TOWNSHIP OF LOWER MAKEFIELD

ZONING HEARING BOARD

MINUTES – JUNE 19, 2007

 

 

The regular meeting of the Zoning Hearing Board of the Township of Lower Makefield was held in the Municipal Building on June 19, 2007.  Vice Chairman Malinowski called the meeting to order at 7:30 p.m.

 

Those present:

 

Zoning Hearing Board:                       David Malinowski, Vice Chairman

                                                            Paul Bamburak, Secretary

                                                            Paul Kim, Alternate

                                                            Anthony Zamparelli, Alternate

 

Others:                                                Robert Habgood, Code Enforcement Officer

                                                            John Donaghy, Township Solicitor

                                                            James Majewski, Township Engineer

                                                            Allen Toadvine, Zoning Hearing Board Solicitor

                                                            Ron Smith, Supervisor Liaison

 

Absent:                                                Jerry Gruen, ZHB Member

                                                            Gregory Smith, ZHB Member

 

 

APPEAL #07-1429 – LUTHERAN CHURCH OF THE RESURRECTION

 

Mr. Toadvine stated he received a letter from the Applicant’s attorney, Edward Murphy,

dated 6/8/07 asking for a continuance; and they have requested it be continued until

August 21, 2007 and are waiving any time limits that would apply. The matter was

discussed with the Township’s attorney, Mr. Truelove, who indicated they had no

objection to the continuance.  The letter was marked as Exhibit B-1. 

 

Mr. Bamburak moved, Mr. Kim seconded and it was unanimously carried to continue the

matter to August 21, 2007.

 

Mr. Smith asked if any communication was provided to the residents that the matter was

going to be continued, and Mr. Toadvine stated there was not. 

 

One gentleman asked what would happen if some of the residents could not be present on

August 21, and Mr. Malinowski stated it will still be heard that evening.  One woman

asked if they could have Party status, and Mr. Toadvine stated if they are present on 8/21

they can request Party status.  He stated they could not request Party status this evening

because the Application is not being opened.  He added when you request Party status,

the Applicant’s attorney can pose questions to see if you qualify for Party status. 

June 19, 2007                                                             Zoning Hearing Board – page 2 of 21

 

One gentleman stated he lives next door to the Church, and he is concerned that he may

not be able to attend on August 21.  Mr. Toadvine stated there is no way of knowing

ahead of time who will show up for the meeting.  The gentleman asked if a resident could

request a continuance on August 21, and Mr. Toadvine stated this would depend on

whether they qualify to participate as a Party.  He stated if they are accepted as a Party,

they could make such a request depending on what happens at that meeting.  He stated

they cannot request Party status until the matter is opened.  Mr. Toadvine stated he

assumes that if there are ten to fifteen neighbors who are interested, all of the neighbors

would have a commonality in terms of their opposition; and he would assume that

whoever is present would be asking many of the same questions that the neighbors who

cannot attend would want to ask.  He noted the Board is under certain time limits; but

added if something comes up, and there was not sufficient time to address it, this may be

a reason to continue the matter.  Mr. Toadvine noted the Board is not impacted by the

number of residents present at a meeting.  One gentleman stated it maybe possible that

someone who is not able to be at the meeting, may have a question as a result of the

testimony that the other neighbors would not ask.  Mr. Toadvine stated it is possible that

the meeting may not conclude on August 21. 

 

One gentleman asked if the residents could hire an attorney and ask that the matter be

continued beyond August 21, and Mr. Toadvine stated it would not make a difference if

they had an attorney or not.  He stated if they were going to request a Continuance, it

would be entertained by the Board the night of the meeting whether they have an attorney

or not.  He stated they cannot entertain it tonight because the Applicant is not present and

the matter has not yet been opened.  The gentleman asked if it would be too late to ask for

a Continuance on August 21; and Mr. Toadvine stated this is not necessarily correct as at

this point he does not know what testimony they will offer.  He stated if someone’s

expert could not be present at that meeting, this may be a reason to consider a

Continuance.  He stated it is not unusual for some cases to last more than one meeting.

 

One woman stated a neighbor who was unable to attend the meeting came to the

Township and was told that they could not have Party status prior to the meeting. 

 

One gentleman objected to the fact that the Township did not give them notice that the

matter was being continued.  Mr. Toadvine stated he did not receive the letter until

June 11.  He stated he had no way of knowing who would attend the meeting.  He stated

the meeting was advertised and was required to be held this evening.  One woman stated

a Notice was sent to them and since they had their names, they could have notified them

that the matter was Continued.  Mr. Toadvine stated the names are all the property

owners within a certain number of feet.  He stated he did not know whether or not the

Board would Continue the matter until the night of the meeting as he does not make the

decision, and this is a decision for the Board to make.  He stated once a matter is

advertised for a specific night, it must be held.  He could not notify anyone in advance

that the matter was going to be Continued as the Board could not make that decision until

this evening.

June 19, 2007                                                             Zoning Hearing Board – page 3 of 21

 

 

One woman asked if they could be a Party if they cannot be present, and Mr. Toadvine

stated they could hire an attorney and have the attorney present that evening.  One

gentleman asked if the Applicant’s attorney was present this evening, and Mr. Toadvine

stated he is not.  The gentleman stated it appears that their attorney was able to submit a

letter asking for a Continuance, but the residents cannot ask for a Continuance because

they are not a Party to the matter despite the fact that they are present now.  Mr. Toadvine

stated they could not be a Party yet because the matter has not yet been opened, and the

Applicant’s attorney has the right to question those wishing Party status.  Mr. Toadvine

stated while some people may not be able to be present on the 21st, other may be

available.  He noted some residents may have wished to be present this evening but were

unable to attend, but they may be able to attend on August 21st.  The gentleman stated his

property will be the most effected; however, Mr. Toadvine stated they cannot take any

testimony on the Application this evening. 

 

One gentleman asked if a resident could not be present at the next Hearing, could they

hire an attorney to represent them; and Mr. Toadvine stated they could.  The gentleman

asked if another homeowner that can be present could represent them, and Mr. Toadvine

stated they could not since another homeowner could not practice law.  One woman

asked if this is a Court room, and Mr. Toadvine stated it is a quasi-Judicial Hearing which

is why a Court Stenographer is present and a Record is being made.  He stated a resident

can represent themselves, but they cannot represent other people because a lay person

cannot practice law. 

 

Mr. Kim asked if they could submit their concerns in writing and ask for Party status to

the Zoning Hearing Board if they cannot attend the Hearing; and Mr. Toadvine stated

they could submit their concerns, but they could not request Party status because the

Applicant’s attorney would not be able to question them.  One woman stated her

neighbor did try to give someone at the Township a letter and were told they could not

accept it.  Mr. Toadvine stated the Board gets letters all the time.  Mr. Donaghy stated the

letter would have to be submitted to the Zoning Hearing Board.  Mr. Habgood stated they

tried to drop this off at the Township Building, and they wanted someone from the

Township to hand deliver it to the Zoning Hearing Board.  Mr. Toadvine stated the

Zoning Hearing Board is a totally different entity from the Township.  He stated letters

addressed to the Zoning Hearing Board will be provided to the Board.  Mr. Kim stated if

a letter is sent in a correct manner, it will be part of the Zoning Hearing Board packet.

