TOWNSHIP OF LOWER MAKEFIELD

ZONING HEARING BOARD

MINUTES – OCTOBER 3, 2006

 

 

The regular meeting of the Zoning Hearing Board of the Township of Lower Makefield was held in the Municipal Building on October 3, 2006.  Chairman Kirk called the meeting to order at 7:33 p.m.  Ms. Kirk noted the meeting will adjourn by 11:00 p.m., and any Hearings not completed by that time will be continued to the next meeting.

 

Those present:

 

Zoning Hearing Board:              Barbara Kirk, Chairman

                                                Paul Bamburak, Member

                                                Gregory Smith, Member

 

Others:                                     Robert Habgood, Code Enforcement Officer

                                                John Donaghy, Township Solicitor

                                                James Majewski, Township Engineer

                                                Allen Toadvine, Zoning Hearing Board Solicitor

 

Absent:                                     Rudolph Mayrhofer, ZHB Vice Chair

                                                David Malinowski, ZHB Secretary

Paul Kim, ZHB Alternate

                                                Grace Godshalk, Supervisor Liaison

 

 

APPEAL #06-1396 – MICHAEL AND AMY BUONDONNO

 

Michael and Amy Buondonno were present and were sworn in.  The Application

submitted was marked as Exhibit A-1.  Attached to the Application was an 8 ½” by 11”

As-Built Plan dated by the Township 8/28/06.  This was marked as Exhibit A-2.  Also

included was an impervious surface break-down calculation, and this was marked as

Exhibit A-3.

 

Mr. Buondonno stated they would like to construct an 8’ by 12’ shed on the property on a

gravel bed next to the house.  Ms. Kirk noted Exhibit A-2 and asked where it has been

shown on this document, and Mr. Buondonno stated it is next to the garage.   Ms. Kirk

stated there was a highlighted section shown, and Mrs. Buondonno stated this was the

distance to the property line.  The shed is a typical one-story shed.

 

Ms. Kirk asked what else is on the property that added to the impervious surface. 

Mrs. Buondonno stated there is the house, the driveway, the walkway, and the heat pump

pad.  They have a wood deck without a weed barrier, and they did not include this in the

impervious surface calculations.  Mrs. Buondonno stated she prepared the impervious

surface calculations. 

 

Mr. Habgood stated he comes out slightly higher on the impervious surface calculations. 

He stated 19.5% is existing and it will total 20.1% with the shed.  Mr. Majewski agreed

with those numbers.  The proposed shed will be 90 square feet. 

 

Mr. Donaghy stated the Township is not taking a position on this matter. 

 

There was no public comment.

 

Mr. Smith moved, Mr. Bamburak seconded, and it was unanimously carried to approve

the Variance as requested.

 

 

APPEAL #06-1235A – CARA MIA, INC.

 

Mr. John Koopman was present on behalf of the Township.  Mr. John VanLuvanee was

present with Mr. Marrazzo, and Mr. Paul Wojchiechowski.  Mr. James Bray and

Mr. Geoffrey Goll were also present.

 

Ms. Kirk stated at the last Hearing, Mr. Bray presented his expert witness as to the

condition of the property dealing with waterways, floodplain, etc.  Since that time the

Township has received a Revised Plan from the Applicant dated 6/7/06 with a Final

Revision Date of 10/2/06.  This was marked as Exhibit A-16.  Mr. VanLuvanee was

asked if copies had been provided to Mr. Koopman and Mr. Bray, and Mr. VanLuvanee

stated the Township called him and asked him to provide copies to the Township, and he

did.  He provided Mr. Bray with a copy this evening. 

 

Mr. Toadvine stated this meeting is the result of a re-advertisement for an additional

request made by Mr. VanLuvanee.  He stated the meeting was advertised in the Yardley

News and was properly posted.  

 

Mr. Wojchiechowski was reminded that he was still under oath.  Mr. VanLuvanee noted

that Mr. Wojchiechowski previously testified regarding the Plan identified as Exhibit

A-13.  Exhibit A-16 was noted which was a revised Plan, and Mr. VanLuvanee asked that

Mr. Wojchiechowski advise the Board what changes were made to Exhibit A-13 which

are now reflected in Exhibit A-16.  Mr. Wojchiechowski stated Exhibit A-16 is

essentially the same Plan but on Exhibit A-16 they added a delineation of wetlands or

waters.  They had them flagged and mapped, and they also created a 25’ foot buffer

around the wetlands area that were locations from the scientist’s delineation.  The table

has also changed for percentage of disturbance for wetlands and buffers.  They also

changed the impervious surface calculations consistent with the testimony he gave at the

last Hearing.  They are at 18% impervious surface on the site. 

 

 

 

Mr. Wojchiechowski stated he reviewed the transcript of the September 19 Hearing

where Mr. Goll described two water courses – one which was characterized as tracks in

Terracedale Road and a water course on the Morningside Road side of the proposed

building envelope.

 

Mr. Bray objected stating Mr. Wojchiechowski is a surveyor, and he is discussing

stormwater management.  He questioned whether he has the expertise to do so.

 

Mr. Toadvine stated the question has already been asked and answered.

 

Mr. VanLuvanee stated he is discussing the Plan Mr. Wojchiechowski prepared. 

Mr. VanLuvanee stated he is asking if what he put on the Plan is what Mr. Goll described

as a water course that was not identified as a water course on Exhibit A-13. 

Mr. Wojchiechowski stated they did previously present into evidence a jurisdictional

determination from the Army Corps of Engineers as to the limits of the regulated

wetlands on the site, and the feature described by Mr. Goll was not shown on A-13.

Mr. VanLuvanee asked if it was initially shown and flagged by the Applicant’s

professionals prior to submission of the Jurisdictional determination, and

Mr. Wojchiechowski stated it was on the Plan that went to the Army Corps of Engineers. 

Mr. VanLuvanee asked why it was removed from the Plan marked as Exhibit A-13, and

Mr. Wojchiechowski stated the wetlands people asked him to remove it and re-submit it

to the Army Corps.  He added that is the Plan they approved and the Plan they approved

did not include that finger of water course.  Mr. Wojchiechowski stated a representative

from the Army Corps went to the site, and their jurisdictional determination did not

include this feature.  Mr. VanLuvanee noted the feature was initially reviewed by the

Army Corps, and the Corps asked the Applicant to change the Plans, delete the feature,

and re-submit; and Mr. Wojchiechowski agreed.  Mr. VanLuvanee stated the

re-submitted Plan, which did not include this feature which has now been included on

Exhibit A-16, is what was approved; and Mr. Wojchiechowski agreed.  Mr. VanLuvanee

stated the feature was initially flagged by the Applicant’s consultant as potentially a

feature being subject to regulation, and Mr. Wojchiechowski agreed. 

 

Mr. VanLuvanee stated for the purpose of tonight’s Hearing, the Plan reflects what

Mr. Wojchiechowski believes to be the feature described by Mr. Goll during his

testimony and assumes that it is a regulated feature under the Lower Makefield Township

Ordinance; and Mr. Wojchiechowski agreed.  Mr. VanLuvanee stated what is being

shown is what the Applicant’s expert identified in the field as the limits of the feature,

and Mr. Wojchiechowski agreed.  Mr. VanLuvanee stated they have also shown a 25’

buffer from the feature.  This was based on what the consultant indicated, and

Mr. Wojchiechowski agreed.  Mr. VanLuvanee stated Mr. Wojchiechowski is not present

to contest anything Mr. Goll testified to.

 

Mr. Koopman objected.  He asked where the 25’ came from as Mr. Goll’s testimony indicated it was 50’. 

 

 

Ms. Kirk overruled the objection and asked Mr. Wojchiechowski to continue his

testimony and the Zoning Hearing Board will be able to review the testimony and make

its own determination.

 

Mr. VanLuvanee asked Mr. Wojchiechowski if he reviewed Mr. Goll’s testimony about

the tracks in Terracedale Road being a water course, and Mr. Wojchiechowski stated he

did.  Mr. VanLuvanee asked if Terracedale Road or the travel lanes of Terracedale Road

are in fact water courses, could the driveway shown on the Plan be constructed; and

Mr. Wojchiechowski stated it could not since if it is a water course, it would have to be

buffered, and they could not encroach on the buffer and could not therefore access

Terracedale from the property without a Variance. 

 

Mr. VanLuvanee stated Mr. Goll characterized the slopes of the property on either side of

the water course which was added to Exhibit A-16 as being gradual or less than 5%.

Mr. VanLuvanee asked if Mr. Wojchiechowski would agree with this based on the

survey, and Mr. Wojchiechowski stated he would agree.

 

Mr. Koopman objected and asked for clarification as to which side of the water course,

and Mr. VanLuvanee stated it would be both sides.

