TOWNSHIP OF LOWER MAKEFIELD

ZONING HEARING BOARD

MINUTES – OCTOBER 5, 2004

 

 

The regular meeting of the Zoning Hearing Board of the Township of Lower Makefield was held in the Municipal Building on October 5, 2004.  Chairman Kirk called the meeting to order at 7:33 p.m.

 

Those present:

 

Zoning Hearing Board:              Barbara Kirk, Chairman

                                                Rudolph Mayrhofer, Vice Chairman

                                                David Malinowski, Secretary

                                                Darwin Dobson, Member

 

Others:                                     Robert Habgood, Code Enforcement Officer

                                                John Koopman, Township Solicitor

                                                Drew Wagner, Township Engineer

                                                Allen Toadvine, Zoning Hearing Board Solicitor

 

Absent:                         Pete Stainthorpe, Supervisor Liaison

 

 

APPEAL #04-1274 – SUNRISE DEVELOPMENT, INC.

 

Ms. Kirk stated this Application had been continued from the last Zoning Hearing Board

meeting of September 21.  Since then the Board’s Solicitor received a letter dated 10/4/04

from the Applicant’s attorney asking for a continuation to the next meeting which will be

November 3, 2004 to give the Applicant additional time to work with the Township on

certain issues arising from this Appeal.  The letter was marked as Board Exhibit #4. 

 

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

a continuation until November 3, 2004.

 

 

APPEAL #04-1279 – AAA DEVELOPMENT & MANAGEMENT, INC.

 

Mr. Stephen Goldstein, attorney, representing the Applicant was present.  Mr. Goldstein

stated the initial Filing requested a modification of the Condition that was attached to the

Special Exception granted for this property on 8/31/99.  This is for the restaurant portion

of the building adjacent to the Hampton Inn.  Mr. Goldstein stated he would like to

amend the Application.  He stated when it was filed it was requested to remove the

hourly restriction so that the Dunkin Donuts could operate 24/7 which is consistent with

Dunkin Donuts National parameters.  He stated they had conversations with Mr. Glenn

who operates the Hampton Inn who expressed concern with the 24/7 operation. 

October 5, 2004                                                          Zoning Hearing Board – page 2 of 8

 

 

Mr. Goldstein stated they would now like to request a modification of the current hourly

restrictions to allow them to open at 5:00 A.M.  The request is to enable the Applicant to

open the business at 5:00 A.M. instead of 7:00 A.M. which is currently part of the

Condition which was attached to the grant of the Special Exception that governs this

property.

 

Ms. Kirk asked if they still plan to close no later than 10:00 P.M. but operate seven days

a week.  Mr. Goldstein stated they do want to operate seven days a week.  He stated the

current restriction did not limit the days.  He stated the prior Condition did permit them to

be opened until 10:00 P.M.  Mr. Goldstein stated they would like to be able to be open

until 11:00 P.M. on Friday and Saturday nights if the Board is comfortable with this.

 

Mr. Malinowski asked if this would be a combination Dunkin Donuts/Baskin Robbins,

and Mr. Goldstein stated it will.  There will only be one entrance door.

 

Mr. Joseph Glassman was sworn in and stated there will be one door and one line in the

facility.   He stated to the right will be the Dunkin Donut area and to the left is the Baskin

Robbins area.  There is one point of sale area in the middle.  There will be one cash

register and the same employees working in both areas.  There is one common seating

area and they share refrigerators, etc.  He noted Dunkin Donuts and Baskin Robbins are

owned by one parent corporation.

 

Mr. Goldstein stated there are no exterior changes proposed other than the name on the

sign.  It will be no different in size and they will not increase the number of signs from

what there is now. 

 

Ms. Kirk asked if they are considering a drive-through service in the future, and

Mr. Glassman stated they are not.  He stated this particular location does not lend itself to

that situation.

 

Mr. Mayrhofer asked why they want to open at 5:00 A.M., and Mr. Glassman stated more

than 20% of their sales Nationally are between 5:00 A.M. and 7:00 A.M.  He stated he

has a store in Richboro and the percentage is slightly higher than this.  Mr. Mayrhofer

stated the employees will have to come earlier than 5:00 A.M., and Mr. Glassman stated

this is correct.

