ZONING HEARING BOARD
MINUTES – SEPTEMBER 19, 2006
The regular meeting of the Zoning Hearing Board of the
Zoning Hearing Board: Barbara Kirk, Chairman
David Malinowski, Secretary
Paul Bamburak, Member
Gregory Smith, Member
Others: Robert Habgood, Code Enforcement Officer
John Donaghy, Township Solicitor
John Koopman, Township Solicitor
James Majewski, Township Engineer
Allen Toadvine, Zoning Hearing Board Solicitor
Absent: Rudolph Mayrhofer, ZHB Vice Chair
Paul Kim, ZHB Alternate
Grace Godshalk, Supervisor Liaison
APPEAL #06-1394 – MR. PATRICK J. KELLY
Ms. Kirk stated this matter was continued from the Board’s Hearing of 9/5/06.
Mr. Kelly was present and was reminded that he was still under oath. Ms. Kirk stated at
the last Hearing, Mr. Kelly’s testimony had concluded, but the matter was continued as
the Township requested a continuance so that the Township Solicitor could report back to
the Board of Supervisors. She stated she understands that the Board of Supervisors has
decided not to take a position in this matter, and Mr. Donaghy agreed; however, he stated
part of the reason for the continuance was also to allow Mr. Majewski time to review the
Plans. One condition Mr. Majewski raised was to limit the amount of fill to the minimum
required to construct the dwelling shown on the Sketch Plan. Mr. Kelly stated he would
agree to such a Condition. Ms. Kirk stated at the last Hearing there was also a Condition
discussed that he would not build any structure of any type on the parcel located adjacent
to the River, and Mr. Kelly agreed.
September 19, 2006 Zoning Hearing Board – page 2 of 17
There was no further public comment.
Ms. Kirk moved, Mr. Smith seconded and it was unanimously carried that the
Application for Variances from Section 200-51B1b, Section 200-57E, Section 200-59,
Section 200-61C, Section 200-63A, and Section 13 be granted as requested subject to the
1) That the amount of fill for the construction of the proposed dwelling be limited to the
minimum amount as set forth on the Sketch Plan labeled Exhibit A-4;
2) No structures of any type be constructed or erected on that parcel immediately
adjacent to the River.
Ms. Kirk stated at the last meeting they did discuss the need for Sealed Plans for the
Building Permit, and she recommended that he contact the Township directly regarding
APPEAL #06-1395 – TRACY MILLER, HACIENDA DESIGN, AND PETER VANDENBRAND
Mr. Peter Vandenbrand,
401Washington Street, Morrisville were present and were sworn in.
The Application was marked as Exhibit A-1. Submitted with the Application was a set of
Plans prepared by Hacienda Design for the property at
two Sheets which was marked as Exhibit A-2.
Ms. Kirk asked Mr. Vandenbrand and Ms. Miller how they are related to the property
owner. Mr. Vandenbrand stated he is the contractor, and Ms. Miller stated she is the
architect. Ms. Kirk asked if the property owner was present, and Ms. Christine Jones
came forward and was sworn in.
Ms. Miller stated the homeowner is requesting to put a 30’ by 30’ detached garage on the
property. They are requesting a Variance for the height of the structure from the
permitted 15’ to 23’ 8 ½”. She stated because the garage is in the rear of the structure,
they also need a Variance for impervious surface in order to have a driveway constructed
to access the garage.
Ms. Kirk noted the Plan submitted showing the existing driveway coming in from
property, and Ms. Miller stated it is 18’ wide from the street to the front of the house,
then widens to 19’ as it goes around the house and continues behind the house at which
September 19, 2006 Zoning Hearing Board – page 3 of 17
point it is 34’ wide and 18’ from the rear of the house toward the back property line. The
new driveway area would be approximately 24’ by 18’ 1”. This new driveway area will
be constructed in addition to what is existing.
Ms. Kirk asked if the proposed driveway could be modified to reduce the amount of
impervious surface coverage that is being requested. Ms. Miller stated they did speak
with the Zoning Officer about the possibility of installing gravel rather than paving but
were told that this was not an option. They would like to know what their options are in
order to reduce the impervious surface.
Ms. Kirk stated she would suggest a reconfiguration of the impervious area to keep the
amount of impervious surface coverage as close as possible to what is permitted under
the Code. She asked if they would like time to re-design this, and Ms. Miller agreed to
Ms. Kirk asked about the Variance for the height of the proposed structure and asked why
it must be 23’ as opposed to the 15’ permitted. Ms. Miller noted Sheet Z-2 where she
showed both alternatives – one according to the Zoning requirements and one showing
what they proposed. She stated if they built it according to the Zoning requirements it
would not be attractive. If they increased the height it would improve storage inside the
structure and would also improve the look and be more in keeping with the character of
Ms. Kirk asked the height of the existing building on the property, and Mr. Vandenbrand
stated they are within the requirements of the Code.
