ZONING HEARING BOARD
MINUTES OF THE MEETING OF MAY 7, 2009
The Newtown Township Zoning Hearing Board met on Thursday, May 7, 2009 in the Newtown Township Building. In attendance and voting were: John Lenihan, Chairman; David Katz, Vice Chairman, Karen Doorley, Secretary, Mario Lionetti and William Wall, members. Also in attendance were: James J. Auchinleck, Jr., Esq., Solicitor, Richard O’Brien, Codes 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. Lionetti moved to accept the minutes of April 2, 2009. Mr. Lionetti seconded and the motion passed 3-0-2, with Mrs. Doorley and Mr. Wall abstaining.
The Agenda was reviewed:
Application of Friends Lane LLC
Mrs. Doorley read into the record the application of Friends Lane LLC, owner, requesting a variance from Section 902(B)(2)(b) and 903(B)(1) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a self-storage facility with a disturbance of 5,200 square feet of floodplain; and a Special Exception under section 905(IV)(B)(1) to permit construction within the floodplain. The subject property is 104 Penns Trail, Lot 51, Newtown, in the C-M Conservation Management Zoning District, being further known as Tax Map Parcel #29-10-94.
Mr. Auchinleck informed the Board that Don Marshall, attorney for the applicant, has requested that this application be continued, as the applicant will first appear before the Board of Supervisors.
Mr. Lenihan moved to continue the application of Friends Lane, LLC to June 4, 2009. Mr. Lionetti seconded and the motion passed unanimously.
Application of Michael P. DeMicoli
Mrs. Doorley read into the record the application of Michael P. DeMicoli, owner, requesting a variance from section 401(C) to permit construction of a 26 feet by 16 feet deck resulting in a rear yard setback of 24.94 feet where 30 feet is required. The subject property is 19 Delaney Drive, Newtown, in the CM Conservation Management Zoning District, being further known as Tax Map Parcel #29-20-39 Lot 10
Michael P. DeMicoli was sworn in.
Mr. Lenihan asked if anyone wished to be party to this application. There was no response.
Mr. DeMicoli explained that he wanted to put a deck at the rear of his house. The location he chose is near the only rear door. In response to questions from the Board, he said that his development has a homeowners association. His neighbors and the homeowners association are aware of his plans and have no objections. The 100 foot buffer between his property line and the adjoining open property, located in Upper Makefield, is preserved open space belonging to his development’s homeowners association.
Mr. O’Brien said that the property was posted on April 30, 2009.
Mr. Katz move to grant a variance from section 401(C) to permit construction of a 26 feet by 16 feet deck resulting in a rear yard setback of 24.94 feet where 30 feet is required. Mrs. Doorley seconded and the motion passed unanimously.
Continued Application of OHB Homes, Inc.
Mr. Auchinleck reminded the Board that the applicant, represented by attorney E Murphy had completed its direct testimony. Attorney John Koopman, representing Newtown Township, would present an additional witness.
Mr. Koopman called Lynn Bush. He entered as Exhibit T-12, Ms. Bush’s resume, and offered her as an expert on land use planning.
Ms. Bush was sworn in.
Mr. Murphy had no objection.
In response to Mr. Koopman’s questions, Ms. Bush said that she has been the Executive Director of the Bucks County Planning Commission for ten years. Prior to that she had been an independently employed planner. She has worked with Newtown Township on its open space comprehensive plan and has consulted with the Newtown Area Joint Zoning Council to update its comprehensive master plan, which has been adopted by the three municipalities in the Jointure and is expected to be adopted by the Joint Zoning Council shortly. She is familiar with the JMZO and with its, and most of the County’s, natural resource protections. She is familiar with the efforts throughout the County, including in Newtown Township, to protect agricultural soils as a natural resource.
Ms. Bush said that she is familiar with the property which is the subject of this application, and with the surrounding area, although she has not walked onto the property. She has reviewed the prior testimony in this application. She explained that Newtown Township is part of a Jointure, which allows the three member municipalities, Newtown Township, Wrightstown Township and Upper Makefield Township, to work together on planning and zoning. Newtown Borough had been a member of the Jointure at one time. When the Jointure was formed, Newtown Borough/Township was the business center, with the northern part of Newtown Township, Wrightstown and Upper Makefield primarily farming areas. The Jointure worked together to zone in such a way as to preserve farming and to prevent suburban sprawl. Together the municipalities share one zoning ordinance, one comprehensive plan and one zoning map. Representatives of the participating municipalities began discussing forming a jointure for regional planning in the 1970’s, with the Ordinance adopted in 1983. Newtown Borough left the Jointure in 1992. In celebrating its twenty-fifth anniversary, the Jointure updated its comprehensive plan, preparing a new zoning map.
