MARCH 2, 2004



The regular meeting of the Lower Makefield Township Zoning Hearing Board was held on Tuesday March 2, 2004 in the Lower Makefield Township Municipal Building.  Ms.  Kirk called the meeting to order at 7:33 p.m.



                                                                                                RUDOLPH MAYRHOFER

                                                                                                DAVID MALINOWSKI

                                                                                                DARWIN DOBSON

                                                                                                JOHN HRICKO


                                    OTHERS                                             ALLEN TOADVINE

                                                                                                PETE STAINTHORPE

                                                                                                JOHN KOOPMAN

                                                                                                JIM MAJEWSKI

                                                                                                SALLY DORNER




Edward Murphy, Esq. appeared together with Joe Marrazzo (applicant) and Paul Wojciechowski.



Giovanne M.  Raffaelli, Esq.  of Curtin & Heefner, 250 N.  Pennsylvania Avenue, Morrisville PA 19067,, requested party status on behalf of her clients James/Jeanne Bray, 12 Terracedale Road, Linda S.  Smith, 2103 N Crescent Blvd and Stuart/Susan Ochiltree of 2105 N Crescent Blvd


Ms.  Kirk asked if any one else was requesting party status.  She explained rights under filing for party status.  Ms.  Raffaelli stated there may be people who want to speak in opposition to the application but do not want party status.  Ms.  Kirk advised people will be able to make comment after testimony has been completed.


Mr.  Koopman advised the township requests party status. 


Mr.  Murphy asked the location of the properties owned by the individuals requesting party status as it relates to the property under appeal.  It was noted that the Bray property is directly across Terrace Road from the property in question.  The Smith property is adjacent to the subject lot.  Plan prepared by application shows the Smith property bordering the property where the setback variance is being requested (eastern property line).


Ms.  Raffaelli advised Mr. & Mrs.  Ochiltree are not present this evening de to a medical condition. This property is across the from the Smith property and catty-corner/diagonal from the subject lot.  It is directly adjacent to the Bray property.  Mr.  Murphy stated he has no objection to the party status for these three parties represented by Ms.  Raffaelli.


Mr.  Murphy advised he was not involved in the preparation of the application or appearances when continuances were requested.  Several elements of the requested relief have been modified since the application was submitted.  Mr.  Kirk advised this matter has been scheduled for several different hearings at the request of the applicant or at the request of the Board has been continued two times, at least.


Original Application was marked as Exhibit A-1.  Plan accommodating application prepared by AllCounty dated 11/11/03, with no revisions entitled “grading plan for Lot 37, Delavue Manor” was marked as A-2.  Grading plan originally dated 11/11/03, last revised 3/2/04 was marked as exhibit A-3.  Ms.  Kirk suggested all exhibits be marked at this time.  Single Sheet plan prepared by AllCounty dated 3/1/04 “Natural Resources Plan” was marked as Exhibit A-4.  Single Sheet prepared by AllCounty dated 3/1/04 entitled “Typical Building envelope plan” was marked as Exhibit A-5.  Single Sheet prepared by AllCounty dated 3/1/04 “Special setback plan” was marked a Exhibit A-6.  Single Sheet plan prepared by AllCounty dated 3/1/04 “grading plan” was marked as exhibit A-7.  Single Sheet plan prepared by AllCounty dated 3/1/04 “building square footage plan” was marked as Exhibit A-8.  Jurisdictional Determination letter issued by Army Corps of Engineering regarding wetlands dated 2/4/04" was marked as Exhibit A-9. 


Ms.  Kirk noted submitted with the application was 11/28/03 letter from Bucks county Conservation District regarding subject lot.  Mr.  Murphy advised he is unfamiliar with this document and reviewed same.  After review, Mr.  Murphy advised he does not intend to offer this in testimony. 


Series of 4 photographs identified as Lot 37 Delavue Manor dated 3/2/04 was marked as Exhibit A-10. 


Mr.  Murphy explained the changes made to the original application which are reflected in A-3.  These involve extend of impervious surface on the lot.  Original application requested variances to permit impervious to 33.8% and the ordinance requires 29%.  Calculations of impervious in the original application was in error.  Impervious has been revised to reflect proposed impervious of 9.5% which is significantly below impervious permitted by ordinance.  Second variance requested is disturbance of woodlands.  Original application requested variance to permit disturbance of 46% in lieu of 30%.  Current plan shows proposed disturbance of 41%.  Mr.  Murphy amended application  to reflect current calculations shown on A-3.


Mr.  Murphy called Mr.  Paul R.  Wojciechowski to testify.  He advised that he is a land surveyor and planner employed by All county Inc.  which is a corporation which provides planning and surveying services.  Mr.  Wojciechowski gave information on his background.


Mr.  Wojciechowski advised he prepared the plan which is the subject of the application (A-3) and is familiar with the property in question.    The property is 33,709 sq.  ft.  and maintains frontage on two private and public streets (Terracedale and Morningside).  Terracedale is a paper street and never improved.  The recorded plan indicates the roadways and lots were created in 1929.  Las a result of never having been improved it shows as a paper street on A-3.  Calculations of lot size does not include portion of Terrracedale in the calculations.  Mr.  Murphy asked Terrracedale is not improved ½ of the right of way would be owned by the application. :Mr.  Wojciechowski stated this is a legal question. .  He noted the property is a corner lot because the angles of two right of way lines create less than 135 degree angle.  This property is located in the R-1 zone.


