NEWTOWN TOWNSHIP

ZONING HEARING BOARD

MINUTES OF THE MEETING OF APRIL 2, 2009

The Newtown Township Zoning Hearing Board met on Thursday, April 2, 2009 in the Newtown Township Building. In attendance and voting were: John Lenihan, Chairman; David Katz, Vice Chairman and Mario Lionetti, member. Also in attendance were: James J. Auchinleck, Jr., Esq., Solicitor, Richard O’Brien, Codes Officer and Justine Gregor, Stenographer.

Call to Order

Mr. Lenihan called the meeting to order at 7:30 PM.

The Pledge of Allegiance

Approval of Minutes

Mr. Katz moved to accept the minutes of March 5, 2009. Mr. Lionetti seconded and the motion passed 3-0.

The Agenda was reviewed:

  • Continued Application of OHB Homes, Inc. – Eagle Road
  • Application of Robert Hughes and David Rominiecki – 82 Swamp Road
  • Application of Leonard A. Christopher – 277 Stoopville Road

Application of Robert Hughes and David Rominiecki

Mr. Lionetti read into the record the application of Robert Hughes and David Rominiecki., owners, requesting a variance from section 803(H-3)(1)(b) to permit construction of a 6 feet high solid fence at the rear of the property where the maximum height for a solid fence is 5 feet. The subject property is 82 Swamp Road, Newtown, in the R-2 High Density Residential Zoning District, being further known as Tax Map Parcel #29-3-11-1.

Mr. Katz moved to table this application until later in the hearing, as the applicant was not in attendance yet. Mr. Lionetti seconded and the motion passed 3-0.

Application of Leonard A. Christopher – 277 Stoopville Road

Mr. Lionetti read into the record the application of Leonard A. Christopher, owner, requesting a variance from Section 401(C) of the Joint Municipal Zoning Ordinance of 1983 to permit an increase in the size of the existing porch to a size of 7 feet by 36 feet and construct a porch roof; and a Special Exception under section 1208(C)(2) to permit construction on a non-conforming lot. The subject property is 277 Stoopville Road, Newtown, in the C-M Conservation Management Zoning District, being further known as Tax Map Parcel #29-7-8-3.

Leonard A. Christopher was sworn in.

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

Mr. Christopher explained that he would like to widen his porch one foot and extend it along the entire front of his house to protect the house from the harsh sun and from the weather. Currently rain water runs off the roof onto the front of the house; with the porch extension he will be able to direct run-off away from the house.

Mr. Lenihan said that he had visited the site and confirmed that the porch would help to protect the front of the house.

Mr. O’Brien said that the property had been posted on March 25, 2009.

Mr. Katz moved to grant a variance from Section 401(C) of the Joint Municipal Zoning Ordinance of 1983 to permit an increase in the size of the existing porch to a size of 7 feet by 36 feet and construct a porch roof; and a Special Exception under section 1208(C)(2) to permit construction on a non-conforming lot. Mr. Lionetti seconded and the motion passed 3-0.

Application of Robert Hughes and David Rominiecki

Mr. Lenihan moved to un-table the application of Robert Hughes and David Rominiecki, as the applicant had arrived. Mr. Lionetti seconded and the motion passed 3-0.

David Rominiecki was sworn in.

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

Mr. Rominiecki explained that his home is located adjacent to and surrounded by Council Rock High School. There is currently a chain link fence belonging to the school surrounding his yard. The school parking lot is directly behind his yard. He would like to install a six foot solid fence for privacy in his pool area and to prevent headlights from flooding into his home at night.

Mr. Lenihan said that he visited the site and agrees that the fence is necessary.

Mr. O’Brien said that the property had been posted on March 25, 2009.

Mr. Lionetti moved to grant a variance from section 803(H-3)(1)(b) to permit construction of a 6 feet high solid fence at the rear of the property where the maximum height for a solid fence is 5 feet. Mr. Katz seconded and the motion passed 3-0.

Continued Application of OHB Homes, Inc.

Mr. Auchinleck reminded the Board that this application has already been read into the record. The applicant has concluded his presentation of witnesses. The Township will now make its case in opposition to the application. Due to the absence of two Zoning Hearing Board members who will be participating in the conclusion of this application, he is asking that the stenographer prepare notes of testimony. The Board has also asked for proposed findings.

