ZONING HEARING BOARD
MINUTES OF THE MEETING OF JANUARY 8, 2009
The Newtown Township Zoning Hearing Board met on Thursday, January 8, 2009 in the Newtown Township Building. In attendance and voting were: Karen Doorley, John Lenihan, David Katz and Mario Lionetti, members. Also in attendance were: James J. Auchinleck, Jr., Esq., Solicitor, Richard O’Brien, Codes Officer and Justine Gregor, Stenographer.
Call to Order
The meeting was called to order at 7:30 PM.
The Pledge of Allegiance
Reorganization of Board
Mr. Katz moved to nominate Mr. Lenihan to serve as chairman. Mrs. Doorley seconded and the motion passed 4-0.
Mr. Lenihan moved to nominate Mr. Katz to serve as vice chairman. Mrs. Doorley seconded and the motion passed 4-0.
Mr. Lenihan moved to nominate Mrs. Doorley to serve as secretary. Mr. Katz seconded and the motion passed 4-0.
Mr. Lenihan moved to reappoint James J. Auchinleck, Jr., Esq., as solicitor. Mrs. Doorley seconded and the motion passed 4-0.
Mr. Lenihan moved to reappoint Mary Donaldson as recording secretary. Mr. Katz seconded and the motion passed 4-0.
Mr. Lenihan moved to appoint Bucks County Court Reporters as stenographers. Mr. Katz seconded and the motion passed 4-0.
Approval of Minutes
Mr. Katz moved to accept the minutes of November 6, 2008. Mrs. Doorley seconded and the motion passed 3-0-1, with Mr. Lionetti abstaining.
The agenda was reviewed:
Continued Application of Neil Morris
Mrs. Doorley read into the record the continued and amended application of Neil Morris, owner, requesting a variance from Section 405(B) of the Joint Municipal Zoning Ordinance of 1983 to permit an increase of the existing driveway and a walkway by adding 371 square feet resulting in an impervious surface ratio of 20.5% where the maximum permitted by ordinance is 13% and by prior variance is 17.04%. 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.
Attorney Maureen Carlson represented the applicant.
Neil Morris and Evan Pellegrino were sworn in.
Mr. Lenihan asked if anyone wished to be party to the application. There was no response.
Ms. Carlton reviewed the amended application, which enlarges the existing driveway and includes some existing construction for a total impervious surface of 20.05%. A stormwater infiltration system had been installed to capture 75% of run-off from the roof area. The remaining roof area will be tied into the system and an additional stone bed gully will be installed. The stormwater management system has been reviewed by the Township Engineer, Michele Fountain, who found it adequate. The applicant needs to enlarge the driveway in order to access the second bay of a two-car garage.
Mr. Morris said that he cannot enter his garage with the existing driveway. An additional 301 square feet will be added. This will bring the total driveway to 1042 square feet. The original driveway, prior to his remodeling projects, had been 1341 square feet.
Engineer Evan Pellegrino of Erwhiler and Walter said that he has drawn the plans for the driveway expansion. He reviewed the plans to adjust the existing stormwater management system to capture the run-off from the additional impervious surface, or divert it to a trench to be installed along the side of the property.
Ms. Carlton said that the applicant has worked with his engineer at the direction of the Board of Supervisors to satisfy next door neighbors, the Lumpkins. She entered as Exhibit A-1 a letter from herself and Keith Brown, attorney for the Lumpkins, to Township Solicitor Jeffrey Garton, confirming that all parties are in agreement to this proposed plan. Ms. Carlton further explained that the Supervisors had been concerned about this additional impervious surface. She noted that a portion of the other next door neighbor’s driveway encroaches onto the Morris property. This amounts to 0.85% of the impervious surface. This was a non-conforming lot when purchased and a portion of the new impervious surface is from an overhang on the deck.
Mr. Lenihan said that he had visited the site and asked that the applicant show on the plan where the trench area would be. He also asked how the original driveway was larger than the proposed new driveway.
Mr. Morris showed the trench on the plan and noted that the original driveway had extended farther into the back yard.
In response to Mr. Katz’s questions, Ms. Carlton explained that only Mr. and Mrs. Lumpkin had expressed that they would be parties in opposition to the application. Some neighbors had thought that the proposed driveway was larger, but had been mistaken and they no longer object. The Lumpkins have indicated that they are satisfied with the current application.
In response to questions from Mr. Auchinleck, Mr. Morris and Mr. Pellegrino reviewed the driveway width. It is 12 feet wide on these plans, but had been slightly wider on the original application. At the driveway entrance and at the garage entrance the driveway is wider. In reviewing the dimensions referenced in Exhibit A-1, Mr. Morris explained that the original plan had extended the driveway, but the current plan has the driveway ending one foot beyond the second garage bay.
