Application of Merion Kennett Square Developer, Llc for a Conditional Use for an Apartment Use in the Bp –Business Park Zoning District ______

BEFORE THE BOARD OF SUPERVISORS OF KENNETT TOWNSHIP, CHESTER COUNTY, PENNSYLVANIA

IN RE: APPLICATION OF MERION KENNETT SQUARE DEVELOPER, LLC FOR A CONDITIONAL USE FOR AN APARTMENT USE IN THE BP –BUSINESS PARK ZONING DISTRICT ______

DECISION

I. FINDINGS OF FACT

1. The Applicant is Merion Kennett Square Developer, LLC (the “Applicant”), a Pennsylvania limited liability company with an address at 308 East Lancaster Avenue, Suite 300, Wynnewood, PA 19096. See Exhibit B-4.

2. The Applicant is the equitable owner of four (4) contiguous parcels of land identified as Chester County UPI Nos. 62-3-51, 62-4-1, 62-4-10, 62-4-15.1 (located in Kennett Township), and Chester County UPI No. 3-1-1 (located in Kennett Square Borough) (collectively, the “Property”), legally owned by Ravello Properties, LP. See Exhibits B-4 and A-33; Notes of Testimony (“N.T.”) 7/18/18 at p. 16.

3. The Property consists of approximately 14.5 acres and is located on the north side of Old Baltimore Pike, to the east of Walnut Street, and to the west of the Exelon facility, and is located in the BP – Business Park Zoning District in Kennett Township. N.T. 7/18/18 at p. ___

4. On June 19, 2018, the Applicant filed an application (the “Application”) with Kennett Township requesting to amend the conditional use approval issued by Decision dated September 16, 2015 (the “Original Decision”) that granted permission to construct one (1) apartment building containing a total of 175 units on the Property, with related parking, lighting and landscaping, to be serviced by public water and sewer (with a tie-in to Hazel Avenue). The Application seeks to develop the same number of units (175), but in three (3) buildings consisting of four (4) stories each, rather than in one (1) building consisting of four (4) stories. See Exhibit B-4; N.T. 7/18/18 at pp. 8-9, 15, 27.

5. A hearing was held on the Application on July 18, 2018 before the Board of Supervisors of Kennett Township (hereinafter the “Board”).

6. Public notice of the July 18, 2018 hearing was published in the Daily Local News, a newspaper of general circulation in Kennett Township, on July 4, 2018, and July 11, 2018. See Exhibit B- 1

7. At least one week before the July 18, 2018 hearing, the Property was posted with notice of the July 18, 2018 hearing. See Exhibit B-3.

8. The Applicant was represented at the hearing in this matter by its attorney, John A. Jaros, Esquire.

9. Arthur Kaiser (hereinafter “Kaiser”), an individual who owns the property at 109 Young Avenue, Kennett Square, PA 19348, requested and was granted status as a party to the hearing on the Application. N.T. 7/18/18 at pp. 7-8.

10. Kaiser appeared at the hearing pro se.

11. Kaiser’s property abuts the Property on the Property’s western boundary. N.T. 7/18/18 at p. 7.

12. Apartments are permitted in the BP – Business Park Zoning District in Kennett Township by conditional use at a density of 12.5 dwelling units per acre on tracts of ten (10) acres or more with direct access to two (2) or more public streets pursuant to Section 240-1301.C.(13) of the Kennett Township Zoning Ordinance (hereinafter the “Ordinance”).

13. The Applicant incorporated the Notes of Testimony from the hearing held by the Board of Supervisors on July 15, 2015, August 5, 2015, and August 26, 2015, and the Original Decision. N.T. 7/18/18 at p. 9.

14. All area and bulk requirements of the Ordinance are met by the revised proposal, and the proposed sewer impact, traffic impact, and fiscal impact remain unchanged from the Original Decision. N.T. 7/18/18 at pp. 9, 15, 50-51.