Attorney John Koopman, representing Newtown Township, entered as Exhibit T-1, McCrane v. Newtown Township Opinion Court of Common Pleas, as Exhibit T-2, McCrane v. Newtown Township Opinion Commonwealth Court (Opinion not recorded) and as Exhibit T-3, the resume of Michele Fountain, P. E., the Township’s Engineer.

Attorney Ed Murphy, representing OHB Homes, objected to Exhibit T-2; his objection was overruled.

Mr. Koopman called Michele Fountain. Ms. Fountain was sworn in and offered as an expert witness. In response to Mr. Koopman’s questions she said that she has been with CKS Engineers for nine years and has been Newtown Township’s engineer for 16 months. CKS is a municipal engineering firm. Ms. Fountain said she is familiar with the property and has visited the site, observing the improvements, on two occasions. She has been in attendance at the previous hearings for this application, has reviewed the testimony and exhibits prepared by Timothy Woodrow and is familiar with the Joint Municipal Zoning Ordinance and the Newtown Township SALDO.

Mr. Koopman entered as Exhibit T-4, § 223 of the Joint Municipal Zoning Ordinance (definition of Development).

Ms. Fountain read the definition into the record:

“Any man-made change to improved or unimproved real estate including, but not limited to, buildings or other structures, the placement of mobile homes, streets or other paving, utilities, filling, grading, excavation, mining, dredging, drilling operations and the subdivision of land. “Development” includes the erection of construction upon any lot or tract of any structure, any impervious surface, or any parking or loading area (whether or not covered by an impervious surface.)”

In response to Mr. Koopman’s questions, Ms. Fountain said that the definition includes “subdivision of land”. As shown in Exhibit A-7, this property was the subject of subdivision in 1983. Exhibit A-7, dated July 20, 1982 show the four parcels that are subject to this application, consisting of lot #1, a 24.03 acre flag lot owned by Goodnoe, lot #2, a 10 acre lot owned by Rambo, lot #3, an 18.04 acre flag lot owned by Goodnoe and lot #4, a 10 acre lot owned by Kurnurko. Each lot had a minimum of 10 acres. Ms. Fountain said that before the mid-1980’s, lots 10 acres or greater had no requirement for testing for on-lot sewer systems. Each of these lots has an on-lot septic system. Lots number 2 and 4 each have a single family home; lots 1 and 3 were combined for one home. Although lots 1 and 3 are used as a single lot, they have remained as two separate lots. There is an additional fourth house on the left side of the Goodnoe driveway. It has been determined that these properties have already been developed, as shown on Exhibit A-11. Ms. Fountain noted the agricultural soils on this exhibit.

Mr. Koopman entered as Exhibit T-5, pages 59/60 transcript of Zoning Hearing Board meeting of February 19, 2009.

At Mr. Koopman’s request, Ms. Fountain read from page 59 line 21 through page 60 line 14. She said that she agreed with Mr. Woodrow’s characterization of Exhibit A-11, which outlines to agricultural and non-agricultural soils on the existing residential use. The Exhibit shows 13.51 acres already developed in the agricultural soils and a small area of non-agricultural soils for a total of 14 developed acres. Ms. Fountain reviewed the calculation of 25% of agricultural soils permitted to be developed on the total 45.8 acres as 11.45 acres. She said that this shows that the property is already non-conforming. She said that there is no provision for “un-developing” in the Ordinance, that is returning already developed agricultural soils to undeveloped.

Mr. Koopman entered as Exhibit T-6 a plan which shows the existing residential usage development plan A-9 overlaid with A-11. This shows a total of 14.99 acres to be developed.

M. Fountain said that Exhibit A-9, shows the actual disturbance within the red shaded area and the blue shows the total developed area including existing and proposed development, including the three existing dwellings. The total area of development, that is the total of existing plus proposed new development actually equals 19.49 acres. This total includes 4.5 acres of area that had been previously developed as part of the original three existing homes. The net buildable site area for this site is 15.496 acres.

Mr. Auchinleck asked whether the entire tract, was already the subject of subdivision.

Ms. Fountain said yes, that the original parcel had already been subdivided into lots including the four lots included in this application.

Mr. Auchinleck asked why the lots are then not 100% developed.

