NEWTOWN TOWNSHIP ZONING HEARING BOARD
MUNICIPAL BUILDING - 100 MUNICIPAL DRIVE
NEWTOWN, PA 18940
THURSDAY, SEPTEMBER 12, 2005
Approval of Minutes
Mrs. Bowe noted that in the minutes of September 1, 2005, the last sentence of page 10 should read, “ Mr. Rich Cirucci…” On page 11, the first paragraph should read, “ …it should not connect with Penns Trail North for through traffic”.
Mr. Lionetti moved to accept the minutes of September 1, 2005, as corrected. Mr. Wall seconded and the motion passed unanimously.
Mrs. Laughlin noted that the minutes of September 12, 2005, did not accurately reflect her comments. She asked that page 6, paragraph seven state, “ …quality of life for the residents of the Township. ‘My concern is that the Ordinance had been amended seemingly to accommodate this developer. My greatest concern is for the residents adjacent to this project. The fact that the majority of Supervisors ignored their own Ordinance when they required the developer of Wiltshire Walk to build Penns Trail North greatly disturbs me’”
Mr. Lionetti moved to accept the minutes of September 12, 2005, as amended. Mrs. Laughlin seconded and the motion passed unanimously.
The Newtown Township Zoning Hearing Board met on Monday, September 12, 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 Justine Gregor, Stenographer.
Call to Order
Mr. Wall called the meeting to Order at 7:30 PM.
The Pledge of Allegiance
The agenda was reviewed:
Continued Application of Newtown Center Associates – South Eagle Road
Continued Application of Cameron C. Troilo, Inc. – 104 Pheasant Run Road
Continued Application of Brandywine Realty Trust – Upper Silver Lake Road
Continued Application of Brandywine Realty Trust
Mr. Auchinleck informed the applicant and parties to this application that the Board members had received an ex parte communication from Jennifer Dix. A Board member turned the correspondence over to Mr. Auchinleck unopened. He opened the letter and allowed the Board, the applicant and the parties in opposition to read the letter. It was marked as Exhibit ZHB-1.
Mr. Auchinleck informed members of the public in attendance that the Zoning Hearing Board, as a judicial body, is not permitted to receive ex-parte communications. He has made the letter part of the record and all have had an opportunity to review it.
Mr. Coughlin expressed concern that the Board had received this communication, but made no objection, as the contents of the letter were the same as had been expressed by Ms. Dix at public comment.
Mr. Auchinleck said that because the September 1, 2005 meeting stopped public comment because of the lateness of the hour, he would allow additional public comment before closing arguments. He invited those who had not been given an opportunity at the last meeting to comment.
Mr. Tony Piscella, (no address given) was sworn in.
Mr. Piscella expressed concern about the issue of taxation. He said that there has been some discussion among the residents about this, and he wondered if information on the taxes generated by ICT was available, and had this issue been considered.
Mr. Auchinleck explained to Mr. Piscella, and those in attendance, that the Zoning Hearing Board can only consider this application for a bridge. All public comment must address the bridge.
Mr. Emil Matchyshyn was reminded that he is still under oath.
Mr. Matchyshyn said that he is concerned about run-off, as described in Mr. Cahill’s testimony. He is also concerned about the insufficient scour protection discussed by some of the expert witnesses. He said that these experts had indicated that to use sufficient scour protection would require use or activity in the floodway. He said that this insufficient scour protection would cause the bridge to need expensive repairs. He was also concerned that while the owners of CAU and Mill Race properties have not been concerned about backwater onto their properties, the future owners of these properties must be protected, and that the CAU and Mill Race owners cannot speak for future owners.
Mr. Coughlin asked to enter a letter from Princeton Development, Inc to Mr. Wall as exhibit A-42. Princeton Development is a subsidiary of CAU; CAU council, Mr. Don Marshall, is present at this hearing.
Mr. Cappuccio objected, saying that the record is closed.
