TOWNSHIP OF LOWER MAKEFIELD

ZONING HEARING BOARD

MINUTES – SEPTEMBER 19, 2006

 

 

The regular meeting of the Zoning Hearing Board of the Township of Lower Makefield was held in the Municipal Building on September 19, 2006.  Chairman Kirk called the meeting to order at 7:30 p.m.  Ms. Kirk announced that the Board has only four Board members present this evening; and if there is a split vote among the Board, it would be a deemed denial of the Application.  She stated if anyone would like to request a continuance to the next meeting of the Board which is scheduled for October 3, they will be given the opportunity to do so.

 

Those present:

 

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

following conditions:

 

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

this matter.

 

 

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

 

Mr. Peter Vandenbrand, 40 Rain Lily Road, Levittown, and Ms. Tracy Miller,

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 1235 Yardley Road consisting of

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

Yardley-Morrisville Road.  She asked the length of the driveway that exists at the

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

do this.

 

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

the neighborhood. 

 

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

Mr. Vandenbrand. 

 

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 Terracedale Road which does not

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

go forward.  

 

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 “Terracedale Road looking north.”  The photo

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 “Terracedale Road looking south.”  This was

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 Commonwealth of Pennsylvania and is the Vice President of

Princeton Hydro, an environmental engineering firm located in Ringoes, New Jersey with

offices in Voorhees, New Jersey and West Chester, Pennsylvania.  He stated he graduated

from Rutgers University in 1990 with a degree in Civil Engineering and has been

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 Bensalem Township or

presenting any evidence to Bensalem Township as it relates to a project known as

Tremont, and Mr. Goll stated he was not personally involved.  Ms. Kirk stated she serves

as one of the Solicitors to Bensalem Township, and this is a land development project

that is hotly disputed.  She stated she wants to make sure that the fact that she is a

Solicitor to Bensalem Township as it relates to that project does not impact her ability or

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 applied in Lower Makefield.

 

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

recent version.

 

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 Lower Makefield

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 Lot #37 on Exhibit A-13 and stated when you look at the

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

witnessed from Terracedale Road that the water course does have water in it.  He stated

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

requirements.

 

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

requirements. 

 

 

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 United States

already outlined and delineated by the Army Corps of Engineers.  Mr. Goll stated the

Waters of the United States are different than the water course as defined by 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 United States, can a building be put on the parcel.  Mr. Goll stated

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

correct.

 

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 Morningside Road. 

 

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

Morningside Road is slightly higher.

 

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 Edgewood Road and then Silver Creek.   Silver Creek then discharges

to the Delaware River.  He stated if you have a direct connection to the Delaware River,

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

Delaware River less than two miles from the site will require the Township to require an

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 siltation at Silver Lake which is

close by this property.  Mr. Goll stated he did consulting work for the Makefield Lakes

Association.  Mr. Bray asked that he also comment on the location of the Lake and its

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 Lake is to the property, and Mr. Goll stated it is

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 Silver Lake is a water body owned by the Makefield Lakes Community

Association representing approximately 300 homes.  He stated the Lake has been

suffering from an urbanized watershed and significant sedimentation; and over time the

Lake fills with sediment due to the urbanization and uncontrolled run-off.  He stated they

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 Lake to protect it from further degradation.  He stated

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 to Silver Lake. 

 

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 Creek and Silver Lake.

 

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 Terracedale Road itself.

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

Terracedale Road looking west where a significant amount of water can be seen running

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 are of Terracedale Road, and

Mr. Goll agreed.  Mr. Bray stated Terracedale Road has two portions and this is the

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

of Terracedale Road were water courses and asked what buffer he feels would be

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 Terracedale Road is shown and is labeled as

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 from Terracedale Road,

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 Terracedale Road, and Mr. Goll stated it appears that it

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 Terracedale Road as Terracedale Road itself

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 Lower Makefield Township

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

wetlands in Lower Makefield Township also have important ecological roles.    Allowing

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

Board.

 

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 Terracedale Road, he would need a

Variance to actually encroach within that buffer directly so that they can connect to

Terracedale Road.  He stated this would be an Amendment beyond the scope of what he

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

Variance request.

 

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.

 

                                                            Respectfully Submitted,

 

 

 

 

                                                            David Malinowski, Secretary