 

One gentleman asked if appearing at the Hearing automatically makes you a Party, and

Mr. Toadvine stated you have to request Party status at the meeting. 

 

Mr. Toadvine suggested to the Board that those present this evening be permitted to

provide their names and addresses and if the matter is not heard on August 21, the

Township could notify them.  This was acceptable to the Board, and those interested

provided their names and addresses. 

June 19, 2007                                                             Zoning Hearing Board – page 4 of 21

 

 

One woman asked the difference between having a letter on file and having Party status,  

and Mr. Toadvine noted there is a significant difference because of the weight given to

live testimony

 

 

APPEAL #07-1428 – DAVID NIRSCHL

 

Mr. David Nirschl was sworn in.  Mr. Nirschl stated he would like to put an addition onto

his house which will be a kitchen addition of 110 square feet.  He stated his Application

for a Permit was denied because of impervious surface.  He stated the letter he submitted

explains the basis for his Appeal, and he has provided a Site Plan.  He stated he has

shown a breakdown of what the impervious surface was when he purchased his home in

2000 which included impervious surface related to a pool which he estimated to be about

400 square feet.   He has since removed the pool and the associated impervious surface

and will also be removing rear concrete steps of 26 square feet.   He stated there was 23%

impervious surface when he purchased the home and his request for a Variance is for

21.9% impervious surface.

 

The Application submitted was marked as Exhibit A-1.  Attached to the Application was

a Sketch Plan which was marked as Exhibit A-2.  In addition there were impervious

surface calculations submitted,  and this was marked as Exhibit A-3.

Mr. Donaghy stated the Township is not participating in this matter.  There was no public

comment.

 

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

impervious surface of 21.9%.

 

 

APPEAL #07-1430 – WILLIAM & DENISE PATSKANICK

 

Mr. and Mrs. Patskanick were sworn in.  The Application filed was marked as Exhibit

A-1.  Attached to the Application was a one-sheet Plan dated 9/5/06 with a last revision

date of 4/23/07.  This was marked as Exhibit A-2.

 

Mr. Patskanick stated he is challenging the Code Officer’s determination that he did work

without a Permit on his property.  He stated the work he did does not require a Permit. 

He stated he has drainage problems at his property that he would like the Township to

take some responsibility for.

 

Ron Smolow, attorney for Diane and Steven Bass, adjoining property owners who wish

to intervene as Parties, was present.  Mr. Smallow stated Mr. and Mrs. Bass live at 293

Cinnabar Lane which is the property adjacent to the Appellant’s property to the rear. 

 

June 19, 2007                                                             Zoning Hearing Board – page 5 of 21

 

 

Mr. Toadvine noted the letter dated 4/24/07 from the Township of Lower Makefield,

Robert Habgood, Code Enforcement Officer, to the Applicant which was marked as

Exhibit A-3. 

 

Mr. Patskanick noted Ordinance #200-89.   He stated the way he interprets the

Ordinance, this Section discusses floodplain soils abutting the Delaware, ponds,

wetlands, Waters of the Commonwealth, steep slopes, woodlands, etc. He feels 1, 2, 3, 4,

5, and 6 are all related; and for the Code Official to take one statement which says, “It

shall be unlawful to pave, fill, strip, or change the existing grade of any land without first

obtaining a Grading Permit and complying with Chapter 116 Grading and Excavation, he

questions whether or not the Code Official can actually do this.  He stated if he can, this

would forbid him from doing any improvements on his property such as landscaping,

bringing in mulch, etc. that would change the grade if in fact the Ordinance is written the

way the Code Official has explained it.

 

Mr. Patskanick showed a picture of the townhouse which he purchased and overgrown

landscaping.  He stated if the Code Officer is saying he cannot do anything, the grade is

12” above the sidewalk; and he questioned how he could start the work to get to the front

door if he has to take out a Permit.  He stated what he did was landscaping improvements

on the property which he had to do in order to take possession of the property.  He stated

he does not feel the work he did required a Permit. 

 

Mrs. Patskanick stated they removed all the shrubbery which was there because it was so

overgrown that they could not get to the front door.  Mr. Patskanick showed a picture of

the property after the shrubbery was taken down. He stated while he did change the

grade, what he did was landscaping. 

 

Mr. Kim asked the existing grade that was naturally on the land before the shrubbery was

overgrown which he has changed.  Mr. Toadvine stated he feels Mr. Patskanick has

indicated to the Board that according to the letter he received this would be considered

grading, but this is not what the issue is about; and Mr. Patskanick agreed.

 

Mr. Patskanick showed a poster board of the rear yard showing the neighbor’s fence. 

Mr. Patskanick stated when he took possession of the property, it was terribly overgrown. 

He stated he took down shrubbery and cleared out the area.  He showed a picture of the

property once all the landscaping was removed.  Mr. Toadvine asked if Mr. Patskanick

had photos which could be marked as Exhibit of what is seen on the poster board, but
Mr. Patskanick stated he did not.

 

Mr. Kim asked the type of machinery used, and Mr. Patskanick stated most of the work

done around the house was physical labor.  They did move some of the stone that was

around the house to the rear.  He stated one of the neighbors advised him that there was a

problem with standing water. 

June 19, 2007                                                             Zoning Hearing Board – page 6 of 21

 

 

Mr. Smolow objected based on hearsay.  Mr. Toadvine stated they will permit this.

 

Mr. Patskanick stated they moved the stone to the back to help the soil perc.  They did

bring in machinery to create a small swale at the back of the property as he had standing

water by the townhouse which he wanted to move away.  He followed the natural grade

of the property to collect the water in the rear.  He stated the water flow is away from his

house and ponds to the north.  With the improvements he has made the water still

dissipates, and he does not believe it did so previously.  He stated the swale he created

takes the water between the trees and away from his house and directs it to the rear of the

property.  He stated the area is flat and has no where to go. 

 

Mr. Malinowski asked if they get water in their basement, and Mr. Patskanick stated the

do not have a basement.

 

Mr. Patskanick stated they did bring in equipment to create the swale.  Mr. Toadvine

asked if they moved the fence, and Mrs. Patskanick stated they did not. 

 

Mr. Kim asked how many tons of dirt he brought in to fill the swale, and Mr. Patskanick

stated he used less than ten yards. 

 

Mrs. Patskanick stated there was a massive amount of yard debris.  She stated they

understand that the property was vacant for nine months and some of the neighbors

admitted that they were dumping their own yard debris on this property.  When they took

ownership, they cleared out all of this debris.