Ms. Carlton entered as Exhibit A-2 the plan dated June 26, 2008, last revised December 4, 2008. This plan is referenced in the letter, Exhibit A-1.
Mr. O’Brien had no comment.
Mr. Katz moved to grant a variance from Section 405(B) of the Joint Municipal Zoning Ordinance of 1983 to permit an increase of the existing driveway and a walkway by adding 371 square feet resulting in an impervious surface ratio of 20.5% where the maximum permitted by ordinance is 13% and by prior variance is 17.04%, subject to the condition that the completed project meets points stipulated in Exhibits A-1 and A-2. Mrs. Doorley seconded and the motion passed 4-0.
Application of Dr. Timothy Ireland, Newtown Veterinary Hospital
Mrs. Doorley read into the record the application of Dr. Timothy Ireland, Newtown Veterinary Hospital, lessee, Doug Terry, CRB, owner, requesting variances from Sections 1106(F)(4)(b) and 1106 (F)(5) of the Joint Municipal Zoning Ordinance of 1983 to permit a 20 square feet, 6 feet high free standing sign where 16 square feet is the maximum permitted size and 5 feet is the maximum permitted height. The subject property is 107 Penns Trail, Lot 24, Newtown Business Commons, Newtown, in the L-I Light Industrial Zoning District, being further known as Tax Map Parcel #29-10-95.
Mr. Lenihan asked if anyone wished to be party to this application. There was no response.
Timothy Ireland and Keith Wilson were sworn in.
Dr. Ireland said that at the request of the Board of Supervisors he has altered the design of the sign so that the height variance is no longer required. The new sign will be 20 square feet, and is similar in size to other signs along Penns Trail. The new veterinary hospital has only one entrance on a busy road where cars go by at high speeds, so the size is necessary to alert pet owners to the location, particularly at night. The new sign will be smaller than the one the hospital has at its other location on Newtown Yardley Road, which is 24 square feet. Dr. Ireland explained that he is moving his medical and surgical facilities to the new location, but plans to keep both facilities. He entered as Exhibit A-1 a revised drawing of the proposed sign.
Mr. O’Brien noted that the property had been posted on December 30, 2008. He had no other comment.
Mr. Lenihan variances from Section 1106(F)(4)(b) of the Joint Municipal Zoning Ordinance of 1983 to permit a 20 square feet free standing sign where 16 square feet is the maximum permitted size, as depicted in Exhibit A-1. Mr. Katz seconded and the motion passed 4-0.
Application of Fred Hand
Mrs. Doorley read into the record the application of Fred Hand, owner, requesting a variance from Section 401(C) of the Joint Municipal Zoning Ordinance of 1983 as affected by the Foxhall Final Plan to permit a 1,025 square feet paver patio and walkways resulting in an impervious surface coverage of 6,366 square feet where 6,000 is permitted and a rear yard set back of 34 feet where 50 feet is required.. The subject property is 3 Hillview Drive, Lot 3 Foxhall Estates, Newtown, in the C-M Conservation Management Zoning District, being further known as Tax Map Parcel #29-16-2-12.
Mr. Lenihan asked if anyone wished to be party to this application. There was no response.
Fred Hand was sworn in.
Mr. Hand asked for a variance from the impervious surface and setback ordinances to build a patio at the rear of his home. This is a new construction and there is no existing patio. His neighbors have been notified of his plan and have no objection. His home backs onto open space and Gaucks Lane. He entered as Exhibit A-1 a letter from the Fire Marshal confirming approval of the proposed wood burning fire pit. The Board of Supervisors had asked the Fire Marshal to review the plan.
Mr. O’Brien noted that the property had been posted on December 30, 2008, but had not additional comment.
Mr. Katz moved to grant a variance from Section 401(C) of the Joint Municipal Zoning Ordinance of 1983 as affected by the Foxhall Final Plan to permit a 1,025 square feet paver patio and walkways resulting in an impervious surface coverage of 6,366 square feet where 6,000 is permitted and a rear yard set back of 34 feet where 50 feet is required. Mr. Lionetti seconded and the motion passed 4-0.
Application of OHB Homes Inc.
Mrs. Doorley read into the record the application of OHB Homes Inc., equitable owner, William and Karen Rambo, Karen Goodnoe, and Nicholas and Virginia Kownurko, owners requesting a variance from Section 903(B)(a)(1)&401(B) and 903(B)(7) of the Joint Municipal Zoning Ordinance of 1983 to permit disturbance of 78% of steep slopes where 25% disturbance is allowed and disturbance of 14.9941 acres or 322.73% of agricultural soils where 25% disturbance is permitted. The subject property is the Goodnoe Tract, Eagle Road south of Wrights Road, Newtown, in the C-M Conservation Management Zoning District, being further known as Tax Map Parcel #29-3-40-1, 29-3-40-2, 29-3-40-3 and 29-3-40-4.
