The regular meeting of the Zoning Hearing Board of the Township of Lower Makefield was held in the Municipal Building on September 5, 2006.  Chairman Kirk called the meeting to order at 7:40 p.m.


Those present:


Zoning Hearing Board:              Barbara Kirk, Chairman

                                                            David Malinowski, Secretary

                                                            Paul Bamburak, Member

                                                            Gregory Smith, Member

                                                            Paul Kim, Alternate Member


Others:                                                 John Donaghy, Township Solicitor

                                                            James Majewski, Township Engineer

                                                            Allen Toadvine, Zoning Hearing Board Solicitor


Absent:                                     Rudolph Mayrhofer, ZHB Vice Chair

                                                            Robert Habgood, Code Enforcement Officer

                                                            Grace Godshalk, Supervisor Liaison





Ms. Kirk stated this matter was continued from 8/1/06.  Mr. John C. Melching, Jr. was

present with Mr. John Schweizer, landscape architect, who were reminded that they were

still under oath.  Ms. Kirk stated the matter was continued as it appeared that they needed

an additional Variance for impervious surface coverage, and this has now been advertised

for tonight’s Hearing.  They are proceeding with requests for two Variances – one for the

side yard setback and one for impervious surface. 


Ms. Kirk stated there had been discussion at the last Hearing on the impervious surface,

and Mr. Melching had indicated that he disagreed with the Township engineer’s

calculations; and he had indicated he felt that he had less than the 33% permitted.  The

Township engineer had indicated that they were at 35%.  Mr. Melching stated he did go

over his numbers and now agrees that he is approximately 1 1/2% over. 


Ms. Kirk stated the Application had been marked as Exhibit A-1, the Plan submitted as

Exhibit A-2, and a package submitted at the last meeting was marked as Exhibit A-3.


Mr. Melching stated Mr. Schweizer, his expert witness, is a landscape designer for

Gasper Landscaping and has done all the work on the property.  Mr. Melching stated

September 5, 2006                                                      Zoning Hearing Board – page 2 of 13


Mr. Schweizer is an expert with regard to the erosion and run-off issues which

necessitated the pavers.  Mr. Schweizer stated he, himself, considers himself to be an

expert witness as he is an architectural engineer who has been in the construction industry

for thirty-two years. 


Mr. Melching noted the photographs numbered one through twelve in Exhibit A-3 which

show various sides of the property.  He stated photo #1 was taken from the street in front

of his home.  He stated the flagpole shown on the right is in front of his home, and to the

left is his neighbor’s home.  He stated in the distance to the left of his home, can be seen

the fencing which is the dog run which was approved by the Township.  He stated there is

a ten to twelve foot rise from the street level back to the farm field adjacent to his house. 

He stated during heavy rains, the farm field runs off toward his property and his

neighbors; and since he moved in, they have had serious problems with erosion between

the properties and water run off.  He stated Mr. Schweizer has worked on his property

and his neighbor’s property to try to minimize issues of water run in that area. 

He stated photo #5 was taken from the rear yard showing the dog run as it goes from the

farmer’s field on the right-hand side toward the left.  The small house shown was the

approved addition to the house which is a garden shed/dog house.  He stated photo #8

shows how the water runs from the farmer’s field toward the house addition.  Photo #9

shows the pavers running up from the front to the back.  He stated in front of the fencing

area there is a drain cover which he took off to show the hole better.  He stated they have

a problem with water pooling in the back of the house to the right of the paver area; and

at Mr. Schweizer’s suggestion, they installed an underground drain which goes from the

back yard where the water pools taking it out past the paver area and down toward the

additional slope toward the street. 


Mr. Melching stated the addition was installed as he did not have sufficient property to

construct an additional garage so they installed a garden house as an area to house the

dogs.  He stated he is restricted to having three dogs on the property.  He stated he has

Rottweilers, and they completely tear up the grass.  He stated if he was asked to take out

the pavers, the area will become a muddy area, and they will have a serious erosion

problem with water running through this area and mud running down to the street which

has occurred in the past. 