Referring to Exhibit A-4 which was prepared by Mr.  Wojciechowski advised the property slopes from the northeast to the southwest and runs at 4 % through the property.  Property slopes toward Morningside from Upper right hand side of the property.  On the property there is an area of wetlands in the center of the western portion of the property.  Surrounding the wetlands is 25' wetland buffer which is 100% protected.  Balance of the site is woodlands. 


Regarding the wetlands, Mr.  Wojciechowski advised  A-3 and A-4 identified surveyed location of the wetlands on the lot which was surveyed by his firm.  A-9 was issued by the Army Corps of Engineers and corresponds to the location of the wetlands shown on A-3 and A-4.  Regarding the wetland buffer which is a 25' buffer, Mr.  Wojciechowski explained he decided that this would be a 25' because they gave a copy of the pertinent section of the ordinance to the wetlands company and they determined what buffer would be required.  The recommended 25' which is what they put on the plan.  this is not an arbitrary amount but pursuant to the ordinance requirements.  He noted there are no other natural resources on the property other than woodlands.  On A-4 there is only one area in the lot which does not have woodlands.  There is also a lawn area.  Referring to A-5, Mr.  Wojciechowski explained this depicts the building envelope required by ordinance in considering resource protection standards.  This shows minimum front yards (along Terracedale and Morningside).  Township ordinance requires any corner lot as two front yards.  There are 40' front yards along both streets.  There is also one side and one rear yard.  Exhibit A-05 reflects this.    Along the Smith property there is a 40' setback and 15' along the southern portion of the site (Rosen property).  A-5 would be typical building envelope in the R-2 if they did not have to worry about any natural resources limited by township ordinance.


Referring to A-6< Mr.  Wojciechowski advised the special setback plan appears to be similar to A-4 and 5 and shows wetlands, wetlands buffer and woodlands plus also includes area of building set back considering special setbacks from resource protection.  This is the building envelope.  Mr.  Wojciechowski explained he determined the building envelope by using A-8 tied together average width of all adjacent homes and came up with measurement of 70' which he felt was average.  He used this 70' wide building line to determine the side yard, front yard and rear yards.    All the setbacks (front side and rear) have to be clear of resource protection land.  He established a lot considering amount of wooded disturbance he was allowed.  He worked out a lot and then worked out the setbacks from the resource restricted areas back into the lot to determine the building envelope.  If he applied all the setback limits to the lot the available envelope would be limited to that Section A on A-6.  Dimensions are 8' wide on the west and on the east would be 18' wide.  Total square footage is 910 sq.  ft.  In his professional judgment he believes he could not build on the building envelope as depicted on A-6.


Referring to A-7, Mr.  Murphy asked why 40' shown on Smith side but not the same 40' rear yard on A-6.  Mr.  Wojciechowski advised A-5 shows the property building envelope with the proper building setbacks.  In determining which property line has the front and side setbacks, the rear would be the furthest line from the road.  A-5 shows the rear line correctly by definition of the ordinance.  A-6 shows it as a side yard.  After positioning the house on A-6 he looked in the ordinance and under front yard, rear yard and side yard the definition of the front yard is the yard in front of the house, etc.  Reason why they made it a side yard was to keep it from further encroaching into the woodlands.  They are requesting relief from this.


Referring to A-5 contemplates that this building envelope would have a home oriented toward Morningside Road.  A-5 contemplates the home coming toward Terracedale.  Reason for orientation was because he cannot cross the wetlands without further relief from the Zoning Hearing Board and would require disturbance of more trees.  A-6 assumes orientation to be toward Terracedale and the property line attached to the Smith’s property would be a side yard.


A-7 shows wetlands.  This also shows building envelope which is identical to the same dimensions and plans which are part of A-3.  Referring to A-3 and A-7, Mr.  Wojciechowski described the non conformities presently existing.  He noted the net lot area is required to be 12,500 and they have calculated 9,434 (note 1, Exhibit A-3).  The lot size is in excess of 33,000 sq.  ft.  without including portion of Terracedale.  Minium net lot area of 12,500 is required.  But this lot has a buildable site area of 9,434.  sq.  ft.  He explained 33,000 was gross net area.  After deducting 100% of wetlands, 100% of wetland buffer and 70% of woodlands the result is 9,434 sq.  ft.  These calculations are reflected on Exhibit A-3.  It also shows the amount to be protected and also shows the square footage attributable to each of the resources on the lot.  The total of protected area is 24,275 sq.  ft leaving 9,434 sq.  ft net buildable site area.    If nothing is done on the property it is non conforming.  To his knowledge this is only existing g non conformity on the property today.


Regarding location of home on the lot, Mr.  Wojciechowski testified that to install driveway through to Morningside would require additional disturbance of woodlands.  Conditions on A-3 contemplate disturbance of 41% of wooded site.  Disturbance is a calculation only and does not reflect the number of trees removed.  He noted the undergrowth may not be trees.  He did count trees they are taking out and come up with 14 trees over 6" in caliber.  Rough count on the entire site is there are approximately 80 trees.  The 14 trees to be removed are identified on A-3.    For ordinance purposes it would appear that they are removing more based on 41% number.  He explained the ordinance protects woodlands and woodland association and he can disturb 40% woodlands without cutting trees down.  To determine the woodlands they have located the canopy of the trees and put it on paper and called everything from the tree line woodlands.


