NEWTOWN TOWNSHIP ZONING HEARING BOARD
MUNICIPAL BUILDING - 100 MUNICIPAL DRIVE
NEWTOWN, PA 18940
THURSDAY, JULY 7, 2005
Approval of Minutes Mrs. Laughlin moved to accept the minutes of July 7, 2005. Mr. Wall seconded and the motion passed 4-0.
The Newtown Township Zoning Hearing Board met on Thursday, July 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 Connie D’Argenio, Stenographer.
Call to Order
Mr. Wall called the meeting to Order at 7:30 PM.
The Pledge of Allegiance
The agenda was reviewed.
Application of Joseph G. Harm – 11 Delaney Drive
Application of Michael Santore – 15 Atkinson Lane
Application of Richard Tisone – 16 Crocus Lane
Continued Application of Brandywine Realty Trust – Upper Silver Lake Road
Approval of Minutes
Mrs. Laughlin moved to approve the minutes of June 2, 2005. Mr. Lionetti seconded and the motion passed unanimously.
Application of Joseph G. Harm
Mrs. Bowe read into the record the application of Joseph G. Harm III, Joseph G. Harm III owners requesting a variance from Section 401(C) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 16 feet by 21 feet patio in rear of village house resulting in a 14 foot rear yard where 30 feet is required. The subject property is 11 Delaney Drive, Newtown, in the CM Conservation Management Zoning District, being further known as Tax Map Parcel #29-48-51.
Mr. Joseph G. Harm III was sworn in.
Mr. Wall asked if anyone present wished to be party to this application. There was no response.
Mr. Harm explained that he has recently moved into his new home in Linton Hill Chase. He was the first resident to purchase in the development, and had been assured by the builders, Toll Brothers, that his lot was large enough to add a deck or patio. He was to have been given an “Exhibit H” plot plan that would have shown the location of his house and all setback lines, but no such plan was included with his paperwork. He said that he really only has enough room on the side of his house for a patio, but it would be visible from the street, affording him no privacy and destroying the look of the neighborhood. He said that his house backs to open space and there is a large berm across the rear yard.
Mr. Lenihan said that he had visited the site and confirmed that the rear yard backs to open space and his plan is appropriate for this lot. He expressed concern that the Zoning Hearing Board sees so many applications for variances because the builders are using all impervious surface and setback space for houses and not considering that the ultimate homeowners will want to put patios or decks in their backyards.
Mr. Harm said that his is a 4,500 square foot house on less than 1/3 acre. In response to Mrs. Bowe’s question he said that his development’s Homeowners Association is still run by Toll Brothers and they have approved his plan.
Mr. Lenihan moved to grant a variance from Section 401(C) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 16 feet by 21 feet patio in rear of village house resulting in a 14 foot rear yard where 30 feet is required. Mr. Lionetti seconded and the motion passed unanimously.
Application of Michael Santore
Mrs. Bowe read into the record the application of Michael Santore, Michael Santore owners requesting a variance from Section 401 (B) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 16 feet by 34 feet inground pool with a 120 square foot walkway resulting in an impervious surface ratio of 28.76% (4,834 sq. ft.) where 20% is permitted by ordinance (4,000 square feet by Rosefield Final Plan). The subject property is 15 Atkinson Lane, Newtown, in the CM Conservation Management Zoning District, being further known as Tax Map Parcel #29-44-244.
Mr. Michael Santore and Mrs. Jennifer Santore were sworn in.
Mr. Wall asked if anyone present wished to be party to this application. There was no response.
Mr. Santore said that he would like to put an in-ground pool in his yard. He has worked to keep the impervious surface as low as possible, eliminating all unnecessary decking and walkways.
Mr. Lenihan asked Mr. Auchinleck to review what needs to be done to amend the final plan if the development’s requirements are different from the ordinance requirements.
Mr. Auchinleck explained that the final plan is an amendment to the ordinance. He asked Mr. Harwood to explain whether the homeowner must file an amendment if the variance is granted.
