NEWTOWN TOWNSHIP

ZONING HEARING BOARD

MINUTES OF THE MEETING OF May 5, 2011

The Newtown Township Zoning Hearing Board met on Thursday, May 5, 2011 in the Newtown Township Building. In attendance and voting were: Brandon Wind, Vice Chairman; Mario Lionetti, Secretary and Timothy Potero, member. Also in attendance were: James J. Auchinleck, Jr., Esq., Solicitor and Michael Hartley, Code Enforcement Officer and Justine Gregor, Stenographer.

Call to Order

Mr. Wind, acting as chairman, called the meeting to order at 7:30 PM.

Approval of Minutes

Mr. Lionetti moved to accept the minutes of January 6, 2011. Mr. Potero seconded and the motion passed 3-0.

The Pledge of Allegiance

The agenda was reviewed:

Application of Matthew Held and Eva Blancho Held – 433 Linton Hill Road

Application of Scott Unger – 5 Ainsley Court

Application of West 85 th LLC (Baylinks Golf) – 8 Pheasant Run

Application of Keystone Novelties, LLC – 2900 South Eagle Road

Application of Matthew Held and Eva Blancho Held

Mr. Lionetti read into the record the application of Matthew Held and Eva Blachno-Held, owners, requesting a variance from section 404(B) of the Joint Municipal Zoning Ordinance of 2007 to permit construction of 350 square feet patio (removing 85 square feet of existing walkway) resulting in an impervious surface ratio of 20.73% where the maximum permitted is 12%. The subject property is 433 Linton Hill Road, in the R-1 Medium Density Residential Zoning District, being known as tax parcel number 29-13-70.

Matthew Held was sworn in.

Mr. Wind noted that the application had not been notarized and asked Mr. Held to confirm his signature.

Mr. Held affirmed that the signature on the application was his.

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

Mr. Held explained that he wants to add a patio to the rear of his home, which will result in an increase in impervious surface of 265 square feet.

Mr. Wind said that the property currently has 19.47% impervious where 12% is the maximum, but no prior variance exists.

Mr. Held said that he purchased the home about a year ago. The pool had been installed by the previous owner without a variance. He explained that he had learned from the Zoning Officer that at one time his development, Linton Hill Farm, had a 20% permitted impervious surface.

Mr. Auchinleck said that the 20% could have been for the entire development project, not necessarily for the individual lots.

Mr. Hartley had no comment.

Mr. Lionetti moved to grant a variance from section 404(B) of the Joint Municipal Zoning Ordinance of 2007 to permit construction of 350 square feet patio (removing 85 square foot of existing walkway) resulting in an impervious surface ratio of 20.73% where the maximum permitted is 12%. Mr. Potero seconded and the motion passed 3-0.

Application of Scott Unger

Mr. Lionetti read into the record the application of Scott Unger, owner, requesting a variance from the Joint Municipal Zoning Ordinance of 2007 as affected by the Linton Hill Chase Record Plan to permit construction of a 16 feet by 23 feet open wooded deck resulting in a rear yard setback of 26.3 feet where 30 feet is required. The subject property is 5 Ainsley Court, in the CM Conservation Management Zoning District, being known as tax parcel number 29-20-50.

Scott Unger was sworn in.

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

Mr. Unger explained that he would like to construct a deck at the rear of his home, similar to other decks in his neighborhood. His home backs to open space.

Mr. Auchinleck asked if he had shown his plan to his neighbors.

Mr. Unger said that his neighbors are supportive of his plan. Most of his neighbors have already sought zoning relief for rear setbacks for decks and patios.

Mr. Hartley had no comment.

Mr. Lionetti moved to grant a variance from the Joint Municipal Zoning Ordinance of 2007 as affected by the Linton Hill Chase Record Plan to permit construction of a 16 feet by 23 feet open wooded deck resulting in a rear yard setback of 26.3 feet where 30 feet is required. Mr. Potero seconded and the motion passed 3-0.

