ZONING HEARING BOARD
MINUTES OF THE MEETING OF MARCH 1, 2012
The Newtown Township Zoning Hearing Board met on Thursday, March 1, 2012 in the Newtown Township Building. In attendance and voting were: Chairman Karen Doorley, Vice Chairman Brandon Wind, Secretary Mario Lionetti and members Timothy Potero and Michael Iapalucci. Also in attendance were: James J. Auchinleck, Jr., Esq., Solicitor, Michael Hartey, Code Enforcement Officer and Justine Gregor, Stenographer.
Call to Order: Chairman Doorley called the meeting to order at 7:32 PM.
Approval of Minutes: Mr. Lionetti moved to accept the minutes of February 2, 2012. Mr. Wind seconded and the motion passed 4-0-1, with Mrs. Doorley abstaining.
The agenda was reviewed:
Continued Application of Brian and Joanne Mills, 1 Hillside Road
Continued Application of McDonald’s USA, LLC, 2875 South Eagle Road
Continued Application of Brian and Joanne Mills
Mr. Auchinleck informed the Board that he had received correspondence from Mr. Mills requesting that his hearing be continued to April 5, 2012, as he has an unexpected conflict and would be away on business this evening.
Mr. Wind moved to continue the application of Brian and Joanne Mills to April 5, 2012. Mr. Lionetti seconded and the motion passed 5-0.
Continued Application of McDonald’s USA, LLC’
Mr. Auchinleck reminded the Board that this is an application requesting a variance from section 1101(B)(5) of the Joint Municipal Zoning Ordinance of 2007 to permit a new 3,911 square feet McDonald’s Restaurant with an 18 foot wide driving aisle where 25 feet is required. The application had been opened and read into the record on January 5, 2012 and continued. For the benefit of residents in attendance, he explained that the Zoning Hearing Board is only considering this request for relief for the drive aisle width. He explained that if any residents wish to be parties to the application, if accepted as such, they would have the right to cross-examine the applicant and any of his witnesses, present evidence and witnesses, and make any statement concerning the application. Should they disagree with the decision of the Zoning Hearing Board, party status would give them the right to appeal the decision. Anyone present not wishing party status would be allowed to make statements for or against the application after the hearing and before a decision is rendered. All evidence from parties and comments from the public should be limited to the question of whether the drive aisle width should be permitted to be reduced.
Fran Poole, 157 Clieveden Drive, asked for party status. In response to Mr. Murphy’s questions, Mr. Poole located his home on an aerial photograph, marking it with a “P” and noting that his property is directly behind Cliveden’s open space and Durham Road. The distance from his home to the subject property is about 300 feet. He asked for party status for himself personally and for Cliveden Estates’ Homeowners Association, of which he is the president. He confirmed that the Homeowners Association owns the open space between Mr. Poole’s home and Durham Road.
Mr. Murphy had no objection. Mr. Poole, individually and Cliveden Estates were granted party status.
Judith Norkin, 149 Cliveden Drive, asked for party status for herself individually and as a member of Cliveden’s Homeowners Association’s Board of Directors. In response to Mr. Murphy’s questions, Mrs. Norkin located her home on the same aerial photo, marking it with an “N”.
Mr. Murphy had no objection. Mrs. Norkin was granted party status; Cliveden Estates Homeowners Association was already granted party status.
Kathleen McAndrews, 161 Cliveden Drive, asked for party status. She located her home on the aerial photograph, marking it with an “M.”
Ms. McAndrews was granted party status.
Theresa Lavin, 169 Cliveden Drive, asked for party status. She located her home on the aerial photograph, marking it with an “L.”
Ms. Lavin was granted party status.
John Koopman asked for party status on behalf of Newtown Township.
The Township was granted party status.
Mr. Potero said that he has a financial interest in McDonald’s as a shareholder. He recused himself from the hearing.
Mr. Iapalucci said that he had been a member of the Township’s Planning Commission when it reviewed this Zoning Hearing Board application. He participated in the discussion and recommended that the Supervisors oppose the application. He recused himself from the hearing.
Mr. Murphy explained that he represents the applicant; the application seeks relief for a drive aisle width of less than the required 25 feet. This is part of a land development for a 3900 square foot McDonald’s restaurant with drive through service. He will present two witnesses, the project engineer and the traffic engineer.
Engineer Michael Jietner and traffic engineer Philip Wursta were sworn in.