Mr. Thomas Harwood said that the codes office recognizes the final plan and no amendment would be required. He explained that a PRD variance, granted by the Board of Supervisors, would require such an amendment, but for this development a variance from the Zoning Hearing Board is all that is necessary.
Mr. Lenihan said that he had visited the site and found the pie shaped lot to be somewhat restrictive. He asked if landscaping is planned to provide privacy. He also asked if the plan had been approved by the Homeowners Association.
Mr. Santore said that he intended to landscape around the pool to shield it from his neighbors’ view. He had been given approval by the Homeowners Association. In response to Mrs. Bowe’s question, He said that he planned to use a 54-inch decorative metal fence around the pool.
Mrs. Bowe said that she had visited the site and agreed with Mr. Lenihan that the yard was constricted and some landscaping would be necessary to provide privacy.
Mr. Lionetti moved to grant a variance from Section 401 (B) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 16 feet by 34 feet inground pool with a 120 square foot walkway resulting in an impervious surface ratio of 28.76% (4,834 sq. ft.) where 20% is permitted by ordinance (4,000 square feet by Rosefield Final Plan). Mrs. Laughlin seconded and the motion passed unanimously.
Application of Richard Tisone
Mrs. Bowe read into the record the application of Richard Tisone, Richard Tisone owners requesting a variance from Section 405(B) & 1000(E)(3)(b)(2) of the Joint Municipal Zoning Ordinance of 1983 (Newtown Grant Final Plan) to permit construction of a 15 feet by 31 feet open wooden deck resulting in an 11 foot side yard where 15 feet is required, and a 7 foot by 8 foot Jacuzzi resulting in an impervious surface ratio of 30.25% instead of 30%. The subject property is 16 Crocus Lane, Newtown, in the R-2 High Density Residential Zoning District, being further known as Tax Map Parcel #29-43-419.
Mr. Richard Tisone was sworn in.
Mr. Wall asked if anyone present wished to be party to this application. There was no response.
Mr. Tisone said that he also lives on pie shaped lot on a corner property. He would like to add a deck and Jacuzzi to the rear of his house. His yard backs to open space and an easement.
Mr. Lenihan said that he had visited the site. He confirmed that the house backs onto a wooded area. He asked if the deck would be connected to both doors at the rear of the house, and whether it would be as elaborate as his neighbors’ decks.
Mr. Tisone said that his would be similar in size but would be only one level.
Mr. Thomas Harwood was sworn in.
Mr. Harwood read into the record a letter he received from the Fawn Hollow Homeowners Association dated June 27, 2005, asking that any variance granted be conditioned on approval of the Homeowners Association. The letter stated that Mr. Tisone had not made application for approval.
Mr. Tisone said that he thought that he would need the variance before he submitted his plans to the HOA. He received a copy of the letter sent to Mr. Harwood and filed an “ERB” application immediately.
In response to Mr. Lenihan’s question, Mr. Auchinleck said that the Zoning Hearing Board could grant a variance and a permit could be issued without HOA approval, but the project could not be built without HOA approval. The homeowners associations do have power of enforcement.
Mr. Lionetti moved to grant a variance from Section 405(B) & 1000(E)(3)(b)(2) of the Joint Municipal Zoning Ordinance of 1983 (Newtown Grant Final Plan) to permit construction of a 15 feet by 31 feet open wooden deck resulting in an 11 foot side yard where 15 feet is required, and a 7 foot by 8 foot Jacuzzi resulting in an impervious surface ratio of 30.25% instead of 30%. Mr. Wall seconded and the motion passed unanimously
Continued Application of Brandywine Realty Trust – Upper Silver Lake Road
Mr. Auchinleck reminded the Board that Brandywine would be cross-examining the two witnesses presented at the June 2, 2005 meeting. Mr. Coughlin, representing Brandywine, would be assisted by John J. Mahoney.