 

Ms. Kirk asked about deliveries.  Mr. Goldstein stated Hampton Inn was concerned about

this as well. Mr. Glassman stated Dunkin Donuts has a unique distribution set up, and

they get deliveries from the distribution center once a week.  He is not sure what day they

will get their delivery at this location; but it will be one day a week for approximately one

and a half hours.  This is when they get all of their weekly supplies.  He stated if they

should run out of something at this location, they would be able to get it from the

Richboro location.  Mr. Goldstein stated the individual from Hampton Inn did not want

October 5, 2004                                                           Zoning Hearing Board – page 3 of 8

 

 

this delivery to take place before 7:00 A.M.  Mr. Glass stated they would like to request

that the delivery not be before 9:00 A.M.  Mr. Goldstein asked that if the Board approves

the request, that they make it a Condition of Approval that the eighteen-wheeler delivery

not be before 9:00 A.M.   Mr. Glassman stated twice a month they get a Pepsi delivery

similar to what the existing use is receiving.    They would agree to this delivery being

after 9:00 A.M. as well.    Mr. Glassman stated they also get a delivery of donuts.  This

will be delivered daily before 5:00 A.M. and will be from the Richboro location which is

the producing store.  They will warm up the product only at the Lower Makefield

location.  They will not receive any supplies to do the actual baking at the Lower

Makefield location. 

 

Mr. Goldstein asked the location where deliveries will be made, and Mr. Glassman stated

they will be made to the service door which is in the rear and will not interfere with the

customer door or the Hampton Inn.  The donut delivery will be approximately 4:00 A.M.,

and the vehicle used is similar to the size of a FedEx truck.  Mr. Glassman stated this

delivery usually takes only ten minutes. 

 

Ms. Kirk asked if there are any other vendors which make deliveries.  Mr. Glassman

stated there will also be a Baskin Robbins delivery once a week, and they would be

willing to agree to the same restrictions.

 

Ms. Kirk asked about the signage, and it was noted no modifications to the restrictions as

imposed on the prior Approval are requested.

 

Ms. Kirk asked how soon they anticipate opening, and Mr. Glassman stated they would

hope to open six weeks from the time the Building Permit is issued. 

 

Ms. Kirk asked about the number of employees.   Mr. Glassman stated this varies. 

He stated they like to employ people from the community and they have a number of

high school students who work for them and a number of other part-time people.  During

their busiest time, they would have between five to eight people, and they will always

have between two to three people in the store.  They always have someone who is “serve-

safe” on the premises. This is an individual with training in the handling of the facility

with regard to health issues.

 

Ms. Kirk asked if the distribution center will honor the delivery time restriction, and

Mr. Glassman stated they will.

 

Mr. Koopman stated the Township has no objection to the starting time being modified to

5:00 A.M. and to the facility being open seven days a week.

 

 

 

October 5, 2004                                                           Zoning Hearing Board – page 4 of 8

 

Ms. Marietta Nicholson, representing the Hampton Inn at 1000 Stony Hill Road, Yardley,

PA 19067,  asked to be considered a Party to the Appeal.  Ms. Nicholson stated the

Hampton Inn wanted the facility to be closed at 10:00 P.M. including weekends.

Mr. Goldstein this was not his understanding from his conversations with the

representative from the Hampton Inn.   

 

Ms. Kirk moved, Mr. Malinowski seconded and it was unanimously carried that the

Zoning Hearing Board grant the request that the hours of operation be expanded from

Monday through Thursday opening at 5:00 A.M. to 10:00 P.M. and Friday and Saturday

from 5:00 A.M. to 11:00 P.M. subject to the following Conditions:  That all deliveries

from the Dunkin Donuts Distribution Center or other vendors which deliveries would be

made via tractor-trailer, eighteen-wheeler, or similar vehicle not occur earlier than

9:00 A.M.  That there be no exterior renovations to the facility, and that the exterior

remain, except for the placement of the signs, as presently existing.  That all other

Conditions previously imposed by this Board’s decision of 8/3/99, not specifically

modified, remain in full force and effect.  If they are to open on Sunday, hours of

operation should be 5:00 A.M. to 10:00 P.M.

 

 

APPEAL #04-1281 – TOM AND RITA BATES

 

Tom and Rita Bates were sworn in.  Ms. Kirk noted the Application submitted which was

marked as Exhibit A-1.  Attached to that Application is an 8 ½” by 14” hand-drawn Plan

of the premises in question which was marked as Exhibit A-2.  Attached to the

 

Application is the Notice issued by the Township’s Zoning Department disapproving the

request for the permit.

 

Mr. Bates stated they would like to build a 16’ by 23’ addition to the rear of their house. 

This will include a bedroom and bath.  The property is off Black Rock Road, the second

street on the right after crossing the Canal.  By adding this addition, they will increase the

impervious surface 171 square feet over the limit.  Mr. Wagner stated he has reviewed

the calculations and they are satisfactory.  Ms. Kirk stated they are permitted 24% and

will increase it to 25.14%.  Mr. Bates stated this is a ranch home.  There are currently two

bedrooms and the addition will actually be expanding one of the bedrooms. 