Mr.  Murphy noted the home is to be partially located in the clear area on the site.  This was done in location to minimize tree disturbance.  Regarding driveway, this would be extended out toward Terracedale.  This location was designed to take advantage of partial clearing of the trees.  Ms.  Kirk noted the driveway is leading to Terracedale.  She asked about section of the ordinance which requires principal building to access a public or improved roadway which was not shown in the application submitted.  (Section 200-64).  Mr.  Murphy advised this is item which relief is being requested.


Mr.  Mayrhofer questioned the trees.  Mr.  Wojciechowski explained grading plan was prepared to see if they could drain around the house and how much area they would need to clear.  There is no grading necessary in the back yard and therefore the backyard is shown as not being disturbed.  By ordinance they are showing lines of disturbance and these are areas which could be disturbed by a buyer.  Realistically someone may want to put in a patio.  Mr.  Mayrhofer asked if the buyer would need to come back to the Zoning Hearing Board for a patio, etc.  Mr.  Wojciechowski advised they would not. 


Mr.  Koopman noted they variance they are requsting would allow disturbance up to the line.  Mr. Murphy stated Section 200-61C states you can not measure minimum front, side or rear yard except from the edge of disturbance so you have to presume that the area of the rear yard of the lot is going to be disturbed.  This is a mathematical calculation because it does not really represent the amount proposed to be disturbed.  They have to assume more disturbance than might occur. 


Mr.  Mayrhofer questioned the color differentiation on the plans regarding the driveway.  Mr.  Wojciechowski explained the cross hatched area represents the construction entrance.    Mr.  Koopman asked if this is proposed to remain as a turn around.  Mr.  Wojciechowski advised it will remain as a turn around but will be used for construction to keep mud off the paper street.  This area will remain as macadam.


Regarding A-8, building square footage plan, Mr.  Wojciechowski advised he prepared the plan to show the size of the proposed home in relationship to adjoining homes to indicate it is somewhat the same size.  A-8 shows footprint which is identical to A-03 and A-7 which is 2,135 sq.  ft.  And includes a two car garage.  There is also a second floor which will cover the entire area of the footprint.  Square footage footprint  of surrounding homes vary in size from 1,200/1,400 to 3,7000/4,000.  The 4,000 home appears to be catty-corner from this parcel. 


Regarding Terracedale, Mr.  Wojciechowski explained this is approximately 10' wide.  The westerly side is a stone driveway and the easterly side is paved a driveway with as shown on A-8.  In front of the subject property there is a 10' wide street.  Further east this is paved for 10' wide.  A-3 does not call for improvements of terracedale because they are aware of fact that determination of improvements will be made by the Township Engineer and township and they realize there will have to be some paving done.  There are storm water and erosion problems at this intersection.  If application were approved they would try to set up a meeting with the Township Engineer.  Ms.  Kirk asked if this would be a land development application.  Mr. Murphy advised it would not.  This would be a building permit application and township staff have commented on improvements to paper streets.  He explained there have been other cases where improvements have been required to be installed.  Mr. Koopman advised these were addressed at the Zoning Hearing Board level.  Mr.  Murphy advised they have o objection to addressing this at this time.  Ms.  Koopman asked if the applicant plans to address and resolve those issues to the Township engineers satisfaction. :Mr.  Murphy advised they are willing to do this and would agree to this as a condition to the grant of the variances. 


Mr.  Koopman asked what if the Township Engineer wants road improvements. :Mr.  Murphy advised they would not agree to this .  There would have to be a dialogue.  They would be willing to make some improvements but not improve the road to township standards.  They do not believe the township has the right to require any of it. Mr Koopman stated the township has a zoning ordinance requiring access to street.  Mr.  Murphy advised they are asking relief from that section of the ordinance. 


Mr.  Wojciechowski stated this property will be served by public water and sewer and they have correspondence from Mr.  Hoffmeister the sewer administrator, which letter was marked as A-11.  This letter confirms there is capacity in the township system to provide sewer to this lot. 


He noted he has been told there is a line on Morningside which they would tap into.  They would bring it up to Terracedale prior to improving the driveway. Ms.  Kirk stated they are talking about bring the line from Morrisville to Terracedale to avoid disturbance of woodlands and wetland.  They would not put the line in where they would have to cut trees down but may have to disturb the undergrowth.


Referring to A-6, Mr.  Koopman noted the distance between the proposed house and Smith property is 15' and this would be a side yard.  He noted the ordinance requires this be the rear yard.  He asked if they area requesting a variance from the same.  Mr.  Wojciechowski advised they are.  Mr.  Koopman noted if they comply with the rear yard requirements and make the distance between the building envelope and Smith property 40' then they could refer to the Rosen property line as a side yard.  He asked if this would give them more ability to make the building envelope more rectangular.  They are using 40' side yard setback from the Rosen property and if they went to 15' side they would be picking up 25'.  He asked if they would be able to widen the building envelop by 25' and make it more square.  Mr.  Wojciechowski advised he would have to have larger woodland disturbance.  Mr.  Toadvine thought Mr.  Koopman was asking about the building envelope and went to the fact that if this building envelope was oriented with the rear yard toward the Smith property and the side yard toward the Rosen property this would create a larger building envelope.  However he believes reason the width of the envelope is the way it is because it is the measuring of the distances from the edge of the natural resource protected area. :Mr.  Wojciechowski agreed noting they will not increase the building envelope no matter how you arrange it and may in fact decrease it.


Mr.  Mayrhofer stated the only thing that would move is the easterly line which would make a smaller building envelope. 