Attorney Ed Murphy represented the applicant.
Mr. Lenihan 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. He asked if anyone wished party status.
John Koopman of Begley Carlin & Mandio asked for party status on behalf of Newtown Township. Paul Furlong of 4 Blayze Court, James McCrane of 3 Blayze Court and Tony Lauro of 4 Blayze Court asked for party status. Resident Marty Sommer of 250 Eagle Road said that he would like to make public comment at the appropriate time.
Mr. Murphy had no objection; Mr. Auchinleck granted party status to all.
William Briegel, Vice President for land development for Orleans Homebuilders and Timothy Woodrow, project engineer, were sworn in.
Mr. Murphy confirmed that he has spoken with Mr. Auchinleck and Mr. Koopman and they have agreed that these two witnesses will give testimony this evening, with cross examination and presentation of other witnesses to take place at a future meeting.
Mr. Murphy reminded the Zoning Hearing Board that OHB Homes had previously applied for and had been granted variances for agricultural soils disturbance, steep slope disturbance and open space for this property. The variances had not been contested or appealed. When that plan was presented for subdivision and land development and conditional use, Mr. McCrane appealed the approvals and they were reversed in the Court of Common Pleas in 2008. That decision is currently being appealed in Commonwealth Court. The application before the Board this evening does not seek open space relief; the 2007 application needed 20% disturbance of agricultural soils, while this application is seeking 7.75% and the steep slope disturbance relief is the same at 78% disturbance of manmade slopes. The original application planned ½ acre lots, whereas this application is for twin homes.
Mr. Murphy entered as Exhibit A-1 the 2007 Decision of the Zoning Hearing Board and as Exhibit A-2 the plan from the 2007 application.
Mr. Koopman objected to the offering of Exhibit A-1.
Mr. Murphy said that he will be making reference to the findings of fact and conclusions of law cited in that decision during testimony.
Mr. Auchinleck accepted the Exhibits, noting that the 2007 decision has no precedential value; each application stands on its own.
Mr. Murphy entered as Exhibit A-3 the curriculum vitae of Timothy P. Woodrow, PC.
In response to Mr. Koopman’s questions, Mr. Woodrow said that he was the engineer on the prior application. He is a municipal engineer primarily in Montgomery County. He was also the engineer on the Village at Newtown Shopping Center.
Mr. Koopman had no objection and Mr. Woodrow was accepted as an expert witness.
Mr. Murphy entered as Exhibit A-4 an aerial photograph of the property dated June 6, 2004.
Mr. Woodrow said that he prepared the plan that was attached to this application. He has been involved with this property for a number of years. Referring to Exhibit A-4 he reviewed the buildings visible as belonging to the Kownurko, Rambo and Goodnoe homes and accessory buildings. This has not changed since the photograph was taken.
Mr. Murphy entered as Exhibit A-5 an existing features plan dated December 15, 2008.
Mr. Woodrow reviewed this plan, noting that the four tax parcels total 63.09 acres, with two parcels owned by Mrs. Goodnoe. He pointed out the color coded areas as Newtown Creek, environmental features such as wetlands and steep slopes. The blue numbers on Exhibit A-5 correspond with numbers on a series of photographs.
The photographs, dated December 30, 2008 were entered by Mr. Murphy as Exhibit A-6, and a plan prepared by Tri-state Engineering dated March 8, 1983, showing an eight lot subdivision was entered as Exhibit A-7.
Referring to Exhibit A-7, Mr. Woodrow said that lots 1, 2, 3, and 4 are the subject of this application. Lots 1 and 3 are the Goodnoe lots, 2 is Rambo and 4 is Kownurko. At the time of this subdivision the properties were zoned R-1, residential, but are currently zoned CM, Conservation Management. There are currently no other uses than residential on the properties, as is noted in finding of fact # 19 of Exhibit A-1. It is not now, nor has it recently been actively farmed.
Mr. Koopman objected to reference to Exhibit A-1.
Mr. Woodrow reviewed existing easements on the properties, including a flowage easement to Bucks County for the dam and sanitary sewer easements. He confirmed for Mr. Auchinleck that the high water mark for the dam has been confirmed by a flood study.
Mr. Katz noted that on Exhibit A-5 the acreage numbers of the Kownurko and Goodnoe properties have been transposed.
Mr. Murphy said that the JMZO requires classification and preservation of agricultural soils. The JMZO has deferred to the County maps of agricultural soil classifications. The JMZO cites in section 1005(A)(3) that land is protected for agricultural uses, however this property is not currently used for farming. Mr. Murphy entered as Exhibit A-8 a map of the agricultural soils.
