ZONING HEARING BOARD
MINUTES OF THE MEETING OF JANUARY 2, 2014
The Newtown Township Zoning Hearing Board met on Thursday, January 2, 2014 in the Township meeting room. In attendance and voting were: Karen Doorley, Chairman, Brandon Wind, Vice Chairman, and members Tim Potero and Michael Iapalucci. Also in attendance were James J. Auchinleck, Jr., Solicitor, Martin Vogt, Code Enforcement Officer and William Campbell, Stenographer.
Call to Order: Chairman Doorley called the meeting to order at 7:40 PM.
Approval of Minutes: Mr. Wind moved to approve the minutes of December 5, 2013. Mr. Potero seconded and the motion passed 4-0.
The agenda was reviewed:
Continued Application of Newtown Racquetball Association, 118 Pheasant Run
Continued Application of Donald and Denise Queeny, 1 South Sycamore Street
Application of DeLorenzo’s Tomato Pies, LLC, 671 Newtown Yardley Road
Application of Stonehaven Homes, 162 Durham Road
Application of One Newtown Properties, LP (The Birches), 70 Durham Road
Application of Wong Properties, LLC, 94 Richboro Road
Application of Univest Bank and Trust Company, 15 Swamp Road
Continued Application of Newtown Racquetball Association
Mr. Auchinleck informed the Board that there has been some miscommunication between the applicant and the Zoning Hearing Board so the applicant is asking to continue this application until the February meeting.
Mr. Wind moved to continue the application of Newtown Racquetball Association to February 6, 2014. Mr. Potero seconded and the motion passed 4-0.
Continued Application of Donald and Denise Queeny
Mr. Auchinleck informed the Board that the applicant’s attorney has written asking that this application be continued to the February meeting.
Mr. Wind moved to continue the application of Donald and Denise Queeny to February 6, 2014,. Mr. Potero seconded and the motion passed 4-0.
Application of DeLorenzo’s Tomato Pies
Mr. Potero read into the record the application of DeLorenzo's Tomato Pies of Newtown LLC, equitable owners, requesting a variance from sections 705(B), 803(E-5)(3), 1001(F)(6)(a),(b),&(d), 1002(B), and 1106(F)(2) of the Joint Municipal Zoning Ordinance of 2007 to permit a one-story, 4,500 square feet E-5 restaurant with 75 off street parking spaces where such use is not permitted within 300 feet of Newtown Yardley Road and is only permitted on a local street and further resulting in a 53 feet rear yard setback where 75 feet is required parking within 20 feet of a street right of way line, no buffering along Newtown Yardley Road, no buffering for parking area, a loading area to be located in rear access lane within 100 feet of residential area and within 50 feet of property line, and 2 wall mounted signs where only one is permitted. The subject property is 671 Newtown Yardley Road, Newtown, in the O-LI Office Light Industrial Zoning District, being further known as Tax Map Parcel # 29-10-37-1 .
Mr. Auchinleck informed the Board that the applicant’s attorney, Don Marshall, has written a letter requesting that this application be continued to the February meeting.
Mr. Wind moved to continue the application of DeLorenzo’s Tomato Pies to February 6, 2014. Mr. Potero seconded and the motion passed 4-0.
Application of Stonehaven Homes
Mr. Potero read into the record the application of Stonehaven Homes, agent, Ralph J. Hirthler, owner, requesting a variance from section 404(B)&(C) of the Joint Municipal Zoning Ordinance of 2007 to permit a minor subdivision of a 108,900 square feet lot into 2 lots of 40,000 and 58,466 square feet resulting in a minimum impervious surface ratio of 17.2 where 12% is permitted, a minimum lot width of 39.24 feet where 100 feet is required a minimum lot area of 40,000 square feet where 60,000 is required, and a minimum aggregate side yard setback of 67.98 feet where 70 feet is required. The property is 162 Durham Road, Newtown, in the R-1 Medium Density Residential Zoning District, being further known as Tax Map Parcel # 29-4-39.
