TOWNSHIP OF LOWER MAKEFIELD

ZONING HEARING BOARD

JUNE 15, 2004

 

 

 

The regular meeting of the Lower Makefield Township Zoning Hearing Board was held on Tuesday June 15, 2004 in the Lower Makefield Township Municipal Building.  Ms. Kirk called the meeting to order at 7:30 p.m. 

 

THOSE PRESENT      ZONING HEARING BOARD            BARBARA KIRK

                                                                                                DARWIN DOBSON

                                                                                                JOHN HRICKO

 

                                    OTHERS                                             TRACI CASSEL BROPHY

                                                                                                SALLY DORNER

                                                                                                JOHN KOOPMAN

                                                                                                JIM MAJEWSKI

                                                                                                PETE STAINTHORPE

 

Ms. Kirk advised that any matters not completed by 11:00 p.m. will be continued until the next scheduled meeting of the zoning hearing board.  She also requested that all cell phones be turned off.

 

APPEAL #04-1265 – TODD AND GLORIA CROSS

 

Memorandum dated 6/14/04 to the Zoning Enforcement Office has been received requesting this matter be continued to 7/20/04.  Motion made by Ms. Kirk granting request for continuance.  Motion seconded by Mr. Dobson and carried.  Ms. Dorner will notify Mr. & Mrs. Cross that continuance has been granted and request a letter from them waiving the time constraints regarding this matter being heard before the board.

 

 

APPEAL #A04-1260 – AARON “CHIP” AND JODI VENABLES

 

Mr. & Mrs. Venables appeared before the board.  Application was marked as Exhibit A-1.  Plane prepared by J.G. Parks dated 6/3/04 was marked as Exhibit A-2. 

 

Mr. Venables advised they want to add onto their home and need a variance from the front and side yard setbacks. This addition will be a master bedroom on the second floor of the addition.  The first floor will be the family room and they will extend the garage. 

 

Five page document showing photographs of the existing building, and aerial photographs were marked as Exhibit A-3.  Mr. Venables advised they thought about moving but have been in this house for 11 years.  To move is something they do not want to do since they have built a strong relationship with their neighbors. 

 

This house is a slit level having 3 bedrooms and 1 ½ baths and they are cramped for space.    Mr. Venables noted there is a lot of living space available without adding substantially to the footprint of the property.   They are requesting to go back 6’ off the back of the garage as well as forward on the garage.   They want to keep the house in the same architecture which fits into the neighborhood.  They want to add a master bedroom and have a family room/playroom under the same. 

 

Mr. Venables stated they do not feel what is requested is unreasonable.  76% of the homes in his neighborhood have garages which come forward.  It was noted this home is located in RRP district.  A question was raised about impervious and Ms. Dorner advised that for the impervious calculations they use the R-2 calculations.  Variance is needed for setback.   Mr. Venables advised the garage will still house one vehicle.  They have spoken to their neighbors who have not objections.

 

Ms. Cassel-Brophy asked how close the neighboring house will be to this addition.  Mrs. Venables advised from the property line there is still 12 to 15’ plus the 16.3’ they will have. 

 

Mr. Koopman advised the township has no position.

 

Mrs. Donagross lives next door and advised she is in agreement.  The owner of 100 Manor Lane East complemented the zoning hearing board on their work.  He also noted they appreciate the fact the Venables want to renovate rather than move and is in agreement with proposal.  Mark Buller of 101 Manor Lane saw the plans and is in agreement with proposal.

 

Motion made by Ms. Kirk  granting variance from front and side yard setbacks as requested.  Motion seconded by Mr. Dobson and carried. 

 

 

APPEAL #04-1261 – VINCNET A. PIACENTE, AIA INSIDE ARCHITECTURE, P.C.

Vincent Piacente appeared together with Nathan Linowitz owner of the house.  Application was marked as Exhibit A-1.  Five age plan prepared by Inside Architecture PC last dated 2/27/04 was marked as Exhibit A-2.

