ZONING HEARING BOARD
MINUTES OF THE MEETING OF APRIL 5, 2007
The Newtown Township Zoning Hearing Board met on Thursday, April 5, 2007 in the Newtown Township Building. In attendance and voting were: William Wall, Chairman; Victoria Bowe, Vice-Chairman; David Katz, Secretary; Gail Laughlin and John Lenihan, members. Also in attendance were: James J. Auchinleck, Jr., Esq., Solicitor; Michael Solomon, Zoning Officer and Donna D’Angelis, Stenographer.Call to Order
Mr. Wall called the meeting to Order at 7:30 PM.The Pledge of Allegiance
The agenda was reviewed.
Mrs. Laughlin moved to accept the minutes of March 1, 2007 and March 8, 2007. Mrs. Bowe seconded and the motion passed unanimously.
Application of Third Federal Bank
Mr. Katz read into the record the application of Third Federal Bank, Ney Partnership owners requesting a variance from Section 1103(c)(4), 1106(F)(4)(b), and 1106(F)(5)(a) of the Joint Municipal Zoning Ordinance of 1983 to permit replacement of an existing non-conforming 30 square feet sign with a new freestanding 32.66 square feet sign 7 feet high, where no signs are allowed to face the bypass, the maximum size permitted is 12 square feet, and the maximum height is 5 feet . The subject property is 950 Newtown Yardley Road, Newtown, in the OR Office Research Zoning District, being further known as Tax Map Parcel #29-10-75.
Mr. Auchinleck informed the Board that the applicant has asked to continue the application to the May meeting.
Mr. Lenihan moved to continue the application of Third Federal Bank to May 3, 2007. Mr. Wall seconded and the motion passed unanimously.
Continued Application of the Promenade at Sycamore
Mr. Auchinleck reminded those in attendance that the record on this appeal has been closed and this evening the Board is to render a decision.
Mr. Katz moved to grant or deny the following requests from the following sections of the Joint Municipal Zoning Ordinance of 1983 as requested by the Promenade at Sycamore, LP owners:
From Section 603(B)(1):
From Section 803(D-1)(5), 803(E-1)(6) and 803(E-5) as noted:
From Section 903(B)(4)(1) steep slopes 15-25%, allowing a proposed disturbance of 0.003 acres, granting relief of 0.002 acres where a maximum of 0.001 acres is allowed.
From Section 903(B)(4)(2) steep slopes 25% or more, allowing a proposed disturbance of 0.141 acres, granting relief of 0.12 acres where a maximum of 0.021 acres is allowed.
From Section903(B)(5)(b) woodland associations, allowing a proposed disturbed area of 0.307 acres, granting relief of 0.153 acres where 0.154 acres is allowed.
From Section 1000E which requires a front yard of 20 feet and a rear yard of 20 feet the following relief is granted:
From Section 1001(B)(3) , allowing parking stalls of 9 feet wide by 18 feet long where ten feet and 20 feet is required, granting relief of 1 foot wide and 2 feet long, on the condition that the parking stalls shall be double striped.
From Section 1001(F)(4) denying relief such that no off-street parking shall be permitted within front yards or within 5 feet of the side and/or rear property lines in the TC district.
From Section 1002, to permit a loading area or loading areas with the sufficient area for the safe ingress and egress of delivery vehicles as determined by the Township Engineer and safety officials.
All variances granted are subject to the following conditions:
All relief is subject to the condition that the variances granted do not limit the Township’s right to review any conditional use or land development, including consideration of the number of employees proposed, the nature of the actual use, the hours of operation and any other relevant consideration as may be sought in any potential conditional use application.
Mr. Lenihan seconded and the motion passed 4-1, with Mrs. Bowe voting nay.
Continued Application of Grainhouse Developers, LLC
Mr. Auchinleck reminded the Board that this application had been read into the record at a previous meeting.
Mr. Wall asked if anyone wished to be party to the application. Township Solicitor Paul Beckert said that the Board of Supervisors has asked him to represent the Township in support of the application. Mr. Beckert said that the application had been reviewed by the Township’s Board of Supervisors at a work session. A number of issues were of great concern to both the Planning Commission and the Supervisors, who had originally opposed the application. The applicant has revised the application, addressing the concerns of the Board, so that the Supervisors are now in support of the adaptive reuse of this building in the Business Commons. The applicant has eliminated medical uses, and has agreed that the offices would be condominiums. The entire property is to be treated as meadow for stormwater management. With these conditions, and with a condition that if the warehouse use is to be converted to office use, the parking would be reviewed, the Township now supports the application.
