NEWTOWN TOWNSHIP

ZONING HEARING BOARD

MINUTES OF THE MEETING OF JULY 2, 2009

The Newtown Township Zoning Hearing Board met on Thursday, July 2 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, Code Enforcement 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 June 4, 2009. Mr. Wall seconded.

Discussion of motion: Mr. Katz noted that page 10, paragraph 5 should read, “…. above Newtown Creek, although he agreed that other buildings on the east side of Sycamore Street would partially obstruct this view if someone were standing at the location used for the depiction.”

Mr. Lionetti amended his motion to include this correction. Mr. Wall amended his second and the motion passed 5-0.

The Agenda was reviewed:

  • Continued Application of OHB Homes, Inc.
  • Continued Application of 200 N. Sycamore Street LP

Continued Application of OHB Homes, Inc.

Mr. Auchinleck reminded the Board that the record had been closed in this application at the May 7, 2009 meeting. The parties have submitted findings of fact and conclusions of law, which have been circulated among the Board members.

Mr. Lenihan confirmed that all Board members had received and reviewed the findings.

Mr. Lionetti moved to deny the application of OHB Homes, Inc. Mr. Katz seconded.

Discussion of motion: Mr. Wall said that he did not agree that the variance for disturbance of steep slopes should be denied, as the slopes were man made and not natural to the property. He did not agree that the applicant should be penalized for work done by the previous owners of the property.

The motion passed 4-1, with Mr. Wall voting nay.

Continued Application of 200 N. Sycamore Street LP

Mr. Auchinleck reminded the Board that at the last hearing the applicant had concluded testimony and some public comment had been heard. The applicant’s attorney, Ed Murphy, has since indicated that there will be additional witnesses. The Board had also indicated it would hear requests from those in attendance wishing to seek party status.

Mr. Lenihan asked if anyone present wished to seek party status,

Ann Hendricks of 17 Jefferson Street, Newtown Borough was sworn in. In response to questions from Mr. Murphy, Ms. Hendricks explained the location of her home as between State and Liberty Streets. She is seeking party status because she is concerned about increases in traffic and parking on Jefferson Street. She has heard rumors of making Jefferson Street a one-way street. She also has concerns about safety for children in the neighborhood with the increase in traffic.

Mr. Murphy objected, noting that Ms. Hendricks’ concern is a potential adverse impact not a direct impact.

Mr. Auchinleck granted party status.

Chuck Machion of 147 N. State Street, Newtown Borough was sworn in. He asked for party status because he has concerns about the adverse impact the project will have on this historic district and on his home. He lives next to Marty Ginty, who has already been granted party status. He said that as an attorney he would be representing Ms. Ginty and himself.

Mr. Murphy objected because the impact is abstract, not direct.

Mr. Auchinleck granted party status.

Jane Johnson of 3 Mountain Court, Upper Makefield was sworn in. She asked for party status for herself and for the Upper Makefield Conservancy because the height will change the view shed of the historic district. In response to Mr. Auchinleck’s question she said that she lives four miles from the site and does not own property near the site, nor does the Conservancy. She does live within the Jointure.

Ms. Johnson was denied party status.

Joe Swerk of 318 S. Norwood Avenue, Newtown Borough, was sworn in. As president of Newtown American Legion Ambulance Squad, he asked for party status for the Ambulance Squad, located at 2651 South Eagle Road, which shares a property line with the applicant.

Party status was granted without objection.

George W. Blakesley of 505 N. Greene Street, Newtown Borough was sworn in. As a representative of the Board of Trustees of the historic Presbyterian Congregation of Newtown, he asked for party status for the Congregation which shares a property line with the applicant.

Party status was granted without objection.

Mr. Murphy did not object to Reverend Blakesley making a statement at this point in the proceedings.

Reverend Blakesley said that the Church is excited about the property being developed. He has worked with the applicant and his Board is satisfied that the developer will continue to work with the Church to satisfy the Church’s concerns. The Board of Trustees supports this plan and urges the Zoning Hearing Board to grant the variances sought.

Resident Pam Fitzpatrick of Stoopville Road was sworn in. She read from the MPC those portions which reference the definition of party status, noting that there is no mention of a requirement to live within 500 feet of the subject property. Because all residents of the Jointure will be affected by the project, she felt that she should be granted party status.

