ZONING HEARING BOARD
MINUTES – DECEMBER 7, 2004
The regular meeting of the Zoning Hearing Board of the
Zoning Hearing Board: Rudolph Mayrhofer, Vice Chairman
David Malinowski, Secretary
Paul Bamburak, Member
Greg Caiola, Alternate (not participating)
Paul Kim, Alternate
Others: Robert Habgood, Code Enforcement Officer
John Koopman, Township Solicitor
James Majewski, Township Engineer
Drew Wagner, Township Engineer
Allen Toadvine, Zoning Hearing Board Solicitor
Pete Stainthorpe, Supervisor Liaison
Absent: Barbara Kirk, Zoning Hearing Board Chair
APPEAL #04-1282 – MIKE AND BARB GRAFELD, ETAL
Mr. Toadvine stated he received a letter from the attorney for the Applicants for Appeal
#04-1282 dated 11/24/04 which he asked be marked as Exhibit B-1. He stated
Mr. Goldstein has requested that this matter be continued until the second meeting in
2005 which would be January 18, 2005. He is requesting a Waiver of the time limits
pursuant to the Municipalities Planning Code. Mr. Toadvine stated he contacted the
other attorney involved for the property owners who had no objection to the continuance.
Mr. Malinowski moved, Mr. Kim seconded and it was unanimously carried to continue
the matter until January 18, 2005.
APPEAL OF DR. AND MRS. GERALD SNEED
Mr. Toadvine stated even though it is not on the Agenda an Application has been filed by
Dr. and Mrs. Gerald Sneed. It was going to appear on the Board’s calendar for the
second meeting in December. Mr. Toadvine stated he received a letter dated 12/2/04
December 7, 2004 Zoning Hearing Board – page 2 of 20
from the Applicant’s attorney, William J. Bolla, which he asked be marked as
Exhibit B-1 requesting that the matter be continued until January 18, 2005. He is also
waiving the time limits pursuant to the Municipalities Planning Code.
Mr. Malinowski moved, Mr. Kim seconded, and it was unanimously carried to continue
this matter until January 18, 2005.
APPEAL #04-1288 – MARIO AND MYRNA ABAD
Mr. and Mrs. Abad were sworn in. The Application was marked as Exhibit A-1 and the
drawing attached to it noted as Homes of Chestnut Woods/Realen Homes dated 7/30/92,
last revised 11/18/92 was marked as Exhibit A-2.
Mr. Abad stated they are requesting a Variance to the setback under Section 200-22 for
the rear setback. They are requesting 37’ instead of the required 50’. He stated they are
planning to extend their family room and make a 15’ by 18’ addition. He stated they
need more space to accommodate their growing family.
Mr. Mayrhofer asked if there are any impervious surface issues, and Mr. Habgood stated
they do not have a problem with impervious surface including the addition.
Mr. Abad stated they have not heard of any concerns from their neighbors.
Mr. Koopman stated the Township is taking no position on this matter.
There was no public comment.
Mr. Dobson moved, Mr. Malinowski seconded and it was unanimously carried to
approve the Variance to Section 200-22 to allow a rear yard setback of 37’.
APPEAL #04-1289 – LINDA OBERKOFLER
Ms. Linda Oberkofler and Mr. Keith Gibson, architect, were sworn in. Mr. Gibson stated
he is a registered architect and practices in Jenkintown.
Mr. Toadvine stated the Application should be marked as Exhibit A-1. The Plan
prepared by Gibson Associates dated 11/2/04 with no revisions entitled Oberkofler
Ms. Oberkofler stated she would like to construct a front porch which will encroach on
the 40’ front yard setback. She stated at the current time they only have a stoop, and they
December 7, 2004 Zoning Hearing Board – page 3 of 20
would like to take advantage of the shade at this location. She has had discussions with
her neighbors, and they had no opposition.
Mr. Gibson stated anything they would add to the front that would be in keeping with the
existing architecture would encroach on the setback. They did try to design something
that would not encroach, but it would have looked contemporary and not balance with the
look of the house. They are infringing on the front yard by 3’8”. This is only for a
portion of the front yard. A sketch of the plan was shown, and Mr. Gibson showed the
area of the encroachment on the sketch.
Mr. Habgood stated there are no impervious surface problems with this.
Mr. Koopman stated the Township has no position on this matter.
There was no public comment.
Mr. Dobson moved, Mr. Kim seconded, and it was unanimously carried to grant a
Variance to Section 200-22 to allow a front yard setback of 36’4”.
APPEAL #40-1274 – SUNRISE DEVELOPMENT, INC.
Mr. Murphy was present and stated at the time they concluded testimony on 11/3/04, they
had concluded the testimony of the traffic consultant and were going to pick up with the
Township and Board asking questions of that consultant. Mr. Murphy stated he would
like to then present the testimony of the planner and have the project engineer testify
again to address questions raised by the Township and the Zoning Hearing Board and
have Mr. McElwee address some questions raised as well. This would then conclude
their case. Mr. Murphy stated Mr. Koopman has indicated he does not plan to present
any case tonight on behalf of the Board of Supervisors and would like to report back to
the Board of Supervisors. If there are neighbors present, they may wish to comment
tonight. Mr. Koopman agreed and stated he would like to hear the comments from the
residents present this evening so that he can take those comments back to the Board of
Supervisors as well.
Mr. Murphy stated since the last Hearing, he drafted a letter to Mr. Toadvine and
Mr. Koopman identifying various locations in the area where two-story and three-story
buildings constructed by
letter was marked as Exhibit A-9. This is a letter from Mr. Murphy dated 11/15/04
addressed to Mr. Koopman with a copy provided to the Zoning Hearing Board Solicitor.