 

Mr. VanLuvanee noted Exhibit A-16 where it is shows a dimension of 10’ from the

center part of the water course feature that has been added to the resource protection line,

and Mr. VanLuvanee asked Mr. Wojchiechowski if this was the resource line which he

testified about during his July testimony; and Mr. Wojchiechowski agreed. 

 

Mr. VanLuvanee noted the building envelope proposed and asked it is the same location

as was shown on Exhibit A-13, and Mr. Wojchiechowski stated he believes it is.

Mr. VanLuvanee asked if there is a water course as is shown on Exhibit -16, in order to

develop the property as shown on the Plan, what Variance would be required with respect

to the building setback.  He asked if it encroaches in the buffer yard requirements from

the new water course now being shown, and Mr. Wojchiechowski stated it does.

Mr. VanLuvanee stated if a 100’ buffer were required, could there be any building on the

lot, and Mr. Wojchiechowski stated there could not. Mr. VanLuvanee asked what they

are proposing by way of setback from the water course in order to construct a home

within the building envelope, and Mr. Wojchiechowski stated they have a building

setback of 25’ from the water course and resource protection line 10’ from the water

course.  Mr. VanLuvanee noted the 8/28/06 letter where he indicated that they would like

to grade within 10’ of the feature, and Mr. Wojchiechowski stated this is correct.

 

Mr. VanLuvanee stated if the Board accepts the testimony that Terracedale Road is a

water course, in order to construct a driveway on Terracedale Road rather than

Morningside as they have been requested by the Township,  would a Variance be

required to eliminate any requirement for a buffer and connect directly into the water

course, if Terracedale Road is being called a water course, and Mr. Wojchiechowski

agreed.

 

Mr. Wojchiechowski was asked from his personal observations of the site, has

Terracedale Road been used by vehicular traffic; and Mr. Wojchiechowski stated he has

seen people drive on that road. 

 

Mr. VanLuvanee asked if a home were to be constructed within the building envelope

shown on Exhibit A-16,  would it have any impact on existing drainage patterns, and

Mr. Wojchiechowski stated the water would still be going to the same place as it is now. 

He stated they might lose a good bit of sheet flow by swaling around the proposed

structure.

 

Mr. Bray stated he feels Mr. Wojchiechowski is speaking as an engineer and not a

surveyor.    

 

Ms. Kirk stated they will allow the testimony.

 

Mr. Wojchiechowski stated as a surveyor he is qualified to do this, and he has graded

approximately 2500 to 3,000 homes that are currently built; and there do not seem to be

any problems with the grading he proposed.  He stated State law does allow him to do

this.  He stated he has also prepared numerous Grading Plans and Engineering Plans for

submission to Lower Makefield Township.  Mr. Wojchiechowski stated with regard to

stormwater management, when there is engineering discretion involved, at that point, he

cannot do design work that involves engineering discretion; but as far as establishing

grading features and determining the impact, he has the ability to do this. 

 

Mr. VanLuvanee noted Terracedale Road and asked if a driveway were constructed to

access the proposed building envelope, would this have any impact to the “stream” that is

Terracedale Road. 

 

Mr. Bray stated they are discussing engineering and stormwater management and not

surveying.

 

Mr. Wojchiechowski stated he is discussing contours, and the contours indicate that water

does run onto their site from Terracedale Road.  He stated if they built the driveway, the

water would not run backward onto Terracedale Road.   Mr. VanLuvanee stated it

appears that water may come from Terracedale onto the property, but it would not flow

off the property onto Terracedale Road, and Mr. Wojchiechowski agreed since the road

does accept water and runs down to Morningside.  He stated they do not want to change

the direction of the water course so they would probably have to install a pipe or swale at

the head of the driveway  so that they will not bring more water into the culvert which

someone installed some years ago that drains onto the Rosen property.

 

 

Mr. Bray was asked if he had any cross-examination; and Mr. Bray stated they would like

to put their engineer back on the stand to rebut.  Ms. Kirk stated at this point they are at

cross-examination.  Mr. Bray asked for time to discuss the matter with his engineer, and

Mr. Koopman was asked to proceed with his cross-examination in the interim.

 

Mr. Koopman noted the water course shown on the Plan going from an easterly direction

to the area shown as “Resource Protection Line,” and stated Mr. Wojchiechowski

indicated the slope was less than 5%, and Mr. Wojchiechowski agreed.   Mr. Koopman

asked what plant material is in this 10’ area currently.  Mr. Wojchiechowski stated he

does not recall although he knows there is pachysandra in the area. 

 

Mr. Koopman stated the testimony from Mr. Goll was that water runs from the north side

of Terracedale Road into the water course and the water runs in a southerly direction

toward the Rosen property, and Mr. Wojchiechowski agreed.  Mr. Koopman stated

Mr. Wojchiechowski indicated that there may be certain swales or grading performed in

connection with the development of a house on the property, and Mr. Wojchiechowski

agreed.  Mr. Koopman asked if the construction of the house on the property will result in

more or less water going into the water course, and Mr. Wojchiechowski stated he does

not know the answer until certain studies are done as far as infiltration and water quality. 

He stated they will have impervious surface so there will be more water.  Mr. Koopman

asked if they have designed the house, submitted Building Permits, or determined the

location of the swales, and Mr. Wojchiechowski stated they have not.  He stated they

cannot this evening tell whether there will be more or less water going into the water

course.

 

Mr. Bray asked Mr. Wojchiechowski how he determined the buffer width was 25’ when

Mr. Goll had testified that it was a 100’ buffer.  Mr. Wojchiechowski stated this was

determined when the channel was originally delineated for the Army Corps of Engineers. 

He stated he sent Piedmont the Ordinance Section 251 which describes the buffer, and he

feels they did the delineation.

 

Mr. Koopman objected since he is testifying as to what Piedmont stated which is

therefore hearsay and requires expertise.

 

Mr. VanLuvanee stated he did ask Mr. Wojchiechowski if he established it, or if someone

else did; and Mr. Wojchiechowski indicated that it had been established by their expert. 

Mr. Bray then asked the questions where it came from, and that is where it came from.

Mr. VanLuvanee stated he acknowledged that Mr. Wojchiechowski did not establish it.

 

Ms. Kirk overruled the objection and asked Mr. Wojchiechowski to complete his answer

as to where he determined 25’ which was what he was asked.

 

 

Mr. Wojchiechowski stated the people who delineated the wetlands gave him the 25

buffer of two different occasions.

 

Mr. Koopman objected and asked that it be stricken from the record to the extent that it is

in the record as a factual statement or a matter of expertise as to what the buffer should

be.

 

Ms. Kirk overruled noted it was Mr. Wojchiechowski’s answer to a question how “he”

came up with the 25’ buffer.

 

Mr. Bray stated he read the Piedmont report and saw nothing in the report that indicated

there was a 25’ buffer with respect to the water course and asked if the 25’ buffer came

from that report.  Mr. Wojchiechowski stated it did not.

 

Mr. Bray stated this is the first time he has seen Exhibit A-16 and he sees that finally

Cara Mia recognizes the water course on the property.  He asked if the water course line

was surveyed and asked how the line was delineated.  He asked why the piping structure

was not shown on the previous Plan. 

 

Ms. Kirk stated this was already asked and answered.

 

Mr. Wojchiechowski stated the individuals on site had located the field inlets and during

the topography he feels there was an assumption made that the neighboring property

would not put a pipe onto the Applicant’s property.  He stated as far as not showing the

swale, they are doing one foot contours and to show what he has shown today contour

wise it is an exaggeration of the contours because the swale is really not that deep to be

that definitive under one foot contours. 

 

Mr. Bray asked whether the water course was surveyed.  Mr. Wojchiechowski stated the

wetlands expert from Piedmont flagged the wetlands, delineated it, and

Mr. Wojchiechowski then mapped it.

 

Mr. Bray asked if it is possible for their environmental engineer to ask

Mr. Wojchiechowski some questions, and Ms. Kirk stated Mr. Bray would have to ask

the questions.  Mr. Bray stated he had no more questions.

 

Mr. Koopman stated Mr. Wojchiechowski stated the water course was identified by

survey from a finding by Piedmont, and he asked if this was done recently or several

years by Piedmont.  Mr. Wojchiechowski stated it was both since the flagging was done

approximately three months ago and it was initially flagged a few years ago. 

Mr. Koopman asked why they flagged it three months ago, and Mr. VanLuvanee stated

he asked them to because Mr. Bray had reopened the issue.  He stated reviewing the

record there were photographs of this water course about which Mr. Bray had testified

previously.  Mr. VanLuvanee stated he felt that if they were going to reopen the issue, the

Applicant should go back out and determine where it was.  Mr. VanLuvanee stated he

asked Mr. Marrazzo to have his expert go back out and locate it in the event Mr. Bray

was going to offer testimony. 