Application of West 85 th (Baylinks Golf)

Mr. Lionetti read into the record the application of West 85 th LLC (Bay Links Golf), lessee, requesting variances from sections 1106 (G)(2) and (G)(4)(a) of the Joint Municipal Zoning Ordinance of 2007 to permit three signs for individual use (C-6 health club) in multi-tenant building. Three signs of sizes 108.2, 28 and 18 square feet are requested where the maximum permitted is one sign of 2 square feet. The subject property is 8 Pheasant Run, Suite 10A in the L-I Light Industrial Zoning District, being known as tax parcel number 29-10-146.

Robert Murray was sworn in.

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

Mr. Murray entered as Exhibit A-1 a series of photographs of the property. Mr. Murray explained that Baylinks is a facility offering electronic golf activities in a setting conducive to recreational as well as business/social meetings. Baylinks is located in an adapted former warehouse in the Newtown Business Commons. The building is shared with Morningstar, Dentaurum and Cameron Troilo’s offices. The current sign ordinances present a hardship because his location cannot be easily identified in the shared warehouse space, and can be unsafe for first time visitors trying to find the entrance while driving.

Mr. Murray reviewed his application and Exhibit A-1, explaining that he wishes to have one large, wall mounted sign on the Terry Drive side of the building over Baylinks’ entrance doors. This sign would be less than the 110 square feet in the application. It would be visible and readable from the intersection of Terry Drive and Pheasant Run. The second sign would be a free standing sign at the intersection of Pheasant and Terry, not to exceed 30 square feet. The third sign would be placed at the parking lot entrance at the southeast corner of Terry Drive.

Mr. Murray explained that many of his patrons are first time visitors to the area and are unfamiliar with the location. The building’s address is 8 Pheasant Run, but his door is on Terry Drive. There are two driveways into the building, with his driveway on Terry Drive. GPS systems take drivers to the far end of Pheasant Run. Morningstar has reported that they have many lost patrons making inquiries at their facility. His aim is to make Baylinks easily visible to motorists coming from any direction from the Terry Drive/Pheasant Run intersection.

Mr. Lionetti, referring to the photographs in Exhibit A-1, asked the dimensions of the Dentaurum sign.

Mr. Murray pointed to a page in Exhibit A-1 which gives the sizes of the comparable signs in the Commons. Dentaurum’s free standing sign is 20 square feet, as is Morningstar’s.

Mr. Wind asked about the photographs of the Baylinks entrance, each with a different Baylinks sign.

Mr. Murray explained that the photo with the square sign over the doorway shows the current temporary sign.

Mr. Wind reviewed the dimensions of the rendering of the proposed wall mounted sign, which appears to be smaller than has been requested in the application.

Mr. Murray explained that he had estimated possible sign sizes for the application. The rendering in Exhibit A-1 shows a 64 square foot sign which includes the Baylinks name in letters less than one foot high and the logo. The free standing sign measurements shown include the posts. He has attempted to keep the signs low to be visible below the trees on the lawn.

Mr. Auchinleck noted that the posts are not to be included in dimensional calculations, only the sign itself.

Mr. Wind said that he was not sure all of the signs were necessary. The large sign over the doorway did not seem necessary because drivers would have already identified the location by the freestanding signs and a much smaller sign could identify the correct entrance door.

Mr. Murray said that in addition to identifying the location, he is identifying his brand. He did not want the sign to seem small on such a large building. His aim was to look proportional to the large wall of the building.

Mr. Lionetti said that he understood the need for the large sign on the building and the freestanding sign near the driveway entrance but was not sure whether the sign at the corner would also be necessary, as it does not indicate the direction of the entrance.

Mr. Murray explained that he wanted a sign visible on Pheasant Run to drivers coming from the west heading east toward the intersection with Terry Drive. The business has a Pheasant Run address and many patrons do approach from that direction.

Mr. Lionetti suggested that perhaps one freestanding sign, located where it would be visible from both streets, perhaps with a directional arrow, might function as well as two separate signs. This, in combination with the large sign over the door, might resolve all of the issues of confusion.

Mr. Wind said that it would be helpful for the Zoning Hearing Board to see some photographs with the proposed signs superimposed within the existing landscaping. It would also be helpful to know the distance from the intersection to the entrance.