Ms. Kirk asked if the detached garage will be a two-story structure, and
Mr. Vandenbrand stated it will be since they were looking for storage on the second floor
with “dog-house” dormers in the front. Ms. Kirk asked if the second floor will be
constructed as a loft area, and Mr. Vandenbrand stated it will have a staircase going up to
the second floor and there will be plywood flooring to support anything that is stored on
the second floor. Ms. Kirk asked about utilities, and Mr. Vandenbrand stated they will
have only electric at the proposed building. There will be no heating or water access to
the proposed structure.
Ms. Kirk noted Z-1 shows the garage area will be broken up into a garage and workshop
and she asked the purpose of the workshop. Mr. Vandenbrand stated the client has
engines, etc. which he “tinkers” with. Ms. Jones stated he has his own motorcycle which
he works on. There are not people coming to the property to do repairs.
Mr. Bamburak asked the permitted impervious surface, and Mr. Habgood stated 24% is
permitted. The property is currently at 22%. Ms. Miller stated there was a first phase to
this construction. She stated the home had an attached garage and part of that attached
September 19, 2006 Zoning Hearing Board – page 4 of 17
garage was removed and the other part was incorporated into the house. They are now at
22% impervious surface.
Mr. Donaghy stated the Township would like to be a Party in this matter and is in
opposition to the request for grant of Variances. Mr. Donaghy asked Ms. Jones the
current use of the property, and Ms. Jones stated it is their residence. Mr. Donaghy asked
if the Variances were not granted, could they continue to use the property as a residence,
and Ms. Jones stated they could. Mr. Donaghy asked if the Variances were granted for
the additional space in the garage and upstairs, would they use any of that area for living
space, and Ms. Jones stated they would not. Mr. Donaghy asked if there will be any
water at the proposed garage, and Ms. Jones stated there will not.
Mr. Donaghy stated he understands that they could construct a garage in such a way that
it would comply with the maximum height permitted, and Ms. Miller stated they could.
Mr. Donaghy asked what the floor area for the garage would be if they only used it for
parking automobiles and they did not have the workshop; and Ms. Miller stated it would
possibly be 30’ by 22’ but in order to access it with a car, it would still need to be set
back, so it would require more driveway area. Mr. Donaghy asked if it would require any
more are than currently shown on the Plan, and Ms. Miller stated they would be
substituting driveway for building area. Mr. Donaghy asked if they could not reduce the
driveway if they removed a portion of the rear of the building, and Ms. Miller stated this
could be possible.
Mr. Donaghy asked if it was necessary to retain all of the existing driveway or if it could
be narrowed, and Mr. Vandenbrand stated it could be narrowed. Mr. Donaghy asked if
they would have to keep all of the driveway in the rear of the building. Ms. Miller stated
she would have to look at this in terms of getting a care in and out of the property.
Ms. Laura Lawrence, 48 W. Crown Terrace, was sworn in. She stated her rear yard is in
line with the Applicant’s lot. She stated in the front of the subject lot on the opposite
corner from the driveway there is an existing sewer grate and two to three times a year it
gets flooded and the water crosses the driveway and comes into her rear yard. She is
concerned with additional impervious surface, it may flood her lot more often. She stated
the driveway at the Applicant’s property was widened so that the apron of the driveway
and the adjoining driveway became one and this sits low. She stated whenever there is
heavy rain, there is a pond at the end of that driveway.
Mr. Toadvine asked if there are other homes that have detached garages higher than 15’,
and Ms. Lawrence stated the home next to the Applicants has a detached garage that is
set back and does have a gabled roof. She is not sure of the exact height. She stated if
what is proposed will be similar in height to that existing garage, it will look uniform and
look fine. Mr. Toadvine asked Ms. Jones if she was familiar with the property being
referred to by Ms. Lawrence and asked if she is aware of the height of that garage.
September 19, 2006 Zoning Hearing Board – page 5 of 17
Ms. Jones stated she does not know how high it is nor did Ms. Miller or
There was no further public comment.
Ms. Kirk asked if in light of the testimony offered, would the Applicants like a
continuance to see if there is a way to modify the driveway to reduce the requested
impervious surface. Mr. Vandenbrand stated he did discuss with the homeowner the
puddle in front of the driveway. He stated he feels they could put in stone along the
shoulder of the road to help alleviate the water situation. He stated he recognizes that
they would have to discuss this with the Township. As to any reduction in the driveway,
he stated they would have to come up with a Plan that would meet the driveway
requirements in order to permit the cars to access the garage, and they would to do further
calculations. The Applicant agreed to request a continuance at this time.
Ms. Kirk moved, Mr. Bamburak seconded and it was unanimously carried to continue the
matter to October 3, 2006.
