TOWNSHIP OF LOWER MAKEFIELD

ZONING HEARING BOARD

MINUTES – JANUARY 4, 2005

 

 

The regular meeting of the Zoning Hearing Board of the Township of Lower Makefield was held in the Municipal Building on January 4, 2005.  Chairman Kirk called the meeting to order at 7:30 p.m.

 

Those present:

 

Zoning Hearing Board:  Barbara Kirk, Chairman

                                                Rudolph Mayrhofer, Vice Chairman

                                                David Malinowski, Secretary

                                                Paul Bamburak, Member

                                                Greg Caiola, Alternate

                                                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

 

Absent:                         Darwin Dobson, Zoning Hearing Board Member

 

 

REORGANIZATION OF ZONING HEARING BOARD FOR 2005

 

Mr. Mayrhofer moved, Mr. Bamburak seconded and it was unanimously carried to appoint Barbara Kirk as Chairman of the Zoning Hearing Board for the year 2005.

 

Ms. Kirk moved, Mr. Malinowski seconded and it was unanimously carried to appoint Rudolph Mayrhofer as Vice Chairman of the Zoning Hearing Board for the year 2005.

 

Ms. Kirk moved, Mr. Mayrhofer seconded and it was unanimously carried to appoint David Malinowski as Secretary of the Zoning Hearing Board for the year 2005.

 

Ms. Kirk moved, Mr. Caiola seconded and it was unanimously carried to re-appoint Bucks County Court Reporters as the Court Reporter for the Zoning Hearing Board for the year 2005 under the same terms and conditions.

 

Ms. Kirk moved, Mr. Caiola seconded and it was unanimously carried to re-appoint Allen Toadvine of the law offices of Marte and Toadvine as the Zoning Hearing Board Solicitor for the year 2005 for an hourly rate of $115 subject to approval of the Board of Supervisors.

January 4, 2005                                                           Zoning Hearing Board – page 2 of 25

 

 

APPEAL #04-1292 – THOMAS J. MACK CONSTRUCTION, INC.

 

Mr. Caiola acted as the Zoning Hearing Board Alternate for this Appeal.

 

The Application was marked as Exhibit A-1.  Attached to that was a Plot Plan prepared

by J. G. Parks for Tax Parcel #20-22-107 which was marked as Exhibit A-2.

 

Mr. Thomas Mack and property owners Mr. Ken and Mrs. Kim Jankowitz were sworn in. 

Mr. Mack stated the property is Tax Parcel #20-22-107 and is located at 1021 Lafayette

Drive in the Sandy Run II Section.  Mr. and Mrs. Jankowitz have owned the property

since 1992.  The property is zoned R-2 and is 16,500 square feet.  They are requesting a

Variance to erect a 162 square foot addition to the rear of the home to be an extension of

the kitchen and breakfast area.  They are asking for relief from Section 200-23B – the

Impervious Surface requirement.  The maximum permitted in this area is 15% and the

existing property is currently at 26.16%.  The existing dwelling, driveway, walks, etc.

was built in 1969; and the original property exceeds the limits of the impervious surface

in its original form.  The original property exceeds both the 1979 and 1994 Ordinance,

but the property pre-exists those Ordinances.  They are proposing to reduce the ratio to

24.65%.  They will remove 401 square feet of existing brick patio which they have been

able to determine has been there in excess of twenty-five years.  They will also remove

178 square feet of railroad tie steps and ten square feet of railroad tie wall.  This will

reduce the existing impervious by 589 square feet.

 

Ms. Kirk asked about the 200 square foot note on the Plan.  Mr. Mack stated there was

discussion whether the rip-rap was pervious or impervious.  They originally felt it was

impervious, and it was subsequently decided it was impervious. 

 

Mr. Koopman stated the Township is taking no position with respect to this Application. 

 

There was no public comment.

 

The property owners indicated that the testimony given by Mr. Mack was correct.

 

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

approve as presented at 24.65%.

 

 

APPEAL #04-1293 – KRISTINE AND KEVIN WOJNOVICH

 

Mr. Caiola acted as the Zoning Hearing Board Alternate for this Appeal.

 

Mr. Kevin and Mrs. Kristine Wojnovich were sworn in.  The Application was marked as

Exhibit A-1.  The Plan of the proposed shed was marked as Exhibit A-2.  Mr. Wojnovich

January 4, 2005                                                           Zoning Hearing Board – page 3 of 25

 

 

stated the property is located at 101 Ovington Road.  The Zoning requires that all lots

constructed before 1986 have 18% impervious surface and thereafter it is 25%.  They are

trying to get 1.87% to install a shed at the rear of their property.  They originally

considered this approximately three years ago.  He stated the Application process calls

for hardships and they have two – one being that his wife’s parents are splitting time

between her sister’s house and theirs in Yardley as her father has had a massive stroke

and they do not want to put him in a home.  They have hired a nurse to come in full-time. 

Her mother has also had hip replacement recently.  They would like to move some items

from their garage into the shed so that they can convert the garage into living space.  He

stated there is also a lack of space in the house as it exists.  They have no basement. 

Mr. Wojnovich stated as far as the height and dimensions are concerned, he noticed that a

number of his neighbors are present so he would be willing to modify the request.

 

Ms. Kirk stated they are requesting a Variance to permit the building height of the shed to

be higher than the permitted limit of 15 feet.  Mr. Wojnovich stated they wanted to build

an 18 foot high shed.  Mrs. Wojnovich stated they wanted loft space for storage. She

stated the area where they want to install the shed is rather unsightly with brush and is

overgrown, and they would agree to make this area look nicer. 

 

Ms. Kirk stated the Plan does not show the type of shed they plan to install. 

Mr. Wojnovich stated it would be all wood, and the siding and the roof would match the

house.  It would have a barn roof.  Mr. Wojnovich stated they would plant additional

trees next to it.  He stated there is a run off concern, and they would agree to put in silt

fencing to make sure this is mitigated.  Ms. Kirk asked about the run off on the property,

and Mr. Wojnovich stated seven years ago the previous property owner had the property

graded and it does drain very well especially when they clean out the gutters.  He stated

the property drains left to right, and they have it bermed down their driveway into the

back yard between the houses and down into the Canal.

 

Mr. Bamburak asked about adjacent properties.  Mr. Wojnovich stated there is a house to

the right and to the rear of their property as well.  Mr. Bamburak asked what is in their

neighbors’ yards at those locations.  Mr. Wojnovich presented a picture of the property

showing the rear yard.  This photo was marked as Exhibit A-3.  Mr. Wojnovich stated the

property is higher in the front and lower in the rear.

 

Ms. Kirk stated based on the Plan submitted, they have 19.5% impervious surface, and

Mr. Wojnovich stated this is correct. 

 

Mr. Mayrhofer asked how they would modify their request, and Mr. Wojnovich stated

they could withdraw the request for building height.  He stated they would be willing to

keep to the 15 foot requirement. 

 

 

January 4, 2005                                                           Zoning Hearing Board – page 4 of 25

 

Ms. Kirk asked if there is any way they can reduce the impervious coverage since they

already exceed the impervious coverage.  Mr. Wojnovich stated they could take out the

walkway in the front and replace it with pea stone.  Mr. Mayrhofer stated this may still be

considered as impervious surface.  Mr. Majewski stated if it was loose and free-draining,

it would not be considered impervious.  Mrs. Wojnovich stated they could also take out

the brick patio in the rear.  Ms. Kirk asked the size of this, and Mr. Wojnovich stated he

feels it is 380 square feet.  It does not go under the wood deck.   Ms. Kirk stated if the

shed is 374 square feet, and if they are willing to remove the brick patio which is 380

square feet, she questions if they would still need a Variance.  Mr. Toadvine stated they

would since they still exceed the maximum impervious surface permitted. 

 

Mr. Mayrhofer stated they may not have to lose their brick patio and stated if they

removed the walkway, he would be satisfied with that rather than requiring them to

remove the brick patio.  Ms. Kirk asked the square footage of the walkway, and

Mr. Wojnovich stated he calculated this to be 222 square feet. Mr. Habgood stated he has

done some calculations but no building permit was submitted.  He calculated the front

walk to be 140 square feet. 