Attorney Don Marshall represented the applicant. Scott Mill was sworn in.
Mr. Marshall explained that this is an adaptive reuse of 11 Penns Trail, a 47,819 square foot building on a 4.32 acre parcel in the LI zoning district. He submitted the following exhibits:
The actual usable space in the building is 43,200 square feet of office and 1800 square feet of warehouse. Originally the application had asked for a larger parking variance; the applicant is now asking instead for 70% impervious surface, 194 parking spaces, and relief from JMZO Sections 1002(I) and 1002(B) to allow a loading area and to allow a loading area in the front yard. The property fronts Penns Trail. Because this will now be office use, a loading area near the front entrance is needed, as deliveries will primarily be by Fed Ex and UPS. The medical use has been eliminated from the request. There is to be renovation of the existing building only, no new construction. The building is one story. The applicant has agreed to the conditions outlined by Mr. Beckert, including the elimination of medical use, 70% impervious surface to be treated as meadow, 194 parking spaces, limiting the usable space to 45,000 square feet, exclusive of utilities and common areas, each office to be sold as condominium, and to return to the Township for further review of parking if the warehouse use is ever converted to office.
Scott Mill of Van Cleef Engineering said that he has fully engineered the project, and confirmed Mr. Marshall’s statements. In response to Mr. Wall’s question, he explained that the entire 70% impervious surface will have underground stormwater storage. The stormwater management will be the same as if this had been a meadow with entirely new construction. The system will handle the entire site. The loading berths at the rear are to be removed.
In response to Mr. Lenihan’s question, Mr. Marshall said that, although the entire building is 47,819 square feet, only 43,200 square feet will be for D-1 office use, and 1,800 square feet will be warehouse. The applicant proposes 194 parking spaces where 239 are required. The applicant is not seeking a variance for reduced parking stall size, but will comply with the Ordinance ratio of 10 foot by 20 foot spaces to 9 foot by 18 foot spaces.
Mr. Solomon had no comment.
Mr. Lenihan moved to grant a variance from Section 702(B) to allow no more than 70% impervious surface, and from Section 803(D-1)(5) for 194 parking spaces subject to the following condition:
Mr. Wall seconded and the motion passed unanimously.
Application of Neil Morris
Mr. Katz read into the record the application of Neil Morris, Neil Morris owner requesting variances from Sections 405(B) and 1208(C)(2) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 596 square feet rear addition, a 676 square feet garage addition, a 64 square feet walkway, and a 977 square feet driveway resulting in an impervious surface ratio of 17.04% where the maximum permitted is 13% and 16.8% is existing; and a Special Exception under Section 1208 to permit construction of additions on a non-conforming lot. The subject property is 429 Taylor Avenue, Newtown, in the R-2 High Density Residential Zoning District, being further known as Tax Map Parcel #29-22-10.
Mr. Wall asked in anyone present wished to be party to this application. There was no response.
Mr. Morris explained that he would like to put an addition on the rear of his home and to expand his one-car garage to a two-car garage. In response to Mr. Lenihan’s questions, he said that the addition would be in the same location as the paved area at the rear of the house. The garage would be built over what is currently blacktop. The increase in impervious surface over what currently exists is 0.24%.
Mr. Katz noted that the Board had received a letter from Mr. Morris’ engineers, Urwiler and Walter, confirming that Mr. Morris will use a stormwater management system to contain run-off from all additional impervious surface above 13%. Mr. Morris agreed to such a condition being added to any variance granted.
Mr. Katz moved to grant variances from Sections 405(B) and 1208(C)(2) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 596 square feet rear addition, a 676 square feet garage addition, a 64 square feet walkway, and a 977 square feet driveway resulting in an impervious surface ratio of 17.04% where the maximum permitted is 13% and 16.8% is existing; and a Special Exception under Section 1208 to permit construction of additions on a non-conforming lot, subject to the condition that all run-off above 13% will be contained by a stormwater management system reviewed and approved by the Township engineer. Mrs. Laughlin seconded and the motion passed unanimously.
Continued Application of Leo Holt
Mr. Wall asked if anyone in attendance who had not already been granted party status would like to join the application as a party, either in support or opposed to the application.