APPEAL #06-1374 – DIANE AND STEVEN BULLARD
Mr. John Koopman was present as Township Solicitor for this Appeal. Mr. Scott Fegley
was present on behalf of the Applicant and stated in light of the lack of a full Board,
they would like to request a continuance.
Mr. Smith moved, Mr. Bamburak seconded and it was unanimously carried to continue
the matter to October 3, 2006.
APPEAL #06-1235A – CARA MIA, INC.
Mr. Koopman was present acting as Township Solicitor for this matter.
Mr. John VanLuvanee was present on behalf of the Applicant.
Ms. Kirk stated that at the last Hearing when this matter was heard, Mr. VanLuvanee had
presented everything by way of his client; and Mr. VanLuvanee agreed. Ms. Kirk stated
since that time a letter was submitted to the Board by Mr. VanLuvanee dated 8/23/06,
and Mr. VanLuvanee stated this was a result of representation made by Mr. Bray at the
last Hearing indicating that he wanted to present evidence on a subject about which he
had testified at the first Hearing before the matter went to the Court of Common Pleas.
Mr. VanLuvanee stated his letter was to request an Amendment in the event that the
Board reached a certain conclusion. This was in anticipation of Mr. Bray presenting
evidence this evening that there may be a natural feature on the property that would meet
the definition of a water course or Waters of the Commonwealth. Mr. VanLuvanee stated
September 19, 2006 Zoning Hearing Board – page 6 of 17
he had requested a cautionary Amendment so that they do not have to go to Court again.
He stated he understands Mr. Bray has asked for the opportunity to present testimony this
evening, and Mr. Koopman has also asked for a continuance to determine if the
Township wants to present testimony. Mr. VanLuvanee stated since that time he has had
discussions with Mr. Toadvine; and he understands that Mr. Toadvine has advertised the
amended Hearing for October 3, 2006. Mr. Toadvine agreed. Mr. VanLuvanee stated
while this is satisfactory to him, he did not want to conclude the proceedings. He stated
he assumed that Mr. Bray would present his testimony this evening , Mr. Koopman
would present his testimony, and they would then come back on October 3 and proceed
based on the assumption the Zoning Hearing Board might form a conclusion that there
was an additional issue in this case.
Ms. Kirk stated she would like to clarify all of the relief that is being requested. She
stated there were Variances from four Sections of the Code – for measurement of the
building from the buffer rather than from the limit of the resource protected areas as
required under Section 200-61 C, a Variance from Section 200-51B6b as to the amount
of disturbance of woodlands, a Variance from Section 200-21 as to the net lot area, and a
Variance from Section 200-64 for access to the lot from
conform to Township standards. She stated she understands that they are now requesting
a Variance as well from Section 200-51B4C1 as per the letter dated 8/28/06 which is for
construction within wetlands.
Mr. VanLuvanee stated the Ordinance states that a wetlands/water course buffer should
be the transitional area extending out from the boundary of a wetlands or water course as
defined in this Chapter and Chapter 178 of the Subdivision and Land Development
Ordinance (SALDO). Mr. VanLuvanee stated the SALDO definition of water course is
broad; and the reason for the Amendment was that in the event that that Board concludes
based on other testimony they may receive tonight that there is a wetlands/water course
that has not been designed on the Plan, and conclude as a matter of fact that it exists, that
they would request the Variance identified in the 8/28/06 letter.
The 8/28/06 letter from Mr. VanLuvanee was marked as Exhibit A-15.
Mr. Koopman stated the Township has received the letter, and the Township is a Party to
the proceedings. He stated the Township does not have an objection to the proposed
Amendment, but assumes that after Mr. Bray and his expert testify this evening,
Mr. VanLuvanee will ask that the matter be continued to the next meeting so that
Amendment could be properly entertained by the Zoning Hearing Board based on the
advertisement. Mr. Koopman stated he would hope at the next meeting if
Mr. VanLuvanee is going to pursue that Amendment, he will be in a position to provide
the Board and the Township with details as to the extent of the requested Variance from
the buffer. He stated he feels the testimony given by Mr. Bray and the neighbors is that
there is a water course; and while the water course does not encroach on the building
September 19, 2006 Zoning Hearing Board – page 7 of 17
envelope, the buffer encroaches on the building envelope. He stated he hopes at the next
Hearing, Mr. VanLuvanee and his engineer will be able to address the extent of the
Variance, if any, from the wetlands buffer that is required so that it can be quantified for
the purposes of the Board entertaining that request.
Mr. VanLuvanee stated they will be able to do this assuming the testimony conforms
with what he anticipates. He stated in his 8/28 letter he has already delineated the extent
of the buffer but feels they may learn this evening the location of the water course, and by
the next Hearing they would be prepared to be specific.
Mr. Koopman stated he feels there may also be issues as to the extent of the buffer.