 

Mr. Koopman stated the Township is taking no position with respect to this Application. 

 

Ms. Ann Kimble and Mr. Edward Kimble, 1804 Westover Road were present.

Ms. Kimble presented a map to the Board.  Ms. Kimble stated the current dwelling is in

itself an exception to the Zoning laws.  At the time the house was built, the neighbors had

to grant special permission because the size of the current dwelling exceeded the zoning.

She stated it is a matter of record that the Township has always considered the lot at 101

Ovington Road too small for the size of the house.  She stated the size of the structure

proposed is the size of a two-car garage.  She stated she is also concerned about water run

off because the subject property is on higher ground.  She showed pictures of the area.

Ms. Kimble stated removing impervious surface in the front will not really help because

the problems are in the back.

 

Mr. Bamburak asked if there are pictures showing the damage that has been done such as

swales, etc.  Ms. Kimble stated she does not have any photos of any current damage.  She

noted a photo of the proposed location where the shed is to be located.

 

Mr. Malinowski questioned how a shed of this size could create so many problems. 

Ms. Kimble stated they already have terrible water problems at the current time, and they

are concerned that any additional impervious surface will just add to the problems.  She

stated the proposed Plan also calls for a silt fence and a drainage trench which suggests

that there is the potential for water run off problems. They do not feel this will help the

situation and could in fact add to the problems to the subterranean streams.  She stated

the silt fence will border three properties and could also present undesirable effects by

funneling the water into 102 Vernon. 

 

January 4, 2005                                                           Zoning Hearing Board – page 5 of 25

 

 

Mr. Mayrhofer stated the silt fence would only be up during construction. 

Mr. Wojnovich stated it is proposed that the fence will be permanent and will be under

the ground so that the water drains into the ground.  The silt fence will be totally under

the ground.

 

Ms. Kimble stated both the silt fence and the trench could become clogged, and they have

no assurance that these will be maintained.  She stated in order to erect the shed they will

have to take out bushes and trees which could also cause problems with water.   They are

also concerned about the impact on the root systems of their own trees.  She stated they

are also concerned about the impact on the retaining walls between 101 Ovington Road

and 1804 Westover and 101 Vernon Road which could also cause erosion and run off.

 

Ms. Kimble stated Westover is one of the most highly-valued neighborhoods in the

Township and the wooded nature of the area is a strong selling point.  She stated this building which is the size of a two-car garage will be only ten feet from two adjacent lots. 

She stated the homeowners of 101 Ovington Road have just recently cut all of the leaf-

bearing branches from three trees in the rear yard, and she is concerned about the

environmental damage this may have caused.   The Board noted the homeowner is

permitted to trim trees on his property. 

 

Ms. Kimble stated she does have a number of alternatives which they should consider

that would not impact the environment or property values in the neighborhood.  She

stated a two-story,  two-car garage could be constructed in the current area where the

garage is located.  Ms. Kirk stated the Board can only hear testimony as to what is being

requested under the Zoning Ordinances and any alternative proposals should have

been discussed with the property owner or suggested beforehand.  Ms. Kimble stated she

has many other alternatives to suggest.  Ms. Kimble asked how they could become parties

to the Application and Ms. Kirk stated they can request party status. 

Mr. and Mrs. Kimble requested party status at this time.

 

Ms. Caiola asked where they are with impervious surface at this point.  Ms. Kirk stated

the Applicant has indicated that they are willing to remove 380 square feet of existing

impervious surface which would leave them at the current impervious surface. 

 

Mr. Bamburak asked if the ten foot side setbacks for the shed are correct for this

property, and Mr. Habgood stated they are. 

 

Mr. Barrett Levine and Mrs. Rosealee Levine, 102 Vernon Lane, requested Party status.

Mr. Barrett stated they catch all of the subject property’s water.  He stated in a moderate

to major storm he gets a significant amount of water in his rear yard; and if they destroy

all of this watershed, it will create a problem.  He stated he has also talked to Realtors and

they feel this project will destroy the property values in the neighborhood.  Mr. Levine

stated what they are proposing is not really a shed, it is a garage.

January 4, 2005                                                           Zoning Hearing Board – page 6 of 25

 

 

Mr. Phillip Mitchell, 104 Vernon Lane, requested Party status.  Mr. Mitchell stated he is 

concerned with the grading and the slope of the hill.  He is lower on the slope and is

concerned about the run off into his yard.  He stated he had to spend several thousand

dollars to help alleviate water. 

 

The following requested Party status although they did not speak at this time:

 

            Mark Sweet – 103 Ovington Road

            Pat Soltis     1802 Westover Road

 

Mr. Toadvine stated those who have requested Party status will be notified of the

decision of the Board in writing.

 

Ms. Kirk stated the testimony has now been concluded.  The meeting was recessed for

five minutes in order for the Board to discuss a legal issue with Mr. Toadvine.

 

The meeting was again called to order. Mr. Toadvine asked Mr. Wojnovich if they are

committed to the size of the shed being 17’ by 22’.  Mr. Wojnovich stated they could

make it smaller.   Ms. Kirk suggested that rather than make a decision on this tonight,

they could have the matter continued so that they could go back and re-calculate what

they would like to propose.  Mr. Mayrhofer stated they should also consider having a

zero effect on the impervious surface and what they would be able to eliminate in the

form of the existing impervious surface.  Mr. Wojnovich stated they would be willing to

agree to a condition that whatever the size of the shed would be, they would remove an

equal amount of existing impervious surface.  Mr. Wojnovich stated they could agree to a

12’ by 12’ shed.  Ms. Kirk stated she felt that the Applicant was agreeing to proceed with

the proposed shed which is 374 square feet, and they would be willing to remove 374

square feet of impervious surface elsewhere on their property.  Mr. Mayrhofer stated if

they agreed to a zero effect, he could make the building smaller and he would then not

have to take as much out from the patio, etc. Mr. Wojnovich stated they would be willing

to amend the request to a 12’ by 12’ shed which would be 144 square feet. 

Mrs. Wojnovich stated she would prefer to take existing impervious out and then install

the shed which would result in a zero impact. 

 

It was suggested by the Board that Mr. and Mrs. Wojnovich take some time to consider

this further to determine what they need.  Ms. Kirk stated they would be put on the next

Agenda which would be held on January 18 and come in and present to the Board any

modifications to the proposed Plans and Variances that they have requested. 

Mr. Wojnovich stated they would like to do this. Ms. Kirk stated if they revise the Plans

and show new calculations, it would be good to submit them a week before the Hearing

so that they can be reviewed by the Zoning Hearing Board prior to the meeting.

Mr. Bamburak stated he would also like to see a sketch of the proposed building.

 

January 4, 2005                                                           Zoning Hearing Board – page 7 of 25

 

 

Ms. Kirk moved, Mr. Mayrhofer seconded and it was unanimously carried to continue the

matter to January 18, 2005.

 

 

APPEAL #04-1294 – ROBERT D. QUINN

 

Mr. Caiola acted as the Zoning Hearing Board Alternate for this Appeal.

 

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

Permit Plan for Tax Parcel #20-53-53 and #20-53-67 dated 10/21/04 which was marked

as Exhibit A-2.  Mr. Robert Pelke from J. G. Parks, Mr. Ronald Vaughn, Jr., architect,

and Ms. Sandra Quinn were sworn in.

 

Mr. Pelke stated the Quinns would like to remove an existing garage and shed

combination.  Pictures of the existing shed were presented and marked as Exhibit A-3. 

Ms. Kirk stated there are two photographs on one sheet.  Mr. Pelke stated they would like

to replace this with a new garage and will need two Variances.  One is from Section

200-13 for the impervious surface and the other is Section 200-51(B)(1)(b) for

disturbance of the floodplain.  The new garage will be 1200 square feet versus the

existing which is 856 square feet.  They are calculating the impervious surface of the

driveway which is gravel at 100%.  If they could calculate the driveway at 70%, and use

the little if strip of ground which is across River Road, this would bring them down to

13.6% impervious surface.  They will also move the garage further to the rear for the

additional driveway they will need to put in.  With regard to the floodplain, the existing

garage and shed are in the floodplain so to remove it and replace it with another garage,

they will have to disturb an area inside the floodplain.