Mr. Koopman entered as Exhibit T-13, a map of current land uses prepared for the revised comprehensive plan.
Referring to Exhibit T-13, Mr. Koopman asked Ms. Bush to discuss the “rural residential” classification.
Ms. Bush said that on T-13, rural residential areas are colored in cream. These properties are usually 5+ acres with a single family house and other accessory structures. Agricultural properties are usually larger than 5 acres; agricultural properties are so designated based not on size alone but on records of the Board of Assessment. These properties are actually farmed. Not all large lots are farmed; some have heavily wooded areas. These are considered rural residential. This is a term used throughout the County as a separate land use.
Mr. Koopman entered as Exhibit T-14 a series of charts of land use in the Jointure comparing 1990 to 2005 land uses. There are four charts on Exhibit T-14, for Wrightstown, Newtown and Upper Makefield and one for the Jointure as a whole.
Ms. Bush reviewed the chart, noting that it shows changes in both acreage and percentage for various land uses in the Jointure from 1990 to 2005. Each category corresponds to the map shown in Exhibit T-13. She noted the change in rural residential from 1990 to 2005, an increase of 243 acres. She pointed out Mr. Murphy’s property on Exhibit T-13, a rural residential property.
Ms. Bush discussed Exhibit T-7, a list of parcels over 10 acres, and pointed out that some parcels are not included in this Exhibit because the list only shows properties categorized by the Board of Assessment by code numbers 1051: residential 10-20 acres, or 1052: residential 20 + acres. Not included in the list are properties with other category numbers such as 1056, which indicates a preferential tax assessment under Act 319; the Murphy property and some of the subject properties are categorized as 1056. She noted that the Kurnurko property has been miscoded at the Board of Assessment and should have been under 1051. The map in Exhibit T-13 shows properties with a number of Board of Assessment codes as rural residential.
Mr. Koopman entered as Exhibit T-15 an aerial photograph of the subject property and surrounding area, taken in 2005.
In response to Mr. Koopman’s questions, Ms. Bush pointed out the areas surrounding the subject property, including the 111 acre Peter Taylor Farmstead, preserved by the County as an active farm. She pointed to portions of the subject property which appear to have been cultivated. Tax map parcel 29-003-040 is a rural residential lot as is lot 29-003-040-005. She said that while Mr. Amey had characterized this area as suburban, the Bucks County Planning Commission considers it a rural residential area. Suburban areas are characterized more as having smaller lots with culs-de-sac and small streets, while this area has larger properties taking access directly onto Eagle Road and adjacent to a large active farm.
Ms. Bush said that the new Comprehensive Plan has provisions addressing the desire to preserve and protect open space and agricultural lands. This had also been the goal of the 1998 plan.
Mr. Murphy objected to references to the new comprehensive plan, as it is not yet an adopted plan. His objection was sustained.
Ms. Bush referenced the Municipalities Planning Code Article 6, Section 603 (C)(7), which cites the purpose of zoning to preserve agricultural soils. She said that the zoning ordinances “shall protect prime agricultural soils.” This is consistent with the Jointure’s comprehensive plans and with the performance standards of the Ordinance, including the site capacity calculations (§ 902) and natural resource protections (§ 903). The Ordinance requires compliance with both sections, which restrict disturbance of agricultural soils to 25%; the Ordinance does not limit this requirement to active farms, but includes the soils, which are protected for their intrinsic value. The intent of Section 305 of the Ordinance is to protect valuable natural resources in the Conservation Management District, including agricultural soils, floodplains and woodlands, in order to maximize open space and encourage farming activities.
In response to Mr. Koopman’s questions, Ms. Bush said that the existing houses on the property are to remain with the development as proposed by Exhibit A-9. Certain portions of the property have already been developed and the plan is trying to recapture or “un-develop” portions of the property. The new disturbed area plus the existing disturbed area would total 32% disturbance of agricultural soils. The properties have already had a disturbance of 13.51 acres where only 11.45 acres are permitted to have been disturbed.