 

Mr. Kim stated it would appear from the pictures that they brought in forty to fifty yards

of dirt, and Mr. Patskanick stated he was able to spread the soil along the back.  He did

bring in additional soil for around the house so he assumes the total brought in was thirty

to forty yards.  Mr. Malinowski asked if bringing in this amount of dirt was what caused

the Township to write the letter.  Mr. Toadvine stated he feels Mr. Habgood should be

sworn in before giving testimony.  Mr. Donaghy asked that they be done during the

course of the Hearing. 

 

Mr. Patskanick stated he does not feel the Ordinance is applicable as he basically did

landscaping and made improvements to the property.    He does not feel he was required

to obtain a Permit.   

 

Mr. Patskanick showed a picture of the property taken on 4/12/07 particularly noting the

fence.  He stated the top of his swale is apparently too close to the fence.  He stated he

has looked at the drawings for the development; and while there are many yard drains

throughout Big Oak Bend, there are none on this property, and he feels the property has

been like this since the beginning. 

 

June 19, 2007                                                             Zoning Hearing Board – page 7 of 21

 

 

Mr. Smolow objected.  Mr. Malinowski stated this objection was noted.

 

Mr. Patskanick stated his water tends to dissipate, but there is a tremendous amount of

water that has no place to go.

 

Mr. Malinowski asked if the water that is now seen backing up on the other side of the

fence onto the neighbor’s property, was prior to the swale, traveling over

Mr. Patskanick’s property; and Mr. Patskanick agreed, and he feels this is the reason for

Mr. Bass’s objection.  Mr. Patskanick stated if the top of the swale were removed, he

feels the water will run onto his property.  He stated he made an attempt to clear out the

area and get water away from his property, and apparently the swale is now holding back

water onto Mr. Bass’s yard that previously ran through his property.  He stated he has had

it surveyed, and the elevations are basically as they were in 1985.  He noted an area

which is a little high but stated he basically changed nothing. 

 

Mr. Kim stated it appears Mr. Patskanick is indicating that when he did the work, he

re-graded the land to its original design, and Mr. Patskanick agreed.  Mr. Kim stated it

appears that he is indicating that the house was graded properly but due to deterioration,

the grading changed, and Mr. Patskanick returned it back to the original specifications;

and Mr. Patskanick agreed. 

 

Mr. Patskanick stated he was cited for grading without a Permit.  Mr. Bamburak stated it

appears Mr. Patskanick’s contention is that the magnitude of the work he did in the rear

yard which allegedly needed a Permit, is the same magnitude of work he did in the front

yard which allegedly does not need a Permit.  Mr. Patskanick stated he is stating that

none of the work that he did required a Permit. 

 

Mr. Kim stated it appears they were restoring it to the original grade and did not change

the grading.  Mr. Patskanick agreed and stated this is shown by his survey. 

 

Mr. Donaghy stated the Township is participating in this matter, is in support of the

issuance of the Order, and opposes this Appeal. 

 

Mr. Smolow stated he has not seen a survey as referred to by the Applicant and asked if

it was introduced.  Mr. Smolow was provided a copy of Exhibit A-2. 

 

Mr. Smolow stated he understands the property was purchased in October of 2006, and

Mr. Patskanick stated they settled in September, 2006.  Mr. Smolow asked if he was

familiar with the drainage and landscaping of the property prior to September, 2006; and

Mr. Patskanick stated this evening he showed photos of what the property looked like

prior to his purchase but had no other knowledge about it. 

 

 

June 19, 2007                                                             Zoning Hearing Board – page 8 of 21

 

 

Mr. Smolow noted the photo taken 4/12/07 and stated he understands that prior to the

work done by Mr. Patskanick, the area was covered with brush, shrubs and scrub trees;

and Mr. Patskanick agreed that the vegetation completely covered the surface of the

ground and you could not see the ground. 

 

Mr. Smolow asked how far from the fence line did the vegetation extend, and

Mr. Patskanick stated it was ten to twelve feet.  He stated this would be the entire area

shown on the photo between the trees.  The split rail fence was noted in the photo, and it

was noted that the Applicant’s property is on the right portion of the picture and the

Bass’s property is on the left.  This picture was marked as Exhibit A-4 – which is a photo

of the rear of the Applicant’s property taken 4/12/07. 

 

Mr. Smolow asked when the work was done by Mr. Patskanick, and Mr. Patskanick

stated it was done in October, 2006.  Mr. Smolow stated Mr. Patskanick testified he

brought in machinery to develop the swale, and Mr. Patskanick agreed.  Mr. Patskanick

noted on the photo the area which shows flooding and runs parallel to the fence line.

 

Mr. Smolow asked that Mr. Patskanick describe the machinery brought in, and

Mr. Patskanick stated it was a small front loader used by landscapers.  He stated he did

not operate it and had friends in the construction business to help him.  Mr. Smolow

asked the name of the construction business, but Mr. Patskanick stated he did not wish to

answer this.  Mr. Kim asked the objective in naming the company.  Mr. Toadvine stated

he did not see the relevancy in naming the company.  Mr. Smolow stated he might want

to contact the company to see what work was actually done.    Mr. Toadvine stated the

issue is not what work was done but is whether or not the Notice of Violation was issued

properly.    Mr. Donaghy disagreed and stated the nature of the work done could effect

whether or not the Notice and requirement for a Grading Permit was required. 

Mr. Toadvine stated it would not depend on whether or not he used a front loader. 

Mr. Donaghy stated use of a front end loader and work by a professional construction

crew would indicate that it was more than simply moving a little dirt around.

 

Mr. Toadvine stated they have directed the Witness to answer the question, and he has

indicated he does not want to.

 

Mr. Kim asked if he paid the crew, and Mr. Patskanick stated he did.  Mr. Smolow asked

the size of the crew, and Mr. Patskanick stated there were two men and they worked there

for a few days.  After further consideration, he stated that there were there for five days. 

He stated in addition, he also re-seeded much of the property so they did that as well. 

Mr. Smolow asked the size of the equipment, and Mr. Patskanick stated it was three

quarters of the size of the table where the Applicants were sitting. 

 

Mr. Smolow stated Mr. Patskanick had indicated in letters that the size of the property

was 10,218 square feet and the area he re-graded toward the rear of the yard was

June 19, 2007                                                             Zoning Hearing Board – page 9 of 21

 

 

approximately 800 square feet.  Mr. Smolow asked if he did other grading work at the

property, and Mr. Patskanick stated he planted grass.  He stated he also put dirt in the

front as shown in the pictures where landscaping was removed.  Mr. Smolow stated

Mr. Patskanick testified he brought in thirty to forty yards of soil into a property of

10,218 square feet and of the 10,218 square feet a portion of that is the house. 

Mr. Patskanick agreed and stated the house would be slightly over 1,100 square feet. 

Mr. Patskanick stated if they included the driveway and sidewalk, this would leave 8,500

square feet of ground.  Mr. Smolow stated it would appear that he covered 10% of the

ground with soil, and Mr. Patskanick agreed. 