Mr. David Shropshire of Shropshire Associates was present and sworn in. It was noted
that Mr. Shropshire was not the gentleman who had testified at the previous Hearing.
December 7, 2004 Zoning Hearing Board – page 4 of 20
Mr. Shropshire stated the study discussed was done under his supervision and he has
attended some of the earlier meetings. He is familiar with what is in the study and helped
in its preparation. Mr. Koopman stated Mr. Shropshire was not present when
Mr. Feranda testified at the previous hearing. Mr. Shropshire stated he did review
Mr. Feranda’a notes. Mr. Koopman asked if he saw the Minutes from the last meeting,
and Mr. Shropshire stated he did not.
Mr. Koopman stated Mr. Feranda had testified to traffic counts which were done in
August and had stated additional counts were done when School was in session.
Mr. Koopman asked when the counts were taken in September, and Mr. Shropshire stated
they were taken Tuesday, September 14. They did counts during the A.M. and P.M.
Mr. Koopman asked if the counts were done at
Mr. Shropshire agreed. Mr. Koopman stated they did not study Cardinal and Stony Hill
Road, and Mr. Shropshire stated this is correct. Mr. Koopman asked why this was the
case, and Mr. Shropshire stated the closest unsignalized intersection was Chestnut Woods
Drive and so they analyzed that and the signalized intersection at the other end of the
project. The reason they did not go beyond the signalized intersection is because the
traffic is so low from this site and it basically goes down from there so they did not go
beyond the signalized intersection.
Mr. Koopman noted the trip generation numbers and stated they were taken from the
they have a separate number for a personal care facility as opposed to a nursing home
facility, and Mr. Shropshire stated they have separate numbers for assisted living which is
what this facility is defined as. They did not use numbers for a nursing home.
Mr. Koopman asked if they did a Level of Service count at the proposed entrance on
directly aligned with Chestnut Woods which would be the worst case scenario. If they
analyzed the actual access proposed, it would be better and would result in slightly better
Level of Service. The Level of Service they are showing for the driveway entrance into
the facility is shown on Page 19 of the report showing the site access up to Chestnut
Woods with a Level of Service C during the A.M. and P.M. for the shared through, right,
and left turn movement coming out of the site access. This would be the worst case.
Mr. Koopman asked if they did a sight distance analysis for the access shown on the
proposed plan. Mr. Shropshire stated they did not do a hard measurement. He would
observe it is fairly straight within the level of sight distance required by PennDOT. They
will show this on the permitted Plan for PennDOT, but this has not been included in their
report at this time.
December 7, 2004 Zoning Hearing Board – page 5 of 20
Mr. Koopman asked if the report recommends any improvements to the roadways or
intersections, and Mr. Shropshire stated from a capacity standpoint they do not need any
improvements. He stated they understand that through the process with PennDOT they
may require certain improvements, and they would agree to do these.
Mr. Koopman stated Ms. Kirk had asked for a comparison of the traffic from this facility
compared to a single-family development of 24 single-family homes, and he asked where
this number came from. Mr. Shropshire stated this is comparable to the traffic intensity
for an Assisted Living Facility, and they did not do a study on the actual homes that could
be accommodated on this site under the R3-M Zoning. Mr. Koopman asked if it could be
significantly less than 24 homes, and Mr. Shropshire agreed. Mr. Koopman stated it is
possible that the property could accommodate only twelve to thirteen single-family
homes and the traffic would then be approximately half of the traffic estimated for the
inconsequential in terms of the overall traffic in the area.
Mr. Mayrhofer stated McCaffrey’s is presently being rebuilt and should open up early
next year. He asked if this would change their parameters. Mr. Shropshire stated he does
not feel it would change the results of the traffic slightly although it may slightly increase
the background traffic. The impact from the Assisted Living Facility would still be less
than 1% at the signalized intersection. In fact, the impact may be less in terms of
percentage although the Levels of Service may result in slightly more of a delay. He
stated he feels they are currently at Level B or better during the post 2006 evaluation so
the intersection does have significant capacity left. Mr. Mayrhofer asked if there is any
problem when people make a left hand turn from the facility, and Mr. Shropshire stated it
would be a Level of Service C and there are no problems with sight lines under the
requirements of PennDOT.
Mr. Joe Huegler, a Party to the Appeal, asked if the traffic study factors in future growth.
Mr. Shropshire stated they did assume the background growth rate given to them from
Mr. Kim noted the studies done and asked if they averaged out the two days when counts
were taken to get the Levels of Service. Mr. Shropshire stated they took the worst case
which was September. Mr. Kim asked if a one-day count is sufficient to judge this.
Mr. Shropshire stated this is a normal procedure; and in fact, this situation was slightly
abnormal since they went back out in September. They went back out to insure that it
was based on an average day. Mr. Kim asked about the Levels of Service, and
Mr. Shropshire stated their project should not result in any significant delay that would
bring down the Level of Service for the signalized intersection. Mr. Kim asked what
improvements they could make to get the traffic flows better. Mr. Shropshire stated they
could look at the timing of the traffic light at the intersection. This type of improvement
is recommended in 90% of the traffic studies they do where they need to make
December 7, 2004 Zoning Hearing Board – page 6 of 20
improvements. Mr. Shropshire stated they would then look at construction of turning
lanes. He stated if there was an unsignalized intersection, they could consider
signalization. Mr. Mayrhofer asked that the testimony be moved along as the study
indicated what is involved, and he would rather not consider hypothetical issues.
