The Newtown Township Zoning Hearing Board met on Thursday, January 3, 2013 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, Martin Vogt, Code Enforcement Officer and Justine Gregor, Stenographer.

Call to Order: Mrs. Doorley called the meeting to order at 7:30 PM.

The agenda was reviewed:

Reorganization of Zoning Hearing Board

Application of Vecchia Osteria Restaurant, 20 A Richboro Road

Application of Council Rock School District/Goodnoe Elementary School, 298 Frost Lane

Reorganization of Board

Mr. Auchinleck said that, as the Supervisors have not held their reorganization meeting and Mrs. Doorley’s reappointment has not yet been confirmed, reorganization should be tabled until the February meeting.

Mr. Wind moved to continue the reorganization of the Zoning Hearing Board until February 7, 2013. Mr. Lionetti seconded and the motion passed 5-0.

Approval of Minutes

Mr. Potero moved to approve the minutes of November 1, 2012. Mr. Lionetti seconded and the motion passed 4-0-1, with Mr. Wind abstaining.

Application of Vecchia Osteria

Mr. Lionetti read into the record the application of Vecchia Osteria requesting variances from sections 601(B) and 803(E-5)(4) to permit a 1475 sq. ft. outdoor dining area with tent and ten outside tables with 40 chairs resulting in an impervious surface ration of 53.85% where the existing non-conforming ratio is 52.52% and provided and provided 40 parking spaces where 70 are required. The subject property is 20A Richboro Road, Newtown Depot Shopping Center in the CC Convenience Commercial Zoning District, being known as tax parcel number 29-11-48.

Attorney Don Marshall represented the applicant.

Mrs. Doorley asked if anyone present wished to be a party to this application. There was no response.

Pasquale Paolini was sworn in.

Mr. Marshall explained that Mr. Paolini owns Vecchia Osteria at Newtown Depot Shopping Center, use E-5, in the CC Convenience Commercial Zoning District. The restaurant has 80 seats in a 2.6 acre strip mall. The shopping center has 102 parking spaces, but, as the shopping center pre-dates the current ordinance, the uses have each been assigned specific numbers of parking spaces. Vecchia Osteria has been assigned 40 spaces. A few years ago, Mr. Paolini added 40 seats to the patio at the restaurant, and last year erected a tent over the patio. A permit was issued by the Township for the tent. In researching the permit, it was revealed that former Township Code Enforcement Officer John Boyle had questioned whether the additional seating met with parking and impervious requirements, but this matter had not been pursued. Mr. Paolini is now attempting to correct any problems in this regard by seeking variances to allow 40 spaces and an impervious ratio of 53.85% where 50% is the maximum permitted.

Mr. Marshall entered the following exhibits:

A-1 – As built plan (attached to application)

A-2 and A-3 – Deed to property showing German Avenue as vacated paper street

A-4 – Agreement between Township and Richard Guzikowski (shopping center owner) regarding German tract detention basin, grandfathering uses and adding the additional impervious surface to 52.52% for the paint store addition.

A-5 – Letter dated August 19, 2009 from Zoning Officer John Boyle regarding outdoor seating at restaurant. An application for a variance was prepared at that time.

A-6 – Memo from Mr. Marshall’s file stating that Township has indicated no variance is needed, as old agreement covers additional impervious surface.

A-7 – Letter to Mr. Paolini confirming that a variance would not be required

A-8 – Addendum to Mr. Paolini’s lease giving him the use of the patio

A-9 – Township issued tent permit – this permit notes that outdoor seating is not permitted.

A-10 – Letter to Township Solicitor asking for clarification on outdoor seating

A-11 – Memo from Mr. Marshall’s file regarding Township Solicitor’s advice to seek zoning relief.

Mr. Marshall said that the restaurant has 80 seats indoors and 40 seats on the patio; with ten employees, the use would require a total of 70 parking spaces, the basis for the application. The addition of the tent brings the impervious surface to 53.85%, where 50% is permitted and 52.52% is an existing non-conformity. The impervious surface calculation includes the vacated portion of Howard Avenue. The tent covers the entire patio.

