ZONING HEARING BOARD
MINUTES – FEBRUARY 1, 2005
The regular meeting of the Zoning Hearing Board of the
Zoning Hearing Board: Barbara Kirk, Chairman
Rudolph Mayrhofer, Vice Chairman
David Malinowski, Secretary (left meeting in progress)
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
Allen Toadvine, Zoning Hearing Board Solicitor
Steve Santarsiero, Supervisor Liaison
APPEAL #04-1297 – COLIN AND LORI TRICKEL
Mr. and Mrs. Trickel were present and were sworn in. The Application that was
submitted was marked as Exhibit A-1. Included with this was a Plan entitled “Site Plan
for the Trickel Residence,” and this was marked as Exhibit A-2.
Mr. Trickel stated they are looking for a Variance to exceed the impervious surface.
He stated they currently have an existing patio that was there before they moved in that
was not on the site plan. They only want to cover the existing patio. They will remove
part of the existing patio so that they will actually have less impervious surface than is
Ms. Kirk asked how long they have lived at the home, and Mr. Trickel stated they have
been there four years. Ms. Kirk asked if all the existing impervious surface was in place
when they moved in, and Mr. Trickel agreed. The patio is in the rear of the property.
Mr. Trickel provided hand-outs which were prepared by their architect. Mr. Mayrhofer
asked the age of the house, and Mrs. Trickel stated she feels it was built in 1954.
Mr. Mayrhofer stated he feels that probably most of what was built precedes the Zoning.
The two-page hand out was marked as Exhibit A-3. The top sheet is 8 ½” by 11” and is a
smaller version of Exhibit A-2. The second sheet is a blow up of that Plan as well.
February 1, 2005 Zoning Hearing Board – page 2 of 16
Mr. Trickel stated they would like to go up to add living space to their ranch home.
The second floor to be constructed is not part of this Application. The section marked as
“Addition” is the only part that will go out and will cover an already existing patio.
Mr. Trickel noted the note on the Plan “Concrete to be removed,” and stated they will
remove that portion and also change the slope so that it will not be directly down to their
neighbor. He noted on the plan the portion which will be raised and the portion that will
be added to the back which will only be a one-story addition.
Mr. Koopman stated the Township would like to see one condition placed on the grant of
any relief which Mr. Majewski can address. Mr. Koopman asked if they are looking for
approval for total impervious surface of 25.5%, and Mr. Trickel stated this is correct and
this is a reduction from the current impervious surface already existing.
Mr. Majewski was called and sworn in. He stated he is the
engineer. He stated he would like that all proposed roof leaders be outfitted with splash
blocks. Mr. Trickel stated he would be agreeable to this condition. Mr. Majewski stated
they want to make sure they have the splash blocks so that the water will go out in all
directions. These are commercially available at a reasonable cost.
There was no public comment.
Mr. Majewski moved, Mr. Malinowski seconded and it was unanimously carried to
approve the request for impervious surface to 25.5% with the caveat that all proposed
roof leaders be outfitted with splash blocks.
APPEAL #04-1274 – SUNRISE DEVELOPMENT, INC.
Mr. Edward Murphy, attorney, was present. Ms. Kirk stated Mr. Malinowski will not
participate as he was not present for the initial presentation. Mr. Kim was present acting
as Alternate for this Appeal. Mr. Malinowski left the meeting at this time. Ms. Kirk
noted that Mr. Dobson was not present at the Hearing on January 4, 2005, but he did
receive a transcription of those proceedings in order to allow him to participate in
Mr. Robert Gregory Richardson was present and was reminded that he was still under
oath. Mr. Koopman stated Mr. Richardson had previously given testimony about
regarding the location of the driveway to provide ingress and egress to the facility.
Mr. Koopman asked when Mr. Richardson did the traffic report which was marked as
Exhibit T-2, did he do it based upon review of
Mr. Richardson stated the study was conducted assuming that the driveway was not lined
up with Chestnut Woods.
Mr. Koopman stated the original study from
February 1, 2005 Zoning Hearing Board – page 3 of 16
assumed the driveways had been aligned, and Mr. Richardson stated this is correct, but
their study did not assume this and instead was based on Plan A-11. They did review the
Chestnut Woods or not, and Mr. Richardson stated they did not have the benefit of A-11
when they did their report.
When they did their report, they assumed the
driveway would be a “T” intersection and would not align with Chestnut Woods.
