NEWTOWN TOWNSHIP ZONING HEARING BOARD
MUNICIPAL BUILDING - 100 MUNICIPAL DRIVE
NEWTOWN, PA 18940
THURSDAY, JULY 14, 2005
Approval of Minutes Mrs. Laughlin moved to accept the minutes of the special meeting of July 14, 2005. Mr. Wall seconded and the motion passed 4-0.
The Newtown Township Zoning Hearing Board met on Thursday, July 14, 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 7:30 PM.
The Pledge of Allegiance
Continued Application of Brandywine Realty Trust
Mr. Cappuccio called Joseph A. Zadlo. He said that Mr. Zadlo is an architect and zoning officer and would discuss interpretation of ordinances dealing with floodways and backwater. He said that Mr. Zadlo is an expert in land development.
Mr. Mahoney objected to a non-attorney being qualified as an expert in interpretation of ordinances.
Mr. Auchinleck said that this objection would be dealt with on a question-by-question basis.
Mr. Zadlo said that he is a registered architect in Pennsylvania and New Jersey and a certified land planner. He has a B.S. degree in architecture from Drexel University. He has been a Township Planner for Skippack, Franconia and Lower Gwynedd Townships. He helped draft the new zoning ordinance for Lower Moreland Township and has written ordinances for many other Townships, including Hatfield and Lower Gwynedd. He has been accepted as an expert in land planning in 30 municipalities.
In response to Mr. Mahoney’s questions, Mr. Zadlo said that he has reviewed the Brandywine application and plan, the Newtown Township Ordinance and had visited the site on Monday of this week.
Mr. Zadlo was accepted as an expert in land planning. He was sworn in.
Mr. Cappuccio entered as Exhibit M-16 the Curriculum Vitae of Mr. Zadlo.
In response to Mr. Cappuccio’s questions, Mr. Zadlo said that Newtown’s Joint Municipal Zoning Ordinance permits development of offices by right, in the office/research zoning district, but also permits less intensive uses such as research facilities and single-family homes. He said that developing the Brandywine property for these less intensive uses would eliminate the need for the bridge. Building a bridge with a larger span could also minimize the impact of the bridge. He said that developing this property for single-family homes would be reasonable because the property is surrounded on two sides by single-family homes. When looking at the Ordinance for reasons to grant a variance, the criterion that state that the property could not reasonably be developed for any other use is not true. He also said that in reviewing Section 905 of the ordinance he has formed the opinion that no activity is permitted in the floodway.
Mr. Mahoney objected, noting that this is a question for the Zoning Hearing Board to decide.
Mr. Auchinleck allowed the question.
Mr. Cappuccio referred Mr. Zadlo to Section 905 of the Ordinance and read from page 254:
“Special exceptions and variances shall only be issued after the Local Zoning Hearing Board has determined that the granting of such will not result in….(1.1) Any use, activity or development in the floodway.”
He read from page 253, Section 905.IV.E.1:
(a)…provided that no use, activity or development occurs in the floodway”.
He read from page 261, Section 905.”B”.5:
“…provided there shall be no use, activity or development in the floodway”.
He asked Mr. Zadlo why this phrase would be repeated three times in this section of the Ordinance.
Mr. Zadlo said that in his opinion, the drafters of the ordinance have made it clear that no activity is to be permitted in the floodway at all, and that there are to be no exceptions. This includes during time of construction. Referring to Section 905.5, on page 261 of the Ordinance, he said that no backwater is permitted on adjoining properties at all. He noted that on the preceding page the Ordinance separates into two different paragraphs references to areas where a detailed flood study has been conducted and areas that have not been studied. He said that both areas are dealt with in the same paragraph on the next page, which is why it is his opinion that in both studied and unstudied areas no backwater is permitted on an adjoining property.
Mr. Sander and Mr. Mahoney objected, saying that this is for the Zoning Hearing Board to determine. Mr. Auchinleck allowed the testimony.
In response to Mr. Cappuccio’s questions, Mr. Zadlo said that the Ordinance prohibits any backwater at all. It does not say that backwater cannot flood an entire property; it does not in any way limit the amount of backwater. He said that for this reason he does not agree with the Brandywine application requesting “de minimus relief”. He said that de minimus relief can be sought to increase what is allowable, for example, when relief is granted for a smaller setback. In such cases there is a limit to what is permitted, and an applicant is asking to be allowed more than what is permitted. In this case, no backwater is permitted. He said that this is an absolute, and there would be no de minimus relief.
