ZONING HEARING BOARD
MINUTES OF THE MEETING OF OCTOBER 3, 2013
The Newtown Township Zoning Hearing Board met on Thursday, October 2, 2013 in the Township meeting room. In attendance and voting were: Karen Doorley, Chairman, Brandon Wind, Vice Chairman, Mario Lionetti, Secretary and members Tim Potero and Michael Iapalucci. Also in attendance were James J. Auchinleck, Jr., Solicitor, Martin Vogt, Code Enforcement Officer and Justine Gregor, Stenographer.
Call to Order: Chairman Doorley called the meeting to order at 7:30 PM.
Approval of Minutes: Mr. Lionetti moved to approve the minutes of September 5, 2013. Mr. Iapalucci seconded and the motion passed 3-0-2, with Messrs. Potero and Wind abstaining.
The agenda was reviewed:
Continued Application of Newtown Racquetball Association, 120 Pheasant Run
Continued Application of Daniel Smolczynski, 135 Swamp Road
Application of Mark and Deborah Weinstein, 39 Harmony Way
Application of Mercer Bucks Cardiology, 104 Pheasant Run
Application of Sycamore Salon, 9 South Sycamore Street
Continued Application of Newtown Racquetball Association
Mr. Auchinleck informed the Board that the applicant has requested that this application be postponed until the November meeting.
Mr. Wind moved to continue the application of Newtown Racquetball Association to November 5, 2013. Mr. Lionetti seconded and the motion passed 5-0.
Application of Mark and Deborah Weinstein
Mr. Lionetti read into the record the application of Mark and Deborah Weinstein, owners, requesting a variance from the Joint Municipal Zoning Ordinance of 2007 as affected by Lakeview Final Plan to permit construction of a 12 feet by 15 feet screened porch and a 14 ' by 20' open wooden deck with rear yard setbacks of 14 feet (porch) and 18 feet (deck) where 30 feet is required. The subject property is 39 Harmony Way, Lake View Estates, Newtown, in the CM Conservation Management Zoning District, being further known as Tax Map Parcel # 29-23-166
Mark and Deborah Weinstein were sworn in.
Mrs. Doorley asked if anyone wished to be party to this application. There was no response.
Mr. Weinstein said that he and his wife have recently purchased their home at 39 Harmony Way and wish to enclose an existing porch, making a larger family room. They also wish to extend the deck. The house backs to the development’s retention basin and open space.
Mr. Iapalucci said that he visited the site. He noted the patio on the property and asked if this would remain. He also questioned some variances already granted for this property.
Mr. Auchinleck said that the variances for disturbance of agricultural soils were given to the developer. The other variance was a side yard setback for the patio.
Mr. Weinstein said that the patio is below the deck and would remain.
Mr. Vogt confirmed that the only relief needed is for the rear yard setback.
Mr. Lionetti move to grant a variance from the Joint Municipal Zoning Ordinance of 2007 as affected by Lakeview Final Plan to permit construction of a 12 feet by 15 feet screened porch and a 14 ' by 20' open wooden deck with rear yard setbacks of 14 feet (porch) and 18 feet (deck) where 30 feet is required. Mr. Wind seconded and the motion passed 5-0.
Mr. Auchinleck explained that this variance does not alter the Lakeview Estates Record Plan, which is filed with the County.
Application of Mercer Bucks Cardiology
Mr. Lionetti read into the record the application of Mercer Bucks Cardiology, lessee, requesting a variance from section 1106(H)(4)(a)&(d) of the Joint Municipal Zoning Ordinance of 2007 to permit a new 20 square foot wall mounted sign 13.7 feet above grade where the applicant has two existing signs and only two are permitted and the maximum height is 9 ft.. The subject property is 104 Pheasant Run Suites 128 and 129, Newtown, in the L-I Light Industrial Zoning District, being further known as Tax Map Parcel # 29-10-144.
Dr. Craig McMackin of Mercer Bucks Cardiology, and Steve Rogers and Michael Steen of Compass Sign Company were sworn in.