Mr. Koopman stated even if they assumed the improvements he recommended were to be
made, what is his opinion as to whether the current driveway configuration as shown on
A-11 is suitable with respect to “probable effects on highway traffic and suitable with
respect to adequate access arrangements in order to protect major streets and highways
from undue congestion and hazards” as noted in the Ordinance. Mr. Richardson stated
as proposed, with the driveway not aligned with Chestnut Woods, the intersection is
closer to the signalized intersection. The distance from the intersection of Stony
He stated the present location is not the most desirable location when you compare it in
relation to the signalized intersection. He stated the existing queues on Stony Hill on the
westbound approach will back up during the peak hours to a point where they will be at
the proximity of the proposed driveway. They feel this will impair the ability to turn out
of the driveway at leisure. Someone trying to make a left out of the driveway during the
peak hour may not be able to make this left because of the back up. Mr. Richardson
stated this is not as evident in the
which he provided, for the westbound approach of Stony Hill Road 95% of the time there
will be a queue 251’ during the morning peak and during the afternoon peak hour the
queue will be 261’.
Mr. Koopman asked if there are other problems with the driveway location in terms of
suitability with respect to highway traffic based on the proximity of the driveway to the
intersection at Stony Hill and Heacock. Mr. Richardson stated when you have properties
that are in close proximity to traffic signals, especially ones that have left turn lanes and
you allow left turns into your site, it may cause confusion if people want to turn left into
they are going to turn at the signal and this could create a hazardous situation. This
would be for those traveling westbound. The proximity of the driveway as shown lends
itself to hazardous conditions.
Mr. Koopman asked about the ability to construct a proper decal lane for people going
eastbound on Stony Hill and making a right turn into the facility. Mr. Richardson stated
as this goes through Land Development and eventually an application through PennDOT,
the proximity to the intersection of the proposed driveway could be a problem as they
could not provide the proper length for a decal lane. Mr. Koopman asked how long a
decel lane should be; and Mr. Richardson stated starting at the point of tangency, from
that point on you provide a certain distance back for a full width lane based on PennDOT
requirements. The length of lane would be roughly 125’ to 150’ long. Along with this,
February 1, 2005 Zoning Hearing Board – page 4 of 16
you begin a taper to the existing width of the road with a widened area of 14’ for 125’ to
150’ and about 150’ for the taper to get back on the highway. He stated this would bring
them beyond the intersection, and would require a design waiver from PennDOT, as they
would not be able to provide the proper length. Mr. Koopman asked if there is a
problem with a taper beginning at the point or in close proximity to an intersection.
Mr. Richardson stated the driver expects that a vehicle coming in the eastbound direction
may have problems getting into the lane quickly.
Mr. Murphy stated he assumes the concerns Mr. Richardson has expressed would be
eliminated if the Zoning Hearing Board imposed a condition requiring that any access off
Mr. Richardson stated the majority would. Mr. Murphy stated if the Zoning Hearing
Board wanted to impose such a condition, the Applicant would be willing to do this.
Mr. Richardson stated while the majority of his concerns would be addressed, this still
does not address the installation of the decel lane or the acel lane. Mr. Murphy asked if
the remaining issues he has raised would be addressed by PennDOT, and Mr. Richardson
stated they would but he feels it is the Township’s right to impose certain improvements
that they feel are needed regardless of PennDOT’s opinion. Mr. Murphy asked if
PennDOT would be the agency that issues the Highway Occupancy permit, and those
issues discussed would be addressed by PennDOT, and Mr. Richardson agreed.
Mr. Murphy noted the previous testimony and referred to Mr. Richardson’s study marked
as Exhibit T-2, He noted that unlike the
nursing home classification in the trip generation manual, and Mr. Richardson stated this
is correct. Mr.
Murphy stated the
Mr. Murphy asked Mr. Richardson if the results of his study would have been the same as
the Shropshire Study if he had used the assisted living use, and Mr. Richardson stated
they would. Mr. Murphy asked why he chose nursing home. Mr. Richardson stated the
samples for nursing home are better than the samples in the manual of trip generation.
He stated they felt the nursing home calculations were a more reliable source.
Mr. Richardson stated while the weekend peaks were higher, the weekdays were actually
lower in his report than in the
Mr. Murphy stated in the A.M. peak hour his study stated there would be sixteen new
trips, and in the
Mr. Richardson agreed. In the P.M. peak , Mr. Richardson stated they indicated there
would be twenty-one new trips, and the
Mr. Murphy noted page 6 of T-2 where it states the left hand turning lane which he
recommended is in fact not warranted based on PennDOT District 6 criteria.
Mr. Richardson stated it is not warranted based on District 6 criteria for all other
developments other than schools. He stated if it is a school or age-qualified development
February 1, 2005 Zoning Hearing Board – page 5 of 16
PennDOT will impose this. Mr. Richardson stated his study states the warrants will not
be satisfied for this but he feels PennDOT would still recommend this based on his
experience. Mr. Murphy stated just as he commented on the left hand turn lane, it
would also be true that the right hand turn lane does not meet warrants, although
Mr. Richardson has indicated PennDOT would recommend this based on his experience.
Mr. Murphy stated he feels it would be useful to review the fact that all issues dealing
with access and State owned highways – issues of the location o f access points and other
improvements are within PennDOT’s province, and Mr. Richardson agreed.