Mr. Lionetti suggested that the application be continued so that the applicant could provide the additional photographs and perhaps re-evaluate his preferences, if the Board were inclined to only grant variances for two large signs.

Mr. Murray asked if he could be granted a variance for the wall mounted sign and he would return at a later date for the freestanding signs. He expressed some concern about paying additional fees to continue the application.

The members agreed that no additional fee should be charged since the Zoning Hearing Board is asking for additional information before rendering a decision.

Mr. Murray agreed to return in June with the additional information requested.

Mr. Lionetti moved to continue the application of West 85 th LLC to June 2, 2011. Mr. Wind seconded and the motion passed 3-0.

Application of Keystone Novelties, LLC.

Mr. Lionetti read into the record the application of Keystone Novelties LLC, Lessee, appealing from the action of the zoning officer issued March 18, 2011 denying a permit for a temporary tent for sale of fireworks/novelties to be held June 27, 2011 to July 5, 2011 in the shopping center parking lot. The subject property is 2900 South Eagle Road, Village at Newtown Shopping Center (behind Bank of America) Newtown, in the PC Planned Commercial Zoning District, being further known as Tax Map Parcel ## 29-3-24-3.

Brian Shaub and Wes Runnels were sworn in.

John Koopman represented Richard O’Brien, Newtown Township Zoning Officer. Mr. O’Brien was sworn in.

Mr. Auchinleck explained that, as this is an appeal of the action of the Zoning Officer, the Township has the burden of proof.

Mr. Koopman called Mr. O’Brien.

In response to Mr. Koopman’s questions, Mr. O’Brien said that he is an employee of Keystone Municipal Services and has served as Newtown Township’s Zoning Officer at different times from 2006 to the present. He had reviewed the Keystone Novelties application for a temporary tent for the sale of fireworks.

Mr. Koopman entered as Exhibit T-1, an aerial photograph of the Genuardi’s area of the Village at Newtown Shopping Center with the area of the proposed tent highlighted and as Exhibit T-2, a letter signed by Michael Hartley dated March 18, 2011, denying the application.

Mr. O’Brien explained that the applicant proposed a temporary tent, open on all sides, for the sale of fireworks novelties. The basis for the denial was that the tent would take up ten parking spaces. The land development for this shopping center required these spaces to be available.

Mr. Koopman entered as Exhibit T-3, the land development plan for this phase of the shopping center. The plan was approved in 1990 with integrated parking. No spaces are specifically allocated to each business.

Mr. O’Brien said that this phase of the shopping center includes both sides of Eagle Road, two banks near Durham Road as well as the retail area including Genuardi’s. The phase was granted a variance on June 6, 1991 to permit 5.5 parking spaces per 1,000 square feet of retail space where 6.5 spaces are required. This phase of the shopping center requires 1097 parking spaces. There are 1097 spaces in this phase. To grant the permit for the tent would have eliminated ten parking spaces, as the proposed tent is 2,000 square feet.

Mr. Auchinleck asked whether additional parking spaces would be required for the additional 2,000 square feet of retail space.

Mr. O’Brien said that the tent would require an additional 11 parking spaces.

Mr. Wind asked whether the tent would be considered a new store.

Mr. O’Brien said that it is not a new pad site, but is an additional 2,000 square feet of retail space, requiring additional parking.

Mr. Auchinleck noted that an accessory use is permitted, such as for selling holiday flowers.

Mr. Koopman said that the permit was denied on the basis of parking only. It did not consider other issues. He submitted as Exhibit T-4 the Township’s Zoning Ordinance, and noted that in the PC zoning district temporary structures are permitted by right for seasonal sales, use C-3, “in front of premises.” For example, existing stores can sell items such as flowers in front of the stores.

Mr. Wind asked whether such temporary sidewalk sales and temporary structures are for existing tenants, only.

Mr. Koopman said that the accessory is limited to existing tenants. Use H-7, temporary structures, permits temporary structures, such as during construction or other special circumstances of a non-recurring nature. He gave as an example, during the time when McCaffrey’s in Lower Makefield burned down, a temporary tent was erected for sale of groceries while the building was being rebuilt.