 

Ms. Kirk stated the Plan that was submitted shows the proposed driveway is coming from

the front of the house and veering toward the left and then looping back to the back of the

proposed garage and then coming back up to the right.  Mr. Pelke stated there will be a

garage door on the side because it is a garage/shed combination.  There will not be

another building at the end of the driveway behind the property.  After review of the Plan,

it was noted that this is not a driveway – it is a contour line. 

 

Mr. Toadvine asked if they used both Tax Parcels when they calculated the impervious

surface and Mr. Pelke stated they only used one.  They did not use the parcel on the other

side of River Road.  Mr. Toadvine asked what it would be if they included the parcel

across the street, and Mr. Pelke stated it would be 3,327 square feet.  Mr. Mayrhofer

stated he feels this is irrelevant since it is on the other side of the road. 

 

Mr. Malinowski asked about their hardship.  Mr. Vaughn stated while the existing garage

is not dilapidated, it is showing age and this was an opportunity for the Quinn/Millers to

 

January 4, 2005                                                           Zoning Hearing Board – page 8 of 25

 

 

replace the garage.  The existing building is 856 square feet and was done in three stages

so it was done piecemeal.  He stated it will also give a cleaner entrance to the garage as

the cars approach.  He stated they will comply with all height requirements.  It will be a

garage downstairs with unfinished storage space upstairs.  The new garage will be a

three-car garage.  He showed the front and side elevations.  

 

Mr. Bamburak asked about the gravel driveway and asked the technical reason for  this

being considered 70% impervious surface.  Mr. Pelke stated for the soils they have, there

are engineering handbooks giving this recommendation.  Mr. Majewski stated the

Township considers gravel for a driveway to be 100% impervious.  Two photos on one

sheet showing the existing driveway were presented and marked as Exhibit A-4. 

Mr. Pelke stated the compacted area of the driveway will only be where the tires go

across. 

 

Mr. Koopman stated the Township has no position on this Application.

 

Ms. Judy Curlee, 551 River Road, stated she is the next door neighbor and asked to see

the elevations.  She stated she was concerned with the aesthetics and she is now satisfied.

 

Ms. Quinn stated she concurred with the testimony given.

 

Mr. Caiola moved and Mr. Mayrhofer seconded to accept the Application as presented. 

Motion carried with Mr. Malinowski opposed.

 

 

APPEAL #04-1295 – B & H SOLARIUMS

 

Mr. Caiola acted as the Zoning Hearing Board Alternate for this Appeal.

 

Mr. Brian Wolfgang, and homeowners Mr. Richard and Elizabeth McLaughlin were

sworn in.

 

The application was marked as Exhibit A-1.  Attached to the Application was a three-

page Plan of Lot #44 showing the house location, Plan prepared by Tri-State

Engineering, last revised 10/6/76 which was marked as Exhibit A-2.

 

Mr. Wolfgang stated they would like to add a sunroom addition to the rear of the home

on top of an existing patio.  There will be no change to the impervious surface.  The

existing impervious surface already exceed what is permitted under Section 200-23B of

18%.  The existing patio is larger than the proposed addition, and they will remove a part

of the patio and reduce the impervious surface from 22% to 21%. 

 

Mr. McLaughlin stated they have owned the property for one year.

January 4, 2005                                                           Zoning Hearing Board – page 9 of 25

 

 

Mr. Wolfgang stated they did talk to the next-door neighbor who indicated they felt the

existing patio had been there for fifteen years and at least and was installed without

knowledge to the Township.  They propose a one-story sunroom.  Mr. Wolfgang stated it

will be an octagonal shape in order to meet the side yard setbacks. 

 

Mr. Koopman stated the Township has no position on this matter.

 

There was no public comment.

 

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

approve the request as presented.

 

 

APPEAL #04-1290 – ANDREW AND WENDY KRAUS

 

Mr. Caiola acted as the Zoning Hearing Board Alternate for this Appeal.

Mr. and Mrs. Kraus were sworn in.  The Application submitted was marked as Exhibit

A-1.  Included in the Application was a one-page impervious surface breakdown which

was marked as Exhibit A-2.  The 8 ˝” by 11” Plan of the property entitled Proposed

Building Addition was marked as Exhibit A-3.

 

Mr. Richard Gelate, attorney, stated this is an Application for an impervious surface

Variance for the property at 6 Glenolden Road, which is part of the River Glen

Subdivision.  Mr. Gelate stated erroneous information was given to his clients by the

landscapers in Lower Makefield Township regarding the patios and walkways which

were constructed in June of 2004.  They have since found out that these should have been

considered impervious surface.  These were completed as part of a full renovation of the

house.  He stated subsequent to June, 2004 they have had heavy rains, and there was no

run off, no pooling of water,  and no detrimental impact as a result of the patios and

two walkways.  He stated they are not seeking to excuse the construction of the walkways

or patio noting that it was an honest mistake.

 

Three pages of photographs were presented and marked as Exhibits.  Exhibit A-4 consists

of two pictures showing the front and a view of the rear walkway. Exhibit A-5 consists of

two pictures – a view of the rear patio and the view facing the rear.  Exhibit A-6 is one

picture from the rear edge of the property.

 

Mr. Kraus stated he would like to clarify that the renovations were completed in June of

2004 but this work under discussion tonight was not initiated until September, 2004 and

was not part of the original renovation project.  They did get a Building Inspection

Approval and Certificate of Occupancy in June, 2004.  He stated they were doing

landscaping, re-grading, and hardscaping.  He stated they were told that this did not

involve any electricity, plumbing, or concrete and the walkways and patio were rolled

January 4, 2005                                                        Zoning Hearing Board – page 10  of 25

 

 

into the entire process of trees, bushes, etc.  He stated the front walkway, back walkway

and patio are blue stone that is sitting on top of crushed stone and there is no base. 

Mr. Kraus stated there were severe rains in September after the walkways and patios

were completed.  There was no run off, pooling, or puddling, and their basement

remained dry.

 

Mr. Gelate asked who they relied on to construct the walkways and patio without a

permit.  Mr. Kraus stated they felt they had imposed on their neighbors throughout the

construction process; and while they were in favor of the improvements to the property, it

was clear that they had to move forward with cleaning up the property.  They got three

bids from landscapers for trees, shrubs, walkways, patios and were advised that this was

all considered landscaping/hardscaping particularly because there was no concrete

foundation.  Prior to the construction of the new walkway, there was a walkway that had

been ripped up.  In the back there had been a porch that was ripped out.  As of

September 1, there was only dirt at that point.  He stated to get from the driveway to the

house there was only a dirt path to the back where the garage is located.  There is access

to the patio from the kitchen onto the deck and then onto the patio.  The distance from the

patio to the rear of the property is approximately 60’ of setback.  Mr. Kraus stated one of

the reasons they have submitted the pictures is that it give some understanding of the

neighborhood.  He stated their house is outside the 100 year floodplain and a small

section of their back yard is outside the 500 year floodplain.  Their neighbors on one side

and to the back are one and a half size lots.  The back of their property is now owned by

another family that goes to Black Rock Road and the lot is two acres.  They do have

letters from these neighbors indicating that they have no issues with regard to water or

aesthetics. 

 

Ms. Kirk noted the Plan submitted and particularly the darker lined areas showing the

walkways and patio.  She asked if this was the Plan that was submitted to the Zoning

Hearing Board in 2003 when they came in for the Variance. Mr. Kraus stated it is not. 

He stated the Plan is the same but they did not show the walkways or the patios. 

Ms. Kirk noted it does state on the Plan “proposed brick walkway, to be removed – a

brick walkway”, and in the rear there are sections that read “to be removed and

bituminous … to be removed”.  Mr. Kraus stated this was in fact removed. 