Mr.  Koopman noted Mr.  Wojciechowski referred to a plan which calculated the setback form the natural resource protected areas.  Mr.  Wojciechowski advised he does not have this with him this evening.  He created a building lot in conformity with the natural resource ratios to establish the building envelope.  He does not have the plan which reflects this. 


Mr.  Koopman asked if there is a plan which shows where the 59% of the woodlands proposed to be protected is located.  Mr.  Wojciechowski advised this is located on A-3.


Referring to A-7, Mr.  Koopman noted there is area called limit of disturbance.  The variances requested would allow disturbance up to those areas without additional relief from the township.  If someone bought the house with the variances sought, the proposed tree line on A-7 would be removed and woodlands cleared back to 10' from the Rosen property line.  This could be done without permit.  The same with the limit of disturbance on the west side.  Mr.  Wojciechowski confirmed this is correct.  It was noted the limit of disturbance line is the line from which Mr.  Wojciechowski measured his lines.  He measured 40' from the Rosen property as opposed to a 15' side yard.  If he switched this arrangement for 40' from Smith and 15' from Rosen he would not have any bigger building envelope and would disturb more trees.


Mr.  Koopman noted if the 40' rear yard on the Rosen property was made 30' and requested variance they would need 10' from rear yard but would save 880 sq.  ft.  of woodlands.  To meet rear yard requirement on the rosen side and disturb the woodlands up to maximum.  A tradeoff might be to make it a 30' rear yard and save 880 sq.  ft.  Mr.  Wojciechowski advised 30' is realistic.  Mr.  Koopman noted this may give larger buffer between proposed house and Rosen proeprty.  Mr.  Murphy stated they do not object to putting it further west away from the Smith property.  They could shorten yards elsewhere if there is interest in the same.  Mr.  Koopman stated they are still encroaching the woodlands and getting closer to the wetland buffer area.  Mr.  Koopman noted there are trees shown as buffer plantings and asked if these are new.  Mr.  Wojciechowski advised these are new plantings but there is no detail at this time. 


Regarding Terracedale Dr, along the frontage of the house there is a 10' stone and not in the best condition.  The sewer is proposed to be brought in along Terracedale outside the property line in the right of way.    The right of way of Terracedale is 50'. 


Mr.  Koopman noted Terracedale is 50' wide and Mr.  Murphy indicated 25' would be owned by this property and questioned if the other 25' would be owned by the owner on the other side.  Mr.  Wojciechowski assumed it would be.  I twas noted there is a 10' wide cartway in the center of this 50' strip.


Regarding the wetland delineation, Mr Koopman noted this was based on the wetland consultant which study was approved by the Army Corp.  This study was done by Piedmont. 


Mr.  Koopman noted, and Mr.  Wojciechowski agreed, the driveway is located in a cleared area and does not interfere with woodlands. 

Ms.  Kirk asked how they explain reduction in impervious from 33.8% to 9.%.  Mr.  Wojciechowski stated original numbers used net lot area rather than gross lot area.


Mr.  Hricko noted variance for 41% woodland disturbance is to allow disturbance from 10' off of the Rosen property and they are trying to create a back yard of 40' off Rosen by 89' off the Smith property.  He stated if they are looking for variance this appears to be a larger area for a back yard .  He feels this could be reduced and cannot understand why they are requesting disturbance which is so great.


Mr.  Toadvine asked where the limit of disturbance toward Terracedale Road goes.  Mr.  Wojciechowski stated it goes all the way out to the 40' to the edge of the property line.  Mr.  Murphy stated if they want they could grant variance for less than 40' front yard.  Ms.  Kirk stated the Board is to consider minimum relief necessary.  She suggested he talk to his applicant to see what he is requesting. 


Mr.  Toadvine stated if they do not ask for the limit of disturbance in the rear yard as requested, and they sell the property and the new homeowner don’t they have thee right under the ordinance to disturb that area.   Mr.  Murphy agreed.  If they reduce rear yard by 10' they would need to have a conservation restriction to insure it is not disturbed. 


Recess was called by the Board at 9:00 p.m. Ms.  Kirk reconvened the meeting at 9:10 pm.


Ms.  Kirk advised the Zoning Hearing Board adjourns at 11:00 p.m. If they have not gotten to the application it is requested they agree to continue the same until the next hearing date.


Ms.  Kirk also requested everyone to turn off cell phones and beepers. 


Raffaelli Raffaelli, Esq.  asked Mr.  Wojciechowski if in his surveying of the property if he encountered water ways.  Mr.  Wojciechowski advised there are swales in the property.  Ms.  Raffaelli asked if he saw drains for water on the proeprty.  Mr.  Wojciechowski stated there were no pipes but there appeared to be areas which may have been eroded and may carry or had carried water.  In making the survey he relied upon Piedmont report.  Ms.  Raffaelli asked if what was in the report he believed to be accurate and Mr.  Wojciechowski sated he probably would.  Ms.  Raffaelli referred to wetland report prepared by Piedmont dated `1/5/03 Mr.  Murphy requested he be allowed to review same.  Piedmont report was marked as Exhibit I-1.  It was noted this report is what the Army Corp of Engineers relied upon for preparation of their report.  They did not include a copy of the same in their report.  Mr.  Murphy advised he does not see Piedmont referred to in A-9.


In referring to Lower Makefield Township Ordinance, Ms.  Raffaelli asked if he read anything about a water course buffer being required.  Mr.  Wojciechowski advised these are required.  However he is not familiar with the definition as set forth in the land development ordinance.  Ms.  Raffaelli showed a copy of the subdivision and land development ordinance defining water course and in this definition she asked Mr.  Wojciechowski if this includes drainage ditch.  Mr.  Wojciechowski stated if it carries water, whether man-made or natural, it would be a water course.  This is why they have wetland specialist to make the determination of the same.    mr.  Toadvine asked Ms.  Raffaelli if she has her own wetlands determination and she advised she did not. 


