ZONING HEARING BOARD
MINUTES – FEBRUARY 7, 2006
The regular meeting of the Zoning Hearing Board of the
Zoning Hearing Board: Barbara Kirk, Chairman
Rudolph Mayrhofer, Vice Chairman
David Malinowski, Secretary
Paul Bamburak, Member
Paul Kim, Alternate Member
Others: Robert Habgood, Code Enforcement Officer
John Donaghy, Township Solicitor
James Majewski, Township Engineer
Allen Toadvine, Zoning Hearing Board Solicitor
Grace Godshalk, Supervisor Liaison
APPEAL #05-1339 – HALLEY AND DEBORAH GOULD
Ms. Kirk stated this matter was continued from January 4, 2006. Mr. Toadvine stated the
Board received a letter from the Applicant dated stamped as received by the Township on
2/7/06 and signed by Deborah Gould indicating that they were unable to attend the
Meeting this evening and are requesting a Continuance to late March or early April and
Are waiving any time constraints associated with the Appeal. The letter was marked as
Mr. Mayrhofer moved, Mr. Bamburak seconded and it was unanimously carried to
continue the matter to April 4, 2006.
Mr. Habgood stated they will send the Applicant a letter advising them of the date to
which the matter has been continued.
APPEAL #05-1351 – MICHAEL AND ROBBIN DEMUTH
Ms. Kirk noted this matter had been continued from January 4, 2006. Ms. Robbin
DeMuth was present and was sworn in.
February 7, 2006 Zoning Hearing Board – page 2 of 9
Ms. Kirk stated a letter was issued to the Board dated 2/2/06 from the Board’s Secretary
and attached to it was a two-page Plan which is a revised drawing of the proposed pool
and property. This was marked as Exhibit A-3. Ms. Kirk stated when Ms. DeMuth was
last before the Board, she was requesting a Variance to permit an increase in the
impervious surface of the property for the construction of an in-ground pool.
Ms. DeMuth agreed. Ms. Kirk stated at that time the Board had some questions as to
the calculations provided with regard to the existing impervious surface. The Board had
requested that Ms. DeMuth’s engineer speak with the Township engineer to confirm what
is existing. Ms. Kirk stated the Plans still show 23.88% impervious surface existing;
however, Mr. Habgood and the Township engineer had initially calculated the existing
coverage surface as being 25.7%. Mr. Habgood stated her engineer never contacted the
Township. Ms. DeMuth stated she would be willing to accept the Township’s
determination that the existing impervious surface is 25.7%.
Ms. Kirk asked what was revised on the Plan submitted. Ms. DeMuth stated the Board
had wanted to know the location of the pool sidewalk, coping, and equipment slab and
this is now shown on the Plan. She stated the equipment slab is 24 square feet, there is
107 square feet for the coping, and 400 square feet for the walkway. Ms. Kirk stated this
equals 531 square feet. Mr. Majewski stated with this additional square footage of
impervious surface, they would have 27.6% impervious surface.
Ms. Kirk asked if there are any areas on the property where 531 square feet of impervious
surface could be removed and substituted with the additional impervious surface being
proposed so that they do not increase the impervious surface coverage. Ms. DeMuth
stated she does not feel there are other than the driveway which could be replaced with
grass although she feels this would be dangerous. Mr. Kim asked about the concrete
stone patio, and Ms. DeMuth stated this is part of the house in the rear. Mr. Kim stated
he feels they will have to give up some impervious surface as they are requesting a large
Ms. DeMuth asked if there is a maximum that is permitted, and it was noted it is 18% and
they are currently over this already. Mr. Mayrhofer stated the home pre-dates the
Mr. Bamburak noted the driveway on
her garage. She stated there is also a downstairs there which must be accessed by her
Mother who is handicapped.
Mr. Mayrhofer asked if there are any problems with water on the property or on the
surrounding properties, and Mr. DeMuth stated there are not. She noted letters did go out
to her neighbors, and she feels they would have contacted the Township if they had any
problems. She stated she also discussed the project with her neighbors, and they did not
have any problems with their proposal. She stated they also own the lot adjacent to their
February 7, 2006 Zoning Hearing Board – page 3 of 9
home, but they chose not to put the pool at that location because of safety concerns for
their children. The
lot is on
lot. Ms. DeMuth stated they pay separate real estate taxes for this lot and have not had a
Deed of Merger. Mr. Mayrhofer stated this lot would be available for sale should they
decide to sell it, and Ms. DeMuth stated it is although they do not plan to do so.