Mr. Joseph Zadlo, Architect, was called and sworn in. He stated he is a licensed architect
and planner who has been involved in the field for thirty years. Exhibit A-10 was marked
which is the Curriculum Vitae of Mr. Zadlo. Mr. Zadlo summarized his background and
Mr. Koopman asked if he has previously done planning or
architectural work for
and Mr. Zadlo stated he has worked on numerous
up with the Zoning, Land Development, and Subdivision work. Mr. Zadlo stated he is
familiar with the property and has been on the site numerous times. He was also present
on November 3 when the initial testimony was presented and has heard the testimony this
evening. He stated
this particular site can accommodate many of the
because it is a very large site.
Mr. Murphy noted the two-story prototype which they are proposing which results in the
need for a Variance from the impervious surface provisions, and asked why it would be
the most appropriate building for this site. Mr. Zadlo stated they do not like to have
anything in their buildings that their residents would not expect to see in the homes they
have left. He stated the two-story building is the most similar to the type of building they
may have left as opposed to a three-story building. He stated the other advantage of the
design is that from grade level at most points of view, you will only see half the building
which diminishes the look of the size of the building which they feel is less traumatic for
A-4 (the two-story building) and A-5 (the three-story building) were noted, and
Mr. Murphy stated at the last meeting they asked what the other building elevations
would look like from various locations. Mr. Zadlo stated all elevations are the same
other than the front has the door. Details, trim, etc. are all the same around the building.
Mr. Murphy stated there was a prior question regarding deliveries, and he asked
Mr. Zadlo to describe the deliveries. Mr. Zadlo stated deliveries occur predominantly in
vans and trucks and rarely in a tractor/trailer. They have a pull up for deliveries as
opposed to a loading dock. They are scheduled by the kitchen managers at off-peak
times. They will have a tractor/trailer when the facility is first opened and furniture, etc.
is brought in. Mr. Murphy asked if a Condition were placed that deliveries could not
occur before 6:00 A.M. or after 11:00 P.M., would
to this restriction so that the neighbors would not be inconvenienced. Mr. Zadlo stated
December 7, 2004 Zoning Hearing Board – page 7 of 20
they would not have any problem with this condition. He stated they would not want
noise generated for their residents either. He stated the trucks would be coming in
between 9:00 A.M. and 3:00 P.M. or 4:00 P.M. This would be the same with trash
Mr. Murphy asked if Mr. Zadlo has looked at the Lower Makefield Township Zoning
Code to identify in what other Zoning Districts a facility such as this would be permitted,
and Mr. Zadlo stated he has. He agreed that a Nursing Home is a use permitted by either
Conditional Use or by right in every District. Mr. Murphy asked if the maximum
allowed impervious surface would be the same in the Commercial and Industrial Zones
as it is in Residential, and Mr. Zadlo stated the non-Residential Districts would permit
30% and 65% impervious surface and is significantly higher in those Districts.
Mr. Murphy asked about sprinklers, and Mr. Zadlo stated every one of their facilities are
sprinklered, and they meet with the Township Fire Marshall to go over all of their
systems in the building and the access to the building.
Mr. Kim asked how they provide the water pressure. Mr. Zadlo stated in one case where
there was not adequate water pressure, they did install a pump and an emergency
generator. Mr. Kim asked if they feel they will need to install a holding tank, and
Mr. Zadlo stated none of the facilities he has worked on have required this.
Mr. Murphy noted Section #228 B-3 identifying nursing home use as a Special Exception
in the R-3M Zoning District in which this property is located, and Mr. Zadlo stated this is
correct. Mr. Murphy stated Section #268-26 of the Zoning Ordinance identifies specific
criteria they need to meet, and Mr. Zadlo agreed. Mr. Zadlo stated they meet the
requirements for lot size, minimum lot width, and yard requirements. Mr. Murphy stated
he will defer the issue of off-street parking to Mr. Woodrow. Mr. Zadlo stated regardless
of the parking stall size, they can meet the parking requirements of the Ordinance.
He stated they have actually submitted an Application that would exceed the
requirements. He stated the Planning Commission has suggested that they provide more
parking than required, and they are willing to discuss this further. Mr. Murphy noted
Section 298 of the Zoning Ordinance which identifies criteria required to be applied to
the Special Exception, and Mr. Zadlo agreed. Mr. Murphy noted Section 298-A3
identifying a series of what is identified as General Provisions applicable to all Special
Exceptions. The first item is whether or not the proposed use is in accordance with the
spirit, purpose, or intent of the Comprehensive Plan, and Mr. Zadlo agreed.
Mr. Murphy asked if Mr. Zadlo has had an opportunity to
Comprehensive Plan, and Mr. Zadlo stated he has reviewed this. He stated the Plan was
entitled Lower Makefield Township Comprehensive Master Plan update 2003. Mr. Zadlo
stated from his review of this Plan, he feels it is significant in that in the vision for the
future, he noted a Section that asked that they accommodate future growth and support
December 7, 2004 Zoning Hearing Board – page 8 of 20
those who will be living in the Township. He stated they have identified that the largest
growth percentage of population is in the age group that they will accommodate. He
noted this is on Page 9. He also noted Page 25 - Table 4 which shows the change in age
review the numbers from 1990 to 2000, the two oldest age groups both grew in that ten
year period by more than 60%. He stated there are other age groups which had negative
Mr. Malinowski asked how many people they can serve at the proposed facility, and
Mr. Zadlo stated they will have ninety-two rooms.
Mr. Zadlo stated there are also some well prepared maps. He noted Map 4 which
identifies developable acreage, and the site under discussion is identified as a developable
parcel in the Township. Mr. Zadlo noted Page 34 regarding recommendations for use,
and the fist subsection is housing. He stated the second paragraph discusses senior
housing and indicates that there is no housing in the Township specifically for older
people who wish to live independently and there is a need to plan for age-restricted
housing. It also indicates housing for older people should be provided near major roads.
