TOWNSHIP OF LOWER MERION
BUILDING AND PLANNING Wednesday, February 24, 2021 COMMITTEE 6:00 PM (Approximately)
Chairperson: Joshua L. Grimes,Todd M. Sinai Vice Chairperson: Sean P. Whalen
AGENDA
1. AUTHORIZATION TO ADVERTISE A PROPOSED ORDINANCE - CHAPTER A180, HISTORIC RESOURCE INVENTORY - 39 Fairview Road, Penn Valley
2. CONDITIONAL USE APPLICATION – 318 N. Ithan Avenue, Bryn Mawr, Ward 6, 3870C.
3. TENTATIVE SKETCH SUBDIVISION PLAN - 318 N. Ithan Avenue, Bryn Mawr, Ward 6, 3870.
1 AGENDA ITEM INFORMATION
ITEM: AUTHORIZATION TO ADVERTISE A PROPOSED ORDINANCE - CHAPTER A180, HISTORIC RESOURCE INVENTORY - 39 Fairview Road, Penn Valley
Consider for recommendation to the Board of Commissioners authorizing the Township Secretary to advertise a Public Hearing and notice of intent to adopt an Ordinance, to amend the Code of the Township of Lower Merion, Chapter A180, Historic Resource Inventory, to add 39 Fairview Road to the Historic Resource Inventory as a Class II Resource. PUBLIC COMMENT ATTACHMENTS: Description Type Issue Briefing Issue Briefing Draft Ordinance Ordinance
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TOWNSHIP OF LOWER MERION
Building & Planning Committee
Issue Briefing
Topic: Historic Resource Inventory Amendment
Prepared By: Greg Prichard, Historic Preservation Planner
Date: February 17, 2021
I. Action To Be Considered By The Board:
Authorize the Township Secretary to advertise a Public Hearing and notice of intent to adopt an Ordinance, to amend the Code of the Township of Lower Merion, Chapter A180, Historic Resource Inventory, to add 39 Fairview Road to the Historic Resource Inventory as a Class II Resource.
II. Why This Issue Requires Board Consideration:
Historic Resource Inventory amendments must be reviewed and approved by the Board of Commissioners.
III. Current Policy Or Practice (If Applicable):
N/A
IV. Other Relevant Background Information: On December 21, 2020, the Historical Commission reviewed an application to add this property to the Historic Resource Inventory as a Class II resource, using the designation criteria adopted by the Board of Commissioners on July 18, 2018. The Commission voted to recommend the designation citing criteria 1, 7 and 8, which meets the threshold for Class II designation. The code requires a property to meet at least two criteria to be eligible for a Class II designation. Those criteria are as follows:
1. Has significant character, interest or value as part of the development, heritage or cultural characteristics of the Township, county, region, commonwealth or nation or is associated with the life of a person significant in the past;
7. Embodies distinguishing characteristics of an architectural style, engineering technology, construction or building method, or material fabrication technique;
3 8. Is the noteworthy work of a designer, architect, landscape architect or engineer whose work has significantly influenced the historical, architectural, economic, social or cultural development of the Township, county, region, commonwealth or nation.
V. Impact on Township Finances:
There is no impact on Township finances.
VI. Staff Recommendation:
Staff recommends that the Board of Commissioners amend the HRI and designate the property at 39 Fairview Road as a Class II resource.
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AN ORDINANCE
NO.
AN ORDINANCE, To Amend the Code of the Township of Lower Merion, Chapter A180, Historic Resource Inventory, To Add 39 Fairview Road To The Historic Resource Inventory as a Class II Resource.
The Board of Commissioners of the Township of Lower Merion hereby ordains:
Section 1. The Code of the Township of Lower Merion, Chapter A180, Historic Resource Inventory, shall be amended to correct a printing error by removing the following:
ID Number Address Class
NA038 39 Fairview Road Class 2
Section 2. Nothing in this Ordinance or in Chapter A180 of the Code of the Township of Lower Merion, as hereby amended, shall be construed to affect any suit or proceedings in any Court, any rights acquired or liability incurred, any permit issued, or any cause or causes of action existing under the said Chapter A180 prior to the adoption of this amendment.
Section 3. The provisions of this Ordinance are severable, and if any section, sentence, clause, part, or provision thereof shall be held illegal, invalid, or unconstitutional by any Court of competent jurisdiction, such decision of this court shall not affect or impair the remaining sections, sentences, clauses, parts or provisions of this ordinance. It is hereby declared to be the intent of the Board that this ordinance would have been adopted if such illegal, invalid, or unconstitutional section, sentence, clause, part, or provision had not been included herein.
Section 4. This Ordinance shall take effect and be in force from and after its approval as required by law.
Approved by the Board this day of , 2021.
BOARD OF COMMISSIONERS OF THE TOWNSHIP OF LOWER MERION
______Daniel S. Bernheim, President ATTEST:
______Jody L. Kelley, Township Secretary
5 AGENDA ITEM INFORMATION
ITEM: CONDITIONAL USE APPLICATION – 318 N. Ithan Avenue, Bryn Mawr, Ward 6, 3870C.
Consider for recommendation to the Board of Commissioners approval of a Conditional Use application. The applicant seeks Conditional Use approval, pursuant to Zoning Code Section 155-128 to create a rear lot, pursuant to Zoning Code Section 155-128. Expiration Date – 2/28/2021...... ……...... Zoning –R3
Applicant: Hobart and Pamela Porter Applicant's Representative: James Greenfield Property Owner: Hobart and Pamela Porter
The Hearing Officer's recommendation is attached. PUBLIC COMMENT ATTACHMENTS: Description Type Hearing Officer Recommendation Backup Material
6 BEFORE THE CONDITIONAL USE HEARING OFFICER TOWNSHIP OF LOWER MERION MONTGOMERY COUNTY PENNSYLVANIA
CU Application #3870C
RECOMMENDATIONS FOR FINDINGS OF FACT, CONCLUSIONS OF LAW, DISCUSSION AND ORDER
This conditional use application filed by A. Hobart Porter and Pamela D. Porter seeks to subdivide land from 318 N. Ithan Avenue and create a narrow lot fronting on Greenbank Road located in the R3 zoning district. Conditional Use Hearings were held on Nov. 17, 2020; Jan. 12,
2021 and Jan 27, 2021 before the Conditional Use Hearing Officer pursuant to Code §155-
141.2.A.5.
I. FINDINGS OF FACT
A. The Parties
1. The Applicants are A. Hobart Porter and Pamela D. Porter (“Porter”) 318 N. Ithan
Avenue, Rosemont, PA 19010.
2. Porter is represented by James J. Greenfield, Esq., 669 Mill Road, Villanova PA
19085.
3. Neighbors Gregg Millman and Susan Millman (“Millman”) , residing at 327
Greenbank Road, oppose the conditional use application.
4. Millman is represented by Michael Yanoff, Esq., of Goldstein Law Partners, LLC.
B. The Property
5. Porter is the owner of property known as 318 N. Ithan Avenue, an irregularly
shaped lot containing 43,901 sq. feet (1.1 acres) straddling the R2 and R3 residence districts. The lot has frontage on both N. Ithan Avenue and Greenbank Road. It has been improved with a single family dwelling oriented toward N. Ithan Avenue. There is a large backyard between the
7 house and Greenbank Road, which once contained a regulation badminton court, and has many trees.
6. Porter proposes to subdivide 14,629 sq. ft. from 318 N. Ithan Avenue and create a rear lot with frontage on Greenbank Road (“Lot 2”), rendering 318 N. Ithan Avenue a 27,058 sq. ft. lot (“Lot 1”).
C. Procedural History
7. Porter filed a conditional use application dated February 24, 2020 seeking conditional use relief from zoning code §155-128 regarding rear lot development for Lot 2 (“CU application”). Contemporaneous with the CU application, Porter filed a Subdivision Land
Development Application dated February 24, 2020 (“LD application”) together with a tentative sketch plan depicting the proposed two lot subdivision and construction of a single family home on Lot 2 oriented toward N. Ithan Avenue.
8. On March 5, 2020, Porter met with the Land Development Committee of Lower
Merion Township which suggested reorientation of Lot 2 toward Greenbank and changing access.
9. On September 17, 2020, Porter filed amendments to the CU and LD applications showing Lot 2 oriented toward Greenbank Road, rather than N. Ithan Avenue. The letter accompanying the amended applications stated:
Lot 2 will be irregular in shape and thus non conforming but so is the existing property. Because Lot 1 will be rectangular and applicants therefore are not exacerbating the existing non conformity, applicants request a waiver of the irregular lot limitation as applied to Lot 2.
Ex. A-1 at p. 2.
10. The Environmental Advisory Council (“EAC”) reviewed the applications at their meeting on September 22, 2020. It expressed concern about existing trees being removed from
8 the site. The EAC recommended that the Applicants consider reorienting the house and
repositioning the driveway to minimize disturbance at the site.
11. On October 28, 2020, Lower Merion Township Planner, Adam Thomas, wrote a
memo to the Planning Commission regarding the tentative sketch subdivision and conditional
use plans, stating in pertinent part:
Purpose of Tentative Sketch Plan The purpose of a Tentative Sketch Plan is to determine appropriate locations for buildings, driveways and parking lots and how such improvements can least impact a site’s natural features. It has become practice in the Township to use the Tentative Sketch Plan phase to flesh out other issues and give applicants a program to address at the Preliminary Plan phase. (…)
Layout The plan shows the location of the house and driveway on Lot #2 disturbs and is situated in slopes exceeding 25%. Given the presence of the existing slopes and the concern expressed by the EAC about disturbance of natural features, staff has included a condition of approval requiring the applicant investigate the feasibility of relocating the house and driveway to avoid steep slope area and minimize disturbance to the natural features. Staff noted that if the house is unable to be relocated, a waiver of the natural features code section 101-5C(2b) will be required at preliminary plan to disturb slopes exceeding 25%.
Ex. T-2. Since Greenbank Road does not contain a public sidewalk, Staff also recommended a partial waiver of the Subdivision and Land Development Code §135-28 to defer installation of the sidewalk until required by the Board of Commissioners.
12. On October 26, 2020, Lower Merion Township Engineer, Joseph A. Mastronardo,
P.E., reviewed the proposed tentative sketch plan and conditional use plan and stated:
Stormwater—As the property is located within the Lower Merion Act 167 Drainage Area Release Rate District (3-14) stormwater rate control and recharge are required. Calculations shall be submitted and evaluated with the Preliminary Plans.
Steep Slopes—The house and driveway construction disturbs and is situated in slopes exceeding 25%. The house on Lot 2 is shown to be in an area of steep slopes. The feasibility of relocating the house and
9 driveway to avoid steep slope area shall be investigated, otherwise a waiver referencing Code section101-5C(2b) is required.
With the resolution of the preceding major engineering issues and the remaining comments in this letter incorporated, we recommend the Tentative Sketch Plan be approved
(…)
Section 155-7.5C(1)—Wooded lot calculations shall be added to the plan and must be compatible with the current code. An exact tree count for the lot shall be provided on the plan. Upon removal of twenty-five (25%) percent of existing trees having a caliper of six inches or greater, appropriate replacement trees will be required. The Township Arborist must approve the size, species, and location of any required replacement trees.
Ex. T-6.
13. The Montgomery County Planning Commission (“MCPC”) reviewed the proposed subdivision plan and recommended approval subject to conditions in a letter dated
November 12, 2020. (Ex. T-7.)
14. The Lower Merion Planning Commission reviewed the proposed tentative sketch
subdivision and conditional use application on November 2. 2020. Michael Yanoff, Esq.
representing Millman and spoke to lot irregularity, stormwater management, steep slopes and
neighborhood pattern. Gregg Millman, the owner of 327 Greenbank Road, spoke about the
impact to the existing neighborhood and stormwater runoff. The Planning Commission
recommended approval of the CU application and tentative sketch plan subject to conditions, as
described in Ex. T-3.
15. The Millman’s attorney submitted a thirteen page document dated Nov. 16, 2020
containing summaries of legal arguments and photographs which was reviewed by the Hearing
Officer prior to the first conditional use hearing (“Summary of Objections”). The photographs
were shown to a witness during the first conditional use hearing by both the Millman’s attorney
10 and the Applicant’s attorney. Although not moved into the record, the photographs are marked
M-4 and admitted into the record, sua sponte, without the legal argument.
D. Conditional Use Hearings and Evidentiary Record
16. Conditional use hearings were held on November 17, 2020; January 11, 2021 and
January 27, 2021.