Mr. Koopman said that the Ordinance permits sale of fireworks in the QA Zoning District, but the novelties proposed by Keystone are sold in supermarkets and dollar stores.

Mr. Auchinleck asked if the Zoning Hearing Board were to find that the Zoning Officer were incorrect, could this lead to other temporary tents for sales such as flea markets.

Mr. Koopman again stated that the accessory is limited to existing uses and not in the parking area.

Mr. Shaub said that his company has temporary tents at 350 locations. They have visited this site on numerous occasions and have never seen any cars parked there. It does not seem to be used by bank customers or bank employees. There are six vacant stores in this section of the shopping center, which would use 100 parking spaces. The tent would take ten parking spaces and would be required to provide 11 additional spaces for customer and employee parking. The six vacant stores have 18000 square feet of unused retail space, leaving 100 parking spaces available.

Mr. Wind asked whether Keystone Novelties would cancel its tent sale in Newtown if these six shops had tenants by June.

Mr. Shaub said that the Centro Shopping Center rental agent has indicated there are no prospects for tenants for the six vacant shops at this time. He had expected the shopping center rental agent to testify to this, but she has been detained.

Mr. Wind asked why Keystone did not take one of the vacant storefronts.

Mr. Shaub said that the business has over 500 pounds of fireworks delivered on flats to the location. It could not meet the H-3 fire standards. Only a very small amount of products could be kept inside a store. Fire marshals all prefer tents for better safety. When supermarkets sell these fireworks it is usually in smaller amounts; frequently they are not in compliance with fire safety standards.

Mr. Auchinleck asked about security.

Mr. Shaub said that each location has a 24 hour presence. No smoking is permitted. There are sides to the tents, which are pulled down during bad weather. His business has run 15,000 similar sales. He noted that at the time of his application, he had been unaware that there was already a variance granted for parking.

Mr. Wind asked about the number of employees, hours of operation, deliveries and restrooms for employees.

Mr. Shaub said that he usually has one or two employees working in shifts for the ten days of the sales, with hours from 9:00 AM to 9:00 PM. The employees drive to the site and park at the site. They use the restrooms in nearby businesses. At this time no specific permissions for restroom use have been granted. Delivery is by one 26 foot truck on the first day, bringing 87 cases of fireworks. Occasionally additional deliveries might be made by van.

Mr. Lionetti asked whether Acme or Genuardi’s would be permitted to erect a tent for a temporary sale.

Mr. Koopman said that a permit would be denied for a tent in the parking lot, but would probably be permitted on the sidewalk.

Mr. Runnel said that when the site was first considered, it was believed they would need 1 parking space per 120 square feet plus one per employee. It was calculated that the section of the parking lot being considered has 222 parking spaces and required only 102 for the bank and an additional 24 for the tent itself, tent customer parking and employees’ parking. It was not known that this was shared parking for the entire phase of the shopping center.

Mr. Auchinleck explained that if the Board found that the Zoning Officer’s decision was wrong, then all tents would be permitted. If this had been approached as a request for a variance for this temporary tent, the Zoning Hearing Board could decide to grant a parking variance for this tent at this location at this time and future applications would be decided on a case by case basis. If the Zoning Hearing Board were to find the actions of the Zoning Officer to be wrong, they would always be wrong in denying temporary tent permits.

Mr. Lionetti moved to uphold the action of the Zoning Officer issued March 18, 2011 denying a permit for a temporary tent for sale of fireworks/novelties to be held June 27, 2011 to July 5, 2011 in the shopping center parking lot. Mr. Potero seconded and the motion passed 3-0.

Other Business

Mr. Auchinleck informed the Board that in the application of WEN-Hamilton (Birches at Newtown) the decision included a variance for parking which should not have been included, as the applicant had withdrawn the request. A corrected decision will be circulated among the members for signatures. Mr. Auchinleck said that he would inform the applicant.

Mr. Lionetti moved to adjourn at 10:15 PM. Mr. Wind seconded and the motion passed 3-0.

 

Respectfully Submitted:

 

Mary Donaldson, Recording Secretary