Mr. Murphy stated PennDOT typically does not review these issues until some point
further along in the Land Development process, and Mr. Richardson stated they would do
a review once a formal application is submitted. Mr. Murphy stated at this point, they are
at a Special Exception approval; and if this were granted, any Special Exception would
have to be followed by submission of a Land Development Plan, and Mr. Richardson
agreed. Mr. Murphy stated PennDOT would not review road improvements or access
points until the Land Development Plan had received at least Preliminary Plan Approval,
and Mr. Richardson stated this is not correct. Mr. Richardson stated on January 14, there
was a meeting with a number of developers and one of the items was the need for a letter
from the Township before a PennDOT review. He stated the new policies is to you do
not need approval from the Township rather you just need a letter or form of notification
from the Township that basically the Township engineer has done a review of the
package. To PennDOT this means they acknowledge that the Township knows of the
development. He stated PennDOT does not want to review something that has never
been before the Township in any fashion. Mr. Murphy stated it will require some
acknowledgement from the Township that the Land Development Plan has been
submitted. Mr. Richardson stated it does not have to be Land Development, it could be a
review letter of a Special Exception or Conditional Use. Mr. Murphy asked if this new
policy has been codified and have all Municipalities been notified, and Mr. Richardson
stated they are discussing this tomorrow at their meeting with PennDOT.
Mr. Murphy stated he assumes Mr. Richardson would concur that they have no issues
with the methodology used by
stated even if they got there differently, they both utilized the same 3% background
growth factor, and in fact even took one of the traffic counts on the same date, and
Mr. Richardson agreed. Mr. Murphy stated Mr. Richardson indicated that the
discrepancy in levels of service was due mostly to a different signal timing matrix that
each group used, and Mr. Richardson agreed.
Mr. Murphy stated Mr. Richardson concluded in his study as
that the site generated traffic from the
the projected traffic volumes at the study intersection, and Mr. Richardson agreed.
Mr. Murphy stated he also concluded that the impact of
February 1, 2005 Zoning Hearing Board – page 6 of 16
of service, and Mr.
studied from a traffic impact that would have a negative impact. Mr. Koopman objected.
Mr. Kirk sustained and asked that Mr. Murphy re-phrase. Mr. Murphy declined.
Mr. Koopman stated that Mr. Murphy asked Mr. Richardson whether his concerns
regarding the proximity of the driveway to the intersection of Stony Hill and Heacock
would be resolved if the driveway where moved so that it would intersect with the
intersection at Chestnut Woods. He asked Mr. Richardson if he has had the opportunity
to do a traffic study based on such a re-alignment. Mr. Murphy objected stating
Mr. Richardson already answered the question. Ms. Kirk sustained. Mr. Koopman stated
Mr. Richardson did not answer that question. Mr. Koopman asked if Mr. Richardson did
a detailed analysis on sight distance issues based on this driveway being aligned with
Chestnut Woods. Mr. Murphy stated he already stated he did not consider this alignment
when he did his traffic study. Mr. Koopman asked if without doing such an analysis of a
revised plan which would align the roads, is Mr. Richardson able to state that the
alignment of those intersections would alleviate the traffic problems with respect to
ingress and egress at the proposed development. Mr. Murphy objected and stated this
question has been asked and answered. Ms. Kirk sustained.
Mr. Koopman stated Mr. Murphy asked about PennDOT recommendations on left turn
lanes, accel, and decel lanes, and asked if Mr. Richardson’s testimony was that PennDOT
would recommend these or that PennDOT would require these. Mr. Murphy objected.
Ms. Kirk over-ruled. Mr. Richardson stated the policy is to require them for these types
of facilities and not necessarily recommend them.
Mr. Koopman stated Mr. Murphy also asked Mr. Richardson whether the requirement for
permits for State roads such as
Mr. Richardson agreed. Mr. Koopman asked if under certain circumstances, is it the
province of whether such improvements are to be made also within the province of the
Township. Mr. Murphy objected and stated this was asked and answered. Mr. Koopman
stated this was not answered, and Mr. Murphy disagreed. Ms. Kirk sustained.
Mr. Koopman noted the new PennDOT policy discussed, and asked if this is currently in
effect. Mr. Richardson stated as far as he knows and when he submitted his review, they
were doing this. Ms. Kirk asked if PennDOT has issued a directive stating that January
14 was the effective date of this policy, and Mr. Richardson stated they have not.
Mr. Koopman stated during the PennDOT process, does PennDOT take into
consideration recommendations regarding improvements to State roads made by
Municipalities. Mr. Murphy objected. Ms. Kirk sustained. Mr. Koopman stated where
the Municipality would recommend improvements over and above PennDOT
requirements, what is PennDOT’s position regarding such recommendations.