Mr. Cappuccio entered as Exhibit M-17, his letter to court reporter Donna D’Angelis, noting corrections to the transcript of the proceedings of June 2, 2005, noting that on pages 13, 14, and 36 “Mr. Cappuccio” should replace “Mr. Cormer” and on page 36, “Mr. Cappuccio objected” should read, “Mr. Coughlin…”
Mr. Mahoney called Mr. Thomas Cahill for cross-examination.
Mr. Auchinleck reminded Mr. Cahill that he is still under oath.
In response to Mr. Mahoney’s questions, Mr. Cahill said that he is not a structural engineer and has never designed a bridge. He has selected locations for box culverts but has not constructed them. He has visited the site of the proposed bridge on at least two occasions in the last few months, walking to the bank of the stream. He has reviewed the preliminary plan and some of the correspondence with the Township about the plan, although he does not remember exactly which letters he has seen. He was provided these letters by counsel, and has not visited the Township or the County offices to view the files.
Mr. Mahoney questioned Mr. Cahill about his review of the Nave Newell studies prepared for this project. He asked if Mr. Cahill was aware that the Newtown Township Zoning Ordinance allowed a rise of one foot in the flood level.
In response to Mr. Mahoney’s questions, Mr. Cahill said that he reviewed the 2002 Nave Newell study using HEC-RAS and found an error. He also reviewed the February 2005 study and found this analysis to be correct. He said that the Nave-Newell study found a rise of 0.67 feet and his review was very close to that. He has not done any other flood studies for this property for any other clients. He disagreed that a rise of one foot is allowed by the ordinance.
Referring to Exhibit M-5, Cahill Associates Backwater Plan, Mr. Mahoney asked Mr. Cahill about the reduction in backwater with a 270-foot free span bridge.
In response to Mr. Mahoney’s questions, Mr. Cahill said that he had not designed a 270-foot free span bridge for Exhibit M-5, but had conducted an analysis and comparison with the proposed Brandywine 150-foot free span bridge. He found that the reduction in backwater for the 270-foot bridge was not significant. He has not investigated the feasibility of a 270-foot bridge. Although he has not designed such a bridge he did think that a multiple span bridge with columns would significantly reduce backwater, but said that there would always be some backwater.
Mr. Mahoney referred to Exhibit M-4, the FEMA Map and asked if this was accurate, having been prepared using the HEC-2 program.
Mr. Cahill said that the FEMA map is accurate.
Mr. Mahoney referred Mr. Cahill to his previous testimony about the sediment pollution of Core Creek due to upstream development. He entered as Exhibit A-27 The Total Maximum Daily Load (TMDL) Assessment for the Neshaminy Creek Watershed in Southeastern Pennsylvania, Revised December 2003. He asked Mr. Cahill if the sediment in the creek is an agricultural pollutant and if the proposed development would produce the same pollutant loads as the prior use.
In response to Mr. Auchinleck’s question, Mr. Coughlin said that the TMDL is prepared by the EPA and that he printed it from the EPA Web site.
Mr. Cappuccio objected to the use of this report, as it is not the complete report and has not been authenticated. He noted that the table of contents refers to some introductory materials that are not included.
Mr. Auchinleck said that the exhibit is not being offered at this time, and that he would allow cross-examination.
Mr. Mahoney agreed to provide the entire report if necessary, and asked Mr. Cahill if he could identify it as the TDML prepared by the EPA.
Mr. Cahill said that it looks like the on-line document.
Referring to page 179 of Exhibit A-27, Mr. Mahoney read into the record:
“This total Maximum Daily Load (TDML) applies to 15.8 miles of Core Creek (Stream Segment ID #980602-0954-GLW) It was developed to address the impairments noted on Pennsylvania’s 2002 Clean Water Act Section 303(d) List. This particular segment was deemed to be impaired due to sediment from agricultural activities.”