He stated Page 37 indicates the Township has been considering enacting Ordinances for
age-restricted housing. He stated they feel they can meet some of this need with their
Mr. Mayrhofer stated people of a young age who require this type of care could still
move into their facility, and Mr. Zadlo stated this is correct. He stated normally their
typical resident is an 83-year old female.
Mr. Koopman stated Mr. Zadlo referred to a
the building they are proposing at this location. Mr. Koopman stated they have not
submitted an alternative Plan showing a three-story building, and Mr. Zadlo stated this is
correct. He stated if they submitted a Plan for a three-story building, they would not need
the Variance but they would have to obtain a Special Exception. Mr. Koopman stated the
nursing home is permitted by right only in certain commercial Districts and requires a
Special Exception for all the Residential Districts, and Mr. Zadlo agreed.
Mr. Koopman asked about the deliveries and stated he had indicated predominantly it
would be vans although occasionally there would be something larger. He asked what
type of vehicle this would be. Mr. Zadlo stated he feels these would be a straight box
truck 24’ to 26’. Mr. Zadlo stated while he cannot state that there would never be any
other type of vehicles, it would be uncommon.
Mr. Koopman stated Mr. Zadlo had testified that there was a pump required at their
Abington facility for fire pressure for sprinklers and asked if there was a tank associated
with this. Mr. Zadlo stated he was not aware of this.
December 7, 2004 Zoning Hearing Board – page 9 of 20
Mr. Koopman stated the Planning Commission recommended that they show additional
parking, and Mr. Zadlo stated this is currently not shown on their Plan.
Mr. Zadlo was asked if he reviewed the Subdivision Ordinance, and Mr. Zadlo stated
while he has, he as not done so with the same detail as he has with the Zoning
Mr. Koopman asked if Mr. Zadlo would agree that when the Comprehensive Plan
discusses senior living, they were not discussing Assisted Living, and Mr. Zadlo agreed.
Mr. Mayrhofer stated there was previous discussion on the difference between the two-
story and three-story building, and that the roof line would be different. Mr. Zadlo stated
the three-story building would house the same number of beds but would involve a
smaller footprint and they would not need the impervious surface Variance. They would
not be able to slope the roof and it would not look as residential as the two-story building.
Mr. Kim asked if each individual will own their unit, and Mr. Zadlo stated they will not –
they are paying room and board. Mr. Kim asked the cost to the residents, and
Mr. Mayrhofer stated this question is not relevant to this Hearing.
Ms. Sandy Nuzzolo,
story building would look like and it does look more institutional. She stated if they do
approve this use, they would prefer that it be a two-story buildings as it will meet the
residential look of the community.
Mr. Toadvine stated Mr. Koopman asked earlier about the Planning Commission’s
recommendation regarding additional parking and he indicated they did not provide
additional parking on this Plan. He asked if they would be willing to provide this if the
impervious surface ratio were increased above what they are requesting, and Mr. Zadlo
stated they would be willing to do this. He stated they could also reduce the parking stall
size and consider this in the Land Development process. They are not averse to
providing additional parking.
Mr. Timothy Woodrow was called and it was noted that he had been sworn in at the
11/3/04 Hearing. A revised Plan was marked as Exhibit A-11 and copies of A-11 were
distributed to the Zoning Hearing Board this evening. The Plan is identified as an
existing features plan of
date of 12/2/04. This is a revision to Exhibit A-2. Mr. Murphy stated there was a
question raised at the last meeting about whether or not the facility was intended to be
served by public water and sewer and Mr. Woodrow had indicated it was intended to be
so served. Mr. Woodrow was asked if he had received any written confirmation on
availability, and Mr. Woodrow had indicated at that time that he had not. Mr. Murphy
marked as Exhibits A-12 and A-13 letters from the servicing authorities confirming that
there is availability for public water and sewers. A-12 is dated 11/4/043 and is from the
December 7, 2004 Zoning Hearing Board – page 10 of 20
Lower Makefield Township Sewer Administrator confirming that there is adequate sewer
capacity for the project and that since this property is located in the area that is tributary
to the Heacock Pump Station going to Morrisville, it is not subject to the sewer
moratorium. A-13 dated 11/2/9/04 is from the Pennsylvania American Water Company
confirming that public water will be made available to this project.
Mr. Murphy stated the original plan showed that the parking stalls were 9 ½ ‘wide rather
than 10’. Mr. Woodrow stated the original drawing showed the parking stall sizes to
be 9 ½’ by 19’. Mr. Murphy stated they were advised as the last Hearing that this was
not the standard size and would require approval from the Board of Supervisors.
Mr. Woodrow stated Exhibit A-11 shows the increased size of the parking stalls to 10’ by
20’. He stated the 10’ dimension was taken at the most narrow point of the parking stall,
and they were still able to obtain 40 spaces with each of these being 10’ by 20’ at a
minimum and some in fact are larger. He stated the minimum number of parking spaces
required under the Ordinance for this particular use is 32.
Mr. Murphy stated they had previously testified about the jurisdictional determination
from the Army Corps, and they had introduced Exhibit A-7 which is the letter from the
Army Corps. He stated A-7 makes specific reference to a Plan, but the Applicant did not
provide a copy of that Plan at the last Hearing. Mr. Woodrow stated he has this tonight.
This document was marked as Exhibit A-14 which is a Plan dated 4/12/04 showing the
last revision date. Mr. Woodrow stated A-14 differs from A-11 as it is the Existing
Features Plan. Mr. Toadvine stated they will correct the record and it is noted that A-11
is entitled Zoning Exhibit A. Mr. Woodrow noted A-11 and noted the channel on the
south side of the property which is an existing drainage channel running form west to east
and has been defined as Waters of the
Mr. Woodrow showed the location of this on the easel Plan. This is the only area on site
where the Army Corps has identified jurisdiction. Mr. Woodrow noted this area will not
Mr. Murphy stated at the 11/3 Hearing there was discussion on the loading area and
discussion this evening on the deliveries to the facility. Mr. Woodrow showed on A-11
where these activities would occur. He stated they have provided for two 12’ by 14’
loading berths as required by the Ordinance. He showed their location on the easel Plan.