15. Stormwater management on the Property will essentially remain the same but will be slightly modified. N.T. 7/18/18 at pp. 9, 15-16.

16. Richard Aljian (“Aljian”) testified on behalf of the Applicant. Aljian is the owner and partner of both Merion Realty Partners and Merion Residential. N.T. 7/18/18 at pp. 11-12.

17. Aljian testified that his companies were interested in acquiring the Property, but only if they were able to construct three (3) apartment buildings due to market conditions, noting that the three-building layout on 14+ acres would be more attractive to persons seeking apartment living in Kennett Township. N.T. 7/18/18 at pp. 13-14.

18. Aljian testified that the proposed access roads to the proposed development remain the same as in the Original Decision, accessing the Property from Millers Hill and Walnut Street. N.T. 7/18/18 at pp. 15, 65.

19. Aljian testified that his company is teaming with High Associates, which has a development team, to develop the Property. N.T. at pp. 16-17.

20. Aljian testified that the developer is considering moving a portion of the pedestrian walking trail that was depicted on the previous plan to a system or series of sidewalks located on the western side of the Property. N.T. 7/18/18 at pp. 18-20.

21. Aljian testified that there is a need to bring pedestrians, both residents of the proposed apartment development and the general public, from Miller’s Hill Road to North Walnut Street for potential access to Anson B. Nixon Park, and that consideration of moving a portion of the pedestrian trail to the western side of the Property is due to its currently proposed location infringing on steep slopes and riparian areas on the eastern side of the Property. N.T. 7/18/18 at pp. 19-22, 48.

22. Aljian testified that all proposed tenants of the proposed apartment development would undergo both credit checks and criminal background checks. N.T. 7/18/18 at pp. 25-26.

23. Brad Mowbray (“Mowbray”) testified on behalf of the Applicant. Mowbray is the Senior Vice-President and Managing Director of High Associates, a real estate development company. N.T. 7/18/18 at p. 32.

24. Mowbray envisions High Associates building the proposed apartment development in conjunction with the Applicant. N.T. 7/18/18 at p. 34.

25. Andrew DeFonzo (hereinafter “DeFonzo”), who was qualified as an expert in the field of civil engineering, testified on behalf of the Applicant. N.T. 7/18/18 at pp. 43-45; See Exhibit A-35.

26. DeFonzo testified that the Property is surrounded by existing residential uses to the south and west, vacant land to the north, and office use to the east. N.T. 7/18/18 at p. 45-46.

27. DeFonzo testified that there is a small area of regulated slope in the southeast quadrant of the Property. N.T. 7/18/18 at p. 46.

28. DeFonzo testified that stormwater management facilities have been revised to meet the new proposed layout of building on the Property, but that all stormwater management requirements will be met. N.T. 7/18/18 at p. 50.

29. DeFonzo testified that the Fire Marshal’s and Code Enforcement Officer’s recommendations for the number and location of fire hydrants and areas of mountable curb have been shown on the current plan. N.T. 7/18/18 at pp. 53-54; See Exhibit A-40.

30. DeFonzo testified that the proposed buildings will be sprinklered and that all proposed lighting will meet the requirements of the Ordinance. N.T. 7/18/18 at pp. 54-55.

31. Eric Ostimchuk (hereinafter “Ostimchuk”), who was qualified as an expert in the field of traffic engineering, testified on behalf of the Applicant. N.T. 7/18/85 at pp. 63-64.

32. Ostimchuk testified that the conclusions reached by his traffic impact study, prepared in 2015, remain the same even with the revision of the plan to include three (3) buildings rather than one (1) building. N.T. 7/18/18 at p. 65.

33. Exhibits A-33 through A-48 were moved and accepted into evidence. N.T. 7/18/18 at p. 66.

34. The Applicant agreed to re-locate the area in which the proposed amenities will be located from within the previously proposed single apartment building to an area between the two (2) proposed apartment buildings to the south of the Property. N.T. 7/18/18 at p. 67.

