JANUARY 20, 2004



The regular meeting of the Lower Makefield Township Zoning Hearing Board was held on Tuesday, January 20, 2004 in the Lower Makefield Township Municipal Building.  Ms.  Kirk called the meeting to order at 7:30 p.m. 



                                                                                                RUDOLPH MAYRHOFER

                                                                                                DAVID MALINOWSKI

                                                                                                DARWIN DOBSON

                                                                                                JOHN HRICKO


                                    OTHERS                                             ALLEN TOADVINE

                                                                                                PETE STAINTHORPE

                                                                                                JOHN KOOPMAN

                                                                                                SALLY DORNER

                                                                                                JIM MAJEWSKI


APPEAL #03-1235 - CARA MIA


Letter has been received dated 11/15/04 from Sally Bellaspica with attached letter from the applicant dated 1/14/04 requesting postponement until 2/17/04.  Mr.  Toadvine advised he contacted applicants’ attorney and requested letter which would waive the time limits and would prefer that letter dated 1/20/04 from Edward Murphy, esq.  requesting matter be continued and waiving the time limits be marked as B-2.


Motion made by Mr.  Mayrhofer granting continuance to 2/17/04.  Motion seconded by Mr.  Malinowski and carried. 


A resident requested ability to make comment on this matter.  Ms.  Kirk advised he needs to come to the meeting on 2/17 in order to be heard since the matter has not been opened and testimony has not been taken.  She explained after testimony is taken the matter is opened up to the public to make any comments or request party status.and he should come at that time.





Edward Murphy appeared on behalf of the applicant.  This matter was previously scheduled and continued until this evening.  He is here this evening for legal owner William Stipe as well as Tom Mack who will be participating in this venture with Mr.  Stipe. 

Application submitted was accompanied by a specific plan depicting proposed development for a single family detached dwelling.  Scope of relief sort was limited to one item which was relief from the maximum impervious surface ratio which is 13%.  The plan submitted with the application sought relief for maximum of 15.6%. 


Mr.  Murphy advised that the lot as part of an overall stipulation which was reduced to a court order entered into in 1996 between the Township and Mr.  Stipe. 


Application was marked as Exhibit A-1.  Plan of J.G.  Park last revised 9/22/03 was marked as Exhibit A-2 (single sheet plan).  First modification for stipulation of court order dated 5/20/96, with plan marked Exhibit A and declaration of restrictive covenants marked Exhibit B.  Order dated 6/4/96,  adopting order of the court with terms and conditions of the Stipulation. Ms.  Kirk asked if this is the result of an appeal before the Zoning Hearing Board.  Mr.  Murphy advised it is not.   He advised there was a proposed subdivision plan submitted to the township as a result of which certain issues arose and the matter was resolved by the stipulation providing for a 3 lot subdivision.  Two of the lots were purchased by the County of Bucks for open space.  At this point out of the total acreage of the original plan the only building lot is the one which is the subject of this application.  In the stipulation there were various terms and conditions which were set forth dealing with the nature of the proposed construction of a home on this lot.  This lot is non conforming which was recognized in the Court Order and Stipulation and for this reason request for increase to impervious surface ratio is requested.  Since the date of the originally scheduled hearing a number of alternative plans were prepared and reviewed with property owners on either side of this lot.  These residents and counsel are present this evening.  As a result of those conversations a revised plan has been prepared which revises the relief being sort in this case. 


Revised plan entitled Variance plan for 20-53-43 bearing no last revision date (only date is 6/25/03), but labeled “Front Entry Garage at rear entry set back line” was marked as Exhibit A-4.   The significant difference between A-2 and A-4  is the amount of relief being sought has been reduced from 15.6% to 14.1%.


Ms.  Kirk noted under the terms of the Stipulation Paragraph C indicates development of Lot 2A would be limited to the impervious surface ratio for this district.  She stated this is a binding stipulation which the parties entered into and questioned how the Zoning Hearing Board can usurp a decision which the parties executed and filed to have as entered as an order of court in the Court of Common Pleas.  Mr.  Murphy stated it is his judgment as well as the township solicitor that the Zoning Hearing Board is the appropriate party to hear this variance request.  Mr.  Toadvine agreed. 