In response to Mr. Murphy’s questions, Mr. Jietner said that he is a senior engineer for Bohler Engineering, 3701 Corporate Parkway, Center Valley, PA. He is senior engineer for design of small sites. He has been licensed in New Jersey and Pennsylvania since 2002. He has offered testimony as an expert in many municipalities on numerous applications.
Mr. Murphy entered as Exhibit A-1, Mr. Jietner’s curriculum vitae.
Mr. Koopman asked if he is the engineer for McDonald’s.
In response to Mr. Koopman’s questions, Mr. Jietner said that he has been involved as senior engineer on this project from its inception. He has worked on 150-200 other McDonald’s projects, some new and some rebuilt or re-imaged restaurants.
Mr. Auchinleck accepted Mr. Jietner as an expert witness. He asked if all of the McDonald’s projects he’s worked on involved expert testimony.
Mr. Jietner said that about 75% of these projects have involved testimony.
Mr. Murphy entered as Exhibit A-2 the aerial photograph with the parties’ homes marked.
In response to Mr. Murphy’s questions, Mr. Jietner said that he prepared the site plans for this project. Referring to Exhibit A-2, he pointed out the site location and surrounding properties. The site is a portion of an 8.5 acre parcel with a 6,000 square foot existing vacant medical office building. The parcel is zoned PC, Planned Commercial and is part of Village at Newtown Shopping Center. The open space on the opposite side of Durham Road is zoned R-1. He demonstrated a 400 foot radius around the subject property, noting that the nearest residential home is 309 feet from the edge of the parking field. The closest signalized intersection is at Durham and Eagle Roads. He pointed out the Goodnoe’s Corner shopping center and Ice Cream Alley, pointing out the Green Parrot Restaurant, Cosi Café Restaurant and First Trust Bank, all within Goodnoe’s Corner, along with a number of retail shops.
Mr. Murphy entered as Exhibit A-3 an existing features plan dated July 1991.
Mr. Jietner said that this plan gives a closer view of the property than Exhibit A-2, and also shows the shopping center west of the subject site, including the Wells Fargo Bank, toll house and Bank of America.
Mr. Murphy entered as Exhibit A-4 a photograph taken from Durham Road facing the subject property.
Referring to Exhibit A-4, Mr. Jietner pointed out Durham Road, the landscape buffering and berm of the property and the existing vacant building and parking areas. This building is to be removed.
Mr. Murphy entered as Exhibit A-5, the plan which was attached to the Zoning application.
Mr. Jietner reviewed the plan for redevelopment as depicted in A-5. The plan shows a restaurant building with 58 seats, 41 parking spaces and the already existing access points. A new access point from Durham Road is to be added as required by JMZO Section 803 (E)(6), which requires use E-6, eating place with drive through to take access from an arterial street. This plan satisfies all zoning requirements except for the driveway width which is the subject of this application. The plans have been reviewed by the Township’s consultants, who found them otherwise compliant.
Mr. Murphy entered as Exhibit A-6 JMZO Section 1001, parking performance standards, noting the requirement for 20 foot minimum width for drive and parking aisles in the TC zoning district and 25 feet for all other zoning districts, and Exhibit A-7, JMZO 803 (E)(6)(3) which states that stacking lanes shall not be used for parking lot circulation aisles. Mr. Murphy entered Exhibit A-8, a proposed internal circulation plan.
In response to Mr. Murphy’s questions, Mr. Jietner reviewed the three access points to the site and circulation patterns around the site. He noted the two-way drive aisle, and the point where driving becomes one-way, only, going counter clockwise around the building. The circulation aisle is ten feet for the drive through window and 22 feet for the bypass lane. Where the drive aisle is one way, the parking is 60º angled parking. He noted the points where the bypass lane narrows to 18 feet at two different points. At both points the aisle is adjacent to the drive through 10-foot aisle; there are no raised barriers or curbs between the lanes, only painted lines. At the point where the aisle becomes a two-way aisle, it widens to 25 feet. Wherever there is two-way traffic the aisle is 25 feet. Wherever the aisle is less than 25 feet, it is for one-way traffic, only.
Mr. Murphy asked whether Mr. Jietner had visited the nearby banks to determine the widths of their drive aisles and bypass lanes.
Mr. Jietner said that he visited 1 st Trust Bank, Wells Fargo Bank and Bank of America on February 17, 2012 and measured all of their circulation lanes. He pointed out each bank’s location on Exhibit A-2. Bank of America has a one-way bypass lane, which circulates the building with a width which is 11 feet at one point then widens to 13-16 feet. Wells Fargo’s one-way bypass lane is 10 feet wide. 1 st Trust Bank has one way, 12 foot wide bypass lanes. Bank of America and Wells Fargo are in the PC zoning district; 1 st Trust is in the TC zoning district.