Ms.  Raffaelli read section 178-11 of the Land Development and Subdivision Ordinance regarding ditch.  She stated their position is  the zoning ordinance requiring buffer for water courses.  Report prepared for the applicant references one drainage ditch and possibly another and is not shown on the plan.  Mr.  Mayrhofer asked what constitutes a water ditch.  Ms.  Raffaelli read definition as set forth in the ordinance.  She noted Zoning Ordinance Section 200-51 squire wetlands/water course buffer to be minimum of 25'.  Mr.  Toadvine asked if the Piedmont report states where the water course is allegedly located.  Ms.  Raffaelli advised it is located to the east of the wetlands area.  They have pictures of what they believe is the drainage way.  They believe it is ion the central part not the east of the wetlands (Smith property).  Mr.  Murphy noted this may be within limit of the wetland buffer.  Mr.  Wojciechowski stated if it was labeled as a water course and determined to be a water course by the Army Corp of Engineer they would have put a buffer around it.


Mr.  Murphy advised he has no other witnesses.


Ms.  Kirk asked Mr.  Marrazzo what assurances the Zoning Hearing Board have if it were inclined to grant the variances required that the property will be build in accordance with those variances.  She noted he has come before the Board twice and the Board has granted variances and each time has come back due to an error, or mistaken calculation.  Mr.  Marrazzo stated he and Mr.  Wojciechowski have discussed past problems and how to rectify them.  They have put into place procedures to be able to pin the foundation once the property has been excavated and would come back and check prior to the footings being pinned.  There will be checks in-place.  Since these lots are sensitive these are procedures which they use.  He noted he has walked this lot.  Ms.  Kirk asked if he has seen any of the water ways referred to in the Piedmont report.  Mr.  Marrazzo advised drainage pipes are on the adjacent property.  There is a newer house built on the southern side of the property on the Edgewood Road side.  There are drainage inlets which collect water.  Other than this he has not seen actual water courses but, not being a professional he cannot determine what they are.


Ms.  Kirk asked Mr.  Wojciechowski if, based on questioning of the information in the Piedmont report, does he feel this is something which needs to be reviewed and resolved in event additional buffer is required. :Mr.  Wojciechowski stated he understands Lower Makefield provides for buffering in water course.  In the past he has relied on the delineation by an expert and the jurisdictional determination.  However if there is a water course it should be examined and they should see if they have the proper buffer and would put this question to Piedmont to see if there is a water course., 

Mr.  Mayrhofer asked if water flows up hill and Mr.  Wojciechowski advised it does not.  Mr.  Mayrhofer stated looking at the map everything is downhill from east to west and cannot understand how it could flow east.


Ms. Kirk noted Piedmont report was submitted not the Army Corp and feels there have been conflict regarding results of this report and the Army Corp determination whether he feels it would be necessary to reexamine this. 


Mr.  Murphy advised Piedmont report was submitted to the Army Corp who prepared report and made site inspection and made determination of the wetlands on the site.  It appears if there were drainage areas outside the wetlands they would be included in the wetland buffer which is being provided. 


Mr.  Jim Majewski was called by Mr.  Koopman to testify.  He advised he is a professional engineer employed by Pickering Corts and Summerson, The Township Engineer.


He has visited the site in question on three occasions.  Regarding possible water course, Mr.  Majewski sated he is familiar with the Piedmont report and area referred to on ths property.  Referring to A-7, Mr.  Majewski depicted a straight line running northeast to southwest from the property line which is also the same as the end of the limit of disturbance across the wetland buffer and toward the Rosen property. :Mr.  Koopman noted this would cross the boundary line of Terracedale road at the area where the westerly most limit of disturbance hits Terracedale Road.    There was no questioning of Mr.  Majewski by Ms.  Raffaelli


Ms.  Raffaelli called Mr.  Bray to testify.  Mr.  James J.  Bray advised he lives at 12 Terracedale Road.  The diagram was prepared by him which shows copy of plot plan submitted by the applicant to the township.  He advised he has lived at this property for 29 years and the “stream” has been there for the last 29 years.  Photographs were taken by him on 1/21/04 and shows views from outside the lot.  He described each of the photographs taken from his property and depicts the property in question as well as proposed location of the house.  Some of the photographs were taken from the side of the Smith house.  He noted Ms.  Smith’s back yard looks toward the house.  He advised his property is approximately 70' fro the subject property.  During the 29 years he has lived here he has observed the lot in question daily.  He is familiar with the application and expressed concerns.  He noted woodland regulations states 30% should be unprotected and the applicant is seeking 401%.  This is substantial.  He also has concerns about drainage problems.  His property is subject to basement problems and has been for a number of years.  Water issues are a problem in the neighborhood.  He advised there are 18 drains in this area and they still have a water problem.  He feels the rocky road provides useful service by slowing water down and absorbing the same.  Sometimes the water flows onto adjacent properties.  Mr.  Bray feels drainage will be affected by variances noting that trees are sponges and prevents erosion.  When cutting trees they increase surface water and he is also concerned the water which will be created will be coming onto his property and the rocky road.  He also noted the road is fragile and he does not use the upper portion of the same because there is a 10' depression in the same.