 

Mr. Smolow noted the swale which was created in the back of the yard which raised the

level of his property, and Mr. Patskanick stated he did this inadvertently and did not

intend to do this although it appears that the swale is slightly high at the back of the

property.  Mr. Smolow stated he raised it 5” above the previous grade, and

Mr. Patskanick agreed.  Mr. Smolow stated this would be 5” higher than it was when he

purchased the property, and Mr. Patskanick agreed.  Mr. Smolow asked if it is 5” higher

for the entire 80’ length of the rear of his property, and Mr. Patskanick stated it would be

the area between the two trees.  Mr. Smolow stated the effect of raising the grade of his

property 5” was that it trapped water on Mr. Bass’s property, and Mr. Patskanick stated

he does not know although he agreed that there is a lot of water there. 

 

Mr. Smolow asked if they received a Disclosure Statement from the seller as to the

condition of the rear yard, and Mr. Patskanick stated he did get a Disclosure Statement. 

He asked if Mr. Patskanick has complained to the seller as to the drainage of the property,

and Mr. Patskanick stated he has not.  Mr. Smolow asked if he had a Home Inspection

Report prepared by a home inspection company, and Mr. Patskanick stated this is correct. 

Mr. Smolow asked if he complained to the home inspection company that they failed to

advise that there was a water problem, and Mr. Patskanick stated he has not.

 

Mr. Malinowski stated the issue is whether the letter was properly issued by the

Township.  Mr. Smolow stated he is raising these issues as he feels there is a question as

to the nature and extent of the alleged problem that the Appellant claims to have existed

and which he asserts is the basis for doing what he did without a Permit.  Mr. Smolow

stated he feels testimony has shown that Mr. Patskanick conducted an extensive amount

of re-grading on the property and brought in thirty to forty yards of soil, he had a number

of people working on the property, he raised it 4” to 5”, and he has trapped water on the

Bass’s property.  He stated he is trying to establish any knowledge of this condition

beforehand; and he does not feel he knew of the condition beforehand.  Mr. Kim asked

how the lack of knowledge would relate to the Permit issue.  Mr. Smolow stated the lack

of knowledge goes to whether or not he is credible.  Mr. Smolow stated the issue is how

much work was done and to such an extent that a homeowner should have reasonably

known to go to the Township and ask if they needed a Permit and does the Ordinance

also require it. 

June 19, 2007                                                           Zoning Hearing Board – page 10 of 21

 

Mr. Smolow noted the survey plan presented and asked when this was prepared. 

Mr. Toadvine stated the Plan date is 9/5/06, last revised 4/23/07.  Mr. Smolow asked if

this shows the condition of the property after he altered the grading or before, and

Mr. Patskanick stated it was after.  He stated he was approached by the Township who

indicated he needed a Grading Permit to do the work to take the swale down in the back;

and in the spirit of cooperation he applied for a Permit which was then rejected.  After

this, he decided to come to the Zoning Hearing Board and Appeal the Decision. 

 

Mr. Kim asked why it was rejected, and Mr. Patskanick stated it indicated he needed

approval of the Bucks County Conservation District for disturbances of greater than

1,000 square feet.  He stated the swale is close to 400 square feet, and he has not done

anything with the Permit.  Mr. Malinowski stated his contention is that he has not

disturbed more than 1,000 square feet; and Mr. Patskanick stated his contention is that he

has not disturbed more than 1,000 square feet in this area. 

 

Mr. Smolow asked why the plan has a date of 9/5/06 in the Title Block since he did not

acquire the property until after September.  Mr. Patskanick stated when the Township

advised that he needed a Permit to take down the swale, he ordered the survey.

Mr. Smolow asked when the Township advised he needed a Permit, and Mr. Patskanick

stated they have been telling him this since March.  Mr. Smolow asked why the Plan is

dated September 5, 2006 if the Township did not complain to him until March, 2007. 

Mr. Patskanick stated they took that date off the original survey when he purchased the

property. 

 

Mr. Smolow asked if Mr. Patskanick would agree that at the present time it takes 48

hours for the area to dry, and Mr. Patskanick stated this would be correct for his side but

it takes much more time to dry out on Mr. Bass’s property. 

 

Mr. Smolow asked if in 4/06 he agreed with the Township to return the grade shown on

Exhibit A-4 to the grade it was before he did the work, and Mr. Patskanick stated he did

agree but he has not done it since the Permit Application was rejected.

 

Mr. Bamburak noted the yellow area on the Plan which he assumes is the elevation to

which he would lower the swale, and Mr. Patskanick agreed.  Mr. Bamburak asked if the

reason he has not done this is because the Permit was rejected because he did not discuss

it with the Bucks County Conservation District, and Mr. Patskanick agreed.

 

Mr. Bamburak asked why he will not discuss this with the Conservation District, and

Mr. Toadvine stated Mr. Patskanick does not believe he has disturbed more than 1,000

square feet; and Mr. Patskanick agreed.  Mr. Patskanick stated he has discussed this with

them, but he does not agree that a Permit was required.  He stated he does want to

proceed with lowering the swale.  Mr. Bamburak stated it appears that the Permit will not

be approved until he gets the appropriate approval from Bucks County Conservation

District, and Mr. Patskanick agreed. 

June 19, 2007                                                           Zoning Hearing Board – page 11 of 21

 

 

Mrs. Patskanick stated they question why they would have to get the Conservation

District involved if they are not going to disturb more than 1,000 square feet.  She stated

according to information they have, you are not required to have a Permit if not more

than 1,000 square feet is disturbed.  She feels they are being accused of doing the work

without a Permit; but if you follow all the guidelines and rules, a Permit is not required. 

 

A short recess was taken at this time.  The meeting was reconvened at 9:10 p.m.

 

Mr. Donaghy stated the Townships is participating in the matter and opposing the

Appeal.  Mr. Donaghy stated Mr. Patskanick has indicated he brought in a total of thirty

to forty yards of dirt to the site and asked where it was used.  Mr. Patskanick stated it was

primarily used around the front and side of the house where he had taken out the old

growth and some was used along the fence.  Mr. Donaghy stated he indicated he had not

disturbed more than 1,000 square feet in the rear area, and Mr. Patskanick agreed. 

 

Mr. Donaghy asked if this means that elsewhere on the site, he disturbed in excess of

1,000 square feet or in the aggregate it was in excess of 1,000 square feet; and

Mr. Patskanick stated there might have been less than 1,000 square feet along the house

and the rest of the lawn he re-seeded.  Mr. Donaghy asked if the aggregate was in excess

of 1,000 square feet.  Mr. Toadvine asked if all the re-grading done on the property was

in excess of 1,000 square feet which it would seem to be; and Mr. Patskanick agreed.