 

Ms. Kirk asked if they had any problems with the recent flooding problems, and

Mr. Bates stated they did not.  Ms. Kirk asked if they discussed their proposed plans with

their neighbors on either side, and Mr. Bates stated he did, and they had no opposition. 

 

Mr. Koopman stated the Township has agreed to leave this decision to the Zoning

Hearing Board.

 

There was no public comment.

October 5, 2004                                                           Zoning Hearing Board – page 5 of 8

 

 

There was discussion on which Section of the Ordinance applies to this Application.  

Mr. Wagner stated when the property was developed it was R-2 and recent Zoning

changes have made it RRP.  Mr. Toadvine stated he feels it is a decision made in the

Zoning Office as to whether they are going to apply the current Zoning or the Zoning at

the time of construction. 

 

Mr. Dobson moved, Mr. Mayrhofer seconded and it was unanimously carried to grant the

Variance from Section 200-23B to allow an increase in impervious surface to 25.14%. 

 

 

APPEAL #04-1283 – MICHAEL MONTGOMERY & JUDITH DANIELS

 

Ms. Kirk stated while this Appeal is listed as Appeal #04-1282 on the Board’s Agenda,

on the actual Application, it is listed as Appeal #04-1283 and they will use this number

on the Application for clarity purposes. 

 

Mr. Montgomery and Ms. Daniels were sworn in.  Ms. Kirk stated the Application

submitted will be marked as Exhibit A-1.  Attached to the Application is an 8 ½” by 11”

document entitled “Survey and Plan of Lot #23 – Hickory Hills West Section 4”.  This

was marked as Exhibit A-2.  Behind this is an 8 ½” by 11” photograph of the premises in

question with measurements attached, and this was marked as Exhibit A-3.  Ms. Daniels

stated she has an updated version of this which she distributed this evening.  The updated

version was marked as Exhibit A-4.

 

Ms. Daniels stated they would like to construct a small deck on the side of their house on

the side of the new addition.  It will be 14’ long and 12’ wide.  The drawing shows where

it will be located.  She stated the property line is 19’ 10” from the wall of the house and

there is a sewer easement 29’ from the house. 

 

Ms. Kirk stated they are requesting a Variance from the side yard setback requirements.

Mr. Wagner stated it appears that the sewer easement is approximately 10’ from the

house and the property line is 19’ from the house.  Ms. Kirk stated the Plan shows an

existing deck and she asked if this deck has been removed.  Ms. Daniels stated where it

says “Proposed Deck” this is an additional deck which they are requesting permission to

construct.  Ms. Daniels stated there is currently nothing there.  She noted the Exhibit as

shown does not show exactly where the deck will be located.  She stated they are

proposing that the additional deck be exactly on the other side of the existing deck which

is at the rear of the property.  Ms. Kirk noted the existing deck appears to be 14’ by 14’. 

She stated next to this is an addition, and they are proposing to add a deck next to the

addition which deck will be 14’ by 12’.  All of it will be at the rear of the property and off

to the one side.  The proposed deck is 14’ by 12’.  Mr. Toadvine asked if the new deck

will be centered upon the door, and Ms. Daniels stated it will be “almost” centered on the

 

October 5, 2004                                                          Zoning Hearing Board – page 6 of 8

 

 

door.  She stated if they do not put in the deck, there will be a very large drop off the addition.  She stated she has an elderly father living with them and the new deck will

permit him not to have to go up and down stairs. 

 

Mr. Mayrhofer asked when they built the addition, and Ms. Daniels stated it was

approximately two to three years ago.  Ms. Daniels stated originally they were going to

put in stairs but her father cannot go up and down stairs.  They are proposing a wooden

deck with concrete footers.  No overhang or enclosure is proposed.

 

Ms. Kirk noted Exhibit A-4 and asked who took the measurements.  Ms. Daniels stated

the contractor took these, and she checked it against the survey Plan. 

 

Mr. Rollins Raudenbush, the contractor, was sworn in. 

 

Mr. Mayrhofer noted the sewer easement is centered on the property line with 10’ on

either side of the property line.  Mr. Koopman stated this is correct, and the Plot Plan

indicates that there is approximately 19’ from the existing edge of the house to the

property line.    Mr. Mayrhofer stated if they are going 12’ out, there will only be 7’10”

from the property line which would be into the sewer easement.  He stated they always

had a policy that if something needs to be done in the easement, the homeowner would

have to pull up the structure at their own cost. 

 

Mr. Koopman stated one of  problems is that they have not asked for a Variance from the

requirement to construct something over the sewer easement.  Ms. Daniels stated she did

request this, and the Township told them that they would put this into the same Variance. 