Mr. VanLuvanee stated this may depend on what they hear this evening. He stated the
Variance he has asked for in the 8/28/06 letter is they would like to grade within ten feet
of the feature. Ms. Kirk asked that Mr. VanLuvanee make sure the Board is given the
information so they know that it is the minimum relief being requested, and
Mr. VanLuvanee stated he will do so.
Mr. Koopman stated the Township does not at this point intend to introduce any evidence
but reserves the right to oppose the Application based on what they hear this evening, and
he will report back to the Board of Supervisors. They will be prepared on October 3 to
Mr. James Bray and Mr. Geoffrey Goll were present and were sworn in.
Ms. Kirk stated there was already a submission of a document entitled, “LMT Zoning
Board Meeting 7/18/06” which had approximately eight attachments and this had been
marked as O-1. Mr. Bray stated he has a series of Exhibits this evening as well which he
would like to distribute. Ms. Kirk stated that the documents submitted at the last hearing
entitled “O-1” were submitted on behalf of the owner of the property and not Mr. Bray.
Mr. VanLuvanee stated Mr. Bray did testify at the Zoning Hearing Board meeting on
March 2, 2004 and offered evidence at that time, but he does not feel he offered any
evidence at the last meeting on this matter. Mr. Koopman stated he feels there were some
Exhibits that were introduced at the initial Hearing which they agreed to incorporate into
the record. He stated he feels they were photographs of the site. Mr. VanLuvanee stated
the Transcript he has indicates that at the Hearing held on March 2, 2004 Mr. Bray
introduced Exhibits I-1, I-2, and I-3 and those were incorporated into this record.
The information submitted this evening by Mr. Bray was marked as Exhibit I-4.
Mr. Bray stated the first Exhibit is composed of twelve pages and there are five items as
part of this Exhibit. Page One shows photos of water course not shown on Cara Mia’s
Plot Plan, Page Two shows the water courses defined, Pages Three to Six discuss water
course buffers in the Zoning, Pages Seven to Nine is the Owner’s Wetland Report, and
Pages Ten to Twelve is information from LMT’s Vegetation Study.
September 19, 2006 Zoning Hearing Board – page 8 of 17
Ms. Kirk asked who took the photos on Page 1 of Exhibit I-4, and Mr. Bray stated he
took them on 2/27/04 as indicated on the Exhibit.
Mr. VanLuvanee asked if these are the same as Mr. Bray presented before or are these
different. He stated the Transcript he has indicates that Exhibit I-2 was a diagram with
twelve photographs and I-3 was a series of seven photographs, and Mr. Bray’s Counsel at
that Hearing indicated that the I-3 series of seven photographs were taken on 2/27 at 9:45
A.M. from the Rosen property by Mr. Bray. He asked if these are the same as those
already in the Record, and Mr. Toadvine stated they appear to be the same. Mr. Toadvine
stated when this mater was Appealed, all of the original Exhibits were submitted to the
Court. Exhibit I-1 was a poster board of the Piedmont Wetlands delineation. Exhibit I-2
was a poster board with twelve photographs showing the plot. Exhibit I-3 was a poster
board with seven photographs showing the water course. He feels that these are the same
documents. Ms. Kirk stated it appears that they are being re-incorporated a second time.
Ms. Kirk asked Mr. Bray if the five photographs now being presented as Exhibit I-4 are
the same as were previously submitted to the Zoning Hearing Board at the initial Hearing
in March, 2004, and Mr. Bray stated he believes these are duplicates. Ms. Kirk asked if
they are looking at anything new or different from that which had already been presented
to the Board, and Mr. Bray stated they are not. Mr. VanLuvanee asked if this is true for
all aspects of Exhibit I-4 or just the photographs. Mr. Bray stated he does not have
Exhibit I-4 so he cannot answer this. Mr. Koopman stated since no one has the original
documents, he feels they should all be submitted. Mr. VanLuvanee stated he does not
feel the last three pages of these Exhibits were submitted previously.
Mr. Bray stated he has more Exhibits to present. He noted the photo taken 9/2/06 which
is a picture of the subject property entitled “
was taken by Mr. Goll. This was marked as Exhibit I-5. Exhibit I-6 was marked which
is a photo of the subject property entitled “
taken on 9/2/06 by Mr. Goll. Exhibit I-7 was marked which is a photo taken 9/19/06
entitled “View of water course from northern property line.” Mr. Goll stated he took this
photo as well.
Mr. Bray asked Mr. Goll to describe his credentials, and Mr. Goll stated he is a Licensed
Professional Engineer in the
Princeton Hydro, an environmental engineering firm located
working in the field for sixteen years and in water resources for the last twelve years. His
main projects are soils engineering, hydrologic and hydraulic engineering which is
stormwater management, floodplain management, floodplain delineations, and design of
wetland mitigation sites. He stated they consult for Municipalities as an environmental
consultant and work for a number of clients including developers, non-profits, and individual homeowners.
