ZONING HEARING BOARD
MINUTES OF THE MEETING OF SEPTEMBER 2, 2010
The Newtown Township Zoning Hearing Board met on Thursday, September 2, 2010 in the Newtown Township Building. In attendance and voting were: David Katz, Chairman; Mario Lionetti, Secretary, William Wall and Brandon Wind, members. Also in attendance were: James J. Auchinleck, Jr., Esq., Solicitor and William Campbell, Stenographer.Call to Order
Mr. Katz called the meeting to order at 7:30 PM.The Pledge of Allegiance
Approval of Minutes
Mr. Wall moved to approve the minutes of August 5, 2010. Mr. Katz seconded and the motion failed 2-0-2, with Messrs. Lionetti and Wind abstaining.
Mr. Auchinleck advised the members to place these minutes on the next agenda.
The Agenda was reviewed:
Application of Thomas and Carol Boyle – 43 Providence Court
Continued Remand Hearing by Court Order in the Application of OHB Homes, Inc. – Goodnoe Tract, Eagle Road South of Wrights Road
Application of Thomas and Carol Boyle
Mr. Lionetti read into the record the application of Thomas and Carol Boyle, owners, requesting a variance from section 401(C) the Joint Municipal Zoning Ordinance of 2007 to permit construction of an approximately 46.5 feet by 18 feet deck of which 16 feet by 16 feet will be covered by a roof and a 1,036 sq. ft. concrete patio with a walk, steps and a wall resulting in a rear yard set back of 32.8 feet for the patio, 38.2 feet for the deck and 41.3 feet for the roofed deck where 50 feet is required. The subject property is 43 Providence Court, Newtown Meadows, Newtown, in the CM Conservation Management Zoning District, being further known as Tax Map Parcel #29-38-34.
Thomas Boyle and Carol Boyle were sworn in.
Mr. Katz asked if anyone present wished party status. There was no response.
Mrs. Boyle explained that she would like to remove a small, old deck from the rear of her house and install a larger patio, deck and walkway. A portion of the deck will be covered.
Mr. Lionetti asked whether the Boyles have the approval of their homeowners association and about the properties behind theirs.
Mrs. Boyle said that the Newtown Meadows Homeowners Association has approved provided a variance is granted. The house backs to development owned open space which is about 100 feet wide and then a wooded area.
The recording secretary confirmed that the property was posted on August 27, 2010.
Mr. Lionetti moved to grant a variance from section 401(C) the Joint Municipal Zoning Ordinance of 2007 to permit construction of an approximately 46.5 feet by 18 feet deck of which 16 feet by 16 feet will be covered by a roof and a 1,036 sq. ft. concrete patio with a walk, steps and a wall resulting in a rear yard set back of 32.8 feet for the patio, 38.2 feet for the deck and 41.3 feet for the roofed deck where 50 feet is required. Mr. Wall seconded and the motion passed 4-0.
Continued Remand Hearing by Court Order in the Application of OHB Homes, Inc. – Goodnoe Tract, Eagle Road South of Wrights Road
Mr. Auchinleck explained that all parties have agreed prior to the meeting that Zoning Hearing Board Vice Chairman Karen Doorley would participate in this hearing via speaker phone.
Mr. Auchinleck explained to the Board that the Court has ordered the application of OHB Homes back to the Zoning Hearing Board, asking that an earlier application for the same property should have been considered when deciding the more recent application. The applicant and the parties opposed have presented a series of exhibits and provided memoranda of law addressing this earlier case. The Zoning Hearing Board is now being asked whether, in light of the prior application, to reaffirm its decision or to reconsider the application.
Mr. Wall noted that the advertisement for this evening’s meeting reads only as a continued application seeking relief.
Mr. Auchinleck said that the form of the advertisement is accurate in that it mentions the “court order.” The judge at the higher court questioned that the earlier application and relief granted at that time was never mentioned in the transcript or referenced in the written decision. Should the Board vote to reaffirm its decision, the written decision would include that the prior decision was considered.
Mr. Wind asked whether the written decision would be circulated among the Board members for input and comment.
Mr. Auchinleck said that if the decision is affirmed, the written decision would analyze the differences between the two applications leading to different decisions by the Zoning Hearing Board.
Mr. Lionetti said that the brief provided by Mr. Koopman representing Newtown Township had stated that the prior variances had expired. He asked whether that must be considered.
Mr. Wind asked whether the people who had sought party status on August 5, 2010 would be granted party status.
Mr. Auchinleck said that the question of the prior variances would be addressed in the decision. The following people are granted party status:
James McCrane – 3 Blayze Court
Tony Lauro – 4 Blayze Court
Gerald McLaughlin – 12 Blayze Court
Marty Sommers – 250 Eagle Road
John Behr – 9 Blayze Court
Lori Greene – 17 Madison Court
Mr. Murphy continued his objection.
Mr. Wall said that it is his understanding that the variances granted in 2007 would expire after six months if no activity occurred. He said that a permit was applied for and then the appeal was filed, stopping the clock.
Mr. Koopman said that no appeal had been filed on the original Zoning Hearing Board decision. Subdivision and Land Development (SALDO) approval was appealed in the Commonwealth Court where SALDO approval was denied.