 

Mr. Koopman asked if there was any difference from three years ago, and

Mr. Wojchiechowski stated there was not.

 

Mr. Bray asked Mr. Wojchiechowski if Cara Mia is now agreeing that this is a water

course. 

 

Mr. VanLuvanee objected since this is not a determination for Mr. Wojchiechowski to

make.

 

Ms. Kirk sustained noting that this is an argument that could be made at the conclusion of

the proceedings as to whether or not this water course exists.

 

Mr. VanLuvanee asked Mr. Wojchiechowski if based on his years of experience

including the preparation of a number of grading plans and his knowledge of this

particular property, does he have an option as to whether or not a home could be

constructed at the location proposed as shown on Exhibit A-16 with a 10’ setback from

the water course,  providing no wetlands buffer from Terracedale Road without an

adverse impact on the public health, safety, and welfare; and Mr. Wojchiechowski stated

he believes they could put a house on it and grade the site properly within the limits they

established.

 

Mr. VanLuvanee stated he had no further witnesses.  Mr. Koopman stated he had no

further witnesses.

 

Mr. Bray stated he would like to put Mr. Goll back on to rebut testimony given by

Mr. Wojchiechowski.   Mr. Bray stated he also understands that he will be able to offer

some argument in summary at the conclusion of the session, and Ms. Kirk agreed.

 

Mr. Bray stated Mr. Wojchiechowski discussed the Army Corps of Engineers telling him

that it was not necessary to include the water course on the eastern end of the property

and asked Mr. Goll to comment.

 

Mr. VanLuvanee objected as the Jurisdictional Determination speaks for itself and

whether Mr. Goll  has a different opinion is irrelevant. 

Ms. Kirk stated she will allow leeway and permit Mr. Goll to answer briefly.

 

Mr. Goll stated whether or not the Army Corps of Engineer has jurisdiction over this, the

Township does and in addition whether the Army Corps of Engineers claims jurisdiction

over a ditch does not mean the State of Pennsylvania also does not require a Permit to

encroach in the area of that ditch, and he believes they do.

 

Mr. VanLuvanee stated this was not the question asked. 

 

Ms. Kirk moved, Mr. Smith seconded and it was unanimously carried to conclude

testimony.

 

Ms. Kirk stated they will allow Mr. VanLuvanee, Mr. Koopman, and Mr. Bray each five

minutes to summarize their positions.  Mr. VanLuvanee stated he assumes that they are

going to ask for Findings of Fact and Conclusions of Law.

 

Mr. VanLuvanee stated the Zoning Hearing Board had previously concluded that there

was a hardship attended to this lot; and it was very clear that without Variances, this lot

was unbuildable.  The basis of the prior decision of the Board was that it was not clear

that what was being requested was the minimum Variance which would afford relief.  He

stated their testimony at the first Hearing when Mr. Wojchiechowski testified was to

attempt to address that particular issue which was the reason for the remand.  He stated

they feel the Board had already concluded that there was legal hardship and the question

was to the extent of the relief.  He feels what they have gotten into has gone beyond the

scope of the remand.  He stated at the first Hearing they noted that there may have been

some confusion on the part of the Board as reflected in the Findings of Fact with regard

to the size of the proposed house in relation to the others; and he hopes that they have

cleared this up and have established that this will not be larger than the homes in the

neighborhood, and in fact, if the Exhibits are reviewed, they will show that are in the

middle and the house is in keeping with the size and character of the homes in the

neighborhood.

 

Mr. VanLuvanee stated they also established that this is the only lot in the neighborhood

that has not been built on.  He stated since this lot was subdivided, the Township

Ordinances have changed and a number of setback have now been included in the

Ordinance.  He stated the issue is what is the minimum Variance that would afford relief. 

He stated the first Plan that was submitted had proposed to move the building envelope

back toward what is labeled as the “Smith property,” and consistent with direction they

received from the Township, they moved the building envelope forward.  He stated that

brings it closer to some of the features that are shown.  He stated it does not impact the

view from Morningside Road and they substantially exceed the setback from

Morningside Road.  He stated they have a rear yard shown from the Smith property

consistent with the Ordinance requirements so that they do not need a Variance for this. 

The Variances have to do not with the encroachment into the wetlands or water courses

and the way you measure required buffers and the issue of where you measure buildings

setbacks.  He stated the Applicant is suggesting that this is a flat property, which

everyone agrees to, there is a drainage channel which according to Mr. Goll may be 12”

deep, although Mr. Wojchiechowski has indicated is not even 12” and it sometimes

carries water and according to a very broad definition may meet the definition of a water

course.  He stated it is not the Delaware River or Canal.  He stated he feels the Variances

must be put into context as to what is the physical feature being discussed.  He stated if

the Board accepts the testimony that Terracedale Road is a stream, when they consider

whether to grant a Variance to allow access to Terracedale Road, they must consider the

fact that people are driving up and down Terracedale Road every day.  He stated the

Township has also expressed a preference that the driveway be connected to Terracedale

Road.   

 

Mr. VanLuvanee stated they are required to file a Grading Plan to the Township which

will be reviewed by the Township engineer; and if they want to impose a Condition that

the Grading Plan and Storm Water Management Plans should be reviewed by the

Township prior to issue the Building Permit, they would be in favor of this, noting this is

required by the Township anyway.  He stated he does not feel that anyone has

demonstrated that there will be an adverse impact to the public health, safety, or welfare

if the house is built as proposed.

 

Mr. Bray stated he will need more than five minutes to summarize.  Ms. Kirk stated the

Board will accept Briefs and Findings of Fact to be submitted to the Zoning Hearing

Board.  She stated tonight he can give a brief, five-minute summation if he so chooses.

Mr. Bray stated they feel the hardship was created by the Appellant.  He stated when the

property was originally purchased by Mr. Ingbritsen, he never walked the property and it

was purchased without a contingency.  He stated they later found out that the property

had wetlands.  He stated Mr. Ingbritsen’s wife was a real estate broker, and she should

have known better.  He stated he also alluded to the fact that the Township offered an

opinion regarding the buildabilitiy of this lot, and Mr. Bray stated the Township

expressly does not do that. 

 

Mr. Bray stated they are requesting five Variances, four of great magnitude which he

feels have serious negative environmental consequences.  He stated they do not feel this

is a reasonable use of the property.  He stated in the State of Pennsylvania you do not

have an unrestricted use of your property as you see fit although you are entitled to a

reasonable use.  He stated they do not feel this Plan constitutes a reasonable use of the

property.

 

Mr. Bray stated with regard to the issue of public welfare, the Township and Yardley

Borough have had three one hundred year storms in eighteen months, and this project

will contribute to flooding and deterioration of water quality in the Township.  He stated

flooding is a huge issue in the Township.  He stated he feels it is clear that because of

these facts, this project runs counter to the public welfare and is detrimental to the public

welfare.  Mr. Bray stated there are also other options that an owner could pursue. 

 

Mr. Bray noted the Variances requested and stated when they consider the water course

and the 100’ buffer required, this proposal would not be permitted as the land would be

100% resource protected.  He stated placing a house on this property would have serious

negative environmental consequences.  He stated with regard to woodland disturbance,

they are permitted to disturb 30% and they are proposing over 43%.  He stated there are

two water courses on the property – one on Terracedale Road and the other on the eastern

end of the property.  He stated these are not barely discernible fingers and both have bank

to bank delineations and are at least 80’ to 90’ long.  He stated the one on Terracedale

Road is 300’ feet long.  He stated he does use Terracedale Road but the water course is

on the other side of the road and not in the middle of the road.  He stated he has seen a

raging torrent come down Terracedale Road when there is a heavy rain. 

 

Mr. Bray stated water courses are regulated by the Township.  He noted Section 178-93

in the Stormwater Management Ordinance as well as Section 173-9G in the Delaware

River South Watershed Stormwater Management Ordinance. 

 

Mr. Bray stated he personally has had serious water issues in the last fifteen years.  He

stated Mr. VanLuvanee stated this lot is the only lot that has not been built on in the area. 

He stated this is correct and is because this lot is very different from the other lots in the

area.  He stated all the other lots in the area are not comprised of wetlands.  He stated this

lot is also the lowest lot in the area and is the prime reason why it has never been

developed.  He stated it also has100% resource-protected lands. 

 

Mr. Bray stated the Zoning Hearing Board must consider if this is responsible

development, and he does not feel it is a good project for Lower Makefield because of the

negative environmental impacts.  He stated it also not good for their neighbors in Yardley

Borough.  He stated it runs counter to the Ordinance and contributes to flooding and

deterioration of water quality in Lower Makefield Township.  He stated it also runs

against basic, good, common sense.  He asked that the Zoning Hearing deny this

Application.