September 19, 2006 Zoning Hearing Board – page 9 of 17
Ms. Kirk asked Mr. Goll if he was involved with representing
presenting any evidence to
Tremont, and Mr. Goll stated he was not personally involved. Ms. Kirk stated she serves
as one of the Solicitors to
that is hotly disputed. She stated she wants to make sure that the fact that she is a
objectivity as to Mr. Goll’s testimony relating to this project. She asked if anyone had
objections, but none were voiced at this time.
Mr. VanLuvanee stated he assumes Mr. Goll is being offered as a professional, and he
would have no objection.
Mr. Bray noted the definition of water course as it is
Mr. VanLuvanee objected noting the definition speaks for itself.
Ms. Kirk overruled.
Mr. VanLuvanee stated they should indicate which definition he is discussing.
Mr. Goll stated it is the definition in the SALDO, Chapter 178. Ms. Kirk asked if this has
been presented to the Board for reference, and Mr. Bray stated it has in Exhibit I-4.
Ms. Kirk noted that on Page 2 of Exhibit I-4 there is a date of 1/15/05, and she asked if
they all agree that this is the most recent version. It was agreed that this is the most
Mr. Goll read the definition as follows: “a water course is a permanent stream,
intermittent stream, river, brook, creek, or a channel or ditch or drain for water whether
natural or man-made.”
He stated a water course as defined by
Township is adequate because usually where you find water that is concentrated it is
either formed by a natural condition where the water erodes the land because that is
where the water over the surface of the land has a tendency to go or someone has made a
cutting ditch to direct water in a certain direction. He stated if you change the direction
of the water course or impact it in any way, it then can divert water into other directions
such as from one property to another where it would not normally go.
Mr. Goll stated there are two water courses they will be discussing. The first which is the
subject of debate currently runs in a north/south direction. He noted Sheet 1 of the Plan
for the Zoning Variance for
northern property boundary you have the westernmost limit of disturbance of the tree
line. He stated there is a dimension of 30’ and to west there is a line depicted. He stated
the Plan does not depict the water course, and the contours are not reflected by the Plan;
September 19, 2006 Zoning Hearing Board – page 10 of 17
but he stated the water course does exist. He stated it is 80’ in length, 12” in depth, and
24” in width. It has a defined bed and bank. He stated during parts of the year, he has
the area drains down to that area and Exhibit I-4, Page 1, shows the typical winter
condition. He stated during rain events it fills with water and directs water to the
property to the south. He stated it takes water from the upland areas, drains down, and
directs it down to the south to the inlet at the Rosen property approximately half way
down the property line on the southern boundary of the site.
Ms. Kirk asked if this is the water course that is shown on Exhibit I-6, and Mr. Goll
stated it is not. Mr. Goll stated that is a separate issue which he will discuss later.
Mr. Goll noted Exhibit I-7. He stated he was on the eastern boundary line looking west
into the property line from the Smith property to the east. Mr. Bray noted the Smith
property shown on Exhibit A-13 is now the Stefanowski property. Mr. Goll stated there
is a red line with arrows in the center of the photograph, and the arrows are facing left.
This defines the direction of the water flow through the property. He stated there are a
number of trees on the eastern side of the water course. He counted three from where he
was standing. He noted there is very low vegetation on the eastern side of the water
course. He stated in the foreground there is a low wet area which is approximately where
the Applicant is proposing to locate the home. He sated there is a bare area where there
is no vegetation, and this is indicative of an area where water sits. He noted the location
of a plant called jewelweed which is a wetlands plant. He also noted the presence of
pachysandra which is an invasive plant and can grow anywhere.
Mr. Goll noted the Zoning Ordinance Section 200-51 (page 3 of Exhibit I-4) which
discusses water courses. He stated there are a number of issues as to how you determine
a wetland buffer. He stated a wetland buffer or water course buffer is a regulated area
used to protect wetlands. He stated if you build up to a wetland you are not able to walk
out your back door and you also need additional protection to filter out pollutants, protect
it from sedimentation, and provide a buffer from the human activity and the water course
or wetland. He stated in recognizing this, the Township established a series of buffer
Mr. VanLuvanee objected to the characterization of the motivations of the Township.
Ms. Kirk sustained.
Mr. Goll stated buffers in general are created to protect wetlands and water courses from
degradation and in working with other Municipalities this is why they create buffer
September 19, 2006 Zoning Hearing Board – page 11 of 17
Mr. Bray asked Mr. Goll what he feels the buffer should be based upon his observations.
Mr. Goll stated it should b e 100’. He stated the Ordinance states that where you have an
herbaceous buffer, you have to have a much higher buffer distance. He stated herbaceous
means very low growing vegetation. He stated it is defined in the Ordinance as being
less than 12” in height. He testified that the pachysandra that is between where he was
standing shown in the photograph on Exhibit I-7 and the water course predominantly had
vegetation that was less than 12” in height.