 

Mr. Piacente advised he has been working with Mr. Linowitz to develop a small addition to he house.  Variances are requested from section 200-22 (rear yard setback) and section 200-23B (impervious surface).   It was noted the site plan shows the lot and position of the house which is peculiar.  Rear corner of the home currently violates the setback and the lot ha too much impervious.  Addition will be adding 1% impervious and set back will be 4 1/2 ‘ further than current violation for total of 5 1/2 ‘  This lot was sold prior to 1987 and required to have maximum of 18% impervious.  If developed after this they would have been allowed 24%. Presently they have 20.8%.  Mr. Linowitz advised he purchased the home in September of 1980.  He noted the eating area in the home is small and they would like more room.   Then they have family they use the Florida room a great deal.  Getting from the kitchen to the Florida room requires going through the family room.  This addition would square off the kitchen with the Florida room and allow access directly.  Mr. Piacente stated they would like a connector link between the kitchen and family room addition. 

 

Ms. Kirk noted it does not appear addition will be squared off with the rear of the building.  Mr. Piacente stated the Florida room is down 4” and how it would intersect with the new link would be awkward.  Mr. Kirk noted presently they are over the existing impervious.  She asked if something could be shuffled to reduce the impervious coverage.  Mr. Piacente stated if they shrink the room they would need to reduce the eating area.  He noted the concrete patio in the back is approximately 120 sq. ft.  Ms. Kirk asked about storm water drainage.  Mr. Piacente stated the property gently slopes toward the street.  Mr. Linowitz stated there is not water run off toward the rear. 

 

Mr. Hricko asked if the Florida room was added after house was built.  Mr. Linowitz stated it was a finished porch and they took the screens out and put windows in.  No additional impervious has been added since they purchased the home in 1980.

 

Mr. Koopman advised the Township  has no position.

 

Ms. Kirk asked if this addition was directed toward a neighbor.  Mr. Linowitz advised he spoke to neighbors to the sides who have no objection. He did not speak with neighbors to the rear. 

 

Ms. Kirk if he is sure about the 5.5’ encroachment.  Mr. Piacente advised this is the maximum.

 

Motion made by Ms. Kirk granting variance from section 200-22 to permit rear yard encroachment not to exceed 5.5’ and variance to section 200-23B to allow impervious not to exceed 20.8%.  Motion seconded by Mr. Hricko and carried.

 

\APPEAL #04-1262 – GEORGE AND SUE HEINZE

 

Mr. Heinz appeared before the board.  Application was marked A-1.  Plan prepared by J.G. Park last dated 7/21/97 was marked A-2.  This is a request for variance from section 200-18 for setback.  Mr. Heinz advised they currently have a front stoop and would like to put a portico over it.  This would crate a setback of 39’3” and they are required to have 40’.  He noted the front entry way has been repaired several times due to water damage.  Ms. Kirk asked if they are extending the existing roof and Mr. Heinz advised there is presently no roof.    Ms Dorner advised the stoop can go into the setback.  Variance is needed because there will be a roof. 

 

Mr. Heinz advised they talked with neighbors and none are opposed.  Mr. Koopman advised the township has no position.

 

Motion made by Mr. Hricko granting variance as requested.  Motion seconded by Mr. Dobson and carried.

 

 

APPEAL #a04-1263 – APRIL STILES AND CRAIG PUSCZKO

 

Ms. Stiles appeared before the board.  Application was marked as A-1.  Site Plan prepared for the property last dated 11/25/03 was marked as A-2.  Ms. Stiles advised 11 months ago they had a house fire and as of 5/6/04 they were approved for a temporary CO.  AT that time they found they were in violation of the side yard setback for step to a door which is 3’ high on the side of the house. 

 

Three sheets of 11 photographs were marked as Exhibit A-3.   Ms. Stiles advised that plans submitted called for a door to a mudroom, however it never called for stairs.  She also advised they are requesting to be able to put paves from the driveway to the step which is also included in the variance request.  Ms. Kirk asked if the site plan submitted is the plan submitted for the permit and Ms. Stiles advised it is.  Ms. Kirk asked if it is marked significantly clear as to the walkway. 

 

Ms. Stiles advised the temporary CO is contingent on variance for walkway and step.  Ms. Kirk expressed concern that this needs to be minimal relief and there is no issue of what is being submitted.  Revised site plan was marked as exhibit A-4. 

 

Mr. Koopman advised the township has no position. 

 

It was noted there are no impervious surface issues.  Regarding plan submitted with the application it was noted it shows driveway to be 20’ x 80’.  New site plan (A-4) does not show measurements of the driveway.  Mr. Stiles advised this will be corrected.