 

Mr. Koopman stated he will submit proposed Findings of Fact and Conclusions in writing

but stated the Township is opposed to the Application.  He stated to the extent that

Mr. VanLuvanee indicated that the Hearing on remand is limited, he does not believe this

is the case; and the Hearing on remand has involved significant additional issues in

addition to testimony that was not presented to the Board before.  He stated they also had

the testimony of the owner of the property which they did not have before.  They also had

an amended Variance Application to request an additional Variance from the wetland

buffer requirements which appears to be very substantial.  They have also had testimony

from Mr. Goll which raises issues regarding the extent of Variances being requested and

the impact on health, safety, and welfare.  He stated in light of the testimony by

Mr. Johansson, he feels there are serious issues as to whether there is a hardship or

whether, if it has been established that there is a hardship, whether it was a self-inflicted 

hardship.  He stated Mr. Marrazzo is not the owner of the property, and has the property

under Agreement; and he believes the Agreement is conditioned upon his being able to

obtain Variances.  Mr. Koopman stated he feels the Board needs to look at

Mr. Johansson’s testimony carefully to see if hardship has been established and whether,

if it has, if it is self-inflicted hardship.

 

Mr. Koopman stated the other issue that has been raised has to do with the adverse

impact of the grant of Variances, and he feels Mr. Bray and Mr. Goll have addressed this. 

He stated Mr. Goll did discuss specific factors having to do with the elimination of the

wetland buffer and the impact this has on water quality and in particular in this case, on

Silver Lake which is downstream from this property.  Mr. Koopman stated he will

address these in more detail and support the arguments with citations in the Findings and

Conclusions. 

 

Ms. Kirk moved that the Applicant, the Township, and Mr. Bray submit proposed

Findings of Fact and Conclusions of Law to the Township Building no later than

10/31/06.  There was no Second to the Motion.

 

Mr. VanLuvanee stated he does not feel the Transcript from the first Hearing has been

completed yet.  He stated he did ask to have the second Hearing done which was on

September 19, 2006. 

 

Mr. Toadvine asked all participants if they could agree that the Board’s requirement to

issue its written decision within forty-five days will not run until those proposed Findings

of Fact are submitted.  Mr. VanLuvanee stated he would agree to this.  Mr. Koopman

agreed as did Mr. Bray. 

 

There was discussion on the July 18, 2006 Transcript.    Mr. Koopman asked

Mr. VanLuvanee if he was prepared to order this Transcript,  and Mr. VanLuvanee stated

he is prepared to order his own copy.  Mr. Koopman asked about this evening’s

Transcript, and Mr. VanLuvanee stated he would ask for that at the same time. 

 

Mr. Koopman asked if they could agree to three weeks from the time that the final

Transcript is received, and Mr. Toadvine suggested that they put a date certain.

He asked if the Findings of Fact could be submitted by the second week in November,

but Mr. VanLuvanee stated he cannot guarantee the Transcript time.  Ms. Kirk stated she

wants to insure that the proposed Findings of Fact and Conclusions of Law are submitted

in a timely basis but also that the Board has the opportunity to review them before their

next-scheduled Hearing.  She stated she does not want to have to review them the night

of the Hearing.  Mr. VanLuvanee stated the Board would have forty-five days to deliver

the Findings, so this is not an issue.  Ms. Kirk stated she wants to make sure that the

Board has time to review them before they have to meet to make their vote. 

 

Mr. Toadvine suggested that Mr. VanLuvanee contact him once he gets the 7/18/06

Transcript.  Mr. Toadvine asked Mr. VanLuvanee how many weeks he would need to

prepare once he receives the Transcript, and Mr. VanLuvanee stated three weeks would

be sufficient.  Mr. Toadvine stated once Mr. VanLuvanee contacts him, he will notify the

Zoning Hearing Board, and at the following meeting they will announce the date that the

Findings of Fact are due.  This was satisfactory to all participants.  Mr. Koopman was

asked by Mr. VanLuvanee if he wanted a copy of the Transcript, and Mr. Koopman

stated he did.  Mr. Bray was asked if he wanted a copy, and Mr. Bray stated if it costs

money, he does not. 

 

Mr. Toadvine stated this matter will be continued awaiting the Findings of Fact and

possibly at the November 6 meeting, there will be a further announcement.  The Zoning

Hearing Board will be provided ample time to review the Findings of Fact before they

have to make a Decision.

 

 

APPEAL #06-1374 – DIANE & STEVEN BULLARD

 

Mr. Scott Fegley, attorney, was present with Diane and Steven Bullard.  Ms. Kirk stated

testimony had already been submitted in this matter and testimony was taken by the

Applicants on August 15, 2006.  She stated the reason the matter was continued was

because the Township was in opposition to the Application, and the Township requested

a Continuance to be able to report back to the Board of Supervisors and then come back

to the Zoning Hearing Board and advise the Board what position the Township was

taking.

 

Mr. Fegley stated he would like to ask Mr. Majewski some questions on Cross and make

a closing argument. 

 

Mr. Koopman stated the Township is opposed to this Application.  He called

 

Mr. Majewski to present brief testimony.  Mr. Majewski was sworn in, and he stated he is

the Township engineer and is a licensed professional engineer in the Commonwealth of

Pennsylvania.  He is familiar with the property which is the subject of this Application,

and has been to the property on a number of occasions.  He is familiar with the Zoning of

the property and noted it is Zoned R-2.

 

Mr. Koopman asked Mr. Majewski if he was involved when the initial Permit was issued

by the Township to allow limited filling of the steep slopes on the property consistent

with what is permitted under the Ordinance, and Mr. Majewski stated he was.  He stated

he helped assist one of the other engineers in reviewing the Plan to approve the Permit. 

The Permit was approved to allow less than 15% of disturbance of the slopes.  The slopes

are greater than 25% and the Ordinance allows 15% of those slopes to be filled.  The

Permit granted allowed them to disturb 15% or less. 

 

 

Mr. Koopman asked Mr. Majewski if he has been to the site to determine the extent of

the over-fill, and Mr. Majewski stated based on the As-Built Plan submitted by the

Applicant and his verification of that, it appears that approximately 26% of the steep

slopes that were 25% or greater were disturbed as opposed to the 15% which were

permitted by Ordinance.  Mr. Koopman asked the amount of square footage or acreage

would be involved in the additional disturbance area.  Mr. Majewski stated he has not

calculated the square footage or acreage.  Mr. Majewski stated the area that was

overfilled was approximately twenty-five feet beyond what was allowed by the Permit. 

Mr. Koopman stated he felt the additional disturbed area was 6,000 square feet and asked

if he could confirm this. 

 

Mr. Fegley objected based on leading and hearsay.

 

Mr. Toadvine stated this was part of the testimony by Mr. Bullard at the last meeting and

this is in the Record.

 

Mr. Majewski asked the principal permitted use of this property in the R-2 Zone, and

Mr. Majewski stated it is single-family, detached dwelling.  He noted there is a single-

family detached dwelling on the property currently.

 

Mr. Koopman noted the excess fill which has been deposited on the property and asked if

it could be removed in a manner consistent with good engineering practice, and

Mr. Majewski stated it could.  Mr. Koopman asked if the removal of the fill would have

an adverse impact on the ability of the property owner to continue to use the property for

a single-family detached dwelling, and Mr. Majewski stated it will not. 

 

Mr. Koopman stated at the last Hearing there was a question whether or not Mr. Bullard

would agree not to further subdivide the property.  Mr. Koopman stated he understands

Mr. Bullard is not prepared to agree to this.  Mr. Koopman asked if Mr. Majewski was

asked to make a determination as to whether the grant of the Variance would affect a

potential building envelope for the construction of an additional home on the property.

 

Mr. Fegley objected as to the relevance to the issues before the Board.  He stated they are

not present to discuss a Subdivision Plan.

 

Ms. Kirk stated she will allow Mr. Majewski to answer.

 

Mr. Majewski stated he did evaluate this.  Mr. Koopman asked if the grant of a Variance

would impact the potential building envelope for a future house on the site; and

Mr. Majewski stated the size and configuration of the envelope would  change, but there

would still be a building envelope available under either scenario.  He prepared Exhibits

to show how the building envelope would change if the Variance were granted.  He stated

he prepared one Exhibit showing the building envelope based on the current As-Built

conditions and another Exhibit showing the building envelope based on the approved

Permit Plan if the grading had proceeded in accordance with the approved Permit. 

 

Ms. Kirk asked what the property looked like prior to it being filled.  Mr. Majewski

stated there was a ravine on the property approximately twenty to thirty feet deep, forty-

five total from its uppermost point to the lowest point.  If you were facing the house from

the street, the ravine would have been on the left.  On the right hand side of the ravine

there is an in-ground pool, existing house, and driveway.  On the left side of what was the

ravine, there is another property. 