Mr. Mayrhofer stated if they were able to consider impervious surface for both lots, it
would not be a problem, but they would need a guarantee that they would not sell the lot.
Ms. Kim noted the 3’ walkway and asked if they could use an alternative material that
would not be impervious such as wood planks or decking. Ms. DeMuth asked if they
would not be required to have a walkway. Ms. Kirk stated it would not have to be
concrete, and could be a wooden deck. Ms. DeMuth stated the whole back of the house
is stone, and she does not feel wood would look appropriate.
Mr. Bamburak noted the large bump out at the driveway, and asked the use of this and
whether this could be eliminated.
Mr. Mayrhofer stated the Board could approve a 1% increase in impervious surface and it
would then be up to the Applicant how they would meet this requirement.
Mr. Mayrhofer stated they are currently at 25.57% and if they permitted them to go
to 26.6%, the Applicant could then decide if they want to take out existing impervious
surface or some impervious surface from the new construction.
Ms. DeMuth asked if there are other homes in
impervious surface greater than 26%. She asked why it was important. Ms. Kirk stated
Ms. DeMuth is before the Board asking for a Variance and Variance has legal
requirements. These include that the Applicant must prove to the Board that there is a
hardship that exists at the property that prevents the Applicant from keeping within the
requirements of the Zoning Code, that the hardship is not being self-created, and what is
being requested is the minimum relief required. Ms. Kirk stated she has not seen a case
where an in-ground pool represents a hardship that would require a grant of a Variance.
Ms. DeMuth asked what other people do who want a Pool. Ms. Kirk stated the Board
asks them to reduce the coverage. Mr. Bamburak stated in many cases, they have taken
out sidewalks and patios and used wooden decking. Mr. Mayrhofer stated this is why
they are discussing approving a 1% increase and the allowing her and her contractor to
decide how they want to meet the requirement.
Ms. DeMuth asked the total they will allow her to have. Mr. Toadvine stated the Board is
discussing granting a 1% increase which would result in 26.6% impervious surface or an
additional 253 square feet. This would mean approximately cutting in half the amount of
additional surface she is currently requesting.
February 7, 2006 Zoning Hearing Board – page 4 of 9
Mr. Donaghy stated there is a concrete stone patio shown as well as a stone walk. He
asked if they installed this. Ms. DeMuth stated there is a stone walkway which they could
remove. Mr. Donaghy stated this would provide 75 square feet. He asked about the
concrete stone patio, and Ms. DeMuth stated this is part of the house and was installed
prior to their purchase. Mr. Donaghy noted the curved portion of the driveway and stated
if they straightened this and took that portion out, they could eliminate approximately 522
square feet and a Variance would not be necessary.
Mr. Mayrhofer stated he would be willing to grant a 1% increase in impervious surface
and it would be up to the Applicant how they want to meet this.
Ms. DeMuth stated it appears that if she would straighten out the driveway and remove
the concrete walk noted, she would not need a Variance. Ms. Kirk stated this is incorrect.
Mr. Bamburak stated even if they are at 25.6% impervious surface and do construction
which will result in 25.6% impervious surface, they would still need to request a
Variance as the property is only permitted to have 18% impervious surface.
There was no public comment.
Mr. Mayrhofer moved and Mr. Kim seconded to approve a 1% increase in impervious
surface for a total impervious surface of 26.6%. Motion carried with Mr. Malinowski
APPEAL #05-1355 – GIANT FOOD STORES, INC.
Don Marshall, attorney, was present with Mr. Mike McGinley who was sworn in.
