ZONING HEARING BOARD
MINUTES OF THE MEETING OF FEBRUARY 7, 2008
The Newtown Township Zoning Hearing Board met on Thursday, February 7, 2008 in the Newtown Township Building. In attendance and voting were: John Lenihan, Chairman; Victoria Bowe, Vice Chairman; David Katz, Secretary and William Wall member. Also in attendance were: James J. Auchinleck, Jr., Esq., Solicitor; Michael Solomon, Zoning Officer and William Campbell, Stenographer.
Call to Order
Mr. Lenihan called the meeting to Order at 7:30 PM.
The Pledge of Allegiance
Approval of Minutes
Mr. Wall moved to accept the minutes of January 3, 2008. Mrs. Bowe seconded and the motion passed 4-0.
The agenda was reviewed:
Application of Zachary Dunkelberger & Christine Haney - 6 Eldridge Road
Mr. Katz read into the record the application of Zachary Dunkelberger & Christine Haney requesting a variance from section 401(C) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 12 feet by 28 feet addition to the existing garage resulting in a 38 feet side yard where 50 feet is required. The subject property is 6 Eldridge Road, Newtown, in the CM Conservation Management Zoning District, being further known as Tax Map Parcel #29-7-24.
Mr. Lenihan asked if anyone wished to be party to the application. There was no response.
Zachary Dunkelberger was sworn in. He explained that he wants to construct an addition to an existing garage. The setback would then be only 38 feet from the property line. There is not enough space to construct the addition on the other side of the garage. The garage addition is for private use only. With the construction his property will still be below the maximum impervious surface. In response to questions from the Board he said that he will be using the garage for storage of a race car, which is his hobby. The trailer currently parked to the side of his property, used to transport the race car, will be moved inside the garage. There will be only one door on the addition. He has spoken to his neighbors about the plan and there has been no objection.
Mr. Solomon had no comment.
Mr. Wall moved to grant a variance from section 401(C) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 12 feet by 28 feet addition to the existing garage resulting in a 38 feet side yard where 50 feet is required. Mrs. Bowe seconded and the motion passed 4-0.
Application of Lawrence and Loretta Thomson – 656 Linton Hill Road
Mr. Katz read into the record the application of Lawrence and Loretta Thomson requesting a special exception under Section 1208(C)(2) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a new single family dwelling on a non-conforming lot and appealing the action of the zoning officer on December 18, 2007 denying the application for a building permit. The subject property is 656 Linton Hill Road, Newtown, in the CM Conservation Management Zoning District, being further known as Tax Map Parcel #29-7-16.
Attorney Don Marshall represented the applicant.
Mr. Lenihan asked if anyone wished to be party to this application. There was no response.
Lawrence Thomson and Kevin Haney were sworn in.
Mr. Marshall explained that the applicant has recently purchased this 1.0175 acre parcel in the Conservation Management Zoning District with the intention of building a single family dwelling serviced by public water and sewer. He said that when Mr. Thomson applied for building permits, the Zoning Officer was of the opinion that under JMZO Section 1208(C)(2) a special exception is needed for construction on a non-conforming lot. The property does meet the requirements of Section 1000(C)(2), which would indicate that a permit should be issued. There is some ambiguity in the two sections, and the applicant is seeking either a ruling in support of his application for a permit, or if not, then a special exception under Section 1208(C)(2) to construct the dwelling.
Mr. Marshall entered the following exhibits:
Mr. Marshall also provided the Board with copies of JMZO Section 1000.
Mr. Marshall noted that the lot line change, which was approved by the Board of Supervisors in 1988, increased the size of the lot, increasing the side yard setback and lot width and decreasing the impervious surface to 8.2%. The lot was non-conforming, in that the existing structure had a 50 foot front yard setback. The applicant received demolition permits and razed the existing structure, with the intention of building a new dwelling which will be more in keeping with the neighborhood. The plans have been approved by the Codes Department.
Referring to JMZO Section 1000(C), which deals with design regulations, Mr. Marshall noted that the lot complies with 1000(C)(2)(a), as it is more than one acre, 1000(C(2)(b), as it will be served by public sewer, 1000(C)(2)(c) as it complies with setback requirements, 1000(C)(2)(d) in that the overall width will be 125 feet, allowing for 40% setbacks, and 1000(C)(2)(e), as there is not a minimum frontage requirement in the Conservation Management Zoning District. JMZO Section 1208(C) requires special exceptions for construction on non-conforming lots.
Mr. Solomon reviewed the requirements of Section 1000(C)(2)(e), and confirmed that there is not a required street frontage in the Conservation Management District.
Mr. Auchinleck briefly reviewed the history of the lot, 29-7-16, which has existed since at least the 1950’s and was made non-conforming by the JMZO of 1983. The lot line change in 1988 created a lawful lot that was less non-conforming, but still non-conforming. The property had belonged to the Yerkes and Malchiondo families, and has passed through a number of estates before being sold to the applicant.
In response to questions from the Board, Mr. Marshall and Mr. Auchinleck briefly discussed the difference between “lawful” and “non-conforming”, and agreed that the Thomson lot is a lawful lot.
Mr. Marshall reviewed the requirements under Section 1208(C)(2) for a special exception and noted that this property’s plans conform to the district, the property is suitable for the proposed plans, will have no adverse impact on neighbors, no negative impact on traffic and no environmental impact. The property will be serviced by public water and sewer.
Mr. Thomson agreed with Mr. Marshall’s summary. He said that he intends to build a new house and was surprised to learn that a special exception was needed.
Mr. Hawley, the builder for this project, said that the plans call for a two-story center hall colonial style house with four bedrooms and 3 ½ baths, with a stone and stucco façade. The house will be set back in line with other homes along the street, and will be more in keeping with the surrounding homes than was the recently razed house that had been on the property.
Mr. Auchinleck advised the Board that it can either rule on Section 1000(C) or consider granting a special exception under section 1208(C). The decision will provide guidance to the Township and future property owners.
Mr. Solomon said that he does not disagree with Mr. Marshall, but feels that Section 1208(C) requires that a special exception must be sought. There is not language in the Ordinance stating when a special exception is not needed. In similar cases a special exception has always been required. He agreed with Mr. Marshall that the property does comply with the requirements of Section 1000(C).
Mr. Auchinleck said that it appears that if a property complies with Section 1000(C) it is not non-conforming, and that this property seems to comply in all respects. He also agreed that the ordinance does need some clarification.
The Board discussed the definition of “non-conforming” as described in Section 1201(C) of the Ordinance. The members agreed that because the language in the two sections discussed, 1208(C) and 1000(C), were not clear, a special exception should be granted to insure that the applicant can build on the property. The Board also agreed that there is need for some clarification within the Ordinance.
Mr. Katz moved to uphold the decision of the Zoning Officer to require a special exception and to grant a special exception under Section 1208(C)(2) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a new single family dwelling on a non-conforming lot. Mr. Wall seconded and the motion passed 4-0.
Mrs. Bowe moved to adjourn at 8:40PM. Mr. Katz seconded and the motion passed 4-0.
Mary Donaldson, Recording Secretary