Mr. Melching agreed that he did install the pavers secondary to the pavers, not

recognizing that there would be an impervious surface issue as in some Townships, these

are not considered impervious.  He feels being asked to take the pavers out will cause a

serious problem for himself and other properties in the area with the mud, etc.  He would

request a Variance to permit the impervious surface to be 35%.


Mr. Melching stated with regard to the setback issue, the intent of the Application and

Permits to the Township was that this would be used as a dog run/garden shed.  He stated

if the dog run was approved for where it is located, he felt it was also a logical place to

install the pavers in this area and not fifteen feet away from the property line. 

September 5, 2006                                                      Zoning Hearing Board – page 3 of 13



Ms. Kirk noted the garden house and asked if it was constructed in accordance with the

Permit, and Mr. Melching agreed.  She asked if this was all grass area before the pavers

were installed, and he agreed.  Ms. Kirk asked how close the paved area is to the side

yard, and Mr. Melching stated the paved area is approximately 18’ from the side yard. 

He stated the fence itself is one foot from the property line, and the paved area is four to

six inches in from the fence. 


Mr. Kim asked Mr. Schweizer if he would advise the homeowner that the pavers are

impervious, and Mr. Schweizer stated there was a miscommunication between himself

and Mr. Melching.  He stated they always offer the client the option to obtain the Permit

themselves as they do charge for their services to put the paperwork together.  He stated

he is aware that that the pavers are impervious.  He stated through his discussion with

Mr. Melching he had felt that Mr. Melching had obtained the necessary paperwork and

that he had the ability to proceed so he began the project.    


Mr. Kim asked Mr. Melching why he had three Rottweilers.  Mr. Melching stated they

are show dogs.  He stated one dog is also a hospital therapy dog.  He stated currently they

only have two dogs but they plan to have a third in approximately two years.


Ms. Kirk asked if he owned the dogs at the time he purchased the property.

Mr. Melching stated he did have three dogs at the time he purchased the property.

Ms. Kirk asked what they did with the dogs at the time they purchased the property since

they did not have the paved area installed at that time.  Mr. Melching stated they had an

electric fence, walked the dogs, and kept them in the yard.  He stated all their dogs are

professionally trained.  He stated they did not have the pool at that time either.  He stated

photo #7 shows the bulk of the landscaping in the yard.  He stated when they installed the

pool, they were required to install fencing as well. 


Mr. Schweizer stated he has done work on the property adjacent to Mr. Melching as well. 

He stated the area between the two properties, where the pavers are currently, was always

problematic because the swale that was installed never worked properly.  He stated when

they installed the pavers, they were able to pitch the property so that the area is now

better.  He stated prior to this time it was difficult to keep the water on the Melching

property and not run onto the adjacent property contributing to the serious water problem

that they had on that property.  Ms. Kirk asked if they could not have done this through

re-grading, and Mr. Schweizer stated because of the dog run, they would have difficulty

stabilizing grass in that area.  He stated the erosion would then set in and they would

continually have to address this.  He stated by increasing the impervious surface, they

feel it is a good solution to work through this problem. 


Mr. Donaghy stated the Township would like to enter their appearance although they are

not acting in opposition to the request.  Mr. Donaghy stated Mr. Schweizer indicated that

he felt that by including the pavers, it has helped the drainage; and Mr. Schweizer agreed. 

September 5, 2006                                                      Zoning Hearing Board – page 4 of 13


Mr. Donaghy stated it has also increased the flow to the street, and Mr. Schweizer agreed. 

Mr. Schweizer stated the pavers have improved the flow at this point, and he has

discussed it with the adjacent neighbor who has indicated that it has not adversely

impacted his property.  Mr. Donaghy asked if it is correct that the only pavers that were

installed are in the dog run, and Mr. Schweizer stated this is incorrect as there are pavers

around the pool and on the front walkway for which they obtained a Permit. 

Mr. Donaghy asked if any other pavers will be installed as part of this Application other

than those that are installed in the dog run, and Mr. Schweizer stated they will not. 


Mr. Kim moved, Mr. Malinowski seconded and it was unanimously carried to allow the

Variance for impervious surface to 35% and the side yard setback.