Mr. Auchinleck explained that distance from the subject property is not what determines whether party status would be granted but being “affected by the application” is what would be used to determine status. Those being denied party status would be given an opportunity to speak in support of or objection to the application before the Board renders a decision.

Mr. Murphy said that he would be calling some rebuttal witnesses.

Peter Stampfl was called. Mr. Auchinleck reminded Mr. Stampfl that he had been sworn in at the last hearing and is still under oath.

Mr. Murphy entered as Exhibit A-16 a building height comparison chart with Goodnoe’s Corner dated April 16, 2009.

Referring to Exhibit A-16, Mr. Stampfl reviewed the heights of the buildings at Goodnoe’s Corner as compared to the proposed Promenade. He said that he had been the architect on the Goodnoe’s Corner project. He noted the highest proposed height for this building would be 41’7”, and that the highest point for Goodnoe’s corner, at the ice cream store is 42’6”; the Green Parrot is 41’3” and the Cosi Café building is 38’10”.

Mr. Murphy entered as Exhibit A-17 a comparison of heights for buildings elsewhere in the Township and Borough’s business districts, with locations noted on an insert map.

Mr. Stampfl reviewed Exhibit A-17, noting that the Godwin Building on South State Street is 38’8”, Stockingworks is 44’1”. The Brick Hotel is 47’4”, Newtown Hardware House is 45’5”, First National Bank and Trust of Newtown is 50’7”, LaStalla is 48’8”. This exhibit was completed by a survey conducted by VanCleef Engineering on April 13, 2009.

In response to Mr. Auchinleck’s questions, Mr. Stampfl said that he is not sure of all of the zoning districts for all of the referenced sites, nor is he certain of the permitted heights. He is not sure if LaStalla is in the historic district. Most of the buildings are old; only Stockingworks and First National Bank are new buildings. In response to Mr. Katz’s questions he said that Goodnoe’s Corner is in the PC Planned Commercial Zoning District, where the maximum permitted height is 40 feet. A very small variance had been required for some, not all, of the structures.

Mr. Murphy entered as Exhibit A-18 a conceptual plan labeled “Option C” dated July 1, 2009.

Mr. Stampfl reviewed Exhibit A-18, which shows the existing Acme building as tenant “A” with two additional tenants and underground parking entrance. At grade parking is in front of the building. This is an existing non-conforming building; the proposed redevelopment would increase the non-conformity by 25%. The building would have 20,999 square feet of retail on the first floor and 20,999 square feet of office use on the second floor. Both are permitted by conditional use in the TC district. 210 parking spaces would be required and would be provided at grade and underground. In response to Mr. Auchinleck’s question, Mr. Stampfl said that Option “C” would require some variances.

Mr. Murphy entered as Exhibit A-19 a concept second floor office plan for Option “C” dated July 1, 2009. This plan would be the second floor of the building shown in Exhibit A-18.

Mr. Murphy entered as Exhibit A-20 the elevation of option “C” as seen from Sycamore Street. This is a renovation of the existing Acme building with a second story addition.

Mr. Stampfl said that to develop option “C”, variances would be needed for encroachment into the front yard, expansion to a second floor, mixed office and retail use. A special exception to expand an existing non-conformity would be required. There would be no height variance required. Parking stall size would be as in the current application, requiring variances.

Attorney Shawn Ward, representing Sycamore Street Community Association and Frank Tyrol asked Mr. Stampfl what was on the second floor of Goodnoe’s Corner and about setbacks for the proposed Promenade.

Mr. Stampfl said that there are apartments above the building with Jules Pizza/Cosi Café. The Promenade would have varying setbacks between 8 and 12 feet. The buildings along State Street in Newtown Borough are set back between 8 and 12 feet from the curb.

Mr. Ward asked for party status for John Tyrol, whose offices are across Sycamore Street from the subject property. His brother Frank Tyrol has already been granted party status.

Mr. John Tyrol was granted party status.

In response to questions from Mr. Katz, Mr. Stampfl said that the apartments above Goodnoe Corner are about 1300 to 1675 square feet. These are rental units and he did not know if all were occupied. The Promenade’s dwelling units are to be condominiums. He explained that the option “C” plan would need setback variances because the minimum front yard requirement is 20 feet; the existing encroachment is 8.5 feet. The paved parking area would be an encroachment.