Ms. Kirk stated based on his professional and personal experience and after reviewing
Exhibit A-13, if there is to be a 100’ buffer area between what he observed and
delineated as a water course, no building could effectively be built on the property
because of the water courses he has observed as well as the
Waters of the
already outlined and delineated by the Army Corps of Engineers. Mr. Goll stated the
Waters of the
Township. Ms. Kirk stated the question was because of the Zoning Ordinance and what
Mr. Goll has defined as a water course and what has already been designated on the Plan
as Waters of the
according to the Ordinance the resource protection ratio for a water course buffer is
100%. Ms. Kirk stated in essence this would eliminate any land available on this parcel
to construct a residential dwelling, and Mr. Goll stated according to the Ordinance, this is
Mr. Goll stated he would also like to discuss the suitability of a home on the location
proposed. He noted the photo on Exhibit I-7 where they show the bare spot that appears
to have water sitting during certain times of the year. He stated if they were to build a
home on the property in order to get the basement out of the groundwater in this area,
they would have to fill under the house, create a mound around the house, raising the
house up and water coming down the road will have no place to go. He stated this will
result in more water going onto Terracedale, water being diverted to the former Rosen
property, and onto
Mr. Kirk noted the Rosen, Smith, and Burns properties as shown on the Plan, and asked if
they all have residential dwellings construction on them, and Mr. Goll stated they do.
Ms. Kirk asked if the area is primarily a residential area, and Mr. Goll agreed. Ms. Kirk
asked if this is the only parcel he is aware of that has not been constructed to provide for
a residential dwelling, and Mr. Goll stated to his knowledge it is.
Mr. Goll stated this area is also a very low area. He stated if this were a modern
development it would be a good place for a detention basin since this is the lowest point
in the area. He stated all water from this area goes to this property. Ms. Kirk asked if it
is the lowest point in the area, and Mr. Goll stated essentially it is. He stated
September 19, 2006 Zoning Hearing Board – page 12 of 17
Mr. Bray asked if there is a hydrologic connection between the water course and the
wetlands. He asked if there is a connection, what are the implications of this.
Mr. Goll stated the water course drains to an inlet shown on Exhibit I-4, page 1. It then
connects to a storm sewer inlet located on the southwest corner of the property which
then discharges to
you are required to have a 300’ buffer if the water course or wetland is less than two
miles from the River. In this case it is approximately one and a half miles.
Mr. VanLuvanee objected unless he provides a citation in the Zoning Ordinance.
Ms. Kirk sustained.
Mr. Goll noted Sub-Section 200-51E8. Mr. Majewski stated it is B4E7. Mr. Goll
read the Ordinance as follows: “Any wetland abutting a water course flowing to the
independent EIA and a 300’ buffer.
Mr. Malinowski asked if there are not currently homes within that 300’ buffer, and
Mr. Goll agreed that there are pre-existing non-conforming uses. Mr. Goll stated if there is a water course and a public intake less than two miles from the site, that is something else to consider and also requires a 300’ buffer from the water course or wetlands on the site.
Mr. Bray asked if either of these features come into play, what else is required; and
Mr. Goll stated an Environmental Impact Assessment is required. He stated this is
designated in the Appendices of SALDO and is an assessment of the property’s natural
resources and the conditions on the property and discusses the impacts of development on
the natural resources. This allows the Township to assess in general the impact of
development of the site.
Mr. Bray asked Mr. Goll to comment on a project he worked on previously that has a
bearing on this Application which had to do with the
close by this property.
Mr. Goll stated he did consulting work for the
Association. Mr. Bray
asked that he also comment on the location of the
proximity to the subject property.
Mr. VanLuvanee objected to the relevance.
Ms. Kirk asked for an offer of proof. Mr. Bray stated there is a direct correlation between
the project Mr. Goll worked on and the proposal being discussed.
September 19, 2006 Zoning Hearing Board – page 13 of 17
Mr. Koopman asked how close the
approximately one quarter a mile away. Mr. Toadvine asked how many other homes are
within this distance, and Mr. Bray stated he feels there are approximately fifteen.
Ms. Kirk stated she has noted Mr. VanLuvanee’s objections but is going to allow the
witness to testify.
Mr. Goll stated
Association representing approximately 300 homes. He stated the
suffering from an urbanized watershed and significant sedimentation; and over time the
removed 900 cubic yards several years ago, and it is almost filled in again. He stated the
relevance to this property is that they need to maintain as many remaining buffers as
possible that discharge to this
Federal funds were spent on this and the Township was a co-Applicant. He stated to go
into a buffer that allows for the filtering of sediment of stormwater before it gets to a
water course is important. He stated once the water gets to a water course, there is no
more filtering and it is essentially a pipeline to the Creek and then down to the River.
He stated he recognizes that this is an urbanized area, but each house add to the problem.