Engineer Heath Dumack and John McGrath III were 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 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.
Wendy King, 158 Durham Road, asked to be a party to this application.
As the applicant’s attorney was not present due to inclement weather, Mr. Auchinleck explained to Mr. McGrath and Mr. Dumack that the applicants have the right to determine whether Ms. King is an aggrieved party. In this instance, Ms. King lives next to the subject property and would be granted party status.
Mr. Dumack explained that the applicant is seeking to subdivide a 108,900 square foot lot into two lots. The application submitted seeks relief for lot width and impervious surface. In the event that the sewer moratorium continues, the application seeks a variance for minimum lot size if an on-lot sanitary sewer system is needed. Lot #1 is already served by public water and sewer. No perk tests have been conducted, but the land has been fallow for a number of years and Mr. Dumack is confident that an appropriate location will be found.
Mr. Wind asked whether the minimum lot width of 39.24 feet is an already existing condition.
Mr. Dumack said that it is. Mr. Dumack entered the following exhibits:
Exhibit A-1 – plans for 174 Durham Road subdivision creating 50 foot wide flag lot
Exhibit A-2 – plans for subdivision on lot 10-17-07 on Durham Road (no address given) creating a 25 foot wide flag lot
Exhibit A-3 – plans for Leck property subdivision, 210 Durham Road, creating a 30 foot wide flag lot
Exhibit A-4 – Plot plan for Exhibit A-3
Mr. Dumack noted that the new lots created at 174 Durham Road, shown in Exhibit A-1, were also granted variances for impervious surface between 12.5 and 17%.
Mr. Wind asked whether patios or porches are included in the plans for this subdivision. He expressed concern about the many plans brought to the Zoning Hearing Board in which all available impervious is used for the new house and driveway with nothing remaining for outdoor amenities. The new homeowners then must return to the Zoning Hearing Board for relief for patios and pools.
Mr. McGrath said that each house will have a covered porch and a 300 square foot patio. There will be about 500 square feet of impervious remaining for the homeowners’ use.
Mr. Iapalucci asked about the size of the proposed on-lot sewer.
Mr. Dumack said that no plans have been finalized but he believed that a sand mound would be used. It would be in the side yard and would be about 3-4 feet high, 10 feet wide and 35 feet long. He pointed to a possible location on the plan. The plans meet all setback requirements if public sewers are connected. The setback requirement is greater, as is the lot size, when on-lot septic systems are used. He reviewed the dimensions of the two lots, explaining that lot #1 has a width of 174.24 feet at the street line. Lot #2 will have 39.24 feet at the street but will be wider at the rear of the property.
Mr. Auchinleck confirmed that the ordinance restricts the use of flag lots. The lot will meet width requirements where the proposed house will be built.
Mr. McGrath said that he proposes to build two 4,000 square foot houses with three-car garages.
Mr. Dumack explained that the impervious for lot #2 is primarily needed for the 400 foot driveway. This drive is 20 feet wide at the street and for the portion shared by the two lots; it narrows to 12 feet once it splits from the front lot’s driveway.
Mr. Iapalucci suggested possibly adding deed restrictions on future impervious to prevent future owners from seeking additional variances for outdoor amenities.
Mr. Auchinleck said that he would advise against deed restrictions.
Mrs. Doorley agreed with Mr. Auchinleck, noting that the lots are large and new owners should have the option of returning to the Zoning Hearing Board.
Mr. Dumack said that the applicant could consider porous paving for the driveway to further mitigate the increased impervious surface. He reviewed the flow of water across the property, noting that the applicant acknowledges some existing stormwater management issues which will be mitigated with this project. He said that the applicant will consider additional measures such as swales or underground retention ballasts. The plan has not been engineered, so he does not have specific information on stormwater management. This would be addressed with the Township Engineer during land development if variances are granted, as the project must meet Township stormwater regulations.