Mr. Koopman asked Ms. Bush to comment on an interpretation of the Ordinance presented earlier which had claimed that once a property is subdivided it has already been developed, as was the case with the initial subdivision in 1983.
Ms. Bush said that such an interpretation of the definition of development to include subdivision of a parcel defies logic and she cited examples of subdividing parcels of 100 acres into two 50 acre parcels.
Mr. Koopman entered as Exhibit T-16 a map of the agricultural soils in the Conservation Management Zoning District as prepared for the Comprehensive Plan.
In response to Mr. Koopman’s questions, Ms. Bush referred to Exhibit T-16 and said that the gross site for the subject property is 63.9 acres; the base site is 51.6 acres; the agricultural soils are 45.8 acres.
In response to Mr. Auchinleck’s questions regarding Exhibit T-16, Ms. Bush said that the map shows the boundaries of the CM district, where agricultural soil restrictions apply. There are not similar restrictions on disturbance of agricultural soils in other zoning districts. She said that the map is relevant in that it demonstrates that there is not a hardship, as the amount of agricultural soil on the property is in keeping with that on the surrounding properties and is not peculiar to this property, alone. The property has 77% agricultural soils; the CM District in its entirety has 78.7% agricultural soils.
In response to questions from Mr. Murphy, Ms. Bush said that Exhibit T-13 does not relate to current zoning classifications. The four properties subject to this application are rural residential though not currently devoted to agriculture. She agreed that tax assessment records might not be entirely accurate. The photograph in Exhibit T-14 was taken in 2005 and may possibly not reflect conditions today. The County subcontracts for aerial photographs every five years. The Comprehensive Plan for the Jointure currently in effect was adopted in 1997. Soil surveys referenced in that 1997 plan were done in 1975. An attempt to update the soil maps in 1996 by the Bucks County Conservation District was unsuccessful. Map “E” in the Comprehensive plan is based on the 1975 soil testing. At this time it is possible that the 1975 testing might no longer be accurate; site specific testing might also not be accurate.
Ms. Bush said that she disagreed with Mr. Amey’s characterization of the subject properties as suburban, but considers them rural residential. The area along Eagle Road below Wrights road is a mixture of uses; the CM zoning district ends to the south of the subject properties.
Mr. Murphy pointed to Exhibit A-19, an aerial photograph of the area surrounding the subject properties and noted St. Andrew’s Briar, St. Andrew’s Place, Pheasant Pointe and Lakeview Estates, all small lot developments with interior streets, all in the CM zoning district. He asked if these would be consider rural residential.
Ms. Bush responded that the photograph shows a variety of uses including preserved open space, a working farm and 40 acres of rural residential property between the subject property and Lakeview Estates, in addition to the developments which Mr. Murphy had referenced.
Mr. Murphy pointed to St. Andrew’s Wood, St. Andrew’s School and Lakeview Estates and asked whether they had been developed without Zoning Hearing Board relief.
Ms. Bush said that she did not know whether these properties had been developed in accordance with agricultural soil preservation requirements.
In response to questions from Mr. Auchinleck, Ms. Bush said that Exhibit T-13 shows 8 rural residential lots in addition to preserved open space. Exhibit T-16 shows prime agricultural soils as defined by the Ordinance.
In response to Mr. Koopman’s questions, Ms. Bush reviewed the open areas along Eagle Road as shown on the aerial photograph and maps, including open space preserved as part of development and Township owned park and recreation open space. If these open space areas contain prime agricultural soils they have the potential to be farmed. The subject property has already been developed, in that each has one or more buildings; the Goodnoe property has two houses currently being used as residential dwellings.
In response to questions from James McCrane, a party to this application, Ms. Bush said that the agricultural soils are a natural resource, whether being used for agriculture at this time or not.
In response to questions from the Mr. Katz, Ms. Bush said that she has been licensed in New Jersey as a planner and is a member of the American Association of Planners. She is not sure of the exact date of the aerial photograph in T-15, but believes that the photographs are typically taken in late winter or very early spring, in February or March. She has no specific training in interpretation of aerial photographs. The area of the subject property that appears to have been cultivated in T-15 resembles the Peter Taylor Farm, which is why she has interpreted it to have been cultivated rather than just the last seasonal cut of a lawn. She did not drive onto the properties to observe the activities, but could observe from the street that the properties do not appear to have been abandoned. Mr. Katz said that at a prior meeting there had been testimony by a farmer who had stated that he did not think the property was suitable for farming in its current state. He asked what the value would be in protecting agricultural soils that cannot be farmed.