 

Ms. Kirk asked if it was a natural ravine, and Mr. Majewski stated it did not appear to be

natural such as one being caused by erosion.  He stated he has heard that it was a borrow

pit for the Delaware Canal.  He stated a borrow pit is an area where you excavate dirt to

be used elsewhere.  Ms. Kirk asked if it is known the last time it was used as a borrow pit

for the Delaware Canal, and Mr. Majewski stated if it is true that it was a borrow pit, it

would have last been used approximately one hundred years ago

 

Exhibit T-1 was marked and is one of the sketches prepared by Mr. Majewski to show the

building envelope that would be permitted if the Variance was granted.  The Board was

provided copies of Exhibit T-1 this evening.  The building envelope is shown in yellow.

Exhibit T-2 was marked and is the sketch prepared by Mr. Majewski to show the

potential building envelope for a second home on the property if the Variance was not

granted by the Board.  Copies of Exhibit T-2 were provided to the Board this evening.

 

Exhibit T-1 was noted, and Mr. Koopman stated if the Variance were granted, it would

have the result of allowing a larger contiguous building envelope on the property than

would otherwise be the case if the Variance were not granted; and Mr. Majewski agreed.

Exhibit T-2 was noted, and Mr. Koopman stated this shows two potential building

envelopes of smaller dimensions, and Mr. Majewski agreed.  Mr. Koopman noted the one

to the left when viewing the Exhibit which is rectangular and asked where it is located on

the property.  Mr. Majewski stated that envelope is located in the area that was filled in

on the steep slopes.  All of the building envelope would be in the filled area. 

Mr. Koopman asked if construction of a home on this building envelope would be

difficult, and Mr. Majewski stated it would since the fills were put in without possibly

being properly compacted, and without the correct oversight for that compaction, and it

may be difficult to build a suitable home without having potential for settlement.  He

stated they may also have to put the home on pilings to get down to suitable ground. 

Mr. Koopman asked if this limits the feasibility of building a  house on the leftmost

building envelope, and Mr. Majewski stated it does.  Mr. Koopman noted the rightmost

building envelope which is a smaller envelope than would be permitted if the Variance

were granted, and Mr. Majewski agreed.  Mr. Koopman stated this would limit the size

and extent of the construction of a home, if a home could be constructed in that building

envelope; and Mr. Majewski agreed.

 

 

Mr. Fegley stated in January Mr. Majewski asked for a revised estimate as to how much

volume of fill would be brought in to meet the Grading and Sedimentation Plan that had

been prepared, and Mr. Majewski stated this is correct.  Mr. Majewski stated Mr. Bullard

provided this to the Township.  Mr. Fegley asked if Mr. Majewski reviewed this, and

Mr. Majewski stated it was reviewed by someone else at PCS.  Mr. Fegley stated at the

earlier Hearing Exhibit A-8 was marked which was a memo dated 1/12/06 to Nancy Frick

from Mr. Majewski.  Mr. Toadvine stated there is no Exhibit A-8 in the Record.  He

stated the last Exhibit marked was Exhibit A-7 which was a package of information.

Mr. Fegley stated he feels he intended to mark this item as Exhibit A-8. 

 

Mr. Fegley presented a letter which was marked as Exhibit A-8.  Mr. Koopman stated

this is a letter from Robert Habgood to Mr. and Mrs. Bullard dated 1/13/06 and attached

to it is a PCS memo dated 1/12/06 to Nancy Frick.  Mr. Fegley stated that memo is from

Mr. Majewski to Nancy Frick and it reflects that Mr. Majewski reviewed the amount of

fill.  Mr. Majewski stated he reviewed the calculations which were done by someone else.

Mr. Fegley asked if he found them to be accurate, and Mr. Majewski stated he found

them to be fairly accurate.  Mr. Fegley stated at the last Hearing Mr. Majewski indicated

that he and the Applicant agreed to 11,000 cubic yards of dirt, and Mr. Majewski agreed.

Mr. Fegley stated this is what the Permit was based on, and Mr. Majewski agreed.

Mr. Fegley stated this was what was brought in, and Mr. Majewski agreed. 

 

Mr. Fegley stated the only issue they are present about this evening is the overage which

is the 11,000 cubic yards of dirt ultimately created, and Mr. Majewski stated it is not the

amount of fill, but the extent of fill and its effect on the disturbance of steep slopes. 

 

Mr. Fegley asked about Mr. Majewski’s knowledge about the current condition of the

site, and Mr. Majewski stated he was on the site approximately one month ago and

currently the site has grass re-established on it and it appears to be stable.  Mr. Fegley

asked what removal of the dirt would entail, and Mr. Majewski stated they would have to

bring out loaders and excavators to dig the dirt out,  put it into dump trucks and truck the

dirt away to some other location, and then re-establish the area.  Mr. Fegley asked for an

estimate on the amount of trucks that would be necessary to accomplish all of this, but

Mr. Majewski did not know.  Mr. Fegley asked if there would be danger of increased

sedimentation from disturbing the area again, and Mr. Majewski stated with the

appropriate sedimentation controls by Soil Conservation, this would not be an issue.

 

Mr. Fegley asked if there would be problems associated with any attempt to re-distribute

the fill on the property, and Mr. Majewski stated he has not closely evaluated that but

based on his review of the Plans, it appears that at least some of the earth could be

re-distributed on a portion of the property.  Mr. Fegley noted the notes from the last

Hearing which state that in Mr. Majewski’s opinion because the Delaware Canal is on the

eastern side of the property, it would be difficult to re-distribute it ; and Mr. Majewski

stated that while it would be difficult, a portion could be re-distributed.

 

Mr. Fegley asked if Mr. Majewski is aware of any environmental problems posed by the

excess fill in its current state, and Mr. Majewski stated he is not. 

 

Mr. Fegley stated Mr. Majewski indicated that the ravine is a borrow pit from the

building of the Canal, and he asked if it is unique to this property.  Mr. Majewski stated

that there are several other ravines that appear to have been manmade quite some time

ago along the Delaware Canal.  Mr. Fegley asked if the ravine is unique to this

neighborhood, and Mr. Majewski stated this is correct.

 

Mr. Fegley stated Mr. Majewski testified this evening that regardless of whether the

Applicant is required to take out the excess dirt and remove it or whether a Variance is

granted to leave things as they are now, he would still have enough of a building

envelope to build a residential dwelling; and Mr. Majewski stated this is correct.

Mr. Fegley asked Mr. Majewski if he has estimated how many residential dwellings

could be fit into either Exhibit T-1 or Exhibit T-2; and Mr. Majewski stated he has not.

 

Mr. Fegley stated despite the fact that under Exhibit T-1 which represents the current

conditions, it is still plausible to build a house or houses under Exhibit T-2, and

Mr. Majewski agreed.  Mr. Fegley asked if it could be done without any further

Variances required for Exhibit T-2; and Mr. Majewski stated this is correct.

 

Mr. Koopman stated the last question asked by Mr. Fegley was under Exhibit T-1 or

Exhibit T-2 an additional house could be built without any additional relief from the

Zoning Hearing Board; and he asked Mr. Majewski if he has done a complete review of

the Zoning Ordinance to see if that is accurate.  Mr. Majewski stated he has not done a

complete review but feels it is true.  Mr. Koopman stated there would not be additional

Variances needed for steep slopes, and Mr. Majewski agreed.  Mr. Koopman asked if he

looked at other issues in the Zoning Ordinance that might or might not be complied with;

and Mr. Majewski stated there are no other Zoning issues that he is aware of that would

preclude the building of another house on the property.

 

Mr. Koopman stated Mr. Fegley asked questions about whether or not the ravine was

unique, and he stated assuming that it is unique, does that uniqueness in any way prohibit

the property from being used as it is used now as a single-family dwelling; and

Mr. Majewski stated it does not as there is significant area outside the property for one

and possibly two homes even if the additional Variance is not granted.

 

Mr. Koopman noted Exhibit A-8 with the 11,000 computation and asked Mr. Majewski if

the fact that approximately 11,000 cubic yards of fill was brought in, does this in and of

itself result in overfilling of  the property beyond the 15%, and Mr. Majewski stated it

does not.  He stated the issue is not the amount of fill brought in but the extent of fill

beyond that allowed in the Permit that resulted in disturbance of steep slopes greater than

25% and the amount of slopes filled in was significantly above what is permitted under

the Ordinance.

 

 

Ms. Kirk stated it appears that notice of tonight’s Application would have been submitted

to the Commonwealth of Pennsylvania as well as the Delaware River Division of the

Canal.  She asked Mr. Majewski if he has received notification from either of those

entities of any objection to the Application; and Mr. Majewski stated he has not.