Mrs. Doorley asked if anyone wished to be party to the application. There was no response.
Mr. Steen explained that Mercer Bucks Cardiology has taken offices in a multi-tenant building on Pheasant Run. Their offices are at the rear of the building with entrance at the rear. Their doors are not on either Pheasant Run or Terry Drive. They would like to put an additional sign at the rear door where patients enter the building.
Mr. Auchinleck asked whether the other tenants can use this entrance.
Dr. McMackin said that it is possible to pass through to the other tenants’ offices or for patients to enter the front and walk through the building, but patients entering the rear come directly into the practice administration offices and treatment areas. The rear parking is also more convenient for their patients.
Mr. Iapalucci asked about the other signs at the building.
Dr. McMackin said that there are wayfinding signs at the parking lot entrances on Pheasant Run and on Terry Drive, but the entrance is not visible from either street. There is a wall monument at the corner of Terry and Pheasant Run with the address only. The other tenants have wall mounted signs facing the street.
Mr. Iapalucci said that he would have liked the placement of this sign to be the same as the other tenants’ signs. He asked whether the other signs have been granted variances.
Mr. Vogt said that the directional signs meet the permitted requirements.
Mr. Rogers noted that the other tenants’ signs are over their entrance doors. This sign will be placed in the recessed portion of the building near the entrance doors.
Mr. Potero asked whether the owner of the building has given his permission.
Mr. Rogers said that the owner has approved the placement of the sign. The sign will not be lighted.
Mr. Potero moved to grant a variance from section 1106(H)(4)(a)&(d) of the Joint Municipal Zoning Ordinance of 2007 to permit a new 20 square foot wall mounted sign 13.7 feet above grade where the applicant has two existing signs and only two are permitted and the maximum height is 9 feet, subject to the conditions that the temporary banner sign is removed and that the sign not be internally lit. Mr. Lionetti seconded and the motion passed 5-0.
Application of Sycamore Salon
Mr. Lionetti read into the record the application of Candis Krzaczyk, (Sycamore Salon), Lessee, requesting a variance from section 1106(F)(2) of the Joint Municipal Zoning Ordinance of 2007 to permit a 12 square foot wall mounted sign in addition to the existing free standing sign where only one sign is permitted. The subject property is 9 South Sycamore Street, Newtown, in the T-C (Historic Area) Zoning District, being further known as Tax Map Parcel # 29-11-107-1.
Candis Krzaczyk was sworn in.
Mrs. Doorley asked if anyone wished to be party to this application.
Mr. Auchinleck explained to those 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 her 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.
Debra Granite, 7 South Sycamore Street, asked for and was granted party status.
Ms. Krzaczyk explained that she has a salon at 9 South Sycamore Street with a small, free standing sign in front of the building. She has been told by a number of customers that they were unable to locate the business as they approached from the south along Sycamore Street. She would like to add a second sign on the south side of the building at a height of 9 feet. The sign would not be lighted.
Mrs. Doorley said that she has visited the site. She saw a number of additional signs, including writing on the windows and a sandwich board.
Ms. Krzaczyk said that she has some lettering in the windows and an “open” sign with her hours of operation. She has been told by the Township that all of these signs are permitted.
Mr. Vogt said that this business has a permit for the sandwich board sign. Hours of operation are also permitted. The lettering on the windows is considered an additional sign for which there is no permit.
Ms. Granite asked Ms. Krzaczyk whether she thought that all of the signage is consistent with the integrity of the historic district. She asked whether the numerous signs would be a distraction to drivers, possibly causing accidents.
Ms. Krzaczyk said that she does think the signage is consistent with the historic district. The new sign will be in historic colors and will not be lighted. She did not think that signs in a business district were a distraction to drivers. If granted permission for the sign on the building, she would remove the lettering on the windows. She said that the other Township Boards had already approved the sign.
Mr. Vogt explained that the Planning Commission reviewed the application and passed it to the Supervisors who passed it on to the Zoning Hearing Board without comment. The Historic Architectural Review Board would review the sign if a variance is granted.
