ZONING HEARING BOARD
MINUTES – MAY 2, 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
Others: Robert Habgood, Code Enforcement Officer
John Donaghy, Township Solicitor
James Majewski, Township Engineer
Allen Toadvine, Zoning Hearing Board Solicitor
Absent: Paul Kim, Zoning Hearing Board Alternate
Grace Godshalk, Supervisor Liaison
APPEAL #06-1370 – BOXWOOD FARM LLC
Ms. Kirk stated the Board has received a copy of a letter from Mr. Truelove, the
Township Solicitor, to the Applicant’s Solicitor, Mr. VanLuvanee, asking that this matter
be continued so that they can try to resolve some outstanding issues.
Ms. Kirk moved, Mr. Mayrhofer seconded and it was unanimously carried to continue the
matter until Monday, May 15, 2006.
APPEAL #06-1367 – ROSAIRO P. ROTTENBORN
Ms. Rosairo Rottenborn and Mr. Michael Rottenborn were present and sworn in.
The Application submitted was marked as Exhibit A-1. Included with the Application
was an impervious surface breakdown and this was marked as Exhibit A-2. Also
included was an 8 ½” by 11” Grading Plan for the property last dated 1/19/77. This was
marked as Exhibit A-3.
Mr. Toadvine stated there is an existing patio, and they are asking permission to enclose
it and put a roof over it. Mr. Rottenborn stated it does currently have a roof over it, but
May 2, 2006 Zoning Hearing Board – page 2 of 7
they are asking permission to enclose it. He added that the patio has always been a part
of the house. Mr. Toadvine asked if they are asking permission to increase the
impervious surface, and Mr. Rottenborn stated they are not. Mr. Toadvine stated the
reason for the request is due to the fact that it is not considered a structure until it is
enclosed. Once it is enclosed, it will violate the rear yard setback.
Ms. Kirk asked if the patio was attached to the property before they moved in,
and Mr. Rottenborn stated it was and they feel it has been there since the house was built.
There was no public comment.
Mr. Bamburak moved, Mr. Mayrhofer seconded and it was unanimously carried to
approve the Variance as requested.
APPEAL #06-1368 – GARY R. LONG
Mr. Gary R. Long was present and was sworn in.
The Application submitted was marked as Exhibit A-1. Attached was an 8 ½” by 11”
Plan of Survey dated 11/10/03 which was marked as Exhibit A-2.
Mr. Long stated he repaired and replaced an existing fence. Ms. Kirk asked if this was a
new fence, and Mr. Long stated the new fence is in now. Ms. Kirk asked if this was a
fence that existed previously. Mr. Long stated the old fence was a stockyard fence with
chicken wire. Ms. Kirk asked if this was located along the side of the house towards the
rear and in the rear of the property, and Mr. Long agreed. Mr. Mayrhofer asked if it was
in the same location as the proposed fence, and Mr. Long stated the only new pieces are
in the front. Ms. Kirk asked what material he replaced it with, and Mr. Long stated it is a
five foot chain link fence. Ms. Kirk asked if the five foot fence is the entire section
which he highlighted on the Plan submitted with the Application, and Mr. Long stated
just a portion of it is his as a portion of it is his neighbor’s. The portion in yellow is his.
Ms. Kirk asked if the chain link fence on the side of the
property designated as
the neighbor’s, and Mr. Long agreed. Ms. Kirk asked if the fence which was replaced
was five foot high, and Mr. Long stated on his side it was only four feet high.
Ms. Kirk asked the purpose of the fence, and Mr. Long stated he had dogs and they
wanted to keep them in the yard as well as to keep deer out of the yard as he has
contracted Lyme’s Disease.
The property is located off of
Mr. Mayrhofer asked if the fence will be open at the bottom so that water can flow
through, and Mr. Long stated it will. It was noted it is all chain link.
May 2, 2006 Zoning Hearing Board – page 3 of 7
Mr. Donaghy asked when the current fence was erected, and Mr. Long stated it was
erected three years ago. Mr. Donaghy asked if he applied for a Permit for the fence, and
Mr. Long stated he did not since the fence installer said this was not necessary since it
was repair and replace. Mr. Donaghy asked Mr. Long if he ever received any notice from
the Township that he needed a Permit, and Mr. Long stated he did two years later.
Mr. Donaghy asked if he received a notice in 2004, and Mr. Long stated he did not.
Mr. Donaghy asked Mr. Long what he did when he received the notice from the
Township, and Mr. Long stated he came in and applied for a Permit. Mr. Donaghy asked
if a portion of his rear yard is in the floodplain, and Mr. Long stated it is, but he is not
sure where the line goes.
Mr. Habgood was called as a witness and was sworn in. Mr. Habgood stated he is the
Code Enforcement Officer for the Township. Mr. Donaghy asked if Mr. Habgood was
familiar with the property that is the subject of the Application, and Mr. Habgood stated
he is. Mr. Donaghy asked Mr. Habgood if he had checked the Township records to see if
there were any Permits or Applications for the fence, and Mr. Habgood stated they
received an inquiry from a resident in the area as to whether or not there was a Permit for
the fence. He stated he checked the records and there was no record for the current fence
that is there. Mr. Habgood stated in the Township records, there was a prior letter sent to
the Applicant by the prior Code Enforcement Officer, stating that per a conversation they
had that a Permit was required for the fence. Exhibit T-1 was marked which includes
two documents – a letter and an attachment. The letter was address to Mr. and Mrs.
