NEWTOWN TOWNSHIP

ZONING HEARING BOARD

MINUTES OF THE MEETING OF May 1, 2008

The Newtown Township Zoning Hearing Board met on Thursday, May 1, 2008 in the Newtown Township Building. In attendance and voting were: John Lenihan, Chairman; Victoria Bowe, Vice Chairman; David Katz, Secretary; Karen Doorley and William Wall members. Also in attendance were: James J. Auchinleck, Jr., Esq., Solicitor, Michael Solomon, Zoning Officer and Justine Gregor, Stenographer.

Call to Order

Mr. Lenihan called the meeting to Order at 7:31 PM.

The Pledge of Allegiance

Approval of Minutes

Mr. Wall moved to accept the minutes of April 3, 2008. Ms. Doorley seconded and the motion passed unanimously.

The agenda was reviewed:

  • Continued Application of Lodestar Investments – 759 Newtown Yardley Road
  • Application of T-Mobile Northeast LLC, 251 Frost Lane
  • Application of Dr. & Mrs. Kim, 27 Sibelius Road
  • Application of James McLaughlin, 174 Durham Road
  • Application of Emmanuel Fashakin, 11 Waterford Place
  • Application of Ali's Igloo Inc., 33 Swamp Road
  • Application of Michelle McNulty, 9 Connover Place
  • Application of Mike & Michelle Reilly, 4 Hillview Drive
  • Application of Michael Sullivan, 178 Durham Road
  • Application of Newtown Venture I Associates LP, Silver Lake Executive Campus, Silver Lake Road & Newtown Bypass

Application of Dr. & Mrs. Kim

Mr. Katz read into the record the application of Dr. & Mrs. Kim, owners, requesting a variance from section 401(B) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 700 square feet pool and spa, 500 square feet of decking and coping, 24 square feet equipment pad, 185 square feet cabana, 145 square feet fish pond, and a 177 square feet walk resulting in a 24.33% impervious surface ratio where 20% is the maximum permitted. The property is 27 Sibelius Road, Newtown in the CM Conservation Management Zoning District also known as Tax Map Parcel # 29-20-31.

Mr. Auchinleck informed the Board he had received a letter from Dr. Kim dated 4/29/08 requesting that the application be continued to June 5, 2008, and stating he wishes to present the application to the Board of Supervisors at their May 15, 2008 meeting.

Ms. Doorley made a motion to continue the application of Dr. & Mrs. Kim to June 5, 2008. Ms. Bowe seconded and the motion carried 5-0.

Application of James McLaughlin

Mr. Katz read into the record the application of James McLaughlin, owner, for a variance from section 404(C) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 2-car garage addition to an existing 2-story single-family detached dwelling resulting in a 40 feet front yard setback where 60 feet is required. The subject property is 174 Durham Road, Newtown in the R-1 Medium Density Zoning District also known as Tax Map Parcel #29-4-38.

Mr. Auchinleck informed the Board that he had received an email correspondence from Mr. McLaughlin requesting that the application be continued until June 5, 2008.

Ms. Doorley made a motion to continue the application of James McLaughlin to June 5, 2008. Mr. Wall seconded and the motion carried 5-0.

Application of Emmanuel Fashakin

Mr. Katz read into the record the application of Emmanuel Fashakin, owner, for a variance from Section 401(C) of the Joint Municipal Zoning Ordinance of 1983 as affected by the Waterford Estates Final Plan to permit construction of a 750 square feet pool, 1,100 square feet of decking, 120 square feet of coping and a 7,200 square feet tennis court resulting in an impervious cover of 16,410 square feet where 7,718 square feet is permitted and a 20.2 square feet side yard where 50 feet is required and a 22.9 feet rear yard setback where 60 feet is required. The property is located at 11 Waterford Place, Newtown in the CM Conservation Management Zoning District also known as Tax Map Parcel #29-7-17-7.

Mr. Auchinleck informed the Board that he h ad received a correspondence from Mr. Fashakin dated 4/29/08 requesting that the application be continued until June 5, 2008.

Mr. Katz made a motion to continue the application of Emmanuel Fashakin to June 5, 2008. Ms. Bowe seconded and the motion carried 5-0.

