The Newtown Township Zoning Hearing Board met on Thursday, December 3, 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, John Boyle, Assistant Township Manager 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. Lionetti moved to accept the minutes of December 3, 2009. Mr. Katz seconded and the motion passed 5-0.

Newtown Pavilion Associates

Mrs. Doorley of Newtown Pavilion Associates, owners, requesting a variance from section 803(C-10)(4)(c) to permit construction of a fenced outdoor play area for a C-10 Childcare facility to encroach into the front yard (4,384 sq ft out of 5,350 sq ft) where outdoor play areas are permitted only in the rear or side of the property located at 6 Penns Trail in the L-I Light Industrial Zoning District, being further known as Tax Map Parcel #29-10-40.

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

Attorney David Sander represented the applicant.

Evan Lambrose, Denise Lambrose and Vince Nevitsky were sworn in.

Mr. Sander entered as Exhibit A-1 the plan for the proposed facility, as Exhibit A-1-a, a colored copy of the plan and as Exhibits A-3, A-4, A-5 and A-6, a series of photographs of the property.

Mr. Sander explained that the applicant wishes to open a daycare center in an office building at the corner of Penns Trail and Newtown Yardley Road. This use, C-10, is permitted by right in the L-I Zoning District. The building is a 25,000 square foot office building which is currently 60% vacant. The daycare center will bring the vacancy to 36%. This will be a Montessori style daycare. A condition of the lease is Zoning Hearing Board relief for the fenced in play area.

Mrs. Doorley said that Montessori is a specific type of school, not daycare. Montessori schools teach from Pre-K through 8 th grade.

Mr. Sander explained that the directors of the facility are trained in the Montessori method and have an agreement with the Montessori organization, but will be providing daycare from infancy through age 6 from 6:30 AM to 7:00 PM with occasional weekend hours for special and/or seasonal events.

Mr. Auchinleck said that for zoning purposes the use is C-10, daycare.

Mr. Sander explained that the facility will house a maximum of 82 children, or one child per 40 square feet of space, indoors. The number of employees will be based on the number and ages of the children, as mandated by the state. The outdoor play area must be 65 square feet per child, or 5330 square feet. The plan proposes a 5350 square foot play area.

Mr. Sander reviewed Exhibit A-1-a, showing the proposed playground area, which is on the Newtown Yardley Road frontage and also the Penns Trail frontage; the property, as a corner property, has two front yards and two side yards. He reviewed the other areas surrounding the building, noting that because of the parking area and driveway circulation area, it would not be appropriate to place the playground on the west side of the building. The south side of the building is on the opposite side of the building from the daycare facility, so the children would not have direct access to the playground from the facility.

Mr. Sander said that the front yard is the only sensible location for the playground. It has direct access from the facility, is a flat expanse for the play equipment, has a few mature trees to provide shade and, although facing Newtown Yardley Road is 25 feet from the road. The Ordinance requires a 4 foot fence for the children’s safety. At the Planning Commission there had been some question as to whether a 4 foot fence is permitted in the front yard, but it appears that this restriction in Section 803-H-13 of the Ordinance references residential accessory structures. Also discussed at the Planning Commission was concern for the children’s safety if a car were to lose control and leave the road. The applicant proposes to surround the fence with either a guardrail or concrete bollards, which will be screened by additional plantings. All other requirements of the Ordinance are met, including the required 28 parking spaces. The existing lot has 99 spaces with 16 additional parking spaces held in reserve. All signs will comply with the Ordinance. The facility will be licensed by the state and the business will have no adverse impact on the neighborhood and will provide a benefit to the Township.

Mr. Lambrose, Mrs. Lambrose and Mr. Nevitsky confirmed Mr. Sander’s summary of the application.

Mr. Lenihan asked what other tenants are located at this site.

Mr. Lambrose said that there is a psychology office, Kids First medical office, a wholesale jeweler and an alternative energy consultant’s office.

Mr. Lenihan asked if the Board of Supervisors or Planning Commission had any comments on the application.

Mr. Sander said that both bodies commented on the need for additional fortification of the fence for the children’s safety. There was also discussion of the 3-foot height maximum for front yard fences, but the Board of Supervisors was satisfied this limit is only for residential use.

Mr. Auchinleck confirmed for the Zoning Hearing Board that the restriction is for residential use.

Mr. Lionetti asked that the fortification bollards or guardrail be placed around the entire length of the Newtown Yardley Road and Penns Trail portions of the fence. He also suggested that a fence higher than four feet might be more appropriate since the playground will face a very busy street. He would prefer more privacy for the children. He questioned the procedure for bringing the children to the playground from the building, which seems to require walking them along an arcade, rather than taking them directly into the fenced area.

Mr. Katz expressed some concern that in the event of an evacuation, such as during a fire drill, the children would not be taken directly into the enclosed area. The Board agreed that an additional door should be installed to lead directly from the facility to the playground.

Mr. Wall said that he would also recommend a six-foot fence for safety reasons, as taller kindergarteners might be able to scale a four foot fence.

Mr. Lambrose agreed that he would enclose the entire yard with a six-foot fence.

Mrs. Doorley said that the Montessori is a school, not a daycare. She would not support the application for that reason.

Mr. Lambrose said that the licensing from the Montessori organization allows the licensee to determine whether to be a school or daycare.

Mrs. Lambrose noted that the hours extend beyond the educational day, providing full-time daycare for children as young as 18 months of age.

Mr. Katz noted that the daycare centers in Newtown all provide certain educational components for a portion of each day.

Mr. Boyle said that the property was posted on November 24, 2009.

Mr. Lenihan moved to grant a variance from section 803(C-10)(4)(c) to permit construction of a fenced outdoor play area for a C-10 Childcare facility to encroach into the front yard (4,384 sq ft out of 5,350 sq ft) where outdoor play areas are permitted only in the rear or side of the property, subject to the following conditions:

  1. The fence shall be 6 feet high on the North ( Newtown Yardley Road) and West (Penns Trail) sides of the playground;
  2. Barriers, either bollards or guardrails, as shown on Exhibit A-1, are to surround the entire north and west sides of the playground and are to be approved by the Township engineer;
  3. An entrance door is to be installed on the east wall of the building to provide direct access from the daycare center to the fenced playground.

Mr. Wall seconded and the motion passed 4-1, with Mrs. Doorley voting nay.

Mr. Katz moved to adjourn at 8:15 PM. Mrs. Doorley seconded and the motion passed 5-0.


Respectfully Submitted:


Mary Donaldson, Recording Secretary