Referring to page 180 of Exhibit A-27, Mr. Mahoney read into the record:
“The primary land use in the Core Creek watershed is agriculture (57%) with areas adjacent to the stream used for cropland and pasture. The majority of the streams have no protected riparian zone. Based on the aquatic survey conducted in the area, it was found that sediment being deposited in large quantities on the streambed was degrading the habitat of bottom-dwelling macroinvertebrates”.
Referring to page 181 of Exhibit A-27, Mr. Mahoney read into the record:
“A Total Maximum Daily Load or TDML was developed for the Core Creek watershed to address the impairment noted on Pennsylvania’s 2002 Clean Water Act Section 303(d) List (See Table A-1 in Section A1.0). The 2001 survey found that that (sic) the stream was impaired. As a consequence, Pennsylvania listed Core Creek on the 2002 Section 303(d) List of Impaired Waters. The 2002 303(d) List reported 15.8 miles of Core Creek (Stream Segment ID #980602-0954-GLW) to be impaired by siltation from agricultural activities in the watershed.
Referring to page 182 of Exhibit A-27, Mr. Mahoney read into the record:
“The 2001 survey showed that siltation originating from agricultural activities in the watershed was the cause of impairment of Core Creek stream segments. Sediments deposited in large quantities on the streambed were degrading the habitat of bottom-dwelling macroinvertebrates. This TDML addresses sediments from agricultural activities.”
Mr. Mahoney noted that Brandywine is not proposing to farm the property, and asked if the sediment pollution would continue, with or without the bridge, from the land development process.
Mr. Cahill said that there would still be some sediment pollution.
In response to Mr. Auchinleck’s question, Mr. Cahill said that the change in the amount of sediment pollution would depend on the type of land development and on the percentage of impervious surface. The sediment pollution depends on the volume of run-off.
Mr. Mahoney asked if Mr. Cahill was aware that Newtown Township’s Zoning Ordinance has a maximum impervious surface limitation.
Mr. Cahill said that he was aware of this, but that even on the pervious ground, there is compacting of soil. He said that the lawn and landscaped areas in developments are very densely compacted and the run-off would be almost as much as on impervious surface. He said that even with agricultural development, there would be different amounts of run-off depending of the crops, the method of planting and the season. In response to Mr. Mahoney’s questions, Mr. Cahill said that the Newtown Township Ordinance does not make distinctions between the crop activities or cultivation.
Mr. Mahoney read into the record from Exhibit M-1, FEMA Regulation 44 CFR§60.3, page 4, (d)(3)
“(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 flood levels within the community during the occurrence of the base flood discharge;”
Mr. Mahoney asked Mr. Cahill if he was familiar with the FEMA regulations, noting that Brandywine is not proposing development in the floodway, but in the floodplain.
Mr. Cahill said that he is familiar with the FEMA regulations, which act as guidance for municipal ordinances and that recommend that development not raise flood levels on contiguous parcels. He said that although Brandywine does not propose building in the floodway, there will be an impact on the floodway.
Mr. Auchinleck asked Mr. Cahill to clarify his statement.
Mr. Cahill said that although the plan has kept the abutments outside of the floodway, they are within the floodplain, and upstream the floodplain will rise.
Mr. Mahoney said that the FEMA regulations refer to the floodway, not the floodplain.
Mr. Cahill said that the FEMA regulations encourage applicants to look for alternatives to crossing the creek. He said that the Newtown Township Ordinance paraphrases the FEMA regulation, saying that there could be no backwater onto adjoining properties.
Mr. Mahoney asked Mr. Cahill if he had reviewed the transcripts of Mr. Newell’s testimony, and whether he had been accurate about the rate of run-off.
Mr. Cahill responded that he had not reviewed the transcripts, but had been present during Mr. Newell’s testimony. He said that while the testimony regarding the rate of run-off had been accurate, he failed to consider the volume of the run-off and that the two are connected. In response to Mr. Mahoney’s questions, Mr. Cahill said that in the 100-year storm there would be 2.8 million additional gallons of run-off with the Brandywine construction, with or without the bridge. The volume of run-off has nothing to do with the bridge, but with the development of the site.