Application of Mike & Michelle Reilly

Mr. Katz read into the record the application of Mike & Michelle Reilly, owners, requesting a variance from the Joint Municipal Zoning Ordinance of 1983 as affected by the Final Plan of Foxhall Estates to permit an in-ground swimming pool with patio and walk resulting in impervious coverage of 8,444 square feet where the maximum permitted is 6,000 square feet. The property is 4 Hillview Drive, Newtown, in the CM Conservation Management Zoning District also known as Tax Map Parcel #29-16-2-6.

Mr. Auchinleck informed the Board that he had received a fax correspondence from Mr. & Mrs. Reilly dated 4/30/08 requesting that the application be continued until June 5, 2008.

Ms. Bowe made a motion to continue the application of Mike & Michelle Reilly to June 5, 2008. Mr. Katz seconded and the motion carried 5-0.

Application of Michael Sullivan

Mr. Katz read into the record the application of Michael Sullivan, equitable owner, requesting a variance from section 404(B) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a single family detached dwelling with a rear patio resulting in an 18.1% impervious surface ratio where the maximum permitted is 12% (15% permitted by previous variance). The property is 178 Durham Road in the R-1 Medium Density Zoning District also known as Tax Map Parcel #29-4-37-1.

Mr. Auchinleck informed the Board that he had received a letter from Mr. Sullivan’s attorney dated 4/28/08 requesting that the application be continued to June 5, 2008.

Ms. Doorley made a motion to continue the application of Michael Sullivan to June 5, 2008. Mr. Katz seconded and the motion carried 5-0.

Continued Application of Lodestar Investments – 759 Newtown Yardley Road

Mr. Auchinleck reminded the Board that this application has already been read into the record, noting that the hearing was originally scheduled for April 3, 2008, at which time the request for continuance was received.

Charles Marte, Heath Dumack of Dumack Engineering, Eric Heisler from the contractor for Lodestar, and Art Loretti and Chuck Cook from LC Building Group were present for the applicant and were sworn in.

Mr. Lenihan asked if anyone wished to be party to this application. There was no response.

Mr. Marte summarized testimony, noting that they were requesting a number of variances related to the size of the lot.

The following exhibits were presented:

A-1: Indicating the chain of title for the three relevant tax map parcels, including the property at 759 Newtown Yardley Road (which contains an old dilapidated dwelling), the Newtown Swim Club, and Headley Trace.

A-2: A complete stack of deeds for the subject property TMP #29-10-053 dated from 1/30/29 to present.

A-3: Deeds for property TMP #29-026-151 dated from 3/8/29 to present.

A-4: Deeds for property TMP #29-010-052-2 dated from 5/1936 to present

Mr. Auchinleck confirmed that the deeds indicated single and separate ownership.

A-5: Summary of impervious surface calculations, including building, driveway and sidewalk, totaling 4,591 sq. ft. It was clarified that the yellow area indicated property dedicated to the township, and that applicant could count the ground given away from legal right of way in the calculations. The applicant is requesting 27.3% impervious surface.

Mr. Marte noted variances are being requested for minimum gross site area, minimum lot area, minimum impervious surface area (noting Headley has 60% allowed impervious surface), and building set backs.

Mr. Dumack testified that figures given by Mr. Marte were accurate and correct; he had nothing to add. He clarified that the existing building, built in the 1920’s would be demolished. Mr. Marte said the Joint Historic Commission had viewed the house; he did not receive a letter or document from the commission.

Mr. Katz clarified that the applicant was asking for 14% relief from impervious coverage allowances. Mr. Dumack said they have done infiltration studies; there is a ballast pit in the rear of the property that will collect water from the downspouts and a French drain on the westerly side of the driveway. It was clarified that the township engineer would be reviewing the stormwater management plan.

In response to a question from Mr. Katz, Mr. Marte clarified that there would be no quasi-commercial use of the property; the applicant agreed that the proposed dwelling would be sold as a single family residence.

Mr. Solomon had no comment. There was no public comment.

Mr. Wall made a motion to grant variances:

  • from Section 405(B) of the Joint Municipal Zoning Ordinance of 1983 to allow a gross site area of 18,174 sq. ft, representing a relief of 11,826 sq. ft.; to allow a minimum lot area of 13,198 sq. ft, representing relief of 16,802 sq. ft.; to allow an impervious surface ratio of 27% where 13% is allowed, representing relief of 14%;
  • from Section 405(C) for a minimum lot width at B.S.B.L. of 83ft., representing a relief of 17 ft; to allow a minimum side yard setback of 40 ft. aggregate, representing a relief of 10 ft. aggregate;

and to grant a special exception from Section 1208(C)(2) to allow the construction of a new single family detached dwelling on a nonconforming lot, with the condition that the dwelling is to be sold as a single family residence not as a provision of the relief.

