ZONING HEARING BOARD
MINUTES OF THE MEETING OF SEPTEMBER 6, 2007
The Newtown Township Zoning Hearing Board met on Thursday, September 6, 2007 in the Newtown Township Building. In attendance and voting were: William J. 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 William Campbell, Stenographer.Call to Order
Mr. Wall called the meeting to Order at 7:30 PM.The Pledge of Allegiance
Approval of Minutes
Mrs. Laughlin moved to accept the minutes of August 2, 2007. Mrs. Bowe seconded and the motion passed 4-0-1, with Mr. Lenihan abstaining.
The Agenda was reviewed:
Application of Richard F. Dickinson
Mr. Katz read into the record the application of Richard F. Dickinson, Richard F. Dickinson owner requesting a variance from Section 401B of the Joint Municipal Zoning Ordinance of 1983 and Penn's Preserve Final Plan to permit construction of a 350 square feet paved walkway resulting in 5,642 square feet of impervious cover where the maximum permitted is 5,292 square feet. The subject property is 4 Millstone Drive, Newtown, in the CM Conservation Management Zoning District, being further known as Tax Map Parcel #29-48-42.
Mr. Wall asked if anyone wished to be party to the application. There was no response.
Richard F. Dickinson was sworn in. Mr. Dickinson explained that he wanted to pave a walkway between his patio and his driveway, to provide easier access to his back yard. In response to questions from the Board he said that his home backs onto about 2 acres of open space. He has had no feedback from his homeowners association. His neighbors support the application.
Mr. Solomon had no comment.
Mr. Katz moved to grant a variance from Section 401B of the Joint Municipal Zoning Ordinance of 1983 and Penn's Preserve Final Plan to permit construction of a 350 square feet paved walkway resulting in 5,642 square feet of impervious cover where the maximum permitted is 5,292 square feet. Mrs. Laughlin seconded and the motion passed unanimously.
Application of Jeanine Gracey
Mr. Katz read into the record the application of Jeanine Gracey, Jeanine Gracey owner requesting a variance from Section 803(H-3)(1)(a)(e) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of 348 linear feet of 4 feet high fence a portion of which is in the front yard where there is a 3 feet maximum. The subject property is 131 Hartford Lane, Newtown, in the R1 Medium Density Residential Zoning District, being further known as Tax Map Parcel #29-33-97.
Mr. Wall asked if anyone wished to be party to the application. There was no response.
Jeanine Gracey was sworn in.
Ms. Gracey said that she wanted to fence in her yard, a portion of which fronts onto Hartford Lane. She has two little children and is concerned about their safety, as Hartford is a busy street. In response to questions from the Board, Ms. Gracey said that she is aware of the gas company easement. She has already spoken to a representative of the gas company, who will be on-site when the fence is installed. The fence will be made of narrow pickets, placed about 4 inches apart. The Homeowners Association only requires that fences meet with Township Ordinance requirements.
Mr. Solomon had no comment.
Mr. Lenihan moved to grant a variance from Section 803(H-3)(1)(a)(e) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of 348 linear feet of 4 feet high fence a portion of which is in the front yard where there is a 3 feet maximum. Mr. Katz seconded and the motion passed unanimously .
Application of Newtown Artesian Company
Mr. Katz read into the record the application of Newtown Artesian Company, Newtown Artesian Company owners requesting a variance from Section 401A of the Joint Municipal Zoning Ordinance of 1983 to permit to permit a well to be drilled on the site where a prior decision of the zoning hearing board imposed a condition that no well be drilled. The subject property is 490 Linton Hill Road, Newtown, in the CM Conservation Management Zoning District, being further known as Tax Map Parcel #29-10-57.
Carolyn Edwards represented the applicant.
Mr. Wall asked if anyone wished to be party to the application.
Mr. Auchinleck explained to those residents in attendance that if they wish to be a party to the application they would have the right to cross-examine the applicant and any of his witnesses, present evidence and witnesses, and make any statement concerning the application. Should they disagree with the decision of the Zoning Hearing Board, party status would give them the right to appeal the decision. Anyone present not wishing party status would be allowed to make statements for or against the application after the hearing and before a decision is rendered.