Mr. Woodrow also showed the location where the facility could be accessed by
emergency vehicles on a stabilized earth lane that would provide access to Stony Hill
Road. It will be pervious surface and is approximately 20’ in width.
Mr. Murphy stated previously Mr. Koopman asked about the way they measured the
various yards, and whether or not the prior Plan acknowledged the Township Ordinance
requirements that they be measured from the limit of the natural resources.
December 7, 2004 Zoning Hearing Board – page 11 of 20
Mr. Woodrow agreed and stated the prior Plan attached to the original Application
neglected to show the Waters of the
show the protected area and delineates the maximum building envelope as a limit of the
buffer. Mr. Murphy asked if this reduced the building envelop, and Mr. Woodrow stated
it did not as the structure was well removed from those limits.
Mr. Murphy stated there was discussion on the buffers at the last Hearing. Mr. Woodrow
stated they show a Type I buffer along the perimeter adjoining the residential properties
including a mix of species. Berming and planting beds are also shown. He stated he did
prepare a statement describing in specific detail what the plant coverage will be, and this
was marked as Exhibit A-15. Mr. Toadvine stated A-15 is a two-page document from
Woodrow & Associates which describes the Type I Buffer and includes a summary
describing the type of plants. Mr. Woodrow stated he prepared this himself and it
memorializes their obligations of meeting the Type I buffer in detail. Mr. Woodrow
noted on the easel where these plantings would be installed. He stated A-11 shows the
buffer on the eastern side of the property for the full width and on the south side from the
woodland out to Heacock. It is a minimum of 25’ wide. Mr. Murphy asked about the
property frontage along Heacock and Stony Hill, and Mr. Woodrow stated they would
have street trees and plants. It would not be a Type I buffer, but they will comply with the
Mr. Murphy asked about lighting. Mr. Zadlo stated all the
8’ high residential-type fixtures. They will not have any 20’ high standards. They will
put shields on the sides of any lights that would be offensive. There are no spotlights or
wallpacks on the building.
Mr. Koopman stated they testified that there are now forty parking spaces, and he asked
how many were shown on A-11. Mr. Woodrow stated it was always forty spaces.
Mr. Koopman asked if the impervious surface changed, and Mr. Woodrow stated it has.
He stated based on parking stalls of 10’ by 20’, they are now at 19.75% impervious
surface. Mr. Koopman stated this was the original request as well, and Mr. Murphy
stated they had included some leeway in the original calculations to allow for this.
Mr. Koopman stated they are now at the maximum.
Mr. Mayrhofer asked about the previous testimony with regard to the fact that there could
be greater impervious surface than in the Residential area. Mr. Woodrow stated
Mr. Zadlo testified that there are other Zoning Districts in
nursing home use is permitted, and in those Districts they would be permitted to have a
higher impervious ratio than the amount permitted in the Residential Districts.
Mr. Huegler asked about the stormwater retention basin and asked when it would cause
run off into the channel. Mr. Woodrow stated the intent is to capture the run off from this
property. They intend to control the rate at which it leaves the site and allow for
December 7, 2004 Zoning Hearing Board – page 12 of 20
groundwater recharge and also help water quality to filter out pollutants that may come
off the parking lot. Mr. Huegler asked if they are making a provision for erosion.
Mr. Woodrow stated when they prepare specs for the Township engineer, they will show
an armoring of the slopes and submit calculations on the energy of the water leaving the
site. Mr. Huegler stated the neighbors on that side are concerned about the water from
Mr. Kim asked if they will need a General Stormwater Permit from the DEP, and
Mr. Woodrow stated they will need a NPDES permit.
Mr. Huegler stated he would ask that the Township consider the overall fit of the project
into the neighborhood and the impact on the quality of life. He would like them to
consider safety and noise from air conditions as well as the stormwater run off. He stated
they should consider the worst case scenario which would be ending up with a three-story
building with an institutional look. Mr. Mayrhofer asked if he was for or against the
Plan. Mr. Huegler stated at this point he is undecided and not sure how he feels about the
overall fit. Mr. Toadvine asked if he would prefer a three-story or two-story building,
and Mr. Huegler stated he would prefer a two-story building.
Mr. Stainthorpe stated at prior meetings there were a large number of people present and
very few are present this evening. He stated his understanding was that those people did
prefer the two-story building rather than the three-story buildings.
Ms. Sandy Nuzzolo stated at the meeting they had with the large group of people present
they did not comment in support of the project but they did feel that if this project went
through, they would prefer the two-story building.
Mr. Stainthorpe stated the Zoning Hearing Board and the Board of Supervisors decision
needs to be made on points of law and not whether they like the project or not, but it does
help to have the views of the neighbors.
Mr. Koopman stated the Township is requesting that the matter be continued so that he
can report back to the Board of Supervisors and get direction as to how they would like to
proceed. There was discussion as to when they should continue this matter based on the
matters currently scheduled. Mr. Habgood stated they also have two Applications which
have not yet been entered. The Applicant agreed to a continuance to January 4, 2005.
Mr. Mayrhofer moved, Mr. Dobson seconded and it was unanimously carried to continue this matter to 1/4/05.
December 7, 2004 Zoning Hearing Board - page 13 of 20
APPEAL #04-1286 – MAKEFIELD FLOWERS ASSOC., L.P.