 

Ms. Kirk asked if measurements are sufficient for issuance of permit and Ms. Dorner noted the walkway appears to be extended and appears to be more than landing and step.  She is unclear if this is 7 ½’ rather than 8’.  Ms. Kirk noted it will not encroach more than 8’.  Ms. Dorner stated it should show measurement of 7 ½’.   Ms. Kirk asked Ms. Stiles if she is satisfied this is 7 ½’.  Ms. Stiles noted walkway does not go further than step and is 4’. 

 

Motion made by Ms. Kirk granting variance from section 200-22 to permit 7.5’ of encroachment into side yard setback.  Motion seconded by Mr. Dobson and carried.

 

 

APPEAL #04-1264 – EVERETT AND DENISE M. PETTIECORD

 

Everett Pettiecord appeared before the board.  Application was marked as Exhibit A-1.  Survey and plan prepare by All-County dated 11/2/92 was marked as Exhibit A-2.  Photographs on 8 ½ x 11 sheet was marked as Exhibit A-3.

 

Mr. Pettiecord advised they are requesting variance in order to build a deck on the side of the house, which is actually the back of his house. There is presently an existing deck which was built with the house. They are requesting variance in order to expand the size of the deck.  He explained he is trying to eliminate the number of steps and wants to expand into a 3 tier deck system which will run the length of the house from the dining room bump out window to the right side of the house. Behind them is 5 mile woods so there are no neighbors in view. There are neighbors to the left who he has talked to.  There is an easement (utility) on the right of the home.  Proposed deck will be an open wood deck on the first floor.  Ms. Kirk asked if he brought the deck to the end of the pump out of the second window this would eliminate a substantial portion of the encroachment.  Mr. Pettiecord noted last section of the deck is another step down and he is trying to eliminate multiple steps off the deck. As proposed this would be a 3 tier step down rather than 5.  If built closer to the house it would increase the number of steps off the second level.  There is one step to the first level and one to the second level.  Ms. Kirk asked about slope of property from the rear toward the side.  Mr. Pettiecord advised looking at the front it slopes right to left. There are no concerns or buffer easements.

 

Mr. Koopman requested party status on behalf of the township.  He asked Mr. Pettiecord about the existing deck and Mr. Pettiecord  advised it is approximately 12’ x 17’.  The right corner rest at the setback line and is in compliance with the side yard setback.  Mr. Koopman noted  it is actually 13 x 20 which equals 260 sq. ft and proposed is 667 sq. ft 3 tier deck. Mr. Pettiecord advised drawing shows outline of  the existing deck.  Variance would leave 3’ between corner of deck and 5 Mile woods.  Mr. Koopman advised the Township is opposed to 3’ setback which is too little and would like to see minimum of 8’ between property line and 5 Mile Woods.    With 3’ there is too much chance of encroachment to a sensitive environmental area and use of low mower in this area.

 

Mr. Kirk asked Mr. Pettiecord if he could reconfigure the deck.  She asked if he wants to continue to the next meeting so he can review plans  or make a commitment this evening that it will not encroach more than 7’ into the setback.  Mr. Pettiecord stated he is unsure of concern with lawnmower because grass does not grow under the canopy of the trees.  He respects concerns but tree cover and underbrush is thick and he has no intention of dong anything to it.  This is part of the reason he purchased this property. 

 

Mr. Stainthorpe stated when the Board of Supervisors discussed this their concern was not the size of the deck but the encroachment into Five Mile Woods.  People encroach into township land all the time.  This happens with all open space in the township.

 

Ms. Kirk again asked if he would like a continuance to reconfigure the deck or have the board vote which would limit the encroachment to 7’.  Mr. {Pettiecord requested a continuance.

 

Motion made by Mr. Dobson granting continuance to 7/20/04.  Motion seconded by Ms. Kirk and carried.

 

Recess was called at 8:30 p.m.  Ms. Kirk reconvened the meeting at 8:40 p.m.

 

 

APPEAL #04-1250 – ROBERTA ND KATHLEEN WIDMER

 

John VanLuvanee appeared together with the applicants.  Later dated 5/12/04 requesting continuance to this evening was marked as Exhibit A-1.