In response to Mr. Mahoney’s questions, Mr. Zadlo said that he has not conducted any flood studies or geotechnical studies and he does not know whether a bridge with a greater span could be built. He has studied the Ordinance and has interpreted it to mean that no structure or activity is permitted in the floodway at all, not even for construction or maintenance, although he is aware that is special circumstances, this might be permitted. Mr. Mahoney’s example of an object being stuck in the floodway might be such a special circumstance. He pointed out that this application is not about maintenance or emergencies. He said that he has seen ordinances that exempt municipalities from the conditions of the ordinance, but he has not studied this ordinance to know if Newtown Township has exempted itself. He said that he does not know if the rules for exempting municipalities are the same as the state statutes.
Mr. Mahoney referred Mr. Zadlo to Section 905.B.5 again and asked him about his interpretation.
Mr. Zadlo again stated that he thought that if the last sentence, which refers to backwater, were to apply only to areas where no detailed flood insurance study had been completed, that sentence would not have ended with a period, but would have included the “no backwater” sentence within the same sentence. Because the third sentence ends with a period, and the “no backwater” sentence stands alone, he believed it to refer to both preceding sentences.
Mr. Mahoney read into the record from page 240 of the Ordinance:
“I. Flood. A general but temporary condition of partial or complete inundation of normally dry land areas from the overflow of streams, rivers, or other waters of this Commonwealth.”
In response to Mr. Mahoney’s questions, Mr. Zadlo agreed that the word “flood” could be a noun or a verb, and on page 261 it is a verb. If sentence three had ended with a comma, and sentence four followed with a lower case “no backwater” there would have been no ambiguity.
Mr. Cappuccio objected, saying that there is no ambiguity as the Ordinance is written now.
Mr. Zadlo responded to Mr. Mahoney that he did not find an ambiguity, and believed that the “no backwater” sentence referred to both the studied and not studied areas.
Mr. Mahoney referred Mr. Zadlo to Exhibit A-17, the transcript of the Board of Supervisors meeting of July 14, 2005, in which one supervisor requested that the draft be amended.
Mr. Cappuccio objected. He said that the Ordinance is clear.
Mr. Beckert objected, saying that the Board of Supervisors meeting transcript is not part of the legislative history of the Ordinance, as the Ordinance is a Jointure ordinance.
Mr. Sander said that Newtown Township is one of the governing bodies that approved the Ordinance and that the discussion is relevant as part of the legislative history.
Referring to page 23 of Exhibit A-17, Mr. Mahoney noted that one supervisor had requested that the language of the proposed amendment explicitly state that no backwater be allowed on studied areas and no backwater be allowed on unstudied areas.
Mr. Zadlo said that the change was not necessary, that the ordinance as written does not permit backwater on either studied or unstudied areas.
Referring to Mr. Zadlo’s testimony about de minimus relief, he questioned whether Mr. Zadlo was saying the Zoning Hearing Board is without authority to grant a variance even for one square inch of backwater. He also asked if the applicant is required to use the words “de minimus”.
Mr. Zadlo said again that “de minimus” refers to dimensional requirements. The Ordinance does not require that de minimus relief be referred to in an application. In response to Mr. Mahoney’s questions, Mr. Zadlo again said that even in a case where there is already backwater onto an adjoining property, an additional area as small as one square inch, caused by something as small as a doghouse, would not be allowed, because the ordinance says “no backwater”.
In response to Mr. Mahoney’s questions, Mr. Zadlo said that he has made it a practice to visit sites before giving expert testimony. On this site, if it were developed for single-family homes, traffic could access Upper Silver Lake Road. He said that he thought that two access points along this road would adequately handle traffic.
Mr. Sander asked Mr. Zadlo how traffic would travel to get into Newtown or to I95 if it accessed Upper Silver Lake Road. He asked if all the traffic would have to travel through the Wiltshire Walk residential development.
Mr. Zadlo did not know which roads would be traveled.
Mr. Beckert and Mr. Cappuccio objected.
Mr. Sander said that Mr. Zadlo had testified that the property could be developed for single-family homes without the need for a bridge. He said that it is relevant to note the additional traffic.