Ms. King said that she did not feel the applicant has shown a hardship. The property could be developed for one new, larger house. She has lived in her house for 25 years and has had ongoing problems with stormwater management and has had to regrade her property three different times. She noted on the plan where water flows from the subject property to her property and out onto Durham Road.
Mr. Dumack said that he is aware of the stormwater issues on the King property. This project will address and correct problems originating from the subject property and conditions will be improved, however some of the problems are coming from the McLaughlin property, which he will not be able to fix.
Ms. King said that she also has concerns about her well if on-lot sewers are used. Her well is tested regularly but she fears contamination from an adjacent on-lot septic system.
Ms. King entered the following exhibits:
Exhibit O-1 – series of photographs of stormwater accumulation on 162 Durham Road and 174 Durham Road, including in an existing swale between 162 and 174 Durham
Exhibit O-2 – series of photographs of rear of 158 Durham Road and rear of 162 Durham Road
Exhibit O-3 - Report on property work order #1610, which states that no notification about a 2004 minor subdivision could be found
Mr. Dumack said that it was his understanding that the McLaughlin property was subdivided without need for zoning relief. It was further subdivided three years later at which time zoning relief was granted.
Mr. Auchinleck asked about proximity of the proposed septic system to the King well.
Mr. Dumack said this is regulated by the Department of Health. If a septic system is needed it must be 100 feet from the well and must be approved by the Health Department. He said that the septic system and stormwater system would be installed on the side of the property farther away from the King property, but again reminded the Board that the plans have not been fully engineered.
Ms. King said she also has concerns about blasting, which could cause damage to her property.
Mr. Dumack said that no blasting will take place for this construction.
Mr. McGrath said that he will do all that he can to mitigate stormwater issues. He is willing to test the well water and help to correct any problems if they arise. The County, not the Township, regulates distances between septic and wells.
Mr. Potero asked about the size of the proposed houses as related to the total impervious surface needed.
Mr. Dumack said that the houses will be similar in appearance to the surrounding neighbors. They will use about 5.5% of the impervious surface. Most of the impervious is needed for the driveways and car turn-around pads.
Mr. Iapalucci moved to deny the application of Stonehaven Homes. Mr. Wind seconded.
Discussion of motion: Mr. Iapalucci said that he is very concerned about the stormwater management issues. There are too many unknowns with this plan. The stormwater problems seem serious and he does not want to see them get worse.
Mr. Wind agreed that there is not enough information on the stormwater management proposals or the septic system. He would not want to see stormwater problems worsen.
Mr. Dumack asked the Board whether they would consider tabling the application to the February meeting, at which time he could present more information on stormwater, perhaps presenting a concept plan.
Mr. Iapalucci said that he would still have concerns about the possibility of contamination to the King well if on-lot septic is used.
Mr. Wind said that the Board could consider only granting approval with public water if the Board has concerns about the on-lot septic system.
Mr. Dumack said that the applicant could remove the on-lot septic from the Board’s consideration and seek only relief for lot width and impervious surface. He noted that similar relief has been granted to a number of surrounding properties.
Mr. Auchinleck reminded the Board that if no variances are granted, there would be no remedy to the existing stormwater problems and they would continue. If some variances are granted for a minor subdivision, some of the stormwater concerns would have to be addressed. The Board has the ability to help improve conditions on the King property by addressing stormwater for a subdivision.
Mr. Iapalucci said that if no variances are granted, the applicant can still build a new house on the property and it will have to address stormwater management.
Mr. Dumack said that the subdivision of the property would force the applicant to address stormwater management; he was not sure any project would move forward if there is no subdivision. Subdivision gives the applicant the financial ability to address and attempt to mitigate stormwater run-off.
Mr. McGrath said that the Township will require him to improve stormwater management with the subdivision of the lot. Some issues are coming from other lots and they might remain, but there will be improvement in current conditions.