Mr. Murphy objected stating this calls for speculation. Ms. Kirk stated he can answer
this if he knows. Mr. Richardson stated his experience with PennDOT is that they will
February 1, 2005 Zoning Hearing Board – page 7 of 16
consider any recommendation made by the Township. This is the purpose of the letter,
so that the Township can offer its own comments. Mr. Koopman stated if the Township
would recommend an improvement over what PennDOT would minimally require, would
there be circumstances where PennDOT would allow or require that improvement.
Mr. Murphy objected noting this is a speculation. Ms. Kirk stated he can answer to the
extent that he knows the answer. Mr. Richardson stated if the Township offered a
recommendation, PennDOT is within its right to review those recommendations and
deem them acceptable or not. He stated they do not necessarily have to approve them
but the Township does have the right to make those recommendations. Mr. Koopman
stated Mr. Richardson testified that it would be within the Township’s province to make
certain recommendations and establish certain standards for improvements to roadway,
and Mr. Richardson stated he feels the Township does have the right to make those
Mr. Koopman stated Mr. Richardson has given an opinion that there are certain traffic
improvements that he believes are necessary to provide for suitable effect of this project
on traffic safety and access. Mr. Richardson agreed. Mr. Koopman asked if
Mr. Richardson feels PennDOT would require the improvements that he has
recommended. Mr. Murphy objected, and Ms. Kirk sustained.
Mr. Murphy noted Exhibit T-3 which is the PennDOT policy Mr. Richardson’s firm
helped write, and he believes is the policy which PennDOT follows. Mr. Murphy noted
page 5, paragraph 4AD about left hand turn lanes. Mr. Murphy stated Mr. Richardson’s
testimony at the prior Hearing was that reference suggested that left hand turning lanes
would be required by PennDOT, and Mr. Richardson stated not only based on this policy,
but also based on his ten plus years of reviewing these plans. Mr. Murphy asked if
Mr. Richardson knows what definition they use for age-qualified facilities, and
Mr. Richardson stated there is no clear concrete definition. His experience has been
assisted living, nursing homes, and age-qualified could be fifty-five and over
developments and any of these would be deemed to be and fall under this umbrella.
Mr. Murphy stated he cannot point to any written definition PennDOT utilized to support
this, and Mr. Richardson agreed. Mr. Murphy asked if he agrees that based on the
different types of age-qualified uses, that the traffic impact would vary widely, and
Mr. Richardson agreed.
Mr. Toadvine stated Mr. Richardson was asked about the proposed improvements he had
recommended concerning the access to
is making to alleviate his concerns about the traffic impact. Mr. Richardson stated
initially he did not have a recommendation, but would recommend a deceleration lane
and a left turn lane on
February 1, 2005 Zoning Hearing Board – page 8 of 16
Mr. Richardson stated based on additional comments tonight he has brought up location
of the driveway. He feels a third recommendation that is not in the study would be to
relocate the driveway further away from the intersection. It would not have to align with
Chestnut Woods provided they can provide the maximum distance from the intersection
that makes sense recognizing sight distance. He feels the most desirable location would
be to line up with Chestnut Woods. Mr. Toadvine asked how much further would the
driveway entrance be from where it was proposed, it if aligned with Chestnut Woods.
Mr. Richardson did not know this number. A-11 was provided, and Mr. Richardson
stated it would be an additional 310’. Mr. Toadvine stated if the entrance was aligned
with Chestnut Woods, the issue regarding the deceleration lane would not be an issue,
and Mr. Richardson agreed. Mr. Toadvine stated they would only then be dealing with
the left turn lane, and Mr. Richardson agreed. Mr. Richardson asked to further clarify
and stated the issue with providing the decel lane would still be an issue; however, the
issue about conflicting with the signalized intersection would be resolved.
Mr. Toadvine stated assuming the Zoning Hearing Board were to impose a condition on
the Applicant that they must align the entrance to the facility with Chestnut Woods and
the process goes through Land Development and a submission is made to PennDOT for a
Highway Occupancy Permit, what would happen at that point if PennDOT felt it was not
appropriate to align that drive with the intersection of Chestnut Woods. Mr. Richardson
stated he feels this is more of a legal question. Mr. Toadvine asked if it is possible that a
condition imposed by the Zoning Hearing Board, vis-à-vis a traffic control device or an
alignment of the entrance to the facility, would not be accepted by PennDOT; and
Mr. Richardson stated this is always a possibility. Mr. Toadvine stated in that instance
would it be PennDOT who would ultimately decide where the entrance would be based
on the Highway Occupancy Permit, and Mr.
Ms. Kirk stated assuming the Zoning Hearing Board granted the Special Exception for
the use of the land and the Applicant then submits a Land Development Application,
would Mr. Richardson generally be the person who reviews such Applications on behalf
of the Township, and Mr.