In response to Mr. Auchinleck’s questions, Mr. Zadlo said that he had not calculated the number of houses that could be built on the property, nor the amount of traffic generated from such a development. He has assumed that a residential development would access the same roads as the development to the north of the property.
Mr. Sander reviewed with Mr. Zadlo the Ordinance as it was before the 2004 amendment, noting that the old ordinance did not permit a rise in the floodwater at all.
Mr. Cappuccio objected.
Mr. Auchinleck overruled, noting that the Board must interpret the current ordinance, and it is helpful to know what it was before and how it has changed.
Mr. Sander noted that before the 2004 amendment, sentence two had permitted no rise in the flood level; sentences three and four are the same as the amended Ordinance.
Mr. Zadlo responded that sentence one of both ordinances say “that there will be no adverse impact on any surrounding property owners”.
Mr. Sander again referred to the old ordinance’s prohibition, “no rise”.
Mr. Beckert objected, noting that this is the reverse of the argument made in the original application.
Mr. Sander said that the Board is not bound by old decisions. He said that the Commonwealth court had decided that there was no ambiguity in the old ordinance, and so the jointure amended it to permit a rise in the flood level of one foot.
In response to Mr. Sander’s questions, Mr. Zadlo agreed that the Ordinance does allow for an applicant to seek a variance and a special exception.
In response to Mr. Auchinleck’s questions, Mr. Zadlo said that he has seen ordinances that prohibit activity in a floodway, even during construction. In Lower Gwynedd, bridges have been installed by crane to avoid activity in the floodway. He is aware that state road crews perform maintenance tasks in the floodway, even though it is prohibited. He said that it is common practice to divert streams for construction of stream crossings for driveways. He again noted that if the ordinance had meant that there could be some activity in the floodway, the specific exceptions would have been listed. Referring to page 249 B of the Ordinance, he said that although bridges are permitted by special exception, that is only if it is not prohibited by any other Ordinance. He said that activity in the floodway is prohibited.
In response to Mr. Auchinleck’s questions, Mr. Zadlo said that the only way to build a bridge, according to the Ordinance, is if there is no activity in the floodway at all, even if the municipality is building the bridge. The Ordinance permits activity in the floodplain district. He said that a stream encroachment permit is a permit from the DEP to encroach in a stream, but he is not sure if a stream encroachment is the same as a floodway.
Mr. Auchinleck asked how Mr. Zadlo would interpret an ordinance that could be interpreted two ways, one in favor of the municipality and one in favor of the applicant.
Mr. Zadlo said that the Municipal Planning Code requires an interpretation in favor of the applicant.
In response to Mr. Lionetti’s questions, Mr. Zadlo said that if an adjoining property is already flooded during a 100-year storm prior to construction, that there could still be “no backwater”. He said that the ordinance prevents anyone from aggravating the situation; backwater would be in addition to the existing flooding conditions.
In response to Mr. Lenihan’s questions, Mr. Zadlo said that he visited the site on the previous Monday, and did not observe marshy or wet conditions, and the area seemed dry. In response to Mrs. Bowe’s questions he said that the “no backwater” provision applies in any and all circumstances.
In response to Mr. Mahoney’s questions, Mr. Zadlo said that the ordinance could be redrafted to make this clearer by separating into different paragraphs provisions for studied areas and unstudied areas. He said that he did not walk on the property but drove his car through the entrance of the adjoining property. He did not get out of his car.
Mr. Lenihan commented that Mr. Zadlo should have said that when he described the conditions he observed.
Mr. Cappuccio moved to enter Exhibits M-1 through M-17, noting that there is no Exhibit M-6 and that there is an Exhibit M-10A. He reserved the right for rebuttal of the applicant’s rebuttal witnesses.
Exhibits M-1 through M-5, M-7 through M-17 were accepted.
Mr. Mahoney moved to enter Exhibits A-27 through A-31. They were accepted.
Mr. Mahoney called Mr. James Stellar.
Mr. Stellar was sworn in.
Mr. Mahoney entered as Exhibit M-32 a Consultant Qualification Package, which describes Mr. Stellar’s qualifications as a senior engineer.
Mr. Stellar said that he has been a senior structural engineer for Patel and Chen of Graniteville, PA for eighteen years. He is a graduate of Penn State University and is a licensed professional engineer in Pennsylvania. He has designed between 180 and 200 bridges, from a 30-foot single span bridge to a 2900-foot bridge over the Susquehanna River. He has worked directly for PennDOT and for contractors. He has designed interchange bridges for I95 in Pennsylvania and in Westchester County, New York for NYDOT. He has won many awards for his bridge designs, including five Excellence in Highway Design Awards from PennDOT.