Mr. Mahoney entered as Exhibit A-28 The Newtown Township Subdivision and Land Development Ordinance, Section 521. He read from Section 521 (3)(C)(2)(3):
“(2) Detention areas shall designed (sic) so that the rate of run-off from the site, when developed, will neither exceed nor decrease from the run-off from the site that existed before development, except where deemed necessary by the Township.(3) Discharge piping from detention areas shall be designed to control the rate of run-off as referred to in Subsection (B) for a two (2) through one hundred (100) year frequency, twenty-four hour storm.”
In response to Mr. Mahoney’s questions, Mr. Cahill agreed that the Township Ordinance does not require control of volume of run-off, only the rate of run-off. He understood that the preliminary plan had been reviewed by the Township and approved for the proposed rate of run-off.
Mr. Mahoney entered as Exhibit A-29 a consistency letter from Pennoni Associates.
Mr. Cahill agreed that the Township Engineer is satisfied that the plan complies with the Township Ordinance, and that the plan does not obstruct or encroach within the floodway delineated on a FEMA map.
Mr. Mahoney entered as Exhibit A-30 a letter dated December 2, 2003 from the Bucks County Conservation District confirming that the plan appears to be adequate for erosion and sediment pollution control as required by the Pennsylvania DEP.
Mr. Cahill noted that some of the DEP requirements for monitoring post-construction water quality are expected to change in the near future. He said that the Federal Clean Water Act and the Pennsylvania Clean Streams Act would require permits for stormwater discharge.
Mr. Mahoney entered Exhibit A-31, Approval of Coverage under the General NPDES Permit for stormwater discharge associated with construction activities issued for Brandywine. He read into the record from the permit:
“…subject to the Department’s enclosed PAG-2 which incorporates all effluent limitations, monitoring and reporting requirements and other terms, conditions, criteria and special requirements for the discharge of stormwater from point sources composed entirely of stormwater associated, in whole or in part, with construction activity, as defined in this general permit, to surface waters of the Commonwealth, including to municipal separate storm sewers and non-municipal separate storm sewer”.
Mr. Cahill noted that there are erosion and sediment control requirements now being implemented for post-construction. In response to Mr. Auchinleck’s question, Mr. Cahill said that there are not post construction permits required today.
In response to Mr. Sander’s questions, Mr. Cahill said that he did not know if the Brandywine application had been made prior to the amendment to the Township Ordinance, nor did he know that the project had received preliminary plan approval in 2003.
Mr. Sander referred to Mr. Cahill’s testimony earlier in which he said that he disagreed that the Newtown Township Zoning Ordinance permitted a rise in the flood level of one foot. He referred Mr. Cahill to Exhibit A-4, Section 905IV E I.
Mr. Cahill said that you can create backwater if you own the property. He said that where a detailed flood study has been completed there can be a rise of one foot.
In response to Mr. Auchinleck’s questions, Mr. Cahill said that the primary pollutant in the stream is phosphorus. He reviewed the history of the creation of the TMDL as a response to failure to comply with the Pennsylvania Clean Water Act section 303(D). He said that the pollution load might increase with development because of the increased volume of run-off. He agreed that the current pollution levels are from agriculture, but he did not think that development would improve the quality of the water.
Mr. Auchinleck noted that the Township Ordinance does not address increase in volume of run-off. He questioned Mr. Cahill about the sediment pollution when the property is no longer agricultural. He asked if, on property with 100% impervious surface coverage, would the siltation and sediment still be generated at the same level as on a farm.
Mr. Cahill said that the sediment would be carried onto the impervious surface on the wheels of cars and the level would probably be about the same.
Mr. Beckert referred to Exhibit A-29 and asked if this consistency letter is a construction plan.