Ms. Kirk stated she would strongly recommend that in the future, if they plan to install

additional stone, gravel, paving, etc. that they check with the Township first to insure that

it is considered impervious.





Bob and Susan Gambell were present and were sworn in.  The Application submitted was

marked as Exhibit A-1.  Attached to the Application was an As-Built Plan which was

marked as Exhibit A-2. 


Mr. Gambell stated they are requesting an impervious surface Variance as it relates to an

addition they would like to install over their back patio which will go over the area that

the current patio encompasses.  He stated when they purchased the home it had the

existing driveway and patio and they were at 24.7% impervious surface.  With the new

addition going over the space which the patio occupies, they will actually be going down

to 24.6% impervious surface.  He stated this will be a kitchen/mud room extension.  He

stated they have a modest three-bedroom home with a huge driveway.  They feel it was

probably built in this way because of the hill on the property.  The driveway takes up

over 1,600 square feet which makes it difficult for them to work within the requirements. 

He stated they do a fair amount of entertaining at their home, and it is difficult to do so

with their small kitchen.


Ms. Kirk stated it appears they purchased the property in 2000 and asked if they have

added any impervious surface since then, and Mr. Gambell stated they have not. 

Ms. Kirk stated they currently have a concrete patio of 465 square feet, and have

indicated they would like to build over 450 square feet of the existing patio, and

Mr. Gambell stated this is correct.  Ms. Kirk asked if they have plans to construct another

patio in the future, and Mrs. Gambell stated she they do not because they live by the

Canal where there are a significant amount of mosquitoes.  Mr. Gambell stated what they

are proposing is a built-in sunroom as part of the new addition.  This was included in the Plans submitted.

September 5, 2006                                                      Zoning Hearing Board – page 5 of 13



Mr. Donaghy stated the Township would like to be a Party in this matter although they

are not opposed to the Application.  He asked if the addition will include the sunroom

just discussed, and Mrs. Gambell stated the kitchen will bump out and be all windows. 

It will not technically be a sunroom but will be part of the kitchen.


Mr. Toadvine suggested that if approval is granted, he would recommend that they permit

them to go to 24.7% which is the existing impervious as opposed to the 24.6% noted by

Mr. Gambell.


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

Variance to allow impervious surface up to 24.7%.





W. Andrew and Lisa J. Macan were present and were sworn in.  The Application was

marked as Exhibit A-1.  Included with the Application was an As-Built Plan of Lot #9

dated 9/5/05 which was marked as Exhibit A-2. 


Mr. Macan stated they are requesting a Variance with respect to a retaining wall in their

rear yard which was built in a storm drain easement.  They received a notice from the

Township that they needed a Variance.  The height of the wall varies, and at its highest is

approximately 38” to 40”.  It is constructed of e.p Henry block stone.


Ms. Kirk asked how far the retaining wall runs, and Mr. Macan noted its location on the

As-Built Plan.  Ms. Kirk stated on the As-Built Plan it is marked off in two different

sections.  Mr. Macon stated the solid line is the retaining wall and it runs from the corner

of the house and makes a half circle.  Ms. Kirk noted the stormwater easement area which

appears to be a 30’ wide stormwater easement and asked if it runs along the entire side of

the property past the retaining wall, and Mr. Macon agreed. 


Ms. Kirk asked who owns the stormwater easement, and Mrs. Macon stated at the current

time she understands the easement is still owned by the builder, Hovnanian, as the

property has not yet been dedicated.  Ms. Kirk asked if there is a pipe underneath, and

Mr. Macon stated it is a pipe approximately fifteen to twenty feet underground.  Ms. Kirk

asked if it is their understanding that the builder will dedicate this easement to the

Township, once the property is dedicated, and Mrs. Macon stated this is their

understanding.  Ms. Kirk asked if it is known when that Dedication is intended to occur,

and Mrs. Macon stated it was supposed to have been done some years ago, but has not

yet occurred. 


Ms. Kirk asked about the peak of the wall, and Mr. Macon noted that location on the

Plan.  From that point it tapers downward.  The lowest point is on the far right corner of

September 5, 2006                                                      Zoning Hearing Board – page 6 of 13



the As-Built Plan where it is one foot or less.   Mr. Macon stated if you start from the

house it goes around at three feet high, builds up slightly and then starts stepping down. 