Mr. Iapalucci asked whether HARB could override any approval granted by the Zoning Hearing Board.
Mr. Auchinleck explained that only the Zoning Hearing Board could decide on whether the second sign would be permitted. HARB reviews permitted signs for their appearance, to determine whether they conform to historic colors and materials. HARB then makes a recommendation to the Board of Supervisors as to whether a certificate of appropriateness should be issued. Neither body can prevent the addition of a sign once a variance has been granted; their purview is only the appearance, that is color and materials, of the sign.
Ms. Granite was sworn in. She said that she lives next to this business. The business already has ample signage. The additional sign will alter the historic appearance of the building and is not in keeping with the other signs along the street, which are uniform in size and placement. She entered as Exhibits O-1 and O-2, photographs of her home and the Sycamore Salon. She noted the signs in the windows and at the curb.
Mr. Lionetti asked if any other businesses on Sycamore Street have two signs.
Ms. Krzaczyk said that Sycamore Grille has a few signs.
Mr. Auchinleck noted that Sycamore Grille has frontages on two different streets.
Mr. Lionetti moved to deny the variance from section 1106(F)(2) of the Joint Municipal Zoning Ordinance of 2007 to permit a 12 square foott wall mounted sign in addition to the existing free standing sign where only one sign is permitted. Mr. Iapalucci seconded and the motion passed 4-1, with Mr. Potero voting nay.
Continued Application of Daniel Smolczynski
Mr. Auchinleck reminded the Board that this application had been opened and read into the record at the September meeting and continued to this evening. No testimony had been given.
Attorney Don Marshall represented the applicant.
Daniel Smolczynski and Vincent Fiorvante, engineer on the project, were sworn in.
Mrs. Doorley asked if anyone wished party status.
The following residents asked for party status:
Mr. Marshall had no objection and all were granted party status. Mr. Auchinleck explained that the parties would have the right to question Mr. Marshall’s witnesses and then present their own witnesses.
Mr. Marshall summarized the variance request for increased impervious surface for a 36,060 square foot lot in the R-1 zoning district at 135 Swamp Road. The property is lot #3 of the Mastromarco subdivision. There is a pre-existing circular driveway on the lot, which fronts the deceleration lane for the entrance to Tyler Park. At this point in the road the right of way is 120 feet. The other two lots in the subdivision have a shared driveway. The lot is undersized because of the right of way. The required lot size in this zoning district is 40,000 square feet. The Mastromarco property had been granted a variance to subdivide because it would be three full acres except for the right of way, which is 60 feet wider than the normal right of way. The property backs to the Walnut Ridge development’s open space and behind that is Tyler Park. Mr. Smolczynski proposes to build a house with a 2845 square foot footprint with a side entry garage. The house will be set back 97 feet; no buffering is to be removed. The application is to be amended so that the request for additional impervious surface is reduced from 19.71% to 16.2%. The loop in the circular driveway is being removed.
Mr. Marshall entered the following exhibits:
Exhibit A-1 – The deed to the property dated August 13, 2013, showing Mr. Smolczynski as the actual owner.
Exhibit A-2a through e – A series of photographs of the existing features, including the circular paved driveway
Exhibit A-3 – The plan which is attached to the application
Exhibit A-4 – The amended plan with the circular driveway removed
Exhibit A-5 – A Stormwater Management Agreement with the Township. This agreement has been recorded.
Exhibit A-6 – The Zoning Hearing Board decision dated November 2005, which includes in the findings of fact that the unique circumstances of the lot.