17. Jillian Dierks, Planner in the Department of Building and Planning, offered the
following exhibits into evidence:
T-1 Conditional Use application dated 2/24/20 filed 2/26/20; T-2 Staff Memo to Lower Merion Planning Commission dated October 28, 2020; T-3 Lower Merion Township Planning Commission’s recommendations; T-4 Proof of publication of Conditional Use hearing; T-5 Tentative Sketch plan by Momenee Inc: Sheet 1 Illustrative Site plan dated 2/24/20 rev.10/15/20; Sheet 2 Two Lot Subdivision Sketch dated 2/24/20 rev.10/15/20; Sheet 3 Existing Conditions dated 2/24/20 rev.10/15/20; Sheet 4 Vicinity Plan dated 2/24/20 rev.10/15/20; Sheet 5 Subdivision Yield Plan dated 2/24/20 rev.10/15/20; T-6 Lower Merion Township Engineer’s letter dated October 26, 2020; T-7 MCPC’s letter dated November 12, 2020.
18. The Applicants offered the following exhibits into the record:
A-1 Amended Conditional Use Application narrative letter dated 9/17/20 ; A-2 Schematic map of neighborhood; A-3 Letter from JetGreen Tree Services dated 1/11/21; A-4 Two Lot Subdivision Sketch Plan dated 2/24/20 rev.1/8/21 a.k.a the “Revised Tentative Sketch Plan” updated by Jeff Nagorny, P.E.
19. Neighbors Gregg Millman and Susan Millman entered the following exhibits into the record:
M-1 Aerial map of neighborhood with tax id numbers; M-2 Original Tentative Sketch Plan by Momenee overlaid with 1-ft contours prepared by John Anderson PE. M-3 Revised Tentative Sketch Plan by Momenee overlaid with 1-ft contours prepared by John Anderson PE. M-4 Photographs taken by Susan Millman in July 2020.
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20. All of the above referenced exhibits were accepted into the record.
E. First Conditional Use Hearing
21. Attorney Greenfield introduced the conditional use application stating the
Applicants seek to create a rear lot and build a home on it as they downsize from their existing home at 318 N. Ithan Avenue. Conditional use approval is sought for rear lot development, pursuant to §155-128, because Lot #2 has 20-ft of frontage at the street line and 75-feet is required in the R3 district
22. Pamela D. Porter testified she and her husband have lived at 318 N. Ithan Avenue for 33 years since 1987. They have raised a family and made lifelong friends with their neighbors at this home. Now empty nesters, the Porters would like to build a smaller house on
Lot 2 which will enable them to stay in the neighborhood and age in place. Porter is a member of the Rosemont Villanova Civic Association and served a term as president. She and her husband have fostered relationships with their neighbors, the school district, and supported Ashbridge
Park and other open spaces.
23. She is familiar with pattern of development in neighborhood along N. Ithan
Avenue and Greenbank Road. Houses on N. Ithan were built in 1920s and 1930s and then many properties split off their back lots along Greenbank Road in the 1950s, 60s or 70s. Porter always believed her property could be subdivided in a similar manner. She testified 318 N. Ithan probably wasn’t subdivided at an earlier stage because a prior owner’s child was an Olympic badminton player and a regulation badminton court was installed in the backyard. They have discussed subdivision with several neighbors: Frank Hawley, the Noones, the Millmans, Lucania and the Stoneburghs. All neighbors except the Millmans have been supportive and enthusiastic about subdivision. The Porters respect concerns raised by the Millmans. They are sensitive to the
12 manner in which the neighborhood is laid out and will develop Lot 2 consistent with that. They
love the styles and feel of their neighborhood and intend to build a new house consistent with feel of neighborhood. The Porters are agreeable with conditions of approval set by the township.
24. The Porter’s current house on N. Ithan Avenue has approximately 3,000 sq. ft.
The proposed house on Greenbank Road will have a footprint of 1,600 sq. ft. with a small second story for a total of 2,300 to 2,400 sq. ft. It will contain features for empty nesters that their current home lacks and they are considering features such as doorway widths, roll-in showers, first floor bedrooms, smaller yards, energy efficiency and one floor living.
25. David Fiorello, P.E., (“Fiorello”) an engineer licensed in the Commonwealth of
Pennsylvania and employed by Momenee Engineers for 29 years testified for the Applicant. He has considerable previous experience in Lower Merion Township handling hundreds of projects.
He was previously qualified as an expert in Lower Merion Township dozens of times and in another 10-20 municipalities. He is familiar with Lower Merion’s zoning code (past and present,) comprehensive plan (past and present,) and subdivision and land development ordinances. Lastly, he is familiar with development patterns in Lower Merion. Fiorello was accepted as a professional engineer testifying as expert in engineering of real estate development projects in Lower Merion Township.
26. Fiorello drew the tentative sketch plan (Ex. T-5). This subdivision was originally contemplated as a rear lot with a narrow leg extending from Lot 2 to N. Ithan Ave. It was altered after feedback from the Township. Now, as currently proposed, Lot 2 fronts on Greenbank Road.
The old zoning code’s R3 zoning applies to Lot 2. The conditional use and land development applications were filed before Lower Merion’s new zoning code was adopted. Code’s minimum lot width requirement is satisfied because the proposed house will be setback at a point on the lot
13 where the width equals 75-ft for entire depth of building envelope plus 25-ft. The number of
conforming lots is not being increased through subdivision. The subdivision yield plan shows
two lots fronting on Ithan could be created, one next to each other, requiring demolition of
existing house, if not creating a narrow lot fronting on Greenbank. (Ex. T-5, sheet 5).
27. Lot 2 has narrow leg along Greenbank Road which is 20-ft wide at all points. The
proposed driveway is located on the narrow leg and crosses an embankment area, but is not
within regulated steep slope areas of lot. Fiorello’s intent was to avoid steep slopes to greatest
extent possible when designing driveway. When asked on cross examination whether the
proposed driveway will transverse slopes in excess of 25%, Fiorello stated it depends on the
actual definition of how you measure slopes of 25%. In the past the Township reviewed slopes of
25% based on 5-ft contours and when done so here, there are no slopes in excess of 25%. Even with 2-ft contours required by SALDO code, there are no slopes in excess of 25%. A small band of slopes are shown on the plan right now, but depending on actual delineation of how slopes are shown, they are not regulated and don’t fit within 25% slope category. Fiorello testified the proposed driveway does not violate code 155-128(C) with regard to the driveway disturbing steep slopes. When asked about the Township Engineer’s review letter stating there are slopes greater than 25% on the property, Fiorello testified he does not agree with the engineer’s conclusion in that review. Fiorello said based on 1-ft contours, there’s a band or two of areas that exceed 25%, but they do not comply with the township’s definition of steep slopes.
28. The narrow leg was not included in the calculation of net lot area. The net area of proposed Lot 2 is more than 14,000, well over the minimum 10,000 sq. ft. required for the R3 district. Impervious surface coverage for the proposed driveway on the narrow leg was included in the impervious surface calculation. (Ex. T-5, sheet 2). Utility access is available for proposed
14 Lot 2. A sanitary sewer line is located on Greenbank Road. Water and electric must be brought
into lot. No water that has to be traversed to get to house in terms of streams, flowing water etc.
This is a preliminary design to show feasibility, more details will be added later in process.
29. The tentative sketch plan shows minimal interference with natural features on Lot
#2. The driveway was located to avoid tree impacts as much as possible. When cross examined
about 8-9 mature trees on side yard abutting the Millman property, Fiorello testified he doesn’t
know if most of those trees must be taken down for driveway. He has not gotten into final design
yet. This is a schematic design to demonstrate feasibility of site. Once they get into full
preliminary design, they will know actual impacts. When asked whether the driveway turnaround area will impact mature trees, Fiorello responded it depends on the final house design.
30. Lot 2 is not excessively irregular in Fiorello’s opinion. It has five sides and is
“somewhat wedge shaped” rather than rectangular. The number of sides is not excessive having
one more side than four, so Lot #2 is not excessively irregular. The existing Porter property at
318 N. Ithan Avenue is similarly irregular in shape. Under cross examination about whether an
excessively irregular lot is one which is not four sided, pursuant to Code 135-35, Fiorello
testified on face of the tentative sketch plan there are five sides to Lot 2, but disagreed it is a
code violation. He further disagreed with interpretating SALDO ordinance to mean lots with
more than four sides are excessively irregular. On redirect Fiorello clarified the existing Porter
lot has six sides because there is a slight bend on one leg. Proposed Lot 1 will have slight jog in
rear so not fully rectangular. Creating Lot 2 with five sides will not exacerbate existing irregularity of 318 N. Ithan Avenue.
31. Potential stormwater management on the site has been looked at in a preliminary way for tentative sketch. Full engineering is required for a preliminary plan and details will be
15 fleshed out. Fiorello believes stormwater can be managed on the site within the requirements of
Lower Merion Code. When the final design and final layout with grading are completed,
stormwater can be collected and managed in compliance with code. The initial proposal is
installing a stormwater management basin in front yard of Lot 2. The lot drains toward the
north. Water from the driveway and house can be collected and placed in the front yard. This stormwater plan works with grades of the site making it a proper location for stormwater control
basin. Fiorello testified on cross examination that he has heard there are concerns about
stormwater runoff on Millman property, but he doesn’t know extent.
32. Fiorello opined the proposed subdivision plan fits into the neighborhood A
schematic map of neighborhood, Ex. A-2, shows placement of proposed house on Lot 2 relative
to general configuration of nearby houses and neighborhood. The proposed house will “fill in the
blank for that location.” There are other narrow lots in neighborhood. One comes off
Montgomery Avenue, and another comes off Greenbank, almost directly across the street at 318
Greenbank Road.
33. Fiorello testified he is familiar with Chapter 155 (zoning) and Chapter 135
(subdivision and land development “SALDO”). Proposed Lot 2 will promote the public health,
safety and welfare because it promotes the comprehensive plan. There are no meaningful adverse
impacts on density, light, area, sewage, or schools. No overcrowding, blight, congestion, danger,
flooding, panic, fire, excessive noise, smoke or other menace. The proposed plan preserves
natural features and terrain and avoids excessive runoff and pollution on the site and
neighborhood. It has no impact on the neighborhood.
34. Fiorello was asked about prior testimony describing a badminton court in the
backyard of 318 N. Ithan Avenue. Fiorello testified grading must be done to install a badminton
16 court which requires a certain amount of cutting and filling. There are slopes on Lot 2 compatible with the perimeter of court area, suggesting they are manmade. When property owners claim slopes are manmade, the Township requires them to prove it with a past grading permit on file or a geotechnical study. If slopes are manmade then they are not regulated. On cross examination Fiorello admitted he doesn’t know for certain if the slopes on Lot 2 are manmade, but in his professional opinion they are manmade. Township code doesn’t say anything about manmade slopes. In his past experience, the Township has allowed steep slopes if manmade. Code’s definition doesn’t describe the extent of steep slopes in Fiorello’s opinion.
There was one comment in the Township Engineer’s letter that Fiorello doesn’t agree with.
35. Jillian Dierks testified the subject of the shape of proposed Lot 2 came up at the
Planning Commission meeting.
36. John Anderson, principal Engineer at Cornerstone Consulting Engineers and head of the civil engineering department has been licensed as a registered engineer in PA for over 20 years. He has prepared over 25 subdivision applications in Lower Merion Township. He has been accepted as an expert in engineering by Lower Merion Township, the Commonwealth of
Pennsylvania and other states including New Jersey, New York, and Delaware in over 200 applications. He was accepted as an expert in engineering on behalf of Gregg Millman and
Susan Millman.
37. Anderson testified he has reviewed the tentative sketch plan which proposes a two lot subdivision with incorporation of rear lot fronting on Greenbank Road. (Ex. T-5.) He is familiar with Code §155-128 and Chapter 135 that govern this conditional use application. In his opinion, the driveway will cross steep slopes on proposed Lot 2, however, Lower Merion
Township’s zoning ordinance does not define how steep slopes are calculated. Based on his
17 calculations, the driveway and parts of the home will disturb slopes in excess of 25%. Lower
Merion Code focuses on the narrowness of the lot disturbing slopes in excess of 25%. In his professional judgment, the driveway will disturb slopes in excess of 25% violating Code §155-
128. With regard to contour lines and calculating steep slopes, it has not been Anderson’s experience in Lower Merion Township, that 5-ft or 2-ft contours are used to calculate steep slopes. He was required to use 1-ft contours to calculate steep slopes. Anderson has not been successful when attempting subdivision within Lower Merion based on steep slopes. Has worked on over twenty applications in Lower Merion. Anderson disagrees with Fiorello’s opinion that there are no steep slopes greater then 25%. He is aware of the Planning Commission’s recommendations to approve the tentative sketch and conditional use application. Planning
Commission and Township Engineer recommends finding alternatives to disturbing steep slopes, such as waiver. However, as zoning code defines conditional use, it doesn’t allow waiver of steep slopes within 25%. The Planning Commission recommended exploring alternative configurations on preliminary plan. Anderson doesn’t think there are viable alternative configurations that don’t impact steep slopes because of the location of the steep slopes and narrowness of the lot. Anderson testified steep slopes on Lot 2 cannot be avoided when installing a driveway. He has not made his own plan to reconfigure slopes.