Mr. Marshall reviewed the hours of operation of the other shopping center tenants, noting that only Dunkin Donuts is opened 24 hours a day, seven days a week. Most other businesses close between 5:00 PM and 7:00 PM, Monday through Saturday and only a few have hours on Sunday afternoons. The Planning Commission did not believe parking is a problem at this shopping center, but did suggest that should it become a problem, employees should arrange for off-site parking. Mr. Marshall noted that the patio has been in use for three years. The applicant would arrange for employee off-site parking, if necessary, however five of the employees are family members who come to work in the same car. They park at the far end of the shopping center at the rear of the stores.

Mr. Paolini confirmed Mr. Marshall’s summary of the application.

Mr. Lionetti asked to review the hours the tent/patio would be in use.

Mr. Paolini said that he would use the tent from 7:00 PM to 10:00 PM, Monday through Saturday and noon until 10:00PM on Sundays. The tent is removed in summer months, but the patio remains in use.

Mr. Iapalucci asked the total number of parking spaces in the shopping center. He noted that some of the earlier plans show parking spaces held in reserve.

Mr. Marshall said that there are a total of 102 parking spaces. The reserve parking spaces were used for the German Avenue stormwater improvement project.

Lynn Roberts was sworn in. Ms. Roberts said that she is the daughter of the owner and is the manager of the shopping center. She entered as Exhibit A-12 a letter dated March 6, 1997 confirming that the 13 reserve spaces were given to the sewer authority for the drainage project. She showed an aerial photograph of the area and noted the location which has been the reserve parking area. The lot now contains 97 parking spaces and 5 handicapped parking spaces.

Mr. Iapalucci asked who installed the paver patio.

Mr. Marshall said that Mr. Paolini installed the pavers. Prior to installation, there had been tables on the grass.

Mr. Iapalucci said he has concerns that other shop owners are having difficulties if there is not sufficient parking in the evening. He noted that with the tent, this is a year round addition, and other shopping center businesses might suffer. He asked why the parking is not based on shopping center shared parking calculations.

Mr. Auchinleck explained that this shopping center pre-dates the current ordinance; parking was calculated for the individual uses.

Mr. Iapalucci asked whether the Zoning Hearing Board could consider measures such as valet parking should the parking issues become detrimental to other businesses.

Mr. Auchinleck said that this would become a difficult enforcement issue for the Township.

Mr. Wind said that he did not think there is a parking problem, only a walking problem. There is parking available behind the shopping center which is rarely used. He has never had difficulty parking in this shopping center.

Mr. Potero agreed that there is adequate parking, although sometimes not directly in front of the restaurant.

Mr. Lionetti suggested that the shopping center owner install signage alerting customers to additional parking at the rear.

Mr. Lionetti moved to grant variances from sections 601(B) and 803(E-5)(4) to permit a 1475 sq. ft. outdoor dining area with tent and ten outside tables with 40 chairs resulting in an impervious surface ration of 53.85% where the existing non-conforming ratio is 52.52% and provided and provided 40 parking spaces where 70 are required, subject to the condition that the use of the patio be limited to 7:00 PM to 10:00 PM Monday through Saturday and noon to 10:00 PM on Sunday. Mr. Wind seconded.

Discussion of motion: Mrs. Doorley asked whether the patio is open for lunch during the week.

Mr. Paolini said that he did include lunch hours in his variance application. He would like to open for lunch as well if those hours could be added.

Mr. Lionetti amended his motion to include use of the patio to serve lunch from noon to 2:00 PM, Monday through Saturday while the tent is down in the summer. Mr. Wind amended his second.

Discussion of motion: Ms. Roberts asked whether the same time restrictions would apply for special events and private parties like bridal showers.

Mr. Auchinleck said that the restrictions would be the same for special events.

The motion passed 5-0.