 

Mr. Mayrhofer stated the request in 2003 was for 22.5% including all the additions.

Mr. Kraus stated it did not include the patios and walkways. 

 

Mr. Kraus stated they have lived in the house since 1994 and are familiar with the area. 

Mr. Gelate asked if it is true that when they measured the impervious surface on the lots

on Glenolden Road, many exceeded 30% impervious surface.  Mr. Koopman objected to

this without knowing how the calculations were made and who made them.  Ms. Kirk

sustained.

January 4, 2005                                                         Zoning Hearing Board – page 11 of 25

 

Mr. Gelate stated there were portions of the driveways that were removed and the

original walkway was removed as part of the construction under the Plan submitted in

2003, and Mr. Kraus stated this is correct.  Ms. Kirk stated it does also state “proposed

brick walkway” on the Plan for 2003.  Mr. Kraus stated it was proposed that they would

at some point have a walkway.  Ms. Kirk asked if the bluestone walk is comparable to

what was proposed, and Mr. Kraus stated the existing walkway is a little less than was

proposed. 

 

Mr. Kraus stated he would like to address why they went ahead and did this without

obtaining Variances.  He stated that this was the feedback from the landscapers and that

other neighbors had done this without permit and they got the impression that because

there was no plumbing, electric, or concrete, this was, in fact, acceptable.  He stated he is

not one to take shortcuts as can be evidenced from the Variance Application for the

original construction.  Mr. Kraus stated the landscapers did not comment on the Plot Plan

and only used it as a tool for projected budgets. 

 

Mr. Bamburak asked why they came in for this after the fact.  Mr. Kraus stated there was

a neighbor who ultimately did not appreciate the level of noise in the cutting of the stone. 

He stated it is bluestone and it was cut on site and this individual took objection to this

and reported it to the Township.  He stated this was not an immediate neighbor.  It was an

individual residing on River Road approximately 350’ to 400’ away.  He stated

Mr. Habgood came out to the property and stated what they had done qualified as

impervious surface, and they would therefore need a Variance.

 

Ms. Kirk stated having gone through the process for the 2003 Variance request, she

questions why he did not call the Township to see if he needed a permit, and Mr. Kraus

stated he did not since it was his assumption from speaking to the landscapers and seeing

other neighbors do similar work,  that a permit was not required.  He stated there are now

a number of people who are in a similar situation as it was not common knowledge that

to put in a patio you would need a Variance and/or a Permit.  Mr. Mayrhofer stated he

agrees that this is true and feels there are many times when work is done for which

people should have obtained Permits and possibly come before the Zoning Hearing

Board.  He stated possibly this information should be included in a Township Newsletter

or communicated in some way to the residents what the requirements are.  Mr. Caiola

stated people also have misconceptions about replacing things.  Mr. Santarsiero stated

they do put out two Newsletters a year, and he will take this up with the Board of

Supervisors.

 

Mr. Koopman stated he agrees oftentimes people do not recognize permits are needed for

impervious surface, but Mr. Kraus was certainly aware of this since he had been through

the process in 2003 and knew that brick walkways were imperious.  He was familiar

firsthand with the requirements of the Township.  Mr. Koopman stated the Township is

opposed to this Application and the Township is requesting Party status.

January 4, 2005                                                         Zoning Hearing Board – page 12 of 25

 

 

Mr. Koopman asked the  name of the contractor, and Mr. Kraus stated it was

Mr. Marrazzo from Washington Crossing.  Mr. Koopman asked if he or Mr. Marrazzo

ever made an inquiry to the Township about whether this would be considered

impervious surface, and Mr. Kraus stated they did not.  Mr. Koopman noted Mr. Kraus

used the term landscaping and hardscaping and asked if the bluestone was hardscaping. 

Mr. Kraus agreed.  Mr. Koopman stated he would feel the term hardscaping would

indicate that it is a hard surface that may not be pervious.  Mr. Kraus stated Mr. Marrazzo

stated that it was not resting on concrete but was resting on crushed stone. 

 

Mr. Mayrhofer asked if the bluestone has openings between the stone so water can drain

in, and Mr. Kraus stated it does have a space which he estimated to be approximately one

inch.

 

Mr. Gelate stated he has five letters from neighbors not present this evening and three

letters from neighbors who are present this evening, all in favor of the Application.

Exhibit A-7 was marked which consists of five letters from neighbors including

the Nolans at 11 Glenolden Road, the Cuzicks at 9 Glenolden Road, the Slaters at 63

Black Rock Road, the Pattons at Black Rock Road, and the Rungers at 4 Glenolden.

Mr. Toadvine stated they are representing that all the letters are in favor of the

Application, and Mr. Gelate stated they are in favor and indicated that there was not any

adverse run off, etc. as a result of the walkways and patios which were constructed.

 

Mr. Charles Dickert was present and submitted a letter as well.  Mr. Dickert was sworn in

and stated he has lived at his home since 1992 and is familiar with Mr. and Mrs. Kraus. 

He stated since the renovations of the house and the installation of the walkways/patio

that are the subject of the Application, his property has had no adverse impact despite

heavy rains.  There has been no run off from their property onto his.  He stated his

driveway is on the same side as the Kraus’ and is visible to the patio.  No water has come

onto his property. He is in favor of the Zoning Hearing Board granting this Variance. 

He stated he was surprised that they needed a permit to install a patio.

 

Ms. Aimee Toadvine was sworn in and stated she has lived on Glenolden Road for two

and a half years.  She stated they are directly across the street from Mr. and Mrs. Kraus. 

They did discuss the renovations, the walkways, and the patio with her.  The work has

had no adverse impact on her property from the patio and walkways, and she is in favor

of the Variance being granted.

 

Mr. Gelate stated there are two other neighbors present and they would make similar

statements.

 

Mr. Koopman called Mr. Habgood who was sworn in and stated he is employed as the

Code Enforcement Office and has been so for four months.  Mr. Koopman noted the

2003 Application which was submitted which resulted in the grant of the Variance.

January 4, 2005                                                         Zoning Hearing Board – page 13 of 25

 

 

Mr. Gelate stated he would object since Mr. Habgood had nothing to do with that

Application.  Mr. Habgood stated he did review the original Application and the Plan that

was attached to the original Application.  Mr. Koopman noted the reference to a proposed

walkway on that Plan on the lower portion of the Plan.  Mr. Habgood was asked to read

the note.   Mr. Gelate objected.  He stated there is no reason for a witness to read

something that the Zoning Hearing Board can read for itself.  Ms. Kirk stated the

document speaks for itself.  Mr. Koopman asked Mr. Habgood if a complaint came to his

attention from neighbors of the Kraus’ and Mr. Habgood stated a resident complained

about the noise of stone being cut and the dust created.  As a result he inspected the

property and found that a patio was constructed in the rear of the property that was not

shown on the Plan.  He stated he checked the records and found that no permit was issued

for the patio or the walkway from the patio to the driveway.  Mr. Koopman asked if a

determination was made as to whether the walking and patio were impervious, and

Mr. Habgood stated he did and issued a Cease and Desist dated 10/12/04.  As a result of

this, the Application was filed with the Zoning Hearing. Board.

 

Mr. Koopman noted the close up photos of the bluestone paved patio and walkway, and

these were marked as Exhibit T-1 and Exhibit T-2.  These were shown to Mr. Gelate.

Mr. Habgood noted T-1 and stated this is a picture of the patio and accurately depicts the

bluestone patio.  T-2 is a picture standing on the patio taking a picture of the walkway

from the patio to the driveway and accurately shows the spacing between the bluestone.