Mr. Bray asked when there is a flow of water off of the subject property either through
sheet flow or through the drain, how does this find its way
Mr. VanLuvanee objected
Ms. Kirk overruled and allowed a brief answer.
Mr. Goll stated it would be the same answer previously given in that the sheet flow goes
into the inlet, through the pipe system and down to Silver
Mr. Bray stated the original wetlands delineation of the property which showed there was
75% wetlands, and the re-delineation shows 10%. Mr. Bray stated this occurred over a
fifteen year period. Mr. Bray asked Mr. Goll if he has any explanation how this could
occur, and Mr. Goll stated he does not. He stated it is not usual for a wetlands to shrink.
Mr. Bray asked Mr. Goll to comment on the water course on
Mr. Goll reviewed the definition of water course as being any conveyance of water
emphasizing that a water course is an area where water likes to normally flow. He noted
the photographs taken on September 2 during Ernesto. He stated the photograph shows
down from the N. Crescent area down across Terracedale. He stated the rut within the
roadway is conveying water and is considered a water course as it is the only thing at the
current time that provides conveyance of water or a drain as stated in the definition.
September 19, 2006 Zoning Hearing Board – page 14 of 17
Ms. Kirk noted the pictures on I-6 and I-5 and asked if they
Mr. Goll agreed. Mr.
undedicated portion. He stated the upper portion is paved but the portion from N.
Crescent to Morningside is primarily unpaved.
A short recess was taken at this time. The meeting was reconvened at 9:00 p.m.
Mr. VanLuvanee stated Mr. Goll indicated that the two tracts on the unimproved portion
required from that water course assuming it was a water course. Mr. Goll stated he has
not determined this. He stated they need to look at the wood line and feels it would be at
least 50’ based on the sparseness of the trees.
Mr. VanLuvanee noted Exhibit A-13 where
a stone cartway 10’ feet wide. Mr. VanLuvanee noted the Road on Exhibit I-5 and asked
if Mr. Goll would agreed that the cartway is 10’ wide, and Mr. Goll stated he would have
to measure it, but feels it is approximately ten feet. Mr. VanLuvanee asked Mr. Goll the
buffer he would contend would be required under the Ordinance
and Mr. Goll stated he has not looked at the vegetation that closely, but it could be
anywhere from 25’ to 100’. Mr. VanLuvanee noted Exhibit A-13 and stated the proposed
building envelope is 100’ from
would be 60’. Mr. Goll stated it does encroach on the driveway and the limit of
disturbance. Mr. VanLuvanee stated it appears Mr. Goll’s contention is that the
Ordinance would preclude a driveway from
is a water course, and Mr. Goll stated by Ordinance, this is correct. Mr. VanLuvanee
asked if he would conclude based on the Ordinance that a Variance would be required to
install a driveway where shown, and Mr. Goll agreed.
Mr. VanLuvanee noted the second water course about which Mr. Goll testified which he
described in general terms as being approximately 50’ long, 12” deep, and 24” wide, and
asked if it is vegetated. Mr. Goll stated the channel itself shows no vegetation.
Mr. VanLuvanee asked if Mr. Goll’s comments are based on personal observation, and
Mr. Goll stated he was standing on the adjacent property and was looking into the site.
Mr. VanLuvanee asked Mr. Goll if he would agree that the topography of the property on
either side of the water course is generally flat, and Mr. Goll asked what he would define
as flat. Mr. VanLuvanee asked Mr. Goll to describe the contour on either side of the
water course. Mr. Goll stated the Applicant’s engineer did not include this on the Plan so
he cannot tell from the Plan. Mr. VanLuvanee stated he asked about Mr. Goll’s
observation, and Mr. Goll stated he feels it would be described as very gently sloped
which would be less than a 5% slope.
September 19, 2006 Zoning Hearing Board – page 15 of 17
Mr. VanLuvanee asked for Mr. Goll’s conclusion as to what the Ordinance requires as a
buffer from the water course he described that goes into the culvert that extends onto the
Rosen property. Mr. Goll asked for further explanation of the question, and
Mr. VanLuvanee asked Mr. Goll what he feels the Ordinance requires as a buffer from
that water course, and Mr. Goll stated it would be 100’ on the east side. Mr. VanLuvanee
stated he feels that he answered the Chair that this would extend across the building
envelope, and Mr. Goll agreed.
Mr. Koopman had no questions, and Mr. Bray had no re-direct.
Mr. Bray was asked to present his testimony. Mr. Bray noted Exhibit I-4, Pages 10, 11,
and 12 and stated this is a vegetation and stream survey of
done by the Academy of Natural Sciences on 12/1/78; and he asked that the Board note
particularly the bottom of Page 11.
Mr. VanLuvanee stated he does not know whether or not this is an official document,
who prepared it, or for what purpose it was prepared. He stated he would object to the
relevance and authenticity of the document since they only have a portion of it.
Ms. Kirk stated the objection is noted and added the Board is capable of making a
determination as to the amount of relevancy this document will have on the proceedings.