Mr. Mayrhofer noted this Appeal was continued from 11/3/04. The Application was
marked as Exhibit A-1. The drawing entitled Preliminary Subdivision Plan for
Flowers/Madany dated 2/27/03, last revised 9/29/04 was marked as Exhibit A-2.
Mr. Donald Williams stated he is representing the Applicant. He stated they purchased
the development along
Variances for the portion of the property which is located
A portion is also located in
acre tract, and they propose to build twenty-nine single family dwellings on lots of
approximately one acre. There are a number of natural resources on the property
including streams, wetlands, and forested areas. They are seeking relief for three areas
noted on the Plan as Areas A, B, and C in order to cross over existing streams. It was
noted A, B, and C were not marked on the Plans submitted. Mr. Williams offered Exhibit
A-3 which is a smaller version of the Plan which is highlighted and depicts the areas of
Zoning relief requested by the Applicant.
Mr. Williams noted Section 200-51B(4)(b). The second Variance is from Section
200-51B(4)(d). They want to cross water courses but not wetlands. Mr. Toadvine stated
they will have to get permission from the Army Corps of Engineers in addition to
approval from the Zoning Hearing Board. Mr. Williams stated they do need a DEP
crossing and have made Application for this.
Mr. Williams stated the Plan they have submitted is a result of meetings they have had
with the Board of Supervisors and the Planning Commission.
Ms. Jenny Strelzik was sworn in. She stated she is employed by Elliott Building Group.
Madany/Flowers is a wholly-owned subsidiary of Elliot Building Group where
Ms. Strelzik is Assistant Counsel. She stated she is familiar with the tract as they went to
settlement on the tract earlier this year. She was personally involved in this transaction
and served as preparer of the closing documents. Exhibit A-4 was identified as the Deed
between Flowers and Makefield Flowers Associates. Exhibit A-5 was marked which was
identified as the Deed between the other seller, Madany, and Makefield Flowers
Associates. The date of Settlement was 4/30/04. Ms. Strelzik stated Makefield Flowers
is the current owner of the property.
Mr. Brian Focht was sworn in. Mr. Focht stated he is employed by Van Cleef engineers
where he is the Office Manager for the Berks County Officer. He reviewed his duties and
responsibilities which includes all Subdivisions. He has been employed there for five
years. He is a
licensed professional engineer in the State of
Licensed Civil Engineer. Exhibit A-6 was marked which is a copy of his resume. It was
agreed to stipulate that Mr. Focht is a licensed engineer in the Commonwealth of
December 7, 2004 Zoning Hearing Board – page 14 of 20
Mr. Focht stated he is familiar with the property that is the subject of the Application and
has been involved in the design of the Plan for last two years. Mr. Focht stated he is
familiar with Exhibit A-3 and the handouts which he prepared for the meeting this
evening. The purpose of preparing the documents was to show the proposed lay out and
the three areas of encroachment for which they need relief. He described the property
which is a seventy acre tract, 4 ½ acres of which are in
Property is R-1. They are proposing twenty-nine single family homes averaging one acre
each. The property is bisected by a stream to Core Creek and an unnamed tributary to
Core Creek. They have
two access points to the site. There was
Crossing Road, but there were sight distance issues; and there were concerns with
adjoining residents regarding the potential for cut-through and sight distance concerns.
He stated they have provided an access at
remaining 21 homes are off an existing stub off Dolington Estates. There is also an
emergency access provided from
Board of Supervisors and the Planning Commission and worked with Township staff to
come up wit the lay-out shown. The previous lay out showed a cut-through starting from
Mr. Williams asked about natural areas, and Mr. Focht stated the site is filled with many
natural resources, woodlands, wetlands, Waters of the
They did design the Plan with these features in mind. The desire of all was to preserve as
many of the natural resources as possible. Exhibit A-3 reflects the natural resources on
the site. This information was provided to them by Piedmont Environmental and the
Army Corps. He stated they are seeking relief from two Sections of the Ordinance that
require 100% protection of the wetland/waters and associated buffers.
Exhibit A-3 was noted, and on Page 2 they show the three areas of encroachment on the
Site. A is a temporary encroachment for utility crossing of the stream. There is an 8”
water main and a 2” sanitary sewer main. Mr. Focht stated they need to cross the stream
to provide public sewer and water to the eight lots that are
soils are not suitable for on-lot systems. This will be restored to its natural condition.
They will have to clear some trees. The actual disturbance is 100th of an acre of the
actual waters and 600ths of an acre of the associated buffers.
Mr. Mayrhofer asked if they would be willing to restore the vegetation, and Mr. Focht
indicated they would.
Mr. Kim asked if they are planning for any protection in case the system leaks.
Mr. Focht stated there will be concrete encasement and they will meet DEP requirements.
There will be an E & S Plan.
December 7, 2004 Zoning Hearing Board – page 15 of 20
Mr. Bamburak asked what happens to the water when it is dammed, and Mr. Focht stated
the environmentalist will discuss this. He stated on a normal day there is a small flow.
Area B was noted, and Mr. Focht stated this is an encroachment on the Waters for a
single family driveway to access
concrete headwalls to minimize the disturbance. The area of disturbance is 100th of an
acre of the waters and 700ths of an acre of the associated buffer.
Mr. Mayrhofer asked if there would be an easement, and Mr. Focht stated this is correct
and it will be dedicated to the Township. The design of the culvert will meet
requirements for heavier vehicles. This was requested by the Township at the Planning
Commission and Board of Supervisors levels.
Area C was noted, and Mr. Focht stated this is a road crossing of the waters and
associated buffer to provide access for four homes. It is a 30” pipe with its associated
concrete headwall to minimize disturbance in the area. The amount of disturbance is
400ths of an acre of the waters and 1400ths of an acre of the associated buffers. They are
willing to work with Mr. Majewski on the disturbances.