William King said that he is also concerned that there are no guarantees that conditions will improve and he will have no recourse if conditions continue.
Mr. Iapalucci asked whether the proposed houses will have basements.
Mr. Dumack said that they will have basements. Other new houses built in the immediate area hit bedrock at about 8 feet, which is adequate for basements.
The motion failed 1-3, with Mrs. Doorley, Mr. Potero and Mr. Wind voting nay.
Mr. Potero moved to continue the application of Stonehaven Homes to February 6, 2014, at which time the applicant will present a plan for stormwater mitigation for double the Township’s requirement for control of run-off. Mr. Wind seconded and the motion passed 3-1, with Mr. Iapalucci voting nay.
Application of One Newtown Properties, LP (The Birches)
Mr. Potero read into the record the application of One Newtown Properties LP, owner, requesting a variance from section 404(B) of the Joint Municipal Zoning Ordinance of 2007 to permit a 24 square feet, 8 foot high sign where the maximum permitted is 12 square feet, 5 feet high and an impervious surface ratio of 45% where 35% is permitted in connection with an assisted living use under construction on the property. The property is 70- Durham Road, Newtown, in the R-1 Medium Density Residential Zoning District, being further known as Tax Map Parcel # 29-6-6, 29-6-7, 29-6-8, 29-6-9, 29-6-10, 29-6-11 and 29-6-12.
Attorney Ed Murphy represented the applicant, who was not in attendance due to inclement weather.
Mrs. Doorley asked if anyone wished to be party to the application. There was no response.
Mr. Murphy explained that this is the third time this applicant has been to the Zoning Hearing Board for relief. The assisted living project is nearing completion and should open in March. The applicant is seeking a de minimis increase in impervious surface, as the property has been permitted 44.7% by variance, and sign variances for two signs. The applicant wishes to install a gazebo and walkway in the interior courtyard of the dementia unit and would like signs placed higher than permitted so that they are visible from the street, as the property is sloped and the building is set back on the property, making it impossible to see signs only five feet high from the cartways on Durham and Eagle Roads. The Planning Commission was very supportive of the requests because they were concerned for the safety of drivers trying to locate the site.
Mr. Iapalucci asked Mr. Murphy to point out on the plans where the signs would be. He did not think the signs needed to be higher than permitted.
Mr. Murphy noted that the site is allowed two signs because it fronts two roads. The signs are set back more than 35 feet from the road on a slope so that they are obstructed from view below at the roadbed.
Mr. Vogt said that PennDOT determined the distance from the street required for the signs.
Mr. Potero asked whether the signs would be lighted.
Mr. Murphy said he believed the signs would be lit from below, not internally lit.
Mr. Iapalucci moved to grant a variance from section 404(B) of the Joint Municipal Zoning Ordinance of 2007 to permit a 24 square feet, 8 foot high sign where the maximum permitted is 12 square feet, 5 feet high and an impervious surface ratio of 45% where 35% is permitted in connection with an assisted living use under construction on the property, subject to the condition that the signs are not internally lit, but are indirectly lit. Mr. Potero seconded and the motion passed 4-0.
Application of Wong Properties, LLC
Mr. Potero read into the record the application of Wong Properties LLC, equitable owner, Bonnie R. Sedia, owner, requesting a variance from section 405(A)&(C), 803(D-1)(5), 100(E)(1), 1001(B)(3)&(5),(D)(1)&(2)&(F)(6) and 1002(I) of the Joint Municipal Zoning Ordinance of 2007 to permit conversion of a single family home into a low impact D-1 professional office use resulting in a 60 foot front yard setback where 100 feet is required, 8 parking spaces where 17 are required, parking in the front yard, 11 foot driveways where 25 feet is required, no buffering and no loading berth. The property is 94 Richboro Road, Newtown, in the R-2 High Density Residential Zoning District, being further known as Tax Map Parcel # 29-5-5.