Martin J.  King, Esq.  of Cordes and King requested party status on behalf of his clients Debra Matter and John Cooper of 567 River Road and Ken and Susan Grant of 571 River Road.  Mr.  Murphy advised he has no objection to party status.


Mr.  Murphy called Robert Pelke of J.G. Parks to Testify.  He advised he is employed by J.G.Park of 1084 Taylorsville Road Washington Crossing PA as a professional surveyor.  He has been actively involved in the preparation of Exhibit A-2 and A-4 which will be subject of more testimony this evening.  He agreed this lot is located in the RRP district.  On exhibit A-2 in the corner there is a chart identified minimum zoning requirements as well as actual dimensions of this lot.  Mr.  Pelke confirmed that he has identified whether or not the lot meets the requirements of the RRP district as well as areas where the lot is non conforming. 


Mr.  Pelke described the conditions on lot.  He advised there are two large trees and to preserve these trees the house is proposed to be located between the two.  Referring to A-2 to the rear of the proposed dwelling is a 40' diameter tree and in front is a 60" diameter tree.  The home is to be located between canopy of the same.  Access to the home will be proposed from River Road by a side entrance garage.  Exhibit A-2 shows the rear most portion of the dwelling to be set back 105' from the rear property line.  The house is set back as far as it can without seeking relief.  Regarding the minimum front yard the RRP requires an 80' set back from the special set back of River Road.  Home has been position at 109.9 from the edge of the ultimate right of way to preserve the 60" diameter tree.  This property is designed to be served by public water with on lot sewer system.  Mr.  Pelke advised based on the layout of the lot and home the proposed impervious surface ratio is 15.6%.


Referring to Exhibit A-4, Mr.  Pelke advised that building for a front entry garage the house was shifted 5' to the south-west and the driveway was moved to the northwest.  The home is still located on the rear most building setback line of 109.5'.  It would appear that the side yard closest to parcel 20-53-43-4 (property of Grant) home has been shifted 4.8'.  On A-2 the minimum side yard was 25' and now it is 29.7'.  Home has been shifted to the southeast.  Driveway has been moved away from the closest point to 20-53-43-1.  Driveway is now toward center of the lot where it intersects with River Road.  Mr.  Pelke advised now has front yard setback of 109.8.  The front entry garage as proposed in A-4 takes less impervious surface so the driveway is shorter.  It was noted that 14.1% impervious is still in excess of the 13% maximum.  If this plan had been further revised to bring the house down toward River Road and the minimum front yard set back of 80' the impervious surface would be further reduced by 268 sq.  ft.  and impervious would be 13.4%.  In order to do this they would need to remove the 60' diameter tree.


Mr.  Mayrhofer asked the distance from River Road of the homes on either side.  Mr.  Pelke advised they are approximately the same distance as what is proposed (100/110).  Mr.  Mayrhofer noted the edge of the macadam is factored into the impervious.  Mr Pelke advised this was not factored in.  This is driveway encroaching across the line which is owned by neighbor.  Mr.  Mack advised this has been removed. 


Aerial photo performed in 1994 was marked as Exhibit A-5.  It was noted J.G. Park has placed the proposed house on the plan showing the alignment of house on River Road. 


Mr.  King asked the square footage of envelope for proposed dwelling shown on A-3.  Mr.  Pelke advised the footprint is 3,151.  The home will be 2 story.  Mr.  Mayrhofer advised the size is 3,217 as shown on A-2.  Proposed square footage of print on A-4 is 3,190.  Ms.  Kirk questioned the difference and Mr.  Pelke stated 3,190 is the square footage of the house and does not include the porch.  Mr. King asked how much would be required to reduce the foot print in order to comply with the ordinance. Mr.  Pelke stated this would require reduction of 400 sq.  ft.  Mr.  King noted a 5,600 sq. ft 2 story house on the lot would comply with the ordinance.  He noted the applicant has chosen to  ask for a variance other than comply.  Mr.  King asked if this would be for economic reasons and Mr. Pelke stated he would need to ask this of the applicant.  Mr.  Pelke stated he visited the site in June and September. 