Mr. Kim stated he feels the 30” pipe is very big, and asked if they need it this large.
Mr. Focht stated this is the size they need to allow the water to flow without any
disturbance or ponding. This is designed for a 100 year storm.
Mr. Williams asked about stormwater management on the site, and Mr. Focht stated there
are two detention basins proposed one on each side of the stream; one to capture the eight
lots and the cul-de-sac on
They will discharge into Core Creek and they will meet all Township requirements.
Mr. Focht stated there will not be any adverse impact on the adjoining properties.
Mr. Williams asked if the property could be developed reasonably with strict
conformance to the Lower Makefield Township Ordinance, and Mr. Focht stated it could
not be. He stated the
eight homes at
extensions of the public sewers to those homes.
Mr. Williams asked if the character of the neighborhood will be impacted if the property
is developed, and Mr. Focht stated it will not. He stated the adjoining subdivision,
Dolington Estates, has lot sizes which are consistent with what they propose at this
location. He stated it appears that it was proposed for future development as Dolington
Estates did have a stub street at this location. He stated the requested Variances are the
minimal relief that could be requested.
December 7, 2004 Zoning Hearing Board – page 16 of 20
Mr. Malinowski asked if they only received the temporary disturbance so that the eight
homes could be constructed, what would be the effect on the project not getting approval
for the other two areas. Mr. Focht stated if Area B were not approved, they could not
provide the emergency access to the site and they would lose
were not approved, they would not be able to have the four additional homes, although
they would still need relief for the utilities.
Mr. Kim noted
location. Mr. Focht stated there is physical space, but the sight distance is not good
because it is at the corner and it is an intersection. Mr. Stainthorpe stated this
configuration is what the Planning Commission and Supervisors requested.
Mr. Koopman stated if the emergency access came out at
not be good at this location. Mr. Focht stated they worked with the Township for two
years to come up with this Plan. Mr. Kim stated in reality, this is only for emergency
access and would not be used under normal circumstances.
Mr. Bill Sterling asked where the outlets are located for the retention basins. Mr. Focht
stated they are in the center of the site along Core Creek outside of the floodplain and
outside the environmental buffers. He showed on the plan how the site will flow.
Mr. Toadvine asked the Township’s position. Mr. Koopman stated the Township is not
opposed to the grant of the Variances being requested. He stated Mr. Majewski’s
position is the extent of the disturbance is in excess of what is necessary to accomplish
the crossings. They would like a Condition attached to any approval that it be
conditioned upon approval of the Township engineer to insure that it is the minimum
necessary for relief. He noted specifically Area C. He has had discussions with the
Applicant’s engineer about this, and they have no objection to this Condition being
placed. Mr. Focht stated they have taken into account Mr. Majewski’s concerns.
Ms. Linda Solvati Kenny was called and sworn in. She stated she is employed by
Piedmont Environmental and is a Biologist performing wetland delineations and stream
surveys. She has been in this position for three years. Exhibit A-7 was marked which is
her resume. It was agreed to stipulate Ms. Kenny as an environmental biologist.
Mr. Kim stated since this is his field, he would ask that she review the exhibit.
Mr. Mayrhofer stated he would prefer not to have to review this too extensively.
Mr. Kim stated he is not sure what an environmental biologist is. Mr. Mayrhofer asked
that her attorney examine her and proceed. Ms. Kenny reviewed her education and
experience. She stated in her current capacity she has prepared approximately seventy to
one hundred wetland studies. She works with the DEP and the Army Corps of Engineers
on a regular basis. She stated she was actively involved in the wetlands study and issues
with regard to the Subdivision at issue. She was the wetland biologist and performed the
stream survey on the property. She is currently involved in half acre to 100 acre projects.
She has performed approximate twenty to thirty projects in
December 7, 2004 Zoning Hearing Board – page 17 of 20
Mr. Kim stated her specialty is waste soil remediation and flow and she is not a specialist
in the biology of the soil. Ms. Kenny stated she does have a background in plants,
animals, etc. Mr. Kim stated when one does a real environmental impact study they look
at the whole picture, and Ms. Kenny stated she did perform an environmental impact
study. She reviewed the courses she has taken. Mr. Mayrhofer stated they will accept
her as an environmental biologist.
Ms. Kenny stated she performed the wetlands delineation in
Environmental Group. She stated Core Creek runs through the property, and there are
associated wetlands, a pond/borrow pit, tributary to the Core Creek, old nursery stock,
and woodlands on the site. She is familiar with the fact that the property was used by the
Flowers family as a tree nursery. She has walked the property approximately six to
twelve times. She stated there are still several areas where the property owner had rooted
trees in ball fashion, left the area open, and did not back fill. There are also hundreds of
plastic plant containers throughout the property although Elliott Building Group has
removed some of them. There is an abandoned house, a garage, and a well on the
property. There are several bulk debris areas including an abandoned oil tank, old
appliances, and several areas of concrete, stone, and topsoil
Ms. Kenny stated she did prepare a wetlands report, and this was marked as Exhibit A-8.
This was the report requested by the Army Corps of Engineers. It explains the vegetation
characteristics, the soils, and the hydrology. The report was dated 8/1/03. Mr. Kenny referred to A-3 and stated the information in A-8 is consistent with what is shown on
Mr. Mayrhofer asked if Mr. Majewski had seen this in advance of the meeting, but
Mr. Majewski stated he was not sure. Ms. Kenny stated they did submit it to the
Township in advance of this meeting.
Ms. Kenny stated she also prepared a stream survey, and this was marked as Exhibit A-9.