Mr. Koopman said that he did not think Mr. Katz had accurately characterized the statements made by the farmer, and asked Ms. Bush to comment further on the purpose of preserving agricultural soils.
Ms. Bush said that she had not been in attendance for the farmer’s testimony, but had read the transcript. She said that she is not a soils expert and could not comment on the possible rehabilitation of the soils for future farming, but the purpose of agricultural soil preservation in the JMZO and in the MPC is based on the preservation of land for present and/or future farming. There could be potential for future farming on preserved land, to preserve locally grown food supplies as a natural resource.
In response to further questions from the Board, Ms. Bush explained that the possible reason for an increase in land from 1990 to 2005, as shown in Exhibit T-14, could be the improvement in measurement tools, such as GIS systems. The 1990 figures are based on a 1930 street grid.
Mr. Wall noted the significant decrease in agriculture on Exhibit T-14 between 1990 and 2005, and asked whether the Jointure has focused more on the preservation of open space.
Ms. Bush said that 11 farms have been permanently preserved in the Jointure and 63 farms are on a waiting list for the County preservation program. In response to further questions on the Board of Assessment classification of tax map parcel 29-003-040-005, Ms. Bush said that the Assessment Board has called the property rural residential, but she does not know whether any of the fields have been leased to farmers. The Board of Assessment does not have “suburban residential” as an assessment category.
In response to Mr. Lionetti’s questions, Ms. Bush said that the 1975 soil survey identifies agricultural soils as classes 1, 2 and 3. The Ordinance does not make any distinctions as to which soils are to be maintained.
In response to Mr. Auchinleck’s questions, Ms. Bush said that she did not know when disturbance of agricultural soils occurred or if the disturbance occurred before the Ordinance; Exhibit A-11 shows 13.51 acres already disturbed. The subject property totals 63 acres, including 10.3 acres in the flowage easement. No floodplain soils are proposed to be disturbed.
In response to Mr. Koopman’s questions, Ms. Bush said that the original subdivision occurred in 1983; the plan was recorded on March 8, 1983. That plan does not show any improvements. She did not know whether land that has been “farmed out” can be rehabilitated.
In response to Mr. Wall’s question, Ms. Bush said that the purpose of the Ordinance’s protection of agricultural soils is to make sure that natural resources for farming continue to remain in place.
Mr. Murphy said that the amount of disturbance that has already occurred would mean that the property is either non-conforming or in violation. If it is non-conforming would the applicant be entitled to expand on the non-conformity?
Ms. Bush said that she is familiar with the concept of expansion of a non-conformity, but does not know whether the same right of expansion applies in this instance.
Mr. Murphy said that current zoning limits disturbance of agricultural soils only in the CM district. Exhibit T-14 shows agricultural soils in other zoning districts on which there are no such limitations. He noted that on Exhibit A-19, the Woll tract, which is entirely agricultural soils is being disturbed for construction of a park, and the Township’s municipal complex is all agricultural soils, and is being disturbed for expansion of the municipal facility. He asked whether the restrictions on disturbance of agricultural soils is only for residential uses.
Ms. Bush said that allowing disturbance for a park in the CM district is an appropriate use. The CM district is primarily residential.
In response to Mr. Auchinleck’s questions, Ms. Bush said that if the Township were to purchase the property for ball fields, 100% of the agricultural soils could be disturbed. In reference to Exhibit T-14, the categories listed do not differentiate among the types of soils but only the land uses.
Mr. Murphy recalled Timothy Woodrow as a rebuttal witness.
Mr. Auchinleck reminded Mr. Woodrow that he had already been sworn in and was still under oath.
Mr. Murphy entered as Exhibit A-22 a map of prime agricultural soils with annotations and with subdivisions labeled.
Mr. Woodrow agreed that this exhibit shows that all the developments had an impact on prime agricultural soils.
Mr. Koopman objected to all subsequent questions regarding other developments’ disturbance of agricultural soils, as each case is decided on its own merits. The objections were overruled.