Mr. Bray read from the bottom of Page 11 as follows: “Many of the small forested
such areas to be developed will increase the amount of water in stream channels and
contribute to an increase in trepidity. Fewer sediments will be retained by the wetlands
and increased stream flow will erode more sediment from stream banks.” Mr. Bray
stated the import of this statements is that the small wetlands…
Mr. VanLuvanee objected noting Mr. Bray has not been qualified as an expert, and he
does not feel it is up to him to tell the importance of that quotation.
Ms. Kirk sustained.
Mr. Bray stated he feels the quotation speaks for itself.
Mr. Bray noted on Exhibit I-4, Pages 7, 8, and 9. He stated these pages are from a
wetland report prepared for the owner of record of the property, Mr. Ingbritsen. This
report was dated 1/5/03. Mr. Bray noted Page 8, third paragraph which states, “The
wetland area consisted of hydric FACW species”, and on the second line they discuss the
jewelweed noted by Mr. Goll. Mr. Bray stated under hydrology, he feels it is surprising
that Cara Mia has never to this point accepted the existence of the drainage way yet in
this report it states, “A small drainage way is located …”
September 19, 2006 Zoning Hearing Board – page 16 of 17
Mr. VanLuvanee stated this is argument and not testimony. Ms. Kirk stated this
document was previously submitted at the earlier proceedings and is already part of the
record for the Board’s consideration.
Mr. Bray stated he would like to discuss what Cara Mia is requesting from the Zoning
Mr. Toadvine stated this is the time for testimony as opposed to making argument. He
stated it appears that Mr. Bray would like to explain his position as opposed to relaying
facts that the Board can use to rely on to make their determination. Mr. Bray stated he
would like to discuss the magnitude of the Variances that are requested; and Ms. Kirk
stated this would be considered argument, and this can be given at the end of the
proceedings. She asked if there is anything Mr. Bray would like to offer that is factually
based that the Board should consider with respect to the Application. Mr. Bray stated he
feels the remaining discussion would probably constitute argument.
Mr. VanLuvanee stated he wanted to find out what the issues were and he feels his
supplemental request for a Variance from the wetlands buffer section of the Ordinance
will cover what has been heard this evening. He stated they will be prepared at the next
meeting with testimony and offer identification on the Plan to show the location of what
has been described this evening by the witness. He stated the only thing he needs to state
by way of clarification is that he requested a Variance to grade within ten feet of the
water course. He stated if the testimony is accepted that the road is a water course, given
the Township’s preference that they enter off of
Variance to actually encroach within that buffer directly so that they can connect to
stated in his August 28, 2006 letter.
Mr. Toadvine stated he does not feel they need to re-advertise. Mr. Koopman stated it
would still be a Variance from the water course buffer. Mr. VanLuvanee stated while he
would agree, he wants to make sure that there are no issues. Mr. Koopman stated the
issue is if there is an additional Variance from the water course buffer, and
Mr. VanLuvanee agreed that this is the issue.
Ms. Kirk stated the Board is going to be asking for proposed Findings of Fact which will
also clarify the specificity of the Variances being requested.
Mr. VanLuvanee stated he wanted to make sure that everyone was in agreement that the
Notice is adequate, and Ms. Kirk stated the Board took the special precaution of
advertising for October 3 that there would be a possible additional Variance requested
from that Section of the Ordinance.
September 19, 2006 Zoning Hearing Board – page 17 of 17
Ms. Kirk moved, Mr. Smith seconded and it was unanimously carried to continue this
matter to the Board’s Hearing of October 3, 2006 to deal with the Amendment to the
Mr. VanLuvanee stated he does not recall who attended the last Hearing. He noted there
are four Board members present this evening; but he is not sure that they are the same
four who were in attendance previously or not. Mr. Smith stated he was not present
during previous testimony. Mr. Toadvine stated at the last meeting that testimony was
taken on July 18, 2006, he feels only Ms. Kirk, Mr. Bamburak, and Mr. Malinowski were
present. Mr. Smith had not yet been appointed to the Board. Mr. VanLuvanee asked if a
Record is available for that meeting, and Mr. Toadvine stated they do not have a Record
although they do have detailed Minutes. Mr. VanLuvanee stated his preference, if
Mr. Smith is comfortable and the Board does not object, would be to have Mr. Smith
participate since he heard the testimony this evening and has the ability to review the
Minutes. Ms. Kirk requested that Mr. Smith be provided a copy of the Minutes from the
July 18, 2006 meeting. Mr. Koopman stated the Township would have no objection to
Mr. Smith participating in the Decision based upon his review of the proceedings to date.
Mr. Bray stated they would not object either.
There being no further business, Mr. Smith moved, Ms. Kirk seconded and it was unanimously carried to adjourn the meeting at 9:50 p.m.
David Malinowski, Secretary