 

Mr. Gelate stated Mr. Habgood testified that he has worked for the Township for

approximately four months and asked for his start date.  Mr. Habgood stated he started on

September 7, 2004.  Mr. Gelate asked when the patio was completed, and Mr. Habgood

stated he felt it was approximately mid-September.  Mr. Gelate asked the purpose of

issuing the Cease and Desist Order.   Mr. Habgood stated the letter that was sent to them

dated October 12,  2004 indicated that they needed to file an Application with the Zoning

Hearing Board for an increase in the impervious surface, and they did do this.  Mr. Gelate

asked who took the pictures shown on T-1 and T-2, and Mr. Habgood stated he took

them.  Mr. Gelate asked if they were taken on October 8, and Mr. Habgood stated they

were taken on the date listed on t he photos.  Mr. Gelate asked what day of the week this

was, but Mr. Habgood did not recall.  Mr. Gelate stated it appears that four days later he

sent the Cease and Desist, and Mr. Habgood agreed.  Mr. Gelate asked if the Kraus’ were

with Mr. Habgood when he was on the premises, and Mr. Habgood stated Mrs. Kraus

was there.  Mr. Gelate asked if he told her at that time she was violation and would have

to file an Application, and Mr. Habgood stated he did.  Mr. Gelate asked if they did

anything other than what he told them to do, and Mr. Habgood stated they did not. 

Mr. Gelate asked if he saw spaces between the bluestone when he made his physical

observations of the premises.  Mr. Habgood stated there were spaces.  Mr. Gelate asked

what the weather conditions were like on October 8, 2004, and Mr. Habgood stated it was

a clear day – possibly with some clouds.  Mr. Gelate asked if it had rained a day before

this, but Mr. Habgood was not aware of this.  Mr. Gelate asked if there was any water or

January 4, 2005                                                         Zoning Hearing Board – page 14 of 25

 

 

standing water on the walkway or patio when he inspected the premises on October 8,

2004; and Mr. Habgood stated he observed none.

 

Mr. Koopman asked Mr. Habgood to estimate the spaces between the bluestones, and

Mr. Habgood estimated it to be 1/2”. 

 

There was no further public comment.

 

Ms. Kirk stated the testimony is concluded, and asked the attorneys if they wished to

make brief closing arguments.

 

Mr. Gelate stated they understand that this work was already done and as soon as they

found out that something was wrong, his clients did make the proper Application to the

Township.  He stated they are not arguing that the patios and walkways are not

impervious surface, but they were under misinformation as told by the various

landscapers.  He stated when Mr. and Mrs. Kraus made their Application to the Township

in 2003, they followed all the rules and have made a wonderful addition to the

neighborhood.  They did not undertake the construction of the walkways or patio with

any intention to deceive or flaunt the laws of Lower Makefield Township.  They

understand that the Township is asking to be a party because they do not want to set a

precedent.   Mr. Gelate stated he does not feel they are establishing any precedent, and

the Township is basing this on the numbers because it is 27% which is a red, blinking

light to them.  He stated there is no evidence that this increase in impervious surface has

caused any problems to the Kraus’ residence or to the neighbors.  Mr. Gelate stated he

resides in this neighborhood and drives up Glenolden every day and under the worst

conditions, there is no water coming from the Kraus driveway, walkways or patio that

effect anyone.  He stated he feels the Township is taking a formulaic objection because of

the impervious surface and does not feel they should be required to rip up the additions

which have enhanced the appearance of the neighborhood and is not the purpose of the

Ordinance.  He stated the Ordinance is there to protect against damage that could result

from impervious surface, and they have provided proof that this is not the case. 

 

Mr. Koopman stated they have a situation where the Township is not suggesting that they

attempted to deceive, but there is a history when the Kraus’ were previously before the

Zoning Hearing Board and there was discussion about pervious and impervious and what

had to be removed.  There was clearly discussions that a brick walkway was pervious. 

He stated the Plan reflected the walkways would be mulch that would be installed in the

future which were clearly not impervious.  He stated the term “hardscape” would indicate

that what has been installed is clearly impervious.  He stated if you look at the

photographs, it is clear that there is a significant amount which has been installed that is

impervious.  He stated they are requesting an increase from what is permitted which is

18%.  They obtained a prior Variance to go to 22.5% and are now requesting a Variance

to go to 27%.  He stated there was discussion that there was a rain storm in the fall and it

January 4, 2005                                                         Zoning Hearing Board – page 15 of 25

 

 

did not result in any immediate flooding; but it is important to remember about that

incident is that most of the rain that caused the flooding of the Delaware was rain

up-State so just because there was one flood event of the Delaware does not establish that

there will not be impervious surface problems in the future in this area.  Mr. Koopman

stated they must also consider the concept of not filling a lot up with impervious surface. 

He stated this is an increase which has never, to his knowledge, been accepted by the

Township or the Township Zoning Hearing Board.  He stated the Township has taken the

position that a 1% or a 2% increase in impervious surface is proper,  but to go beyond

that goes well beyond the requirements of the Ordinance.  He stated this is a Variance

request and questions the hardship other than an economic hardship and that fact that they

would have to remove something; but this is not the grounds for a Variance.  He stated he

does not feel the property owner intentionally deceived the Township; but knowing what

the property already knew, he feels they should have made an inquiry.  The Township

would like to see the Variance denied in its current form.  The Township would be

willing to attempt some compromise; but object to grant of a 27% impervious surface.

 

Mr. Mayrhofer asked Mr. Majewski about the soils in the area and the drainage

capability.  Mr. Majewski stated he is not entirely familiar with the soils in that area. 

Mr. Mayrhofer stated he lives further down the road from this property, and it does drain

well.

 

Ms. Kirk stated she agreed that the Applicant had prior knowledge of what needed to be

done, was before the Zoning Hearing Board previously requesting a significant increase

in impervious surface,  and is now far exceeding that.  Ms. Kirk moved that the

Application be denied.  There was no Second.

 

Mr. Bamburak moved and Mr. Mayrhofer seconded to grant the Variance as requested.

Motion carried with Ms. Kirk opposed.

 

 

APPEAL #04-1274 – SUNRISE DEVELOPMENT, INC.

 

Mr. Kim acted as Zoning Hearing Board Alternate for this Appeal.

 

Mr. Edward Murphy, attorney, was present.  Ms. Kirk stated this matter was continued

from 12/7/04.  She stated Mr. Kim is now serving as the Alternate as he heard the prior

testimony in this Application.  Mr. Toadvine stated Mr. Dobson is not present this

evening but was present for the other two meetings.  Mr. Toadvine stated he understands

the Township attorney and the Applicant’s attorney discussed this and have agreed that

subsequent to tonight’s Hearing, the Notes of Testimony will be transcribed and provided

to Mr. Dobson so that he can participate in the decision.  Mr. Murphy and Mr. Koopman

agreed.  Mr. Murphy stated Mr. Toadvine did call him and advise him that Mr. Dobson

would not be available this evening.  Ms. Kirk stated that the notes that will be

January 4, 2005                                                         Zoning Hearing Board – page 16 of 25

 

 

transcribed are the notes by the Court Reporter – not the notes done by the Recording

Secretary, and this will be paid for by Mr. Murphy.  Mr. Murphy stated the Chairperson

was not present at the last meeting, and he did make arrangements for the transcript of the

last meeting to be provided to Ms. Kirk.  Ms. Kirk stated she did review the notes by the

Board’s Recording Secretary already as well. 

 

Ms. Kirk stated she understands that Mr. Koopman will be presenting his case and there

are several witnesses who will be called.  Ms. Kirk stated the Board will stop at 11:00

p.m. and rather than having all members of the audience have to come back again, she

would recommend that those people be permitted to speak so that they do not have to

appear if they do not want to come to the next meeting.  Mr. Koopman stated the

Township has no objection to that; but he does understand that there may be some

residents who were not able to attend tonight, and he would not want to preclude those

residents from commenting at a future date.  Upon question from Ms. Kirk, three

members of the audience who had not previously had an opportunity to speak, indicated

they wished to make a statement.