Application of Goodnoe Elementary School, 298 Frost Lane

Mr. Lionetti read into the record the application of Goodnoe Elementary School, Council Rock School District, owner requesting variances from sections 803(C-2)(4) and 803(C-2)(3)(b) and 1001(B)(5) due to plan revisions related to 16370 sq. ft. building addition to allow parking with 10.5 feet of property line instead of 100 feet and driveways less than the required 25 feet. The subject property is 298 Frost Lane in the EIR, R-1 and POS Zoning Districts, being known as tax parcel number 29-10-45-1.

Mrs. Doorley asked whether anyone in attendance wished to seek party status in this application.

Mr. Auchinleck explained to residents in attendance that if they wish to be a party to the application 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.

No residents sought party status.

Michael Carr represented the applicant. Doug Taylor, Council Rock Facilities Manager, was sworn in.

Mr. Carr reminded the Board that the School District had already been granted variances in connection with this land development project to expand Goodnoe Elementary School, eliminate temporary modular classroom and reconfigure access and parking. At the prior hearing the District had sought a 109.44 foot setback, but the numbers had been transposed to 190.44 feet in the decision. The district would like this corrected. In addition, a 1% increase in impervious surface is no longer required. Relief is needed for a reduction in a drive aisle to less than the required 25 feet and to permit parking within 10 feet of the property line shared with the Township.

Mr. Carr showed the plans for revisions to the entrances to the school, pointing out that the one-way entrance drive is slightly narrowed to between 20 and 23 feet at some points. The new parking area near the Sail School is to be extended, creating the need for a 10 foot setback near the Township property line. After meeting with Township staff it was determined that a construction easement from the Township will be needed.

Mr. Iapalucci asked about screening for the playground.

Mr. Carr said that playground has been placed near the kindergarten entrance. It will be screened along the property line. Fencing and heavy timber guardrails will be added around the playground.

Mr. Lionetti asked whether the narrower drive aisle has been approved for emergency access.

Mr. Carr said that the plans have been approved by the Township EMS service. The aisle is adequate for emergency vehicles. In response to Mrs. Doorley’s question, he said that the drive aisle already exists.

Mr. Potero asked whether buses would need to drive on the narrower drive aisle.

Mr. Taylor reviewed the entrance and exit procedures for both school buses and parent pick-up, noting that buses are kept separate from the parent vehicles at all times. The new procedure eliminates stacking on Frost Lane.

Mr. Carr noted that both the Planning Commission and Board of Supervisors were supportive of the plan.

Newtown Borough resident Nancy Carroll said that she has concerns about the safety and privacy of children in the playground, where they will be very visible to passersby. She also questioned the use of wooden fences around the playground.

Mr. Carr said that heavy timber guardrails will surround the playground, protecting it from possible out-of-control cars.

Mr. Auchinleck said that he is familiar with the proposed guardrails; they are used on highways and in national parks, and are as effective as concrete bollards.

Mrs. Carr said that she is concerned that the children would be visible from the street and asked that the playground be screened. She also said that she felt the proposed parking will not be adequate, especially when the school hosts events for parents.

Mr. Wind asked how high the proposed fence will be and whether it will be screened.

Mr. Taylor said that the fence would be between 4 and 6 feet. It will not be screened but the property will be buffered. The children will be supervised in the playground and it is the administration’s preference to provide a clear view from the playground so that supervising staff can see anyone watching in or children wandering off and hiding from supervision.

Mr. Wind moved to grant variances from sections 803(C-2)(4) and 803(C-2)(3)(b) and 1001(B)(5) due to plan revisions related to 16370 sq. ft. building addition to allow a playground with a 110 foot setback, parking with 10 feet of property line instead of 100 feet and driveways less than the required 25 feet, with driveways as identified in the plan attached to this Zoning Hearing Board application. Mr. Lionetti seconded and the motion passed 5-0.

Other Business

Mr. Auchinleck noted that the July meeting would fall in Independence Day. If a meeting were necessary, he asked whether the members would agree to an alternate date.

The members agreed to meet on July 11, 2013.

Mr. Potero moved to adjourn at 9:15 PM. Mrs. Doorley seconded and the motion passed 5-0.

Respectfully Submitted:


Mary Donaldson, Recording Secretary