Mr. Auchinleck indicated that the parties have rested, but the record is not closed. At Mr. Lionetti’s suggestion, as the letter is addressed to Mr. Wall, it would be marked as Exhibit ZHB-2.
In closing, Mr. Coughlin reviewed the facts not in dispute: Brandywine’s application is for a 150-foot bridge at the narrowest part of the floodplain; the bridge would be part of a connector road that was requested by the Township at the time of construction of the ICT building; the connector road was recommended by McMahon Associates in 1998.
Mr. Coughlin said that the backwater effect of the bridge crossing would be a maximum temporary rise of 0.63 feet in the 100-year flood elevation that would dissipate within 390 feet upstream of the bridge. The area of the CAU property affected by the temporary rise in the flood elevation is approximately 3,700 square feet; on the Mill Race property it is approximately 1,750 square feet; and on the ICT property it is approximately 2,629 square feet. The ICT property is owned by Brandywine. There is no adverse impact on any of these properties’ sidewalks, parking areas or buildings. The protestant’s expert witness, Mr. Cahill has acknowledged that the Nave Newell revised flood study is correct.
Mr. Coughlin said that a special exception is permitted if certain criteria are met; if they are met, the burden shifts to the objector.
Mr. Coughlin reviewed the Ordinance Section 905(B)(5) prior to the amendment, which stated in its second sentence that, “ In areas where a detailed flood insurance study has been completed, no rise in the flood year flood level will be permitted”. When the Ordinance was amended, only the second sentence of the Ordinance was changed and now reads, “In areas where a detailed Flood Insurance Study has been completed, a rise of no greater than one (1) foot in the 100 year flooding elevation will be permitted, provided that there shall be no use, activity or development in the floodway”. He said that the last sentence in the amended section, “No backwater shall be allowed to flood an adjoining property”, only applies to the preceding sentence, which refers to areas where no detailed flood insurance study has been completed. The Transcript of the Board of Supervisors meeting at which this proposed amendment was approved specifically refers to one supervisor asking that the wording be changed to make it clear that the “no backwater” sentence applies to both studied and not studied areas, however the Board refused to make this change.
Pennsylvania law requires that when ordinances are interpreted, all words are to be given meaning. If there were to be no backwater permitted at all, the separate distinctions of studied and not studied areas would be irrelevant. He said that a rise in the flood level of one foot in a studied area is permitted and not in an unstudied area is because in studied areas we know what will happen. If there has been no study, we must be more conservative. If the Zoning Hearing Board finds this Ordinance to be ambiguous, the MPC requires that you must find favorably for the applicant.
Regarding flooding, Mr. Coughlin said that the ordinance definition refers to areas that are normally dry. Only Mr. Zadlo testified that the area to receive backwater is normally dry, and Mr. Zadlo did not walk into to the area, but only drove by it in his car. If the area is not normally dry, it cannot be flooded.
Regarding “use, activity and development” in the floodway, Mr. Coughlin asked if the Ordinance prohibits temporary activity, which would prohibit maintenance tasks such as removal of tree limbs. He said that the applicant would stipulate that it could demonstrate that there would be no temporary or permanent use, activity or development in the floodway. It is up to the Township’s engineers to determine if the final plans would result in use, activity or development in the floodway.
Mr. Beckert had referred to the side yard setbacks of the bridge in his brief. Mr. Coughlin said that the Ordinance defines setback requirements for buildings, including towers and chimneys. A bridge is not a building. It should also be noted that the bridge and road are to be dedicated to the Township.
In Mr. Cahill’s testimony of volume and sediment, Mr. Coughlin noted that this is the result of the entire project, not the bridge, itself.
Mr. Coughlin said that Mr. Hitchner had referred to Brandywine’s arrogance during his public comment, stating that Brandywine’s representatives told residents that they would build the office complex with or without the bridge. It should be noted that traffic would exit 100% onto Upper Silver Lake without the bridge, whereas with the bridge 70% of traffic would exit to the By-Pass. One of the conditions of Brandywine’s preliminary plan approval had been a contribution of $10,000 for a traffic study after completion of the project. If, after completion, it is determined that the traffic is going out to Upper Silver Lake Road, the Township could elect to close access.