38. With regard to the shape of Lot 2, Anderson testified subdivision Code §135-35 defines an “excessively irregular lot is one which is not four sided.” Proposed Lot #2 violates this provision by having five sides, exceeding maximum number of sides by one. This conditional use application cannot satisfy SALDO because it is excessively irregular in shape by definition. On cross examination, Anderson stated he wasn’t present at the Planning Commission meeting where the shape of the lot was discussed. He admitted Lot 2 doesn’t exacerbate the
18 number of sides because the original lot has six sides. After subdivision no lot becomes worse and none will have six sides.
39. Gregg Millman, the owner of 327 Greenbank Road, testified in opposition to the
CU application. He resides at 327 Greenbank Road together with his wife Susan. It is located east of the subject property and downslope, improved with a single family 2-story colonial with basement on just under half an acre of land. Mature trees border along both property lines. His property backs up to properties that front on N. Ithan Ave. His property fronts on Greenbank and has driveway access from Greenbank Road. His driveway is 12-ft wide and 120-ft long. Millman has the HR Roberts subdivision plan from 1961 so no subdivisions occurred in the 1970s
(referring to Porter’s testimony).
40. Millman has stormwater runoff concerns on his property. Greenbank Road is a gentle hill with the highest point on Greenbank near Montgomery Avenue goes downhill toward the Millman property. Stormwater flows onto his property from uphill subdivision property and collects at lowest point which is the basement walkout on his property. There is significant flooding on his property. His wife Susan took photos of flooding affecting area near walk out basement and entering basement. (Summary of Objections, pp.1-13.) Water flows downhill west to east across the Millman’s backyard from the direction of the Porter’s property. He has watched rivers of water pouring down from the Porter property and traveling to the low point at his basement walkout area. Water collects around the perimeter of walkout area during rain and flooding occurs during very heavy rain. Millman has made landscaping changes to redirect stormwater. His house has an outdoor sump pump that he keeps free of leaves. Power has failured during flooding so Millman installed a generator to keep sump pump operating. Water enters his house at slider doors and floods the basement playroom area, then runs over to the
19 utility side. Extent of damage is the rec room floor is ruined and the first foot of walls has gotten soaked. Millman is not going to replace the basement flooring if this subdivision goes forward.
He is concerned additional impervious surface from Lot 2’s proposed house and driveway turnaround will cause more water to flow downhill and make it more likely the flooding will be worse. Flooding happens in his backyard and significant impervious surface coverage is proposed (on Lot 2) near his backyard. Millman currently has no water issues with the front yard portion of his property, but he concerned changes on Lot 2 will create changes there. Water flows east, not north. Water that flows onto his driveway drains to street.
41. Proposed Lot 2 is a wooded lot in the shape of a thin wedge located upslope from his side property line. The lot width at the street and where the proposed house will be sited are much narrower than other properties on street. Subdivision of Greenbank lots are shown on 1961
H.R. Roberts plan so subdivision didn’t occur in the 1970s. No other property fronting on
Greenbank has a width as narrow as Lot 2. The proposed driveway starts at street in center of lot, then goes up a steep slope and runs about 15-20-ft then driveway curves toward side of his property line with side entry garage. The driveway will be 20-ft away then comes within 5-10-ft of the property line. The area along the property line is wooded with Norway maples and white pines. There are 8-9 trees that are 50-ft high or taller and provide privacy between his property and Lot 2. The location of the proposed driveway will run within 3 to 10-ft of tree trunks.
Millman’s landscaper has cautioned construction could damage tree roots and make them
unstable and fall. The large impervious turnaround area for driveway will be within six-ft or less
of the side property line which lines up with the Millman’s backyard. He is very concerned
stormwater will cascade down the slope and enter Millman backyard.
20 42. Millman testified Lot 2 is not consistent with the neighborhood. The proposed plan and house would incorporate the worst characteristics of the street. It would be a small house on a narrow lot. Most residences on Greenbank Road are generous homes on large lots.
There a couple of smaller homes on large lots with a lot of room between houses. Lot 2 has narrower frontage than other houses fronting on street. Lot width is still narrow where the proposed house will be located, therefore it will be situated closer to neighbors’ houses than others on Greenbank. Narrow lot width leads to smaller footprint than other houses on street, especially new houses rebuilt more recently on Greenbank. The proposed driveway is nearly adjacent to our property. No other properties that front the street have driveways this close together. No house on street has driveway entering right in front of the house. The site has a slope of 9.6%, and if it had a 10% slope there would be a slope penalty and would have too much impervious surface. Proposed improvements barely fit and are not in character of neighborhood because most houses are very generous and not like this house at all.
43. When asked whether development of Lot 2 will affect the use of his property,
Millman testified he is most concerned with stormwater impacts on his property. The Millmans already have an issue with stormwater and he is concerned it will get worse of Lot 2 is developed. Millman is considering walling off his walk out to basement. Infrastructure servicing the house such as a large AC unit and generator are located on the side of house where it floods.
Developing Lot 2 could cause stormwater issues where there currently are none, such as on the driveway side of the Millman property. Destruction of trees along the common border will affect neighborhood aesthetics and substantially reduce privacy at his house. His master bedroom and balcony overlook trees on Lot 2.
21 44. On cross examination Millman testified he has owned the house for 2.5 years. The previous owners disclosed occasional flooding issues at the property prior to the sale. He was present at the Planning Commission and heard what Christopher Leswing said about the source of water coming from a property on N. Ithan east of the Porters, but Millman disagrees. He’s not an engineer, but he’s been outside when it’s raining and seen where water flowing into basement area comes from. Millman was shown a photo and identified it depicting the southeast corner of his house furthest away from the Porter’s property. (Summary of Objections at page 3, photo 2.)
Water bypasses the southwest corner of Millman’s house closest to Lot 2 and there’s nowhere for water to go until it reaches the walk out basement, Millman testified. The southwest corner of
Millman house closest to Lot 2 doesn’t have basement, because it’s the garage. No flooding in the Millman’s garage during rainstorms because it’s uphill. Millman testified water doesn’t flow toward the garage at that point. No water from the Porter property flows across driveway into the
Millman garage. Water from the Porter property flows down the Millman driveway. Millman is aware of proposed stormwater management and is concerned about it. He would like to see plans because he doesn’t see stormwater management in the back of the proposed house on Lot 2, only in the front of it. Millman has done landscaping on his own property to try to redirect water in back of his house, but still has water that gets into that area. During a tropical storm last July,
Millman and his son had to bail water out as it was rising.
45. Regarding the layout of the neighborhood, Millman denied 318 Greenbank Road, a narrow lot across the street with a rear house, is similar to proposed Lot 2. Millman said it is dissimilar because it doesn’t front on Greenbank and was developed pre-1961. He acknowledged
318 Greenbank has a narrow leg 20-ft wide or less fronting on Greenbank and immediately adjacent is a driveway for 314 Greenbank. Millman distinguished the driveways servicing 314
22 and 318 Greenbank as having houses spaced far apart. Millman testified there are no driveways as close together as proposed Lot 2’s driveway and his driveway with houses fronting
Greenbank. Millman characterized the flag lot as the worst characteristic of neighborhood. He acknowledged the front yard setback of Lot 2 is compliant with code and greater than Millman’s
front yard setback. Millman is more concerned about lot width and proximity to neighbor’s
houses than front yard setbacks. He views the proposed house on Lot 2 as shoehorned in.
46. Frank Hawley (“Hawley”), has owned and resided at the property fronting on
Greenbank Road immediately east of proposed Lot 2 since 1990. He and his wife have no
objection to the Porter’s plans. Hawley testified Lot 2 is consistent with development pattern in
neighborhood as far as original homes, but not consistent with more recent tear downs and
rebuilds of large homes. He doesn’t see anything about layout of neighborhood which will be
affected by the proposed house for Lot 2. Hawley walks the neighborhood extensively and has
seen other houses on Greenbank Road built and rebuilt. He is familiar with development patterns
in neighborhood and the topography of neighborhood. Hawley has not seen development
adversely affect the neighborhood, in his view usually development is an improvement. As a
layman Hawley doesn’t see any adverse consequences resulting from development of Lot 2 as
proposed. He does not see any adverse consequences to his property or the neighborhood arising
from development of Lot 2.
F. Second Conditional Use Hearing
47. A second conditional use hearing was held on January 11, 2021 at the request of
the Hearing Officer for testimony regarding procedure of conditional use and land development
applications, steep slopes and irregular lots from the Lower Merion Township Engineer and
Zoning Officer. It was also an opportunity for any party to introduce testimony or exhibits.
23 48. Noel Bruno (also known by her married name Noone) is an owner of 322 N. Ithan
Avenue, next door to the Porter’s property. The Millman’s property is behind the Noone’s property on a slight downhill slope. She supports the Porter’s plan and believes they are conscientious neighbors who will do whatever the Township requires.
49. Patrice Gallary, the owner of 312 N. Ithan Avenue next door to the Porter’s property testified in support of their application. Her property slopes away from the Porter’s property but has had no problem. She has seen the tentative sketch site plan and supports it.
Gallary believes the Porter’s plan will only increase property values along whole street.
50. Jeff Nagorny, P.E., a registered professional engineer in Pennsylvania since 1989 and in ten other states, testified for the Applicants. He has a BA in civil engineering from Penn
State and MA in engineering from Villanova University. He is employed by Momenee, Inc. and
has succeeded Dave Fiorello on this project following his retirement. Nagorny was accepted as
an expert in civil engineering on behalf of the Applicants.
51. Nagorny has reconfigured the tentative sketch plan since the first hearing
(“revised tentative sketch plan”) (Ex. A-3.) It was reconfigured to avoid the area of steep slopes greater than 25% in front of Lot 2, not far off Greenbank Road. The original plan showed the
driveway partially encroaching on steep slopes. Nagorny revised the alignment to pull the
driveway out of the steep slope area and 1-ft contour lines were replaced with 2-ft contour lines.
The slopes shown on the revised tentative sketch plan are in strict conformance with Township requirements. Nagorny testified no safety issues are created by the current placement of driveway on the revised tentative sketch plan.
52. This section of Greenbank Road is curved and Lot 2 is located on the outside of the curve with good sightlines in both directions. When approaching the curb line on Greenbank
24 Road to exit the property, there is a clear view in both directions. Driveways at 314 and 318
Greenbank Road are less than 10-ft apart. Moreover, 318 Greenbank Road is a flag lot.
53. Trees on Lot 2 include an evergreen tree which is shown underneath the driveway
alignment on the tentative sketch plan. Nagorny tried to avoid existing maple trees when
relocating the driveway, but a couple of evergreens must be removed to install it. Driveway
alignment on the original tentative sketch plan went in between trees. Two evergreens definitely
will come out, but if dead, standing trees are discovered then they also should come out.
Nagorny does not disagree with recommendations in a letter from arborist Jason Tyler at
JetGreen tree services dated January 11, 2021. (Ex. A-4.) As an engineer he is often required to reviewed other letters and documents from arborists or other professionals. Tyler found the
Norway maples on Lot 2 are volunteers planted by bird droppings. They are not flourishing because they are crowded together. Some of the maples are rotting and losing branches, while others are leaning at angles to reach the sun.
54. Nagorny discussed the flow of stormwater from Lot 2 with Gregg Millman at the site. Millman showed where stormwater enters his property at the rear of his driveway area adjacent to Lot 2. Nagorny doesn’t think stormwater on Lot 2 is exiting the property and traveling to the rear of the Millman property. Lot 2 currently has no impervious surface coverage. It’s all grass and groundcover on a slight slope and the first 2-2.5-inches of rainfall gets absorbed into ground. In Nagorny’s professional opinion, stormwater from other properties, not Lot 2, is entering the Millman property. The entire Porter property is not the sole source of water coming onto Millman property. The entire Porter property flows in easterly direction and the undeveloped portion (Lot 2) flows in a north easterly direction towards Greenbank Road. In
Nagorny’s opinion it’s very likely that several properties are draining across the Porter property
25 and stormwater ends up on the Millman property. Some water from the Noone property, to the rear of the Millman property, may end up on the Millman property too. Stormwater controls are expected to be implemented as part of the land development process on Lot 2. Erosion sediment control will be appropriately designed for the site so no sediment runoff enters the street or neighbor’s properties. Grading for the Porter property will be designed to capture the minimum of what is required and make sure it doesn’t negatively impact neighbors or the environment.