Mr. Katz seconded the motion, which carried 5-0.

Application of T-Mobile Northeast LLC, 251 Frost Lane

Mr. Katz read into the record the application of Appeal #818-08, application of T-Mobile northeast LLC., lessee, Newtown Artesian Water Company, owner, requesting a variance from section 404 (C) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 10 feet by 20 feet concrete pad and equipment cabinets housing telecommunications radio equipment resulting in a 6 feet rear yard setback where 60 feet is required. The property is 251 Frost Lane, Newtown in the R-1 Medium Density Residential Zoning District, being further known as Tax Map Parcel # 29-10-70.

Present for the applicant were Jack Wuerstle, Esq. of Riley, Riper, Hollin & Colagreco representing T-Mobile; Larry Washington from Smart Link; Eric Ritter from CMX Technology, and Bassem Iskander, radio frequency engineer from T-Mobile. All were sworn in.

Mr. Lenihan asked if anyone wished to be party to this application. There was no response.

Mr. Wuerstle distributed the following exhibits:

A-1: Deed

A-2: Letter of Authorization, dated 3/5/2008, from Newtown Artesian Water Company

A-3: Site Plan, prepared by CMX (last revised 3/5/08)

A-4 Curriculum Vitae of Bassem A. Iskander

A-5 FCC License

A-6: EMF Report, prepared by Kenneth F. Foster & Associates

Mr. Wuerstle explained that the issue involved the placement of equipment cabinets; they are proposing the placement of a concrete pad within the 6’ rear yard setback area.

Mr. Wuerstle summarized the testimony, noting that up to five additional equipment cabinets could be accommodated on the pad and that the overall height of the equipment would be 69’ (a typo on the application transposing the numbers to 96’ was noted – the correct height was confirmed at 69’). He noted that the reason for the location is the necessary proximity to the water tanks, the cabinets would be inconspicuous, and conflict with other underground pipes, etc. would be avoided. Mr. Wuerstle said that an ENF report could be provided that states that the antennas do not produce hazard or interfere with any other services, such as TV.

Each witness confirmed that the testimony offered by Mr. Wuerstle was an accurate summary.

Mr. Iskander produced two coverage charts, Exhibit A-7 indicating existing T-Mobile coverage, and Exhibit A-8 showing future T-Mobile coverage with the proposed site. He clarified that only the wireless carrier is scheduled for use of the service at the water tower, and any additional carriers would add antennas to the water tank as well as their own concrete pads. Mr. Iskander explained additional cabinets could be added for additional frequency bands or increased site traffic; he said the antennas should handle any new technology.

Mr. Washington testified to the accuracy of the information in the application, with the exception of the transposed numbers indicating antenna height (69’ rather than 96’) in the addendum to the application. Mr. Iskander testified that there would be no increase in electro-magnetism, which would still be well below the allowed limit.

In response a question by Mr. Katz, Mr. Washington said the site would not be manned, and that the service maintenance intervals were usually 4-6 weeks, the length of service usually being about one hour.

Mr. Solomon had no comment. There was no public comment.

Ms. Bowe made a motion to grant the request for a variance from section 404 (C) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 10 feet by 20 feet concrete pad and equipment cabinets housing telecommunications radio equipment resulting in a 6 feet rear yard setback where 60 feet is required. Mr. Wall seconded the motion, which carried 5-0.

Application of Ali's Igloo Inc., 33 Swamp Road

Mr. Katz read into the record the application of Appeal #822-08, application of Ali’s Igloo Inc., lessee, Vahakn and Melanee Derassouyan, owners, requesting a variance from section 1106(G)(4(b) of the Joint Municipal Zoning Ordinance of 1983 to permit a 20 square feet wall-mounted sign where 2 square feet is the maximum permitted. The property is 33 Swamp Road, Newtown in the CC Convenience Commercial District also known as Tax Map Number 29-11-83.

Donna Wengel of Stuckert & Yates and Vaughn Derassouyan were present and sworn in.