He stated the reason it was built up was because the yard previously flooded very badly. 

He stated they are at the bottom of a hill and water was running down, making the rear

yard a swamp.  He noted the location on the As-Built Plan where the water feeds into the

storm drain pipe.  He stated the way the grading was done, most of the water was missing

the drain and was going to their rear yard so that they had to create a swale to get the

water to that drain. 


Mr. Toadvine asked if they have had discussions with the builder regarding the retaining

wall, and Mr. Macon stated they have had extensive discussions and they had also asked

the Township to help them rectify the grading problems.  He stated originally they

indicated the grading was fine, but when they came out to the property, they agreed that

the grading was not fine but did not know what they could do about it.  Mr. Macon stated

he advised them that they were going to consult with an expert to get the problem

rectified and expected them to pay for any grading problems that were addressed which

they did.  The builder did not pay for the construction of the retaining wall but paid for

the grading that went along with it.


Mr. Toadvine asked if this was reviewed by the Township engineer’s office, and

Mr. Majewski stated the retaining wall was not reviewed by the Township engineer and

came to light when the developer was going for Final Certificate of Occupancy for the

property, and it was noticed that a retaining wall had been built and was within the storm

drainage easement.  Mr. Toadvine asked when the wall was constructed, and Mr. Macon

stated it was constructed in the spring of 2003. 


Mr. Toadvine asked if a Permit was obtained for the retaining wall, and Mr. Macon stated

in discussions with the builder, they were under the impression that they would be going

under their Permit for developing the property. 


Mr. Toadvine asked if there has been any adverse impact after the construction of the

retaining wall as far as water run off on adjacent properties, and Mr. Macon stated

a number of their neighbors are present to discuss this and there has been a dramatic



Mr. Toadvine asked Mr. Majewski how this impacts Dedication.  Mr. Majewski stated he

feels this would be a legal question.


Ms. Kirk asked if the Board was in favor of granting the Variance, would the Applicant

be willing to agree to a Condition that, should the easement owner need to gain access to

the area for repair, maintenance, etc, the retaining wall would be removed at the

Applicant’s expense.  Mr. Macon stated they would agree to this noting that would hope

that they would do the repairs etc. without removing the wall is possible.  Ms. Kirk asked

September 5, 2006                                                      Zoning Hearing Board – page 7 of 13



Mr. Donaghy if that Condition were approved would this impact the Dedication of the

easement area.  Mr. Donaghy stated the construction of any structure within the easement

area that was not otherwise provided in the Subdivision Plan, could adversely effect the

Dedication because it is a change in the drainage patterns unless the Township engineer

has had the opportunity to review the proposed change to the Plans and give his approval. 

Ms. Kirk stated the Applicants are indicating that it is an underground stormwater pipe

with an inlet at the far corner of the property as opposed to a swale, and asked if this

would this still adversely impact Dedication.   Mr. Donaghy stated it could impact and

potentially have an adverse impact.  He stated if it were approved and the retaining wall

were put overt the easement area, there is not just the question of repairing it if the

Municipality has the need to go in, it is also who is going to maintain it over a period of

time because a determination would have been made that this wall is necessary for the

drainage in that area.  He feels it should be the property owner who maintains it and not

the Township.  Mr. Macon stated they have every intention of maintaining the retaining

wall.  Mr. Donaghy stated he feels this should be a Condition of any approval.


Mrs. Macon stated she understands that the drainage pipe is not something that would

most likely have to be accessed.  She stated it is a large concrete pipe, and would not

freeze.  Ms. Kirk stated there could be a problem with debris getting into the inlet which

might infiltrate into the pipe. 


Mr. Donaghy noted that the Township does want to be a Party to this matter. 

Mr. Donaghy stated since the retaining wall already exists, any delay in action by the

Zoning Hearing Board would not have a change in the existing conditions, and

Mr. Macon agreed.   Mr. Donaghy asked if they are intending on doing additional work

on the retaining wall, and Mr. Macon stated they are not.  Mr. Donaghy stated they would

like to request a continuance to give the Township engineer the opportunity to review the

drainage conditions, and asked if this would have an adverse impact on the property, and

Mr. Macon stated it would not. 