Nagorny testified it is possible for the Millmans to take stormwater control measures on their own property. First they must determine where stormwater runoff is coming from. Mr. Millman reported significant flows at top of their driveway, but very little of Porter property drains there because stormwater flows south west to northeast. Other adjoining properties uphill to the west have runoff coming downhill where it concentrates and ends up going toward the Millman property. Under cross examination, Nagorny testified he did not perform stormwater management studies for the Porter’s property or the Millman’s property. His opinion is based on
35 years of experience, not solely speculation. He also admitted Lot 2 is undeveloped and anticipated impervious surface coverage will increase if a house is built on it.
55. Lower Merion Township requires tentative sketch plans with 2-ft contours. While
1-ft contours provide more detail, Nagorny is not sure they provide more accuracy. When asked whether 1-ft contours would show more steep slopes on this property, Nagorny answered
“anything’s possible, but no.” He said Lot 2 was analyzed with 2-ft contours as Township code requires. The proposed driveway can be constructed without impacting very steep slopes on Lot
2. In Lower Merion Township, steep slopes are based on a 2-ft difference in elevation, whereas a lot of other townships say steep slopes designation must exist over three 2-ft contour intervals requiring a 6-ft vertical differential for official steep slopes. A 4:1 slope (like Lot 2) is not what
26 most people consider steep, according to Nagorny. The driveway providing access into Lot 2 is
sited outside very steep slopes on the revised tentative sketch plan. It can be constructed without
violating the 25% slope rule of ordinance. Nagorny testified he thinks the Township will grant a
waiver from steep slopes, if required, to gain access to Lot 2.
56. Joseph A. Mastronardo, P.E., is a licensed engineer in the Commonwealth of
Pennsylvania since 2001 and employed by Pennoni Associates for 15 years. He has worked on
Lower Merion Township project for all 15 years, but full time since January 2020. Mastronardo
testified that he is familiar with the property, reviewed the original tentative sketch and wrote a
comment letter dated January 9, 2021. He also reviewed the revised tentative sketch plan. Lot 2
has some slopes greater than 25%. He doesn’t know exact land area, but Lot 2 has isolated steep
slopes between 15-25% and smaller isolated areas closer to Greenbank have very steep slopes in
excess of 25%. Contour lines represent the topography of site. Contour lines with an interval of
1-ft show one foot vertically and 2-foot intervals show two feet vertically. The tentative sketch
initially showed 1-ft contours and complied with code. It was very conservative and provided more information than required by code. The revised tentative sketch site plan shows 2-ft contours and complies with Lower Merion Code. Steep slopes on Lot 2 do not prevent driveway access to the site in Mastronardo’s opinion. There are two classifications of steep slopes existing on Lot 2. Some steep slopes are less than 25% and must be passed through to gain access to the lot. An isolated area of very steep slopes greater than 25% in the middle of the site can be avoided. It’s speculative whether they are natural or manmade, although Mastronardo is inclined to say they are “more incidental to construction and occupation of the surrounding area.”
57. The shape of 318 N. Ithan Avenue has four sides. If Lot 2 is approved, it will have five legs of property lines. This is one more than currently exists because the side yard on the
27 west has two legs. He declined to answer whether Lot 2 was irregular and said it was a better
question for the zoning officer. There is interplay between the zoning code and SALDO as far as
what’s irregular. In Mastronardo’s engineering opinion, nothing about proposed Lot 2 would adversely affect the public health, safety or welfare.
58. On cross examination, Mastronardo repeated the reconfigured driveway shown on
the revised tentative sketch avoids the slopes greater than 25%. The Zoning Officer determines
zoning code violations, even though Mastronardo’s engineering comment letter references
violations. He is familiar with Chapter 135 regarding irregular lots, but demurred whether this lot
is irregular and prefers to let the zoning officer answer. The current property at 318 N. Ithan has
more than five legs around the perimeter. The proposed subdivision will not create a lot that is
more irregular than the existing lot.
59. Michael Wylie, the Zoning Officer for Lower Merion Township, testified he is
familiar with the property and reviewed the conditional use application. The existing lot at 318
N. Ithan Avenue has six sides. Proposed Lot 2 has five sides. In Wylie’s opinion, proposed Lot 2
meets the requirements of Code §155-128 for conditional use approval and is not irregular. A
rear lot typically is not considered irregular because it has more than four sides, Wylie testified.
Lot 2 is a narrow lot by definition because it doesn’t meet the minimum lot width at the street
and it is narrow between the street and the area where the building line is established. Proposed
Lot 2 is irregular with more than four sides, but since the perimeter property lines exist, the only
line making it irregular is the line dividing the two lots through subdivision. Wylie testified
typically that is considered acceptable in a conditional use context. Nothing about proposed Lot
2 concerns Wylie about adverse impacts to the public health, safety or welfare.
28 60. On cross examination by Yanoff, Wylie testified Lot 2 is not a flag lot. He agreed
Chapter 135-35 does not make a distinction that if original lot has more sides then the proposed
lot, it is not irregular. Proposed Lot 2 is irregular by definition according to Wylie. As zoning
officer, Wylie reviews conditional use applications for zoning. To obtain conditional use approval, a property must comply with the zoning code and the SALDO ordinance. Lot 2 does not comply with the SALDO ordinance, but typically there is a condition of a waiver request in this kind of application. There has been no waiver yet, because the Board of Commissioners decides whether to grant one (and it hasn’t reached the Board yet). Wylie explained land development applications and conditional use applications typically are done simultaneously and steep slopes are a waiver request. In this matter, waiver hasn’t happened yet, but the Applicants requested a waiver of steep slopes in their amended CU application. (Ex. A-1.) Wylie reviewed the proposed grading for the driveway on the revised tentative sketch and it will miss the slopes greater than 25%.
61. Jillian Dierks testified when applicants are seeking conditional use approval and land development approval, the MPC allows them both to be handled at the same time.
Procedurally, when both are considered by the Board of Commissioners at the same meeting, the conditional use comes first. Lower Merion Township handles the conditional use application first, typically at the request of applicants.
G. Third Conditional Use Hearing
62. John Anderson, P.E. was recalled and testified he heard the Applicant’s engineer
(Nagorny) testify at second conditional use hearing. Nagorny’s revised tentative sketch plan is a
slight modification of the previous plan presented at first hearing. The modification shows 2-ft
29 contours in lieu of 1-ft contours, slopes between 15-25 % and 25% and greater. It moved the driveway out of the slopes they delineated 25% or greater and closer to the Millman’s property
63. Anderson agreed the driveway is “visually out of slopes greater than 25%” on the revised tentative sketch plan, but he does not agree that grading or installation of driveway will not impact those steep slopes. Anderson explained, “basically right in area of slopes delineated greater than 25 % there’s a 4-ft drop in elevation in a 28-ft section.” To grade the driveway at a
slope applicable to a residential driveway, Applicants would need to adjust side slopes to cut
driveway into existing sloped area, thus grading would extend into the steep slopes area that he
delineated. In Anderson’s opinion, the revised tentative sketch plan violates the applicable
ordinance section. The driveway in the original plan was not delineating steep slopes on that
section of property, so Anderson calculated the steep slopes on the first tentative sketch plan. In
his opinion, driveway is still blocked by slopes greater than 25%. Slopes will be disturbed and
regraded to install driveway.
64. The zoning code requires the driveway to the lot that shall not be blocked by
natural barriers. Removal of mature trees not referenced in that section of ordinance, however,
Anderson believes natural barriers may be extrapolated and any mature trees would also be a
natural barrier. Extensive mature trees along property line and where driveway intersects
Greenbank Road would be removed to install driveway and grading. The revised tentative sketch
plan continues to violate 155-128(c)(f) and continues to violate code in Anderson’s opinion.
65. Although LMT specifies 2-ft intervals for any changes in grade during
subdivision, Anderson testified 1-ft contours are typical for a project of this nature and size. This
is a relatively small development project and Anderson would want to tighten up the topographic
information to accurately detail existing features on property and how to address any proposed
30 improvements as to grading to affect adjacent properties. This is a best engineering practice in
Anderson’s opinion and SALDO represents minimum requirements. A tighter topographic grid with 1-ft contours would be appropriate because more detailed topographic information ensures adjacent land uses or properties aren’t affected while developing.
66. In Anderson’s experience in Lower Merion Township, grading terminates within
5-ft of property line to allow a sufficient buffer between the existing line and proposed
improvements. He has not seen fully engineered document yet, but any proposed improvements
on Lot 2 would come right up to property line violating that 5 ft requirement. The current revised
tentative sketch plan has contour intervals of 2 ft. and shows steep slopes, but the driveway
located outside them. Constructing the driveway will be impact steep slopes in excess of 25% during grading.
67. Anderson testified it’s very difficult for them to say there will be no impacts on the Millman property without seeing a fully engineered document showing how grading will be achieved, the location of the home and driveway and how stormwater will be collected.
68. Anderson doesn’t believe water entering the Millman property comes from the
Noone property at 322 N. Ithan Ave. He walked on the Millman’s property and visually
inspected 322 N. Ithan. A berm in the Noone’s rear yard is draining water along the fence
between Millmans and the Noones away from them (east). In Anderson’s engineering opinion,
the majority of surface water impacting the Millman property is coming upstream, mainly from
the developed portion of 318 N. Ithan and upstream to the left (west). Ex. M-1 is an aerial view of N. Ithan Avenue and Greenbank Road.
69. Anderson obtained topographical information obtained from PASDA, a spatial organization with LIDAR, and clipped it into the original tentative sketch plans by Momenee
31 with 1-ft contour lines to calculate steep slopes. (Ex. M-2.) The green areas are slopes of 25% or
greater which will block driveway not provided by Applicant’s engineer, c.f. Ex. T-1. The
original alignment of driveway would be blocked by those steep slopes. Contour lines are
pushing water from rear of the existing home on 318 N. Ithan to the back of Millman’s house.
The additional topographic information is not 100% accurate, meaning doesn’t tie directly into
field info obtained by Applicant’s engineer, but it’s very close and provides insight into where
surface water is draining, Anderson testified.
70. The revised tentative sketch plan was overlaid with additional topographic data
and superimposed 25% slopes Anderson calculated from 1-ft contours to calculate steep slopes.
Anderson testified he is not saying Applicant’s revised tentative sketch plan with 2-ft contours is
wrong, just saying 1-ft contours provides more accuracy and different arraignment of steep slope
areas. Based on Anderson’s calculations of 1-ft contours, the driveway on the revised plan would still be blocked by slopes in excess of 25%. If the Township approves the Applicants’ engineer’s delineation with 2-ft contours with slopes in excess of 25%, Anderson’s plan (Ex. M-
3) shows it in red and driveway is outside them. However, Anderson testified cutting in this
driveway and grading it down along these 4-ft in a 28-ft area will definitely impact steep slopes
to the left side of the driveway. Cutting in the driveway and improvements will eliminate trees
along driveway and frontage along Greenbank road. This tree canopy is mature and will be
eliminated on Lot 2.
71. Anderson testified he believes plans could be engineered and designed to capture
runoff on Lot 2, but in such a small area it’s very difficult without seeing an engineered plan. No
fully engineered document has been provided to show how water would be captured before
32 entering onto Millman property. He can’t render an opinion based on what was presented by
Applicant.
72. The majority of water runoff to the rear of the Millman’s property is coming from
the rear of the developed portion of 318 N. Ithan and upstream areas. Part of the development on proposed Lot 2 will drain surface water towards the Millman’s property, but most will be captured by driveway and pushed toward Greenbank Road. Problematic stormwater flooding the
Millman’s basement is coming from the developed portion of 318 N. Ithan, in Anderson’s opinion. Grading can to prevent stormwater from entering Millman’s property, Anderson testified, but will still impact Millman’s property because removal of trees and violations of ordinances. It’s difficult to ensure that this can be accomplished in such a small area.