 

Mr. Donaghy noted the survey presented and the question regarding the date which was

9/5/06 and a subsequent amended on 4/27/07; and Mr. Patskanick stated the took the

original survey and shot elevations and the only change between 9/05 and the 4/27 were

the elevations shown on the rear.  Mr. Donaghy asked if the contours shown are as of

9/05/06, and Mr. Patskanick agreed.  Mr. Donaghy stated these would be the contours

prior to any of the work he did on the site, and Mr. Patskanick agreed.   Mr. Donaghy

asked if they came back and shot elevations, and Mr. Patskanick stated the elevations are

shown existing and what he is going to restore them to.  They did not change any of the

elevations or contours on the site.

 

Mr. Donaghy asked if he removed any trees from the site subsequent to his acquisition of

the property, and Mr. Patskanick stated he did.  Mr. Donaghy asked how many, and

Mr. Patskanick stated he removed approximately fourteen to fifteen, the majority of

which were less than 6” in caliper.  Mr. Donaghy asked how many were less than 6” in

caliper, and Mr. Patskanick stated all but two were less than 6” in caliper.  Mr. Donaghy

asked the location of the area where the trees were located, and Mr. Patskanick stated

they were between the two trees shown on Exhibit A-4.  Mr. Patskanick showed the

picture of what the property looked like prior to the work being done, and he showed

where the trees removed had been located. 

 

 

June 19, 2007                                                           Zoning Hearing Board – page 12 of 21

 

 

Mr. Donaghy stated Mr. Patskanick had indicated he also removed undergrowth; and

Mr. Patskanick stated they removed undergrowth, leaves, and some other trees that had

been taken out but the stumps were still there. 

 

Mr. Donaghy stated Mr. Patskanick had indicated it was mid-March when he was first

advised by the Township that he did work on his property which required a Permit, and

Mr. Patskanick stated it was late March.  He stated he did meet with the Township

Zoning Officer and Township engineer two times and also had telephone conversations

with them.  Mr. Donaghy asked if the Township engineer suggested any alternatives; and

Mr. Patskanick stated the Township engineer suggested three alternatives, and

Mr. Patskanick agreed to restore the grade back to its normal state.  Mr. Donaghy stated

Mr. Patskanick indicated he did submit an Application to that effect; and Mr. Patskanick

stated the Code Official threatened he and his wife with District Court if he did not

submit a Permit within a given amount of time; and after going through the work and

believing that he did not need a Permit, he was not going to be taken to Court by the

Township. 

 

Mr. Donaghy asked if he submitted calculations to the Township as to the actual amount

of fill placed at the site; and Mr. Patskanick stated he did not.  Mr. Donaghy asked if he

has done any calculations on the site to confirm his estimate of the amount of fill that was

placed on the site such as a soil log; and Mr. Patskanick stated he brought in between

thirty and forty yards.  Mr. Donaghy asked if Mr. Patskanick would have any objection to

the Township engineer coming on site to confirm this; and Mr. Patskanick stated while he

could do this, he does not feel it would be necessary, although he would have no

objection.

 

Mr. Donaghy asked if other than the grading and filling that was discussed this evening,

has Mr. Patskanick done any other exterior improvements to the property since it was

acquired other than painting; and Mr. Patskanick stated he replaced the sidewalk. 

Mr. Donaghy asked if he had a Permit for this, and Mr. Patskanick stated he did not know

one was required.  Mr. Patskanick stated he did obtain a Permit for replacement windows. 

 

Mr. James Majewski and Mr. Robert Habgood were sworn in.

 

Mr. Toadvine asked if Mr. Donaghy could ask Mr. Habgood the basis for his letter.

Mr. Habgood stated he is the Code Enforcement Officer for the Township.  He stated he

issued the Order that is the subject of the Hearing which was marked as Exhibit A-3. 

Mr. Donaghy asked how Mr. Habgood first became aware of the situation at this

property, and Mr. Habgood stated a written complaint was received at the Township from

the Bass residence regarding a drainage problem in the rear of the property.  After receipt

of the complaint, a memo was prepared and issued to the Township engineer to have him

investigate the situation and prepare a report.  Mr. Habgood did receive such a memo

from Mr. Majewski.  A copy of the memo along with an initial letter was sent to the

June 19, 2007                                                           Zoning Hearing Board – page 13 of 21

 

 

homeowners whose property was in question.  Letters were sent on 3/15/07, 3/27/07, and

4/13/07 regarding this matter.  The letters were marked as follows:  The letter dated

3/15/07 was marked as Exhibit T-1; the letter dated 3/27/07 was marked as Exhibit T-2;

and the letter dated 4/13/07 was marked as Exhibit T-3.  Mr. Habgood stated Exhibit T-1

is the letter dated 3/15/07 to William and Denise Patskanick and attached was a copy of

the Section of the applicable Ordinance.  In the letter they were requested to contact the

Township within five business days upon receipt of the letter regarding this issue.

Mr. Habgood stated T-2 confirmed the meeting that was held with the Applicants on

3/23/07 regarding this issue.  T-3 was a letter confirming a phone conversation with the

Applicant that was held on 4/11/07 indicating that they were going to choose the third

option Mr. Majewski had suggested to resolve the issue.  Mr. Habgood stated the

Applicant had informed them that he was going to proceed with Option #3 which would

require a Grading Permit to be submitted for review.  Mr. Habgood stated a Grading

Permit was submitted to the Township for the engineer to review.  This Application was

denied by the Township engineer. 

 

Mr. Donaghy asked if Mr. Habgood dealt with this Applicant in the same manner he

would with any Applicant, and Mr. Habgood stated he did. 

 

Mr. Donaghy asked the basis for issuing the Order shown in the letter dated 4/25/07

which was marked as Exhibit A-3; and Mr. Habgood stated the Applicant was advised in

some of the prior letters of the time limits he needed to meet advising the Township

which Option he would choose to resolve the issue, and when he did not meet those time

limits, the Township issued a Violation Notice.  Mr. Donaghy asked if Mr. Habgood

believed that a Permit Application was required for the work done, and Mr. Habgood

stead he does feel one is required based on the comments from the Township engineer as

to the work that was done on the site.

 

Mr. Kim asked when a Permit is required.  He noted he may decide to refresh  his mulch

with five yards of materials and asked if this would require a Permit.  Mr. Habgood stated

as to a Grading Permit, this would be determined by the Township engineer based on

information submitted to the Township.  Mr. Kim stated it appears this is a subjective

interpretation.  Mr. Habgood stated if a resident approaches the Township with work they

want to do on a property such as grading or drainage issues, they submit this to the

Township engineer who decides whether or not a Permit is required.

 

Mr. Donaghy stated a good deal of this case does revolve around the interpretation of the

applicable Ordinances, and he does plan to address this upon completion of the

testimony.

 

Mr. Kim asked if he graded his rear yard following a large rain storm in order to correct

damage, would he need a Grading Permit.  Mt. Donaghy stated the Township Ordinance

 

June 19, 2007                                                           Zoning Hearing Board – page 14 of 21

 

 

provides at least three instances were Grading Permits are required.  He stated there is a

separate Grading and Excavation Ordinance and any grading or filling as defined in the

Ordinance that is undertaken requires a Permit.  There was question were this Ordinance

was located as it is not in the Zoning Ordinance.