In closing, Mr. Sander, representing Newtown Township, joins in Brandywine’s brief. He said that Brandywine has met its burden of proof for a special exception.
Regarding traffic, Mr. Sander said that Brandywine owns this property and is a developer of office buildings. The Township has given preliminary plan approval for this development with a bridge. The Township has asked Brandywine for an easement for this bridge and road. If the application is denied, Brandywine can still build the complex, but 100% of traffic will exit onto Upper Silver Lake Road. The Township cannot take the risk of Brandywine building the office complex without this bridge. Mr. Sander noted that all of the public comment referred to concerns about traffic. Only this bridge will keep the additional traffic off of the local residential streets.
In closing, Mr. Cappuccio said that the applicant has failed to meet the requirements for a special exception. It has only been shown that Brandywine thinks it can build the bridge without “use, activity and development” in the floodway, but Brandywine’s witnesses have shown that it can be done only without sufficient scour protection. Mr. Jastrzebski has demonstrated that to provide sufficient scour protection, activity and development would extend 4 feet into the floodway. Mr. Jastrzebski has testified to the failure of similar bridges in neighboring Townships. Brandywine’s witnesses have stated that they meet the minimum requirements.
Mr. Cappuccio said that he disagrees with Mr. Coughlin that the Zoning Hearing Board is not charged with determining whether the bridge can be built without activity in the floodway. It is Brandywine’s obligation to show that the bridge can be built without activity in the floodway. It is not acceptable to allow, as a condition, that it could be demonstrated to the satisfaction of the Township engineers that it could be constructed without activity in the floodway. At this point the location and abutments have been chosen and a design has been submitted. Brandywine should have waited until the bridge is fully designed before making this application.
Mr. Cappuccio noted that the design is based on the 2002 Nave Newell report and the 2003 Geosystems report. These numbers are incorrect. Mr. Stellar has based the design on incorrect numbers. There is an adverse impact on the community, as there are concerns for public safety when a bridge will cause increased volume of water, increased scour, and increased sediment. There will be increased cost of maintenance for a bridge constructed with insufficient scour protection.
Mr. Cappuccio said that there would be backwater onto three adjoining properties. That the current owners do not object to this means nothing.
Mr. Cappuccio said that the bridge is a structure, and the side yard setbacks do apply. Mr. Cappuccio said that a de minimus variance is a dimensional variance and did not apply in this case. A variance cannot be granted if it would change the character of the neighborhood.
Mr. Cappuccio said that the Board is not to consider the history of the Ordinance, but only the Ordinance itself, which prohibits backwater onto adjoining properties. No backwater means no backwater.
Mr. Cappuccio said that the hardship is self-created. Brandywine purchased this property knowing that it did not have approval for the bridge. The property can be developed without the bridge.
In closing Mr. Beckert said that the de minimus variance does not apply because a de minimus variance is dimensional. The property is not rendered valueless by the denial of the variance. The application of this Ordinance is not unique to this property.
Mr. Beckert noted that this is not the same bridge as the one that the Township has given preliminary plan approval for. The bridge that had been given preliminary plan approval was 125 feet in length. When considering this bridge, it must be considered a private structure, as it cannot be presumed that this 150-foot bridge will be dedicated.
Mr. Beckert said that there will be backwater onto three adjoining properties. The amended Ordinance, while making distinctions for studied and unstudied areas, meant the last sentence to apply to both areas. If it were only to have applied to the unstudied areas, the drafters would have used a comma after the phrase, “provided that the rise is contained within the property limits of the applicant” to show that no backwater was permitted on the unstudied areas only. This Ordinance should be interpreted by its common meaning.
Mr. Beckert said that the Ordinance does not define “adverse impact”, nor does it refer to significant impact. Backwater is an unfavorable change, which is an adverse impact. The Ordinance also refers to “no use, activity or development” in the floodway. It has been shown that the bridge can only be constructed with no activity in the floodway if there is insufficient scour protection.