73. In Anderson’s opinion this application does not comply with Code 135-35(A)(2) because creates a new lot which is irregularly shaped with too many sides. An excessively irregular lot is one which is not four sided. This Application doesn’t meet requirements of Code
§155-128 and doesn’t indicate how it intends to meet requirements of chapter 135, the SALDO ordinance. This application does not comply with SALDO as required by zoning code §155-
128(F), so Board of Commissioners cannot find creation of narrow lot shall be in accordance with land use goals and requirements. Anderson testified the fact that other properties may have received conditional use approval to create a lot with more than four sides is not relevant here.
74. On cross examination, Anderson testified the revised tentative sketch plan with 2- ft contour lines does not contain steep slopes traversing the driveway. He does not know whether trees along eastern side of Lot 2 trees are volunteers, only knows they are very large and may need to be removed. A planted buffer can be set up to replace trees removed on Lot 2.
Anderson admitted he did not conduct a detailed analysis of stormwater flow. He does not know
33 whether Millmans have made stormwater management improvements on their own property. He agreed the Millmans can make improvements to their own property but does not know whether there’s enough room to do so in the right rear of their property with very close adjacent property line. Anderson said it difficult to make improvements to mitigate stormwater problems.
II. APPLICABLE ORDINANCES
75. “Rear Lot” is defined by Code §155-4 as follows:
A narrow lot which shall have less than the required width at the street line and at the building line but which meets the minimum lot width at the point of the proposed building closest to the street and extending the full depth of the building plus 25 feet.
76. Code § 155-128 Rear Lot Development
In any residential subdivision made under the provisions of Chapter 135 of the Code of the Township of Lower Merion or with respect to any presently existing residentially zoned lot, the Board of Commissioners may authorize the creation of narrow lots as a conditional use subject to the following regulations:
A. The minimum lot width of the lot at the building line shall be the minimum lot width required at the street line for lots in the zoning district in which the lot is located. Minimum lot width shall be measured parallel to the street at the point of the proposed building closest to the street and shall extend the full depth of the building, plus an additional 25 feet.
B. An applicant shall not be permitted to increase the number of conforming lots permitted in a subdivision through the use of narrow lots.
C. Every narrow lot shall include at least 20 continuous feet along the street line, and such connection to the street shall extend at no less than that width to the point at which the narrow lot reaches the lot width required by the zoning district in which the lot is located. The area between the street line and the point at which the narrow line reaches the required lot width shall be capable of providing driveway and utility access to the lot (i.e., shall not be blocked by natural barriers, such as lakes, or slopes in excess of 25%) and shall not be excessively irregular in shape.
34 D. In calculating the lot area of a rear lot, the area between the street line and a line drawn radial thereto at the point where the lot attains the minimum lot width required in its zoning district shall not be included in applying the requirements of this chapter, except those requirements relating to impervious surfaces.
E. The Board of Commissioners shall designate which of the required yards shall be the front yard for rear lots.
F. The Board of Commissioners shall find that the creation of a narrow lot or narrow lots shall be in accordance with the land use goals and requirements contained in this chapter and in Chapter 135 of the Code of the Township of Lower Merion.
G. Any rear lot approved by conditional use shall connect to the adjacent sanitary sewer, when and if it is installed, even though the building may be more than 200 feet away.
77. Zoning is regulated by Chapter 155 of Code. Its purpose and community development objectives are found in Code §155-1:
B This chapter is enacted for the following purposes: (1) To protect and promote safety, health and morals. (2) To accomplish a coordinated development of this Township and adjacent municipalities. (3) To provide for the general welfare by guiding and protecting amenity, convenience and future governmental, economic, practical, social and cultural facilities, development and growth, as well as the improvement of governmental processes and functions. (4) To guide uses of land and structures and the type and location of streets, public grounds and other facilities. (5) To permit this Township and adjacent municipalities to minimize such problems as may presently exist or as may be foreseen.
C. Further, this chapter is designed and intended: (1) To promote, protect and facilitate one or more of the following: the public health, safety, morals, general welfare, coordinated and practical community development, proper density of population, the provisions of adequate light and air, police protection, vehicle parking and loading space, transportation, water, sewerage, schools, public grounds and other public requirements; as well as (2) To prevent one or more of the following: overcrowding of land, blight, danger and congestion in travel and transportation, and loss of health, life or property from fire, flood, panic or other dangers.
35 (3) This chapter and all amendments thereto have been made in accordance with an overall program and with consideration for the character of the Township and its various parts and the suitability of the various parts for particular uses and structures.
78. Subdivision and Land Development is regulated by Chapter 135 of Code. Its purposes are defined by Code §135-1:
A. To promote and protect the public health, safety, morals and welfare. B. To promote orderly, efficient, integrated and harmonious development in the Township. C. To require sites suitable for building purposes and human habitation in keeping with the standards of quality existing in the Township and to alleviate peril from fire, flood, erosion, excessive noise, smoke or other menace. D. To coordinate proposed streets with existing or proposed streets, parks or other features of the Comprehensive Plan and to provide for drainage, water supply, sewage disposal and other appropriate utility services. E. To encourage preservation of adequate open spaces for recreation, light and air and maintenance of the natural amenities characteristic of the Township and its residential, commercial and public areas. F. To ensure conformance of subdivision and land development plans with the Comprehensive Plan and public improvement plans and to ensure coordination of intergovernmental public improvement plans and programs. G. To secure equitable treatment of all subdivision and land development plans by providing uniform procedures and standards. H. To ensure that developments are environmentally sound by requiring preservation of the natural features of the areas to be developed to the greatest extent practicable, to maintain the economic well-being of the Township and to prevent unnecessary or undesirable blight, runoff and pollution.
79. The Subdivision and Land Development Ordinance has a section entitled
“General Standards” under which §135-26 “Applicable standards; modification” is found:
A. The construction specifications for all improvements shall be those contained in the Lower Merion standards and specifications for improvement construction.
B. Where literal compliance with the standards herein specified is impractical, the Board of Commissioners may modify or adjust the standards to permit reasonable utilization of property while at the same time securing substantial conformance with the objectives of this article.
36 a. The Subdivision and Land Development Ordinance regulates lots in §135-35.
Lots.
A. Depth, side lines and irregular configuration. (1) A lot may not be created whose depth is greater than 2.5 times its width. (2) A lot may not be created which is excessively irregular unless reasonably dictated by the topography of the land or other natural feature. An excessively irregular lot is one which is not four sided or which has a boundary line the length of which is more than 2.5 times the width of the opposite or adjacent boundary line. (3) The side lines of a lot shall be at right angles or radial to the right-of-way lines. (4) Any portion of a lot not permitted to be included in the required lot area as provided in § 155-3.13A of the Township Code shall be disregarded in determining compliance with the standards created by this subsection.
B. Narrow lots may be created only when authorized by the Board of Commissioners as a conditional use under the provisions of § 155-3.13A of the Code of the Township of Lower Merion. b. The Subdivision and Land Development Ordinance regulates the removal of trees:
Code § 135-25. Removal of trees; compensatory planting. i. Every effort should be made to avoid removal of trees having a caliper of six inches or greater from the property in the process of subdividing, land developing, grading or installing improvements. Where, in the judgment of the Board of Commissioners, such removal is unavoidable, the applicant shall install trees in such locations and of such size, variety and quantity as the Board of Commissioners shall direct.
B. Notwithstanding the six-inch-caliper limitation, no substantial area of smaller trees or shrub cover shall be removed without the provision of comparable replacement as approved by the Board of Commissioners. A plan and a statement of material to be removed and/or demolished shall be submitted for approval.
37
c. The Subdivision and Land Development states:
Interpretation and application of provisions
In the interpretation and application of the provisions of this chapter, said provisions shall be deemed to be the minimum requirements necessary for the promotion and protection of the public health, safety and welfare. Where the provisions of this chapter and all standards and specifications implementing it impose greater restrictions upon subdivision or land development than those of any other chapter of this Code or any regulation or any applicable land subdivision agreement, the provisions of this chapter and its standards and specifications shall be controlling. Where the provisions of any statute, other chapter of this Code or regulation or applicable land subdivision agreement impose greater restrictions upon subdivision or land development than this chapter, the provisions of such statute, other chapter of this Code or regulation or applicable land subdivision agreement shall be controlling. §135-3.
d. The Applicant must also comply with general standards for conditional use approval found in Code §155-141.2.
1. Standards and criteria for conditional uses are found in Code §155-141.2, as follows:
(…)
B. The Board of Commissioners may grant approval of a listed conditional use under any district, provided that the following standards and criteria are complied with by the applicant.
1. The applicant shall establish by credible evidence that the use or other subject of consideration for approval complies with the community development objectives as stated in Article I of this chapter and the declaration of legislative intent that may appear at the beginning of the applicable district under which approval is sought.
2. The applicant shall establish by credible evidence compliance with conditions for the grant of conditional uses enumerated in that section which gives the applicant the right to seek a conditional use.
3. The applicant shall establish by credible evidence that the proposed use or other subject of consideration for approval shall preserve the character of the
38 neighborhood.
4. The applicant shall establish by credible evidence that the proposed use or other subject of consideration for approval shall be properly serviced by all existing public service systems. The peak traffic generated by the subject of approval shall be accommodated in a safe and efficient manner or improvements made in order to effect the same.
5. The applicant shall establish by credible evidence that the proposed use or other subject of consideration for approval is properly designed with regard to internal circulation, parking, buffering and all other elements of proper land planning.
6. The applicant shall provide sufficient plans studies or other data to demonstrate compliance with the regulations for the permitted use or such regulations as may be the subject of consideration for a conditional use approval.
7. The Board of Commissioners shall impose such conditions as are advisable to ensure compliance with the purpose and intent of this chapter which may include without limitation planting and buffers, harmonious design of buildings, protection of watercourses, environmental amenities, and the elimination of noxious, offensive or hazardous elements.
C. Standards of Proof
1. An applicant for a conditional use shall have the burden of establishing both:
a. That his application falls within the provision of this chapter which accords the applicant the right to seek a conditional use; and
b. That allowance of the conditional use will not be contrary to the public interest.
2. In determining whether the allowance of a conditional use is contrary to the public interest, the Board shall consider whether the application if granted, will:
a. Adversely affect the public health safety and welfare due to changes in traffic conditions, drainage, air quality, noise levels, natural features of the land, neighborhood property values and neighborhood aesthetic characteristics.
b. Be in accordance with the Lower Merion Township Comprehensive Plan.
c. Provide the required parking under Article XX (…)
39 d. Adversely affect the logical, efficient and economical extension or provision of public services and facilities such as public water, sewers, refuse collection, police and fire protection and public schools.
e. Otherwise adversely affect the public health, safety, morals or welfare.
3. In all cases the applicant’s burden of proof shall include the burden of persuading the Board by credible evidence that the applicant has satisfied the criteria set forth in Subsection C(1)(a) of this subsection. In any case where the Board requests that the applicant produce evidence relating to the criteria set forth in Subsection C(2) of this subsection or where any other party opposing the application shall claim that an allowance of the application will have any of the effects listed in Subsection C(2) of this subsection, the applicant’s burden of proof shall include the burden of persuading the Board by credible evidence that the allowance of a conditional use will not be contrary to the public interest with respect to the criteria so placed in issue.
§155-141.2.
III. CONCLUSIONS OF LAW
80. Municipalities possess only those powers expressly granted to them by the
General Assembly. In re Appeal of Maibach, LLC, 26 A.3d 1213 (Pa. Cmwlth. 2011).
81. Section 909.1(b)(3) of the MPC1 grants a municipality's governing body authority to render final adjudications on applications for conditional uses. A conditional use is one to which the applicant is entitled provided that the specific standards of the zoning ordinance are met. In re Thompson, 896 A.2d 659, 670 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 669, 916
A.2d 636 (2007).
83. An applicant seeking a conditional use must show compliance with the express standards of the zoning ordinance that relate to the specific conditional use. Id.
1 Added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10909.1.
40 84. If the applicant demonstrates compliance with the zoning ordinance, the governing body must grant the application unless objectors introduce sufficient evidence that the proposed use will have a detrimental effect on the public health, safety, and welfare. Id.2
85. However, a governing body may impose reasonable conditions on the grant of a conditional use. Section 913.2 of the MPC;3 Levin v. Board of Supervisors of Benner Township,
Centre County, 669 A.2d 1063 (Pa. Cmwlth. 1995), aff'd, 547 Pa. 161, 689 A.2d 224 (1997).
86. A board is permitted to impose reasonable conditions on the use of a property to mitigate any potential adverse impacts from the proposed use. Feldman v. Bd. of Supervisors of
E. Caln Twp., 48 A.3d 543, 548 (Pa. Commw. Ct. 2012) citing Edgmont Township v. Springton
Lake Montessori School, 154 Pa. Commw. 76, 622 A.2d 418 (Pa. Cmwlth. 1993).