 

Mr. Zachary Rubin, 1661 Covington Road, stated he lives 300 yards from the property in

Makefield Glen.  He stated he is present as the Democratic Committee person for Lower

Makefield North 5, the President of Aspen Woods Homeowners Association, and a

resident that lives near the subject property.  He stated, speaking as the Democratic

Committee person, he would support this Application and would like to see the Sunrise

Assisted Care facility at this location on the grounds that the Matrix tract will have 55+

Age-Restricted housing which he might need to move into, and subsequently into an

Assisted-Care facility; and as the Committee Person he could be the Democratic

Committee person for the next thirty to forty years.  He stated as President of Aspen

Woods Homeowners Association and a resident in the area, he would oppose the

construction of this building on this lot on the grounds that he does not feel the

intersection infrastructure can handle the existing traffic or any increase in traffic from

this use.   He stated when the railroad crossing is down, there is a large back up of cars,

and it would create a burden to put such a facility in this location.  He stated people

coming from Stony Hill Road from the By-Pass know they are on a three-lane highway

and when they come to the intersection going toward the property, that Stony Hill Road

becomes a two-lane highway; and unless there is a change on the two-lane highway, they

cannot support this project. 

 

Mr. Thomas Kurowski, 609 Stony Hill Road, stated he is three houses east of the

property on the same side of the street.  He stated he is in favor of the development.  He

stated he and his wife moved to this location in October, 1992 and Mr. McFadden has

been trying to sell the property for many years.  He stated he now understands that the

Board of Supervisors is opposed to this project because they want to purchase it for open

space and install a Park.  He stated he is opposed to a Park because it will bring in a lot of

parking and increase the traffic flow.  He does not feel the traffic flow will be impacted

January 4, 2005                                                         Zoning Hearing Board – page 17 of 25

 

 

that much with the assisted-living facility because most of the residents will not be

traveling to and fro.  He stated Sunrise has made available a traffic engineer’s report on

the traffic flow, and the report indicates the impact would be negligible.  He would also

like to see the tract developed because all the trash from the Supermarkets across the

street continually gets stuck on this property, and having someone develop this would

alleviate this problem.  He stated there was also discussion about floodplain in the rear

and the creek in the area.  He stated it has been susceptible to flooding in large storms. 

He stated Sunrise made available a plot plan and a topo map which he took to a landscape

engineer.  Mr. Koopman objected to this testimony.  Ms. Kirk stated the Board will listen

to this statement being made from a member of the audience and take it for what it is

work.  Mr. Kurowski stated that individual told him that what they are planning to do will

help is own property. 

 

Mr. Koopman asked where Mr. Kurowski’s property is located, and Mr. Kurowski stated

he is within 300’ of the corner property heading east on Stony Hill Road.  He has a

driveway coming out onto Stony Hill Road.  Mr. Koopman asked if he has been in

contact with the representatives of Sunrise, and Mr. Kurowski stated he has. 

Mr. Koopman asked if Mr. Kurowski’s property is currently served with public water and

sewer, and Mr. Kurowski stated they do have public sewer but do not have public water

and instead have a well.  Mr. Koopman asked if they have had discussions with

representatives from Sunrise about having them serve his property with public water if

the development goes through, and Mr. Kurowski stated they have.  Mr. Koopman asked

if having public water will increase the value of their property, and Mr. Kurowski stated

he would have to pay for the public water bill.

 

Ms. Judy Curlee, 551 River Road, stated she does not live near this property. 

 

Mr. Murphy objected since she is not an immediate neighbor.  Ms. Curlee stated she uses

this road and feels it is a very bad idea to approve this. 

 

Mr. Koopman stated the Township is opposed to this Application.  He stated Paragraph 3

of the Application describes the use and development of a property for a proposed two-

story , ninety-four bed assisted living facility to be constructed in accordance with

Exhibit A.  He stated the original Exhibit A has been amended, and the latest Plan is

Exhibit A-11.  He stated the Applicant has also requested a Variance from the impervious

surface regulations, acknowledging that the proposed two-story Plan before the Zoning

Hearing Board does not comply with the impervious surface regulations.  Mr. Koopman

stated there are several criteria that need to be met in order for the Zoning Hearing Board

to grant a Special Exception.

 

Ms. Kirk stated she believes that Mr. Koopman has already covered this in his cross-

examination of the witnesses.

 

January 4, 2005                                                         Zoning Hearing Board – page 18 of 25

 

 

Mr. Koopman stated he wanted to direct the Board’s attention not just to the specific

standards regarding nursing homes but the standards contained in Section 200-98.

It is the Township’s position that this Application does not comply with the various

Ordinance provisions of the Zoning Ordinance or the Subdivision Ordinance and also has

other public and traffic safety considerations based upon the Plans before the Board for

approval. 

 

Mr. Koopman called Mr. Jim Yates who was sworn in.  Mr. Yates stated he works for

Lower Makefield Township as the Fire Protection consultant.  He is also the Director of

Emergency Services in West Windsor, New Jersey.  He has worked for Lower Makefield

Township since the fall of 2001.  He reviewed his background in terms of his expertise as

a Fire Safety Consultant/Inspector.  He stated he is familiar with the Fire Codes in Lower

Makefield which are the 200 Edition of the International Fire Code.  He has reviewed

various Subdivision Developments and other Plans submitted to the Township that have

been submitted for approval to the Township since the fall of 2001.  He estimated he has

reviewed approximately forty plans for fire safety in Lower Makefield.  He noted he also

performs this same type of work in New Jersey.  Mr. Koopman asked if he had brought a

resume, but Mr. Yates had not.  Mr. Koopman offered Mr. Yates as an expert in Fire

Safe, and Mr. Murphy stated he had no objection. 

 

Mr. Koopman asked if Mr. Yates reviewed the proposed Sunrise use of the property in

question as depicted on Exhibit A-11, and Mt. Yates stated he has reviewed the Plan

dated 4/12/04, last revised 12/2/04.  He is also familiar with the property that is the

subject of the Application and the existing nursing home facilities in Lower Makefield

particularly the Manor Care and Sunrise Alterra facilities.  Mr. Yates described Manor

Care which is an Assisted-Living, single-story facility located on Oxford Valley Road. 

He noted at that location there is 90% perimeter access.  He stated this means there is

impervious surface 90% around the building – that surface being asphalt approximately

twenty feet in width that would permit fire apparatus to gain access to the building for

fire safety and evacuate the facility.  This paved access goes around the back of the

facility.  Mr. Yates also commented on the Sunrise Alterra facility located on Township

Line and Langhorne-Yardley Road which is a newer facility than Manor Case but is

similar in that it is a single-story, assisted living facility which has 90% paved access. 

Based on the review of the Fire Code and in comparison to the other facilities just

referenced, Mr. Yates stated that the proposed Sunrise use depicted on A-11  does not

provide adequate perimeter access for fire safety.  He stated they have proposed a two-

story building and have proposed approximately 30% of perimeter access.  Mr. Koopman

asked if there is any way to get to the rear of the building where the Alzheimer patients

would be living, and Mr. Yates stated there is not as proposed.

 

Mr. Murphy stated he understands that  the 2000 Edition of the Fire Code that is in effect

does not require fire lanes as described by Mr. Yates, and Mr. Yates stated this is correct. 

Mr. Murphy stated his view is really his discretion, and Mr. Yates that it is his

January 4, 2005                                                         Zoning Hearing Board – page 19 of 25

 

professional opinion that this would be required.  Mr. Murphy asked if Mr. Yates is

aware whether the building is intended to be sprinklered, and Mr. Yates stated he is

aware of this.  Mr. Murphy asked if he is aware that there is proposed a 20’ wide

emergency access out to Stony Hill Road, and Mr. Yates stated he is aware of this.

Mr. Murphy asked if he feels they need another 60% perimeter coverage, and Mr. Yates

stated he does feel this is necessary.  Mr. Murphy asked if this type of fire lane needs to

be impervious or could there be an alternate means.  Mr. Yates stated he feels it should be

impervious since during inclement weather with snow or ice, another surface would not

be treated or plowed.  Mr. Murphy asked if this is true for all fire access lane in Lower

Makefield.  Mr. Koopman objected since he stated the discussion here is about an

assisted-living facility for dementia patients and patients who would have limited

mobility.  Mr. Murphy asked if only a paved surface would be adequate for a facility such

as this, and Mr. Yates stated this is his judgment.  Mr. Murphy asked if the testimony

would be the same regardless of the height of the building, and if the testimony would be

the same if it were a three-story building. Mr. Yates stated he would then feel 100%

would be required because if the building is higher, it would require even greater need for

fire protection to make evacuations and to get access to the building.  Mr. Murphy asked

if the minimum width would need to be 20’, and Mr. Yates stated he would defer this to

the Fire personnel of Lower Makefield to make sure that 20’ is acceptable for their needs. 