Mr. Auchinleck said that he disagreed with Mr. Koopman on this point. He said that after SALDO approval was denied, the applicant could have refilled a different land development plan using the variances. The applicant could have submitted a plan which complied with the SALDO density requirements within six months. In response to Board questions, he said that it might have been possible to develop a new, compliant plan using the variances within the six months, but such plan may not have been economically viable.
Mr. Katz said that he thought the first variances had not yet expired on the date that the second variances were applied for; he asked whether at the time of the second application the first variances were still in effect.
Mr. Koopman said that when the Township granted land development approval, the applicant had six months to get permits. The time was stayed during the appeal of the SALDO decision. The applicant had six months to file a new plan using the variances granted; instead the applicant filed a new plan with new variances.
Mr. Katz said that the briefs submitted discussed res judicata. He asked Mr. Koopman to explain this.
Mr. Koopman said that this means that the same issues cannot be litigated again. This is not the an instance of res judicata; the relief sought is different, the parties are different.
Mr. Katz asked Mr. McCrane why he did not seek party status until two years after the start of these applications.
Mr. McCrane said that he did not know at the time of the first application that the site capacity calculations were incorrect. He did not learn this until after the first Zoning Hearing Board application and after land development review. It was his understanding that the developer had sketch plans for a large lot development and for a cluster development.
Mr. Katz asked whether the large lot plan would have required zoning relief.
Mr. Murphy said that the developer presented a large lot plan which required some zoning relief and a by right cluster, small lot, development.
Mr. Katz asked whether the Township created the hardship condition when it asked the developer not to move forward with the by right cluster but to build the large lot plan which required relief.
Mr. Koopman said that this is not a legally recognized hardship.
Mr. Katz asked whether both sketch plans were presented to the Planning Commission and Board of Supervisors for review.
Mr. Koopman said that the applicant could have pursued both plans; the Township did not create the hardship. The plans used for the second application showed a 40 unit twin home plan. This is double the number of homes. There was no hardship in the first Zoning Hearing Board application. It was the conditional use, not the first Zoning Hearing Board application which was appealed by nearby residents.
Mr. Katz asked about the disturbance of agricultural soils in both applications. He said that the property had been subdivided in 1983, disturbing the agricultural soils. He asked why the applicant continued to seek variances.
Mr. Murphy said that he had been unaware that this would have been the Township’s position. Once this was learned it was included.
Mr. Koopman said that this question is still on appeal. It is not the Township’s position but the engineer’s opinion.
Mr. Katz asked Mr. McCrane who brought to his attention that the first plan’s site capacity calculations might not have been compliant.
Mr. McCrane said that he had discussed this with the Planning Commission’s engineer at that time; she had said that it was not her interpretation.
Mr. Wind asked whether the Board is being asked to vote again on the variance or to explain the rationale behind the decision.
Mr. Auchinleck said that the Board is being asked to either affirm its decision or deny and rescind it. If the Board rescinds its decision, hearings will be scheduled which will allow participation of the newly added parties. The Board is being asked to vote on the decision in the second application, only. The record is being supplemented to include consideration of the first application.
Mr. Katz referred to Judge Waite’s letter which “remanded for further consideration” the application.
Mr. Katz moved to rescind the 2009 decision. Mr. Wall seconded.
Discussion of motion: Mrs. Doorley said that this motion would re-open the hearing that the Zoning Hearing Board had already spent many months on.
Mr. Lionetti agreed/
Mr. Wind asked whether there is a legal standard for doing this.
Mr. Koopman said that the Judge raised the issue of whether you are bound by the prior decisions or if there are valid reasons to distinguish between the two applications.
Mrs. Doorley said that each application was submitted in connection with a different plan. She had voted against the second application because it involved too much disturbance.
Mr. Katz said that the second application sought either the same or less relief than the first. The 1983 subdivision made this no longer agricultural soils. The property has had no active farming. Upon reconsideration, he thought it was wrong to deny the second application.
Mr. Koopman said that the Judge is not asking if the Board wants to reverse its decision but if there is a valid reason to feel two different ways about the two different applications.
Mr. Auchinleck explained that the Board must supplement the record to show that the first decision has been considered. Does the first decision bind the Board; does res judicata apply?
Mr. Murphy said that even if res judicata does apply, the Judge saw two decisions radically different. Relief was granted before and in the second application, seeking less relief the application was denied.
Mr. Koopman disagreed. The Judge does not know whether the Board considered the first application when hearing the 2009 application. Both applications sought relief to disturb agricultural soils, but in each case a different plan was involved. Was there a basis for distinguishing between the two cases? The parties are not the same; the plans are not the same. The different parties not part of the first case is a basic element of res judicata.
Mr. Auchinleck explained that it does not matter why the parties were different in the two applications, just that they are different. The parties in the second application objected to the application for relief to do something. The parties did not object to the relief to build 20 homes but do object to relief to build 40 homes. In the first case the Zoning Hearing Board heard only one side; no one opposed the application.
The motion failed 2-3, with Mrs. Doorley, Mr. Wind and Mr. Lionetti voting nay.
Mr. Lionetti moved to affirm the decision in the 2009 application after having considered the prior decision. Mr. Wind seconded and the motion passed 3-1-1, with Mr. Katz voting nay and Mr. Wall abstaining.
Mr. Wall said that he did not believe that affirming or denying the second decision was the appropriate action to take from the Judge’s instruction. He said that the Board should have asked the parties to reconsider the previous cases.
Mrs. Doorley disconnected her telephone connection.
Mary Donaldson, Recording Secretary