Mr. Koopman said that in the Court’s opinion, old and new development were to be included in the site calculations. The area of the existing homes being subdivided out and the area included for the new homes were to be included; the Court’s interpretation had been that the area of subdivided lots for the three existing dwellings was to have been included in calculations. He said that Exhibit T-6 shows areas proposed to be developed, areas already developed and areas that had been developed as lawn which are now proposed as open space. The total included in Exhibit T-6’s site calculation includes that portion formerly lawn but now counted as open space.

Mr. Koopman referred to Exhibit A-12, a Use B-1 plan under the new ordinance and Exhibit A-14, a Use B-14 plan under the old ordinance. He asked whether these developments’ roadways meet Township requirements and whether the property could be developed without a loop road or cul-de-sac.

Ms. Fountain said that A-12 and A-14 would probably meet requirements, however there are no fully engineered plans yet. Referring to Exhibit A-5, existing features plan, she noted that the two Goodnoe parcels could be developed as two separate lots. The Kurnurko and Rambo parcels have a total of about 800 feet of frontage, so could be subdivided into two lots each, creating six lots with six dwellings. There would be no need for a homeowners association for stormwater management, as each lot could have an individual system.

Mr. Koopman entered as Exhibit T-7, MEA land record parcel information for lots of 10-20 acres and lots over 20 acres in the Jointure.

Ms. Fountain reviewed the properties. She said there is a 10.93 acre flowage easement and a 0.93 acre sanitary sewer easement, leaving 61 acres as the base site area. The site is not irregular in shape; the frontage is 1060 feet, at its narrowest it is 630 feet. The depth is 2300 feet. If not for the existing homes the site could have been developed for twin homes.

Mr. Koopman entered as Exhibit T-8 potential B-14 development of original site with limit of disturbance =11.26 acres and as Exhibit T-9 potential B-12 development with limit of disturbance =11.40 acres. T-8 shows 46 twin homes with 11.45 acres of disturbance.

Mr. Auchinleck questioned these exhibits if the prior development cannot be “undeveloped”.

Mr. Koopman noted that the currently considered plan contemplates “un-development” of agricultural soils. T-9 shows 14 single family homes with 11.4 acres of disturbance. He entered as Exhibit T-10, a Use B-14 development plan for 10 twin homes and the existing three lots and disturbance of 11.39 acres, and asked Ms. Fountain to compare it to the development shown in Exhibit A-14.

Ms. Fountain pointed out that A-14 included some non-agricultural soils, which T-10 uses for two additional twin homes. She compared T-10 to Exhibits A-15 and A-16, noting that A-16, the existing usage plan, shows 9.939 acres available for farming, but does not include the area near Eagle Road between the two existing driveways.

Mr. Koopman entered as Exhibit T-11, a plan of existing usage plus land available for farming.

Ms. Fountain explained that Exhibit T-11 shows the available agricultural soils in Exhibit A-16, plus the 4.18 acres of agricultural soils near Eagle Road for a total of 14.12 acres. Ms. Fountain also referred to Exhibit A-13’s plan for five homes, three existing plus two new on a cul-de-sac, and the costs associated with this plan as shown on Exhibit A-17. She said that most of these costs could be greatly reduced if each home took access to Eagle Road directly. The improvements shown on T-11 would comply with the SALDO; waivers might be required which could be granted by the Board of Supervisors during land development.

Mr. Katz asked why Exhibit T-7 was included.

Mr. Koopman said that the Township contends that this land is already developed as a rural residential development. This exhibit will later be referenced to show that the property can reasonably be used and that there is no basis for hardship.

Mr. Auchinleck asked whether the plans shown in Exhibits T-8 and T-9 are by right plans.

Mr. Koopman said that large lot subdivisions are rural residential and are still developed today.

Mr. Murphy said that testimony had been given that the original subdivision had been developed because of rural residency rules that are not available today.

Mr. Murphy asked Ms. Fountain whether the calculations for gross site area and base site area are correct on Exhibit A-5.

Ms. Fountain said that they are correct. In response to Mr. Murphy’s further questions she said that Exhibit A-7 was approved prior to adoption of the JMZO. There is no note prohibiting further subdivision of the lots and she is not aware of any such prohibition. The parcels were subdivided to take advantage of a sewer exemption. The parcels were already subdivided in 1983 and already developed. She agreed that if these parcels are considered already developed there would no longer be existing agricultural soils.

Mr. Auchinleck asked whether the 1983 JMZO defines agricultural soils on already developed parcels and whether these parcels are in any way excluded.