In response to Mr. Beckert’s question, Mr. Stellar said that he was retained by Brandywine in early spring of 2005 to design a bridge for this office complex project and to give expert testimony in this hearing. He had been in attendance at the June Zoning Hearing Board meeting.
In response to Mr. Mahoney’s questions, Mr. Stellar said that he had been retained to design a single span bridge of 150 feet. He did not do a flood study, but has reviewed the Nave Newell study and the geotechnical report entered as Exhibit M-11.
Mr. Mahoney entered as Exhibit A-34 a 4 sheet TS&L Plan (type, size and location).
Referring to Exhibit A-34, Mr. Stellar explained that sheet 1 shows the abutments, the stream and the 100-year floodplain. He said that a protection system called a jersey barrier would be used and that there would be no activity in the floodway. Wing “C” of the abutment would be six feet from the floodway at its closest point. Sheet piling and a cofferdam would be used for construction of the southern abutment, but would not be needed for the northern abutment. He described sheet piling as a series of interlocking steel pieces that create walls around an excavation. They are driven into the ground with a pile hammer. Sheet 4 of Exhibit A-34 shows that the outer edge of the sheet piling is six feet from the floodway.
Mr. Mahoney referred Mr. Stellar to Mr. Szautner’s testimony about the use of sheet piling. Mr. Szautner had said that sheet piling could not be used because the depth of the rock would not permit sufficient embedment.
Mr. Stellar said that he disagreed with Mr. Szautner. He said that when there is not sufficient depth for embedment of the sheet piling, an internal system of braces is used.
Mr. Mahoney entered as Exhibit A-35 a series of photographs of sheet piling with internal braces.
Mr. Stellar explained that these photographs show sheet piling in the Susquehanna River on Interstate 80. He explained that the internal braces support the sheet piling, transferring the pressure, and keeping everything stable. He has designed a similar plan for the Brandywine bridge.
Mr. Mahoney entered as Exhibit A-36 a footing plan for abutment 2.
In response to Mr. Mahoney’s questions, Mr. Stellar said that this is the same as is shown on Exhibit A-34, sheet 4. He has used similar plans more than 20 times. He said that using this method the bridge could be constructed without any activity in the floodway.
Mr. Cappuccio reserved the right to cross-examine Mr. Stellar at the next hearing.
Mr. Mahoney called Kevin Loftus.
Mr. Loftus was sworn in.
Mr. Loftus said that he is the President of Loftus Construction, a heavy civil construction firm. He has built bridges, dams, culverts and heavy foundations in New Jersey and Pennsylvania. He has a B.S. degree in civil engineering from Drexel University. He has been building bridges for twenty years. He has built over 120 bridges, the shortest being 10 feet and that largest being a 1500-foot, 11 span bridge over the Schuylkill River. He has built many bridges in Bucks County, including one on Route 413 over the Neshaminy Creek at Bridgetown Pike, on Silver Lake Road in Core Creek Park, and on Mt. Eyre Road over the Delaware Canal in Yardley.
Mr. Mahoney entered as exhibit A-37, Mr. Loftus’ curriculum vitae, and offered Mr. Loftus as an expert witness.
In response to Mr. Beckert’s questions, Mr. Loftus said that the Silver Lake project, completed several years ago, is a single span bridge of about 40 to 50 feet, and the Mt. Eyre Road bridge, also a single span, is about 60 feet.
Mr. Mahoney asked if Mr. Loftus had heard Mr. Szautner’s testimony about the use of sheet piling for this project, and if he agreed. He said that Loftus Construction has been retained to build a bridge for this Brandywine project.
Mr. Loftus said that he disagreed with Mr. Szautner’s testimony. He said that because he would not be able to gain sufficient embedment, he would use a cofferdam with sheet piling and internal bracing, similar to what had been used on the Bridgetown Pike project. He has used this method at least twenty times.
Mr. Mahoney entered as Exhibit A-38, a sequence of construction plan from Loftus Construction, Inc. for abutment #2.
Referring to Exhibit A-38, Mr. Loftus explained that the permanent construction would occur within the cofferdam, and that a crane would sit above the abutment, above the floodway. He said that using this method, which is a common practice in bridge construction, there would be no temporary activity or construction in the floodway.