Township although he does it for other Townships.
Mr. Kim stated he felt that it was testified that the growth indicated by this proposal was
equal to twenty homes, and Mr. Richardson stated this is correct in terms of peak hour
trips. He stated he is not certain that they could build that many homes on this site.
Mr. Kim stated if there was a proposed development such as this, would they have the
same requirements such as left hand turns, and Mr. Richardson stated technically they
would not; and he did indicate that it was not warranted other than because of the type of
Mr. Mayrhofer stated further west toward Stony Hill toward the shopping center, the
traffic is much more prevalent and not anywhere near what they are recommending for
February 1, 2005 Zoning Hearing Board – page 9 of 16
this area. Mr. Richardson stated Applications are reviewed on their own merit. He stated
those shopping centers could have been built prior to the time when they required such
Mayrhofer stated when traveling east on
Mr. Richardson stated he does not have any information to support this.
Mr. Kim asked if benefit to the community of a particular use is to be considered in the
grant of a Special Exception. Mr. Toadvine stated it is not. He stated they are uses that
are permitted in the Zone, not as a right, but if certain requirements are met. He stated
many Special Exceptions are institutional-type uses such as schools, churches, hospitals,
etc. and in that case there is a principal recognized in the Comprehensive Plan of the
Township that these uses are beneficial to the Township. Mr. Koopman stated there are
provisions in the Ordinance, and they need to read this. Mr. Murphy objected stated he
did not feel Mr. Koopman should answer this. Mr. Koopman stated he feels the
Township is going to ask that they be able to submit legal Memorandum on this issue.
Mr. James Majewski was called and sworn in. He stated he is a professional engineer
and works for PCS. He
is a licensed professional engineer in the
was marked as Exhibit T-4. Mr. Murphy agreed to stipulate Mr. Majewski qualified as a
civil engineer. Mr.
Majewski stated he has represented
almost three years and is familiar with the Township Ordinances. He stated he has
reviewed the Application for a Special Exception filed by
Exhibit A-11 and prior versions of the Plan. He noted all Plans depicted a two-story
structure as shown in the Application. Mr. Majewski stated he has not reviewed any
proposed three-story plans. He has been present during most of the prior Hearings when
testimony was given. He stated he was not present at one meeting but did review the
Minutes and discussed the matter with Mr. Wagner who was present at that meeting.
Mr. Majewski stated the property is zoned R-3M and he has reviewed the Zoning Map
showing where this property is located. It was noted the site is located in the southwest
corner of the intersection of Stony Hill and
southeast side of the intersection and down to the Railroad is zoned R-3M.
Mr. Koopman asked that the Zoning Hearing Board take judicial notice of the area zoned
R-3M. Mr. Majewski noted this portion of the R3M is already developed except for this
particular property. Mr. Majewski stated it has developed primarily as residential
properties, those being single-family, detached dwellings. In the area north of the
Railroad tracks in the R-3M, there are no commercial or institutional uses and they are all
residential of one nature or another. Mr. Koopman stated if
proceed by Special Exception, it would be the only institutional/commercial use within
the R-3M north of the Railroad track area, and Mr. Majewski agreed. Mr. Koopman
February 1, 2005 Zoning Hearing Board – page 10 of 16
asked if it would be inconsistent with the prior development of that area of single-family
homes. Mr. Murphy objected noting he has already answered this question.
Mr. Koopman noted the Application and asked if the proposed use of the property
depicted on A-11 complies with the impervious surface regulations in the R-3M Zoning
regulations, and Mr. Majewski stated it does not. He stated the R-3M has an impervious
surface ratio of 17% and the Plan shows 19.75%. Mr. Koopman stated the Applicant has
requested a Variance from this requirement, and Mr. Majewski agreed. Mr. Koopman
asked if there is any change the Applicant could make to the Plan to provide for
compliance with the impervious surface regulations of the Zoning Ordinance and still use
it as an Assisted Living facility. Mr. Majewski stated they could reduce the size of the
building and the associated parking. Mr. Koopman asked if there is any reason from an
engineering perspective why an Assisted Living facility or single-family, detached homes
could not be constructed on this property consistent with the impervious surface
regulations. Mr. Majewski stated he knows no reason why they could not.
Mr. Majewski noted the principal use permitted in the R-3M which is single-family,
detached. Mr. Koopman asked if he feels the property could support single-family,
detached development consistent with the impervious surface regulations of the
Township Zoning Ordinance. Mr. Murphy objected based on relevance. Mr. Koopman
stated relevance goes to whether there is any hardship for an impervious surface
Variance. Ms. Kirk allowed it, and Mr. Majewski stated he does feel it could support a
single-family, detached development consistence with the impervious surface regulations.