Mr. Woodrow reviewed this map and noted that most of the non-agricultural soils are in areas that contain easements or are wetlands. 45.8 acres are agricultural soils, 17.2 acres are non-agricultural soils. Under the JMZO 75% of agricultural soils are protected; other protected features are the rights-of-way, woodlands, forested areas and steep slopes.
Mr. Murphy entered as Exhibit A-9 the proposed use B-14 twin home development plan.
Mr. Woodrow noted that certain sections have been removed from the base site calculations, including the flowage easement and the areas along Eagle Road. Under the ordinance 34.35 acres of agricultural soils must be protected and 11.45 acres could be disturbed.
In response to questions from Mr. Auchinleck, Mr. Woodrow said that the discrepancy in the agricultural soils in Exhibits A-8 and A-9 is because the agricultural soils in the flowage easement cannot be disturbed. The green colored (agricultural soil) area in Exhibit A-9 totals 42.8 acres, of which 11.45 acres can be disturbed. Mr. Woodrow has interpreted the Ordinance to require protection of 75% of agricultural soils on the property regardless of other features.
Mr. Katz said that using 42.8 acres as the total agricultural soil area, the area which can be disturbed is 10.7 acres.
Mr. Woodrow further reviewed the proposed area of disturbance, development area, and active recreation area. He noted areas of steep slopes of 15-25% and of 25% and greater, noting that the areas of 25% or greater are mostly along the creek as seen on Exhibit A-5. He pointed out that the areas of steep slopes between 15-25% are along Eagle Road and on a small portion of the Goodnoe driveway.
Mr. Murphy entered as Exhibit A-10 the steep slope disturbance area map.
Referring to this map, Mr. Woodrow noted that the plan proposes disturbance of 78% of steep slopes, primarily the manmade slopes along Eagle Road and the Goodnoe driveway, or 10,870 square feet of steep slopes. There are 13,940 square feet of steep slopes on the property and the Ordinance would have permitted disturbance of 3,485 square feet.
Mr. Woodrow returned to Exhibit A-9 and discussed the proposed subdivision plan, which features 40 twin home lots along a “U” shaped loop roadway and a detention basin, visitor parking area and active recreation area. The three existing homes are to remain. The use would be B-14, which preserves large areas of open space. Under the plan referenced in Exhibit A-2, there had been relief from some of the open space requirements. Under the A-9 plan 48.19 acres are preserved.
Mr. Murphy noted that the B-14 use was a permitted use at the time this application was made. It is a small cluster proposal with less roadway and it preserves open space adjacent to the flowage easement. B-14 had subsequently been removed from the JMZO as a permitted use. The application for variances seeks relief for disturbance of 7.75% more agricultural soils than permitted, proposing developing 14.99 acres, of which 33% is agricultural soil, or 3.5 acres more than the Ordinance would permit. The 14.99 acres appear on Exhibit A-9 between the red and blue lines. The 14.99 number does not accurately represent the amount to be disturbed because a portion of that total includes the existing dwellings and developed areas. Total new disturbance is 10.7 acres, ½ acre less than is allowed, or 23.9% new disturbance. The JMZO considers the existing lots as part of land development and must be included in calculations.
Mr. Murphy entered as Exhibit A-11 the existing residential usage plan.
Mr. Woodrow reviewed Exhibit A-11, pointing out areas of residential activity including houses, driveways and maintained lawns, which are no longer available for agricultural use. He said that there are only three possible ways to develop this property, as B-1 – one acre lots, as B-12, a cluster with 30,000 square foot lots or B-14, a denser cluster with attached housing permitted.
Mr. Murphy entered as Exhibit A-12 a plan for B-1 development, which is a by right plan. He noted that under the recently revised JMZO the B-14 use was eliminated and the B-1 standards were adjusted so that now no additional lots could be built on this property; relief from the agricultural soils Ordinance would be needed to maintain the three existing lots.
Mr. Murphy entered as Exhibit A-13 a plan for a B-12 development, noting that under the new regulations only two additional lots could be built. Only B-1 is a by right use. B-12 and B-14 are conditional uses. Neither Exhibit A-12 nor A-13 would comply with the steep slope requirements.
Mr. Murphy entered as Exhibit A-14 a B-14 plan which converts the single homes shown on Exhibit A-13 to twin homes. This plan also does not comply with the steep slope Ordinance.
Mr. Koopman asked to defer cross-examination to a future meeting. All other parties agreed.
Mr. Lenihan moved to continue the application of OHB Homes to February 5, 2009. Mr. Katz seconded and the motion passed 4-0.
Mr. Auchinleck reported that he would be presenting findings in the Holt appeal to the Zoning Hearing Board on February 5, 2009.
Mr. Lionetti moved to adjourn at 10:30 PM. Mr. Katz seconded and the motion passed 4-0.
Mary Donaldson, Recording Secretary