Mr. Koopman objected as not relevant.
Mr. Auchinleck overruled the objection. He asked Mr. Jietner to point out the bypass aisle at 1 st Trust again.
Mr. Jietner reviewed the 1 st Trust drive through and bypass aisles. In response to Mr. Murphy’s questions, he said he also visited First National Bank and Trust of Newtown at 773 Newtown Yardley Road and TD Bank at Upper Silver Lake Road.
Mr. Murphy entered as Exhibits A-9 and A-10 aerial photographs of First National Bank and TD Bank.
Mr. Jietner reviewed the circulation aisles at First National Bank noting that the one way aisle measures 15 feet at locations marked by a red star. This bank is in the LI zoning district, where the required drive aisle minimum width is 25 feet. The TD Bank bypass lane is 15 feet at the red starred location and it is adjacent to angled parking. He prepared these exhibits. He also looked at the fast food restaurants in the area, Chick-fil-A and Wendy’s.
Mr. Murphy entered as Exhibits A-11 and A-12, aerial photographs of Wendy’s at 2000 South Eagle Road and Chick-fil-A at 4 West Road, in the Newtown Shopping Center.
Mr. Koopman objected as there is no relevance; prior approved plans do not demonstrate hardship.
Mr. Murphy said that the standard is broader for dimensional variances; what exists in the surrounding area can be considered.
Mr. Auchinleck overruled the objection.
In response to Mr. Murphy’s questions, Mr. Jietner said that Wendy’s is in the PC zoning district. The red star on Exhibit A-11 notes a 15 foot wide, one-way, bypass lane next to the drive through lane.
Mr. Auchinleck asked whether the aisle is only 15 feet at the starred location.
Mr. Jietner said that the aisle narrows to 15 feet at that location. It is 23 feet at the rear and 25 feet elsewhere. Referring to Exhibit A-12, he said that the star on the plan points to a 17.5 foot bypass aisle width.
Mr. Auchinleck asked whether the Wendy’s location’s aisle was marked as one-way by signage.
Mr. Jietner said that he did not remember specific signage. There is no striping separating the aisles. He did not know whether someone could drive the other way.
Mr. Murphy entered as Exhibits A-13 and A-14, approved plans for Wendy’s and Chick-fil-A, and said that the date of approval is included. No variances were granted for drive aisle width. Mr. Murphy asked whether Mr. Jietner had reviewed any other municipalities’ ordinances on one-way and two way drive aisle widths.
Mr. Koopman objected; the only ordinance which is relevant is the Newtown Area Joint Municipal Ordinance. The application does not comply with this ordinance.
Mr. Murphy said that the Ordinance is vague as to one-way and two-way traffic.
Mr. Koopman said that the applicant has not challenged the validity of the Ordinance or requested an interpretation, but has only sought a variance.
Mr. Auchinleck overruled the objection.
Mr. Murphy entered as Exhibit A-15 a letter written by Mr. Jietner which notes eleven other municipalities’ ordinances dealing with drive aisle width.
In response to Mr. Murphy’s questions, Mr. Jietner said that on March 1, 2012 he reviewed eleven other nearby municipalities’ criteria and found that they do separate one-way and two way lane width requirements.
Mr. Koopman objected, noting that he does not know the basis for the information.
Mr. Jietner said that he reviewed each municipality’s ordinance himself.
Mr. Auchinleck asked whether Mr. Jietner selected the municipalities to be included in the memo.
Mr. Jietner said that he reviewed the Ordinances of lower Bucks County. The only municipality which did not differentiate between one and two-way traffic was Lower Southampton, which requires a 20 foot drive aisle.
On Cross examination, Mr. Koopman asked about the closest intersection to the site as seen on Exhibit A-2.
Mr. Jietner said that the closest intersection is Eagle and West Roads. West Road is to the west of the intersection with Eagle; to the east it is an internal drive aisle.
Mr. Koopman asked the tax map parcel number and dimensions.
Mr. Jietner said this is tax map parcel 29-3-24-6. He confirmed that it had been corrected since the application had first been advertised. The parcel is 8.5 acres, of which McDonald’s will occupy only a portion. McDonald’s is acting as an authorized agent of the parcel’s owner.
Mr. Murphy said that he has a letter of authorization, which he will provide. At this time no lease exists.