 

Mr. VanLuvanee advised it is their intention to request variance in order to file subdivision plan with the township consistent with the plan submitted with the application.  He has identified two variances which are requires also and he amended his application to add these two additional requested variances.  A variance is requested from minimum lot area.  Plan shows 14,985 sq. ft and he requested this be amended from 15,000 so request is consistent with the plan. 

 

Mr. Koopman advised the township wants party status and has no objection to the amendment.    Ms. Kirk stated the board has no objection to amendment of square footage to 14985. 

 

Regarding section 200-61.C this requires minimum yard set back measured from limits of resource protected area.  What is shown is measured from the lot lines.  Mr. VanLuvanee advised he spoke with the engineer who prepared the plan.  The intent is to request relief so the minimum yard setbacks are measured from the lot line as shown on the plan rather than the limit of tree disturbance. 

 

Mr. VanLuvanee noted the last item is already taken care of by the requested variance regarding site capacity calculations for woodland disturbance which is listed on site plans and variance and identified on the application.  Technically a variance should be requested from section 200-51B which stated woodlands disturbance is limited to 30%.  Board agreed to amendment. 

 

Mr. VanLuvanee noted this request is now for  variance.  He stated these variances are necessary in order to permit use of the lot “2” as a single family building site.

 

Site plan revised 5/17/04 was marked as exhibit A-2.  Deed submitted with application was marked A-3.  Subdivision plan for west acres recorded in plan book 3, page 5, recorded 1941 was marked as Exhibit A-4. 

 

Regarding A-3.  There are three separate deeds referenced in conveying land to Breen.  Ms. Kirk requested offer of proof.  Mr. VanLuvanee stated it is necessary to show these were acquired separately.  Ms. Kirk asked if A-3 is one lot and ownhershp. Mr VanLuvanee stated it is one tax parcel but issue is whether property owners can establish intent to keep property separatre and distinct parcels of poreprty.  The fact they recorded these at separate times is relative. 

 

Mr. Koopman stated the Township does not agree with legal analysis but does not object to deeds being entered into the rcord.   He noted in 1942 the owner acquired various parcels but were incorporated into one tax arcel per A-3.

 

Deed recorded in page book 352 for lot 83 was marked as Exhibit A-a5.  This is the first of three recitals contained.  Copy of deed recorded in 1998 (book 745/.page 514) was marked as Exhibit A-6.  Deed to ½ of the westerly side of lot 82 was marked as Exhibit A-7.  Portion of tax map 20-50 was marked as Exhibit A-8.    Deed dated 7/30/93 conveying lot 97 to current owner was marked as Exhibit A-9.  This will confirm the size of the property on either side of lot 98.  Mr. VanLuvanee stated the tax parcel shows lot size of 100 x 150.  Deed for lot 99 (20-50-229) was marked as Exhibit A-10.

 

Mr. VanLuvanee called Mr. Widmer to testify. He advised he resides at 1213 Evergreen and this zoning request is for subdivision which has not yet been filed.    Referring to A-3, Mr. Widmer advised this is deed by which he and his wife acquired title to the property 20-50-240  where they reside.  Referring to plan marked A-2 he noted this  divides the parcel into two proposed lots. They reside on lot “1” and plan shows footprint of the house.  It also shows portion of existing houses on both sides of his house on Evergreen.  Back of his property fronts Yardley-Morrisville Road and shows house on both sides.   He advised he took photographs of his back yard looking toward lot “2”.

 

Referring to A-11, Mr. Widmer advised this is photo looking from back of house into back lot (lot 2) He noted power lines run across the back yard.  This line runs across back yard and telephone poles appear to be on the pproperty line. Mr. Widmer stated when they purchased the property in 1996 there was a house on the property as it is today.  Mr. VanLuvanee noted the yard is maintained back to the power line. The Breens (previous owner) maintained the property to the power line. The ground cover changes from the point they cross the power lines to what is identified as 98 on west Acres plan.  Up to the power lines there is grass and thereafter wooded lot with undergrowth. 

 

Photo of woods from middle of lot 2 looking toward Yardley-Morrisville Road was marked as Exhibit A-12.  It was noted the ground is underbrush and leaves.  Trees vary between size of an arm to 3’.  Ground cover is consistent with condition it was in 1996.  It was noted Exhibits A-11 through A-14 were taken by Mr. Widmer a few days ago.  Photographs taken across the street looking into Lot 2 were marked as Exhibits A-13 and A-14.  Mr. Widmer noted that A-8 is taken from Yardley Morrisville Road looking between East and West Crown Terrace. There are a number of parcels all of which are single family detached dwellings. 