Mr. Donaghy asked how they made the determination that a retaining wall was necessary

and that it should be located as it currently exists.  Mr. Macon stated they first consulted

with the builder at length to try to get them to rectify the problems.  When this did not

work, they hired a landscape expert.  A copy of a letter from that expert was included in

their Application. 


Mrs. Macon stated subsequent to the wall being constructed, the Township did ask them

to sign a Waiver and Release.  Mr. Macon stated they did try to get the Township to help

them work with the builder; and the Township requested a Waiver and Release from

them that they were now satisfied with the property grading, and they did send this to the

Township.  Mr. Toadvine stated it appears that the Township was fully aware of the

construction of the retaining wall, and Mr. Macon stated they were although he does not

recall the name of the individual who was involved with trying to help them work with

September 5, 2006                                                      Zoning Hearing Board – page 8 of 13



the builder and eventually convincing the builder that they needed to reimburse the

Macons for the costs.    Mrs. Macon stated the Township should have in their files the

Waiver that they signed.


Mr. Toadvine asked if Hovnanian has consented to the construction of the retaining wall

in writing, and Mr. Macon stated the only consent they would have would be that they

reimbursed them for the grading, although they did not pay for the cost of the retaining

wall.  He stated the builder indicated they would not reimburse them for the retaining

wall.  Mr. Toadvine asked if Hovnanian knew that the retaining wall was being

constructed, and Mr. Macon stated he believes that they did.  Mrs. Macon stated it is very

difficult to contact Hovnanian as they do not return phone calls, etc. 


Mr. Donaghy asked if the waiver being referred to was signed by Hovnanian, and

Mr. Macon stated it was not.  Mr. Donaghy asked if the Applicants have a copy of the

waiver, and Mr. Macon stated he does not feel he does.  Mrs. Macon the waiver was

signed last summer.  Mr. Macon stated they received an oral request from the Township

for a waiver which they provided.  Mr. Toadvine asked who prepared the waiver, and

Mr. Macon stated he prepared it and delivered it to the Township.  Mrs. Macon stated

they were surprised when the Township requested it.  Ms. Kirk asked what the waiver

stated, and Mr. Macon stated it read, “we hereby release and waive all claims against the

Township of Lower Makefield in connection with the grading of our property.” 


Ms. Kirk stated it appears the waiver request was to assure that the Macons would not try

to sue the Township because of the fact that Hovnanian did not grade the property to

what was expected, and Mr. Macon stated this was the purpose of the waiver.  Ms. Kirk

stated it does not appear that the waiver had anything to do with the installation of the

retaining wall itself, and Mr. Macon agreed. 


Mr. Donaghy stated he would like to request that the matter be continued to consult with

the Board of Supervisors and also give Mr. Majewski the opportunity to review the Plan

and the existing conditions to assure the Township that it will not adversely effect the

drainage conditions in that area since it is obviously not consistent with the approved

Subdivision Plans.


Mr. Donaghy asked if the Applicant could do his best to obtain a copy of the waiver

which was executed.  Ms. Kirk stated it is possible that it would be in the Township’s

Land Development file as opposed to the Zoning file.  Mr. Macon stated he will look

through is own files and try to work with the Township in finding it; and if they cannot

find it, he would be willing to sign an Affidavit.  Ms. Kirk asked that both the Applicant

and the Township do their best to try to find a copy of the wavier. 


Ms. Karen Rametta, 1209 Wilshire Drive was sworn in.  She stated she is adjacent to the

retaining wall uphill from the subject  property.  She stated she is thrilled with the

September 5, 2006                                                      Zoning Hearing Board – page 9 of 13



retaining wall.  She stated the conditions were terrible before they had the retaining wall,

and their yard was constantly flooding.  She stated she was unable to get a landscaper to

work on her property because the grading was so poor. Since the retaining wall has been

installed the water flows as it should have flowed and goes to the storage area. 