Regarding traffic, Mr. Beckert said that it is not the place of the judicial body to decide that to deny the variance would increase traffic. The legislative body, the Board of Supervisors, must decide on this.
Mr. Auchinleck said that at this point the record is closed. He thanked all attorneys for their briefs and findings.
Mr. Wall moved to grant variance from Section 905 Exhibit B section 5 of the Joint Municipal Zoning Ordinance of 1983 to permit a small amount of backwater to flow on to adjoining properties and a Special Exception under Section 905(B)(5) and 905(IV)(B) to allow construction of a bridge and public road within the floodplain, with the condition that the road from the bridge, referred to as Brandywine Boulevard, does not empty onto Upper Silver Lake Road or Penns Trail North, but ends as a loop road through the development, or is closed to through traffic and used for emergency access only, as safety requires. Mrs. Laughlin seconded
Discussion of motion: Mr. Lionetti said that he could not support this motion because he did not think it is appropriate for the Zoning Hearing Board to become involved in design aspects of this project. He did not support changing the flow of traffic.
Mr. Lenihan said that he was reluctant to add that condition as it could land lock the property, although Mr. Wall had said that without the bridge, the applicant could access anywhere along Upper Silver Lake Road.
Mr. Lenihan and Mrs. Bowe both commented that the condition goes beyond what the Board has been asked to rule on.
Mr. Wall asked if the Board members would support his motion if he removed the emergency access condition, or just asked that the road be closed to Upper Silver Lake Road.
Mr. Lenihan said that this would be asking the Board to make a decision about something they have no knowledge of.
Mrs. Laughlin said that she feels that the only access to the property should be through the By-Pass. She expressed concern about the increased sediment and pollution in Core Creek, and the increased traffic in the area. She said that this would undermine the quality of life of the residents at that end of the Township. She also expressed concern that the Ordinance had been amended to accommodate this developer.
Mr. Lionetti said that he is also very concerned about the increased traffic in the Wiltshire Walk development.
The motion failed 2-3, with Mrs. Bowe and Messrs. Lenihan and Lionetti voting nay.
Mr. Lionetti moved to grant variance from Section 905 Exhibit B section 5 of the Joint Municipal Zoning Ordinance of 1983 to permit a small amount of backwater to flow on to adjoining properties and a Special Exception under Section 905(B)(5) and 905(IV)(B) to allow construction of a bridge and public road within the floodplain. Mrs. Bowe seconded.
Discussion of motion: Mr. Wall noted that the applicant had offered to make it a condition of approval that there would be no activity in the floodway. He asked if the Board would want to add that condition.
Mr. Lionetti said that it is up to the Township to work with the developer to insure that there is no activity in the floodway.
The motion passed 3-2, with Mr. Wall and Mrs. Laughlin voting nay.
Continued Application of Cameron C. Troilo, Inc.
Mr. Don Marshall represents the applicant.
Mr. Wall if anyone present wished to be party to this application. There was no response. The application has already been read into the record.
Mr. Cameron C. Troilo, Jr. was sworn in.
Mr. Marshall said that his client plans to renovate the 78,000 square foot France building and build an inn/conference center. Two parcels have been merged to create a 10.75-acre site. The project has been reviewed by the Planning Commission and the Board of Supervisors and has been given preliminary plan approval, for 65,048 square feet of office space in the existing France building, a 3300 square foot branch bank, a 2197 square foot café and a 120 room inn/conference center with 20 employees during its largest shift. He said that the Township and its Economic Development Commission have been very interested in bringing this conference center to the Business Commons.
Mr. Marshall entered as Exhibit A-1 a revised plan.