Mr.  King provided photocopies of the property to Mr.  Pelke and asked if he saw standing water when he was on site as depicted in the photographs.  Mr.  Murphy stated this lot was established by court order in 1992 and again by court order in 1996.  He advised lot was established after RRP zoning classification.


Tom Mack was called to testify and advised that he resides at 172 S Main Street Yardley.  He heard Mr.  Pelke’s testimony as well as comments made by Mr.  Murphy and advised all comments were accurate.   He advised if this project moves forward his organization would be constructing the single family house.  In addition to A-2 other alternate plans have been prepared by him and reviewed by the neighbors.  Mr.  Mack explained there were several issues in preparing the 14.1% plan.  There was concern about the driveway with the side entrance garage to the property on the south side.  Dwelling on this lot is close to property line of 20-53-43-1.  Owner of that lot was concerned about noise and exhaust having driveway adjacent to their living space.  There was discussion about moving the garage forward to create a court yard type appearance but this would result in greater impervious . 


Mr.  Mack stated he moved the house in order to save trees.  He noted it would be a crime to cut them down.  He has invested $3,500 on having remedial work done on both trees.  He does not believe he is bound by the original agreement to save them but feels it would lessen the property to cut them down.  He stated if required to develop plan which did not exceed 13% it would be his intention to move the building forward to reduce impervious.  His first consideration, however is cutting the trees down. 


Ms.  Kirk noted the proposed plans reduce the square footage of the house and driveway and walkway but double the square footage of the porch.  Original square footage was 63 sq.  ft and now it is 129 sq.  ft.  Mr.  Mack advised there is a portion of overhand in the front as well as farmers porch in the back.  This is a porch roof over a stoop.  He stated proposed drawing on A-2 shows porch (13.7) is included in the house envelope.  This is porch space.  It is not a change in design of the house.  Front elevation line of the house was included as living space rather than porch. 


Mr.  King asked why they do not reduce size of the house so they can comply with the ordinance.  Mr.  Mack advised they designed the house and thought it would fit without taking the trees down.    He understand sometimes modifications need to be made. 


Mr. King noted on A-2 with the side garage they is close to the side yard . 

Mr.  Mack advised he has been to the site 25 to 30 times. 


Mr.  King introduced photographs marked I-1 and I-2 and requested Mr.  Mack look at the same.  Mr.  Mack advised he is familiar with the water problem.   He pointed out there is no drainage along River Road and road drainage and lot drainage will have standing water.  


Mr.  Mack advised his arrangement with the owner is that they will enter into a joint venture when and if they are approved.  He is the developer, not the owner.


Mr.  Murphy asked that Exhibit s A-1 through A-5 be admitted.  Exhibits were accepted. 


Mr.  King requested opportunity to produce testimony and called John Middlebrook to testify.  Mr. Middlebrook advised he resides at 567  River Road.   Upon reviewing Exhibit I-1, Mr.  Middlebrook advised this is standing water near the road.  I-2 is another area on the property which extends onto his property with standing water.  These photographs were taken by him between 12/16/03 and tonight.  Ms.  Kirk asked about the weather conditions.  Mr.  Middlebrook advised this is a sunny day but he cannot be sure of the condition the day before.  Mr.  Malinowski asked if the ground was frozen.  Mr.  Mayrhofer noted there were times in December when there was substantial rain, as much as 2". 


Mr.  Middlebrook advised he is familiar with A-2.  The driveway is 5' from his property.  His property has beds which were regraded on the advice of developer because of water in the basement.  Mr.  Murphy objected stating hearsay, which was sustained.  Mr.  Middlebrook advised he has regraded this toward the property in question and landscaped the same.  He noted water would be in this area and retained for a longer than normal period.  Mr.  Mayrhofer asked if he is a horticultural expert and Mr.  Middlebrook advised he is not.