Frank McLane of 495 Linton Hill Road and Robert A. Liscoe of 477 Linton Hill Road were granted party status.
Ms. Edwards said that the Newtown Artesian Water Company (the Company) has owned the property at 490 Linton Hill Road and used it for a storage tank site. In 1989, a condition that stated “no well be drilled on the site” was imposed on a special exception. The Company is seeking relief to have that condition removed. This is the first step before any drilling could be done. The Delaware River Basin Commission (DRBC) and the Pennsylvania Department of Environmental Protection (PADEP) must approve of the drilling. For these two approvals the Company must demonstrate that no neighboring wells will be affected. The Company has the burden of proof that there is no adverse impact on neighbors.
George Forsyth was sworn in. Mr. Forsyth is the general manager of Newtown Artesian Water Company. He has been with the Company for 34 years.
Ms. Edwards entered the following Exhibits:
In response to Ms. Edwards’ questions, Mr. Forsyth said that in 1989, the Company had 7066 customers, that is, 7066 water meters. In 2007, there are 9677 customers. In 1989, the Company had 5 wells, supplying water at a cost of $0.60 per 1000 gallons, supplemented by Bucks County Water and Sewer at a cost of $1.15 per 1000 gallons. Today the cost for Bucks County Water and Sewer is $2.15 per 1000 gallons. The contract from Bucks County Water and Sewer requires the Company to take 1 million gallons per day; that minimum could increase if peak demand increases. The average is taken on any given day of the month. If that average is 2 million gallons, then the Company must take 2 million gallons that month. The Company would like to drill a new well rather than hit the peak.
Ms. Edwards entered as Exhibit A-5, a Focused Management and Operations Audit of the Newtown Artesian Water Company dated July 1996 prepared by the Pennsylvania Public Utility Commission (PUC).
Mr. Forsyth said that this audit, and subsequent audits, recommend that the Company look for alternative sources for water. The current cost of water pumped by the company is $0.78 per 1000 gallons. Any savings would be passed to the customers.
Mr. Forsyth said that testing has shown that a well at the Linton Hill location would produce water of adequate quality and quantity. Testing has shown a draw down on two neighboring properties. The Company must address this, either by drilling new wells for those neighbors, or hooking them up to public water. It would be the customers’ choice. Any new wells would be subject to follow-up testing.
Ms. Edwards entered as Exhibit A-6, a series of photographs of the property.
Referring to the photographs, Mr. Forsyth discussed the property and the proposed well, noting that water from the new well would run through underground pipes to the existing garage, then into the holding tank. The well would be about 24 inches high with a 30 inch by 30 inch cover. He noted that the well would not be visible from the road.
Ms. Edwards entered as Exhibit A-7 a letter from Frederick Masters, attorney for H. Stanford Roberts Nursery, to Brenden Brett dated August 24, 2007.
Mr. Forsyth explained that with the recent sale of the Roberts Nursery property, a 50 million gallon well allocation is no longer needed. Exhibit A-7 is a letter confirming that Roberts groundwater allocations have been assigned to the Company.
In response to questions from the Board, Mr. Forsyth reviewed the growth in number of customers since 1989. He explained that the Company is randomly audited, with the same recommendation to seek alternative sources of water, as a benefit to the customers. The difference is price for Newtown Artesian water is $0.78 per 1000 gallons; Bucks County Water and Sewer water is $2.15 per 1000 gallons. The Toll Brothers homes being built on the Roberts Nursery site will be served by public water.
In response to Mr. Katz’s questions, Mr. Forsyth said that the Company monitored wells on Linton Hill and Washington Crossing Roads, where access could be gained. The test well pumped 150 gallons per minute; a permanent rate would be determined by DRBC. Currently the Company’s other wells pump between 150 and 400 gallons per minute. The Company will work with affected neighbors to either drill new wells or hook up to public sewer. No additional water tank is anticipated in the near future.
