TOWNSHIP OF LOWER MAKEFIELD

ZONING HEARING BOARD

MINUTES – MAY 2, 2006

 

 

The regular meeting of the Zoning Hearing Board of the Township of Lower Makefield was held in the Municipal Building on May 2, 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

 

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 Lot 111 is

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 River Road.

 

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

acceptable.

 

Mr. Jim Pocetti and Ms. Deborah Pocetti, 3 Kenmore Road, were sworn in.

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

A-2. 

 

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, 80 Big Oak Road, was sworn in.  He stated he feels this is a reasonable

request.  The back of Mr. Mehlberger’s property borders Mr. Hogan’s.

 

Ms. Mary Codd, 240 W. Ferry Road, stated she lives across the street.  Ms. Codd was

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.

 

                                                            Respectfully Submitted,

 

 

 

 

                                                            David Malinowski, Secretary