Mr. Koopman asked if Mr. Majewski attended the Planning Commission meeting when
this project was discussed, and Mr. Majewski stated he did. Mr. Koopman asked what
they recommended. Mr. Murphy objected noting this is in the record. Ms. Kirk stated
she would allow him to answer. Mr. Majewski stated they suggested that they add
additional parking. Mr. Koopman noted A-11 and asked if it adds any additional parking
as recommended by the Planning Commission. Mr. Majewski stated it does not.
Mr. Koopman asked if additional impervious could be added without a further violation
of the impervious surface regulations, and Mr. Majewski stated it could not.
Mr. Koopman stated if this facility were constructed and a condition were attached to
provide additional parking, that condition could not be complied with without further
relief from the Zoning Hearing Board and without further violation of the impervious
surface regulations, and Mr. Majewski agreed.
Mr. Koopman asked if Mr. Majewski was present during the Fire Marshall’s testimony
and heard his recommendation about a paved access around the facility, and
Mr. Majewski stated he was. Mr. Koopman asked if such a paved access could be added
without further violation of the impervious surface requirements, and Mr. Majewski
stated it could not.
February 1, 2005 Zoning Hearing Board – page 11 of 16
Mr. Koopman asked if Mr. Majewski is familiar with the Township Zoning Ordinance
requirements for water course buffers, and Mr. Majewski stated he was.
Mr. Murphy objected and asked for an offer of proof as he is
not convinced that
Mr. Majewski is qualified to discuss wetland buffers, etc. He stated this is also a Land
Development issue that is not relevant to tonight’s proceedings. Ms. Kirk asked for an
offer of proof as to whether Mr. Majewski is qualified to testify as to the water courses.
Mr. Koopman stated Mr. Majewski is a licensed, professional engineer in the
Township Zoning Ordinance provisions. Mr. Koopman stated the Zoning Ordinance
calls for a water course buffer. He stated Mr. Majewski has performed these evaluations
doing Zoning Ordinance reviews of Land Development Applications. Ms. Kirk noted
Exhibit A-7 submitted by the Army Corps of Engineers dealing with waterways and
water courses and asked how Mr. Majewski’s testimony would be different than what
was set forth in that letter. Mr. Koopman stated that primarily dealt with wetlands. He
stated the Army Corps study did not deal with water course buffers. He stated the
Township Zoning Ordinance calls for water course buffers and these are part of the
performance standards within the Township Zoning Ordinance. Mr. Koopman stated the
Army Corps study dealt with wetlands and did not deal with location of water courses.
The purpose of the Army Corps jurisdictional study was to delineate wetlands.
Mr. Majewski would testify that there are water courses on this property and would read
the definition of water courses under the Zoning Ordinance – water courses that are not
located on Plan A-11. Mr. Koopman stated the Township Zoning Ordinance requires
buffers from those water courses; and noted that the
proposed building of the
facility is located within the water course buffer in violation of the Township Zoning
Mr. Toadvine stated the Applicant has not requested a Variance from the water course
buffers, and Mr. Koopman agreed. Mr. Toadvine asked why they are discussing this.
Mr. Koopman stated you cannot grant a special Exception under this circumstance.
Mr. Toadvine stated they can grant a Special Exception because this is a use request.
He stated if the Applicant has failed to request the necessary Variances to construct this
building, then he will not receive a building permit. Mr. Koopman stated they cannot
grant a Special Exception unless they determine that the proposed use is in conformance
with all applicable requirements of the Zoning Ordinance and the testimony is that this
project does not comply with the Zoning Ordinance. He stated the Board has heard
testimony that it does not conform with the impervious surface regulations of the Zoning
Ordinance, and he is offering that this project does not likewise conform with other
provisions; in particular the water course buffer Ordinance adding that they have a
building located in the water course buffer. Mr. Koopman stated the Ordinance also
requires that yard space be measured from the edge of the resource protected area and
they have the building located within the rear yard. He stated the proposed construction
of this building is substantially in violation of a number of the Zoning Ordinance
requirements in addition to the impervious surface.
February 1, 2005 Zoning Hearing Board – page 12 of 16
A short recess was taken.
The meeting resumed, and Ms. Kirk stated there was an objection on the record as to
the relevancy of Mr. Majewski’s testimony concerning waterways. After consulting with
the Board’s Solicitor, she feels the earlier testimony offered by the Applicant was that
they would comply with all landscaping and buffering requirements under the Zoning
Code, so she is sustaining the objection. Mr. Koopman stated he will state for the record
that he does not agree that they have agreed to comply with all buffer requirements.
Mr. Koopman asked if this also applies to Mr. Majewski’s testimony that the Township
feels there are structures within the rear yard in violation of the Ordinance, and Ms. Kirk
stated that it does.
Mr. Koopman noted Section 200-78C2 of the Zoning Ordinance, and Mr. Majewski was
asked to read the definition. Mr. Murphy objected and asked for an offer of proof.