Mr. Cappuccio reserved the right to cross-examine Mr. Loftus.
In response to Mr. Auchinleck’s questions, Mr. Loftus said that the rip rap would be inside the cofferdam. He said that when the sheet piling is removed the space is filled with small stones.
In response to Mr. Mahoney’s question, Mr. Loftus said that there would be no activity in the floodway at all; the closest sheet piling would be in excess of six feet from the floodway.
Mr. Mahoney recalled Gregory Newell.
Mr. Newell was sworn in.
Mr. Mahoney asked Mr. Newell if Brandywine had received any permits in connection with land development.
Mr. Newell said that Brandywine had received approval from the Bucks County Conservation District for erosion and sedimentation and an NPDES permit.
Mr. Mahoney entered as Exhibit A-39, a Highway Occupancy Permit for Brandywine Boulevard to join with the Newtown By-pass.
Mr. Mahoney referred Mr. Newell to Exhibit A-29, a consistency letter, as required by the Pennsylvania DEP from Pennoni Associates, which is undated. He asked Mr. Newell if he knew when it was received.
Mr. Newell said that he did not know the date it was issued, but it had been received in 2003. He referred to Exhibit A-30 Bucks County Conservation District’s adequacy letter, and said it had been received in December 2003. He also referred to Exhibit A-31, an NPDES permit, which states that the plan meets DEP standards for pollution discharge. In response to Mr. Mahoney’s question, Mr. Newell said that in a 100-year flood, the CAU property, upstream of Brandywine’s property, would experience backwater on 3700 square feet, 1/11 of an acre, and the ICT property would have backwater of 2629 square feet.
Mr. Beckert objected, saying that this was not rebuttal testimony.
Mr. Auchinleck allowed the testimony, as it is in response to Mr. Cahill’s testimony.
Mr. Newell continued that there are no structures, parking areas, or walking trails on either ICT’s or CAU’s property where the backwater would occur, and that there would be no adverse impact on either property.
In response to Mr. Cappuccio’s questions, Mr. Newell said that Mr. Maziarz, the recipient of Pennoni’s letter entered as Exhibit A-29, is a former employee of Nave Newell. He said that it was part of a joint permit application to the DEP, and was probably received in late 2003. Both Exhibit A-30 and A-31 were received in his office in December of 2003. Although the bridge plan has been revised since the issuance of these permits, no new applications have yet been made.
Mr. Cappuccio Entered as Exhibit M- 18, Joint Municipal Zoning Ordinance Article II, and as Exhibit M-19, the plan for Newtown Corporate Center, page 6 of 7. Mr. Cappuccio asked Mr. Newell to point out the wetlands on Exhibit M-19, and to compare M-19 to Exhibit A-19.
Mr. Newell pointed to the hatched shaded area of M-19 as wetlands. He said that some of the wetlands are on the Doorley property. He did not prepare a wetland study. He said that Exhibit A-19 shows the area of backwater onto adjoining property with an orange line. It does not delineate wetlands.
Mr. Beckert asked Mr. Newell if Exhibit A-39, the Highway Occupancy Permit, has anything to do with the proposed bridge.
Mr. Newell said that it is part of the submission of the land development plan, and allows the Brandywine property to access a state highway. It does not relate to construction, but allows access to the By-pass and allows for a signal to be installed at the intersection. The bridge was not reviewed as part of the permit application. He agreed with Mr. Beckert that Exhibits A-29, A-30 and A-31 were issued for the 125-foot bridge, and the plan has since changed.
In response to Mr. Beckert’s questions, Mr. Newell said that CAU and ICT were not adversely impacted by the backwater because they are not flooded, but were receiving additional backwater on land that is not normally dry. The backwater would be for a very short time on land that is not normally dry. He said the properties are affected, but not adversely.
Mr. Mahoney moved to enter Exhibits A- 32 through A-39.
There was no objection and the exhibits were accepted.
Mr. Cappuccio moved to enter Exhibits M-18 and M-19.
There was no objection and the exhibits were accepted.
Mr. Lionetti moved to continue the application of Brandywine Realty trust to August 4, 2005. Mr. Lenihan seconded and the motion passed unanimously.
Mr. Lionetti moved to adjourn. Mr. Lenihan seconded and the motion passed unanimously.
Mary Donaldson, Recording Secretary