In response to Mr. Auchinleck’s questions, Mr. Forsyth said that the 150-400 gallons per minute is the amount for each well. The Company’s five wells are in the same rock zone. The Company pumps 340 million gallons per year, and would like to increase that by 50 million gallons, the allocation from the Roberts Nursery site. The proposed well would be 603 feet deep; the Liscoe well is 190 feet deep; the static water table is 89 feet. The static level would go down during pumping, which would be for 12 hours per day, but did not go below 190 feet during a 72 hour pump test. He was not sure of the draw down of the affected neighboring wells. A new well would be recommended, rather than drilling deeper on existing wells, because the existing wells are difficult to access, and the residents would have an interruption of water during drilling.
Ms. Edwards entered as Exhibit A-8, the resume of R. Scott Hughes, an engineer with Gannett Fleming.
R. Scott Hughes was sworn in. Mr. Hughes is the engineer on this project. He confirmed Mr. Forsyth’s’ testimony. He said that the DEP visited the site to approve the test well. The test was conducted to determine the quality and quantity of water. The test pumped 200,000 gallons per day of water that was tested as of good quality. Nearby wells were monitored during the test, revealing that one well experienced a draw down of 20-25 feet during test period.
Mr. Liscoe asked about water quality during test period.
Mr. Hughes said that the Company provided a 72 hour water supply during the testing period. A new deeper well would address quality concerns.
Mr. Hughes said that the PUC recommended an alternative source of water, as it would be less expensive. Roberts Nursery had four wells for irrigation; those four wells were permitted 50 million gallons per year. Three of these wells have been abandoned, with one well retained by the owner for residential use. Because the commercial nursery use no longer exists, the Company can seek the new well.
Ms. Edwards entered as Exhibit A-9, the DRBC Groundwater Protected Area Regulations for Southeastern Pennsylvania. She read in to the record from Section 10, which provides for protection of existing users, requiring
In response to questions from Mr. McLane, Mr. Hughes said that the well could pump 150 gallons per minute, not more. The well is not pumped 24 hours per day, and the DRBC limits the well to 50 million gallons per year.
In response to Mr. Liscoe’s question, Mr. Hughes said that it is the homeowner’s choice to have either a new well or public water connection.
In response to Mr. Auchinleck’s question, Mr. Hughes said that the Company would pay all fees for connection to public water, but the homeowner would pay the same rate for water as other customers. If a new well is drilled, it would be the Company’s responsibility to address any further draw down. This is regulated by the PUC.
In response to Mr. Katz’s questions, Mr. Hughes said that the wells do not normally pump 24 hours per day; however, if a well is out of use, the other wells make up the difference. During the test, the well pumped for 72 hours straight. Referring to Exhibit A-9, Mr. Hughes said that up to 1 mile from the test site wells could be monitored. In this case, wells 1000 feet away had no impact. Between 750 and 500 feet away there was no impact. Within 500 feet two wells were affected.
In response to Mr. Wall’s questions, Mr. Hughes said that the Company would not have proceeded without the Roberts Nursery wells being abandoned. The new well will affect the rates for customers; with the costs for the drilling of the new well, etc. the rate should be about $1.10 per 1000 gallons. The Company is a public utility with 90 shareholders. It operates for profit.
In response to further questions from Mr. Auchinleck, Mr. Forsyth said that the Company has explored other alternative sources, including Pennsylvania American in Yardley, but these are more expensive than Bucks County Water. The Company does not own any other property that would be suitable for a new well. There are different rock formations at this location, with a deeper water table. It is the best in the service area, which includes parts of Middletown.
Mr. Liscoe said that the Company proceeded with the test well without addressing his concerns. He prefers a private well, and does not want public water. He would like some assurance that if his new well is not good, the pump would be shut down.
Mr. Forsyth agreed that if Mr. Liscoe’s concerns are not addressed, the pumping would be cut back, or shut down.
Mr. Auchinleck explained that this is addressed by DRBC, which holds public hearings. The Zoning Hearing Board does not have the capacity to monitor water.
Mr. McLane said that there is nothing in writing guaranteeing that a new well will be drilled, producing the same quality of water.
Mr. Auchinleck said that the Company will address this. He noted that if the residents should decide at a later time that they would like public water, it can be very expensive.