 

Photograph looking across from Yardley-Morrisville Road to the house to left of lot 20-50-230 was marked as Exhibit A-15.  Photo taken across from Yardley Morrisville Road looking at the house, which is close to the property line, was marked as Exhibit A-16. 

 

Mr. Widmer described the condition of the area (lot 98/lot 2) noting it was heavily wooded with garbage (tires, doors and lawn debris, etc.  There was no evidence this area was maintained prior to purchase.  Since purchase of the property Mr. Widmer advised the area ha snot changed except they have cleaned the garbage and debris.    He has made an effort to clean it up but doe not know where the garbage came from.  This debris is found toward the back of the lot toward Yardley-Morrisville Road and has =bee an ongoing problem since purchase.  This is the only vacant area along the frontage of Yardley-Morrisville Road. 

 

Mr. Widmer staged if variances are granted it would be intended to submit a subdivision plan.  He would divide the property along the original lot line on West Acres Subdivision plan (along the power line).  He is familiar with the character of the neighborhood and the construction of a  single family detached house would not impact on the existing charter of the neighborhood and feels it would fit in and make it look nicer than it currently looks.  All the houses in the area are single family dwellings. 

 

Mr. Stainthorpe stated he lived in this neighborhood and was not present at the Board of Supervisors meeting when they decided to be in opposition.  His recollection is there was a subdivision made in the early 1990s from lot 245.   He stated that due to the nature of the neighborhood this would not be inconsistent with what has happed in the neighborhood. 

 

Referring to A-03, Mr. Koopman noted it appears predecessor owned the property from 1942 to sale to Mr. Widmer.  This deed contains one single legal description.  Mr. Kirk noted A-2 is recorded and legal description is included.  Mr. Koopman asked what the property would be worth today and Mr. Widmer stated he did not know but agrees it would be worth more than his purchase price.  Ms. Kirk questioned the relevance and Mr. Koopman stated  relevance is that the hardship is a self inflicted hardship.

 

Referring to A-2, Mr. Koopman asked if the plan shows two utility poles on the corner between this property and property on either side. Mr. Widmer stated there is a utility pole on the east property and one on the “Carroll” property. There is no utility pole, which would separate lot 2 from lot 1.  It was noted on A-11 there appears to be trees behind the pole with ground cover and Mr. Widmer advised this is poison ivy, which he sprayed.  Mr. Koopman noted that he then does maintain the wooded area.  Mr. Koopman asked if he cleans underbrush from the wooded area and Mr. Widmer stated he does not. The only clean up he does is removing garbage.  He does not maintain that lot.

 

On A-8, Mr. Koopman noted there does not appear to be ground overgrowing and Mr. Widmer stated there is dirt and shrubs and weeds, nothing that has been maintained.    Ms. Kirk asked if he mows lot 2 and r. Widmer advised he does not.  He does not cut weeks or remove tree saplings. It is so dense that grass does not grow.  The photo referred to was taken three days ago.  Mr. Koopman asked if he is aware of condition of wooded area prior to the purchase  and Mr. Widmer stated he does not know if his predecessor maintained the property prior to purchase.  When first met the Breens that area did not appear to be maintained.  .  Mr. Koopman noted he owned the property for 50 years.  Mr. Widmer stated he only knows what he got when he purchased the property and it appeared not to have been maintained for a number of years.  Mrs. Widmer advised she also purchased the property in 1996 and walked it prior to purchase and looked at lot 2.  This property was not maintained.    The trees ranged from scrappy to very large oaks.   Breen maintained a portion of the property in grass with the dividing line being the power line, which is the same as maintained today. 

 

It was noted there are about 6 power lines approximately 20’ high.  In 2996 there were no structures in lot 2.  A shed was found on rear which was owned by the Carrolls. The shed was within the limits of the lot but the owner was not the Breens.  It has sense been removed by the Carrolls.  At no time did they ever attempt to plant grass or put a structure on this back portion.   They have had to clean up the back lot.  Mrs. Widmer stated the trash is generally in the first 15% off Yardley Morrisville Road.  She does not place trash on the property.  She stated she is familiar with property on either side.  Every one of the tax parcels along Yardley Morrisville Road are built and improved except for this lot.