 

Mr. Patskanick stated he has a copy of Chapter 116 – Grading and Excavating and

following the strict letter of the Ordinance, no Permit is required.  He stated he is a

mechanical engineer.  He submitted a copy of this Chapter to the Board and asked that

they note what he has highlighted in yellow.  Mr. Donaghy stated what is highlighted in

yellow presumes that the testimony that was presented was that there was less than 1,000

square feet of fill or excavation,  and he feels that there is not any accurate testimony or

evidence that this is the case.  He stated if there is an excess of 1,000 square feet clearly

the exceptions would not apply.  He stated they plan to address this when

Mr. Majewski testifies. 

 

Mr. Toadvine stated the Board is here on the Zoning Ordinance and this Ordinance is not

under this Board’s purview.  Mr. Donaghy stated it is to the extent that it is incorporated

by reference in Section 200-89D6.  He stated in addition Section 200-51B of the Zoning

Ordinance has a specific prohibition against site alteration, regarding, filling, or clearing

of trees, or vegetation; and a Permit is required.  Mr. Toadvine stated he was not cited for

that.  Mr. Donaghy stated he feels they should address that issue as well at this time

rather than have to issue another citation. 

 

Mr. Kim stated as a homeowner, he has a Grading Plan which was approved by the

Township.  He asked if something happens to his property, could he not restore it to the

Grading Plan.  Mr. Donaghy stated this is not the issue as in this instance there has been a

change to the grading from what was on the site when the Applicants acquired the

property.    Mr. Donaghy stated the Township cannot be in the position of letting people

make their own determination as to whether they can re-grade their sites.  He stated a

determination would need to be made whether they are within the limitations regarding

areas of fill and excavation; and if landowners do not come in and submit an Application,

they could do re-grading which may damage adjoining properties and change the flow of

water which is what happened in this instance whether it was intentional or not.

 

Mr. Malinowski stated it appears there was a Violation and a meeting, and it was agreed

that Mr. and Mrs. Patskanick would proceed with Option #3 to restore the grading to the

way it was.  They were advised they needed a Permit to restore the grading, and when

they applied for it, they were denied.  He questioned why they are here if they agreed to

restore the land.  Mr. Donaghy stated as Mr. Majewski will testify, once the Permit

Application was submitted, it was turned down because it was not adequate to indicate

what the work was going to be.  He stated if the Applicants were to now say that they are

prepared to go forward and complete the Application, they could hold this matter in

abeyance.  He stated the Applicant is now saying he does not have to get a Permit, that he

June 19, 2007                                                           Zoning Hearing Board – page 15 of 21

 

 

can change the grade of the property, change it back, or do whatever he wants without the

need for a Permit. 

 

Mr. Kim stated it appears that everything would require a Grading Permit.  He stated if he

planted a small tree, it seems as if he would need a Grading Permit.  He stated it does not

make sense that if you are putting in a yard of mulch that you would need a Grading

Permit.  Mr. Donaghy stated they are not here over planting one tree as this was a

substantial regarding/fill of a rear yard area which has adversely affected the flow of

water and has impacted an adjoining neighbor.  He stated this is a the type of a situation

where a Grading Permit is applicable or at least an Application to establish whether or

not a Permit is required.  He stated the process was moving along; and if the Applicant

would follow through on what he had submitted and make the changes in the Plan that

have been requested, he could move ahead and get a Permit and do the work. 

 

Mr. Smolow stated he agrees with the Solicitor that the issue is whether or not a Permit

was required.  He stated they are dealing with a material change in grade and not

something deminimous.  He feels the Zoning Hearing Board will have to determine if

there was a material change in grading where a Permit would be required.  He added

there was a suggestion in the questioning of the witness, that the Applicant was restoring

the property; but there is no evidence that the grade of the property had ever deteriorated

or changed in any way from what was originally approved by the Township.  He stated

sometime after 9/06 there was a substantial change in grade, and there has been no

evidence that he was restoring it to a previously-approved grade.  Mr. Smolow stated

there was always a swale in this area, and it did work prior to this time.  He does not feel

what was done was a restoration of a grade.

 

Mr. Toadvine stated this is Argument, and they should continue with Testimony at this

time.

 

Mr. Donaghy stated he would like to address some of the Ordinance issues, after

Testimony is taken.

 

Mr. Majewski stated he is a licensed professional engineer employed by Schoor DePalma

and is the Township engineer.  He is familiar with the 268 Wild Orchid Court property,

and he did visit the property in March, 2007 shortly after they received the complaint. 

He stated when he was on the site, it appeared a large portion of the property had been

disturbed and reseeded.  Back near the property line it appeared that some fill had been

placed as you could see at the fence line where the property suddenly dropped off at the

rear property line.  Mr. Donaghy asked if there was any indication as to how much the

surface of the property had been raised, and Mr. Majewski stated at the fence it was

approximately 5”.  The rest of the property it was impossible to ascertain how much area

had been filled in.  Mr. Majewski stated he prepared a letter to the Code Enforcement

Officer which is that whish is attached to Exhibits T-1 and T-2. 

June 19, 2007                                                           Zoning Hearing Board – page 16 of 21

 

 

Mr. Donaghy asked if photos were taken of the site, and Mr. Majewski stated the initial

site visit was done by one of the Schoor DePalma site inspectors who took pictures and

reported back to Mr. Majewski who subsequently visited the site to see the situation for

himself.  Mr. Majewski stated he does have larger photos of the ones contained in his

letter.  The packet of photos taken on 3/14/07 were marked as Exhibit T-4 which is seven

pages of photos.  Mr.  Majewski described the photos. 

 

Mr. Donaghy asked Mr. Majewski from his observations, what appeared to have occurred 

in the rear of the property in question; and Mr. Majewski stated it appeared that grading

work had been done, the earth was disturbed, re-seeded, and there was hay mulch on a

large area.  He estimated the area to be approximately 150’ by 50’ or more. 

 

Mr. Majewski stated he subsequently met with the Applicants and with the Code

Enforcement Officer.  He  made a proposal as noted in the letter dated 3/27/07 attached to

T-2.  Subsequently an Application was received by the Township proposing that a Permit

be issued for the restoration of the property.  This Application was not approved and two

reasons were cited for the denial.  Mr. Majewski stated the first reason was that under the

Category on the Building Permit Engineering Phase Form that the Township has filled

out for Grading Permits – under Lot Grading there is an item called “Spot Elevations,”

and although they had shown spot elevations along the property line, they did not show

the limit of grading required for restoration. This would be necessary in order to

determine what they were doing.  The other reason was that Bucks County Conservation

District approval is required for all earth disturbances greater than 1,000 square feet; and

based on Mr. Majewski’s observation, it appeared that 1,000 square feet had previously

been disturbed and would have to be disturbed again in order to restore the area back to

the way it was.  Mr. Majewski stated in order to amend the Application, the Applicant

would have to show a limit of disturbance line on the Plan and show how much they were

restoring and the Township would then confirm whether or not that would meet the intent

of the Ordinance.  Mr. Donaghy asked if this would require an engineer to revise the

Plan, and Mr. Majewski stated the Township would accept a hand-drawn line by the

Applicant.  Mr. Majewski stated if it was determined that Bucks County Conservation

District Approval was required, they would need to have an engineer prepare a Plan to

show the required silt fencing, sequence of construction, and some typical notes that are

shown on most standards Plans. 