Alice Gorham was sworn in. Mrs. Gorham lives at 483 Linton Hill Road. She said that there had been no impact on her well during testing, but she is concerned that it could become an issue in the future.
Mr. Auchinleck said that all wells within the affected area, within about a one mile radius, must be mitigated. The Company is obligated to demonstrate that either those homes have not been affected or have been mitigated.
Carin Liscoe of 477 Linton Hill Road was sworn in. Ms. Liscoe said that the Company made no attempt to communicate with her prior to testing, but that her home was affected. She does not trust the Company to do the right thing, and she is concerned that she will be forced to hook up to public water.
In response to Mr. Auchinleck’s question, Mr. Forsyth said that there are 10 to 12 wells in the affected area, about the same as in 1989. In addition to Liscoe’s and McLane’s, four other wells were monitored.
Mr. Liscoe said that he had not been contacted in advance of testing. The Company monitored his well in response to his complaint about water quality.
Mr. Solomon had no comment.
Mrs. Bowe moved to grant a variance from Section 401A of the Joint Municipal Zoning Ordinance of 1983 to permit a well to be drilled on the site where a prior decision of the zoning hearing board imposed a condition that no well be drilled. Mrs. Laughlin seconded and the motion passed unanimously.
Continued Application of James and Darla McLaughlin
Attorney T.J. Walsh represented the applicant. The application had been read into the record at the June 7, 2007 meeting.
Ken Rentz of 176 Durham Road, Lisa Rentz of 176 Durham Road, Steven Liesner of 172 Durham Road and Lynne Liesner of 172 Durham Road asked for party status. There was no objection.
Mr. Walsh said that this application is to subdivide a 2.25 acre lot into two lots, with lot 1 to contain the existing dwelling and garage, and lot 2 to contain a new one-story, 2300 square foot house. Lot 1 would have an impervious surface ratio of 15.75%; lot 2 would have a 14.9% impervious surface. The lot is currently “T” shaped. The subdivision would create flag lots with 50 feet of frontage on Durham Road. The property is in the R-1 medium density zoning district. The plans would make certain improvements to the existing driveway to allow for two cars to pass.
James McLaughlin was sworn in. Mr. McLaughlin said that he bought the property in 1998, and subdivided it in 2001. He built his own house and sold the remaining lots.
Mr. Walsh entered as Exhibit A-1 – the subdivision plan dated May 12, 2000, amended January 21, 2001.
Mr. McLaughlin reviewed the plan, pointing out his own home, a storage building on the proposed lot 2, the Rentz home and the Liesner home. He pointed out that waivers from SALDO section 521 and from the Stormwater Management ordinance section 402.01 had been granted. The proposed new, one-story dwelling is for his wife’s parents, who are moving from Mobile, Alabama. They were victims of hurricane Katrina. He has considered building an in-law suite, or inviting his in-laws to live in his home, but they prefer to have their own home. The new building will be 2275 square feet, one-story and handicapped accessible, with public water and sewer and underground utilities. The home will be accessed by a spur off of the McLaughlin driveway. Mr. McLaughlin currently maintains the existing driveway, with the Liesners and Rentzes maintaining their own spurs of the driveway. The driveway is 12 feet wide; not wide enough for two cars to pass one another. He would widen the driveway to 18 feet, with curbing and lighting.
Mr. McLaughlin discussed some problems with stormwater management that he believes was caused by the development on Kuhars Way. He would like to address these problems as part of the subdivision plan, to help not only his own properties but also his neighbors to the south and the Liesner property. He noted that he was not required to put in any stormwater management because there had been less than 10,000 square feet of impervious surface, prior to the issuance of a variance for the Liesner’s widened driveway.
Ken Rentz, Lisa Rentz, Steven Liesner and Lynne Liesner were sworn in.
Mrs. Rentz asked Mr. McLaughlin what his intentions are for both properties. She noted that in a letter dated June 11, 2007, he had stated that he was planning to sell his current home and build a handicapped accessible home for his own family and his in-laws to live together.