Mr. Cahill said that it is not a construction plan; it only shows the location of the proposed bridge.
Mr. Mahoney said that Exhibit A-29 refers to the preliminary subdivision plan.
Mr. Cahill was excused.
Mr. Mahoney recalled Mr. Johann F. Szautner.
Mr. Auchinleck reminded Mr. Szautner that he is still under oath.
In response to Mr. Mahoney’s questions, Mr. Szautner said that he has performed flood studies as a land development engineer and as a municipal engineer. He has reviewed plans for bridge construction using HEC, and HEC-2, but not HEC RAS. He has visited the site and walked to the stream bank with the preliminary plan. He has looked at the parts of the plan referring to the bridge and road access only, not at the plan for the buildings. He has not reviewed the Township or County files, and has only reviewed the portions of the Township Ordinance dealing with encroachments in the floodplain.
Mr. Mahoney referred to Mr. Szautner’s testimony on cofferdams and sheet piling. He questioned Mr. Szautner on his experiences with such projects.
In response to Mr. Mahoney’s questions, Mr. Szautner said that he has been involved with construction in a floodway, and has designed locations for cofferdams in floodways. This has been done in municipalities that permitted construction in the floodway. He said that it is fairly common to do this.
Mr. Mahoney referred to Exhibit M-14 and questioned Mr. Szautner about the use of sheet pilings in construction, and whether this could be used in construction of the proposed Brandywine bridge.
Mr. Szautner said that to use sheet piling there must be an embedment ratio of 1.5 to 1, and this would be impossible on this property because of the depth of the rock.
Mr. Mahoney asked Mr. Szautner if the rock depth were greater it would be possible to use sheet piling.
Mr. Cappuccio objected to this question.
Mr. Auchinleck asked Mr. Szautner if there were sufficient embedment depth and sheet piling were used, would there be any activity in the floodway.
Mr. Szautner answered that in those circumstances there would be no activity in the floodway.
In response to Mr. Mahoney’s questions, Mr. Szautner said that a bridge that spanned the entire floodplain would not be practical. He has never been involved in a project for a 430-foot bridge to span a 20-foot wide stream. Although he has not conducted a study, he said that it is a logical conclusion that there would be no backwater with a 430-foot bridge. He said that he did not know that PennDoT would require 4-foot wide piers, not the 2-foot wide piers he had suggested in his previous testimony. He noted that PennDoT has no authority on a private road. If the road were to become a public road, then PennDoT would have authority.
In response to Mr. Cappuccio’s questions, Mr. Szautner said that the use of cofferdams would encroach in the floodway. He said that it would be possible to build the three-span bridge depicted in Exhibit M-15 using four-foot piers. He said that using socket footings it would it would be possible to do this type of construction without encroaching in the floodway.
Mr. Cappuccio read into the record from Exhibit A-29:
“(2) The plan does not propose any water obstructions or encroachments within the floodway delineated on a FEMA map.”
He asked Mr. Szautner if he agreed with this.
Mr. Szautner responded that he did not agree. He said that if the bridge depicted in M-15 were constructed there would be an increase in the floodplain only around the piers.
Mr. Auchinleck referred Mr. Szautner to Exhibit M-7, page 261, Section (5).
“…a plan and analysis of the backwater that will be caused by the stream crossing …provided there shall be no use, activity or development in the floodway…”
He said that Mr. Szautner has stated that it is common to encroach in the floodway during construction. He asked Mr. Szautner, if, after rereading this section of the Ordinance, would he agree that stream crossing is not permitted.
Mr. Szautner said that this would be correct.
Mr. Szautner was excused.
Mr. Lionetti moved to continue the application of Brandywine Realty Trust to a special meeting on Thursday, July 14, 2005. Mr. Lenihan seconded and the motion passed unanimously.
Mr. Lenihan moved to adjourn at 10:30 PM. Mr. Lionetti seconded and the motion passed unanimously.
Mary Donaldson, Recording Secretary