NEWTOWN TOWNSHIP

ZONING HEARING BOARD

MINUTES OF THE MEETING OF AUGUST 5, 2010

The Newtown Township Zoning Hearing Board met on Thursday, August 5, 2010 in the Newtown Township Building. In attendance and voting were: Chairman David Katz, Vice Chairman Karen Doorley and member William Wall. Also in attendance were: James J. Auchinleck, Jr., Esq. and Justine Gregor, Stenographer.

Call to Order

Chairman Katz called the meeting to order at 7:30 PM.

The Pledge of Allegiance

The Agenda was reviewed:

Application of Gerald and Mary DeYoung – 103 North Sycamore Street

Remand Hearing by Court Order in the Application of OHB Homes, Inc. – Goodnoe Tract, Eagle Road South of Wrights Road

Approval of Minutes

Mrs. Doorley moved to accept the minutes of July 1 and of July 15, 2010. Mr. Wall seconded and the motion passed 3-0.

Application of Gerald and Mary DeYoung

Mr. Katz read into the record the application of Gerald and Mary De Young, owners, requesting a variance from section 603(B)(1) the Joint Municipal Zoning Ordinance of 2006 to permit construction of an approximately 24 feet by 32 feet detached garage to replace an existing 16 feet by 42 feet detached garage in the same location, demolishing the existing garage and resulting in a side yard set back of 4 feet where 6 feet is required. The subject property is 103 N. Sycamore Street, Newtown, in the TC Town Commercial Zoning District, being further known as Tax Map Parcel #29-12-9.

Gerald and Mary DeYoung were sworn in.

Mr. Katz asked if anyone wished to be party to the application. There was no response.

Mr. DeYoung explained that he wishes to remove his old garage and replace it with a new garage with a slightly different footprint. The new garage will require a new pad. He entered as Exhibit A-1 a letter of support from his adjoining neighbor, Robert Lang. He said that he has approval of the Joint Historic Commission to demolish the old garage.

The recording secretary confirmed that the property had been posted on July 27, 2010.

Mr. Katz moved to grant a variance from section 603(B)(1) the Joint Municipal Zoning Ordinance of 2006 to permit construction of an approximately 24 feet by 32 feet detached garage to replace an existing 16 feet by 42 feet detached garage in the same location, demolishing the existing garage and resulting in a side yard set back of 4 feet where 6 feet is required. Mrs. Doorley seconded and the motion passed 3-0.

Remand Hearing by Court Order in the Application of OHB Homes, Inc.

Mr. Auchinleck reminded the Board that it had denied relief to OHB Homes in 2009. OHB Homes had appealed that decision. Judge Waite determined that the application should be remanded to the Zoning Hearing Board for consideration of an earlier application by the same applicant for similar relief on the same property. The Zoning Hearing Board had granted the relief, although it was for a different plan for land development. The court is asking whether the earlier decision should have been considered.

Counsel for the applicant and for the Township have agreed to supplement the exhibits and are asking the Zoning Hearing Board to hold its decision until memoranda of law have been submitted.

Resident James McCrane said that a number of neighbors would like to be granted party status.

Mr. Auchinleck reminded those in attendance that Mr. McCrane, Paul Furlong and Anthony Lauro, along with Newtown Township, had already been granted party status in this application.

Resident Marty Sommer of 215 Eagle Road asked for party status.

Attorney Ed Murphy, representing OHB Homes, Inc., objected to granting party status during the remand phase of the application. He asked Mr. Sommer the location of his home.

Mr. Sommer said that he lives directly opposite the subject properties.

Attorney John Koopman, representing Newtown Township, said that he believed there is case law addressing the question of party status during the remand phase. He asked that Mr. Auchinleck withhold the granting of party status; he would address this issue in his memorandum.

Mr. Auchinleck said he would withhold his decision until the September meeting and asked if any others in attendance wished party status.

Gerald McLaughlin of 12 Blayze Court asked for party status. In response to Mr. Murphy’s question he said that he lives on the same street as Mr. McCrane.

Lora Green of 17 Madison Court asked for party status. She lives in the Pheasant Pointe development across the street from the subject property.

John Behr of 9 Blayze Court asked for party status.

Mr. Murphy continued his objection to granting party status at the remand phase of the application. He would address the objection in his memorandum of law.

Mr. Murphy entered as Exhibit AR-1, a “timeline of events, 2007 and 2009 ZHB Applications.” He and Mr. Koopman have stipulated to certain documents and have agreed that they are factually accurate.

Mr. Koopman entered the following exhibits:

  • TR-1 – OHB variance application seeking approval for 21 large lot singles filed March 28, 2007

  • TR-2 – Newtown Township Planning Commission minutes of meeting of April 17, 2007 review of OHB variance application for 21 large lot singles.

  • TR-3 – Newtown Township Board of Supervisors minutes of April 18, 2007, review of OHB variance application for 21 large lot singles.

  • TR-4 – Transcript of Newtown Township Zoning Hearing Board meeting of May 3, 2007 regarding OHB March 2007 application for variances to build 21 large lot singles.

  • TR-5 – Newtown Township Zoning Hearing Board minutes of May 3, 2007 regarding OHB March 2007 application for variances to build 21 large lot singles.

  • TR-6 – Newtown Township Board of Supervisors minutes of September 23, 2009 regarding adoption of 2009 Comprehensive Plan update.

  • TR-7 – Newtown Area Joint Comprehensive Plan – 2009.

Mr. Koopman said that he and Mr. Murphy have stipulated that these documents are factually correct. He said that he would not present any additional evidence nor would he call additional witnesses. He would submit a brief, only.

Mr. Murphy noted that the decision of Judge Waite incorrectly identified James McCrane as appealing the 2007 Zoning Hearing Board decision; Mr. McCrane had appealed the Township’s conditional use approval.

Mr. Murphy confirmed that he agreed to the factual content of documents submitted. He would present no additional witnesses. He rested his case.

Mr. Wall asked that the decision of the Judge be reviewed.

Mr. Auchinleck said that the Zoning Hearing Board is being asked to consider whether the first decision is binding on the second decision. The court rejected the 2007 plans for which variances had been granted. The applicant developed new plans. It is possible that the original plans could have been amended and might have been approved. The Zoning Hearing Board is being asked to address whether the 2009 decision to deny relief should have taken into account that the same relief had already been granted. The second decision did not reference that it was made based on different plans.

Mr. McCrane said that the first plan had been approved relying on faulty site capacity calculations. At the time the first variances were sought he had misunderstood which plans were being considered. Some time earlier he had seen sketch plans at the Planning Commission. He did not understand these were not the plans presented for relief.

Mr. Auchinleck said that the parties are welcome to submit briefs.

Mr. Murphy said that Mr. McCrane had not been sworn in. His previous statement is hearsay.

Mr. McCrane was sworn in. He affirmed his prior statement.

Mr. Wall urged the parties to consult an attorney on the requirements of a memorandum of law before submitting one. The briefs will be looking for legal arguments and case law.

Mr. Auchinleck said that all briefs would be submitted at the same time. He would contact the attorneys and parties regarding this.

Mrs. Doorley moved to continue the remand hearing in the application of OHB Homes, Inc. Mr. Wall seconded and the motion passed 3-0.

Mrs. Doorley moved to adjourn at 8:30 PM. Mr. Wall seconded and the motion passed 3-0.

Respectfully Submitted:

 

Mary Donaldson, Recording Secretary