Mr. Marshall said that a he is seeking zoning variances for the inn/conference center from maximum height of 50 feet to allow a 62-foot building. The additional height is needed to provide 120 guest rooms and all of the required auxiliary services, including 10,000 square feet of conference space, a breakfast service area and an exercise room. The Fire Marshal did not anticipate any difficulty with the five-story building. Mr. Marshall entered as Exhibit A-5 a letter from the Fire Marshal attesting to this. He noted that there would be some changes to the fire hydrants to accommodate the height, and the building would have a sprinkler system.
The applicant would like relief from the required 529 parking spaces to provide 483 parking spaces. The inn is not expected to be busy during the day. The bank and café would be closed during the times of day when the inn is busy. The conditional use approval stated that hours of operation for the bank would be 9:00AM to 5:00PM, Monday through Friday, and for the café 6:00AM to 6:00PM Monday through Saturday. The 63 spaces assigned to these businesses would be available at night for inn /conference center guests. The Township Traffic Engineer has reviewed this and found that “the request for a parking variance for this project is a reasonable request in terms of anticipated parking needs for the project”. Mr. Marshall entered as Exhibit A-2 a letter from Pennoni Associates, stating that the parking would be adequate.
The applicant is seeking relief from the Ordinance to allow two of the 10 handicapped spaces to be 12.5 feet by 18 feet, with remaining stalls to be 9 feet by 18 feet or 9 feet by 20 feet. These spaces would be double striped. All spaces would be ADA compliant. The Ordinance allows up to 75% of parking spaces to be 9 feet by 18 feet. The applicant would like to have 72 spaces at 9 feet by 20 feet, and 6 spaces at 10 feet by 20 feet. The code office staff has encouraged the applicant to be more cautious to modify the size of the parking spaces rather than the number of spaces
Mr. Marshall entered as Exhibit A-8 an aerial photograph of the Business Commons area.
He said that the original signage requests have been modified in an attempt to avoid visibility from the residential neighborhoods. They are now seeking one sign on the building, facing the By-Pass; the second wall-mounted sign request has been removed. In response to Mr. Lionetti’s question, Mr. Marshall said that the sign would face an easterly direction.
Mr. Marshall entered as Exhibit A-3 a photograph of the entrance sign for the conference center. He said that this would be a two-faced sign, placed at the conference center entrance on Pheasant Run Road. It would be 20 square feet, with a height of 7 feet, 3.5 inches, including the planter at the base. This would be in lieu of a second wall-mounted sign.
Mr. Marshall entered as Exhibit A-4 a picture of the Homewood Suites logo sign to be mounted on the building. He said that this sign, which is 66 square feet, would be mounted on the easterly wall of the building between the fourth and fifth floors. In response to Mr. Auchinleck’s question, Mr. Marshall said that there will not be a rooftop sign. This sign would be place at a height not to exceed 55 feet. The scale of the sign is architecturally important. It must be scaled correctly to look right on the wall of the building. There will be a third sign placed on the door of the building.
Mr. Marshall said that the variance to allow parking within the right-of-way is for one space within five feet of Terry Drive. A variance is also needed to allow the dumpster to be placed within ten feet of the property line.
The patio of the café is encroaching into the front yard because of an existing non-conformity of the building. Mr. Marshall said that sidewalks are to be provided so that employees of Business Commons businesses can walk to the café for breakfast or lunch. In response to Mr. Lionetti’s question, Mr. Marshall said that the café will have 50 seats. This is not a cafeteria for the France building employees, only.
Mr. Marshall entered as Exhibits A-6 and A-7 the landscaping plans for the project. They would like to buffer the front of the property the same way that the Sovereign Bank property is buffered.
Mr. Marshall said that the E-22 inn/conference center use has recently been introduced to the Business Commons. This is the only property suitable for such development and it cannot be built without some zoning relief.
Mr. Harwood was sworn in.
Mr. Harwood said that his memo of August 4, 2005, attached to this application should be corrected to show that the sign variances sought are from Sections 1106(H)(4)(a), 1106(H)(4)(b), 1106(H)(4)(c)(2)(a), and 1106(H)(4)(d). He noted that the signs facing the parking lot and Pheasant Run Road are permitted. While the location is lawful, height and size variances are still required.