Mr.  Murphy asked if the photographs represent an area along the edge of River Road within the right of way of River Road and is set back 15'.  Mr.  Middlebrook advised it includes this area as well as other side.  Mr.  Murphy asked if he is aware that regardless of the size of the home built on this lot building permit would be subject to review by the Township Engineer.  Mr.  Middlebrook stated he was not aware of this.  Mr.  Murphy advised one item reviewed for granting permit is grading and storm water issues.  He advised any building permit would be subject to township engineers review and issues of storm water would be considered by the township engineer including those described by Mr. Middlebrook so storm water would not be exiting this property onto his. 


Mr.  King called Mr.  Brant to testify who advised he resides at 571 River Road and has lived there for 5 years.  I-4 photograph is of his home.  This is in line with other homes in the area (120' back from River Road).  Mr.  King showed Mr.  Brant photographs I-5, which is water in basement of his home taken last year, I-7 photograph of water in his basement and I-7 which is the same.  He advised he gets water in his basement sever times a year.  Mr.  Mayrhofer asked if Mr.  Brandt has identified the reason for the water.  Mr.  Brandt advised when there is a period of rain the ground is saturated and the soil around the house allows the water to come through the walls.  Water does not drain off.  He noted he has a peculiar ground surface situation in this area.  Mr.  Mayrhofer advised he has lived in this area for 30 years and has not had problem with water in his basement.  Mr.  Brandt advised there is standing water on the lot next to them as well as other areas.  This appears when there is a reasonable amount of rain.  Mr.  Kirk asked what determines a reasonable amount of rain.  Mr.  Brandt stated 1 ˝ to 2" there is a problem.


Mr.  Murphy had no questions.  There was no objection to the admission of Mr.  King’s exhibits. 


Mr.  Murphy advised applicant is prepared to withdraw request in A-2 and substitute A-4 so what is being sought is a request for 14.1% impervious.  Over half of this increase is due to effort to save trees in the front yard.  If the house had been brought forward to 80' this increase would be 13.4%.  They believe based on site character and desire to preserve the trees this amount of impervious requested is de minimus and feels it would be appropriate for the Zoning Hearing Board to grant the relief.  Ms.  Kirk asked if A-4 was provided to the property owners.  Mr.  Murphy advised A-4 was presented by Mr.  Mack to residents last evening.  And was prepared in an effort to address the concerns of the neighbors.


Mr.  King stated that the chairperson’s’ belief is correct.  Parties agreed and order was entered into.  He believes the Zoning Hearing Board Authority does not go to overruling or changing a court order.  They belief the applicant can reduce the building further by 400' in order to comply.  Because the applicant has decided to build as proposed any claims of hardship will be self imposed.  Regarding de minimus, when it comes to conditions of water and applicant could comply with ordinance, even if ratio is 14.1% this is not de minimus. 


The purpose of the ordinance was to limit whoever wanted to develop to a percentage. 


Mr.  King advised that I-3 was not entered into evidence.


Motion made by Ms.Kirk to deny the request.  Motion seconded by Mr.  Malinowski and failed (2 yes/3 no)


Motion made by Mr.  Mayrhofer to approve request as proposed at 14.1%.  Motion seconded by Mr. Dobson and carried (3-2 with Ms.  Kirk and Mr.  Malinowski voting no.)


Recess was called by the board at 8:30 p.m.  Ms.  Kirk reconvened the meeting at 8:45 p.m.






Mark W.  Eisold of Bouche and James appeared on behalf of the township.


Application dated 12/12/03 was marked as Exhibit A-1.  Plan prepared by Bouche and James attached to the application was marked Exhibit A-2.  Memo from Sally Bellaspica dated 1/16/094 with letter from Mark Eisold dated 1/15/04 and revised plan dated 1/15/04 was marked as Exhibit A-3.  Liuba Lashchyk architect for the memorial park was also present at the meeting.  Packet of history of memorial project was marked as Exhibit A-4. 