Mr. Habgood was asked if the Township received any notification from those two entities

concerning the Application, and Mr. Habgood stated to his knowledge, they have not.

 

Mr. Fegley stated Mr. Majewski has indicated that in terms of the fill it is not a question

of amount but the extent.  He asked if there were engineers involved on the Applicant’s

side, and Mr. Majewski stated he is aware that they had a surveyor but he is not sure he

was an engineer.  Mr. Fegley asked if that would be the person responsible for

determining where the fill went, and Mr. Majewski stated he is not sure who was

responsible for this.

 

Mr. Bamburak stated he assumes there was a contractor on site to move the dirt and he

asked who was supervising the contractor to make sure the dirt was put in the correct

location and to the right extent.  Mr. Bullard stated he was working with the Grading

Plan.  He estimated the 11,000 cubic yards coming in and stopped the truck before he

thought he put in 11,000 cubic yards.  He had allowed for another day of trucks

delivering but stopped it a day earlier because he calculated from a visual standpoint that

he had enough.  Ms. Kirk asked if this was the same Grading Plan that was submitted to

the Bucks County Conservation District as well as the Township, and Mr. Bullard stated

this is correct.

 

Mr. Toadvine noted Exhibits T-1 and T-2; and stated Mr. Majewski testified that the two

building envelopes on Exhibit T-2, the one to the left is all over the filled area; and

Mr. Majewski agreed.  Mr. Toadvine asked if a portion of the building envelop depicted

on Exhibit T-1 also over a portion of the filled area, and Mr. Majewski stated he would

estimate that approximately one half of that building enveloper is over the filled area.

 

Ms. B. J. Rassler, 105 Ovington Road, was present and was advised that she was still

under Oath.  Ms. Rassler stated she does not understand how such deceit can go on.  She

stated her neighborhood was told that under no circumstances were there any plans being

made for any kind of house and it was only to expand their side yard.  She stated she does

not feel that a lie should be rewarded.  She stated as the next-door neighbor, she would be

in favor of seeing the dirt removed.

 

Mr. Bob Shellenberger, 103 Ovington Road, was present and was advised that he was

still under Oath.  Mr. Shellenberger stated with regard to the granting of Variances, he

feels it is usually up to the Applicant to prove some kind of hardship; and stated if there

was a hardship it was because the Bullards caused it by bringing in too much dirt.

 

 

Mr. Anthony Russo, 101 Tudor Lane, was reminded that he was still under Oath. 

Mr. Russo stated they have misrepresented their intentions saying the reason they wanted

to fill this in was safety, and they did not want anyone to get hurt; and now he feels their

real intention is gain and greed, and getting a house built on the property as this was their

intention all along.  He stated everyone in the neighborhood knows it as he has spoken to

other people about it.  He stated he hopes that this will not be rewarded.

 

Mr. Don Lex, 106 Vernon Lane, was reminded that he was still under Oath.  Mr. Lex

stated his property is adjacent to the ravine.  He is on the left side looking from Ovington.  

He stated three property owners adjoined this “ex-ravine.”  He stated their properties

have been de-valuated and will be even more so when houses are built on the property. 

He stated he feels the trucks should come back and take out the dirt even if they cannot

stop the building.

 

Ms. Kirk moved, Mr. Bamburak seconded and it was unanimously carried to close

testimony.

 

Mr. Fegley stated the issue before the Zoning Hearing Board tonight is the matter of

whether to allow this overage to continue to exist.  He stated what has infiltrated into the

Haring is whether or not the Applicant intends to build a house or potentially build a

house and subdivide this parcel which is not before the Board.  He stated they heard this

evening from Mr. Majewski’s testimony that it does not matter if the trucks come back

and take the dirt out, Mr. Bullard would still have the opportunity to be in conformity

with the Grading and Sedimentation Plan that was approved by the Township to make an

Application for Subdivision at some point in time should he so choose. 

 

Mr. Fegley stated this evening the Board is to consider whether they should allow the dirt

to remain which is now stable and is fully growing grass.  He stated it is not causing any

environmental impact nor has the project generated any comments from the Delaware

Canal Commission or any other entity other than the neighbors.  He stated they must

consider whether, because of a technical mistake, they will require the trucks to come

back in, dig it up, and cart it away.  Mr. Fegley stated he feels that if Mr. Bullard had

agreed to a restriction that he would not build on the property, they would not be present

this evening.  He stated he does not feel they should make a Zoning decision which is

intended to discourage potential future development and an Applicant from making an

Application for Minor Subdivision of his property which is his right.

 

Mr. Fegley stated this is a unique situation based on the borrow pit.  He stated

Mr. Bullard did come to the Township and get the appropriate Plans to proceed with

filling it in.  He stated there has been no environmental objection from anyone in the

environmental community.  He asked that they allow the Variance and allow the now

stable condition to remain.

 

Mr. Koopman stated although the grant of Variance may have the result of benefiting the

Applicant in terms of construction of additional homes, this is not the major issue.  He

stated the major issue is whether these Applicants have established that they are entitled to the grant of a Variance.  He stated the Variance would permit a very substantial violation of the Township Zoning Ordinance and a substantial violation of the environmental restrictions contained in the Township’s Zoning Ordinance having to do with the Ordinance provision regarding filling in steep slopes in excess of 15%. 

Mr. Koopman stated under the Zoning Ordinance you cannot fill in more than 15% of steep slopes.  He stated this is one of a number of environmental restrictions in the Ordinance; and in order to obtain relief from that restriction, there must be some kind of hardship.  He stated the Applicant has not established any hardship.  He stated it is clear that the grant of the Variance in this case cannot be supported because it is a deminimus Variance as it is not.  He stated the environmental laws of the Township allow a 15% disturbance, and in this case they have disturbed 26% of the slopes.  He stated there has been no evidence of any hardship.  He stated the property is zoned Residential and can be used for one possibly two single-family residences without impacting and disturbing the environmental restrictions.  He stated there is no basis for grant of a Variance in this case. 

 

Mr. Koopman stated the Zoning Hearing Board has previously granted Variances before

from environmental restrictions, but only in limited circumstances where those Variances

have been necessary to allow a use of the property.  He stated the Variances being

requested are not necessary in order to enable a reasonable use of the property.  He stated

a reasonable use of the property has been made previously and it can continue to be

made.  He stated whether or not compliance is required with the Ordinance does not

impact upon the Bullard’s ability to make a reasonable use of the property. 

Mr. Koopman stated to his knowledge, Variances have never been granted by this Board

before in situations where there is not a deminimus request and where the Variance is not

necessary to make a reasonable use of the property.  He stated this Applicant, for one

reason or another – possibly improper oversight – filled in environmentally sensitive

lands of the Township from 15% to 26%.  He stated if the Applicant is able to get a

Variance from that, the environmental restrictions in the Ordinance have no meaning and

anyone could come in after the fact and claim they made a mistake and miscalculated.   

 

He stated this is not what the law of Variances is about nor the precedent.  He stated if

there was some particular hardship which prevented a reasonable use of the property or

some kind of deminimus situation, he could see the support of a Variance; but in this case

a Variance should clearly not be granted.

 

Ms. Kirk moved, Mr. Smith seconded and it was unanimously carried to take this under

advisement to go back and review the testimony of the prior Hearing of August 15 and

review the additional Exhibits.

 

 

APPEAL #06-1393 – W. ANDREW & LISA J. MACAN

 

Ms. Kirk reminded the Applicants that they were still under Oath.  She stated prior

testimony had been presented, and the only issue was the easement area that is still

owned by the developer that was to be dedicated to the Township and whether the

retaining wall will effect the dedication.

 

Mr. Donaghy stated Mr. Majewski did go out to the property, and he stated that they have

no objection to the retaining wall being within the easement.  Mr. Donaghy stated if there

was a dedication of that area, it would be subject to the retaining wall being in place.

 

Ms. Kirk moved, Mr. Bamburak seconded and it was unanimously carried that the Variance for the construction of the retaining wall within the storm sewer easement area be granted subject to the following Conditions:

 

            1)  That the property owner shall be solely and completely responsible

                  for maintenance of the retaining wall;

 

2)  Whoever is the easement holder, whether it is the developer or the

                  Township, that if they need access to that area, that the property

                  owner be solely and completely responsible for the removal of the

                  wall or sections of the wall at their own cost and expense.