Exhibit A-7 – Zoning Hearing Board decision dated February 2007, granting lot #2 impervious surface relief of 18.4%
Exhibit A-8 - Letters from the owners of the adjacent properties stating that they do not object to the application
Mr. Smolczynski said that he is living in a rental property in Yardley awaiting the building of his home in Newtown. He confirmed that the original plan in Exhibit A-3 had retained the circular driveway. He had wanted to keep the driveway and build the house with a 97 foot setback and 60 feet of right of way for the safety and privacy of his family. The house will be similar to the other two homes on lots #1 and #2. The placement of his house farther back than the other two will not obstruct their views. He is aware of the stormwater maintenance agreement and intends to build and maintain a stormwater management system to the satisfaction of the Township Engineer. Most of the trees in the rear and side yards will remain, leaving intact the buffer between his property and the Walnut Ridge open space. The property will be serviced by Newtown Artesian Water Company; there is an easement at the rear of the property to connect to public water. The property will be serviced by public sewers. When he purchased the property, Mr. Smolczynski knew he would need some relief for impervious surface. He reviewed his plans with both the Planning Commission and the Board of Supervisors, who did not object to some relief but urged him to reduce the request from 19.71%, which was 2780 square feet of additional impervious surface. In response to the requests of the Planning Commission and the Board of Supervisors, he had the plan shown in Exhibit A-4 drafted, removing the loop in the circular driveway and reducing the increase to 16.2%. This is less than was granted to the adjacent neighbor.
In response to Mr. Gaucher’s questions, Mr. Smolczynski said that he had a concept plan in mind when he purchased the lot. He knows that the buffering vegetation at the rear belongs in part to Walnut Ridge Homeowners Association. None of the buffering is to be removed. Only one tree will be removed to construct the house. He was not aware that the original subdivision was to have been for the Mastromarco family members to live in the three lots. He is not a member of the Mastromarco family.
Mr. Auchinleck advised Mr. Gaucher and Mr. Schrandt that Mr. Marshall would present another witness, the engineer on the project. All engineering questions are to be referred to him.
In response to Mr. Schrandt’s questions, Mr. Smolczynski said that he is not aware of problems with run-off from his property. He does not want to build a smaller house closer to the road in order to comply with the permitted impervious surface requirements because he has a large family with five small children. He wants a house big enough for all of them to grow up comfortably and safely. He does not know whether he will want to add any additional impervious surface in the next five years. He does not have plans for a pool at this time.
Mr. Auchinleck explained to Mr. Gamble that he must direct any questions to the witness, Mr. Smolczynski. Mr. Marshall does not testify and cannot be questioned. The Zoning Hearing Board is a semi-judicial body and only hears the testimony given at the meeting. It does not consider the discussions that have taken place at other meetings.
Mr. Gamble asked Mr. Smolczynski whether there is a permit for the existing circular driveway.
Mr. Marshall said this is an irrelevant question. The driveway predates this ordinance and is to be removed for this project and replaced with a straight blacktop driveway. Stormwater management is to be installed to accommodate the additional run-off.
Mr. Schrandt asked how much farther back from the other two houses this house will be.
Mr. Smolczynski said that he did not know but estimated about fifteen feet. He does not want to build his house in line with the two neighbors because Swamp Road is very busy and he wants the additional distance for the safety of his children. It is a personal matter why he chose a lot which would need zoning relief.
Mr. Gamble said that he found an error in the decision of February 2007 regarding the size of the existing swimming pool. He objected to the Board accepting Exhibit A-7.
Mr. Auchinleck said that the exhibits are accepted and the objection is denied.
Mr. Iapalucci noted that the Smolczynski house will be set back 37 feet farther than the houses on lots #1 and #2.
In response to Mr. Wind’s question, Mr. Marshall said that the impervious shown in Exhibit A-4 is 1515 square feet over what is permitted on a 36,060 square foot lot. He reminded the Board that the 60 feet of right of way is also porous but is not included in the calculations.
Vincent Fiorvante said that he is a licensed engineer with offices in Southampton, Pennsylvania. He prepared the original subdivision plan for Mr. Mastromarco and the plans shown in Exhibits A-3 and A-4. He explained that this lot would have a seepage bed for stormwater management. Water will flow from the front of the property toward the rear over the lawn area. There are underground beds of rock to enhance groundwater recharge. Perk tests have been done on this and the other two lots. The Township Engineer has reviewed and approved the seepage beds for lots #1 and #2 and will review this plan. The seepage bed for this lot is larger than the other two and it will reduce flow to less than pre-development levels for all storms. The bed was designed for the plan shown in Exhibit A-3, for 19.71%. It will be 60’ X 60’ and will have zero discharge in one and two year storms and will release from all storms at a much slower rate.