Mr.  Eisold advised that in 1994 the Township purchased a track of land to construct a park.  In 2000 a concept sketch was prepared.  As a result of 9/11, there was a memorial committee formed who expressed interest in putting a memorial in this park.  This park will have recreational facilities as well as the Memorial.  In 2000 the Board of Supervisors approved a final plan for the park and in 2003 the Township contracted with Bouche and James to prepare design and obtain permits.  Upon working with the Park & Rec Committee as well as others, they upgraded the original concept.  In October 2003 the Board of Supervisors approved a plan (Alternate D) as the plan to be put forth in design and construction.  Location and topographical information has been provided by aerial flown in September of 1989 and verified by Bouche and James.  There is a wetland delineation plan which was prepared in June 2002 by Skully and Loy to define limits of the wetlands.  One area which was  the wetland water course buffer area which is depicted on the plans.  This is an area per the ordinance to be protected so development does not encroach.  Variance to Section 200-51B.4 is requested to provide minimum encroachment.  They look to encroach in three areas. 


Referring to the plan Mr. Eisold advised the entrance drive encroaches.  The interior drive will cross wetland and wetland buffer area by the tennis area.  The third area is the storm water management area which encroaches by 4.5'.  He advised they originally proposed additional trees.  He is unsure if this is defined as disturbance.  Mr.  Toadvine advised it is.  Mr. Eisold advised as a result of talking to Ms.  Lashchyk the encroachment is smaller than shown on the application.  There will still be encroaching areas along the outer edges of the memorial.


Ms.  Kirk asked about the storm water management facility.  Mr.  Eisold advised they are in the process of completing the design.  Based on the trees they may have to encroach with slope of the berm. 


Mr.  Toadvine noted the buffer varies  from 25' to 100'.  When building the road this is a large encroachment.  He asked about other types of encroachments.  Mr.  Eisold advised that will be enough where vegetation is minimum in height.    It was noted the wet land is a small isolated area and not connected to a stream corridor system. 


Photographs of existing stone paths were presented to the Zoning Hearing Board because it goes through the buffer area.  Ms.  Kirk asked if asked if this shows existing stone path to the house.  Mr. Chen noted this was the original driveway. 


Ms.  Kirk asked if request is granted based on A-3 if there is enough information as to dimensions of encroachment.  Mr.  Toadvine asked Mr.  Majewski if he is satisfied with A-3 to issue a building permit.  Mr.  Majewski advised they have received length and width of encroachments so may be the information is in A-3. 

Four photographs on two 8 ˝ x 11 sheets was marked as Exhibit A-5.  Mr.  Eisold explained all the encroachments.  He explained the road was put at the least amount of distance.  Access has been eliminated from Woodside Road.  There will be a culvert in the wetlands.  Storm water management basin will collect water and filter it out slowly.


There is variance requested for trees which will encroach but also help filter contaminants. 


Although there are four minimal encroachments based on the ordinance and goal of the buffer area, they are making it better.  Mr.  Mayrhofer asked if there is need for specific square footage for the area.  Mr.  Eisold advised they can get that.  The architect is in the process of fine tuning the area.  Mr.  Mayrhofer asked for a maximum amount of square footage with them working toward reducing the same.  Mr.  Eisold stated they can give the calculations for the maximum amount.  Ms.  Kirk asked if they can do this tonight.  Mr.  Eisold advised they will need no more than 400 sq.  ft of encroachment in this area.


Mr.  Stainthorpe stated this project has gone through the planning process and seems to change on  the whims of the committee.  He stated as they start to finalize these whims cannot be considered any longer.  What they are asking for should be what they want because they do not want to come before the Zoning Hearing Board again.  No matter what the committee wants, once the decision is made they become final.  The applicant and their representatives need to be comfortable with that.


Mr.  Kirk noted there appears to be an issue about the size of square footage for the Garden of Reflection and asked if they wanted to discuss this matter.  She asked the applicant if they would like this continued until the next hearing date to get more definitive as to the amount of space.  Mr.  Eisold advised they feel 500 sq.  ft.  would be the maximum required.


There was no comment from the audience.


Motion made by Ms.  Kirk that the request for variance from Section 200-51B(4) be granted as per applicant’s exhibit A-3 with condition that encroachment for the Garden of Reflection area not exceed a maximum of 500 sq.  ft within the buffer area.  Motion seconded by Mr.  Mayrhofer.