 

 

APPEAL #06-1395 – TRACY MILLER, HACIDENDA DESIGN AND PETER VANDENBRAND

 

Ms. Kirk stated on September 19 there was an issue as to whether or not the Plan as

presented could be modified or revised to an extent to help reduce some of the requested

impervious surface.  Since the last Hearing, a Plan has been submitted with a cover letter

to the Township from Mr. Vandenbrand dated 9/26/06.  This letter with the Revised Plan

was marked as Exhibit A-3.  Based on the contents of the letter, it appears that the

Applicant is still seeking to construct a two-story 30’ by 30’ garage as originally

presented at a height which would still be 23’ 8 ½”, and the Applicant is still asking for

an increase of impervious surface from 24% to 32%.

 

Mr. Vandenbrand stated they did review some other issues, and the Applicant would still

like to get approval for a garage that is very close to the 30’ by 30’ requested.  He stated

it is also very important to them is the fact that it would be a hardship for them to enter

and exit the driveway from the roadway.  He stated they know that they have guidelines

to follow and they did work with Mr. Jones, the homeowner, showing him what a garage

would be if it was reduced to 30’ by 25’, and they would not want to do that, but if they

can come to a mutual agreement, Mr. Jones would entertain that opportunity.

 

 

Ms. Kirk stated the contents of the letter dated 9/26 indicates that the property owners

want to continue with the Plan as presented; however, the Revised Plan shows the

impervious surface to be 25.6% with sections of impervious surface to be removed. 

Mr. Vandenbrand stated they will accommodate a reduce pavement as noted on the

Revised Plan.  He stated they are looking for 25.6% but he wanted the Zoning Hearing

Board to understand the hardship that will be encountered if it is reduced to this amount.

Ms. Kirk stated if the Zoning Hearing Board were inclined to grant the request for

impervious surface of 25.6%, it would be up to the property owner to decide how they

would designate this. 

 

Mr. Toadvine asked that the property owner confirm that they are agreeable to reducing

the request to 25.6%, and Ms. Jones agreed.  Ms. Kirk stated if the Board were inclined to

grant the Variance, the Applicant would then decide how to manipulate the impervious

surface to meet that amount. 

 

Ms. Kirk asked if they are still seeking the height Variance, and Mr. Vandenbrand stated

they are.

 

Ms. Miller stated at the last Hearing, Mr. Toadvine asked if they knew of any other

garages in the area that were similar, and they have found some.  Mr. Smith asked how

far away they were from the subject property, and Mr. Vandenbrand stated they varied

from a few miles to a few blocks. 

 

 

Ms. Kirk asked if the Board were inclined to grant the request for a height Variance,

would they still be agreeable to a Condition that the garage be used for personal use only

and that the second floor not be used for personal living quarters; and Ms. Jones stated it

would be for storage only.

 

Mr. Donaghy stated on the Revised Plan they are showing 25.6% and asked if this

includes the garage being 30’ by 30’, and Mr. Vandenbrand stated it does.  Mr. Donaghy

asked if they are going to reduce the garage by 150’ feet, and Mr. Vandenbrand stated if

they could allow the driveway to be 18’ wide so two cars could pass, it would make it

more practical for them to get out onto the roadway.  Mr. Vandenbrand stated they would

be willing to compromise so that they could build a 25’ by 30’ garage if they could get a

two-lane driveway.  Mr. Toadvine stated the Zoning Hearing Board is considering

granting 25.6% impervious surface, and it would be up to the Applicant how to use the

impervious surface. 

 

Mr. Donaghy stated he understands the neighborhood does not have any stormwater

management facility, and Mr. Vandenbrand agreed.  Mr. Donaghy asked what they

proposed to do in order to deal with the additional stormwater resulting from the increase

in impervious surface, and Mr. Vandenbrand stated they did not do any research on this

and did not feel they were required to do any stormwater management.  Mr. Toadvine

stated whenever you increase impervious coverage, you are required to provide for this as

part of the Building Permit.  Mr. Donaghy stated if the Variance is granted, they should

be prepared to submit to the Township an appropriate stormwater management plan for

the additional impervious surface, and Mr. Vandenbrand stated this would be acceptable

subject to the Township engineer’s approval. 

 

Ms. Lauren Lawrence, 48 West Crown Terrace, was present and was reminded that she

was still under Oath.  Ms. Lawrence urged the Township to keep a close look at

stormwater management for this lot as there is a drainage grate in front of the driveway

that does get blocked, and the water then goes across the roadway and into her back yard. 

She stated the driveway apron for this and the adjoining lot does form a pond after it rains

and she hopes that they will find a way to handle this so that the water does not sit.  She

stated previously she indicated that the structure next door to this property was a garage,

and she has since found out that it is really an oversized storage unit. 

 

Ms. Kirk moved, Mr. Smith seconded and it was unanimously carried that the request for Variance from impervious surface be granted to a maximum impervious surface of 26% subject to the submission of an appropriate stormwater management plan subject to the approval of the Township engineer.  Moved that the Variance be granted to permit a maximum height of 23’ 8 ½” for the proposed garage area subject to the following:

 

            1)  That the garage be used only for personal storage of vehicles

                  and other personal materials;

 

            2)  That there not be in the future conversion of the second story

                 level of the garage to an otherwise independent separate

                 living area.

 

 

APPEAL #06-1397 – RICHARD D. MAY

 

Mr. Richard May and Ms. Sue Ellen May were sworn in.  The Application submitted was

marked as Exhibit A-1.  Included with the Application were two letters.   One, date-

stamped by the Township 9/1/06,  from Ms. May regarding the removal of the trees at

issue and the fact that they were not removed to the ground but that the stumps were left

in, was marked as Exhibit A-2.  The letter from Mr. Ramirez from J. R. Landscaping

dated 8/19/06 was marked as Exhibit A-3.  Also submitted was a one-sheet Plan entitled

Plan of Lot #74 Quarry Commons Drive dated 9/9/80 with Township stamp of 9/1/06,

and this was marked as Exhibit A-4. 

 

Mr. May stated they were seeking to have two dead trees removed from the property,

both of which have been removed.  He stated the trees were removed near a small creek

that is dry half of the time.  Exhibit A-4 was noted, and Mr. May noted the two circles

which show where the two trees were located.  He stated to his knowledge, they were

maple trees. 

 

Mr. Toadvine asked if the maintenance easement noted is part of his property, and

Mr. May stated it is.  Mr. Toadvine asked who owns the easement, and Mr. May stated he

has lived there for over twenty years but does not know who owns the easement. 

Mr. Majewski stated he believes it is owned by the Township. 

 

Mr. May stated five to six years ago a 30’ tree in the front yard fell down toward the

house.  He stated he lives on the corner of Creamery and Quarry Road which is a very

busy intersection, and he was concerned that the tree could have fallen onto the street and

killed someone.  He stated they have a large wooded area on the property.  He stated he

did have a landscaper come in and take out the two dead trees since they felt they were

hazardous.  He stated they did leave the stumps in since they felt if they took them out, it

would have created erosion.  He stated if the trees had fallen down, they could have fallen

onto Creamery Road.  He stated they were 15’ to 20’ high. 

 

Ms. Kirk asked what evidence he observed which made him feel they were dead, and

Mr. May stated they were barren in the summer and branches were falling.  He stated

there was a lot of poison sumac up the sides as well.  He stated his daughter, Sue Ellen,

has a degree in plant pathology and works for the Department of the Environment in New

Jersey. 

 

Ms. May stated she has also authored books on plants; and while she did not inspect the

property prior to the trees being cut down, she did discuss the matter with her parents. 

She stated if the issue is water quality, soil erosion, and preserving the stream bank,

leaving the stumps and roots of a dead tree would accomplish the same thing as leaving a

dead tree in place.  She stated she did talk to Mr. Habgood on the phone, and there was

some discrepancy as to whether the trees were really dead or not when they were cut. 

She stated she feels the trees were dead even though she did not examine them.  She

stated as a plant biologist with a Master’s Degree who has worked for fifteen years in the

environmental industry, in her professional opinion, cutting a tree to the stump does not

have an adverse impact on t he water quality and does not increase soil erosion. 

 

Ms. Kirk asked if, based on her father’s description of what he saw of the trees, and the

fact that there were no leaves in the spring and summer and there poison sumac on the

tree, what would she feel was the condition of the trees. Ms. May stated she feels the

trees probably died.  She stated there are a lot of maples on the property and maples can

tolerate a lot of water; however, the water level has been higher than average in that area

and very few trees can tolerate standing water for an extended period of time.  She stated

the trees in the area are not typical riparian trees but are invasive species.  She does not

feel the poison sumac killed the trees.  She feels it was a standing water issue. 

 

 

Ms. Kirk asked if, based upon her prior observations of the property, would Ms. May

concur that these were not evergreen trees, but were a species that would bloom during

the spring, summer, and fall; and Ms. May stated these were deciduous trees and she has

not seen evergreens next to the stream.