In response to Mr. Koopman’s further questions, Mr. Jietner said that land development is pending for this project. No further subdivision of the parcel is contemplated. The building to be removed is 6911 square feet; it is currently vacant, but Mr. Jietner did not know when it was last occupied. He personally prepared Exhibit A-2 in February of 2012. He has been involved with the project since the sketch plan phase about 14 months ago, at which time he visited the site, but does not recall whether the building still had a tenant. He does not know whether the building was vacated in anticipation of this application. The tax parcel includes Pier One and a pediatrics office. Wells Fargo Bank is not part of the same tax parcel. He is aware that there is a dental office adjacent to the Bank of America site, but he does not know how long it has been there. He said that he did not know the history of the shopping center and how long the pediatrics office, Wells Fargo and Bank of America had been at their current locations in the shopping center.
Mr. Koopman asked about Exhibit A-4.
Mr. Jietner said that he had taken the photograph in A-4 in the spring of 2011. The view shows trees in bloom. In winter the trees are bare, but the shrubs and berms are still in existence. The berm is a grade change from the curb to the internal driveway of about 2.5 feet. It would not block the sight of McDonald’s from Durham Road. Road improvements, including acceleration and deceleration lanes are to be determined by PennDOT. These features do not appear on the plans which had already submitted for land development. Although briefly referenced in the Township’s review letters, there has not been a determination from PennDOT regarding deceleration lanes.
Mr. Koopman said that Exhibit A-5 appears to be different from the plan submitted with the application.
Mr. Jietner said that Exhibit A-5 has not been submitted to the Township for any reviews for land development; it was prepared specifically for this meeting. There have been some revisions since the plans were submitted.
Mr. Murphy entered as Exhibit A-16 the plan which had been attached to the zoning application. The plan has been revised but not submitted for review.
Mr. Koopman asked whether the internal circulation plan shown as Exhibit A-8 had been submitted to the Township.
Mr. Jietner said that this plan was prepared for the zoning application and had never been submitted for review by the Township’s engineers. This plan shows two parking spaces at 60° angles and two perpendicular spaces. It also shows the circulation and crosswalks. The aisle is 18 feet on the west side and 22 feet at the south side. He reviewed the stacking of cars, noting that portions of the aisle are paved with concrete and stacking spaces 8, 9 and 10 are on bituminous pavement. Someone who parked in the 60º angled spot would cross the stacked cars to enter the building. The restaurant will have tandem order boards to move customers through more quickly. At peak times there are 7-8 cars stacked.
Mr. Koopman referred to Exhibit A-9 and asked Mr. Jietner to review the plan.
Mr. Jietner confirmed that the First National Bank is in the LI zoning district. The parking aisle is 25 feet wide; the area marked by a star is 15 feet wide. It is a bypass lane adjacent to three drive-through aisles. There is no parking adjacent to the bypass lane. He did not know when the Bank was built. It did not receive a variance for the bypass lane. He has designed banks in the past.
In response to Mr. Auchinleck’s question, Mr. Jietner said that he did not run any tests, but it appeared the aisle was wide enough to accommodate emergency vehicles.
Mr. Koopman referred to Exhibit A-10, the TD Bank. He said that he was the attorney for the bank when it was built.
In response to Mr. Koopman’s questions, Mr. Jietner said that he did not know whether the project required variances. He said that all two-way drive aisles at this location were 25 feet wide. The one-way circulation lane is 15 feet for its entire length.
Mr. Koopman referred to Exhibit A-11 and asked about the width of the drive aisles at the rear of the building.
Mr. Jietner said that the drive aisle at the rear of the building, with perpendicular parking, for two way traffic and is 23 feet wide. The side facing Eagle Road is 25 feet except where it narrows to 15 feet at the exit, which is marked by a star. He did not see any signs prohibiting a left turn at that exit or a “do not enter” sign, but it appears to be designed as a right out, one way exit.
Mr. Koopman asked whether Mr. Jietner had gathered the information in Exhibit A-15.
Mr. Jietner said that all of the municipalities listed are in Bucks County. He looked at the Ordinances on line on the municipalities’ Web sites. He followed up with the municipalities’ administrative staff to confirm that the ordinances on the Web sites were up to date. He did not have any documentation this evening to show that he had followed this procedure. He sampled the municipalities surrounding Newtown for the list. He did not look at boroughs’ ordinances. He considered a variety of different commercial zoning districts. He did not edit the attachments to Exhibit A-15.
Mr. Koopman noted that he had also obtained a copy of Northampton’s ordinance. He entered it as Exhibit T-1, pointing out an asterisk which appears on his copy but not on Exhibit A-15.