87. The governing body is entitled to deference in the interpretation of its own zoning code. In Re Arnold, 984 A.2d 1 (Pa. Cmwlth. 2009).
88. The conditional use process relates only to the use of the land, and does not involve the specific engineering design aspects of the proposed development. Schatz v. New
Britain Township, 596 A.2d 294 (Pa. Cmwlth. 1991). Information showing the nature of the proposal, its size and location are all that can be required at the conditional use stage. In re
Appeal of Brickstone Realty Corp., 789 A.2d 333, 339 (2001).
89. Zoning issues should be resolved no later than the acceptance of the final plan by the governing body. Graham v. Zoning Hearing Bd, 520 Pa. 526; 555A.2d 79 (1989)
2 "Because the law regarding conditional uses and special exceptions is virtually identical, the burden of proof standards are the same for both." In re Thompson, 896 A.2d at 670 3 Added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10913.2.
41 90. The terms of the municipality's SALDO control regarding the timing of zoning
and land development approvals Borough of Jenkintown v. Bd of Commissioners of
Abington, 858 A.2d 136 (Pa. Cmmw. Ct. 2004)
91. It serves the interest of judicial economy to resolve the zoning issue so the Board
has the necessary information to make an informed decision on the subdivision and land
development plan. See, North Codorus Township v. North Codorus Zoning Hearing Bd.,873
A.2d 845 (Pa. Cmmw. Ct. 2005)
A. Compliance with Code §155-128
92. The Applicant’s revised tentative sketch plan for proposed Lot 2 provides the
minimum lot width, 75-ft, measured parallel to street at the point of the proposed building closest
to the street and extends the full depth of the building plus an additional 25-ft, in compliance
with §155-128(A). Ex A-4.
93. The Applicant’s yield plan shows it is not increasing the number of conforming
lots permitted in a subdivision through the use of narrow lots, in compliance with §155-128(B).
Ex. T-5, sheet 5.
94. The Applicant’s revised tentative sketch plan provides 20 continuous feet along
Greenbank Road, and such connection to the street extends no less than that width to the point at which the narrow lot reaches the lot width required by the applicable zoning district, in compliance with §155-128(C). Ex A-4.
95. The Applicant’s revised tentative sketch plan for proposed Lot 2 depicts the area
between the street line and the point at which the narrow line reaches the required lot width is
capable of providing driveway and utility access to the lot (i.e. shall not be blocked by natural
barriers such as lakes or slopes in excess of 25%) in compliance with §155-128(C). Ex A-4;
42 Testimony of David Fiorello, P.E.; Jeff Nagorny, P.E.; Joseph A. Mastronardo P.E.; Michael
Wylie, Zoning Officer, supra; accord Testimony of John Anderson, P.E.,
96. The proposed driveway on Lot 2 is not blocked by slopes greater than 25% when calculated with 2-ft contour intervals as shown on the revised tentative sketch plan, Ex A-4;
Testimony of David Fiorello, P.E.; Jeff Nagorny, P.E.; John Anderson, P.E.; Joseph A.
Mastronardo P.E.; Michael Wylie, Zoning Officer, supra.
97. Grading around the proposed driveway is not a land use determination within the purview of conditional use approval. Construction and design details should be addressed further along the permitting and approval process. See, e.g. Schatz v. New Britain Township Zoning
Hearing Board of Adjustment, 141 Pa. Cmwlth 525, 596 A.2d 294 (1991).
98. Trees are not natural barriers blocking driveway access to the lot within the meaning of §155-128(C). See supra, Testimony of Jeff Nagorny, P.E.; see generally, Ex. A-3;
99. Removal of trees to install the driveway and grade around it does not violate
§155-128(C) with regard to natural barriers blocking access to the lot, however compensatory
plantings may be required by §135-25.
100. The Applicant’s revised tentative sketch plan for proposed Lot 2 depicting the
area between the street line and the point at which the narrow line reaches the required lot width
is not excessively irregular in shape, in compliance with §155-128(C).. Ex A-4; Testimony of
David Fiorello, P.E.; Jeff Nagorny, P.E.; Joseph A. Mastronardo P.E.; Michael Wylie, Zoning
Officer, supra.
101. The Applicant’s revised tentative sketch plan for proposed Lot 2 calculates the lot
area without including the area between the street line and a line drawn radial thereto at the point
43 where the lot attains the minimum lot width required in the zoning district, except those
requirements relating to impervious surfaces, in compliance with §155-128(D). Ex A-4.
102. Greenbank Road shall be the front yard for proposed Lot 2, pursuant to §155-
128(E).
103. The creation of a narrow lot shall be in accordance with the land use goals and requirements contained in chapters 155 and 135, in compliance with §155-128(F), see infra.
104. Proposed Lot 2 is capable of being connected to the adjacent sanitary sewer on
Greenbank Road, pursuant to §155-128(G). Testimony of David Fiorello, P.E., supra.
B. Compliance with Subdivision and Land Development Code §135-35
105. Proposed Lot 2 has a depth not greater than 2.5 times its width, in compliance
with §135-35(A)(1). Ex. A-4.
106. Proposed Lot 2 has five sides but is not excessively irregular in shape and,
therefore, not prohibited by §135-35(A)(2). Testimony of Zoning Officer Michael Wylie, supra;
see also, testimony of David Fiorello, P.E.; Jeff Nagorny, PE; see generally, Montgomery
County Planning Commission review letter (Ex. T-X); Lower Merion Township Planning
Commission recommendations (Ex. T-X).
107. SALDO standards for Proposed Lot 2, defined in §135-35(A)(2), may be
modified or adjusted by the Board of Commissioner where literal compliance is impractical to
permit reasonable utilization of property while at the same time securing substantial
conformance with the objectives of this article, pursuant to §135-26.
108. Literal compliance with §135-35(A)(2) is impractical to permit reasonable
utilization of Lot 2 as a narrow lot with five sides, pursuant to §135-26. See generally, testimony
of Michael Wylie, Zoning Officer; David Fiorello, P.E.; Jeff Nagorny, P.E.
44 109. Modifying the permissible number of sides from four to five on Lot 2 will, at the
same time, secure substantial conformance with the objectives of the SALDO, pursuant to §135-
26. See generally, testimony of Michael Wylie, Zoning Officer; David Fiorello, P.E.; Jeff
Nagorny, P.E.
110. The side lines of Lot 2 shall be at right angles or radial to the right-of-way lines in compliance with §135-35(A)(3). Ex. A-T.
111. Any portion of Lot 2 not permitted to be included in the required lot area as provided in § 155-3.13A of the Township Code shall be disregarded in determining compliance with the standards created by this subsection, in compliance with §135-35(A)(4). Ex. A-T.
112. Lot 2 may be created as a narrow lot only when authorized by the Board of
Commissioners as a conditional use under the provisions of § 155-128 of the Code of the
Township of Lower Merion, as requested by the Applicants in Ex. T-1 and Ex. A-2.
C. Compliance with Zoning Code §155-1
113. The Applicants have adequately demonstrated that conditional use approval of
proposed Lot 2 will not be detrimental to the public safety, health and morals, pursuant to Code
§155-1, through the testimony of Pamela D. Porter; David Fiorello, P.E.; Jeff Nagorny, P.E.;
Joseph A. Mastronardo P.E.; Michael Wylie, Zoning Officer, Frank Hawley; Noel Bruno and
Patrice Gallary, supra.
114. Stormwater controls can be designed for Lot 2 and stormwater managed on the
site within Lower Merion Township’s requirements, Testimony of David Fiorello, P.E.; see also
Jeff Nagorny, P.E, supra.
115. Objector’s engineer could not render an opinion on the sufficiency of stormwater
controls in a small area without seeing an engineered plan, Testimony of John Anderson, PE,
45 supra. Specific details about stormwater controls are not within the purview of conditional use
approval regarding use of land. Construction and design details should be addressed further
along the permitting and approval process. See, e.g. Schatz v. New Britain Township Zoning
Hearing Board of Adjustment, 141 Pa. Cmwlth 525, 596 A.2d 294 (1991).
116. Conditional use approval of proposed Lot 2 accomplishes coordinated
development of this Township and adjacent municipalities, pursuant to Code §155-1, through
reviews by the Montgomery County Planning Commission (Ex. T-7); the Lower Merion
Township Planning Commission (Ex. T-3) and the Building and Planning Department. (Ex. T-
2).
117. Conditional use approval of proposed Lot 2 is in accord with the goals and objectives to provide for the general welfare by guiding and protecting amenity, convenience, and future governmental, economic, practical social and cultural development and growth as well as the improvement of governmental processes and function, pursuant to Code §155-1, through reviews by the Montgomery County Planning Commission (Ex. T-7); the Lower Merion
Township Planning Commission (Ex. T-3) and the Building and Planning Department. (Ex. T-
2); Testimony of David Fiorello, P.E.; Jeff Nagorny, P.E, supra.
118. Conditional use approval of proposed Lot 2 is in accord with the goals and objectives to guide uses of land and structures and the type and location of streets, public grounds, and other facilities, pursuant to Code §155-1, through reviews by the Montgomery
County Planning Commission (Ex. T-7); the Lower Merion Township Planning Commission
(Ex. T-3) and the Building and Planning Department. (Ex. T- 2); Testimony of David Fiorello,
P.E.; Jeff Nagorny, P.E, supra.
46 119. Conditional use approval of proposed Lot 2 is in accord with the goals and
objectives to permit this Township and any adjacent municipalities to minimize such problems as may presently exist of as maybe foreseen, pursuant to Code §155-1, through reviews by the
Montgomery County Planning Commission (Ex. T-7); the Lower Merion Township Planning
Commission (Ex. T-3) and the Building and Planning Department. (Ex. T- 2); Testimony of
David Fiorello, P.E.; Jeff Nagorny, P.E, supra.
120. Conditional use approval of proposed Lot 2 is in accord with the goals and objectives to promote, protect and facilitate one or more of the following: the public health, safety, morals, general welfare, coordinates and practical community development, proper density of population, the provision of adequate light and air, police protection, vehicular parking and loading space, transportation, water, sewerage, schools, public grounds and other public requirements, in compliance with Code §155-1, through reviews by the Montgomery County
Planning Commission (Ex. T-7); the Lower Merion Township Planning Commission (Ex. T-X) , the Lower Merion Township Engineer (Ex. T-XX) and the Building and Planning Department.
(Ex. T- X); Testimony of David Fiorello, P.E.; Jeff Nagorny, P.E, supra.
121. Conditional use approval of proposed Lot 2 is in accord with the goals and objectives to prevent one of more of the following: overcrowding of land, blight, danger and congestion in travel and transportation, and loss of health, life or property from fire, flood, panic or other dangers, in compliance with Code §155-1, through reviews by the Montgomery County
Planning Commission (Ex. T-7); the Lower Merion Township Planning Commission (Ex. T-3) and the Building and Planning Department. (Ex. T- 2); Testimony of David Fiorello, P.E.; Jeff
Nagorny, P.E, supra.
47 D. Compliance with Subdivision and Land Development Ordinance Code §135-1
122. Conditional use approval of proposed Lot 2 will promote the public health, safety,
morals and welfare, pursuant to Code §135-1, as evidenced by the testimony of Pamela D.
Porter; David Fiorello, P.E.; Jeff Nagorny, P.E.; Joseph A. Mastronardo P.E.; Michael Wylie,
Zoning Officer, supra, and reviews by the Montgomery County Planning Commission (Ex. T-7);
the Lower Merion Township Planning Commission (Ex. T-3) , the Lower Merion Township
Engineer (Ex. T-6) and the Building and Planning Department. (Ex. T-2).
123. Conditional use approval of proposed Lot 2 will promote orderly, efficient
integrated and harmonious development in the Township, pursuant to Code §135-1, as evidenced
by testimony of David Fiorello, P.E.; Jeff Nagorny, P.E.; Joseph A. Mastronardo P.E.; Michael
Wylie, Zoning Officer, supra, and reviews by the Montgomery County Planning Commission
(Ex. T-7); the Lower Merion Township Planning Commission (Ex. T-3) , the Lower Merion
Township Engineer (Ex. T-6) and the Building and Planning Department. (Ex. T-2).
124. Conditional use approval of proposed Lot 2 will be suitable for building purposes
and human habitation in keeping with the standards of quality existing in the Township and to alleviate peril from fire, flood, erosion, excessive noise, smoke or other menace, pursuant to
Code §135-1, as evidenced by testimony of David Fiorello, P.E.; Jeff Nagorny, P.E.; Joseph A.