Attorney James McMaster asked for party status for his client, Gary Polhemus of 882 Washington Crossing Road. Mr. McMaster said that Mr. Polhemus is in support of the Veteran’s Cemetery.
There was no objection to Mr. Polhemus’ being granted party status.
Ms. Stuckley called Skip Goodnoe. Mr. Goodnoe was sworn in.
In response to Ms. Stuckley’s questions, Mr. Goodnoe said that he had served on Newtown Township’s Board of Supervisors in 1989, and again from 1994 through 2006. He had also served on the Planning Commission from 1989 through 1992. He was not sure of when or how he first became aware of the possibility of locating a Veterans cemetery in Bucks County. There might have been some discussion in the County some time in 2002, but he was not sure. He was aware that at some time in 2004, he learned that the VA had allocated money for purchase of land for a cemetery in Southeastern Pennsylvania, but he could not be sure whether this was the first time he had heard about it, or exactly where he heard it.
Ms. Stuckley entered as Exhibit C-1 a copy of an e-mail sent to her from Betsy Falconi dated February 27, 2004.
Referring to the Exhibit C-1, Mr. Goodnoe said that he did speak to Ms. Falconi at some time in 2004 or 2005, but he did not recall exactly when that conversation took place. He had not discussed any specific number of houses to be built. He had contacted Toll Brothers’ attorney, Ed Murphy, to discuss whether Toll would be interested in working with the VA. At some point in 2005, he met with Toll Brothers and the VA. He flew to Washington, DC for a meeting with the VA and then Congressman Mike Fitzpatrick.
Ms. Stuckley referred to Exhibit A-2, a letter from Toll Brothers to the VA dated March 18, 2005. She questioned Mr. Goodnoe about his attendance at the meeting referred to in the letter.
Mr. Goodnoe said that he had spoken to Mr. Murphy prior to March 18, 2005 to get the process started, but he could not say with certainty when these conversations took place. He did attend a meeting on July 11, 2005, referenced in Exhibit A-3, at which Congressman Fitzpatrick, Toll representatives and VA representatives discussed the possibility of locating a cemetery in Washington Crossing. He did not remember whether any representatives of Upper Makefield or Council Rock School district were in attendance at that meeting.
Ms. Stuckley entered as Exhibit C-2 an aerial photograph dated July 7, 2005.
In response to Ms. Stuckley’s questions, Mr. Goodnoe said that he did not specifically recall the plan outlined over the photograph in Exhibit C-2. Plans were shown at the meeting, but he could not be sure whether this was the same plan. He could see that the plan showed 130 houses on the White tract, plus two existing farm houses; however he could not decipher the writing on the Melsky portion of the plan. Plans presented at this meeting outlined what Toll Brothers felt would be possible for Toll to get value for its property. Some numbers of houses were discussed but no conclusions were reached. The municipalities involved would have to discuss the plans further.
Ms. Stuckley referred to Exhibit J-1 and asked Mr. Goodnoe whether the plans reviewed at the July 11, 2005 meeting were the “framework” referenced in the Toll press release.
Mr. Goodnoe said that some numbers were discussed but nothing was agreed to; the public process was discussed. The Melsky tract was mentioned in some of the discussions. The discussions were about ideas for bringing the Veterans cemetery to southeastern Pennsylvania, in Bucks County. Because he knew Mr. Mangano and Mr. Murphy, Mr. Goodnoe said that he thought he could help with discussions of ways that the cemetery could be built and Toll would get value for its property. Ultimately fewer houses would be built in the Jointure if the cemetery were built on some of the land instead of developing all of Toll’s land for houses. He knew that the JMZO does not allow for a transfer of residential density, but zoning is dynamic, and changes could possibly be made either by amendment or by variance. He participated in a trip to Washington, DC on December 8, 2005, but he did not know exactly who made the transportation arrangements, he thought probably Toll Brothers made the arrangements for the jet. Mr. Palmer, Mr. Rattigan and Mrs. Vicedomini attended the meeting with the VA. Two sites were being considered for the cemetery, and the trip was to promote the Washington Crossing site.
Ms. Stuckley entered as Exhibit C-3 a memo on VA letterhead dated August 19, 2005 and as Exhibit C-4 a memo on VA letterhead dated October 18, 2005. She showed these to Mr. Goodnoe.