Mr.  Hricko requested Mr.  Bray indicate location of is property on A-8, which he did. 


Mr.  Bray advised he has observed waterway drainage ditch on this property.  He has had permission to use this property and water course was there 29 years ago.  It runs 100' long and is from 1' to 5 to 6'.in width.  Photographs  marked as Exhibit A-2.

Series of 7 photographs was marked as Exhibit A-3.  Mr.  Gray advised these were take 2/27/04 at 9:45 a.m. from the property of Rosen.  He noted there was water flowing into the inlet.  On I-2, Mr. Bray indicated location of the water course and noted it hugs the limit of the disturbance line.  I t is his understanding that, based on zoning regulations, there should be a buffer around the water course.  He noted he inserted a line on the photo showing what he interprets to be the minimum buffer.  Mr.  Mayrhofer asked if he is a certified engineer and Mr.  Bray stated he is not, this is his understanding of the zoning regulations.  Mr.  Toadvine suggested that the witnesses testimony be kept to his knowledge.    Mr.  Murphy expressed objection to I-2 “green Line” being the “Mellon Report”, noting there is no testimony of Mr.  Melons. :Ms.  Kirk noted the objection.


Mr.  Hricko referred to I-3 and Mr.  Bray advised he was standing in a southeast direction when he took the photo and turned to take the others.  The first photo he is looking at the inlet.  Mr.  Toadvine noted there is no inlet shown.  Mr.  Bray stated he paced the distance.  Mr.  Mayrhofer stated this may be inaccurate.  Ms.  Raffaelli stated this is not exactly where the inlet is.  This is based on his best estimate.  Ms.  Kirk stated the Board recognizes this.  Mr.  Hricko noted this appears to be in the buffer.  Ms.Raffaelli stated they are sting this is not shown on the plan. 


Mr.  Bray expressed concern about the rear setback.  He noted he does not know any other house which has a 15' rear set back in this area.  Ms.  Kirk stated concerns are limited to issues before this Board only.  Mr.  Toadvine noted the setback referred to by Mr.  Bray is a side yard.  Mr.  Koopman stated the ordinance is clear this is a rear yard.  They are requesting that the southerly side of the property be the rear yard.  Mr.  Toadvine stated he understands the engineer testified that the rear yard is opposite the front yard.  Mr.  Murphy stated a rear yard is portion furthest from the street.  He agreed with Mr.  Koopman’s interpretation of the ordinance.


Mr.  Bray expressed concern about the missing water course.  He requested copy of information in the file and could not find documentation of this water course.  They did have jurisdictional determination of the Army Corps of Engineers.  He called this person who sent him the information contained in the wetland report and from this report he was able to determine there was documentation for this waterway.  Mr.  Mayrhofer asked if this has bee presented in a factual form.  Mr.  Raffaelli stated he testified as to his personal observation.  I-1 mentions one drainage way.  Mr.  Toadvine stated all expert testimony before the Board states otherwise.  Ms.  Raffaelli disagreed noting the Army Corp would not necessarily delineate what Lower Makefield defines as a water way.  Mr.  Bray also expressed concern about wetland delineation and the discrepancy.  Mr.  Murphy objected.


Mr.  Bray stated in reading of the zoning regulations there is item called wetlands abutting water course which requires buffer around water course.  Ms.  Raffaelli stated the Board is aware of his observation.  Mr.  Bray also has significant concerns about what construction will do to the rocky road.  There is no room for equipment in this area and such equipment will tear up the road.


Regarding the woodlands, Mr.  Bray stated he is concerned about trees taken down but in Lower Makefield stream survey it states that trees are damaged during the course of construction and will die. 


Mr.  Murphy asked Mr.  Bray if he is an engineer.  Mr.  Bray stated he is not and has no certification in engineering and is not a degree engineer.  Mr .Murphy noted one issue was storm drainage and construction might put storm water flow on the  property.  Mr.  Bray stated impervious will increase and more water will run off.  Mr.  Murphy noted this property slopes away from his property.  Mr.  Bray stated he is unsure of this.  When it rains water comes from ths property.  Mr.  Murphy noted he stated the water course is from northwest to southeast and given the topographical map it slopes away from his property.  Mr .Bray stated this is not true..


mr.  Murphy refereed to a-03 and asked Mr.  Bray to indicate where the property slopes toward his property.  Mr.  Bray refereed to location of where the water goes into the stream and into the inlet.  Mr.  Murphy stated his house sits 60' from the road.  


Referring to the drainage course, Mr.  Murphy asked if he is aware in conclusion of Piedmont solicited advise of the Army Corp of Engineers as to whether or not it had any jurisdiction over  the drainage ways. :Mr.  Raffaelli objected, which was sustained.  Mr.  Murphy requested the Board read the conclusion. 


Linda S.  Smith was called to testify.  She explained location of her property by referring to A-3 and noted rear lot line is adjacent to the opposed rear line of her property.  She has lived her for 18 ½ years and is concerned about application and has several issues.  Main issue is they live in an older area of Lower Makefield township.  Appealing aspect is issue of privacy.  All the other properties respect the side yard setbacks and this would be the only house which would not respect the side yard and would be in her back yard.  This would be on her rear property line and remove privacy which she has enjoyed.  She is also concerned about proposed buffer of trees.  This is a shady area and would not provide a suitable buffer.