Mastronardo P.E.; Michael Wylie, Zoning Officer, supra, and reviews by the Montgomery
County Planning Commission (Ex. T-7); the Lower Merion Township Planning Commission
(Ex. T-3) , the Lower Merion Township Engineer (Ex. T-6) and the Building and Planning
Department. (Ex. T- 2).
125. Proposed Lot 2 does not call for a proposed street but it will provide for drainage,
water supply, sewage disposal and other appropriate utility services, pursuant to Code §135-1, as
48 evidenced by testimony of David Fiorello, P.E.; Jeff Nagorny, P.E.; Joseph A. Mastronardo P.E.;
Michael Wylie, Zoning Officer, supra, and reviews by the Montgomery County Planning
Commission (Ex. T-7); the Lower Merion Township Planning Commission (Ex. T-3), the Lower
Merion Township Engineer (Ex. T-6) and the Building and Planning Department. (Ex. T- 2).
126. Conditional use approval of proposed Lot 2 will encourage preservation of
adequate open spaces for recreation, light and air and maintenance of the natural amenities
characteristic of the Township and its residential, commercial and public areas, pursuant to Code
§135-1, as evidenced by testimony of David Fiorello, P.E.; Jeff Nagorny, P.E.; Joseph A.
Mastronardo P.E.; Michael Wylie, Zoning Officer, supra, and reviews by the Montgomery
County Planning Commission (Ex. T-7); the Lower Merion Township Planning Commission
(Ex. T-3), the Lower Merion Township Engineer (Ex. T-6) and the Building and Planning
Department. (Ex. T- 2).
127. Conditional use approval of proposed Lot 2 will ensure conformance of
subdivision and land development plans with the Comprehensive Plan and public improvement
plans and to ensure coordination of intergovernmental public improvement plans and programs,
pursuant to Code §135-1, as evidenced by testimony of David Fiorello, P.E.; Jeff Nagorny, P.E.;
Joseph A. Mastronardo P.E.; Michael Wylie, Zoning Officer, supra, and reviews by the
Montgomery County Planning Commission (Ex. T-7); the Lower Merion Township Planning
Commission (Ex. T-3) , the Lower Merion Township Engineer (Ex. T-7) and the Building and
Planning Department. (Ex. T- 2).
128. Conditional use approval of proposed Lot 2 meets the goals and objectives of
securing equitable treatment of all subdivision and land development plans by providing uniform
procedures and standards, pursuant to Code §135-1, as evidenced by testimony of David
49 Fiorello, P.E.; Jeff Nagorny, P.E.; Joseph A. Mastronardo P.E.; Michael Wylie, Zoning Officer,
supra, and reviews by the Montgomery County Planning Commission (Ex. T-7); the Lower
Merion Township Planning Commission (Ex. T-3) , the Lower Merion Township Engineer (Ex.
T-6) and the Building and Planning Department. (Ex. T-2).
129. Testimony by John Anderson, P.E. that Lower Merion Township may not have
given equitable treat to all subdivision and land development plans by providing uniform
procedures and standards for delineation of steep slopes was not specific about the properties
involved and has not been accorded evidentiary weight.
130. Conditional use approval of proposed Lot 2 meets the goals and objectives of
ensuring that developments are environmentally sound by requiring preservation of the natural
features of the areas to be developed to the greatest extent practicable, to maintain the economic
well-being of the Township and to prevent unnecessary or undesirable blight, runoff and
pollution, pursuant to Code §135-1, as evidenced by testimony of David Fiorello, P.E.; Jeff
Nagorny, P.E.; Joseph A. Mastronardo P.E.; Michael Wylie, Zoning Officer, supra, and reviews
by the Environmental Advisory Commission, the Montgomery County Planning Commission
(Ex. T-7); the Lower Merion Township Planning Commission (Ex. T-3) , the Lower Merion
Township Engineer (Ex. T-6) and the Building and Planning Department. (Ex. T- 2).
D. Compliance with Conditional Use Criteria Code §155-141.2
131. The Applicants have established by credible evidence that Lot 2 complies with the community development objectives as stated in Article I of Chapter 155, pursuant to 155-
141.2(B)(1), para 105-113, supra.
50 132. The Applicants have established by credible evidence compliance with conditions for the grant of conditional uses enumerated Code 155-128 and 155-3.13 which give the
Applicants the right to seek a conditional use, pursuant to 155-141.2(B)(2), supra.
133. The Applicants have established by credible evidence that Lot 2 shall preserve the character of the neighborhood, pursuant to 155-141.2(B)(3), through the testimony of Pamela D.
Porter that she is sensitive to the manner in which the neighborhood is laid out, loves the style and feel of their neighborhood and intends to build a new house consistent with feel of neighborhood on Lot 2.. Frank Hawley, a neighbor residing on Greenbank Road for 30 years, testified Lot 2 is consistent with development pattern in neighborhood as far as original homes.
There are two rear, narrow lots in the immediate neighborhood. One rear, narrow lot is located at
318 Greenbank Road across the street from Lot 2 and another rear lot is several parcels to the west fronting on Montgomery Avenue. See Map, Ex. A-2. Moreover, the neighborhood does not have consistent house sizes or lot sizes. See Map, Ex. A-2.
134. The dimensional compliance of Lot 2 and the proposed house to be built thereon with R3 zoning is evidence that it shall preserve the character of the neighborhood. It is dimensionally compliant with R3 zoning for minimum net lot area, minimum lot width, maximum building area, minimum side yard and aggregate side yard, minimum rear yard, maximum impervious surface coverage, maximum building height and parking. Building and
Planning Department Staff memo, Ex T- 2 at p. 2; Testimony of Dave Fiorello, P.E. and Jeff
Nagorny, P.E., supra.
135. The Applicants have established by credible evidence that Lot 2 shall be properly serviced by all existing public service systems. The peak traffic generated by the subject of
51 approval shall be accommodated in a safe and efficient manner or improvements made in order
to effect the same, with off street parking for two vehicles, pursuant to 155-141.2(B)(4). Ex. A-4.
136. The Applicants have established by credible evidence that Lot 2 is properly
designed with regard to internal circulation, parking, buffering and all other elements of proper
land planning, pursuant to 155-141.2(B)(5). Ex. A-4; testimony of David Fiorello, P.E. and Jeff
Nagorny, P.E.
137. The Applicants have provided sufficient plans studies or other data to demonstrate compliance with the regulations for Lot 2 or such regulations as may be the subject of consideration for a conditional use approval, pursuant to 155-141.2(B)(6). Ex A-4. The Lower
Merion Building and Planning Department, Lower Merion Township Engineer, Lower Merion
Planning Commission and the Montgomery County Planning Commission have reviewed the conditional use application and supporting plans and recommended approval of Lot 2 as a narrow lot with conditions. The Applicants are willing to accept conditions of approval.
IV. DISCUSSION
138. The Applicants envision downsizing from their current home to a smaller home built on proposed Lot 2, which will be subdivided from their current property, 318 N. Ithan
Avenue. Lot 2 is dimensionally compliant with the R3 zoning except for the required minimum frontage at the street, necessitating conditional use approval as a rear narrow lot pursuant to
§155-128. The background to this zoning application is proposed Lot 2 meets the minimum lot size for zoning under the old zoning code, but does not have the minimum lot area under the new zoning code. The conditional use application was filed under the old code, together with a land development application, tentative sketch plan and request for waiver of irregular lot shape.
52 139. The Porter’s desire to realize the highest and best use of the undeveloped portion
of their property through subdivision and development is objected to by adjacent neighbors
whose house has a history of stormwater infiltration problems. Gregg and Susan Millman, the owners of 327 Greenbank Road, are located next to Lot 2. Their property is the lowest point in the neighborhood and the southeast side of their house has walkout basement doors at the lowest
point on their property. During heavy rainfall, stormwater enters through the walkout basement
doors and floods the basement. The Millmans fear exacerbation of flooding conditions if Lot 2 is
eventually developed with a house and associated impervious surface coverage. They also object
to the proposed home on Lot 2 not fitting into the pattern of the neighborhood because both the
residence and the lot are too small, and loss of privacy if mature trees are cut down.
140. The Porters have successfully demonstrated Lot 2 meets conditional use criteria
under the zoning code as well as the subdivision and land development code. Very steep slopes
and irregular lot shape presented hurdles to conditional use approval which the Porters cleared in
their direct case. The objecting neighbors raised public health, safety and welfare concerns
including flooding of their property, loss of trees, and neighborhood pattern being adversely
affected by development on Lot 2. On rebuttal, the Applicants have adequately demonstrated that
the proposed development will not harm the public health, safety or welfare, will have
stormwater management and compensatory plantings, and fits into the character of the
neighborhood, overcoming the objections.
141. Driveway access to a rear or narrow lot may not be blocked by natural features
such as slopes greater than 25%, pursuant to Code 155-128(C). While isolated bands of very
steep slopes greater than 25% determined by 2-ft contour lines exist on Lot 2, all four engineers4
4 Applicants’ engineers Dave Fiorello and Jeff Nagorny; Lower Merion Township’s Engineer Joseph A. Mastronardo, and the Millman’s Engineer John Anderson.
53 testified the driveway has been moved out of very steep slopes in the revised tentative sketch
plan. Ex. A-4. If there are additional very steep slopes and the Applicants prove they are manmade (i.e. created when a badminton court was installed on Lot 2,) then they may not be regulated.
142. The Millman’s engineer, John Anderson, contends grading on the sides of the
driveway during installation will disturb very steep slopes preventing conditional use criteria
from being met. Future design and construction details are not considerations in conditional use
hearings and should be raised during the permitting and land development stages. Schatz v. New
Britain Township, 596 A.2d 294 (Pa. Cmwlth. 1991). Information showing the nature of the
proposal, its size and location are all that can be required at the conditional use stage. In re
Appeal of Brickstone Realty Corp., 789 A.2d 333, 339 (2001).
143. Anderson further testified that he calculated 1-ft contour lines on Lot 2 showing
slopes greater than 25% in the driveway area, as shown on Ex. M-3. Lower Merion’s subdivision and land development code requires 2-ft contour lines, pursuant to Code §135-19, which do not reveal very steep slopes in the driveway area.
144. Lastly, Anderson testified the meaning of natural barriers preventing driveway access in Zoning Code 155-128(C) should be extrapolated to include mature trees. An evergreen tree must be removed from the driveway area together with eight or nine trees with calipers
greater than 6-inches near the side yard boundary closest to the Millmans, according to
Anderson. Where the removal of mature trees is unavoidable, the Board of Commissioners may require compensatory plantings pursuant to Zoning Code §155-25. Here, trees are not natural barriers preventing conditional use approval. The removal of mature, healthy trees to permit driveway access to Lot 2 should be conditioned on compensatory plantings.
54 145. Conditional use approval for rear lot development is dependent on meeting the
goals and requirements of the subdivision and land development ordinance (“SALDO”). Lower
Merion’s zoning code does not define an irregular lot, but SALDO defines an “excessively irregular lot” as one with more than four sides which may not be created, §135-35(A)(2). The
Board of Commissioners may modify standards for lots, pursuant to §135-26, when literal compliance with §135-35(A)(2) is impractical to permit reasonable utilization of Lot 2 as a rear narrow lot with five sides, while at the same time, securing substantial conformance with the objectives of the SALDO. Rear narrow lots have a leg fronting the street, typically creating more than four sides to the lot, for driveway access and reasonable utilization of the property. The
Applicants have demonstrated substantial conformance with the objectives of the SALDO ordinance as determined in the Findings of Fact, Section D, supra.
146. Alternatively, the Board of Commissioners may waive the excessively irregular lot prohibition during land development. The Porters requested a waiver of the irregular lot limitation in SALDO in their amended conditional use application and land development application. Jillian Dierks, a Planner in the Department of Building and Planning, testified a rear lot is irregular by definition. Zoning Officer Michael Wylie testified waivers of excessively irregular lot shape pursuant to SALDO are typically granted for rear narrow lots approved by conditional use. Wylie further testified the perimeter of the original lot already exists and the only line making Lot 2 irregular is the line dividing the two lots through subdivision, which typically is considered acceptable in a conditional use context. Moreover, Lot 2 has five sides as proposed, reducing the nonconformity of the six-sided original lot at 318 N. Ithan Avenue by one side, according to testimony of Lower Merion Township Engineer Joseph A. Mastronardo.