Attorney Craig Smith, owner of Sycamore Street Association, the shopping center opposite Goodnoe’s Corner asked for party status. He had been granted party status in the Elliott Building Group’s Promenade application.

Mr. Smith was sworn in. He entered as Exhibit S-1, Allen Smith’s letter to Chairman Lenihan dated June 16, 2009. Mr. Smith said that he supports this project wholeheartedly. The plan for underground parking addresses his concerns. The proposed retail use will benefit all of Sycamore Street.

Mr. Murphy entered as Exhibit A-21 the curriculum vitae of Mark Roth, Traffic Engineer. Mr. Roth was accepted as an expert witness.

Mr. Roth was sworn in.

Mr. Murphy entered as Exhibit A-22 a Promenade Trip Generation Comparison.

Referring to Exhibit A-22, Mr. Roth explained that the exhibit compares trips for office use for a development like that shown in option “C” with the propose residential use proposed for the Promenade, noting that residential use generates 157 trips for 27 units, while the office use would result in 401 trips. He explained that the peak AM hour is one hour of peak traffic between 7:00 AM and 9:00 AM and peak PM is the peak one hour between 4:00 PM and 6:00 PM. With office use the AM trips are 342% greater and the PM trips are 321% greater than with residential use. These figures are taken from the Institute of Transportation Engineers, which are updated regularly. The residential trips are based on the number of units proposed.

Mr. Murphy entered as Exhibit A-23 a trip comparison for office/retail and for residential retail uses.

Mr. Roth explained that the comparison uses 27 residential units and 23,362 square feet of retail compared to 20,999 square feet each of office and retail. The total number of trips in a 24 hour period for the Promenade would be 1160 trips and for the office/retail as shown in option “C” the total would be 1303. and increase of 12%. There would be an increase of 111% for AM and 36 % for PM. These numbers are based on ITE Trip Generation Manual.

Mr. Murphy entered as Exhibit A-24 and ITE parking supply and demand chart.

Mr. Roth explained that this chart outlines the number of occupied spaces for low rise apartments, residential condos, single family homes, retail centers and general office uses. Typically 2 parking spaces per residential unit is adequate.

Mr. Lenihan asked how Exhibit A-24 compares with the JMZO requirements.

Mr. Roth said that in most instances the ITE estimate is lower than the JMZO requirement.

In response to Mr. Katz’s questions, Mr. Roth said that ITE uses data from all states; it differentiates among urban, suburban and rural data. For this comparison, urban data was used.

Mr. Katz expressed some concern that the chart is making comparisons to places like Manhattan.

Mr. Roth said that the ITE uses averages.

Mr. Machion asked whether Exhibit A-22 included only the residential trips.

In response to Mr. Machion’s questions, Mr. Roth said that A-23 shows the combined retail/residential trips. The retail peak trips are low because the retail would have a different peak hour, later than the office peak and residents would not all leave at the same time. The ITE handbook uses numbers for offices of less than 50,000 square feet, not the actual number of employees. A-23 shows data for Monday through Friday. Peak is between 11:00 AM and 2:00 PM on weekends for residential uses. He has not included among the exhibits any data for weekend trips. The number of cars per unit does not consider the square footage of the units. It is a national study and considers all types of dwellings.

Mr. Katz said that the assumptions used to create Exhibits A-22, A-23 and A_24 are based on national data and do not accurately represent Newtown Township’s driving and parking patterns. He asked that these exhibits should not be accepted and discussion of them be stricken.

Mr. Auchinleck said that each individual Board members can evaluate exhibits and testimony and decide how much weight to give.

Joseph Swerk was called by Mr. Murphy. Mr. Auchinleck reminded Mr. Swerk that he was still under oath.