Mr. Koopman stated the Board should take judicial notice of it. Ms. Kirk stated they will
take judicial notice of this section of the Zoning Code.
Mr. Murphy stated Mr. Majewski indicated that for the area west of the railroad tracks,
all the land uses were residential; and Mr. Majewski agreed. Mr. Murphy asked what is
north it is R-2 and there is a Fire house and single-family residences. Mr. Murphy stated
there is also a shopping center. Mr. Majewski stated the shopping center is northwest
across the street. Mr.
Murphy stated across from
development as there is immediately to the south; and Mr. Majewski agreed.
Mr. Murphy noted Mr. Majewski’s testimony about the impervious surface as presented
exceeds the 17% allowed in the R-3M District, and he had indicated that one way the
excessive impervious could be reduced would be to reduce the size of the facility; and
Mr. Majewski agreed. Mr. Murphy stated another way to do this would be to construct a
three-stony facility. Mr. Koopman objected noting that a three-story facility is not before
the Board. Mr. Koopman stated if Mr. Murphy would like them to consider a three-story
facility, he feels the law requires that he submit another Application and there should be
another advertisement. Mr. Murphy stated he asked if there is another way to reduce the
impervious surface and that would be to increase the height of the building.
Mr. Koopman stated the issue is not before the Board. Mr. Murphy stated the issue is
use, and not the building. Ms. Kirk stated she feels the Applicant also testified earlier
that they had a choice of a two-story or a three-story structure, and they decided to
choose the two-story structure. She agreed to allow the question to be answered.
Mr. Majewski stated a three-story structure could reduce the impervious surface.
February 1, 2005 Zoning Hearing Board – page 13 of 16
Mr. Murphy noted the Planning Commission recommendation and noted that
Mr. Majewski testified that one of the recommendations was that additional parking be
provided. Mr. Murphy asked if he recalls that the Planning Commission made that
recommendation knowing full well that it would result in a further increase in impervious
surface, and Mr. Majewski agreed and noted that they were still in support of this.
Mr. Murphy asked if Mr. Majewski previously commented on this Application in writing,
and Mr. Majewski stated he did noting his letter dated July 19, 2004. Mr. Murphy stated
that other than mentioning the Special Exception, and the fact that a Variance would be
required for impervious surface and submissions regarding off-street parking, he made
mention of no other concerns at that time, and Mr. Majewski agreed that this was correct
at that time. Mr. Murphy asked if he would acknowledge that the letter of July 19, 2004
predated the time when he became aware of the Township’s opposition. Mr. Majewski
stated he was not sure of the timing of this. Mr. Murphy asked if Mr. Majewski’s letter
was included in the Township file. Ms. Kirk stated she feels it was included in the
Board’s packet but it was not marked as an Exhibit. The letter was marked as
Mr. Koopman noted the fire house and commercial uses that Mr. Murphy referred to and
stated they are not within the R-3M Zone, and Mr. Majewski agreed.
Mr. Koopman asked if the Planning Commission made a recommendation either way or
addressed at all the impervious surface Variance that is part of this Application, and
Mr. Majewski stated they did not. Mr. Koopman stated the Ordinance requirement is
that they address the Special Exception issue and not Variances, and Mr. Majewski
agreed. Mr. Koopman stated the Planning Commission did not recommend the grant of
any impervious surface Variance Mr. Murphy objected and stated the recommendation
speaks for itself. Ms. Kirk sustained.
Mr. Koopman noted the July 19 letter was written before Mr. Majewski had the
opportunity to hear the Applicant's presentation of the case, and Mr. Majewski agreed
and was also before they had any topography for the area showing the surrounding
features. It was also before A-11 was submitted.
Ms. Kirk asked if Mr. Majewski has done any further updated written review of the
Application since the July 19 letter, and Mr. Majewski stated they have not.
Mr. Murphy asked if the July 19 letter refers to the original version of A-11 dated
April 12, and Mr. Koopman objected stating the letter speaks for itself.
Mr. Toadvine stated Mr. Majewski testified about the impervious surface issue that a
residential development could be built here without the necessity for a Variance for
impervious surface, and Mr. Majewski agreed. Mr. Toadvine asked approximately how
February 1, 2005 Zoning Hearing Board – page 14 of 16
many homes could be built, and Mr. Majewski stated without evaluating it, he could not
tell. He stated it would be based on the site capacity calculations which have not been
done for this site as well as lot frontages, lot widths, etc.
Mr. Mayrhofer asked if townhouses could be built on this site, and Mr. Majewski stated
he does not feel they could be built under R-3M.
Mr. Bamburak asked the maximum building height allowed, and Mr. Majewski stated it
is 35 feet.