Gary Long and was dated 5/2/04. Mr. Habgood stated the letter is confirmation of a
conversation between Sally Dorner, the prior Code Enforcement Officer, confirming that
a Permit is required for a fence. Mr. Donaghy asked if he knew whether or not
Mr. and Mrs. Long received this, and Mr. Habgood stated the letter was sent Certified
and First Class. Exhibit T-2 was marked which is a copy of a Certified Mail Receipt
which indicates that the letter was received and signed for by Mr. Long. Mr. Donaghy
asked if subsequent to this letter in 2004, was an Application filed for a Permit, and
Mr. Habgood stated there was not. Mr. Habgood stated a Permit was requested more
recently after the Township received an inquiry from the neighbors and a letter was sent
to Mr. Long. Mr. Long did submit a Permit for review and it was determined that the
fence was in the floodplain, so he would need a Variance and this is the Application that
is currently before the Zoning Hearing Board.
Ms. Kirk asked if there are any records in the Township verifying that a fence was
existing prior to this, and Mr. Habgood stated according to the records there is not.
Ms. Kirk stated Mr. Long could ask Mr. Habgood any questions about his testimony.
Mr. Long stated with regard to the fence being there, when he had the engineer come out
and survey the lot, he did show it on the survey. Mr. Long noted this on Exhibit A-2.
This is the section where there are dotted lines on the left rear side of the property and
goes along the back stating “existing post and rail and post line” representing the prior
fence before the chain link fence was constructed.
May 2, 2006 Zoning Hearing Board – page 4 of 7
Ms. Kirk noted Exhibit T-2, the return receipt card, and asked Mr. Long if this shows his
signature, and Mr. Long stated it is. Ms. Kirk asked why he did not apply for a Permit
after receiving the letter from Ms. Dorner, and Mr. Long stated he did apply for it but
there was a change in employment in the Township Office, and he never heard anything
back from Sally Dorner.
Mr. Mayrhofer asked Mr. Habgood if anyone from the Township followed upon the
May 7, 2004 receipt back to Mr. Long to find out that status, and Mr. Habgood stated this
was prior to his employment. Ms. Kirk asked if the Township ever filed complaint in
District Court against Mr. Long, and Mr. Habgood stated they did not to his knowledge.
Mr. Donaghy stated that Mr. Long testified earlier this evening that he did not apply for a
Permit in 2004 because he was told by the fence installer one was not required but he is
now stating that he did apply for a Permit after he received the letter in 2004.
Ms. Kirk stated he indicated he hired a contractor to erect a fence and the contractor told
him he did not need to have a Permit. He then received the letter in May of 2004 and
stated he did apply for a Permit but never heard anything further. Mr. Donaghy stated
they want the Board to have all the information of what occurred. He stated there is no
record of a Permit being applied for in 2004. He stated if a Variance is now approved for
the fence at this location, the Township would like to have the usual requirements
regarding fences in the floodplain that any damages that would result are not the
responsibility of the Township. If there is any danger resulting from interference with
flood waters, it will be the responsibility of Mr. Long. Mr. Long stated this would be
Mr. Jim Pocetti and Ms. Deborah Pocetti,
Ms. Pocetti stated she has some contention with regard to the information Mr. Long has
provided this evening. She stated she and her husband moved into their home in April of
1984, and there was never a fence in the back of Mr. Long’s yard or on the side. She
stated she and her husband erected a fence in that yard approximately twenty years ago
and did obtain a Permit. She stated Mr. Long has repeatedly misrepresented the facts to
the Township. She stated he has also done numerous other building without Permits and
without understanding of the regulations. She stated they are asking that if a Variance is
granted, Mr. Long be required to put up a fence on the side of the yard that borders
between their two yards. She stated the only single fence wall between their two yards is
the one that they installed. Ms. Pocetti stated since Mr. Long has enclosed his yard, his
dogs have been running wild. The fence has been pulled on, mowed against, and the
fabric has been dislodged from the posts. She stated Mr. Long has advised that she and
her husband operate a wood stove and the smoke has been going into his yard; and rather
than discussing it with them, he called the Fire Department. She stated they planted
shrubs, and Mr. Long has poisoned them. She stated there have been numerous disputes.
She stated the Long’s dog escaped into their yard under their fence. She stated they have
May 2, 2006 Zoning Hearing Board – page 5 of 7
had countless issues and problems with the Longs. She stated Mr. Long feels that the
rules only apply to him when he is caught. She stated he was sent a notice to come into
compliance and ignored it. She stated she has found that the Township staff is very
competent. Mr. Pocetti stated the Township has never lost any of their Permits.