 

Mr. Donaghy stated there was earlier testimony from the Applicant about the amount of

work done in the rear of the property particularly with regard to the swale; and

Mr. Donaghy asked if Mr. Majewski had done any calculations to indicate how much

area was disturbed.  Mr. Majewski stated based on the information supplied by the

Applicant, a 30 cubic yard area of dirt spread out over a 5” depth would be 1,929 square

feet of fill.  Mr. Donaghy asked the impact if less than 30 cubic yards of fill were used in

that location; and Mr. Majewski stated this would reduce the amount of fill brought into

the property; however, based on his observations, it appears that greater than 1,000

June 19, 2007                                                           Zoning Hearing Board – page 17 of 21

 

 

square feet of earth was disturbed based on the fact that you can see bare earth, new seed,

and mulch spread out on the property.

 

Mr. Donaghy asked Mr. Majewski if he has received any information from the Applicant

that would permit him to determine if the grading and fill undertaken by the Applicant

meets any of the exceptions under the Grading and Excavation Ordinance, and

Mr. Majewski stated he has not. 

 

Mr. Donaghy stated he had asked the Applicant if he would have an objection to the

Township engineer performing a soil log on the site, and Mr. Donaghy asked

Mr. Majewski the purpose of a soil log.  Mr. Majewski stated it is the contention of the

Applicant that he only disturbed an 80’ by 10’ area; and based on the amount of fill

brought in and Mr. Majewski’s observations, Mr. Majewski stated it appears that more

than that was disturbed.  If they did a soil log on the site past the area the Applicant

claimed to disturb, they can tell from the soil profile whether or not he in fact disturbed

more than 1,000 square feet. 

 

Mr. Donaghy noted the Applicant’s testimony regarding the removal of trees and

underbrush.  Mr. Donaghy stated Mr. Patskanick testified that approximately fifteen

trees, two of which were 6” or greater in caliper as well as undergrowth.  Mr. Donaghy

asked how this would effect the property being considered a woodlands.

 

Mr. Malinowski stated this issue is not before the Board.

 

Mr. Donaghy disagreed because it is part of the Ordinance provision that was cited in the

Order.

 

Mr. Majewski stated that one of the criteria that requires a Zoning Permit review and

approval is if there is altering, regarding, filling, or clearing of vegetation in one of the

following areas which include floodplain soils abutting the Delaware River, ponds,

wetlands, Waters of the Commonwealth, steep slopes, or woodlands.

 

Mr. Malinowski stated it appears that they are seeking to declare the back yard a

woodlands.  Mr. Donaghy stated the point is that it may have been one before the trees

were cleared.  Mr. Toadvine noted the picture, and questioned if that was a woodlands.

Mr. Kim asked who classifies the woodlands.  Mr. Majewski stated the Zoning Ordinance

has a definition of woodlands under Section 200-51B6 as follows:  “A woodland is one

quarter acre or more of wooded land where the largest trees measure at least 6” in

diameter at a height of 4 ½’ from the ground and the associated intermediate layers in

these areas included the understory shrubs and smaller trees, the ground layer of

herbaceous plants, and the forest floors.”  Mr. Toadvine stated it appears it would not

qualify.  Mr. Majewski and Mr. Donaghy disagreed and stated it would qualify. 

 

June 19, 2007                                                           Zoning Hearing Board – page 18 of 21

 

 

Mr. Toadvine stated the entire lot is only 10,000 square feet.  Mr. Majewski stated the

woodland is not just on an individual lot but is the whole contiguous woodlands in the

area.  He stated it does not have to be a quarter acre on each individual lot but is the

cumulative amount of woods in the area.  Mr. Donaghy stated each property owner could

not take down their portion of the woodlands.  

 

Mr. Toadvine stated the Applicant testified that he did not taken down any trees in excess

of a specific caliper.  Mr. Donaghy stated the testimony was that two of the trees taken

down were 6” or greater in caliper.  Mr. Malinowski stated the property was vacant for

nine months; and if a property is not taken care of, it could turn into a woodlands. 

Mr. Majewski stated the Board is looking at this on a lot by lot basis, and if that were the

case every homeowner in the area could cut down every tree and it would result in cutting

down several acres of woodlands; which is not permitted by Ordinance..

 

Mr. Donaghy marked Exhibit T-5, and Mr. Majewski stated this is a 2005 aerial

photograph from the Delaware Valley Regional Planning Commission.  The Applicant’s

house number has been superimposed on top of the house, and it shows the wooded

corridor between the lots on Wild Orchid Court and Cinnabar Lane.  Mr. Majewski stated

based on the definition of woodlands in the Ordinance, this would meet the criteria.  He

stated there is an area of approximately 700’ long by 40’ to 50’ wide that is wooded and

has a continuous canopy with required tree size that would meet the definition of

woodlands in the Ordinance.  He stated this is why they were ultimately cited for needing

a Grading Permit because they did disturbance and clearing of vegetation in the

woodlands so that Mr. Habgood cited a Grading Plan was needed. 

 

Mr. Toadvine stated it appears that they are now stating the reason they needed a Permit

was because they cleared in woodlands; and Mr. Majewski agreed.  Mr. Toadvine stated

it appears that if this had not been a woodlands, they would not need a Permit, and

Mr. Majewski stated he believes they would still have needed a Permit under the Grading

Section 116 because they had 1,000 square feet of disturbance; however, the application

of Section 200-89D6 applies to woodlands and wetlands.  In that Section it also has a

second clause that references Chapter 116 but also states, “…and it shall be unlawful to

disturb, modify, divert, block or effect the natural overland or subsurface flow

stormwater within the Township without first securing a Zoning and Building Permit. 

He stated if they are over 1,000 square feet Chapter 116 applies; and even if they were

under 1,000 square feet, the second clause would apply because they did divert the

natural overland flow of water in a woodland.

 

Mr. Kim stated if they did a soil log they would then have real data; and Mr. Majewski

stated they would also then know if they were under or over 1,000 square feet which

would determine whether or not Bucks County Conservation District approval would be

required. He stated if it was under 1,000, they would not need BCCD approval; and they

could then just draw in the limit of disturbance.  He added in either case a Grading Permit

June 19, 2007                                                  Zoning Hearing Board – page 19 of 21

 

 

would be required as they blocked the flow of water in the area; and because it is a

woodlands, that Section of the Ordinance is applicable.