Previously the water was cascading onto the property, and she had a mud pit.  Mr. Kim

stated he assumes not only the retaining wall, but also the re-grading helped in insuring

the correct flow of the water.  Ms. Rametta stated while it was probably both, the

retaining wall made a big difference. 


Mr. Steve Tir, 114 Pine Lane was sworn in.  He stated he is the downhill neighbor and

water run off has been an issue since they moved into the house.  He stated he has

pictures available if the Board is interested showing that between the two homes it is a

river when there is a heavy downpour.  He stated he was initially concerned that the wall

would make the problem worse, but it has improved the situation; although they still have

water issues between their two properties mainly because the whole development comes

straight down.  He stated the builder has come out and re-graded the area between the

two properties twice, and it is still an issue.  This was done after Mr. Macon had installed

the wall.  Mr. Tir stated he had a landscaper out to his property, and they are looking into

constructing an additional French drain between the two properties to help the water flow

patterns.  Mrs. Macon stated they are still getting downhill water.


Mr. Rob Liken, 1225 Wilshire Drive, stated he is very much in support of the request.


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

matter to the Board’s Hearing of October 3, 2006 in order to give the Township engineer

the opportunity to review the revised alteration to the property, allow the Township

solicitor to discuss this issue with the Board of Supervisors, and give both parties the

opportunity to try to find the release.


A short recess was taken.





Mr. Patrick Kelly was present and was sworn in.  The Application submitted was marked

as Exhibit A-1.  Attached to the Application was a Site Plan which was marked as

Exhibit A-2.  Also included was a hand-drawn plan showing the proposed new dwelling,

and this was marked as Exhibit A-3.  Mr. Kelly stated the two Plans just noted have been

altered.  Mr. Kelly submitted revised documents.  Exhibit A-4 was marked which is a

two-page document entitled “Site Plan” depicting the location of the proposed dwelling

along with an elevation of the proposed dwelling. 



September 5, 2006                                                    Zoning Hearing Board – page 10 of 13



Ms. Kirk stated the Application submitted has indicated they are requesting six different

Variances, and Mr. Donaghy has informed the Board that the Township is requesting

Party status and will be asking for a continuance to get the information this evening and

then report back to the Board of Supervisors  Mr. Kelly stated he is concerned with any

delay as winter is coming, and they are living in a FEMA trailer.  Ms. Kirk stated if the

Zoning Hearing Board acted tonight without Township input, the Township could file an

Appeal and tie up the matter even further. 


Mr. Kelly stated he wants to move the footprint eight feet further on the southeast corner

away from his neighbors.    The west, southwest, and northwest corners will be further

away from the natural resources than they were on the existing footprint.  The northeast

corner is the only corner of the footprint that will be closer to the collector road.  He

stated everything else will be further away from property lines and natural resources than

the existing old footprint.


Ms. Kirk noted Exhibit A-2 which indicated there is an existing one-story frame

dwelling, and she asked the size of the dwelling.  Mr. Kelly stated the footprint of the old

house was 22.6’ by 45’.  He stated in the new proposal he is asking that the width of the

be increased 7’6”, and the length remain the same.  It would therefore be a 30’ by 45’

dwelling.  Ms. Kirk asked if it will be a two-story frame dwelling as opposed to a one-

story dwelling, and Mr. Kelly stated it will be a timber frame structure with a great room

and a loft in the rear.  The first floor will be a 30’ by 20’ open great room which will be

the kitchen, living room and the bedrooms will be in the loft.  He stated one bedroom will

be in the back end of the building. 


Mr. Toadvine noted the deck being shown on Exhibit A-4, and asked how high it will be

off grade, and Mr. Kelly stated it will be 48’, and the existing grade is 36 ½’.  He is

raising from existing grade to the top beam of the block work 12’ and this will get him 2’

above the high water mark.  Mr. Toadvine asked why they relocated the footprint, and

Mr. Kelly stated it was too gain southern exposure in the winter and to accommodate the

space where he will have new garage space.  He stated if he were to keep the old

footprint, there would be no way to pull a vehicle into the driveway.  He stated if he were

to put the garages and driveways in the front, he would lose curb appeal.  Currently the

driveway is on the property line from River Road going straight back. 


