mr. Coughlin offered his copy of the FEMA map to the Board, as it is a larger, clearer copy, and Mr. Cappuccio offered the original map provided by FEMA to be used as M-4 for the record.

Using the original map, Mr. Cahill reviewed the legend with the Board, again pointing out the darker area as the 100-year flood level and the lighter area as the 500-year flood level. He pointed out the backwater created by the existing culvert at the Newtown Bypass.

In response to Mr. Cappuccio’s questions, Mr. Cahill said that he has reviewed the February 2005 Nave Newell report, which had estimated a rise of 0.63 feet during a 100-year storm with the 150-foot free span bridge. He said that he agreed with the Nave Newell results.

Mr. Cappuccio entered as Exhibit M-5 a backwater Plan prepared by Cahill Associates.

Mr. Cahill said that this plan compares the existing 100-year floodplain to the floodplain with the proposed 150-foot free span bridge, and to a 270-foot free span bridge. He said that the decrease in the 100-year floodplain using a 270-foot free span bridge was not significant. He said that there was some reduction, but it would not eliminate the increase. He said that this comparison plan was created using the Nave Newell study and the HEC-RAS program created by the U.S. Army Corp of Engineers. He said that the floodplain would change in different conditions, such as when trees are swept through a stream and become stuck.

In response to Mr. Cappuccio’s question, Mr. Cahill said that a single free span bridge is not the only way to cross this floodplain, but a multiple span bridge with piers could also be used.

Referring to the Newtown Corporate Center plan, entered as M-10 at a previous meeting, and marked by tab number 6 in the binder of exhibits presented to the Board, Mr. Cahill shaded in the area around the pilings of the proposed bridge to indicate the area that would be filled with earth in order to support the road that would cross the bridge. He said that this would force water through the opening. He said that using piers would not create this same forcing of water.

Mr. Cappuccio entered as Exhibit M-7 a portion of the Newtown Township Zoning Ordinance.

Mr. Cappuccio asked Mr. Cahill to explain the portion of page 261, Article IX, Section 905. “B”, Number 5.

Mr. Cahill said that while the provisions seem at first reading to be contradictory, he interpreted the Ordinance to say that a rise of no greater than one foot of water would be permitted, but that no backwater would be allowed on a neighbor’s property because this would affect the flood insurance rate of that neighbor. He said that the Ordinance does not allow any impact on neighboring properties, even if, as in this case, some neighbors have given approval. He noted that these neighboring properties could change owners at a future time.

Referring to exhibit M-1, FEMA Regulation 44 CFR § 60.3, page 4, paragraph (d)(3), Mr. Cahill noted that the language of the FEMA regulation is reflected in the Newtown Township Ordinance, again stating that the encroachment would cause backwater onto three adjoining properties.

Mr. Cappuccio asked Mr. Cahill if he had been present when Mr. Newell had testified that there would be no increased run-off from this project. He entered as Exhibit M-8, a Peak Runoff Volume Summary from Nave Newell Stormwater Management Report.

Mr. Cahill said that he had heard this testimony, but referring to Exhibit M-8, he noted that during a two-year storm there would be an increase in runoff of 4.59 acre feet in a twenty-four hour period. He explained that an acre-foot is an acre of land with one foot of water on it; this would equal 199,940 cubic feet or 1,495,550 gallons of water.

Mr. Cappuccio entered as Exhibit M-9, a Stormwater Runoff Volume Comparison prepared by Cahill Associates.

Referring to Exhibit M-9, Mr. Cahill explained that he used the Nave Newell data for large rainfall events and found an increase in volume of water pre- and post-construction of 8.61 acre feet in a 100-year storm. In response to Mr. Cappuccio’s question he said that he had been present when Mr. Fountain had testified that the increase in volume of 2.8 million gallons of water would be a “small number”.

Mr. Coughlin objected to this, as he felt that Mr. Cappuccio must refer to the transcript, and that this is a mischaracterization.

Mr. Auchinleck overruled.

Mr. Cahill said that he disagreed with this statement, noting that each project is considered minimal, but there is a cumulative effect, and there is an already existing bottleneck at the existing crossing. He said that Mr. Newell had testified that basins would control the rate of runoff. Mr. Cahill said that he agreed that the basins would control the rate of runoff, but not the volume of runoff. He said that with increased development there is no infiltration and no groundwater recharge. He said that using best management practices there are ways to reduce the volume.

Mr. Sander objected, as this is not relevant to this application for a bridge crossing.

Mr. Cappuccio said that Mr. Newell had introduced this during his testimony.

Mr. Sander said that this was introduced by Mr. Cappuccio during his cross-examination of Mr. Newell on March 3, 2005.

Mr. Auchinleck said that “best management practice” is not in Newtown Township’s Ordinance. The stormwater management plan must meet the requirements of the Township Ordinance, and this Board cannot use this information.

Mr. Coughlin said that Brandywine is required to conform with the Township Ordinance, which does not address volume of water, only rate.

Mr. Cappuccio said that Mr. Newell had testified about the basins in the stormwater management plan. He asked Mr. Cahill where the water retained in the stormwater basins would go.