Mr. Lenihan asked if anyone wished to be party to this application. There was no response.

Ms. Wengel presented a summary of the testimony. The following exhibits were presented:

A-1: recorded site plans, noting the addition of construction which was approved for construction

A-2: conditional use approving use as ice cream store

A-3: a sketch of the sign, which is 10’ x 2’ = 20 square feet

A-4: a photo of Ali’s sign graphically depicted in its proposed location on the shed roof.

It was noted that the sign would fit in with others at the site.

Mr. Derassouyan testified that the information presented was accurate. He clarified that he was a principal of Ali’s and that the names on the application were that of his parents, the owners.

Ms. Doorley noted that the sign needed to be consistent, and that this sign was larger than many others granted to other businesses.

Mr. Solomon had no comment. There was no public comment.

Mr. Lenihan made a motion to grant the request for a variance from section 1106(G)(4)(b) of the Joint Municipal Zoning Ordinance of 1983 to permit a 20 square feet wall-mounted sign where 2 square feet is the maximum permitted. Ms Bowe seconded the motion, which carried 5-0.

Application of Michelle McNulty, 9 Connover Place

Mr. Katz read into the record the application of Appeal #824-08, application of Michael and Michelle McNulty, owners, requesting a variance from section 803(H-3)(1)(b) of the Joint Municipal Zoning Ordinance of 1983 to permit a 6 feet high solid fence where any fence over 5 feet high must have effective apertures of 25 % of the surface area. The property is 9 Conover Place in the R-1 Medium Density Residential District also known as Tax Map Parcel #29-32-16.

Michael McNulty was present and sworn in.

Mr. Lenihan asked if anyone wished to be party to this application. There was no response.

Mr. McNulty presented Exhibit A-1, a photograph of the proposed fence. He said they were requesting a solid 6’ fence for greater safety than that provided by a 5’ fence and for a visual barrier to Swamp Road; he said a lattice top would be too expensive. Mr. McNulty said he has discussed his plan with the Tyler Walk Homeowners Association and they said they would approve what the township allows; Mr. McNulty will present the ZHB decision at the homeowners association’s next meeting. He clarified that letters informing his neighbors had been sent; he has received no objections. Mr. McNulty clarified that the fence would run the entire length of the back and sides of the rear of the property.

Mr. Auchinleck clarified that the rear of the property borders Helen Randall Park and there is an access road running behind the property.

Mr. Katz made a motion to grant a variance from Section 405(B) of the Joint Municipal Zoning Ordinance of 1983 to allow the erection of a 6 foot high solid fence in the rear yard. Ms. Doorley seconded the motion, which carried 5-0.

Application of Newtown Venture I Associates LP, Silver Lake Executive Campus, Silver Lake Road & Newtown Bypass

Mr. Katz read into the record the application of Appeal #823-08, application of Newtown Venture I Associates, L.P., owner requesting variances from Sections 803(D-1)(5), 1001(F)(5)(b), 902(B)(1)(b)(4), 903, 1001(B)(3), and 1001(C)(1) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of two new 3-story office buildings, cafeteria and parking, allowing the proposed cafeteria/fitness center without additional parking, allowing the existing storm water management easement to be included in the base site area, allowing the installation of headwalls, storm pipes and grading and new paving curbs and sidewalks in protected natural resource areas, allowing the peak storm water rate criteria to be exceed by 15%, allowing 75% of the parking spaces to be 9 feet by 18 feet and handicapped spaces to be 8 feet by 18 feet with 5 feet and 8 feet wide aisles and allowing a 42 feet wide entrance with left and right turn exits instead of the maximum 35 feet. The property is Silver Lake Road and Newtown Bypass in the OR Office Research Zoning District also known as Tax Parcel Numbers 29-10-43 and 29-10-43-1.

Present for the applicant was Ed Murphy, Esq.; Anthony Noche, Sr. Vice President, Newtown Venture I Associates; and Mark Mayhew of Taylor, Wiseman & Taylor. All were sworn in.

Mr. Murphy presented a booklet of exhibits designated A-1, noting that copies of the booklet had been given to the Board of Supervisors and the Planning Commission. He said the applicant was requesting relief to enable them to proceed with land development plans. Mr. Murphy said they have received favorable recommendations from the Supervisors and Planning Commission.