 

Mr. Bamburak asked who would be responsible for paying for the soil log, and

Mr. Majewski stated typically this is something the Township would pay for.

Mr. Bamburak stated he feels this would be a waste of money.  Mr. Kim stated the soils

log would provide scientific data whether or not 1,000 square feet had been disturbed.

Mr. Majewski stated since he did not see the property prior to the work being done, he

cannot ascertain how much earth needs to be removed to restore it back to the way it was.

Mr. Malinowski asked if “disturbance” is defined as the addition of more fill into a

property; and Mr. Majewski stated “disturbance” is defined by the DEP and  is any

removal of vegetation; and in this instance there was obviously much more than 1,000

square feet of disturbance initially as he indicated he re-graded and re-seeded his entire

yard.  Mr. Majewski stated technically at that time, it would have required a Bucks

County Conservation District approval; however, at the time Mr. Majewski observed it,

Mr. Patskanick had re-seeded it and restored it back which is why they did not forward

anything onto Bucks County Conservation District as a Violation as it was currently

re-vegetated and back the way it should have been. 

 

Mr. Malinowski asked if a homeowner re-seeds their yard are they required to go to the

Bucks County Conservation District; and Mr. Majewski stated if you remove all of the

grass from your property and re-seed it, technically this requires Bucks County

Conservation District approval.  He stated the concern is that if this were done and there

was a heavy rain before there was an opportunity to re-seed and have the grass grow

back, all the soil would erode, clog the storm drains, and go into the streams.

 

Mr. Patskanick stated this is the first time he has heard about the woodlands, and he

understood that the average tree had to be greater than 6” in caliper and asked if anyone

has verified that these were in fact 6” in caliper.  Mr. Majewski stated that they could not

verify this because the trees have been cut down but noted Mr. Patskanick testified that

two trees were greater than 6” in caliper; and the definition in the Ordinance does include

the understory, shrubs, and smaller trees.  Mr. Patskanick stated he is questioning the

definition of woodlands since he understands that a woodlands must be one quarter acre

or greater with the average tree being 6” caliper measured four feet from the ground.

Mr. Majewski stated it is actually the “largest” trees not the “average.”  Mr. Majewski

stated there is also a secondary definition under which this would fall that is part of

Section 200-51D6a which states “woodlands are also a grove of trees forming one

canopy where ten or more trees measure at least 10” in diameter at a height of 41/2’

above the ground; and he feels under either criteria, it would meet the definition of a

woodlands.

 

 

 

June 19, 2007                                                           Zoning Hearing Board – page 20 of 21

 

 

Mrs. Patskanick stated if they were to survey the neighbors where this “supposed”

woodlands is, she questions if they would know it is a woodlands.  She asked how the

Township notifies the residents that they are in a protected area.  She stated this area is

not posted and she questioned how someone in the community would know this. 

Mr. Majewski stated people should be aware that they should check with the Township

whenever they do work on their property.  Mrs. Patskanick stated she does not feel most

of the neighbors know that they are in a woodland area. 

 

Mr. Patskanick asked Mr. Majewski if it is possible to get approval from the Bucks

County Conservation District without getting a Permit for grading.  Mr. Majewski stated

according to the Ordinance you would have to submit to the Township for a Permit. 

Mr. Toadvine asked if the Conservation District will issue a Permit without having first

seen a Permit from the Township.  Mr. Majewski stated he feels they would. 

Mr. Patskanick noted Chapter 116 - Grading and Excavations regarding the exceptions to

the Permit.  Mr. Malinowski stated Chapter 116 is not part of the Zoning Ordinance.

Mr. Patskanick stated this was what he was cited for not following.  Mr. Majewski stated

it was also for diverting and blocking the flow of water.  Mr. Patskanick noted Chapter

116 Exceptions – Item D and stated according to it, he feels he is a single-family house

site, 10,001 to 18,000 square feet, maximum gradient, and maximum fill without Permit

200 yards; and stated according to this he is allowed to bring in 200 yards onto his

property without any Permit as long as he maintains the gradient.  He noted 116-14 and

stated all he must do is keep 3’ from the property line.  He stated if he pulls the swale

back, which he feels the engineer or Code Official could have advised, he would not have

to be present at the Zoning Hearing Board. 

 

Mr. Majewski stated Section 200-89D6 clearly states, “It shall be unlawful to modify,

divert, block, or effect the natural overland flow of stormwater.” 

 

Mr. Toadvine stated he is willing to correct that.  Mr. Patskanick asked how he did this.

Mr. Toadvine stated he kept the water on Mr. Bass’s property. 

 

Mr. Patskanick stated if he reads the exceptions to the Grading Permit, he feels if he pulls

back 3’ it would be permitted, and there would not be an issue.  Mr. Majewski stated he

does not feel this would be the case since he has filled in the property and blocked the

flow of water.  He stated from what he understands from both Mr. Patskanick and

Mr. and Mrs. Bass both of the properties had a water problem with water laying in the

rear property line area; and now with the fill brought in by Mr. Patskanick, more of it lays

on the Bass property and less on Mr. Patskanick’s.  Mr. Patskanick stated the elevations

show that they are fairly even and the only place he is high is along the fence; and if he

pulls this back 3’, he would be legal.  Mr. Majewski disagreed.

 

Mr. Toadvine stated the issue before the Board is whether the letter was issued

appropriately. 

June 19, 2007                                                           Zoning Hearing Board – page 21 of 21

 

 

Mr. Lawrence Ortman, 292 Wild Orchard, stated he is five houses northwest and has

been a resident since 2/86.  He stated he never had a flooding problem until seven to eight

months ago.  He stated he now has standing water in his rear yard.  He stated he did not

know what was the cause until he received the letter from the Township, and now he

understands why this has changed.

 

Ms. Charlotte Lawson, 262 Wild Orchid, stated she adjoins the subject property and

water has always been a problem particularly in the back.  She stated she has seen ducks

swimming there.  She stated she has an ugly shed adjacent to her property and asked a

landscaper to install plantings, and he indicated the Township should never have allowed

the houses to be built without adequate drainage.

 

Mr. Malinowski declared the Public Hearing portion over and stated the Chair would

entertain a Motion. 

 

Mr. Donaghy stated he would like to make closing comments. 

 

A short recess was taken at this time.  The meeting was re-convened at 10:20 p.m.

 

Mr. Malinowski stated with regard to Mr. Donaghy’s request for further oral argument,

he feels the Board understands all the issues; and in consultation with their Counsel, feel

that no further argument is necessary from any side.

 

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

sustain the Appeal. 

 

There being no further business, Mr. Malinowski moved, Mr. Bamburak seconded and it was unanimously carried to adjourn the meeting at 10:25 p.m.

 

                                                                        Respectfully Submitted,

 

 

 

                                                                        Paul Bamburak, Secretary