35. Miller’s Hill Road residents Christopher Thompson (615 Miller’s Hill Road) and Erin Petrie (612 Miller’s Hill Road) testified regarding their concerns about a pedestrian access running behind their properties and the potential for the loss of some existing wooded buffer between their properties and the proposed parking lot for the apartment use. N.T. 7/18/18 at pp. 96-104.

36. The Applicant agreed not to disturb the existing wooded buffer area that runs behind the residential properties located on Miller’s Hill Road. N.T. 7/18/18 at pp. 99-100, 103.

37. The Applicant stated that a retaining wall will be constructed to the rear of the properties on Miller’s Hill Road to shield their view from a portion of the proposed parking lot for the apartment use. N.T. 7/18/18 at p. 104.

38. The hearing was closed on July 18, 2018. N.T. 7/18/18 at p. 109.

II. CONCLUSIONS OF LAW

1. The Applicant has legal standing to file and prosecute the Application.

2. Kaiser was properly granted party status in this matter based on his ownership of land abutting the Property.

3. The hearing on the Application was properly advertised and the Property was properly posted in accordance with the requirements of the Pennsylvania Municipalities Planning Code (“MPC”) and the Ordinance.

4. The Property is located in the BP – Business Park Zoning District of Kennett Township.

5. Apartments are permitted in the BP – Business Park Zoning District in Kennett Township by conditional use at a density of 12.5 dwelling units per acre on tracts of ten (10) acres or more with direct access to two (2) or more public streets.

6. The Application meets the requirements for density, minimum tract size and road access.

7. The Applicant has met its burden of establishing compliance, by a fair preponderance of the evidence, that the proposed use meets the following specific criteria of the Ordinance:

a. The proposed use is consistent with the purpose of the BP – Business Park Zoning District, the overall purpose for zoning as described in Article I of the Ordinance, and the policies of the Kennett Township Comprehensive Plan;

b. The proposed use is capable of satisfying the applicable provisions and requirements of the Kennett Township Subdivision and Land Development Ordinance and other applicable ordinances, codes and/or regulation;

c. The proposed use is limited to those authorized as conditional uses within the BP – Business Park Zoning District in which the Property is located;

d. The proposed use and construction are located in an area for which site conditions are suited;

e. The proposed use is compatible with land uses on adjacent properties, including historic structures, and will be designed, constructed and maintained in a manner which complements the appearance and character of the neighborhood;

f. The proposed use serves the health, safety and general welfare of the Township;

g. The proposed use is consistent with and will have no adverse effect upon the logical extension of public services and utilities, such as public water, public sewer, police, fire protection, recreational opportunities, open space, and public schools;

h. The proposed use reflects an environmentally sensitive approach to land planning and design, will be sited in a manner sensitive to existing site conditions, including streams, vegetation and other natural resources, and is consistent with Article XVIII, Natural Resource Protection Standards, of the Ordinance;

i. The proposed use provides safe and adequate access to roads, existing or proposed, and will not result in excessive traffic volumes, and will make improvements needed to create compatibility with adjacent streets and public services;

j. The interior traffic circulation for the proposed use provides safe and convenience circulation for all users, including vehicular and pedestrian modes of traffic, and the plan addresses design considerations;

k. Evidence of adequate water supply and sewage disposal capability for the proposed use is provided. The tract of land shall be served by a water supply system and a sewage system deemed acceptable to the Board of Supervisors, upon recommendation of the Township Engineer. Such facilities shall be designed and constructed in compliance with the applicable sections of the Kennett Township Subdivision and Land Development Ordinance and the Kennett Township Sewage Facilities Plan; and

l. The proposed use will be developed using best stormwater management practices and soil erosion and sedimentation control techniques consistent with the requirements of the Subdivision and Land Development Ordinance and other applicable codes and ordinances.