In response to Mr. Murphy’s questions, Mr. Swerk said that he had not attended the last hearing on this application but had become aware of some questions as to the ability of the Emergency Services Squad to respond to calls for help in the proposed garage and the upper levels of the building. He explained that if a call were to come for a medical emergency in the lower level garage, the ambulance would drive as close as possible to the building and unload equipment and proceed to the victim via the elevator, stairs or entrance ramp. The response would be no different than if called to a single family residence. In response to Mr. Katz’s questions, Mr. Swerk said that the ambulance is 9 feet high. The responders would not attempt to drive into the garage but would drive as close as possible to the entrance. The time difference to unload all necessary equipment and walk to the victim rather than drive to him would be negligible. None of the EMS equipment is not portable. All equipment needed to respond to an emergency would be carried to the victim.

In response to Mr. Machion’s questions, Mr. Swerk said that the EMS responders would attempt to ascertain the reason for the call and bring appropriate equipment with them. It is possible, hypothetically that the responders would have to make more than one trip to the ambulance for equipment, but generally the responders know what type of call they are responding to and are prepared for it.

In response to Mr. Wall’s questions, Mr. Swerk said that the response would not be different if responding to house with a driveway not close to the door. Generally it is easier to respond to an apartment with an elevator.

In response to Mr. Murphy’s questions, Mr. Swerk said that the Ambulance Squad had participated as parties in opposition to the Elliott Building Group’s application. The Ambulance Squad is now 100% in support of the McGrath proposal because this plan proposes underground parking. The earlier plan proposed a parking structure with access through Ambulance Squad property.

All applicant’s exhibits were accepted.

Bradford Lare, representing Newtown Borough called Rand F. Jaslow. Mr. Jaslow was sworn in. In response to Mr. Lare’s questions, Mr. Jaslow said that he wanted to express the concerns of Newtown Borough Council and that he as speaking on behalf of the Borough Council. Mr. Jaslow thanked the Zoning Hearing Board for granting party status to the Borough, showing inter-municipal cooperation. The Borough has concerns about the height and with parking and traffic. The use is intense for the site and will cause traffic problems along Jefferson Street in the Borough. Because traffic concerns are addressed during land development he asked the Zoning Hearing Board, if variances are granted, to consider a condition to include the Borough in discussions about traffic.

Mr. Murphy said that the Borough’s concern about traffic would be a concern with development of the site regardless of the plan proposed.

Mr. Auchinleck asked how the Borough would propose such a condition could be added to any variance granted.

Mr. Lare said that the Borough would defer to the Township as to the proper condition. The Township does have the authority to place restrictions on variances.

Mr. Murphy asked whether the Borough would accept as a condition that the applicant would provide a copy of any traffic study to the Borough for comment during land development.

Mr. Lare and Mr. Jaslow agreed that this would be acceptable.

In response to questions from Mr. Wall and Mr. Auchinleck, Mr. Jaslow said that the Borough has not done a study of traffic on Jefferson Street. There has not been any discussion at Borough Council of making Jefferson a one-way street.

Shawn Ward, representing Sycamore Street Community Association, Frank Tyrol and John Tyrol, read into the record a letter from Frank Tyrol stating that he has been involved with the visioning and redevelopment of Sycamore Street and urging the Bord to grant what he considers reasonable variances as delay in this project will have adverse economic impact on the businesses on Sycamore Street. He expressed concern that if this developer leaves it could be a long time before another opportunity comes to develop the site. He entered the letter as Exhibit T-1.

Mr. Ward read into the record his letter to Chairman Lenihan on behalf of Sycamore Street Community Association. The letter expresses support for the proposed project and all of the variances requested, particularly noting the benefit to other businesses of a large retail tenant and of condominiums rather than rental apartments. The Association supports the proposed height of 41’7”, believing that the structure will be in harmony with the essential character and nature of the other properties on and near Sycamore Street. He entered the letter as Exhibit W-1.

In response to Mr. Katz’s question, Mr. Ward said that Mr. Tyrol is not an investor in this project; his investment is in other properties on Sycamore Street near this project.

Chuck Machion said that he is an attorney and would speak on his own behalf as well as representing Marty Ginty, also a party to the application. He said that he has been a resident of Newtown Borough for nine years and wants to see the site developed but does not want to see the current zoning sacrificed to do so. The zoning regulations exist to protect the community. He provided the Board with copies of relevant sections of the MPC and noted that the request for a 41’7” height represents a 40% increase and the setback is a 68% increase. The drive aisle variance would be a 28% variance. These are not minor modifications and not reasonable requests. They will have an adverse impact on the surrounding community. The proposed building is being shoehorned into a less than 2 acre site; it is too intense.