Mr. Murphy asked if the Fire Company typically reviews Plan, and Mr. Yates stated he

does provide them a copy; but they do not prepare a review.  He stated he would confer

with them and include their comments in his review. 

 

Ms. Kirk stated Mr. Yates indicated that his opinion regarding the fire access was not

necessarily based on the Fire Code adopted in Lower Makefield, and Mr. Yates stated

this is correct.  He stated the Township has adopted the 2000 version of the Fire Code.

 

Mr. Kim stated the 2000 Fire Code mostly addresses lifesaving, and Mr. Yates stated it

comments on buildings after they have been constructed.  Mr. Kim stated the fire lane is

covered but in addition to that in the 2000 Code, the emergency egress route for the

paved impervious is not covered and asked if this is correct.  Mr. Yates asked for

clarification of Mr. Kim’s question.  Mr. Kim stated the fire lane – impervious space –

that covers the area 90% when the emergency evacuation alarm is triggered, normally

that impervious space is utilized to evacuate the personnel out of the building in a more

safe manner.  Mr. Yates stated it is to provide access for the Fire Department for their

vehicles.  Mr. Kim stated they can also use it to safely use it as a lane of stable ground to

safely evacuate the occupants, and Mr. Yates agreed.  Mr. Kim asked how the occupants

would evacuate if there was only 30% impervious surface, and Mr. Yates stated this

would impede their evacuations.

 

Mr. Toadvine stated they have testified that A-11 complies with the 2000 Fire Code

currently in effect, and Mr. Yates stated there is not enough information on the Plan to

make this judgment.  Mr. Toadvine asked if the Code in effect in Lower Makefield

 

January 4, 2005                                                         Zoning Hearing Board – page 20 of 25

 

 

requires an impervious road surface to be 90% around the building, and Mr. Yates stated

it does not.  Mr. Toadvine noted Mr. Kim’s comments about evacuation purposes, and

asked Mr. Yates if they considered the walkways shown on the Plan when they discussed

evacuation, and Mr. Yates stated he did not.  Mr. Toadvine asked if the impervious

surface were installed as he has recommended, would it loop around the building or also

carve in and out as this is a cross-type structure, and Mr. Yates stated it would just loop.

 

Mr. Koopman noted Exhibit A-11 showing the walking trails, and asked Mr. Yates if the

existence of these walking trails would resolve his concerns.  Mr. Yates stated they do

not.  Mr. Koopman stated the Township Fire Code does not address the issue of

emergency access directly, and Mr. Yates agreed.  Mr. Koopman asked whether that

issue is normally addressed by someone in his position, and Mr. Yates stated through his

years of experience they recognize that a number of fire protection measures are

necessary - some built into the Fire Code and others that are not.  He stated they look for

a permanent access for fire equipment to get access to the building and this is something

he routinely reviews as part of the Subdivision process.  Mr. Koopman stated the 200’

width was referred to as it relates to the other facilities in the Township and Mr. Yates

stated  he did not measure those two facilities but feels that they are approximately this

width. 

 

Mr. Toadvine asked if the Department of Labor and Industry would review the Plan for

safety, and Mr. Yates stated they would for the internal features.

 

Mr. Murphy asked in what group would the proposed structure be considered, and

Mr. Yates stated it would he H-2 (High Hazard 2) or Institutional.  Mr. Murphy asked

how this relates to whether or not the building would be compartmentalized.  Mr. Yates

stated he does not have enough information to make an opinion on the actual use group. 

He stated if they are discussing compartmentalization, he would be considering moving

residents from one part of the building to another; and on the surface this a good way to

address fire safety, but at some point in a fire in the building, you must consider the

removal of the residents and this is where they would need access to the building.  He

stated he does not have enough information from the site plan on whether or not it is

compartmentalized.

 

Mr. Koopman asked if this were compartmentalized or not, would this change his opinion

on what is necessary as far as driveways around the building for fire equipment access

and evacuation of the residents, and Mr. Yates stated it would not.

 

Mr. Mayrhofer asked if Mr. Yates has been to any of the other facilities owned by

Sunrise in the Philadelphia area, and Mr. Yates stated he has not. 

 

Mr. Robert Gregory Richardson was sworn in.  He stated his firm, Traffic Planning &

Design, has offices throughout Pennsylvania.  He presented a resume which was marked

January 4, 2005                                                         Zoning Hearing Board – page 21 of 25

 

 

as Exhibit T-1, and a copy was provided to Mr. Murphy.  Mr. Richardson stated he is a

licensed professional engineer in Pennsylvania and has been licensed since 1996.  He has

experience in planning, design, and review of nursing home facilities and assisted-living

facilities such as the facility proposed.  He stated in his fifteen plus years of experience,

he has worked with private clients, such as Manor Care and a number of independent

assisted-living facilities throughout Delaware and Pennsylvania.  He is familiar with the

traffic generated by these types of facilities.  He has done traffic engineering work in

Lower Makefield including a project on Heacock Road for the National Bank of

Newtown.  He has also been involved with PennDOT for the design and approval of the

Stony Hill Road intersection as it meets the By-Pass in Newtown, and the JPI Apartment

Complex in Middletown on Big Oak Road which involved working with Lower

Makefield Township.  They have reviewed over 5,000 Applications for Highway

Occupancy Permits for access on State roadways.   Mr. Koopman stated he understands

that PennDOT contracts out review work to private engineering firms such as

Mr. Richardson’s, and Mr. Richardson indicated this is correct.  Mr. Richardson stated he

has been in charge of this program for his firm for over ten years and is familiar with

PennDOT’s requirements for improvements to State roads for facilities such as that under

discussion.

 

Mr. Richardson stated he was asked to perform a traffic study to examine the potential

traffic impact of the proposed Sunrise Development to be located at Heacock and Stony

Hill Roads which are both State roads.  He was also asked to review the traffic study

submitted by Sunrise done by Shropshire Associates dated 10/28/04.  A copy of

Mr. Richardson’s traffic study review was marked as Exhibit T-2 and provided to the

Zoning Hearing Board.  It was noted that Mr. Murphy had been provided a copy of this

previously.  Mr. Richardson noted the Executive Summary which includes conclusions

and recommendations for improvements.  He stated the Executive Summary discussed

the fact that the site will have a single access on Stony Hill Road to the east of Heacock

Road which is a significant intersection.  The use itself is not a high generator of traffic

volume and during the peak hours, the site would generate approximately sixteen new

trips in the A.M. peak and approximately twenty-one new trips during the P.M. peak. 

 

Mr. Richardson stated the next step was to complete an analysis of the intersection in

terms of the capacity of the roadway to handle any increase in traffic.  Based on their

work they feel due to the volumes themselves with the existing, pre-construction levels of

service, and construction of this facility added to the traffic volume, it would remain the

same level as they have today.  The driveway itself from a level of service standpoint

would operate at a Level of Service C which in terms of PennDOT’s criteria would be

acceptable.  Mr. Koopman asked if he analyzed the driveway in the configuration shown

on Exhibit A-11, and Mr. Richardson stated they did.  Mr. Koopman stated Shropshire

analyzed the entrance assuming it would be directly across from a road going into an

interior development which is Chestnut Woods.  Mr. Richardson stated Level of Service

C would be an acceptable level of service with A being the best and E being the worst.

January 4, 2005                                                         Zoning Hearing Board – page 22 of 25

 

 

Level of Service C would result in a waiting time of approximately twenty-five to forty

seconds.  Mr. Koopman asked if they took into account the fact that some of the traffic

may be elderly people who may not have the same driving skills as the normal motorist,

and Mr. Richardson stated they did.  He stated the site itself would generate less than 1%

of the projected volume.