She stated she and another individual went to the site and did a stream survey in the area
of the crossing to determine stream quality in the area and throughout the property. She
stated this showed that the species found on the property showed warm water
characteristics. She stated the stream is technically not the best quality. She stated a
better quality stream would have species that are not on this site. Mr. Kim asked what a
high quality macro-invertebrate would be, and Ms. Kenny noted the caddis fly. She
noted the chart they provided which shows the type of species they found.
Exhibit A-10 was marked which is the jurisdiction from the Army Corps of Engineers
and they have determined there are regulated waterways on the property.
Exhibit A-11 was marked consisting of five pages indicating that there are no bog turtles
on the site. She noted a separate company did this survey in May and June of this year
and found no protected species on the property.
December 7, 2004 Zoning Hearing Board – page 18 of 20
Ms. Kenny stated the quality of the stream is poor to average. Mr. Kim asked the typical
water quality of a wetlands stream. Ms. Kenny stated she does not feel there is a typical
stream. Mr. Kim stated wetland water quality are not normally high quality water areas.
He stated this is a typical water quality for that area. Mr. Mayrhofer asked that the
proceedings be moved along.
Mr. Williams noted Area A, and Ms. Kenny stated A would be a temporary crossing as it
is for a utility line. Mr. Williams asked if it would be possible to restore the vegetation to
previous conditions, and Ms. Kenny stated they would not be able to plant trees back
over the utility lines. Area B was noted and Ms. Kenny stated this will be a permanent
crossing, but it has a minimal impact on the environment as it is not piping the entire
stream. Area C was noted and Ms. Kenny stated this will be a permanent impact because
there is a pipe but it is only for a portion of the stream. Mr. Williams asked if the
proposed crossing as shown will have a detrimental impact on the wetlands and buffers,
and Ms. Kenny stated she did not feel it would have a detrimental impact. She stated the
streams are typical quality and are not high quality streams.
Mr. Kim asked if Ms. Kenny is really qualified to comment on the detrimental impact to
the streams, ponds, and water courses. Ms. Kenny sated based on the studies which were
done, she does not feel it will have a detrimental impact. Mr. Kim stated the base of the
study describe the water quality and not the stream quality. Ms. Kenny asked for further
clarification. Mr. Kim stated this portrays the water quality that exists versus if they
piped in and disturbed the flow. Ms. Kenny stated there will still be flow.
Mr. Mayrhofer asked if there will be a change in water quality by doing the project, and
Ms. Kenny stated there will not.
Mr. Bamburak asked where the water will go when they temporarily dam the streams.
Ms. Kenny stated the most flow she has seen was this year. The first time she was on the
property two years ago there was no flow. The water will stay there unless they reroute
it. They do have the option to reroute it temporarily. Mr. Focht stated typically they put
in a temporary pipe for the flow so it will continue to flow.
Mr. Malinowski asked where the stream goes now. Ms. Kenny stated eventually it goes
Mr. Bamburak stated it does not appear they have an environmental impact study on the
what the run off from salt, sand, etc. into the creek will do to the environment.
Mr. Toadvine stated they are not supposed to have run off into the stream as they have
curbs and detention basins. Mr. Kim stated the detention basis is close to the creek area.
Mr. Mayrhofer stated this is not any different from what is done throughout the
community. Mr. Bamburak stated he is concerned with the salts, etc.
December 7, 2004 Zoning Hearing Board – page 19 of 20
Mr. Majewski stated the water will go through the storm sewer system and into the
detention basins and eventually into the streams. The detention basins do tend to slow
down the washing of the sediment going into the streams, but it does eventually go into
the streams. Mr. Koopman stated this is done throughout the Township. Mr. Toadvine
stated this is not the issue before the Board.
Mr. Malinowski stated the issue before the Board is should they approve the disturbances
to these areas, and he does not feel they have to approve this in this location.
Mr. Kim stated currently there is no environmental impact study on this area, and
Ms. Kenny agreed.
Mr. Koopman stated he has no further comment and the Township has agreed to leave
this matter to the Zoning Hearing Board subject to the Condition that the disturbance be
There was no further public comment.
Mr. Kim asked if they could add a Stipulation that they have a full environmental impact
study. Mr. Toadvine stated the Zoning Hearing Board cannot request this. He stated the
Application does have to go through Land Development Approval and the Board of
Supervisors may want to request this at that stage. Mr. Kim stated if they wanted to
restore the area and keep it natural, they would want to know the baseline.
Mr. Mayrhofer stated he feels the Township engineer will make this happen.
Mr. Mayrhofer noted the areas to the south and asked will own this green area.
Ms. Strelzik stated anything not deeded to the Township will be owned by the
Homeowners Association. Mr. Koopman stated the Township probably has a choice and
assuming they want to take dedication, he assumes the Applicant would allow them to do
this. He stated this would be considered at Land Development.
Mr. Mayrhofer moved and Mr. Dobson seconded to approve the request as presented
conditioned on the Township engineer’s review and approval that all disturbances shall
be the minimum required to accomplish the crossings and that Area A be restored to it’s
previous condition as approved by the Township Engineer.
Mr. Kim requested that if they can make a final approval that at least they ask them to do
an environmental impact study and see what they are really voting on and add the right
limitation for this. He feels they are voting for the sake of voting without really the
concern of the land. He stated if they want to be true to the nature of the land, they
should see what it does and then vote.
December 7, 2004 Zoning Hearing Board – page 20 of 20
Vote was taken and Motion carried with Mr. Bamburak, Mr. Dobson, and Mr. Mayrhofer
in favor and Mr. Kim and Mr. Malinowski opposed.
There being no further business, Mr. Dobson moved, Mr. Bamburak seconded and it was unanimously carried to adjourn the meeting at 10:45 p.m.
David Malinowski, Secretary