Mr. Marshall stated Mr. McGinley is the local Giant Food Store Manager. The store is
located in the
which is a 9.4 acre parcel Zoned C-1. The Giant Food Store is 43,150 square feet. He
stated the Application is listed as a Variance related to hours of operation but he feels it is
more appropriately called a request for modification of a Condition of a previous
Mr. Marshall marked as Exhibit A-1, a Plan of the location. Exhibit A-2 is a copy of the
Lower Makefield Zoning Hearing Board Findings of Fact, Decision and Order on the
Application of James McCaffrey which approved the original shopping center. He stated
the shopping center requirements in the C-1 District are for ten acres and this was a 9.4
acre parcel which required a Variance. The Variance was granted and Conditions were
imposed, one of which was hours of operation. The Decision was dated 5/24/84.
Mr. Marshall noted Exhibit A-3 a Stipulation which was entered into before the Lower
Makefield Township Zoning Hearing Board which temporarily modified the original
February 7, 2006 Zoning Hearing Board – page 5 of 9
hours of operation. This was dated 9/19/89. Exhibit A-4 is a Decision of the Lower
Makefield Township Zoning Hearing Board, Appeal #89-678 dated 5/2/90 which took
the temporary setting of hours in the Stipulation and made them permanent.
Exhibit A-5 is a 1990 Decision of the Lower Makefield Township Zoning Hearing Board
dated 4/19/90 which modified the hours as they affected the Giant Store. This was
Appeal #90-694. Exhibit A-6 is Appeal #01-1090, a Decision of the Zoning Hearing
Board dated 3/20/01 granting an Extension to Giant for their hours of operation for
Sunday to 9:00 p.m.
Copies of all Exhibits were provided to the Board this evening.
Ms. Kirk asked after all the various Decisions by the Zoning Hearing Board and
Stipulations is it correct that the current hours of operation are Monday through Saturday
from 7:00 a.m. to 10 p.m. and Sunday from 7: 00 a.m. to 9:00 p.m., and Mr. Marshall
stated he feels on Sunday it is 8:00 a.m. to 9:00 p.m. Mr. Marshall stated the Exhibit A-2
Decision granted approval of the Center in 1984 and as a Condition they imposed hours
of operation of 8:00 a.m. to 9:00 p.m. Monday through Saturday and 10:00 a.m. to
6:00 p.m. on Sunday including language that states “unless the Applicant is placed at a
competitive disadvantage by the neighboring shopping center but under no circumstances
shall hours be twenty-four hours a day.” He stated when that Decision was granted, the
Board kept open the idea of revisiting this issue, and it has been re-visited a number of
Mr. Marshall stated Exhibit A-3 is the temporary modification of hours which changes it
from Saturday at 8:00 a.m. to 10:00 p.m. and Sunday 8:00 a.m. to 7:00 p.m. Exhibit A-4
made those hours permanent in March, 1990. In 1990 the hours were modified for
Monday through Saturday and increased them to 7:00 a.m. to 10 p.m. and Sunday from
8:00 a.m. to 7:00 p.m. He stated the 2001 Decision extended the Sunday hours only to
9:00 p.m. Therefore the current state of the hours as they exist now is Monday through
Saturday 7:00 a.m. to 10:00 p.m. and Sunday 8:00 a.m. to 9:00 p.m.
Mr. Marshall stated they are now requesting an Extension of those hours to 6:00 a.m. to
Midnight seven days a week.
Mr. McGinley stated he resides in
Food Stores at the Yardley Giant as the Store Manger. He has been the Store Manager
since April, 2005. Mr. McGinley stated they are requesting this increase in hours in
order to provide better customer service and to compete with competitors in the area. He
stated on Sunday they do not open until 8:00 a.m. and there are often times a line to get
into the store. He stated several times a week they are asked by customers why they are
closing at 10:00 p.m. when they can go to other stores in the area and continue to shop.
They feel there is a customer demand for the extended hours.
February 7, 2006 Zoning Hearing Board – page 6 of 9
Mr. Marshall asked who Mr. McGinley feels is his direct
competition. Mr. McGinley stated
McCaffrey, Super Fresh, Clemens, Genardi’s, and Acme. Mr. Marshall noted Clemens, Acme, and Genardi’s
are located outside of
competitor, and Mr. McGinley stated McCaffrey’s serves a different client as they focus
on catering and food service along with a lunch crowd. Mr. McGinley stated the other
four stores he has mentioned are more of their direct competition in terms of the services
Mr. Marshall asked if it is true if they were able to open earlier particularly on Sunday
morning, that people would be less likely to go to other stores, and Mr. McGinley agreed.