Mr. Marshall entered as Exhibit A-9 an aerial photograph of the property.
Mr. Fiorvante said that this is a recent photograph. He reviewed the features shown, including the existing circular driveway, lots #1 and 2, Swamp Road and the Walnut Ridge stormwater system. He reviewed the existing swale which carries water from this subdivision to and through Walnut Ridge. The swale crosses under Sawmill Lane to the Walnut Ridge detention basin. There will be no impact on Walnut Ridge if this house is built. Stormwater from this lot already travels toward Walnut Ridge but with the installation of the seepage beds, the stormwater will be retained on the property and in large storm events, discharged slower than in predevelopment conditions. The stormwater system will be reviewed by the Township engineer to confirm that construction will have no impact on neighbors. The proposed house is similar to the houses on lots #1 and 2, with low density and similar open space. He has visited the site and confirmed current conditions, noting that there is no erosion at the site.
In response to Mr. Gaucher’s questions, Mr. Fiorvante said that he designed but did not install the stormwater systems on lots #1 and 2. These systems were built to Township and State requirements. The Township has a stormwater ordinance which must be satisfied. He does not follow up to see that the system is working properly; this is done by the Township, which confirms that it has been installed and is maintained per maintenance agreements. Maintenance involves cleaning the systems. If the system were to fail, the Township would require repair or would repair the system and would assess the owners of the properties. He did not know what the cost of installation of the system would be but estimated that it could be as much as $10,000. He reviewed the contours on a USGS map of the area, used for regional drainage, showing the flow of water through the property. He said that he would use more detailed topographical maps for designing the stormwater system.
Mr. Wind pointed out that the USGS map seems to be very old, as it shows Newtown Middle School as Council Rock High School and does not show Newtown Bypass.
Mr. Fiorvante said that water flow does not change. This map and more updated maps are used to confirm drainage patterns.
In response to Mr. Schrandt’s questions, Mr. Fiorvante said that analysis has been done on lots #1 and 2 to compare pre- and post-development flow. The system is designed to address every storm. Although we have seen more rain recently, the drainage after construction will be less than pre-construction. The system will prevent water from flowing across to Walnut Ridge in lesser storms and will slow the flow during larger storm events.
Mr. Schrandt submitted two photographs of the wooded area near the site as Exhibits O-1 and O-2. He asked whether Mr. Fiorvante has seen the erosion in the woods.
Mr. Fiorvante said that he did not walk in the wooded area. In response to Mr. Schrandt’s further questions, Mr. Fiorvante said that the property will be graded at about 1% toward the inlets so that flow goes toward the rear, as it does naturally.
In response to Mr. Gamble’s question, Mr. Fiorvante said that in one- and two- year storms, run-off is contained on the property and recharged into the ground. During intense storms, water is detained in the seepage beds and discharged slowly to flow toward the swale. If water comes out, it is still working. Removing vegetation could impact run-off. Lawns can reduce run-off. He does not know what happened to the pool on lot #2; it seems to have been filled in. During construction, contractors will work around tree roots to prevent damage by creating tree wells or by cutting roots straight. If the house were to be built in line with the houses on lots #1 and 2, the driveway would be reduced by about 370 square feet, reducing the impervious from 16.2% to about 15%. Water could not be contained completely on the lot, but after construction, run-off will be less than before construction.
Mr. Wind asked how deep the seepage beds will be.
Mr. Fiorvante said that the system will not be completely engineered until the zoning decision has been made, but he estimated that the beds would be about three feet deep.
Mr. Vogt said that the ordinance requires maintenance. The system is reviewed by the Township engineer and inspected by the Public Works Department for proper function and maintenance.
In response to Mrs. Doorley’s question, Mr. Marshall said that variances were granted for impervious for the other lots. He only has evidence for lot #2, which has a variance of 18.4%.