Mr. Toadvine asked about the impervious surface, and Mr. Kelly stated they will be just

under 3%. 


Mr. Toadvine asked Mr. Majewski if the decks come into play with regard to the front

and side yard setbacks, and Mr. Majewski stated he is not sure for a deck;  and while he

does not feel they do, he will check into this. 



September 5, 2006                                                    Zoning Hearing Board – page 11 of 13



Mr. Toadvine stated it appears that Mr. Kelly has now relocated the structure 20’ further

away from River Road since the original Application showed that they were 37’ from

River Road, and Mr. Kelly agreed noting he moved it back as he felt he was too close to

River Road, and he would have been in the trees in the front. 


Ms. Kirk asked if the proposed deck is a first-floor deck or a second-floor deck, and

Mr. Kelly stated it will be first-floor elevation.  He stated he is proposing to fill the

northwest and south sides approximately 45’ in elevation and taper it off so the structure

does not look so stark off the street. 


Ms. Kirk asked when the property was damaged, and Mr. Kelly stated it was damaged

four times in the last ten years he has been there.  He stated the last three being very bad.


Ms. Kirk asked about the septic area, and Mr. Kelly stated the existing septic will remain

and he will tie back in.


Mr. Toadvine stated the Application lists two Tax Parcels, and he asked Mr. Kelly if he

owns the Tax Parcel across River Road; and Mr. Kelly stated he does.  Mr. Toadvine

asked if he included both parcels when he did the impervious calculations, and Mr. Kelly

stated he did.  Mr. Toadvine asked the size of the parcel on the other side of River Road,

and Mr. Kelly stated it is slightly less than one acre.  The property where the house is

located is approximately one and a half acres.  Mr. Toadvine stated it appears that when

he listed the lot size of 1.5 acres, he was only listing the parcel on which the house is

located, and Mr. Kelly agreed.  Ms. Kirk stated a Tax Map was included with the

Application, and the main parcel is 1.35 acres according to the Tax Map.  Mr. Kelly

stated he was told he should consider both sides when he did his impervious surface.


Ms. Kirk asked if there are any structures on the River Road side, and Mr. Kelly stated

there are not and he would agree to a Condition being placed that no structures could be

placed on that parcel.  Mr. Majewski stated the site is located entirely in the floodplain. 


Mrs. Kirk noted the Variance from Section 200-63A regarding the collector road setback

and asked if this is 80’ or 100’.  Mr. Majewski stated it is 80’.  Mr. Kelly stated the

previous structure which was damaged was 80’ to the southeast corner of the footprint. 

On Exhibit A-4, they are showing that from the northeast corner of the proposed

dwelling, they will be 56’.  All other corners will be further back from what they were

previously and away from the property lines. 


Ms. Kirk noted Exhibit A-4 there is a notation which states “underground,” and

Mr. Kelly stated he is going to eliminate the PECO wires going across the road.  He will

install a telephone pole in the back corner of the property and run everything

underground.  He is still working with PECO on this.


September 5, 2006                                                    Zoning Hearing Board – page 12 of 13



Mr. Donaghy stated the Township does want to be a party in this action.  Mr. Donaghy

asked Mr. Kelly if he has prepared a Site Plan showing the entire tract; and Mr. Kelly

stated he does have a Site Plan from J. G. Park Associates, and he took the existing

footprint from what he was given and put it on a skew off the one corner.  These are older

Plans that show the existing conditions.  Mr. Donaghy asked if he will obtain a new set of

Plan to show the proposed home, and Mr. Kelly stated he does not propose this.  He

stated with all the new setback rules, none of the homes are in compliance.   He stated he

is a contractor, and he has already spent several thousand dollars for the Plans he has; and

he does not feel he should have to spend several thousand dollars more when they are

only going take his dimensions and superimpose them on a new sheet.  Mr. Toadvine

stated he feels he will need these when he applies for a Building Permit, and

Mr. Majewski agreed.  Mr. Kelly stated he was under the impression that since he was

going to do the work himself, he did not have to have this.  Mr. Toadvine stated he still

feels sealed prints will be required to obtain a Building Permit.  Mr. Donaghy stated he

feels Mr. Habgood indicated it will be necessary to have a Site Plan if the Variances are

granted.  Mr. Kelly stated he has no more money. 