Mr. Poole asked whether, in Mr. Jietner’s experience with 150-200 McDonald’s plans, it had been typical to make changes to the plans as they go through land development.
Mr. Jietner said yes, that the plans are altered to comply with ordinances, to create a safer environment, to make safer circulation patterns.
Mr. Poole asked if this lot posed any unusual problems, causing many design changes since the plan was first introduced.
Mr. Jietner said that the plan is consistent with earlier versions and the plan provides normal site circulation. In response to Mr. Poole’s further questions, Mr. Jietner said that a 400 foot radius was used in Exhibit A-2 to show the surrounding properties and the surrounding uses.
Mr. Poole asked about the Ordinance’s requirement to provide walkways to sidewalks.
Mr. Jietner said this would be part of land development; whether sidewalks would be required has not been determined yet. If the sidewalk is required, McDonald’s will install it.
Mr. Poole asked if any of the designs attempted met the 25 foot drive aisle requirement.
Mr. Jietner said that there was not a design which would meet the requirement and be safe. He did not think it would be safe to have a 25 foot wide one way drive aisle. A one way aisle should be narrower to avoid conflict and confusion.
Mr. Poole asked whether volume was considered when preparing the exhibits showing drive aisles at banks.
Mr. Jietner said that he only considered drive aisle width, not traffic volume. In response to Mr. Poole’s further questions, he said that he did not draw a 400 foot radius around the Chick-fil-A restaurant because there were only commercial uses nearby. He was standing on the north curb when he took the photograph in Exhibit A-4. He was aware that the houses on the other side of Durham Road are at a higher elevation than the shopping center. He has not seen a requirement of 25 feet for a one-way drive aisle in any municipality anywhere he has worked in Pennsylvania or New Jersey.
Mr. Poole asked the Chairman whether other residents could ask for party status at any subsequent meetings.
Mr. Auchinleck said that there would be an opportunity to seek party status at any continued meeting.
Mrs. Norkin asked whether sidewalks would be installed as required along Durham Road.
Mr. Auchinleck explained that the Township had not required sidewalks on Durham Road when the shopping center was built. The applicant could only be compelled to install sidewalks along its own frontage; those sidewalks would not connect to anything.
Mrs. Norkin asked whether this plan has been reviewed by the Township.
Mr. Auchinleck said that the plan submitted to the Zoning Hearing Board has not been reviewed by the Township engineering consultants. If the plan goes forward to land development, such a review would be required.
Mrs. Norkin asked why Mr. Jietner would want to reduce the width of the drive aisles.
Mr. Jietner said a narrow aisle is safer to keep traffic in line going one way.
Mrs. Norkin asked the Chairman why she did not receive written notification of this evening’s meeting.
Mr. Auchinleck said that residents within 500 feet of the property received written notification of the application when it was advertised for the January 5, 2012 hearing. The hearing has been continued twice, but no additional notices are required.
Mr. Koopman asked what the standard lot size is for a McDonald’s of this plan’s size.
Mr. Jietner said that the lot size ranges from 0.75 to 1.5 acres. The lots he has seen have been different shapes, including triangular.
Mr. Koopman asked whether it is true that a design with a 25 foot drive aisle would not have fit on the site.
Mr. Jietner said that he did not think the 25 foot aisle would be safe. He would not design a plan with a 25 foot one-way aisle.
Mr. Auchinleck asked whether it would be physically possible to design a plan with a 25 foot wide drive aisle around the building which would still meet McDonald’s other criteria.
Mr. Jietner said that he did consider such a plan at one time.
Mr. Koopman asked for a copy of the plan.
Mrs. Doorley asked whether McDonald’s would reduce the size of the restaurant to comply with the Ordinance.
Mr. Jietner said that there are certain minimum requirements for the different McDonald’s restaurants. The size depends on the location, the expected volume of sales and other factors. In response to Mr. Wind’s question, he said that he was approached to develop a plan for this particular building. There had not be consideration of a restaurant without a drive through window for this location; it was not considered a viable project.
The Board agreed to continue the application to a special meeting on April 12, 2012, provided the room is available.
Mr. Murphy reserved the right to redirect questioning of this witness.
Mr. Lionetti moved to continue this application to a special meeting on April 12, 2012. Mr. Wind seconded and the motion passed 3-0.Mr. Wind moved to adjourn at 10:45 PM. Mr. Lionetti seconded and the motion passed 5-0.
Mary Donaldson, Recording Secretary