Mr. Marshall asked if extending the hours will change the nature of the neighborhood,
and Mr. McGinley stated it would not and they have had direct requests from customers
to open longer hours.
Mr. Marshall moved Exhibits A-1 through A-6.
Mr. Donaghy stated the Township is requesting Party Status. Mr. Donaghy stated
Mr. McGinley had indicated that the concern with the earlier hours was for Sunday, and
Mr. McGinley stated they are requesting it for every day of the week. Mr. Donaghy
stated he had testified that they have a back-up of people on Sunday, and Mr. McGinley
stated they have a back-up every day or have people coming to the store at 6:45 A.M. and
trying to get in the doors. He stated people are working earlier and driving around and
going somewhere else to shop in the morning. Mr. Donaghy asked if they opened at
6:00 a.m. would it not be possible that someone may be there at 5:45 a.m. Mr. McGinley
stated they could drive a few miles up the street and go to Clemens or to one of the other
area markets. Mr. Donaghy stated Mr. McGinley had indicated that the other markets
Mr. McGinley stated this is correct with the exception of the Super Fresh which is open
at 7:00 a.m. every day. They did change it in November from 6:00 a.m. to 7:00 a.m.
Mr. Donaghy stated it appears that the only current difference is that the Super Fresh
opens at 7:00 a.m. on Sunday, and the Giant opens at 8:00 a.m. Mr. Donaghy asked if the
Super Fresh has the same closing hours, and Mr. McGinley agreed they do and that
McCaffrey’s has the same hours as Giant. Mr. Donaghy asked about the hours of the
February 7, 2006 Zoning Hearing Board – page 7 of 9
other stores in the shopping center where the Giant is located, and Mr. McGinley stated
he feels Villa Rosa Pizza is open until 11:00 p.m. although he was not positive. Ms. Kirk
stated the Eckerd closes to customers at 9:30 p.m. She stated the retailers are not open
later than the Giant, although the restaurants may be open later, and Mr. McGinley
Mr. Donaghy asked if the Giant would be able to continue to operate with the current
hours if the request to modify the Variance were not granted, and Mr. McGinley stated it
Ms. Kirk asked if Giant has lost any of its regular customers due to the hours of
operation, and Mr. McGinley stated he does feel they have, as if people are looking to
shop earlier in the morning, they will go to another store
order to be able to shop. He stated he is not sure if those customers may not be coming in
later in the evening to the store after they are done work since they cannot come earlier.
Mr. Mayrhofer asked Mr. Habgood if they are aware of the actual hours that the Super
Fresh is allowed to be open. Mr. Habgood stated there is a Court Stipulation for this
Shopping Center, and the entire Shopping Center is permitted to be open from 6:00 a.m.
to 10:00 p.m. seven days a week through the Court Stipulation. He stated currently they
are open 7:00 a.m. to 10:00 p.m. every day of the week.
Mr. Marshall noted Exhibit A-3 and stated the Center’s hours go past 10:00 p.m. as the
restaurants are allowed to be open later. Mr. Marshall stated he is noting this since for a
condition to be a reasonable condition, there should be a reasonable reason for it. He
stated if the Center is open, he would ask what is the reason for making one store close
earlier. Mr. Marshall
Condition unless there is some local public policy for them. He stated he would be
willing to provide the solicitor citations on this. Ms. Kirk noted Exhibit A and stated the
extended hours dealt with restaurant services as opposed to retailers. Mr. Marshall stated
he agrees that this is what is shown but he questions what the distinction would be.
Mr. Marshall stated if the idea was that police protection would not be needed and they
could close everything down, he would understand this; but if there are some things open,
he does not see the difference. Mr. Donaghy stated these hours were established as part
of a Stipulation among the parties in litigation; and while Mr. Marshall may be correct
that the Courts in the Commonwealth frown upon placing limits on hours without having
specific reasons for doing so that relate to health, safety, and welfare, if it is part of a
Stipulation agreed to by the parties, it is legitimate. He stated the current hours are
consistent with the operations of the other two supermarkets
Township. Mr. Marshall stated the Stipulation has been changed twice already.