Ms. Kirk asked Mr. Kelly if he went to the Township for any assistance in preparing the

FEMA Application, and Mr. Kelly stated he did not.  He has done everything directly

with the Federal and State Agencies. 


Mr. Kim asked how much time Mr. Kelly would need to build the home if the Variances

were granted, and Mr. Kelly stated if he could get a Plan approved in the eight to ten days

he has been advised it takes, the home could be built in ninety days.  Mr. Kim asked the

timeframe Mr. Kelly desires from the Zoning Hearing Board, and Mr. Kelly stated he

would like approval immediately. 


Ms. Kirk stated the Board of Supervisors will meet tomorrow evening; and if the Zoning

Hearing Board were inclined to grant a continuance, she would propose that the

continuance be until the next Zoning Hearing Board meeting of September 19, 2006.

Mr. Donaghy stated this would be satisfactory to the Township.  Ms. Kirk stated at that

point, the Township will have made its decision as to whether or not it intends to oppose

the Application.  Mr. Kim asked if this would be sufficient time for the Township to

review all the Variances; and Mr. Donaghy stated this is correct, and Mr. Majewski has

indicated he would be able to make a presentation to the Board of Supervisors tomorrow

evening.  Mr. Kelly stated in this hardship situation, he does not know why anyone would

have a problem.  Ms. Kirk stated Mr. Donaghy must present the information to the Board

of Supervisors noting that the Revised Plans were only submitted this evening.


Ms. Kirk agreed to put this matter first on the Agenda for September 19, 2006.

Mr. Kelly noted Ms. Frick and Mr. Habgood have been helpful in having the matter



September 5, 2006                                                    Zoning Hearing Board – page 13 of 13



Mr. Majewski stated the Plan Mr. Kelly prepared indicates that they would fill in around

the foundation approximately six feet above the existing grade, and he asked at what

grade they will slope away from the house.  Mr. Kelly stated it would be one quarter to

one foot which would be roughly 30’.  Ms. Kirk noted the phone number provided of

215-595-4720 and asked if Mr. Majewski could contact him at this number if he had any

additional questions, and Mr. Kelly agreed. 


Mr. Donaghy stated he also feel Mr. Kelly should speak to Mr. Habgood in the interim to

clear up any outstanding issues regarding what they would need for the Building Permit

Application so the process can go forward quickly.  Ms. Kirk asked that Mr. Donaghy

raise this issue with the Board of Supervisors in light of what happened to Mr. Kelly with

the flood to get their ideas on this as well and see if they would be in favor of a Waiver of

a formal set of Site Plans assuming Mr. Majewski is satisfied with the calculations

provided by Mr. Kelly.  Mr. Donaghy agreed to do so. 


Mr. Majewski was provided a copy of Exhibit A-4 to review with the Board of



Mr. Kim asked if it was possible for the Zoning Hearing Board to reconvene earlier than

September 19 if the Board of Supervisors makes a decision tomorrow evening; but the

Board was unable to do so due to timing constraints. 


Mr. Jim Bates, 1455 River Road, stated he is the next door neighbor and has no

objections but asked if he was required to have Party Status.  Ms. Kirk stated the letter

was sent to him from the Township as he was required to be notified as an adjacent

property owner of the pending Application.   Party status means that if he were intending

to oppose the Application, as a Party to the matter, Mr. Bates would have the right to

receive a copy of the Board’s final written Decision and the right to take an Appeal to

Doylestown.  If he is in support of the Application, there is no need to become a Party.

Mr. Bates stated he is not opposing Mr. Kelly’s Application.


Ms. Kirk moved, Mr. Kim seconded and it was unanimously carried to continue to

September 19, 2006 with a specific request that the Board of Supervisors be presented all

information and that the Township is prepared to address issues at the next meeting.


There being no further business, Ms. Kirk moved, Mr. Smith seconded and it was unanimously carried to adjourn the meeting at 9:05 p.m.


                                                                        Respectfully Submitted,




                                                                        David Malinowski, Secretary