Mr. Cahill responded that the water would go into Core Creek. The water would then back up at the Newtown Bypass bridge crossing. It would increase the affect of sediment and add to the pollution load in Core Creek. It would increase the floodplain and be a threat to public health and safety.

In response to Mr. Auchinleck’s question, Mr. Cahill said that this increase in volume of 2.8 million gallons of water would occur because of the development of the Brandywine Office Complex even if the bridge is not built.

Mr. Coughlin to defer cross-examination of this witness until the next meeting to allow time to prepare.

Mr. Cappuccio objected to this, noting that he had provided all documentation to Mr. Coughlin in advance of the meeting and it would be very expensive for his client to bring the witness back for another meeting.

The Board agreed to allow Mr. Coughlin to cross-examine Mr. Cahill at the next meeting.

Mr. Cappuccio called Mr. Johann F. Szautner.

Mr. Szautner was sworn in.

Mr. Szautner said that he is a professional engineer with Cowan Associates, Inc. He is licensed in Delaware, Massachusetts, Maryland, New Jersey, Pennsylvania, North Carolina, South Carolina and Virginia. He is a licensed land surveyor in Pennsylvania. He has twenty-two years experience primarily as a land and structural engineer. He has been a municipal engineer in Springfield and Colbrookdale, and has been a structural bridge consulting engineer in Carbon County and Upper Dublin. He has been accepted as an expert witness in Bucks, Chester, Carbon, Lehigh, and Dauphin Counties in the Court of Common Pleas and in Federal Court.

In response to Mr. Coughlin’s questions, Mr. Szautner said that he has designed bridges as a resident engineer in Carbon County. He has overseen the construction of bridges 30 to 50 times.

In response to Mr. Auchinleck’s question, Mr. Szautner said that he has overseen construction of bridges on behalf of owners of properties.

Mr. Szautner was accepted as an expert witness.

Mr. Cappuccio entered as Exhibit 10-A, Mr. Szautner’s Curriculum Vitae, and as Exhibit M-11, a Geotechnical Engineering Report.

In response to Mr. Cappuccio’s questions, Mr. Szautner said that he has reviewed the Geotechnical Report prepared in June of 2003 and entered as Exhibit 11. He referred to Exhibit M-10, the drawing of the bridge abutment. He said that on the south side of the abutment the distance to the floodway to the toe of the abutment is six feet. Using the geotechnical report he estimated that depending of the depth of rock at the location, an area of about 10 feet would be needed to build the abutment.

Mr. Cappuccio entered as Exhibit M-12, a true to scale drawing of the abutment excavation cross-section.

Referring to Exhibit M-12, Mr. Szautner explained that to build the abutment, a cofferdam and pumping system would have to be used to protect the footing and to create a barrier system to prevent flowing water from entering the excavation. He said that this cantilevered wall system, taking advantage of backfill, would require a two-foot toe. He said that this is regulated by OSHA to provide workplace safety.

Mr. Cappuccio entered as Exhibit M-13, OSHA regulation 29 CFR § 1926, Subpart B, Appendices A and B, and Exhibit M-14, Exhibits depicting types of cofferdam construction.

In response to Mr. Cappuccio’s questions, Mr. Szautner said that, depending on soil types, it could be necessary to dig ten feet below the creek bed. To provide workplace safety a number of options could be used to pump out water and keep the construction area dry. Referring to Exhibit M-14, photograph A, Mr. Szautner explained that this is a series of interlocking metal elements that would have to be imbedded deep enough to provide stability. Photograph B shows a cofferdam of sandbags with a pump to bypass the construction site; C and D show water bags uses in seawall construction. Mr. Szautner said that he did not think that sheet pilings, as depicted in photograph A would be used because of the depth of the rock. He thought that probably sandbags and pump would be used. None of these methods could be used without some use or activity in the floodplain. Referring again to Exhibit M-12, Mr. Szautner said that based on the soil analysis of the clay and silt content, OSHA would require a 1.5 to 1 ratio for the excavation of type “c” soils. It would be necessary to go into the floodway to do this excavation.

Mr. Szautner said that although the bridge has not yet been designed, the geometric perameters have already been determined and the opening and support locations have been fixed. It would not be possible to build a bridge with this span, with this opening, without encroaching in the floodway and floodplain. While it would be possible to build a bridge that completely spans the entire floodplain, it would not be practical. A more practical approach would be to build a bridge using piers two feet in diameter. The bridge would have three spans. It would be possible to construct such a bridge without encroaching on the floodway.

In response to Mr. Auchinleck’s question, Mr. Szautner said that this would still affect the floodway during construction.

Mr. Cappuccio entered as Exhibit M-15 a bridge rendering which compares the proposed bridge with a bridge using piers.

Mr. Coughlin objected.

Mr. Auchinleck overruled the objection.

Mr. Lionetti moved to continue the application of Brandywine Realty Trust to July 7, 2005, and then to a special meeting on July 14, 2005. Mrs. Bowe seconded and the motion passed unanimously.

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

Respectfully Submitted,

 

_______________________________________
Mary Donaldson, Recording Secretary