 

Mr. Koopman asked if they found any Levels of Service D in any of the movements, and

Mr. Richardson stated they looked at the intersection of Heacock Road and Stony Hill

Road as well as the intersection of Cardinal Drive and the Lower Makefield Township

Shopping Center drive.  Level of Service D existed at the intersection with the Lower

Makefield Shopping Center  as well as the northbound approach left turn movement in

the evening peak hour.  This would be determined to be acceptable but is not as desirable

as Levels A, B, or C.  Mr. Koopman asked if the determination that there were Levels of

Service D differed from the determination reached in the Shropshire report, and

Mr. Richardson stated there was one discrepancy at Heacock and Stony Hill which he

feels was based on the difference in signal timing. 

 

Mr. Koopman asked when Mr. Richardson did the study, and Mr. Richardson stated it

was done in September after School was in session. 

 

Mr. Koopman asked if the Shropshire study addresses site distances analysis at the actual

proposed driveway into the facility, and Mr. Richardson stated it did not.  He stated a site

distance analysis would be required by PennDOT before a Highway Occupancy Permit

would be issued for an access for this type of facility on to a State road.  Mr. Koopman

asked in reviewing the proposed A-11, what was the proximity of the driveway to the

intersection of Heacock Road and Stony Hill Road, and Mr. Richardson stated it is

approximately 245’ from the stop bar on the northbound approach to the center line of the

proposed driveway.  Mr. Koopman asked based upon the traffic study, would through

traffic on Stony Hill Road going toward the intersection of Stony Hill and Heacock Road

intersection back up to the proposed intersection during rush hour, and Mr. Richardson

stated during the two peak hours, based on their analysis, they feel it would back up to

the driveway.  This could create a conflict for the through traffic and those trying to enter

and exit the driveway.

 

Mr. Koopman asked if he has an opinion as to whether certain traffic improvements

should be made to Stony Hill Road in the event that this development is approved so as to

make it acceptable, and Mr. Richardson stated he does and these are contained in the

Executive Summary. He stated the first is the provision of a separate left turn lane on

Stony Hill Road that would provide access to the site exclusive for that movement as well

as an exclusive right turn deceleration lane in the eastbound direction to facilitate the

right turn movement into the driveway.  They would also recommend, due to the nature

of the business and the fact that there is need for certain type of emergency equipment to

 

January 4, 2005                                                         Zoning Hearing Board – page 23 of 25

 

 

be able to access the site, that there be a larger radius such as 35’ minimum radius.  He

stated Stony Hill Road is a State highway and would be governed by PennDOT and

would need PennDOT approval for any of these recommendations to be implemented. 

Mr. Koopman asked if the recommendations he has made are consistent with what he

would anticipate PennDOT would require for a Highway Occupancy Permit, and

Mr. Richardson stated based on his history and knowledge of their policies, a left turn

lane and a separate right turn lane would be required as part of the construction of the

driveway.

 

Ms. Kirk stated she feels PennDOT policies change everyday and their Departments are

being modified as is the Highway Occupancy Permit Review Board.  She stated she does

not feel there is a set standard at this point.  She stated they are in the process of

undergoing a comprehensive review and modification of their Policies.  Mr. Koopman

stated this witness can testify to what the current policy is and whether this is reflected in

writing.  Mr. Toadvine stated he does not understand the nature of the testimony as he

does not feel the Zoning Hearing Board will go through the Land Development and

Subdivision Approval.  He stated they cannot impose those conditions on this

Application.   Mr. Koopman stated the Zoning Hearing Board can and has a duty to do

so.  He stated according to the Sections he has quoted, there are provisions showing that

one of the determinations the Zoning Hearing Board has to make if they are going to

grant a Special Exception is whether the use before them as depicted on A-11 contains

improvements and provisions that will provide for highway and traffic safety.   He stated

this is a specific requirement.  He stated the Applicant’s testimony was that they did not

anticipate any improvements and are not proposing any.  Mr. Koopman stated he has the

right on behalf of the Township to present testimony from an expert who has expertise in

terms of what PennDOT does and does not require and he would refer to PennDOT

written guidelines that support what will be required. Mr. Koopman stated if the Zoning

Hearing Board grants a Special Exception, the requirements for a Special Exception

include the requirement that they comply with Township Ordinance as well as

requirement that the use provide for and accommodate probable effects on traffic.  He

stated this also relates to fire safety as well.  Mr. Koopman stated the Zoning Hearing 

Board must review the Plan that is before them; and if they find that the Plan does not

meet the requirements for accommodating traffic concerns and fire safety concerns, they

cannot approve it.  Mr. Toadvine stated they could require that the Applicant comply as

one of the conditions.  Mr. Koopman stated the Applicant has indicated no improvements

will be made.

 

Mr. Mayrhofer stated the Applicant would have to take the Plan before various reviewing

agencies including PennDOT irrespective of what the Zoning Hearing Board says.

Mr. Koopman stated the Zoning Hearing Board has an independent obligation as part of

the Special Exception proposal to see if they meet the requirements.  He stated they

cannot defer this to PennDOT.

 

January 4, 2005                                                         Zoning Hearing Board – page 24 of 25

 

 

Mr. Richardson noted a Policy from PennDOT which was marked as Exhibit T-3.

 

Mr. Kim stated at the last meeting, they had this discussion and they asked if in the

current traffic studies, were there any plans for a left turn or right turn on those two roads,

and he feels the answer they gave was the service level did not require this modification. 

Mr. Koopman stated this is correct, and Mr. Richardson is now disagreeing with that.

Exhibit T-3 was noted which is the Highway Occupancy Permit Procedures and Design

Presentation Packet.  This presentation was put on by TP&D for PennDOT to consultants

and is the outline for procedures and policies when they make presentations to PennDOT. 

Mr. Murphy stated he would object only from the standpoint that he questions whether

there is any written statement that PennDOT accepts this.  Ms. Kirk noted this objection. 

Mr. Richardson noted the specific policy for left turn lanes – A under #4 and B related to

driveways.

 

Mr. Koopman stated he has no further questions for the witness.  Mr. Murphy stated he

assumes that they will have to cross-examine this witness on February 8 because of the

hour.    Mr. Murphy asked that the Court Reporter generate a transcript for Mr. Dobson.

 

Ms. Kirk moved, Mr. Mayrhofer seconded to continue the matter until February 8, 2005.

(Later on in the meeting, it was noted that the correct date of the first meeting in February

was February 1, 2005, and Mr. Murphy was so advised.)

 

 

OTHER BUSINESS

 

APPEAL #04-1242 -  MICHAEL/SUSAN SPEVAK – APPROVE REQUEST FOR EXTENSION

 

Ms. Kirk stated Michael and Susan Spevak have submitted a letter to Mr. Habgood dated 12/21/04 requesting an Extension of the Variance that was granted on 2/26/04.  They are requesting a six-month extension.  Mr. Malinowski moved, Mr. Bamburak seconded and it was unanimously carried to grant a six-month extension.  Mr. Habgood was asked to notify the Spevaks.

 

 

APPEAL #04-1261 – VINCENT A. PIACENTE – APPROVE REQUEST FOR EXTENSION

 

Ms. Kirk stated Vincent A. Piacente has submitted a letter dated 12/28/04 requesting an Extension of the Variance that was granted on 6/15/04.  He is requesting a six-month extension.  Mr. Malinowski moved, Mr. Mayrhofer seconded and it was unanimously carried to grant a six-month extension.  Mr. Habgood was asked to notify the Applicant.

 

January 4, 2005                                                         Zoning Hearing Board – page 25 of 25

 

 

There being no further business, Mr. Mayrhofer moved, Mr. Malinowski seconded and it was unanimously carried to adjourn the meeting at 11:15 p.m.

 

                                                                        Respectfully Submitted,

 

 

 

                                                                        David Malinowski, Secretary