8. In granting conditional use approval, the Board is authorized to place such additional reasonable conditions and safeguards as it deems appropriate to ensure compliance with the purposes and provisions of the Ordinance and to protect the health, safety, and general welfare of the community. The Board hereby determines that the following conditions are necessary to ensure compliance with the purposes and provisions of the Ordinance and to protect the health, safety, and general welfare of the community:

a. The Applicant shall locate the proposed swimming pool and amenities deck (including whirlpool, barbecues and other amenities) between or to the north of the two (2) southernmost apartment buildings on the Property as indicated on the conditional use site plan;

b. The Applicant shall plant a second row of trees, which shall be planted as high as possible on the berm required by subsection c., below, beginning at a point 40 lineal feet south of Kaiser’s property and ending at a point 10 lineal feet north of Kaiser’s property;

c. The Applicant shall construct an earthen berm, with a height between 4 and 5 feet, beginning at a point 40 lineal feet south of Kaiser’s property and ending at a point 10 lineal feet north of Kaiser’s property;

d. The Applicant shall keep all lighting on the western internal roadway at the minimum allowed by the Township (exceeding current Ordinance requirements where allowed by the Township) in respect to the distance between light poles and the height of the light poles. In addition, the light poles shall be installed with lighting shields, and the lights shall use a light source that reduces in wattage at a certain time of the night, if permitted by the Township;

e. If the Applicant proceeds with the development of the Property as proposed in this matter, it shall do so in compliance with the evidence and testimony presented before the Board at the conditional use hearing, and shall meet all applicable ordinances, resolutions, rules and regulations applicable to the proposed use on the Property.

f. The Applicant shall work with the Township Engineer and Township Planner and use its very best efforts to provide a safe pedestrian crosswalk on N. Walnut Street to access the Anson B. Nixon Park from the trails on the proposed plan.

i. The Applicant shall extend the trail on the Property in proximity to a shared property line with Tax Parcel No. 62-4-9 to Baltimore Pike/Miller’s Hill to connect to the future sidewalks.

j. Within thirty (30) days of the date of this Decision, the Applicant shall pay all outstanding Township related legal, engineering and administrative fees due to Kennett Township pertaining to this Application.

k. No trail/sidewalk/pedestrian access shall be constructed between the Miller’s Hill Road residential properties and the southern property line of the Property.

l. The existing tree line between the residential properties on Miller’s Hill Road and the proposed parking lot for the apartment use shall remain undisturbed to the greatest extent possible and shall be augmented with additional plantings in accordance with the testimony before the Board of Supervisors.

m. The Applicant will limit, to the greatest extent possible, disturbance to existing trees on its Property.

n. The Applicant shall add a note to its revised final land development plan providing for public access in perpetuity to the pedestrian access on its Property to connect Miller’s Hill Road to North Walnut Street.

o. The Applicant shall provide fire hydrants and mountable curbs in the locations depicted on Exhibit A-40.

p. The Applicant shall work closely with the Kennett Township Trails Committee and the Township Engineer in siting the proposed pedestrian trail/access from Miller’s Hill Road to the northern portion of the Property.

q. The western internal roadway depicted on the plan submitted with the Application shall be at least 40 feet from Kaiser’s property line at any and all points of Kaiser’s property line.

r. Any pedestrian walking trail/walkway/sidewalk that Applicant may construct on the western side of the Property shall be at least 40 feet from Kaiser’s property line at any and all points of Kaiser’s property line.

9. The Applicant is entitled to conditional use approval in compliance with this Decision.

III. DISCUSSION

An applicant for conditional use approval has the burden to demonstrate compliance with the specific criteria of the zoning ordinance. Levin v. Board of Supervisors of Benner Township, 669 A.2d

1063 (Pa. Cmwlth., 1995), aff'd, 547 Pa. 161, 689 A.2d 224 (1997). Once the applicant meets the requirements, it has made out its prima facie case and the application must be granted unless the objectors present sufficient evidence that the proposed use has a detrimental effect on the public health, safety, and welfare. Bailey v. Upper Southampton Township, 690 A.2d 1324 (Pa. Cmwlth., 1997).