 

Mr. Koopman noted she was in lot 2 when the property was purchased and asked if this had been used by Breen.  Mrs. Widmer stated it wasn’t.  Breen told her they did not realize the shed was on their lot.  The shed belonged to Carrolls and it was halfway on both properties. 

 

Mr. Majewski was called to testify and gave professional background.  Letter from Mr. Majewski was marked as exhibit T-1.  He stated he has had the opportunity to see lot 2.  Presently this is wooded with large trees from 1’ to 3’ with some smaller trees around the edge.  Trees are 50 to 80’ tall and are deciduous hardwood trees.  Age of the trees are at least 50 years old.

 

Referring to A-2, he noted this request would provide for a useable back yard of approximately 15’ before the woods. The side yards would be restricted.  On the right side there is only 7’ and the left has approximately 15’ to the wood line.  Referring to comment 5, Section 200-61C requires that the minimum yard setback be from the limit of the recourse protected areas in order to protect those areas for people to have a useable front, rear and side yards. This area is zoned R-2 which requires minimum rear yard of 50’, side yards should both be 15’.  Calculation of the size of lot 2 show to be 14,985 and Mr. Majewski stated this calculation does not take into account the size of lot 2 from the ultimate right of way.  There is a requirement for dedication to the ultimate right of way for lot 2.  Ms. Kirk noted before the zoning hearing board is only the zoning issues. Mr. Koopman noted wit dedication of the ultimate right of way for lot 2 there would be less than 14,000.  Mr. Majewski advised it would be 2,500 less.  Mr. VanLuvanee stated the township does not have the right to take a right of way. Mr. Koopman disagreed.  Ms. Kirk asked if Yardley-Morrisville Road is a state or Township road. Mr. Majewski advised it is a state road.  Presently the property line is 50’ from the existing right of way. It was noted A-2 shows existing right of way of Yardley Morrisville Road, not the ultimate right of way.

 

It was noted the township gets requests to cut down trees around a house due to a question about safety.  This is becoming a more common request.  Ms. Kirk stated there is no obligation on the part of the township to remove trees or cut them down.  Mr. Koopman noted there are houses similar to lot 2 that owners sometimes go in and cut down trees.  Ms. Kirk asked Mr. Majewski how the rear yard of Ellison property compares with lot 2.  Mr. Majewski stated it is partially open. He did not take note whether or not there are woods in the back of this property.  There are woods in the back of the Carroll property.  The woodlands appear to be on the property line.  Ms. Kirk asked if the woodlands extend over the property lines and Mr. Majewski noted there might be a tree or two, which extends over onto lot 2.

 

Mr. VanLuvanee noted Yardley Morrisville road is an arterial road and the zoning ordinance requires a 100’ front yard set back. He asked Mr. Majewski if he has any reason to disagree with the location of the houses on either side of lot 2, neither of  which are 100’ back from Yardley Morrisville Road.  Mr. Majewski noted all the setbacks of the houses on this road are fairly consistent.    Mr. VanLuvanee asked Mr. Majewski if he agreed that if they took 100’ front yard set back and 50’ rear yard set back there would be no building envelope.  Mr. Majewski agreed.  Mr. VanLuvanee noted if the conclusion was that the woodlands were not permitted to get zoning relief so the lot could not be subdivided his understanding is that the restrictions of 200-51B and C do not apply.  Mr. Majewski felt they would still apply because this is a zoning section which applies to all lots in the township.  Ms. Kirk noted section referred to by Mr. VanLuvanee has been amended.   

 

Mr. VanLuvanee asked Mr. Majewski if he calculated the area the township might request to be dedicated as addition right of way to be approximately 2,250 sq. ft which equals and additional 25’ along the lot frontage. If this were the case the area of the proposed lot 2 after dedication would be 12,485 sq. ft.  Mr. Majewski agreed with these calculations.  Mr. VanLuvanee noted this area would meet the definition of gross lot area under the township zoning ordinance.  Technically if the Widmers’ were to do the subdivision requested they would be asking for a lot with a gross lot area as defined by the zoning ordinance of 12,085 sq. ft.  Mr. VanLuvanee stated his requested variance is to create a lot as shown on the plan, which, according to Mr. Majewski interpretation would be a gross lot area of 12,085.  Ms. Kirk asked if he is amending the application.  Mr. VanLuvanee stated if the board determines it needs to be amended he would.  He is requesting relief to create a lot on the plan however if this is the wrong interpretation based on the ordinance and Mr. Majewski’s interpretation is correct for the purpose of crating lot size than the request is to crate a lot which would have a gross lot area of 12,485. 