There is also concerns about drainage noting there are drainage problems in this area.  Rocky road has a river of water come down it.  She has water which lays on her property.  Lot has water laying on it where the house will be located.  Yesterday the road was covered with standing water.  She noted they will have some buyer in the house who will not be able to work on the yard and it will become infested with mosquitos.  She stated the issue is not just open space and wetlands but expressed concern about someone buying this wet lot.   When she purchased her home she was told she would use the property in question by the owner.  She the land is dry it can be mowed.  Ms.  smith explained how she used the lot in question.   Referring to A-3 she noted there is a grassy area which is closest to her property.  In her back yard she has drainage problem and she now has two sink holes close to the property line.  One was a 6" hole and is now an 18" opening.  There is now an additional hole. 


Mrs.  Smith sated she has observed the drainage refereed to.  She advised she has never used the property in question without consent.


Mrs.  Smith reiterated the concerns about the water course and drainage issues.  She understands the low is there to protect the owner of the proeprty but also there to protect her.    She noted the back of her house is windows and now there would be a house right next to it.


Ms.  Raffaelli stated she is aware that several letters have been submitted to lower Makefield township in connection with this application and requested these be included as part of the record.  Mr Murphy objected, which was sustained.  Mr.  Toadvine advised Zoning Hearing Board does not consider any letters unless offered. 


Mr.  Toadvine noted Mr.  Murphy indicated that his client would be equitable owner of the property. Mr.  Murphy advised this is under agreement of sale with contingencies.


Mr.  Murphy asked Mr.  Wojciechowski about the inlet shown on A-3 and A-7 and if he field located the same.  Mr.  Wojciechowski advised he did. 


Mr.  John Goetz of 9 Morningside asked about aerial photograph which is 20 years old.  Mr.  Toadvine stated this was used to prepare A-8 to locate houses which existed at that time.  It was not used for trees or drainage.


Mrs.  Bowers of 30 Morningside stated he has lived here for 37 years and during this time he has frequently been past the property in question and was surprised to see wetlands in the center of the left side.  When walking along Morningside it has been visible to see wetlands along there.  She also expressed concern about the loss of permeable land to absorb water and requested the Zoning Hearing Board deny the application. 


The owner of 10 Alton expressed concern that if improvements are made to the road this would increase traffic.


Frank VanWeezendornk of 25 Morningside noted this road slopes down toward the house.  He presented photographs of back yard noting water is a major problem in this area.  He noted in this case they are requesting to cut more trees than allowed by ordinance which will aggravate the problem for people on the same side of Morningside.


Will Baurs of 30 Morningside stated he has lived there for 37 years.  He noted there have been various attempts to seel the property in question.  He questioned who would buy property that is always wet.    This is a pristine piece of property and would hat to see it go.


Testimony was closed.


No closing comments were made by Mr.  Murphy.


Mr.  Koopman sated the township is opposed to the application.  There are numerous reasons to support denial of the variance.  Applicant has failed to meet burden of proof of meeting all the variance.  Regarding rear yard, there is no basis to switch the rear yard.  They are actually requesting 25' variance to make this 15' side yard and there is no basis to do this.  Woodland disturbance being requested is not the minimum necessary to afford relief.  This house would be over 4,000 sq.  ft.  and feels it should be smaller house with minimum variance.  There has been no proposal to attempt to comply with the requirement that the house front on a street approved to township standards.  There is also issue regarding water course and building envelope issue.  If the Board is going to grant the variance the Township would request a continuance because he believes testimony of Mr Wojciechowski is incorrect and could get more rectangular or square without disturbing more woodlands and Mr.  Majewski has not had an opportunity to analyze these documents.   


Ms.  Raffaelli agreed with Mr.  Koopman comments.  They do believe there is a water course issue.  They do not think the applicant addressed issues required in connection with public water and sewer and affect on the property.  Storm water is also a significant issue.


Recess was called by the Board at 10:20 p.m.  Ms.  Kirk reconvened the meeting at 10:23 p.m.


Ms.  Kirk sated that after consulting with the Board’s solicitor she would entertain a motion.

Motion made by Mr.  Malinowski to deny the application.  Motion seconded by Mr.  Dobson and carried. 





Mr.  Feldman appeared before the Board.  Application dated 1/14/04 was marked as Exhibit A-1.  One page plan prepared by Carey was marked as A-2.


Mr.  Feldman advised they are requesting the allowable impervious be increased to allow an in ground pool.  18% is what is allowed now and the total request is 18%.  This house was built in 1976.  Total impervious presently is 27.6%.  Mr Toadvine advised this is less than .5% increase.  Mr.  Feldman advised they have installed pavers in the back yard without permit.  Now found out they need a permit.  This is included in impervious calculations.  Pavers referred to are 732 sq.  ft. 


In order to reduce impervious Ms Kirk asked if the bricks can be removed.  Mr.  Feldman advised they would prefer not to.  Ms.  Kirk stated they have patio and deck on the rear of the house and now are looking to install 3' wide walkway around the pool.  The patio is 25 x 30.  Mr.  Mayrhofer stated he has calculated 5,700 sq.  ft which is different that the applicant has.  Ms.  Kirk noted the actual request is greater than what is shown.    Mr.  Feldman sated he did not take the measurements. 


Ms.  Kirk asked if he would prefer to request a continuance to have the plan reviewed to reflect the current number.  Mr.  Feldman agreed.  Mr.  Hricko noted there is also an easement shown. :Mr.  Feldman stated this continues back through his property.  Mr.  Hricko noted it appears the pool and fence would be build in an easement area.  Ms.  Dorner advised the easement does not run across the property. 