Mr. Mayrhofer stated it is the Applicant’s responsibility to fill out the Variance. 

 

Ms. Kirk stated they are asking for a Variance from Section 200-22 from the side yard

Setback; and in light of the testimony, it appears they are now asking to amend the

Application to include a Variance for the sewer easement.  Ms. Daniels agreed.

 

Mr. Toadvine asked if they  have determined that it is in the sewer easement. 

Ms. Kirk asked that Mr. Raudenbush give testimony as to the measurements and location

of the sewer easement.  Mr. Raudenbush stated he put in the Application for the Variance

and the individual at the Township indicated there was a sewer easement.  He asked if he

had to put in another paper for this, and the Township representative indicated that they

would put it in with this Variance and the check they paid would cover both. 

 

Ms. Kirk asked how much it will encroach into the side yard setback.  Mr. Raudenbush

stated it will leave 7’10” and will encroach into the side yard setback 7’2”. 

Mr. Wagner stated they will encroach into the sewer easement by 2’ and into the side

yard setback by 7’10”.  There is a 15’ side yard setback requirement.  

 

October 5, 2004                                                          Zoning Hearing Board – page 7 of 8

 

Ms. Kirk asked who holds the sewer easement.  Mr. Koopman stead Mr. Zarko and

Mr. Hoffmeister indicated it is a Falls Township easement.  Neither Mr. Zarko nor

Mr. Hoffmeister were able to advise what is in the easement or exactly where it is

located.  Mr. Koopman stated he feels they need to contact Falls Township to find out

exactly where it is.  He stated he did try to contact Falls Township today but did not get a

response.  Mr. Mayrhofer stated if they allow the Applicant to encroach, it could be just

the overhang of the deck that is in the easement. 

 

Mr. Wagner asked about the construction of the deck.  Mr. Raudenbush stated they could

cantilever the deck and set it back 2’.  He stated the manhole sits over about 3’ into the

neighbor’s side of the property line.  Ms. Kirk asked if Mr. Raudenbush contacted Falls

Township about the sewer easement, and he stated he did not.   Mr. Mayrhofer asked if

they encroach into the sewer easement, would they encroach with the overhang of the

deck and leave the pilings outside the easement, and Mr. Raudenbush stated he could do

this.

 

Mr. Koopman asked how high the deck will be off the ground, and Mr. Raudenbush

stated it is approximately 17”.  Mr. Koopman stated if there is a 20’ wide vehicle, it will

cause a problem.  Mr. Toadvine asked if they could scale the size of the deck down from

12’ to 10.’  Ms. Daniels stated while she could do this, she would prefer not to have to do

so.  Mr. Mayrhofer stated possibly they should postpone this matter until Falls Township

has an opportunity to review this matter.  Ms. Kirk stated even if the Board were inclined

to grant the Variance, if something occurs and Falls Township needs to work on the

easement, the Applicant will have to move the deck at their cost.  Ms. Daniels stated she

could contact Falls Township.  Ms. Daniels added that the manhole is very far from

where the deck will be and she does not feel there should be a problem.  Ms. Kirk stated

there is a pipe that runs underground.  Ms. Daniels stated she would assume that the pipe

is running along the same line as the manhole, and the Board advised her that this cannot

be assumed.  Mr. Mayrhofer stated they should contact Falls Township to see if they

would agree to an encroachment into their easement. 

 

Ms. Kirk suggested that they request a continuance to the next Board meeting to have a

chance to speak to someone in Falls Township.

 

Mr. Toadvine stead if they went to 10’, it would only be a 2” encroachment.  

Ms. Daniels agreed to modify the deck so that it would only be 10’ wide and there will be

a 2” encroachment into the sewer easement.

 

Ms. Kirk stated when the Zoning Hearing Board is asked to entertain encroachments into

sewer easements, the Board generally does impose a Condition that if the owner of the

easement needs to get to that property, the Applicant will be responsible for removing

any obstructions at their cost and expense. 

 

There was no public comment.

October 5, 2004                                                          Zoning Hearing Board – page 8 of 8

 

 

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

grant the Variance for a side yard encroachment of 5’2” and an encroachment into the

sewer easement area of 2”.  If the owner of the easement needs access to the easement,

the Applicant is responsible to remove any structures within the easement at the

Applicant’s sole cost and expense.

 

 

OTHER BUSINESS

 

Ms. Kirk stated the next meeting of the Zoning Hearing Board will be held on

November 3, 2004 which is a Wednesday.

 

 

There being no further business, Ms. Kirk moved, Mr. Malinowski seconded and it was unanimously carried to adjourn the meeting at 8:30 p.m.

 

                                                                        Respectfully Submitted,

 

 

 

                                                                        David Malinowski, Secretary