Mr. Goodnoe said that he had never seen either memo. He did not know that the Dolington site was the VA’s top priority until after the December 8, 2005 meeting. He did know that Dolington had been chosen before the announcement to the public, but he could not be sure exactly when he learned of the choice.
In response to Ms. Stuckley’s questions, Mr. Goodnoe said that he was aware of a Stipulation and Settlement on the Melsky tract; it is an ongoing challenge between Council Rock School District and the Township. He is no longer in office as a supervisor and no longer attends meetings, so is not certain of its current status.
Ms. Johnson referred to Exhibit A-2, and asked Mr. Goodnoe when the number of acres being discussed changed from 300 to 200.
Mr. Goodnoe said that originally discussion had been about the entire 300 acres of property, but the VA was interested in 200 acres for the cemetery. He was not the only supervisor involved in discussions; Mr. Warden, Mr. West and Ms. Falconi were also involved. Representatives of Wrightstown were also involved. He knew that the VA had discussed Toll’s property in Washington Crossing at some time in the past, and he became involved to help. Ms. Falconi had also been involved in discussions. No numbers for houses were discussed early on. Configurations of housing that were discussed did not meet current zoning, and there was discussion of recommending changes to the zoning, either to rezone through amendment or through variance at the Zoning Hearing Board.
In response to Mr. Hunt’s questions, Mr. Goodnoe said that Dick Weaver was chairman of Newtown Township’s Board of Supervisors in 2005. His initial contact with Toll Brothers had been at his own initiative. He then spoke to the Board of Supervisors. These discussions were all just about “ideas” and no zoning changes were part of the discussion. Talk about measurable ways to bring the cemetery to Washington Crossing began in the summer of 2005. He was aware of the dispute between the School District and the Jointure over the Melsky tract, and knew that the School District might be willing to sell the land. Although Toll Brothers had a certain number of houses in mind at the December meeting in Washington, DC, it was made clear that a zoning change would have to be made and this would have to go through the process. Although Toll had a number in mind, the Jointure representatives in attendance did not necessarily agree on that number. If 200 acres were left open for the cemetery, something would have to change elsewhere. Mr. Goodnoe said that no conclusions were drawn while he was in office.
In response to Mr. McMaster’s question, Mr. Goodnoe said that during the time that he was involved in discussion there had been no mention of a possible entrance to the cemetery. He had assumed it would have been somewhere along Rte 532, a major roadway.
In response to Mr. Beckert’s questions, Mr. Goodnoe said that he was aware of the Dolington Group land challenge in Upper Makefield, a conditional use hearing on the number of homes on the Dolington tract. He said that there has been no agreement orally made to change zoning.
In response to Mr. Rice’s question, Mr. Goodnoe reread exhibit C-1, which makes reference to Bill Bolla and a conditional use hearing. He was not aware that Ms. Stuckley was a party in that hearing. His first participation in discussions about the cemetery was in early 2005, before the March 18, 2005 letter, at which time no mention of a number of units was made. It was his understanding that as many as 430 homes could be built on the Dolington and Melsky tracts under the B-14 use. The Federal Cemetery Overlay Ordinance does not specify any number of homes, but the number would be less than 430, a number that would be in the best interests of the School District, the Jointure and the Veterans.
In response to Mr. Murphy’s questions, Mr. Goodnoe said that some time in early 2005 he had a conversation with Congressman Fitzpatrick. He told Mr. Murphy that Congressman Fitzpatrick would be calling him about the cemetery. He had been aware that earlier talks between the VA and Toll Brothers had ended badly. He asked if Mr. Murphy would contact Toll Brothers to talk about the cemetery. Exhibit A-2 references the initial meeting of Mr. Murphy, Mr. Mangano, and Mr. Goodnoe. In March, the letter discusses 300 acres. In July only 200 acres were discussed. It was his understanding that the VA was interested in 200 contiguous acres; the 300 acres in Dolington are not contiguous.
In response to Ms. Stuckley’s questions on re-direct, Mr. Goodnoe said that he thought that the VA’s money for purchase of the cemetery would have to be re-authorized. He is not sure of the date of his initial involvement prior to the March 18, 2005 letter. As a former Planning Commission member he is aware that the number of units is not necessarily one house per acre in the CM district. The B-14 use probably requires some land set aside for open space, but he is not sure how much.