Attorney Tim Duffy represented the applicant.
Mrs. Doorley asked if anyone present wished to be party to the application. There was no response.
Mr. Duffy explained that the applicant, Jeffrey Wong, has a legal practice in rented offices in Newtown Borough. He wishes to purchase the property at 94 Richboro Road and renovate it as law offices for two attorneys and two to three staff. No changes will be made to the exterior of the building. The four bedroom house will be renovated into offices, a conference room, restrooms and a kitchen. There will be no residential use at the house. Office hours would be 7:30 AM to 5:30 PM Monday, through Friday, with only occasional use on weekends. Mr. Wong’s practice is civil litigation, so he spends most of his time in court. Clients rarely visit his offices. The employees and occasional visitors would never need more than 8 parking spaces. The only deliveries would be mail and box truck deliveries so no loading berths are needed. He has spoken to surrounding neighbors and there were no objections to the use.
There is an existing barn on the property with a rental apartment above. This accessory use will remain. There are two additional parking spaces, one inside and one in front of the barn for the tenant.
Mr. Wong confirmed Mr. Duffy’s characterization of his plan.
Mrs. Doorley noted that this is a 3 acre parcel in the R-2 zoning district. She asked whether any further subdivision is contemplated.
Mr. Wong said that he did not intend to subdivide. He agreed to accept this as a condition of approval.
Mrs. Doorley noted that no signage is permitted facing the Bypass within 1000 feet of the Bypass.
Mr. Wong said he was not contemplating any signs facing the adjacent Bypass.
Mr. Iapalucci asked about the existing variance for this property.
Mr. Duffy said that in 1986 a variance had been granted for a beauty salon in the barn building. The variance was never used.
Mr. Iapalucci said he would like to see that use variance extinguished if a new use variance is granted.
Mr. Wind asked why the applicant is seeking a reduction in parking on a 3.1 acre parcel.
Mr. Duffy explained that the applicant feels it is more responsible to leave as much of the property in green as possible. Only 8 parking spaces are needed and these will be on existing paving on the driveway and existing basketball court.
Mr. Iapalucci suggested limiting the number of employees for the office use.
Mrs. Doorley disagreed, noting that there is adequate land to add to the parking if the business were to grow.
Mr. Potero moved to grant a variance from section 405(A)&(C), 803(D-1)(5), 100(E)(1), 1001(B)(3)&(5),(D)(1)&(2)&(F)(6) and 1002(I) of the Joint Municipal Zoning Ordinance of 2007 to permit conversion of a single family home into a low impact D-1 professional office use resulting in a 60 foot front yard setback where 100 feet is required, 8 parking spaces where 17 are required, parking in the front yard, 11 foot driveways where 25 feet is required, no buffering and no loading berth, subject to the conditions that the existing use variance for a beauty parlor is extinguished and that the property be restricted from further subdivision . Mr. Wind seconded and the motion passed 4-0.
Application of Univest Bank and Trust Co.
Mr. Potero read into the record the application of Univest Bank and Trust Co, equitable owner, 15 Swamp Road Limited, owner, requesting a variance from section 601(B)(1), 1000(E), 1001(B)(3)&(5), 1001(F)(4)&(6)(a), 1002(D), 1006(F)(2),(4)(a),(5)(a),(7)(a)&(7)(d) of the Joint Municipal Zoning Ordinance of 2007 to permit a 2,145 square foot use E-4 bank with 22 parking spaces resulting in 81% impervious surface ratio where 50% is permitted 26.8 foot rear yard setback where 50 feet is required, a portion of the building in the rear yard, parking in the front side and rear yards, 10 by 18 parking spaces, 18 foot driveway width where 25 feet is required, parking within 10 foot of property lines, parking less than 20 feet from right of way and 5 feet from property lines, loading area within 48 feet of Swamp Road, 10 foot by 20 foot loading berth, two signs on swamp Road where one is permitted, a 42 square foot pylon sign where 12 square feet is permitted, a 15 feet high sign where 5 feet is allowed and four directional signs of 6 square feet where one sign of 2 square feet is permitted. The property is 15 Swamp Road, Newtown, in the C-C Convenience Commercial Zoning District, being further known as Tax Map Parcel # 29-11-98.