Mr. Murphy noted that the parcel was larger before a portion was donated for the Newtown Bypass. He said that 122,000 sq. ft. was developed on the original 35 acres and they are looking to develop 156,852 sq. ft., to include two 3-story office buildings, a cafeteria, a fitness center and parking. He noted that a tenant in 41 University will expand and may relocate their corporate office from New Jersey; if so, they would occupy the entire 150,000 sq. ft.

Mr. Murphy summarized testimony, noting:

  • The existing stormwater was installed in anticipation of the entire site being developed, with base site calculations. They are looking for appropriate calculation of stormwater; the existing stormwater basin is already handling runoff and they do not want to be required to over-engineer the stormwater management. At 50% impervious surface, they will also on infiltrate as required.
  • The cafeteria and fitness center would occupy less than 400 sq. ft.; no additional parking would be required for that area since the facilities would only be open to employees, for whom parking is already allotted.
  • They are looking for relief to install new headwalls and piping, to modify the basin to fall into closer compliance with ordinances passed since the original development.
  • They are requesting the parking stall sizes be permitted to be the same ratio as in the Newtown Business Commons, noting handicapped spaces would be ADA compliant.
  • The Silver Lake Road entrance driveway would be 42’ long.

Mr. Noche and Mr. Mayhew testified that the testimony given by Mr. Murphy was fair and accurate.

Mr. Wall inquired about the extent of the disruption of existing floodplain in the natural resource district. Mr. Mayhew reviewed the plan, noting that the culvert/driveway crossing has already been constructed; it is currently gravel and will be paved over the same existing area. The base will be replaced for sufficient surface. Mr. Mayhew said there are presently no headwalls in the basin, grading and additional pipes are needed; headwalls are needed for inflow from the parking lot to the basin. He noted that the outlet structure under Silver Lake Road into the watercourse and Core Creek will not be changed. Mr. Mayhew testified that the basin was originally constructed for 50% impervious surface on the site.

Mr. Murphy noted March 6, 1977 approval to install Drive B. He clarified that the green area would remain green. Mr. Mayhew described the infiltration plan and methods. It was noted that a green roof was planned for the roof of the cafeteria and fitness center; in response to a question from a Board member, they did not consider solar panels.

Mr. Noche said they would probably not build the cafeteria and fitness center if the major single tenant does not occupy the space, unless demanded by the tenant. The Board felt that parking relative to the cafeteria and fitness center would not be an issue if only tenants of the occupant(s) were allowed access to the facilities.

Mr. Solomon had no comment. There was no public comment.

Mr. Katz made a motion to grant the following variances from the Joint Municipal Zoning Ordinance of 1983:

  • From Sections 803(D-1)(5) and 101(F)(5)(b), to permit the proposed cafeteria/fitness center to be building without the need to provide additional parking (787 spaces provided), with the condition that the cafeteria/fitness center would only be accessible by tenants of the building.
  • From Section 902(B)(1)(b)(4), to permit the existing stormwater management easement to be included in the base site area;
  • From Sections 903(B)(1)(2), 903(B)(4), 903(B)(13)(e)(3)(j), 903(B)(13)(e)(4)(d)(i) & (ii), and 905, for relief from the natural resource restrictions of the JMZO regarding lakes, pond, wetlands, and Waters of the Commonwealth, steep slopes, and activities and uses in Zone’s One and Two of the Riparian Buffer Overlay Zone, and Floodplain District requirements to allow the installation of new headwalls, storm pipes and grading within the existing stormwater basin and to allow the installation of new paving, curbs, sidewalks, and grading to the existing unimproved road (Drive ‘B’ crossing);
  • From Section 903(B)(9), to permit the applicant to exceed the peak storm water rate criteria by 15% since the existing storm water management facility was designed based on development on the entirety of the premises and not just the undeveloped remainder;
  • From (1001)(B)(3), to allow 75% of the proposed parking spaces to be 9’ wide x 18’; deep and to use 8’ x 18’ handicap spaces with 5’ and 8’ wide aisles per the American Disability Act;
  • And from Section (1001)(C)(1), to permit a 42’ wide driveway entrance allowing left and right turn exists as opposed to the 35’ maximum width otherwise permitted.

Adjournment

On motion by Ms. Bowe and without objection, the meeting was adjourned at 9:30 pm.

 

Respectfully Submitted:

 

Leslie P. Dunleavy, Acting Recording Secretary