Mr.  Toadvine suggestion a condition be that the applicant obtain all Federal and State permits necessary.  Motion amended by Ms.  Kirk that applicant obtain all necessary Federal and State certifications as requested.  Motion as amended seconded by Mr.  Mayrhofer and carried.





Edward Murphy, Esq. appeared on behalf of the applicant. 


This is a project which has received preliminary subdivision approval in December of 2003. 


Application was marked as Exhibit A-2.  Affidavit of Posting was marked as Exhibit A-1.  Plan prepared by Shorr DePalma was marked as Exhibit A-3.    This is a 43 acre parcel located between Mt.  Eyre and Delaware Rim Road.  Plan originally contemplated roadway through the site to Delaware Rim.  Extension of this road would have been required by subdivision ordinance for two points of access.  The site is bisected by Dyer Creek which would have required a significant crossing.  An alternate sketch was prepared which eliminated the creek crossing and extends the road from Mt.  Eyre Road to Dyers Creek and from Delaware Rim to a cul de sac.  This plan was recommended for approval by the Planning Commission.  This was the plan that most surrounding property owners agreed to as well. 


Mr.  Murphy noted plan has been prepared showing extent of disturbance of various natural resources regulated by ordinance (A-3).    Mr. Murphy showed graphic of original plan which shows 1/4 acres of disturbance of the creek to construct roadway.


Susan Menno of Shorr Depalma,1551 Buster Road, Kulpsville PA was sworn in to testify.  She advised she is a civil engineer and is the project manager for this project and has been responsible for the plans for subdivision before the Board.  She agrees summary as per Mr.  Murphy is accurate.


Referring to A-3, she explained encroachment into Waters of the US which are regulated by the Army Corps.  She also explained the areas  required by the township code for water course to wetland areas.  Some encroachments are the result of the extension of Delaware Rim Drive.    Second area (Area B) which is the water course and Areas 2 and 3.  These are impacted by extension of the water and sanitary sewer lines for the project.  Area 4 is the wet land buffer area which will be impacted for the sanitary sewer lines.  Areas C, 5 and 6 are extensions of the water and sewer lines underground.


Other than area of roadway grading, each of the other areas for water and sewer lines, once work is done those areas will be naturalized.  Ms.  Menno explained that in the areas of the wetlands and the water course grading takes place in the easement needed for the lines.  In the areas such as stream crossings DEP and Bucks County have specific requirements. 


Ms.  Kirk noted there will be installation of sewer and water lines and questioned who will maintain them.  Ms.  Menno advised these are underground lines and the easements will be turned over to the water and sewer authorities.  Ms.  Kirk noted there is possibility for disturbance of lands for maintenance of those lines.  Mr.  Murphy advised these easements will be turned over to Lower Makefield Township.  She noted this disturbance takes place in a dry ditch which only collects water during rainstorms and is also posing an erosion hazard because it is located inside the Continental Gas Lines.  That company saw the request as a benefit.


Ms.  Menno explained  Dyers Creek is a continuously flowing creek.


Ms.  Menno advised the additional area of disturbance if the road is extended will be 34,136 sq.  ft.  Under the current plan this will be 22,886 sq.  ft which is 1/4 acre less.


Mr.  Majewski advised they have no problems with the proposal.  They looked at several issues, one being Transcontinental pipe line which requested the crossing be at a right angle with their easement so it has the shortest distance across the gas line.  This brings it a bit closer to the wetlands than it might have been.  They have no problem with variances required.  Based on A-3, he is satisfied this depicts the square footage necessary.    Mr.  Murphy agreed.



Motion made by Ms.  Kirk granting variances from Section 200-51B(1)(b), Section 200-51B(4)(b) and (d) as depicted on Exhibit A-3 with condition that applicant all necessary federal, state and local certifications necessary for the application.  Motion seconded by Mr.  Mayrhofer and carried.



Mr.  Kirk reminded everyone that the first meeting in February is cancelled.



There being no other business motion made by Ms Kirk to adjourn.  Motion seconded by Mr.  Hricko and carried.  The meeting adjourned at 8:38 p.m.


                                                                        Respectfully submitted,



                                                                        David Malinowski, Secretary