Marty Ginty was sworn in. In response to Mr. Machion’s questions, she said that she has lived at 149 North State Street since 1976. She is a retired teacher and has an interest in historic preservation. She has served on the Borough HARB from 1982 to 1997. She attended a program at Bucks County Community College and numerous workshops on historic preservation. As a member of HARB she has reviewed many plans to determine whether they are appropriate for a historic district. She has reviewed the plans for this application and thinks that if developed, the new building would alter the essential character of the neighborhood. The height and density and the increased traffic would negatively impact the community and would be detrimental to the public welfare. Her own personal property would be devalued. Those interested in purchasing a historic building in a historic district would not want a modern shopping center in view. The variances are exorbitant and would alter the streetscape and would be too imposing on the structures surrounding it. She described “infill construction” as building into an existing neighborhood to have a harmonious effect, complimenting the surrounding structures. She referenced the Stockingworks project as an appropriate “infill”. She said that this project is more appropriate to an urban setting, not to a small town. Because this is a rectangular lot, it could be developed within the current zoning.

Mr. Lionetti asked Ms. Ginty whether the Goodnoe’s Corner site fits well.

Ms. Ginty said that Goodnoe’s Corner does not fit with the rest of the street; she had not been in support of that project. She noted that it is in a different zoning district.

Mr. Machion said that he wanted to know the developer’s thought process and whether a smaller development had been considered or whether it was economically feasible.

Mr. Murphy said it was not relevant.

Mr. Auchinleck said that there is nothing in the record regarding economic feasibility and the applicant has not claimed an economic hardship.

Mr. Murphy said that Mr. Machion cannot cross-examine on anything not in the record. Mr. Machion has not subpoenaed the witnesses.

Mr. Auchinleck agreed that the applicant has not presented evidence of financial hardship and the Board cannot compel the witnesses to disclose financial information.

Mr. Machion said that the MPC and the Supreme Court have stated that the applicant has the burden of proof. He provided the Board with a copy of the case of A. Rhoades Wilson v. Plumstead Township Zoning Hearing Board, in which the Supreme Court of Pennsylvania found that the applicant’s need must be serious and compelling, with unique physical circumstances, no possibility that the property could be developed otherwise, and that the applicant did not create the hardship. In this case the property is rectangular and could be developed under the Ordinance with a smaller structure. The applicant paid a 59% premium for the property; the developer created the hardship. A variance should not be granted to provide the developer with the greatest rate of return.

Vince Lombardi was sworn in. Mr. Lombardi read into the record his letter in support of the proposed project. He said that he lives at 125 N. Sycamore Street and feels the current site is detrimental to the community, as it is unsightly and in disrepair. The proposed project will support the economic vitality of the local businesses, providing a residential presence on the street. The Church property will be enhanced/ The proposed height of the building has been reduced and is in harmony with the existing older buildings. Mr. Lombardi entered his letter as Exhibit L-1.

Mr. Lenihan asked if anyone in attendance wished to make comment before the Board makes a decision on the application.

Warren Waldorf was sworn in. Mr. Waldorf said that he is a resident of Newtown Borough. He said that the JMZO does not have condominium as a permitted use; it is a legal form of ownership. Only single family and twin homes are permitted in the TC zoning district. He noted that all of the permitted residential uses require 3 parking spaces, while this plan shows two spaces per unit. He said that this would not be adequate. Referring to Section 1507D of the JMZO and Section 910.2 of the MPC, Mr. Waldorf said that there are no special physical constraints and there is no hardship here so variances should not be granted.

Resident John D’Aprile of 118 Broadleaf Place was sworn in. Mr. D’Aprile said that this building appropriately blends old with modern styles and fits in the historic district. The project will bring business, jobs and opportunity to Newtown. Perhaps it is time to review and update the zoning. He said that a few residents of Jefferson Street should not be allowed to hold up this much needed project. He pointed out that the Borough residents were objecting to the height when there re so many taller buildings all around the Borough.

Resident Karen D’Aprile was sworn in. She said that the developer has worked hard to reduce this project’s height and size and he has complied with requests from the Supervisors and the Planning Commission.