Attorney Ed Murphy represented the applicant.
Mrs. Doorley asked if anyone wished to be party to the application. There was no response.
Richard Marrin, Univest Vice President was sworn in.
Mr. Murphy explained that some time ago, Meglio’s restaurant had signed an agreement of sale to move from its location in the adjacent shopping center to this location. A number of variances were sought and the Township had wanted Meglio’s to take access to Swamp Road via the signalized intersection with South Eagle Road, by way of an easement through the shopping center. The shopping center owners objected and after some attempts at negotiation, the Township eventually started a condemnation proceeding. This issue had not been resolved and Meglio’s has purchased another property.
Univest has a branch on Newtown Yardley Road which it would like to relocate to 15 Swamp Road, with a 2100 square foot bank, half the size of the proposed Meglio’s and needing half the relief. There is a written agreement in place for an access easement through the shopping center to the traffic light. An agreement has been made with Lukoil for access to its portion of the paper street Howard Avenue. The Planning Commission was supportive of the application except for the signage, which has been reduced. The Supervisors have not taken a position on the application.
Mr. Murphy reviewed the relief sought, including for 81% impervious surface to accommodate the required parking, rear yard setback, which is an existing non-conformity, parking stall size, drive aisle width, elimination of a loading berth and some signage relief.
Mr. Murphy entered as Exhibit A-1, a new signage package which shows a reduction in the pylon sign to only five feet high and 15 square feet in size, and additional signage to label the ATM, drive through tellers’ aisle height restrictions, building entrance and directional signs.
Mr. Murphy reminded the Board that the project has not been through land development and has not been fully engineered. There have been no objections from neighbors and there has been cooperation with the two adjacent neighbors, Lukoil and the Newtown Plaza shopping center, for additional access to the site. Howard Avenue has never been officially extinguished and has appeared on a master plan for redevelopment of Sycamore Street.
Mr. Wind asked whether Howard Avenue would be dedicated to the Township.
Mr. Murphy said that it could be but he did not think so. There are still private rights for portions of the street. It will be paved on the Lukoil/Univest portion.
Mr. Iapalucci asked whether the project could be completed without using Howard Avenue.
Mr. Marrin said that in meetings the Township had indicated it wanted Howard Avenue used for access to the site.
Mrs. Doorley said that she has a number of concerns including the 80% impervious surface, the aisle width and the lack of buffering.
Mr. Iapalucci said that he objected to the number of signs and the second proposed entrance to the site.
Messrs. Wind and Potero expressed concern for the 80% impervious surface also.
Mr. Marrin asked what other use could occupy this site without variances.
Mrs. Doorley suggested a low impact office use would fit on the site.
Mr. Murphy reminded the Board that this is a ¾ acre site in the CC convenience commercial zoning district. Any use will require relief.
Mr. Wind said that if the drive through were reduced to one lane and the ATM were moved to the lobby, it would reduce some of the impervious surface.
Mr. Auchinleck said that an ATM in the lobby would increase the parking needs.
Mr. Marrin said that this is the minimum the bank could build. One teller lane has been eliminated and the signage has been dramatically reduced.
Mr. Murphy reminded the Board that the Township had asked for Howard Avenue; earlier plans did not include the use of Howard Avenue.
Mr. Wind moved to deny the application of Univest Bank, 15 Swamp Road. Mr. Potero seconded and the motion passed 4-0.Mr. Potero moved to adjourn at 10:30 PM. Mr. Iapalucci seconded and the motion passed 4-0.
Mary Donaldson, Recording Secretary