In response to Mrs. Rentz’s and Mr. Liesner’s question, Mr. McLaughlin said that his hardship is providing a home for his wife’s parents, who are victims of a hurricane. They want to have their own home, not an apartment attached to his home. He intends to remain with his family in his existing house.
Mr. Liesner asked whether a deceleration lane would be added to the entrance to the properties, which are already difficult to access. He asked about the proposed address for the new house.
Mr. Walsh noted that traffic issues would be addressed at land development, not as part of this hearing. Engineers are waiting for a response from PennDOT regarding a permit. The addresses for the two lots would be 172A and 172B Durham Road.
In response to Mr. Liesner’s questions, Mr. Auchinleck explained that if the Zoning Hearing Board were to grant relief, with certain conditions, no permits could be issued unless those conditions are met. If the Zoning Hearing Board were to grant relief without conditions, the neighbors have an opportunity to bring their concerns to the Board of Supervisors during the land development phase of the project.
Mr. McLaughlin said that he would attempt to make an agreement among the four families to maintain the widened driveway, but would maintain it himself if no agreement is reached.
In response to questions from the Board, Mr. McLaughlin said that he has owned the property since 1998, and moved to his house in 2001. The Liesners and Rentzes purchased their homes in 2002. He had not been aware of stormwater problems until after the new subdivision on Kuhars Way was built. He has not worked with an engineer to design solutions for the problems yet.
Mr. Walsh said that the applicant hopes to address a regional solution among all of the affected neighbors.
Mr. McLaughlin said that he had not indicated to Prime Builders that his property would be further subdivided.
Mr. Liesner and Mr. Rentz confirmed that they had not been told that the McLaughlin property could not be subdivided. It was their understanding that in order to subdivide, each lot would have to be at least one acre with 100 feet of frontage along Durham Road.
In response to Mr. Walsh’s questions, Mr. McLaughlin said that his hardships include traffic and stormwater issues. He has 400 feet of driveway, 7000 square feet of impervious surface. He had investigated having three entrances for the three current houses, onto Durham Road, but a shared access had been preferred by the Township as a safety measure. There had not been any restriction on the original subdivision, which had proposed 5 lots, each of more than one acre.
Tom Roach was sworn in. Mr. Roach is an engineer with Dumack Engineering, specializing in stormwater management. He has visited the site and helped prepare the plans. The property is grass, surrounded by shrubs. No additional landscaping is proposed, except to comply with the Ordinance’s requirements for buffer planting. No stormwater plans have been fully developed, but diversionary swales to underground detention has been discussed. No perk tests have been done for French drains. The proposal calls for a side entry garage, but this could be changed to reduce impervious surface, however most of the impervious surface is driveway. There is a drop of about ten feet on the property, as it slopes downward toward Durham Road. The property would be divided in half, leaving each lot with 50 feet of frontage along Durham Road. Other than this relief, the applicant will comply with the Ordinance.
In response to Mr. Liesner’s questions, Mr. Roach said that his firm has worked on the project, but he has only been involved for one week. He is aware that Mr. Liesner’s property has stormwater problems, as it is on the downward slope. He is aware that Mr. Dumack had responded to inquiries from Mr. Liesner in 2004, offering suggestions to address some of the stormwater issues.
Mr. Auchinleck explained that the Zoning Hearing Board can only compel Mr. McLaughlin to address stormwater issues on his own property. A regional solution would require the neighbors to cooperate.
In response to Mrs. Bowe’s question, Mr. McLaughlin said that he had hoped that his neighbors would have been willing to work together to address stormwater problems. If his neighbors are unwilling to contribute, he would only address the issues that are on his own property.
In response to Mr. Katz’s questions, Mr. McLaughlin said that the contours of the property were not changed by Prime Builders; the contours have always been as they are. The Liesners and Rentzes had no input with Prime Builders on grading.
In response to questions from the Board, Mr. Roach said that no perk tests have been done, and no formal design has begun. His office is considering swales, underground retention basins and French drains. He believes that the soil will perk. There is no evidence of natural underground springs or subterranean water.