Maureen Hutchinson of Newtown Borough was sworn in. She said that the plan is too big for the location and she objected to the developer’s threats to walk away from the project if not given the relief it needs.

John Rasiej of Wrightstown was sworn in. He urged the Board to uphold the current Ordinance as the variances will impact traffic and safety.

Jonathan Greg of 110 Congress Street, Newtown Borough was sworn in. He said that he serves on the Borough traffic committee and has concerns about traffic on Jefferson Street as were pointed out in a 2005 traffic taming study prepared by the DVRPC. He also had concerns that the proposed project will not be sensitive to the needs of handicapped people. He noted that the sidewalk on the pass-through road will have doors to the stores but will not be wide enough to accommodate a person in a wheelchair. He said that the applicant has not met the burden of proof.

Resident Harriet Beckert of 473 Lower Dolington Road was sworn in. She said that she had a Bachelor’s Degree in history and had certification from Bucks County Community College in historic preservation. She serves on the Township HARB. She said that the property is surrounded by the historic district and she has concerns about the appropriateness of such a massive structure in a historic district. It is longer than any other structure in the historic area and is not designed consistently with the “ Newtown style”. She hopes that the developer will work with HARB, as has been previously indicated. The height will negatively impact the district. She urged the Board to carefully consider the requested residential use proposed. The proposed two parking spaces per unit might not be adequate. There should be underground handicapped paring spaces. She is concerned about noise from deliveries. She said that there are ways that the developer can work on some of the problems and she hoped that the plan would address these concerns.

Resident Poncho Messier of 101 Wrights Road was sworn in. He said that he has considered moving into the building and thinks that the project will be good for Newtown. It will be a good place to live and will bring tax ratables to the Township. He is concerned that if this developer walks away it could be a long time before another project is built. He noted that as a former engineering teacher he has been attempting to measure the heights of other structures in the Township/Borough and it is impossible to judge the difference between a 40 foot and a 42 foot building from the street. He did not want to see this project scrapped over a few feet.

William Charleton, a real estate appraiser with offices at 130 N. State Street was sworn in. He said that if the site is developed it will increase traffic, regardless of which project is eventually developed. This developer has been willing to work with the community to address concerns. The site as it currently exists is having a greater impact on property values than this project would . It is a good fit for Sycamore Street. He noted that a building with the proposed height will serve to block the view of the cell tower which is the current view from Jefferson Street.

David Crocker of 64 Ponderosa Drive, Holland and owner of a business on State Street was sworn in. He said that the developer has worked with the Township to reduce the size of the project. He thinks the residential component would be good for the area and the proposed retail uses would bring commerce to the entire area.

Resident David Burns of 432 Taylor Avenue and owner of Burns Service Station at 123 Sycamore Street said that the builder has done a great job and the proposed plan will fit wonderfully on Sycamore Street. He is in full support of the plan.

Resident Pam Fitzpatrick of 331 Stoopville Road was sworn in. She noted that in the historic district consists almost entirely of 2 and 2.5 story buildings. She urged the Township to work with the Borough to preserve the historic nature of the area with smaller buildings.

Township Code Enforcement Officer Richard O’Brien had no comment.

Mr. Katz moved to grant variances to 200 North Sycamore Street, LP from the Joint Municipal Zoning Ordinance of 1983 as follows::

