The Newbury Township Board of Zoning Appeals public hearing was called to order by Ray Fidel, Chairman at 8:00 p.m. on September 15, 2009 with Mary Lee Brezina, Tezeon Wong, Glen Quigley and Bill McCullam (sitting for Dean Eppley) present.  Ms. Endres presented photos and showed projections of the site for board and audience review.

All who wished to speak at this hearing were duly sworn and asked when testifying to state their name and confirm being sworn in.  Mr. Fidel read the applicant's request.

Steve and Jennifer Fishman are requesting an area variance to build a 7300 sq. ft. structure with 3100 sq. ft. to be used as living space and 3200 sq. ft. for a combination of attached garage and attached barn (vs. Art. 5.02A3a garage exceeds 50% of principle structure floor area, Sec. 5.02A6 storage building, used for agricultural purposes, exceeds 1280 sq. ft. or 500 sq. ft. per acre - permitted 1850 sq. ft. for 3.7 acre lot) at 10655 Music St.  The driveway will be from a recorded easement on the east side lot line and a driveway accessing a rear lot (owned by the applicants) from the west side lot line; the two driveways will cross over side lot lines (vs. Art. XI, Sec. 11.07C req’d 10 ft. line setback).

Mr. Fidel asked the applicant to state his case.  Steve Fishman said he intends to erect a structure that would be a combined barn, for agriculture/farming equipment, and living quarters with garage.  He purchased this land from Rudy Schwartz, that included a right to use the east side easement to reach the center lot.  He has graded, seeded, stocked the pond for his family’s future use and enjoyment.  He intends to garden with produce donated to the Food Bank.  He presented the building design showing a large open space/great room in the center with kitchen and bedrooms at either end.  He has built a new long driveway on the west side to access the rear 20 acre lot.  He said he was considering consolidating the two front lots into one.  It would simplify placement of the building and the septic system would not require taking down too many trees,

Mr. Fidel acknowledged that consolidating the lots would simplify the variance issues.  He also said the east side easement was unrelated to issues in this hearing; the variances reference driveways crossing side lot lines without driveway road frontage.

Mr. Fidel asked for comments from the audience.  Ms. Lowe explained the history of the easement that serves two other rear properties.  Mr. Fidel clarified that this type of easement was legal when deeded, however easements are no longer permitted by code.

Discussion continued regarding procedure to consolidate these two lots; Rudy said he could re-write the legal description and record within a week’s time.

Ms. Endres explained that when Mr. Fishman first consulted her with this request, she advised him of the difficulties he might encounter if the building were classified agricultural (no permit needed) vs. the long-term benefits if the structure were classified as a single family dwelling/garage with an attached accessory/storage area that could

meet code and insurance requirements.  Mr. Fishman reiterated that he wanted living quarters and described the double door arrangement to separate the barn area from the house.  He said he was considering real stone and wood paneling for the structure.

Mr. Schwartz confirmed that Mr. Fishman does “first rate work, doesn’t cut corners”.  Neighbors agreed improvements made so far are beneficial to the neighborhood.

Board discussion continued regarding the revised lot consolidation to 6.9 acres, the total building square footage, correction of the request to 4200 sq. ft. for the accessory structure (Ms. Endres acknowledged a typo error) and that the allowable accessory structure size for the 6.9 acre consolidated lot (3450 sq.ft.) and garage (1550 sq.ft.) totaled 5000 sq. ft., more than the 4200 sq. ft. requested.  Board members agreed that lot consolidation would negate the size variance request leaving only the area variance for 1) the mixed-use building for attached living quarters, garage and accessory structure and 2) for the two driveways crossing side lot lines both east and west without driveway road frontage.

Mr. Fishman agreed to consolidate the two parcels 23-238700 and 23-385920.

Mr. Fidel asked the board for additional comments or questions.  There being no more questions, Mr. Fidel called for a motion to approve the variance 1) for the mixed-use building with attached living quarters, garage and accessory structure as requested stating that a yes vote would grant the variance.

Mr. Wong moved to grant the variance 1) as requested for the mixed-use building with attached living quarters, garage and accessory structure as presented on the plan dtd 8/18/09 with the condition of consolidating the two parcels: 23-238700 and 23-385920; Mr. Quigley seconded the motion

Tezeon Wong                                       yes

Glen Quigley                                         yes

Bill McCullam                           no

Mary Lou Brezina                                 yes

Ray Fidel                                              yes

Mr. Fidel informed the applicant his variance request for the mixed-use building was granted.

Mr. Fidel clarified that the rear 20 acre lot was a legal flag lot with 60 ft. road frontage on Music St. and was not at issue in this variance hearing.

Mr. Wong moved to grant the variance 2) as requested for the two driveways crossing side lot lines both east and west without driveway road frontage per Art. XI.; Ms. Brezina seconded the motion

Tezeon Wong                                       yes

Glen Quigley                                         yes

Bill McCullam                           yes

Mary Lou Brezina                                 yes

Ray Fidel                                              yes

Mr. Fidel informed the applicant his driveway variance request was granted.  Mr. Schwartz said he could have the consolidated lots recorded by week ending 9/25/09.

Mr. Fidel read to the Appellant and audience, “Within 30 days after service of the minutes granting your request, if someone wishes to challenge this decision through the court, he or she may. The required permit can be issued once all requirements regarding this application are satisfied, although if you plan construction it is recommended you wait the 30 days before proceeding.  The challenge could reverse or negate our decision.  At the time you receive your permit you must also comply with all other requirements of Newbury Township zoning”. 

Mr. Fidel informed the Appellant and the audience that the 30-day period commences with the Appellants’ signing receipt of the signed minutes.  They will be mailed registered return receipt to the Appellant.  All persons receiving notice of the hearing will receive copies of the minutes.

The board members wished the applicant good luck with the project.

Mr. Fidel adjourned the BZA hearing at 9:15 p.m.

Based on the following FINDING OF FACTS, the Board has voted to grant the area variance as requested for 1) as requested for the mixed-use building for attached living quarters, garage and accessory structure as presented on the plan dtd 8/18/09 with the condition of consolidating the two parcels: 23-238700 and 23-385920 & 2) for the two driveways crossing side lot lines both east and west without driveway road frontage:

1)      The parcel could yield a reasonable return but it would be safer not to require yet a third driveway onto Music St.

2)      The area variance is not substantial considering 1) the consolidated lots for the combined use structure and 2) the driveway variances are between the legal easement and the owner’s lot lines.

3)   The essential character of the neighborhood would not be altered and the adjoining property owners would suffer no substantial detriment as a result of this variance.

4)   The variance has no effect on delivery of governmental services.

5)   The owner was not aware of the zoning restrictions when the property was purchased.

6)   The property owner’s predicament could not be obviated through some method other than a variance for a combined-use structure and an un-needed third driveway.

7)                  The spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.  Such other criteria, which the Board believes relates to determining whether the zoning regulation is equitable: many neighbors in attendance were satisfied with the lot consolidation and the driveway crossing the owner’s lot and legal easement lines.

Marge Hrabak, Secretary