Mr. Murphy entered as Exhibit A-23 a chart outlining the disturbance of agricultural soils for other developments in the area surrounding the subject property.
Mr. Woodrow reviewed Exhibit A-23, noting that St. Andrew’s School had a 93% disturbance of agricultural soils.
In response to questions from Mrs. Doorley and Mr. Lenihan, Mr. Murphy said that St. Andrew’s was not exempt from the agricultural soils disturbance restrictions, nor was it allowed because the disturbance was for a school. The applicant in that case was granted Zoning Hearing Board relief.
In response to Mr. Murphy’s questions, Mr. Woodrow said that St. Andrew’s Briar, which he located on Exhibit A-19, consists of 13 lots in the CM district for which no Zoning Hearing Board relief was required; the Township accepted a soil scientist’s reclassification of the soils. The Ordinance has no provision for reclassification of agricultural soils.
In response to Mr. Lionetti’s questions, Mr. Murphy said that St. Andrew’s Briar ( Blayze Court) was constructed by Elliot Building Group in 1999. Pheasant Pointe was given the same approvals in 1997/98, with reclassification of soils. Lakeview Estates was granted a 7% variance in 2000 for 56 units and the original farmhouse. Gigliotti was granted a 47% variance in 1988/1989 for St. Andrew’s Woods. This property shares a common boundary with the subject property.
In response to Mr. Murphy’s questions, Mr. Woodrow said that the 1983 subdivision of these lots constitutes development. Subdivision equals development, development equals disturbance.
Mr. Murphy entered as Exhibit A-24 a chart showing: Subdivision = development = disturbance.
Mr. Murphy entered as Exhibit A-25, calculations for the site if agricultural soils do not exist.
In conclusion, Mr. Woodrow said that if the property has already been developed and agricultural soils did not exist, the number of dwelling units permitted would be 50.
In response to Mr. Koopman’s questions, Mr. Woodrow said that he is not contradicting the original analysis of the property. Exhibit A-11 shows a disturbance of 13.51 acres of agricultural soils. It is his opinion that a strict interpretation of the Ordinance does not make sense and Exhibit A-11 shows some level of reasonableness. A-11 shows actual disturbance, however A-24 changes the assumptions. This is based on Judge Mellon’s opinion that the three original building lots are to be included in calculations. Referring to Exhibit A-23, Mr. Woodrow said that all of the development occurred 9 or more years ago. Exhibit A-22 is based on 1996 data. Mr. Woodrow said that he did not know the difference between the 1975 soil surveys and Exhibit A-22.
Mr. Katz referenced Section 205 soil class, which is noted as “2002, as revised”. He asked what the revision was.
Ms. Bush said that A-22 is based on the 1996 soil survey. There were problems with that survey and the County never accepted the results. She said that the applicant had prepared his plans on what he believed were agricultural soils. She cannot testify as to whether these are actual agricultural soils.
After some further discussion, Mr. Woodrow, Ms. Bush and Ms. Fountain agreed that A-22 is not changed by any revisions in 2002.
Mr. Murphy rested his case. The exhibits were received.
Mr. Auchinleck suggested that, as Mr. Koopman would like the record for this evening’s hearing transcribed and the parties would like to submit proposed findings, the hearing should be continued for a decision on July 2, 2009.
James McCrane was sworn in. Mr. McCrane said that he lives in St. Andrew’s Briar. He asked that Zoning Hearing Board to deny the application, as there is not a hardship. The builders purchased the property knowing the zoning restrictions. If a variance is granted the result will be an increase in population density, increased traffic and a burden on the infrastructure and the school district.
Resident Pam Fitzpatrick was sworn in. Ms. Fitzpatrick asked that the Zoning Hearing Board consider the collective impact of development throughout the community and the strain it places on the environment, the aquifers, the school district. She urged the Board to consider more sustainable development.
Mr. O’Brien said that the property had been posted on April 30, 2009.
At this point the record was closed.
Mr. Lenihan moved to continue the application of OHB Homes, Inc. to July 2, 2009. Mr. Katz seconded and the motion passed 5-0.Mr. Lenihan moved to adjourn at 10:45 PM. Mrs. Doorley seconded and the motion passed 5-0.
Mary Donaldson, Recording Secretary