  • From Article VI, Section 603(A) to permit a single retail space, Use E-1, to occupy 11,500 square feet of contiguous space on the first floor as shown on Applicant’s Exhibit A-1, “Zoning Variance Plan for Promenade at Sycamore Street” dated May 4, 2009, and as amended during applicant’s testimony, granting relief of 1500 square feet; To permit redeveloped property to include up to 14 residential units, which use is not currently permitted in the TC Zoning District, which the condition that three parking spaces shall be built for each residential unit.
  • From Article VI, Section 603(B)(1) and Article X, Section 1000.E allowing a weighted average front yard setback of 16.66 feet where an absolute setback of 20 feet is required, granting relief of 3.34 feet on the weighted average, on the condition that individual portions of the building be constructed so as to comply with Applicant’s Exhibit A-2, and that no individual portion of the structure be closer than 7.19 feet from the property line. Granting relief for the minimum side yard setback requirements as follows for the south side of the building; allowing a weighted average side yard o the south end of the building to be 6.60 feet where six feet is required on the condition that individual portions of the building be constructed so as to comply with Applicant’s Exhibit A-2, and that no portion of the building be closer than 3.6 feet from the property line. Granting relief for the minimum side yard setback requirements as follows for the north side of the building; allowing a weighted verge side yard setback on the north end of the building to be 4.67 feet where six feet is required, on the condition that the individual portions of the building be constructed to comply with the applicant’s Exhibit A-2 and that no portion of the building be closer than 1.5 feet from the property line.
  • From Section 603(B)(1), granting relief of 2 feet for a maximum mean building height of 32 feet where 30 feet is required with the condition that no architectural element shall be greater than 35 feet.
  • From Article IX, Section 903(B)(4)(1), granting relief for the disturbance of steep slopes 15-25%, allowing the proposed disturbance of 100% of the steep slopes to be disturbed where 25% is allowed, granting relief of 75%.
  • From Article IX, Section 903(B)(4)(2), granting relief for the disturbance of steep slopes 25% or more, allowing a proposed disturbed area of 100% of the identified area, granting relief of 85% where a maximum of 15% of identified steep slope greater than 25% is allowed.
  • From Article IX, Section 903B(5)(b), granting relief for the disturbance of wooded areas, identified as woodland associations, allowing a proposed disturbance of 100% of the identified areas, granting relief of 50% where disturbance o f up to 50 percent of identified areas is allowed.
  • From Article X, Section 1001B.3, to permit parking stalls for the at-grade parking to be 9’X18’ and to permit 9’X16.7 parking stalls in the below grade parking, with double striping in the lower level parking garage,, as shown on Exhibit A-1.
  • From Article X, Section 101.B.5 to permit a minimum width parking aisle in the below grade parking to be 14.5 feet instead of the 20 feet otherwise required.
  • From Article X, Section 1002, to permit a single loading berth of 20’X43’ instead of 3 loading berths of 15’X50’,

Subject to the following conditions:

  • All refuse and trash collection shall be at off-hours
  • Deliveries by box trucks greater than 32 feet be at off-hours;
  • Small deliveries during business hours not be on Sycamore Street;
  • The first floor retail area not be greater than 23,362 square feet;
  • Entry and exit to below grade parking garage be constructed so as to permit access by all vehicles of the Newtown Ambulance Company and that the Newtown Ambulance Company and the Newtown Fire Marshal shall approve such entry and exit construction,
  • Six handicapped parking spaces be provided near the elevator in the lower level parking garage.
  • All relief is subject to the condition that the variances granted do not limit the Township’s right to review any conditional use or land development, including consideration of the number of employees proposed, the nature of the actual use, the hours of operation and any other relevant consideration as may actually be sought in any potential future conditional use application.

Mr. Lenihan seconded.

Discussion of motion: Mr. Lionetti said that that the restriction on the size of delivery vehicles permitted should be addressed at land development, not as part of the variance relief.

Mr. Lenihan said that because a variance is being granted to reduce the loading areas, the Zoning Hearing Board should consider such a condition.

Mr. Lenihan questioned whether there would still be room for adequate parking if handicapped spaces were added to the lower level.

Mr. Katz noted that there is a reduction in the number of units being permitted in his motion, making the number of required spaces fewer.

Mr. Lenihan said that there has been testimony showing that it would not be necessary for an ambulance to enter the garage. He did not think this should be a requirement. He also said that some of the other conditions might be too restrictive. He would like to consider allowing more residential units and a greater height variance.

Mr. Wall and Mr. Lionetti agreed. Both felt that the testimony from the president of the Ambulance Squad made it clear that it is never necessary for the ambulance to enter the garage.

The motion failed 1-4, with Mrs. Doorley and Messrs. Lenihan, Wall and Lionetti voting nay.