 

Mr. Toadvine stated this Application is for a Variance from the Section regarding

resource protection and floodplains.  He asked if the entire property in the floodplain, and

Mr. Majewski stated a portion of the easement area is in the floodplain.  Mr. Majewski

stated it appears that the trees that were removed were within the floodplain.  He noted

Exhibit A-4 and stated the floodplain is indicated on the map and arrows are drawn to a

heavier dark line that runs through the property.  It is parallel to Quarry Road.  The other

heavier dark line runs parallel for a portion and then diverts away from Quarry Road and

the area within that is in the floodplain.  Mr. Toadvine stated it appears that the Plan

would indicate that one tree was within the floodplain and one was outside of the

floodplain.  Mr. Majewski stated the areas shown are approximate and stated that are

right about on the floodplain. 

 

Mr. Bamburak asked how they found out that they needed a Variance, and Mr. May

stated he received a letter that someone reported the fact that he had taken the trees down. 

Mr. May stated he has lived there twenty years and had no idea he had broken any laws. 

Mr. Bamburak asked if there is any indication who made the complaint, and Mr. May

stated he believes the Township Manager’s family lives across the street.  Mr. Habgood

stated there was no complaint on this and it was observed by a Township employee

driving past the area.  Mr. Habgood stated he sent the letter on 7/24/06 which was a

Notice of Violation.  Mr. May showed Ms. Kirk a copy of the letter.  

 

Mr. Toadvine stated he understands that there was also an issue as to the number of trees

that were taken down.  Mr. Toadvine asked if the Township is looking for some type of

remedial action, and Mr. Donaghy agreed.  Mr. Donaghy stated the Township believes

that eight live trees were removed, and as remediation they would like to see a

comparable number of trees replaced at this location or some other location off-site or

elsewhere in the Township satisfactory to the Township engineer.

 

Ms. Kirk asked why the Township feels eight trees were removed, and Mr. Donaghy

stated Mr. Majewski inspected the site and determined eight trees were removed. 

 

Mr. May stated they had cleared out weeds some years ago and six trees were cut down

but not in the floodplain area.  These were taken out at other times.  He stated the wood is

still there, and they could look at it to see if it was from a dead tree or a live tree.

Mr. May stated the other six trees were taken out two to three years ago.  Ms. May stated

she does not understand how someone can view a stump and indicate that it was from a

healthy tree as this is a very detailed analysis.  She stated she does not  have the

impression that this determination was made by a plant biologist.

 

Mr. Smith asked if Mr. May would have a problem planting eight trees, and Mr. May

stated if they were $1,000 a tree, he would have a problem with this. 

 

Ms. May asked the function of the easement noting it is a severely degraded system; and

Mr. Toadvine stated it is not the easement function that is an issue, but rather the issue is

the Township Ordinance requiring floodplains to be protected 100% which includes that

there be no clearing of trees in the floodplain.  Mr. May stated he had no knowledge that

there was such an Ordinance.  Mr. May agreed that eight trees were removed over time,

six of them several years earlier;  and he questions how anyone could determine whether

trees removed three years ago were healthy when they were removed.

 

Ms. Kirk stated that is the function of the Zoning Hearing Board to determine.

 

Mr. Majewski was sworn in.  He stated he is an engineer licensed in the Commonwealth

of Pennsylvania.  Ms. Kirk asked if Mr. May would agree that Mr. Majewski is a licensed

engineer employed by the Township, and Mr. May agreed.  He stated he is not, however,

sure what his credentials are in relationship to tree knowledge.  Mr. Toadvine stated he

will not be certified as a botanist. 

 

Mr. Majewski was asked if he inspected the property owned by Mr. May to determine if

any trees had been removed from the site.  Mr. Majewski stated this is correct and he also

was  able to approximately locate on the site the area of the one hundred year floodplain. 

Mr. Majewski stated when he went to the site it appeared that eight trees had been

removed from the site.  There were some wood piles remaining on the property from the

trees, and he observed that the tree stumps and wood did not appear to be diseased

although he is not an expert in tree.  He stated at that state it would be impossible for him

to determine if they were alive or dead, but they did appear to be healthy wood.   He

stated four of the trees were from 6” to 10” in caliper and four were between 10” and 18”

in caliper.

 

Mr. Donaghy presented photographs which were taken by Mr. Habgood of the property.

 

Mr. May stated he does not disagree that he removed eight trees in total.

Mr. Donaghy asked if he had any Permits for the removal of the six trees removed

previously, and Mr. May stated he did not. 

 

The photos taken by Mr. Habgood were shown to Mr. May. 

 

Exhibit T-1 was marked which were the photographs taken by Mr. Habgood on 6/23/06.

Mr. May agreed that the photographs accurately depict the trees which were removed

from the property.  Mr. Majewski stated the photographs represent the condition on the

site which he observed.

 

 

Mr. Donaghy asked if in Mr. Majewski’s position of  Township engineer, does he believe

that if the Zoning Hearing Board were to require that eight trees be replaced, would it be

necessary that they be mature trees, and Mr. Majewski stated he feels a smaller caliper

tree would have a better chance of survival.  Mr. Donaghy asked if they could locate

them outside the floodplain, and Mr. Majewski stated this would be acceptable if it was

in the same general area. 

 

Mr. Toadvine noted the letter of 7/23/06 which indicated that several trees were located

in the floodplain, and Mr. Majewski stated this is correct.  He stated it was difficult to

determine exactly where the floodplain is, but he estimated that four or five of the trees

were in the floodplain.  Mr. Toadvine stated the Township would only be concerned with

the trees that were in the floodplain as the other trees would not be governed by this

Ordinance, and Mr. Majewski agreed. 

 

Ms. Kirk asked when Mr. Majewski was on the site, and Mr. Majewski stated he visited

the site on 7/20/06.  Mr. Habgood took the photographs on 6/23/06.  Based on the

photographs and Mr. Majewski’s visit to the site, the letter dated 7/24/06 was generated.

Ms. Kirk stated the letter indicated that some trees had been cut down within the

easement area and within the 100 year flood plan, and Mr. Habgood agreed.  Ms. Kirk

asked if there was ever any delineation to Mr. May of the exact number of trees that the

Township felt were within the floodplain, and Mr. Habgood was not.  He stated the letter

sent also references a copy of the Township engineer’s report which was attached.

Ms. Kirk stated this is the letter dated 7/20/06 which states it appears some trees were

within the easement area and some within the floodplain. 

 

Exhibit T-2 was marked which is the letter dated 7/24/06 addressed to Mr. and

Mrs. Richard May, Jr. from Robert Habgood.  Exhibit T-3 was marked which is the letter

dated 7/120/06 addressed to Robert Habgood from Mr. Majewski on behalf of Schoor

DePalma. 

 

Ms. Kirk asked Mr. Majewski which photograph shows the trees within the floodplain. 

Mr. Majewski stated the first photograph shows some of the trees that were in the

floodplain.  He noted the “white dots” in the woods which are shown which are the tops

of the stumps, and these are in the floodplain.  He stated the third photograph has a

blown-up picture of three of those trees.  The fourth photo also shows what appears to be

five trees that were within the floodplain. 

 

Ms. Kirk asked if anyone contacted Mr. May prior to this evening’s testimony to advise

him that there were possibly five trees that were removed from the floodplain, and

Mr. Habgood stated they did not.  Mr. May stated the Notice that was put in the paper

indicates two trees, and Mr. Toadvine stated this was based on the Application Mr. May

submitted.  Mr. May stated it was not his intent to deceive anyone. 

 

Mr. Toadvine asked what type and caliper trees would the Township want. 

Mr. Majewski stated he feels a ¾” to 1” caliper tree would be suitable.  The species

would have to be a tree that would be suitable for a floodplain area.  Mr. Majewski stated

he could provide a suggestion to the Applicant.  Ms. May was asked if she had any

suggestions, and she stated she could also provide information on this.  Mr. Toadvine

stated since they are not sure of the exact number of trees which were in the floodplain,

would it be agreeable to both Parties if the Board agreed that four trees would have to be

replanted and that those trees would be replanted under the supervision of the Township

engineer with input from the Applicant as well.  Mr. May stated he would be agreeable to

this.  The Township was also in agreement with this.

 

Ms. Kirk moved, Mr. Smith seconded and it was unanimously carried that the Variance

be granted subject to the Condition that the property owner shall plant four trees of

caliper not less than ¾” or more than 1” in caliper on the property of a species as

determined acceptable by the Township engineer and at such location as the Township

engineer makes reasonable exercise of his discretion determines.

 

 

There being no further business, Mr. Smith moved, Mr. Bamburak seconded and it was unanimously carried to adjourn the meeting at 10:15 p.m.

 

                                                                        Respectfully Submitted,

 

 

 

 

 

 

                                                                        Barbara Kirk, Chairman