In response to Mrs. Bowe’s questions, Mr. Marshall said that the height is necessary to accommodate 120 guest rooms and all of the conference and auxiliary spaces. Because the Ordinance requires at least 60 guest rooms, only franchisers are interested in developing the property, and they have all required a larger size inn. Because this is the first E-22 use in the LI District, no parking standards have been set. The standards for hotels were used to estimate the number of parking spaces needed. He noted that while the Township had been interested in bringing a conference center to Newtown, there had not been any study conducted to learn what franchisers might require.
In response to Mrs. Laughlin’s questions, Mr. Marshall said that the building would have a mansard roof, and the height includes air conditioning units. He is not aware of any antennae on the roof. The roof will cover the entire top of the building. He said that the Law School Admissions Council building is 46 feet high.
In response to Mr. Lionetti’s and Mrs. Bowe’s questions, Mr. Marshall said that the third sign requested is a door sign, less than 25 square feet, which is permitted. The wall-mounted sign is 66 square feet on a building with a width of 227 feet. Franchisers have standard signage packages, but there are none smaller for a building of this size.
Mr. Lionetti moved to grant variances from Section 702(B), to permit a building 62 feet in height, from Sections 803(D-1)(5), 803((E-4)(2), 803(E-5)(4), 803(E-22), to permit 483 parking spaces, from Sections 1001(B)(3) and 1001(F)(a) for parking design requirements, from Sections 1106(H)(4)(a), 1106(H)(4)(c)(2)(a), and 1106(H)(4)(d) to permit one wall mounted sign facing an easterly direction no higher than 55 feet, between the fourth and fifth story of the building, and one free standing sign no higher than 7 feet, 3.5 inches, from Section 1000(E) to allow café patio in front yard, and from Sections 1001(F)(6)(b), 1001(F)(6)(c), and 1001(F)(6)(d) for buffering relief, with the condition that landscape buffering is consistent with that shown on Exhibits A-6 and A-7. Mr. Lenihan seconded and the motion passed 5-0.
Continued Application of Newtown Center Associates
Ms. Kelly McGowan represented the applicant.
Mr. Wall asked if anyone present wished to be party to this application. There was no response. The application has already been read into the record.
Ms. Mary Ellen Saylor of Pickering Corts and Sommerson was sworn in.
Ms. McGowan said that soil stripping is not permitted in the PC Planned Commercial District; a variance is needed to permit the soil stripping and to permit soil stripping within 100 feet of the property line. She entered as Exhibit A-1, a reduced copy of the final recorded plan.
Ms. Saylor said that this property has been in development for three years, and has final plan approval for retail, a bank and parking. Exhibit A-1 shows existing features, including existing paving, in the shaded area. This paving is to be demolished. She explained that this is the last parcel of the Village at Newtown Shopping Center to be developed. The lights and storm sewers have already been installed. The building plan requires that existing asphalt be removed. It will be crushed and recycled. There is not a lot of topsoil at the site. It will be stockpiled and reused at the site in the landscaping after the site is regraded.
Ms. Saylor said that this had been a large property that had recently been divided into three parcels. Because the property needs to be regraded, there would be soil stripping within 100 feet of this new property line. Some of the sub-soil from the excavation might be removed from the site, but all topsoil is to be reused on this property.
In response to Mrs. Bowe’s question, Ms. McGowan said that her client would be willing to allow the Township to have access to any unneeded soil.
Mr. Harwood had no comment.
Mr. Lenihan moved to grant a variance from Section 602(A) and 803(G-15) of the Joint Municipal Zoning Ordinance of 1983 to permit removal of 6,000 cubic yards of soil within 0 feet of all boundary lines where a 100 feet buffer is required. Mr. Lionetti seconded and the motion passed unanimously.
Mr. Wall moved to adjourn at 11:00PM. Mr. Lenihan seconded and the motion passed unanimously.
Mary Donaldson, Recording Secretary