Mr. Lenihan moved to grant variances to 200 North Sycamore Street, LP from the Joint Municipal Zoning Ordinance of 1983 as follows: :

  • From Article VI, Section 603(A) to permit a single retail space, Use E-1, to occupy 11,500 square feet of contiguous space on the first floor as shown on Applicant’s Exhibit A-1, “Zoning Variance Plan for Promenade at Sycamore Street” dated May 4, 2009, and as amended during applicant’s testimony, granting relief of 1500 square feet; To permit redeveloped property to include up to 25 residential units, which use is not currently permitted in the TC Zoning District, which the condition that two parking spaces shall be built for each residential unit.
  • From Article VI, Section 603(B)(1) and Article X, Section 1000.E allowing a weighted average front yard setback of 16.66 feet where an absolute setback of 20 feet is required, granting relief of 3.34 feet on the weighted average, on the condition that individual portions of the building be constructed so as to comply with Applicant’s Exhibit A-2, and that no individual portion of the structure be closer than 7.19 feet from the property line. Granting relief for the minimum side yard setback requirements as follows for the south side of the building; allowing a weighted average side yard o the south end of the building to be 6.60 feet where six feet is required on the condition that individual portions of the building be constructed so as to comply with Applicant’s Exhibit A-2, and that no portion of the building be closer than 3.6 feet from the property line. Granting relief for the minimum side yard setback requirements as follows for the north side of the building; allowing a weighted verge side yard setback on the north end of the building to be 4.67 feet where six feet is required, on the condition that the individual portions of the building be constructed to comply with the applicant’s Exhibit A-2 and that no portion of the building be closer than 1.5 feet from the property line.
  • From Section 603(B)(1), granting relief of 10 feet for a maximum mean building height of 40 feet where 30 feet is required with the condition that no architectural element shall be greater than 42 feet.
  • From Article IX, Section 903(B)(4)(1), granting relief for the disturbance of steep slopes 15-25%, allowing the proposed disturbance of 100% of the steep slopes to be disturbed where 25% is allowed, granting relief of 75%.
  • From Article IX, Section 903(B)(4)(2), granting relief for the disturbance of steep slopes 25% or more, allowing a proposed disturbed area of 100% of the identified area, granting relief of 85% where a maximum of 15% of identified steep slope greater than 25% is allowed.
  • From Article IX, Section 903B(5)(b), granting relief for the disturbance of wooded areas, identified as woodland associations, allowing a proposed disturbance of 100% of the identified areas, granting relief of 50% where disturbance o f up to 50 percent of identified areas is allowed.
  • From Article X, Section 1001B.3, to permit parking stalls for the at-grade parking to be 9’X18’ and to permit 9’X16.7 parking stalls in the below grade parking, with double striping in the lower level parking garage,, as shown on Exhibit A-1.
  • From Article X, Section 101.B.5 to permit a minimum width parking aisle in the below grade parking to be 14.5 feet instead of the 20 feet otherwise required.
  • From Article X, Section 1002, to permit a single loading berth of 20’X43’ instead of 3 loading berths of 15’X50’,

Subject to the following conditions:

  • All refuse and trash collection shall be at off-hours
  • Deliveries by box trucks greater than 32 feet be at off-hours;
  • Small deliveries during business hours not be on Sycamore Street;
  • The first floor retail area not be greater than 23,362 square feet;
  • Entry and exit to below grade parking garage be approved by Newtown Fire Marshal and Newtown Ambulance Squad;
  • Six handicapped parking spaces be provided near the elevator in the lower level parking garage.
  • All relief is subject to the condition that the variances granted do not limit the Township’s right to review any conditional use or land development, including consideration of the number of employees proposed, the nature of the actual use, the hours of operation and any other relevant consideration as may actually be sought in any potential future conditional use application.
  • The applicant shall provide a copy of the traffic impact study to Newtown Borough Council.

Mr. Lionetti seconded.

Discussion of motion: Mr. Wall said that he did not agree with conditions referencing number of employees, etc, as this is part of the land development process.

Mr. Lionetti said that restriction of deliveries is not the purview of the Zoning Hearing Board.

Mr. Katz said that the building is too big. He said that the Township will live with what is placed at this site for a long time.

Mrs. Doorley said that the building is too high and the proposed use is too intense.

The motion passed 3-2, with Mrs. Doorley and Mr. Katz voting nay.

Mrs. Doorley moved to adjourn at 11:55 PM. Mr. Katz seconded and the motion passed 5-0.

 

Respectfully Submitted:

 

Mary Donaldson, Recording Secretary