In this case, the Applicant met its burden of demonstrating that its proposed apartment use complies with the specific criteria of the Ordinance, as noted in Conclusion of Law No. 7, above. Thus, the Applicant is entitled to conditional use approval.

Further, Section 913.2(a) of the MPC, 53 P.S. § 10913.2(a), provides that a governing body can grant or deny a conditional use pursuant to express standards and criteria, and permits a governing body to attach such reasonable conditions and safeguards, in addition to those expressed in an

7 ordinance, as it may deem necessary to implement the purposes of the MPC in the zoning ordinance. In re: Thompson, 896 Ad. 659 (Pa. Cmwlth., 2006).

In this case, the Board is of the opinion that the grant of conditional use approval to the

Applicant must be qualified by the imposition of the conditions set forth at Conclusion of Law No. 8, above, in order to protect the public health, safety and welfare as elucidated by Kaiser and other residents at the hearing. The conditions placed on conditional use approval are all reasonable and closely tailored to address certain objectionable impacts of the proposed use. The fact that the parties to the conditional use hearing agreed to the conditions is another reason that the Board determines that they are reasonable under the specific facts of this case.

IV. ORDER

AND NOW, this 15th day of August, 2018, it is hereby ORDERED that the application of Merion

Kennett Square Developer, LLC for a conditional use to allow a 175-unit apartment development in the

BP – Business Park Zoning District in Kennett Township is hereby GRANTED, conditioned on the

Applicant’s compliance with the following conditions:

e. If the Applicant proceeds with the development of the Property as proposed in this matter, it shall do so in compliance with the evidence and testimony presented before the Board at

8 the conditional use hearing, and shall meet all applicable ordinances, resolutions, rules, and regulations applicable to the proposed use on the Property.

g. The Applicant shall extend the trail on the Property in proximity to a shared property line with Tax Parcel No. 62-4-9 to Baltimore Pike/Miller’s Hill to connect to the future sidewalks.

h. Within thirty (30) days of the date of this Decision, the Applicant shall pay all outstanding legal, engineering, and administrative fees due to Kennett Township pertaining to this Application.

i. No trail/sidewalk/pedestrian access shall be constructed between the Miller’s Hill Road residential properties and the southern property line of the Property.

j. The existing tree line between the residential properties on Miller’s Hill Road and the proposed parking lot for the apartment use shall remain undisturbed to the greatest extent possible and shall be augmented with additional plantings in accordance with the testimony before the Board of Supervisors.

k. The Applicant will limit, to the greatest extent possible, disturbance to existing trees on its Property.

l. The Applicant shall add a note to its revised final land development plan providing for public access in perpetuity to the pedestrian access on its Property to connect Miller’s Hill Road to North Walnut Street.

m. The Applicant shall provide fire hydrants and mountable curbs in the locations depicted on Exhibit A-40.

n. The Applicant shall work closely with the Kennett Township Trails Committee and the Township Engineer in siting the proposed pedestrian trail/access from Miller’s Hill Road to the northern portion of the Property.

o. The western internal roadway depicted on the plan submitted with the Application shall be at least 40 feet from Kaiser’s property line at any and all points of Kaiser’s property line. p. Any pedestrian walking trail/walkway/sidewalk that Applicant may construct on the western side of the Property shall be at least 40 feet from Kaiser’s property line at any and all points of Kaiser’s property line.

ATTEST: BOARD OF SUPERVISORS OF KENNETT TOWNSHIP

______Lisa M. Moore, Secretary/Manager Scudder G. Stevens, Chairman

______Whitney S. Hoffman, Vice-Chair

______Richard L. Leff, Member