Mr. Murphy stated Mr. Majewski indicated that in response to Mr. Koopman’s question
that the principal use in the R-3M was residential, and Mr. Majewski agreed. Mr. Murphy
stated Mr. Majewski freely acknowledged that in Section 228 there are a wide number of
uses that could be permitted on the site, and Mr. Majewski agreed. Mr. Murphy stated he
also indicated that the maximum impervious surface permitted is 17%, and Mr. Majewski
agreed. Mr. Murphy asked about development of single-family homes. Mr. Koopman
objected noting this has already been discussed. Mr. Murphy asked if this site were to be
developed for residential, is it correct that the amount of impervious that would be
permitted would be 17% for each of the lots to be constructed which would be in addition
to any roadway installed. Mr. Koopman objected. He stated he pointed this out as part of
the initial presentation by one of his witnesses. Ms. Kirk overruled the objection.
Mr. Majewski stated that this is correct. Mr. Koopman stated he would object due to
relevance. Mr. Murphy stated he is only indicating that the actual amount of impervious
that could be placed on this property were it to be developed as residential is far in excess
of what is proposed by this Applicant. Mr. Koopman stated he feels this is irrelevant and
he would object. Ms. Kirk stated this can be included in the legal memorandum.
Testimony was concluded.
Ms. Kirk asked for public comment. Mr. Larry Borda,
and his neighbors were hoping to present the Board with a united position. They were
under the impression that this meeting was not to take place until February 8 based on
comments made at the last meeting. Ms. Kirk stated they did correct this at the meeting,
and it is on the record. Mr. Borda stated he is not prepared to tell his personal opinion at
this time. He stated he would like the chance to talk to his neighbors and get some
consensus on the feelings of the people who are directly impacted by this development.
He stated his own property backs up to the proposed development and is at the
intersection of where the drainage pipe for the basin is planned at the swale behind his
home. He stated he would like to have the opportunity to have an engineer look at this.
He is also not sure what the impact would be on the property values. He feels that this
could take two weeks, and he would like to have this time.
February 1, 2005 Zoning Hearing Board – page 15 of 16
Ms. Kirk stated there have been numerous residents present who have testified and
become Parties to this Application starting with the first Hearing so she feels that a
number of the residents that may be affected by this proposed development have voiced
their opinions and requested Party status. She does not feel the Board would be inclined
to continue this matter any further as they have already had several Hearings since the
Application was field in November. She stated he could request Party status, and
Mr. Borda requested this at this time.
Mr. Borda stated Mr. Huegler did ask him to read something, and Ms. Kirk stated
Mr. Huegler did request Party status and had the opportunity at earlier Hearings to voice
his concerns and objections.
Mr. Ralph Nuzzolo was present and asked to speak. Ms. Kirk stated Mr. Nuzzolo did
previously request Party status and did have the opportunity to speak previously.
Mr. Nuzzolo stated he did attend the Hearings and it has been confusing to him.
He stated he has been a resident of the community for the past forty years and has no
objection to what the Applicant is proposing. He stated if the Zoning Hearing Board
decides to approve the Applicant’s request, he would ask that the impervious surface
Variance be granted as he feels that the two-story facility that has been proposed has
some aesthetic and architectural value compared to the three-story structure which would
be like a box. He stated he is not sure what the Township has in mind for this property.
He stated other projects have come become the Township for this site, and he feels this
one is the most Appealing and he would be in support of the proposal.
There was no further public comment.
Ms. Kirk moved, Mr. Bamburak seconded and it was unanimously carried to close
Ms. Kirk suggested that Memorandum of Law with proposed Findings of Fact and
Conclusions be submitted to the Board. She asked how long they would need.
Ms. Kirk stated the Board is not planning to meet on March 1 and technically the Board
has forty-five days from today’s date in order to render a Decision, unless the Applicant
would be willing to waive that requirement to allow the Board to render a Decision at
their next meeting which would be March 15, 2005. Mr. Murphy agreed to this
Extension so that they can render a decision on March 15, 2005. It was asked that
Memorandums be submitted by March 1. It was noted that the meeting to be held on
March 15 would be for Decision only and no further testimony will be taken.
Ms. Kirk moved, Mr. Mayrhofer seconded and it was unanimously carried that
Memorandum of Law with proposed Findings of Fact and Conclusions of Law be
submitted to the Board by both the Applicant and the
Township to the
by March 1, 2005 with the intention that the Board will render a Decision on March 15,
February 1, 2005 Zoning Hearing Board – page 16 of 16
Ms. Kirk stated she has been notified by Ms. Ellison that there are no Applications in at
this time which need to be scheduled for March 1, and they can cancel that meeting.
Mr. Dobson moved, Mr. Bamburak seconded and it was unanimously carried to cancel
the meeting of March 1, 2005.
There being no further business, Mr. Mayrhofer moved, Mr. Dobson seconded and it was unanimously carried to adjourn the meeting at 9:30 p.m.
Barbara Kirk, Chairman