Mr. Iapalucci asked whether a house could be built without a variance.
Mr. Fiorvante said that some relief would be needed for this house, even if built closer to the road with a smaller driveway.
Mr. Marshall entered as Exhibit A-10 the record plan for Walnut Ridge.
Mr. Lionetti noted that Walnut Ridge homes have impervious of an average of 25%.
In response to Mr. Auchinleck’s questions, Mr. Fiorvante said that with 12% impervious surface, as permitted by the Ordinance, there would still be flow across the property. The benchmark is to release less water than in pre-development conditions.
Mr. Auchinleck asked whether any parties objected to the Board accepting the applicant’s exhibits.
Mrs. Schrandt objected to accepting Exhibit A-7, which contains some incorrect measurements.
Mr. Auchinleck said that Mr. Smolczynski is aware of the decision in Exhibit A-7 but has not testified to the content. The exhibits are accepted.
Robert Gaucher was sworn in. He said that the original variances were granted to subdivide a 2.5 acre parcel into three lots. Since the subdivision, run-off has increased for Walnut Ridge. In March of 2008 he saw pooling of water on his property and in the common areas and woods, with the run-off coming from lot #2. There had been a reduction in vegetation and the swimming pool had been filled with concrete. The original subdivision variance had been granted for Mr. Mastromarco’s family members to build houses, however after the variance was granted, the other two lots were immediately offered for sale.
Mr. Gaucher asked the Zoning Hearing Board to uphold the ordinance because it is harmful to the residents of Walnut Ridge. The applicant has not shown a hardship. He purchased an undersized lot that cannot accommodate his planned house set back as far as he would like. The Engineer cannot prove that he can accommodate the additional run-off.
In response to Mr. Marshall’s questions, Mr. Gaucher said that he does not have engineering evidence that the post development run-off calculations are incorrect. He is basing his statements on observation of increased stormwater run-off and ponding since 2008.
In response to Mr. Potero’s questions, Mr. Gaucher said that Walnut Ridge had not participated in hearings for lots #1 and 2. He had not been notified of those hearings.
In response to Mr. Wind’s questions, Mr. Gaucher said that the Walnut Ridge Homeowners Association has not done any engineering to determine where the increased run-off is coming from. He does not have any more recent photographs of the properties.
Allen Gamble was sworn in. Mr. Gamble said that the seepage beds fill to overflowing. He has gone outside during several storms and observed water flowing onto his and his Walnut Ridge neighbors’ properties. He has lived in his home for twenty years and had only seen occasional ponding on his property until 2008. The ponding has increased and the water is coming from the three lot subdivision on Swamp Road.
In response to Mr. Marshall’s questions, Mr. Gamble said that the Walnut Ridge basin was repaired about two years ago. The culvert was replaced because it was sinking.
Mr. Marshall said that the property is unique, creating a hardship. The lot has 60 extra feet of frontage taken in the right of way. The Planning Commission felt that the proposed setback of the house helped to preserve vegetation and would be a safety measure. He has presented testimony showing that the proposed seepage beds will control run-off to pre-development levels. The applicant has reduced his request for relief by eliminating the loop of the circular driveway.
Mr. Wind moved to grant a variance from section 404(B) of the Joint Municipal Zoning Ordinance of 2007 to permit construction of a new single family dwelling on a 36,060 square foot lot resulting in an impervious surface ratio of 16.2% where the maximum permitted is 12%, subject to the condition that seepage beds are constructed to accommodate run-off up to 19.71% impervious surface. Mr. Lionetti seconded.
Discussion of motion: Mr. Iapalucci said that the original subdivision should have been to create two lots. He did not think it is a hardship to build on this lot; accommodations could be made for a smaller house with a shorter driveway.
The motion passed 4-1, with Mr. Iapalucci voting nay.
Mr. Wind moved to adjourn at 11:05 PM. Mr. Lionetti seconded and the motion passed 5-0.
Mary Donaldson, Recording Secretary