 

Ms. Kirk asked Mr. Widmer, assuming that subdivision goes through will he propose to continue to own lot 2.  Mr. Widmer stated he is not.  It is not presently under an agreement of sale. 

 

Mr. Koopman had no other witnesses. 

 

MR VanLuvanee stated this is a dimensional variance.  One of the standards the board indicated should be taken into consideration is the character of the neighborhood, which is a relevant.  In his opinion and he feels the evidence will indicate that they have an area which was a lot which has never been incorporated into the lot on which the Widmer house is located in terms of use.  It is clear by the age of the trees, etc., this area has not maintained for a long time and what is proposed is consistent with what is there and what was intended when the subdivision was approved. 

 

Mr. Koopman stated the problem with Mr. VanLuvanee argument is this may have been two lots in 1942 but when purchased by Breens they used it as one property and made it into one tax parcel number.  Current situation is it is one lot and the deed establishes this.  There is requirement for hardship for variance and there is no evidence of a hardship. If there is it is self inflicted.  The Widmer’s purchased the property and paid a price for one house on one lot.  No evidence of hardship if they cannot subdivide the property.   It is not unusual to have property with a grass and wooded area but it does not mean there are two lots.

 

Mr. Koopman stated applicants have the burden of proof and have not established hardship.  The townsip’s concern is ther ar 6 variances being reusted three of which related to woodlands issues.  If variance were granted there would be house, which barely functions as house because of side and rear yards. 

 

Ms. Kirk stated she has a problem with this argument in light of houses in the Arborlea area.  Mr. Koopman stated what happened in Arborlea is not consistent with the current zoning code.    Here they are proposing to establish a new home on a newly crated lot and the new township standards should control.  Variances being requested will significantly impact the wooded area on the lot.  The legal argument is there is not hardship here except self created.   There still has to be a hardship for any variance.  This property has been used since 1943 as a single-family residence. 

 

Mr. VanLuvanee stated the hardship is not self-created.  The hardship is created when the ordinance changes.  Ms. Kirk stated this is not the basis for a hardship under the standards. Mr. VanLuvanee stated it is when they are dealing with lots of this nature.  If this was a lot under separate ownership under the ordinance the only way they would be able to build under the ordinance would be under the standards when the ordinance was created (2300-86B2)  He noted the evidence establishes that the previous owners never intended to incorporate this into their lot and intended to maintain it separate and distinct.  The case law states that the relative inquiry for the board is whether or not there was that intent.  If there was an intent to maintain it separately then they deal with a situation similar to the separate ownership issue and apply the same presumption they do with non-conforming lots.  

 

Mr. Koopman stated that Mr. VanLuvanee’s argument is negated by the fact that the deed into the property is for one lot with one legal description.  His arguments do not apply to this situation.

 

Ms. Kirk called a recess at 10:02 p.m.  Thereafter She convened the meeting at 10:05.

 

Motion made by Ms. Kirk that each party submit findings of fact and conclusions of law within two weeks of today’s date to the board – not to the board’s solicitor or zoning office but directly to the board members.  Motion seconded by Mr. Dobson and carried. 

 

After discussion it was agreed copies will be given to the zoning officer to get to the board  within two weeks. Decision will be rendered on 7/20 if the findings of fact are submitted timely.

 

 

 

OTHER BUSINESS

 

Brief discussion held regarding cancellation of 8/3 meeting for which, at this time one appeal has been received.  It was agreed that if no other appeals are received decision will be made canceling this meeting.

 

 

There being no other business motion made by Mr. Hricko to adjourn.  Seconded by Mr. Dobson and carried.  The meeting adjourned at 10:10 p.m.

 

                                                            Respectfully submitted,

 

 

 

                                                            David Malinowski, Secretary