There was no public comment.
February 7, 2006 Zoning Hearing Board – page 8 of 9
Mr. Kim moved and Mr. Bamburak seconded to grant Appeal #05-1355 to extend the
hours from 6:00 a.m. to Midnight. Motion carried with Mr. Bamburak, Mr. Kim, and
Mr. Malinowski in favor, and Ms. Kirk and Mr. Mayrhofer opposed.
APPEAL #06-1356 – MARGARET CRONAN AND JONATHAN AGREE
Mr. Margaret Cronan and Mr. Jonathan Agree were sworn in, noting they reside at 1439
The Application submitted was marked at Exhibit A-1. Submitted with the Application
was a Plan entitled “Proposed Second Floor Addition and Deck and Fence Plan” prepared
for the Applicants last dated 11/23/05. This was marked as Exhibit A-2.
Ms. Cronan stated they purchased the home last January and moved in March. They had
hoped to do something with the basement, but they then had flooding and the basement
was completely flooded. They are now interested in doing a second-story addition. They
currently have no view of the rear of the property which is very attractive. They also
need additional space for their family. Mr. Agree showed a view of the elevated
addition which would be raised up from the ground. Mr. Toadvine stated they need a
Variance for the addition due to disturbance of the Natural Resource Protected area.
Mr. Agree stated they are also proposing to install a deck off of the side of the house.
Ms. Cronan stated the neighbors suggested that they do this as they do not currently have
any outdoor space. There is a door on this side of the home. Mr. Agree stated the
product they will use is a product that will not rot because they are in an area which is
very moist and that side of the home is almost always wet and essentially unusable. The
size of the deck will be 14’ by 18’. This will result in a 15’ side yard setback as opposed
to the required 25’.
Ms. Kirk stated the Application also requests a Variance related to a dog fence.
Ms. Cronan stated they did not know that a permit was required for a dog pen, and they
had installed this for their greyhound. Ms. Cronan noted the location on the Plan. She
stated when they brought in the Application for the other Variances, Mr. Habgood
indicated they needed permission for this as well. Ms. Cronan stated they rescued a
greyhound in June, 2004 and a requirement of the Contract is that you must run the dog
in a closed space, and this is why they installed the fence. Ms. Kirk asked if the dog is
left in the pen; and Mr. Agree stated the dog is not left alone. Ms. Kirk noted the height
of 4’ and questioned if this was a deterrent. Mr. Agree stated they cannot jump.
Mr. Habgood stated they need a Variance for the fence for disturbance of the flood plain.
February 7, 2006 Zoning Hearing Board – page 9 of 9
Ms. Kim asked if the entire area is floodplain, and Mr. Agree that the entire property is in
the 100 year floodplain. Mr. Kim asked if they knew that they were not allowed to build
anything in the floodplain; and Ms. Cronan stated they did not know that a fence was not
allowed. Mr. Kim stated it appears they are disturbing nature in order to enjoy nature.
He stated he feels they are setting a precedent in the floodplain. He stated in an
environmental sense, the floodplain is critical to the eco-system.
Mr. Mayrhofer stated it appears that they are only putting in posts for the second-story
addition and posts for the fence and deck, etc. Mr. Agree stated they will not take out
any trees and this was an open grass area and was the only area on the property where
they could do what they are proposing.
Mr. Donaghy stated the Township is not participating in this Appeal.
Mr. Toadvine asked the size of the dog pen, and Mr. Agree stated it is an oval with a 40’
There was no public comment.
Mr. Mayrhofer moved and Mr. Bamburak seconded to approve the request as presented.
Motion carried with Mr. Kim opposed.
Ms. Kirk noted the Board’s Secretary had provided a list of three meeting dates in 2006
which need to be changed for the Zoning Hearing Board meeting. It was agreed to make
the following changes: change 5/17/06 meeting to Monday, 5/15/06, change 7/4/06
meeting to Thursday, 7/6/06, and change 11/7/06 meeting to Monday, 11/6/07.
There being no further business, Ms. Kirk moved, Mr. Bamburak seconded and it was unanimously carried to adjourn the meeting at 8:30 p.m.
David Malinowski, Secretary