The regular meeting of the Zoning Hearing Board of the Township of Lower Makefield was held in the Municipal Building on February 7, 2006.  Chairman Kirk called the meeting to order at 7:30 p.m.


Those present:


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


Absent:                         Darwin Dobson, Zoning Hearing Board Member





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.





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 Stacy Drive, and Ms. DeMuth stated this goes into

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 Yardley-Morrisville Road.  There are no structures on the

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 Lower Makefield that currently have

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






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 Edgewood Village Shopping Center and is part of Tax Parcel #20-16-62

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 Dublin, Pennsylvania and is an employee of the Giant

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 Lower Makefield; and Mr. McGinley agreed but added they are very close to the Giant Food Store.  Mr. Marshall asked their hours of operation, and Mr. McGinley stated the Genardi’s is open from 5:00 a.m. to Midnight Monday through Saturday, and 5:00 a.m. to 10:00 p.m. on Sunday.  The Clemens is open from 6:00 a.m. to 11:00 p.m. every day, and the Acme in Newtown is open in Newtown 6:00 a.m. to Midnight Monday through Saturday and 6:00 a.m. to 10:00 p.m. on Sunday.  Mr. McGinley stated the Super Fresh in Lower Makefield is open 7:00 a.m. to 10:00 p.m., although in November they did change their hours as they were open 6:00 a.m. to 10:00 p.m. seven days a week.  In November they changed to 7:00 a.m. to 10:00 p.m. seven days a week.  Mr. Marshall stated the McCaffrey’s has the same hours as Giant, and Mr. McGinley agreed.  Mr. Marshall asked if McCaffrey’s is a direct

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

within Lower Makefield have comparable hours to the hours for the Giant, and

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 outside of Lower Makefield in

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 noted in Pennsylvania the setting of hours are not a permissible

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 in Lower Makefield

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.





Mr. Margaret Cronan and Mr. Jonathan Agree were sworn in, noting they reside at 1439

Robinson Place.  


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.


                                                                        Respectfully Submitted,





                                                                        David Malinowski, Secretary