Mr. Wall asked whether the applicant would accept as a condition, if the Board were to grant the variance, that a stormwater management system be designed to retain all additional run-off caused by the increase in impervious surface.
The applicant agreed to accept such a condition.
Mr. Liesner entered as Exhibit I-1, a “rejection of McLaughlin’s Subdivision” letter signed by Lisa Rentz, Ken Rentz, Lynne Liesner, Steve Liesner and Mary Formica. Mr. Liesner reviewed the reasons for rejection outlined in the letter, which include an increase in impervious surface, an increase in traffic along the shared driveway, maintenance issues with access driveway, increased noise and increased water run-off problems.
Mrs. Rentz said that she has concerns about additional traffic onto a very busy street from the driveway. She also said that she would not want the presence of an additional home to destroy the open, rural feel the properties currently have.
Wendy Safee of 158 Durham Road was sworn in. Ms. Safee said that she has lived in her home for 17 years, but did not begin to experience problems with water run-off until the Liesners installed their expanded driveway. She said that she has put in a swale to help with some of the problem, but that she cannot afford to participate in regional solutions to the run-off problems. She said that she is opposed to a variance unless she could be guaranteed that there would be no additional run-off. She noted that she had not received notification when the Liesners had applied for a variance.
William Key of 158 Durham Road was sworn in. He said that he could not afford the financial burden of correcting problems from any additional run-off.
Mr. Auchinleck explained that the Zoning Hearing Board can require the applicant to design and install a stormwater management system, which would be reviewed and approved by the Township engineer, that would retain additional run-off, such that run-off before construction and after would be the same. The Ordinance requires that new construction match pre-construction stormwater conditions.
Mr. Katz agreed that the Board can only address this application, and can only require that the applicant address increased run-off caused by the construction. He suggested that all of the neighbors affected should attempt to communicate to address the current conditions.
Vernon Bramble of 13 Kuhars Way was sworn in. Mr. Bramble said that he is opposed to this subdivision as he had been opposed to the subdivision of property on Kuhars Way. He would like to prevent further deterioration of the properties affected.
Gloria Bramble of 13 Kuhars Way was sworn in. Mrs. Bramble said that Mr. McLaughlin has tried to help with some water problems in the past, but she is concerned with additional problems caused by further subdivision. She expressed some concern that Mr. McLaughlin has not been forthcoming about his plans, and told her that recent clearing work being done was only for a vegetable garden.
Darla McLaughlin was sworn in. Mrs. McLaughlin said that her property is 2.25 acres. The subdivision will create two lots, each more than one acre. She would like to build a house for her parents, who have suffered during Hurricane Katrina. Her mother is 59; her step-father is close to 70. She has attempted to discuss her plans with the neighbors, who have not returned her calls. Her parents would have only one car. The portion of the plan that would widen the driveway is proposed to address complaints from the Rentzes and Liesners.
Mrs. Rentz again stated her concern that water problems will get worse. She has managed to get the problem under control for now, but does not want any change.
Mr. Katz moved to grant a variance from Section 404(B)(&(C) of the Joint Municipal Zoning Ordinance of 1983 to permit subdivision of one lot into two lots resulting in a 15.75% (lot 1) and 14.9% (lot 2) impervious surface ratio where 12% is allowed and a 50 feet lot width where 100 feet is required, subject to the condition that the applicant design and install a stormwater management system to contain additional run-off above the existing 9,368.99 square feet of impervious surface. The project is to be built in accordance with the plan submitted with the application, dated November 30, 2006, with notations along the driveway to be built in accordance with this plan. Mr. Lenihan seconded.
Discussion of motion: Mr. Auchinleck suggested that this could limit the Board of Supervisors to making changes during land development.
Mr. Walsh indicated that the applicant would accept the conditions imposed.
Mr. Katz amended the condition to note that the project is to include the proposed improvements to landscaping and lighting to benefit adjacent neighbors. Mr. Lenihan amended his second and the motion passed 4-1, with Mrs. Bowe voting nay.
Mr. Lenihan moved to adjourn at 12:15 AM. Mr. Katz seconded and the motion passed unanimously.
Mary Donaldson, Recording Secretary