Mr. Murphy said that §223 of the current ordinance says that a site already developed has no agricultural soils.

Ms. Fountain said that if the parcels were subdivided and developed after the adoption of the JMZO then yes, they would be developed. She agreed that the highlighted areas on Exhibit A-8, which shows agricultural and non-agricultural soils based on soil surveys, is accurate. She agreed that A-9 is accurate and that the area in white is the only area on the site with no development restrictions. The exhibit accurately shows 10.97 acres of actual disturbance, below the permitted 11.45 acres. She did not disagree with the calculations on A-9, A-10 or A-11.

In response to Mr. Auchinleck’s questions, Ms. Fountain said that she agrees with the calculations shown on Exhibit A-12, a B-1 development under the new ordinance which now has wetland transition areas which have changed the building envelops. She has not carefully reviewed the plan to determine whether the cul-de-sac meets sight distance requirements or whether any new lots could be created.

Mr. Murphy said that if the existing three homes were demolished the areas of disturbance would have to be taken into account and there could not be a “clean slate”.

Ms. Fountain said that variances would still be needed for agricultural soils.

Mr. Auchinleck noted that if homes were to take direct access off of Eagle Road there would need to be additional curb cuts. He questioned whether they would be obtainable.

In response to Mr. Murphy’s questions on Exhibit T-7, Ms. Fountain said that Mr. Murphy’s home in Upper Makefield is not included on the list of 10-20 acre parcels. It would not be included if it were restricted by Act 319, for example. There are other reasons why certain lots might have been excluded from this list, which shows large lots classified as residential. She confirmed that the plans shown in Exhibits T-8 and T-9 assume no prior development and imagine if the property were completely undeveloped. A road would be required to reach the proposed homes. She did agree that the lots, as shown on Exhibit A-7 do have an irregular shape but not an unusual shape, although not square or rectangular. The front lots are square, the rear rectangular but when considered together as one large lot do have an irregular shape. While the site is not burdened by physical constraints the natural resources do have an impact of possible development of the site. Regarding Exhibit T-10, Ms. Fountain said that the exhibit was prepared after analysis of the zoning regulations, but not the SALDO. She did provide for stormwater management in this exhibit, however other agencies would need to review the stormwater plans. The plans would be subject to more detailed engineering review.

Mr. Katz referred to Exhibit T-7 and questioned why the Rambo property is listed but the Kurnurko and Goodnoe properties are not included.

Mr. Koopman said that T-7 is a representation of large lot single family residential uses not subject to Act 319. In response to Mr. Lionetti’s question he said that Act 319 allows property owners to enter into covenants with the County to use land for farming or to not develop the property in exchange for certain tax benefits. This is a voluntary program. Farm properties are coded differently by the Board of Assessment and would not be included in this list. Other properties larger than 10 acres that are not farmed are also not included and some lots without homes are included, such as Beazer Homes and Autumn Leaf Enterprises, which are open space or homeowner association lots.

In response to questions from the Board, Mr. Koopman said that if the property has been subdivided, the ordinance definition considers it developed, however this application and Mr. Woodrow’s testimony have referenced disturbance of agricultural soils. A variance is sought to disturb agricultural soils. The submission assumes agricultural soils. He briefly questioned whether all instances of subdivision, for example of a 100 acre lot into two 50 acre lots, would mean that there were no longer agricultural soils.

In response to Mr. Koopman’s questions, Ms. Fountain said that on Exhibit A-9, the area within the red dashed lines will have disturbance in that dirt will be moved. Exhibit A-9 shows 10.79 acres of actual disturbance but does not include the area where the existing Goodnoe house is to remain. A-9 proposes to “un-disturb” certain areas that had been previously disturbed. Exhibit T-6 shows these areas because the ordinance does not provide for an “un-disturbance.” The lots shown are not so narrow that they cannot contain building envelopes; the lots can meet setback requirements. Natural resource protections apply to all lots in the CM Conservation Management Zoning District.

Mr. Koopman said that he would present another witness who would probably need about one hour. He agreed to bring that witness to the next meeting.

Mr. Lionetti moved to continue the application of OHB Homes, Inc. to May 7, 2009. Mr. Katz seconded and the motion passed 3-0.

Mr. Lionetti moved to adjourn at 10:30 PM. Mr. Katz seconded and the motion passed 3-0.

 

Respectfully Submitted:

 

Mary Donaldson, Recording Secretary