Ms. Kirk stated if there has been damage to their fence by Mr. Long, this would be a
private matter and they could proceed against him. She stated the Zoning Hearing Board
does not have the power to consider this. She stated they can only act on the Zoning
Code. She stated as to compliance with other Township regulations and Ordinances, the
Zoning Hearing Board does not have power to enforce those Ordinances. She stated they
can only hear issues relating to interpretation and application of the Zoning Code to
individual properties. Ms. Kirk stated if Mr. and Mrs. Pocetti feel there are other
regulations in the Township that are not being followed by Mr. Long, she would
recommend that they contact the Township’s Department of Building and Planning or
Ms. Frick and lodge a complaint; and the Township would then take the necessary action.
She stated the Zoning Hearing Board has no power to do this.
Ms. Pocetti stated they would hope that if a Variance is granted, that Mr. Long would be
required to comply with all due responsibilities as far as the fence is concerned and to
erect a fence on all sides of the yard. Ms. Kirk stated there is no requirement in the
Zoning Code that the erection of a fence has to be a complete four-walled fence on his
property. Mr. Pocetti asked if he were to remove his side of the fence tomorrow, would
Mr. Long revise his Plan and put a fourth side up. Ms. Kirk stated there is no regulation
that would require him to do this. Ms. Kirk stated the Zoning Hearing Board can only
consider that which comes under the Zoning Code; and anything else dealing with
property maintenance, Building Codes, etc. would have to be discussed with someone in
the Township. Mr. Mayrhofer stated there may be an issue with the dogs getting out, and
Ms. Kirk stated this is not necessarily arising under this Variance. Mr. Pocetti stated they
have already taken Mr. Long before Judge Burn on that issue. Mr. Pocetti stated when
they erected their fence, they had to place gates on the drawings and asked if this was still
a requirement, and Ms. Kirk stated this may be a requirement under the Building Permit,
but not for the Zoning Application.
Mr. Long stated if it would make the Pocettis happy, he would be willing ton install a
fence inside their property line. Ms. Kirk stated if he is willing to consider this, he would
have to revise his Plan. Mr. Long was not willing to do so.
Mr. Toadvine stated Mr. Long should recognize that even if the Variance is granted, he
still needs to apply for a Permit, and Mr. Long stated he understands this.
May 2, 2006 Zoning Hearing Board – page 6 of 7
Ms. Kirk moved that in the matter of Gary R. Long, that the Application for Variance in order to construct a fence within the floodplain of the subject property be granted subject to:
1) That the fence be maintained in such a manner to permit
the free flow of stormwater so it does not obstruct the
flow of stormwater;
2) That Mr. Long will waive and hold the Township harmless
from any and all liability or damage that may result
from placement of the fence on his property in the floodplain.
Mr. Mayrhofer seconded, and the Motion carried unanimously.
Ms. Kirk reminded Mr. Long that he still needs to apply for a Permit.
APPEAL #06-1369 – JAMES AND MICHELLE MEHLBERGER
Mr. James Mehlberger was sworn in. The Application submitted was marked as Exhibit
A-1. Included was a one-page Plot Plan dated 10/23/05 which was marked as Exhibit
Mr. Mehlberger stated he would like to remove an existing single-story 9’ by 13’ room
and add a 20’ by 24’ two-story addition. He will also remove some concrete from the
property. Ms. Kirk stated according to the Application, it appears that this property is at
35% existing impervious surface, and Mr. Mehlberger agreed. Ms. Kirk asked if he
installed any additional impervious surface coverage on the property, and
Mr. Mehlberger stated he did not. He stated the net result of the proposal will be a slight
reduction in impervious surface.
Mr. Majewski stated he has reviewed the Plan and agrees with the impervious surface
calculations. The net reduction will be 22 square feet.
Mr. Donaghy asked if they have any plans to pave any portion of the dirt or stone
driveway, and Mr. Mehlberger stated he does. He stated he would like to concrete the
stone driveway rather than have stone, but would like to wait until after the construction
of the addition so that it does not ruin the concrete. He would like to do have concrete on
the area that is shown as stone as this is his primary off-street parking area. Ms. Kirk
asked if the stone, gravel, and dirt driveway were included in the impervious surface
calculations, and Mr. Mehlberger stated it was.
May 2, 2006 Zoning Hearing Board – page 7 of 7
Mr. Bill Hogan,
request. The back of Mr. Mehlberger’s property borders Mr. Hogan’s.
Ms. Mary Codd,
sworn in. Ms. Codd stated she has no issue but felt that if there was a problem in the
future she would have had to have Party status. Ms. Kirk stated she does not need to be a
Party to the proceedings. She stated people generally ask to be a Party to the proceedings
if they are in opposition to the Application before the Zoning Hearing Board, and this
allows them to be notified of written decisions once they are issued.
Mr. Bamburak moved, Mr. Malinowski seconded, and it was unanimously carried to
approve the Variance as requested for a reduction in impervious surface.
There being no further business, Ms. Kirk moved, Mr. Malinowski seconded and it was unanimously carried to adjourn the meeting at 8:15 p.m.
David Malinowski, Secretary