In response to Mr. Beckert’s questions, Mr. Goodnoe said that Congressman Fitzpatrick was elected in 2004, taking office in 2005, but he does not recall when he first had contact with him about the cemetery. He had been aware that the County Veterans Affairs had been involved in some discussion.
Mr. Hunt called Susan Piette. Ms. Piette was sworn in.
In response to Mr. Hunt’s questions, Ms. Piette said that she works with Terry Clemons, and is the Jointure Solicitor. She prepared the public notices for JMZO 2006-18, and had spoken to Upper Makefield and Newtown employees who actually posted the notices. They provided photographs of the posted notices and affidavits of the postings. The notices were laminated and made into posters, which were affixed to posts. Referring to Exhibit NT-1, Ms. Piette said that the notice was included in this exhibit. The notice was published in the newspaper and mailed to parcels which were to be rezoned. The notices in the paper and those mailed were not identical in appearance, but contained identical information. A letter was sent to the Bucks County Courier Times on September 28, 2006 requesting that the notice be published twice, as is required by the MPC. The MPC does not require publication of the full text of the proposed amendment, only the notice. Item 4 in the packet marked Exhibit NT-1 is the certification of mailing of the public notice. Dianne Clemons of Ms. Piette’s office sent out the notices to addresses provided by the Townships, based on the tax map parcels. The addresses were those provided by the County Board of Assessment; notices were sent by first class mail. Ten landowners were notified of the hearing date and time. Ms. Piette did not go herself to see the notices posted on the properties. Of the ten notices mailed, one addressed to J. Norman Ledham of Woodland Road was returned as undeliverable. This is the proper way to send notification, by US Mail. Only the one notice came back as undeliverable; Ms. Piette assumed that the others were delivered. She said that she had been the Jointure solicitor since 2005, and has done similar notices when parcels have been rezoned, here and in other municipalities.
In response to Ms. Stuckley’s questions, Ms. Piette read into the record from the Pennsylvania Municipalities Planning Code, which requires notification by mail 30 days prior to a hearing. Ms. Piette said that the MPC requires a good faith effort be made, and that is what she did. When Ms. Stuckley held up a piece of paper and asked if this was the notice that had been posted, Ms. Piette said that she did not see the actual poster, but only the copy that she had prepared.
Ms. Stuckley entered as Exhibit C-5, a copy of the notice supplied by Mr. Kuhns, and as Exhibit C-6, a copy of legal notice cut from newspapers (undated).
Ms. Piette reviewed Exhibit C-5 and confirmed that this appears to be the notice she prepared. In response to Ms. Stuckley’s questions, Ms. Piette said that the newspaper clipping of the notice does not include reference to tax map parcel 47-8-14, nor does Exhibit C-5 include tax map parcel 47-8-14. Tax Map parcel number 47-8-14 is listed in Exhibit H of the Ordinance.
Mr. Rice objected that the copy of the Ordinance has not been certified as the adopted ordinance. He was overruled.
In response to Ms. Stuckley’s questions, Ms. Piette said that she did not know if the owner of tax map parcel 47-8-14 had been among the ten landowners who were notified by mail of the proposed amendment. Referring to paragraph 2 of Exhibit C-5, Ms. Piette said that this is a legal description of the property included in the Overlay; some portions of the Melsky parcels 29-7-4 and 47-8-17 are included. She confirmed that the newspaper advertisement refers to 134.06 acres on the Melsky tract, but that she did not survey the property, and is unfamiliar with the acreage. She prepared the notice, but could not confirm which parts of the Melsky tract are not included in the Overlay. She did not know whether Exhibit I of Exhibit NT-1 was the adopted ordinance Again referring the MPC, Ms. Piette said that the properties are required to be conspicuously posted one week prior to the date of the hearing. She did not have input into the number of postings done. She could not confirm the number of acres included in the Overlay district.
Mr. Rice stipulated that the Overlay district created by 2006-18 includes 480 acres.
The witness was excused.
The parties agreed to continue the hearing at the next regular Zoning Hearing Board meeting on May 3, 2007, and if necessary to schedule a special meeting on May 17, to begin at 6:30 PM.
Mr. Lenihan moved to continue the application of Leo Holt to the regular Zoning Hearing Board meeting of May 3, 2007 at 7:30 PM. Mr. Katz seconded and the motion passed unanimously.Mr. Lenihan moved to adjourn at 10:45 PM. Mrs. Laughlin seconded and the motion passed unanimously.
Mary Donaldson, Recording Secretary