Mr.  Koopman stated the township’s position is there should be no increase over the existing 27.6% because the patio was put in without a permit.  Addition was put in without a permit by the prior owner.


Mr.  Mayrhofer stated amount of impervious he legally has is 23.7% (without patio).  Mr.  Koopman sated relief being requested is also to include the patio to stay.  Ms.  Dorner advised that she has a total of 5,293 with the pool which is different than applicant’s. 


Motion made by Mr.  Mayrhofer to continue the matter to 3/16.  Motion seconded by Mr.  Dobson and carried.






Edward Murphy appeared on behalf of the applicant.  He noted there are neighbors present this evening who are in support of this application and would like to have them testify this evening so they do not have to appear at the next  hearing.  Ms.  Kirk asked Mr.  Murphy if he would be willing to have this matter continued to 4/;6 and he agreed.  Mr.  Murphy stated they can talk to the township and explain the basis for relief in order to satisfy the townships concerns regarding impervious.  After discussion the Zoning Hearing Board agreed to permit the neighbors present to make position known regarding application.  Applicant agreed to continue additional testimony until 4/6/04. 


Richard and Debra Mabansy of 500 Manor Gate was sworn in to testify.  He stated they have been presented with the proposed development of the property and are in support of the same.  They have lived here for 15 years and are anxious to have someone develop the property in question which will enhance their property value.  Mrs.  Mabansy stated they saw the plans and find the house is in tune and in keeping with houses around it and will fit in with other houses on the street.  Mr. & Mrs. Mabansy explained they live at the corner of Manor Lane and River Road.



Motion made by Mr.  Hricko to continue the matter to 4/6/04.  Motion seconded by Ms.  Kirk and granted.





J.  Brent and Elizabeth Hooker appeared before the Board.  Application dated 1/22/04 was marked as Exhibit A-1.  One page document prepared by Kenneth C.  Sealy last revised 2/4/04 was marked as exhibit A-2.  It was noted this is the final design plan prepared for purpose of installing an in-ground pool.  They have undertaken significant expense to significantly improve the property on the inside and now want to improve the outside and an in ground pool is an integral part of their overall plan.  They have the support of their neighbors.  They are requesting increase in impervious of 2.7%. 

Ms.  Kirk asked the width of the coping.  It was noted the coping is 12".  There is a brick along   the edge of the pool plus 1' around the pool area.  Mr.  Hricko referred to the plans and noted the area is over 3' around the pool.  Mr.  Toadvine also noted there is 15' proposed at one end of the pool and 10' at the other.  Mr Hooker noted the 10' is excessive and they do not need that type of space on both sides.  Ms.  Kirk stated when the Board considers variance request they must grant the minimum relief necessary.  If they are saying that based on these calculations there is a potential of less impervious surface being requested it would be better to be able to inform the Board of that amount.  Mr.  Hooker stated it would not be 1% less.  He stated it is their desire to do something close to the plan.


It was note the RRP district is 13% but because this is an older home they use the R-2 calculations which is 18%.  Mr.  Mayrhofer asked if they would give up part of the driveway.  Mrs.  Hooker stated Black Rock Road is difficult and safety would be compromised.


They stated they could remove area of the driveway to the left which is 16 x 21 (396 sq.  ft.)  Ms.  Kirk noted if they remove this and they are correct in their calculations this would significantly reduce what they are requesting.  Ms.  Kirk asked if they are sure of their calculation.  Mrs.  Hooker stated they are sue of calculation and measured it tonight.  This is 21 x 16.  Mrs Dorner stated it does not measure this on the plan.  Mr.  Mayrhofer noted this is 336 sq.  ft. 


Mr.  Koopman stated the township is opposed to an increase in impervious.  Area around the pool is significantly larger than what the Board has permitted in other circumstances and there appears to be areas which can be eliminated and stay within existing impervious.


Mr.Koopman noted on the left side there is a square and questioned what this is.  Mrs.  Hooker stated this is a screened porch which is original to the house and included in the impervious.  Toward the rear of the property there are two smaller square which is the air conditioning pad. 


Ms.  Kirk asked if they did nothing to increase impervious.  Mrs.  Hooker stated everything they have done is within the  house.


Mr.  Toadvine noted if they reduce request by 400 sq.  ft this would bring impervious surface to 23.2% and the applicant can decide what they want to remove and what they want to keep.  Mr. & Mrs.  Hooker agreed to this.


Ms.  Kirk asked about water flow.  Mr.  Hooker stated it is flat and appears to flow off to the either side.    Mrs.  Hooker noted they have only lived in the house since January. 


This property is located between the canal and the river.  Mr.  Majewski  noted if they scale out measurement of concrete there appears to be 6' on side near the house and 5' on the opposite side as well as 10 and 15' at the ends.  Mr.  Toadvine noted this allows 106 sq.  ft of coping plus additional 94 sq.  ft.  Mr.  Koopman stated the township feels it should not be any more than it is at present.  Mr. Mayrhofer noted they have done a great job on the house. 


Mr.  Mayrhofer asked if they would accept 23.2% which equal 6,030 sq.  ft.  Applicant agreed.


Motion made by Mr.  Mayrhofer granting variance increase impervious to 23.2% (6,030 sq.  ft.).  Motion seconded by Mr.  Dobson and carried with Mr.  Malinowski voting no.



There being no other business motion made by Ms.  Kirk to adjourn.  Seconded by Mr.  Mayrhofer and carried.  The meeting adjourned at 10:55 p.m.


                                                                        Respectfully submitted,




                                                                        David Malinowski, Secretary