55 147. The Millmans contend Lot 2 is excessively irregular by definition since it has
more than four sides, pursuant to SALDO 135-35(B). They argue the Porters must obtain relief from the excessively irregular lot limitation of SALDO before applying for conditional use relief.
Although it serves the interest of judicial economy to resolve zoning issues so the Board has the necessary information to make an informed decision on the subdivision and land development
plan, See, North Codorus Township v. North Codorus Zoning Hearing Bd., 873 A.2d 845 (Pa.
Cmmw. Ct. 2005), a municipality’s SALDO ordinance determines the order of land development and zoning applications, See Rickert v. Latimore Township , 960 A.2d 912, 920 (Pa. Cmwlth.
2008). The Commonwealth Court recently examined the timing of a conditional use application and land development application and stated:
Our case law recognizes that the MPC is silent as to the timing of challenges to the zoning aspect of land development approval; states that the terms of the municipality's SALDO control regarding the timing; and notes that "issues involving zoning in land development should be resolved before a governing body may grant final approval." Jenkintown, 858 A.2d at 14 (citing Graham v. Zoning Hearing Bd. of Upper Allen Twp., 520 Pa. 526, 555 A. 2d 79 (1989)
Smith v. Zoning Hearing Bd. (In re Smith) 231 A.3d 59 (Pa. Cmmw. Ct. 2020)(holding the
municipality’s SALDO ordinance required any zoning approvals were to be resolved prior to the
approval of the subdivision or land development plan.)
148. Lower Merion Township’s SALDO ordinance states in pertinent part:
Interpretation and application of provisions
In the interpretation and application of the provisions of this chapter, said provisions shall be deemed to be the minimum requirements necessary for the promotion and protection of the public health, safety and welfare. Where the provisions of this chapter and all standards and specifications implementing it impose greater restrictions upon subdivision or land development than those of any other chapter of this Code or any regulation or any applicable land subdivision agreement, the provisions of this chapter and its standards and specifications shall be controlling. Where
56 the provisions of any statute, other chapter of this Code or regulation or applicable land subdivision agreement impose greater restrictions upon subdivision or land development than this chapter, the provisions of such statute, other chapter of this Code or regulation or applicable land subdivision agreement shall be controlling.
§ 135-3, emphasis added. Since Lower Merion Township’s zoning code imposes greater
restrictions upon subdivision or land development than its SALDO code, the provisions of the
zoning code are controlling and land use approval must be resolved first. Support for this
interpretation of the hierarchy of the zoning code over SALDO may be found another section
regarding impact fees, where it states:
Effect on zoning and subdivision regulations.
This article shall not affect, in any manner, the permissible use of property, density of development, previously adopted design and improvements standards and requirements or any other aspect of the development of land or provision of public improvements which remain subject to applicable zoning, subdivision and regulations of the Township, which shall be operative and remain in full force and effect without limitation with respect to all such development.
§ 135-70. As a result, here, conditional use approval must be decided first, subject to obtaining modification and/or waiver of excessively irregular lot restrictions during land development. The
fact that such a waiver has not yet been issued is not fatal to this conditional use application as
objectors contend.
149. The Millmans contend conditional use approval of Lot 2 as a rear narrow lot is
contrary to the public health, safety and welfare. Gregg Millman testified he is concerned future
development on Lot 2 will increase stormwater infiltration of his basement. Neither the Porters
nor the Millmans conducted a detailed analysis of stormwater flow, but two engineers Nagorny
and Anderson, visited the site and testified stormwater runoff travelling downslope from west to
east enters the Millman’s backyard. Engineers Fiorello and Nagorny opined that stormwater
57 controls can be designed for Lot 2 and stormwater managed on the site within Lower Merion
Township’s requirements. Engineer Anderson said he could not give an opinion without seeing details of stormwater management for Lot 2. Future design and construction details are not considerations in conditional use hearings and should be raised during the permitting and land development stages. Schatz v. New Britain Township, 596 A.2d 294 (Pa. Cmwlth. 1991).
Information showing the nature of the proposal, its size and location are all that can be required at the conditional use stage. In re Appeal of Brickstone Realty Corp., 789 A.2d 333, 339 (2001).
It should be noted the majority of stormwater runoff entering the Millman’s backyard originates on the developed portion of 318 N. Ithan Avenue, not the undeveloped portion of the backyard where Lot 2 is proposed, Anderson testified. Most stormwater from Lot 2 crossing the property line flows down the driveway onto Greenbank Road. Anderson did not know whether the
Millmans have made stormwater management improvements on their own property. He agreed the Millmans can make stormwater improvements to their own property, but did not know whether there is enough room to do so in a small area. Gregg Millman testified his property is just under a half-acre. Taken together, the testimony demonstrates stormwater management may be installed on Lot 2 and perhaps the Millman’s property as well, rebutting the Millman’s concerns about development on Lot 2 increasing stormwater infiltration of his basement
150. Lastly, the Millmans argue development of Lot 2 will not fit neighborhood aesthetics or the pattern of development in the neighborhood. They acknowledge Lot 2 is code compliant with R3 zoning, but characterize the lot size and proposed house size as small compared to other lots and houses in in the neighborhood. The flaw in their reasoning is
Greenbank Road lacks consistent house and lot sizes. Houses range from small mid-century construction to very large, new construction where older homes have been torn down. Lots also
58 range in sizes, as seen on the schematic map (Ex. A-2). Although Lot 2 will be the smallest on the block, it does not appear disproportionate among the range of lot sizes on Greenbank Road.
The proposed house will align with front yard setbacks along Greenbank Road. There is a flag lot across the street at 318 Greenbank Road and another one several parcels away fronting on
Montgomery Avenue, making narrow Lot 2 unexceptional in the neighborhood. 318 and 314
Greenbank Road have driveways less than 10-ft apart, which is closer together than Lot 2’s driveway will be to the Millman’s driveway. Wider distances between houses is less compelling evidence when there are varying side yard widths and driveway locations observable lot by lot on the neighborhood map, see Ex. M-1. Healthy, mature trees which must be cut down on Lot 2 should be replaced with compensatory plantings which will improve the current landscaping of undesirable Norway maples. Pamela D. Porter testified that she and her husband are sensitive to the manner in which the neighborhood is laid out and intend to build a new house consistent with feel of neighborhood. Dave Fiorello, a professional engineer testifying as expert in engineering of real estate development projects in Lower Merion Township, opined proposed Lot 2 will fit into neighborhood. Neighbor Frank Hawley testified it fits the character of the neighborhood with regard to original construction. Two more neighbors testified in support of the Porter’s application. The proposed subdivision and land development of Lot 2 fits with the neighborhood aesthetic and established pattern, in light of this evidence, and is not contrary to the public health safety or welfare.
151. The Millmans may object to land development plans or permits if they appear noncompliant with SALDO or building codes. As far as land use is concerned, the Porters have met the zoning requirements for conditional use approval of Lot 2.
59 152. As a result of the foregoing, the Applicant’s request for conditional use approval to create a rear lot at 318 N. Ithan Avenue is recommended to the Board of Commissioners.
IV. Order
AND NOW on this the ____ day of February 2021, the application of A. Hobart and Pamela D. Porter for conditional use approval to create a rear lot pursuant to Code §155-128 of the Zoning Code of the Township of Lower Merion is granted subject to the following conditions:
1. The Applicant shall obtain a modification and/or waiver of SALDO’s excessively irregular lot restrictions during land development, if required;
2. The Applicant shall install stormwater management on Lot 2 as required by land development approvals and other applicable Township codes or requirements, if granted;
3. The Applicant shall plant compensatory plantings to provide visual screening following removal of mature, healthy trees to permit driveway access to Lot 2 at the completion of land development, if approved.
This grant of conditional use approval is based on the documents and plans submitted in support of the application, together with testimony at the Conditional Use Hearing, all of which are specifically incorporated herein by reference thereto.
By: ______
Pamela M. Loughman, Esq. Conditional Use Hearing Officer Township of Lower Merion
60 AGENDA ITEM INFORMATION
ITEM: TENTATIVE SKETCH SUBDIVISION PLAN - 318 N. Ithan Avenue, Bryn Mawr, Ward 6, 3870.
Consider for recommendation to the Board of Commissioners approval of a Tentative Sketch Subdivision Plan. The Plan dated February 24, 2020, last revised October 15, 2020, and prepared by Momenee, Inc., shows the subdivision of 318 N. Ithan Avenue to create a rear lot, and subsequent construction of a new single- family residence with an 1,839 square foot footprint on Lot #2 fronting on Greenbank Road.
The application requires the following relief which was recommended for approval by the Planning Commission: a. Subdivision and Land Development Code Section 135-28.A. to defer the installation of sidewalks along Greenbank Road until such time as request by the Board of Commissioners
Expiration Date – 2/28/2021...... Zoning –R-3 Applicant: Hobart and Pamela Porter Applicant's Representative: James Greenfield Property Owner: Hobart and Pamela Porter
On November 2, 2020, the Planning Commission recommended approval of the plan subject to the following conditions which shall be complied with on the Preliminary Plan:
Township Engineer’s Review:
1. The Township Engineer’s review letter dated October 26, 2020 shall be incorporated by reference into these conditions of approval to the extent the same is not inconsistent with these conditions of approval or any relief or modifications granted.
Layout:
2. The applicant to investigate the feasibility of relocating the house and driveway to avoid steep slope areas and minimize disturbance to the natural features.
Architectural Elevations:
3. Architectural elevations and renderings of all sides of the proposed dwelling shall be submitted with the Preliminary Plan, including the proposed materials.
4. The mean grade of the structure shall be calculated and shown on the plan. The architectural plans shall be coordinated with and must comply with the grading proposed with this application. This shall be fully evaluated with the Preliminary Plans.
Access:
5. A walkway shall be provided leading from the building entrance on the primary front façade of Lot 2 to the
61 public right of way.
Stormwater Management:
6. The applicant shall design the grading to improve off-site stormwater runoff to 327 Greenbank Road to the greatest extent practical.
7. Erosion control measures shall be provided with the Preliminary Plan. The proposed construction access location shall be indicated. Details that conform to township standards shall be shown. Certification attesting to the completeness shall be provided on the Erosion Control Plan.
8. The location of all stormwater conveyance lines within 200’ of the property shall be shown on the plan. The size, material and structure invert elevations shall be provided.
Construction Details:
9. An as-built plan shall be submitted for both lots certifying the amount of impervious surface on each lot.
10. A fill material and topsoil stockpile location shall be provided.
Landscape Plan:
11. A landscape plan complying with the applicable sections of the Natural Features Code, Subdivision & Land Development Code Section 135-30 and conditions herein shall be prepared and sealed by a Registered Landscape Architect and submitted with the Preliminary Plan.
12. Wooded lot calculations including all viable trees to be removed and impacted by the proposed construction shall be submitted with the Preliminary Plan submission.
13. All trees in the right-of-way shall be trimmed. Dead or diseased trees shall be removed and replaced. New street trees shall be planted as required by the Shade Tree Commission.
Utilities:
14. The location of all proposed utility services shall be provided. This must be indicated on the Preliminary Plan.
Standard Conditions:
15. Curb shall be noted on the plan to be repaired/replaced at the direction of the township.
16. An as-built plan shall be submitted for Lot 2.
17. A lighting plan shall be submitted with the Preliminary Plan. The location, luminaire type, wattage, pole height and illumination patterns shall be indicated. The lighting shall be designed to reduce the off-site transmission of light, to shield the source of illumination and to prevent glare on adjacent properties.
18. The lighting plan shall be designed to comply with the applicable code in effect at the time of approval.
19. Curb shall be noted to be repaired or replaced as directed by the Township.
20. Any changes to the approved plans shall require the submission of an as-built plan prior to the issuance of
62 the Certificate of Occupancy. Building and Planning staff can waive this requirement if the changes are determined to be insignificant.
21. The applicant shall consider incorporating green technology into the project including but not limited to a green roof, solar panels, geothermal heat and air conditioning and an electric vehicle charging station. The applicant shall also consider having no natural gas connections.
22. A copy of the revised plan shall be submitted with any changes highlighted. A letter shall also be provided with the revised plan indicating how each requested revision has been addressed in the re-submission.
23. The Preliminary Plan, complying with all applicable conditions of approval, shall be filed with the Department of Building and Planning within twelve (12) months from the date of the Tentative Sketch Plan approval by the Board of Commissioners.
24. Approval of this Tentative Sketch Plan does not ensure that the developer or the owner can ultimately develop the property as shown on the plan. The proposed development’s compliance with various Township ordinances, including but not limited to the Natural Features Conservation Code shall not be determined until the applicant submits a Preliminary Plan for Township approval.
25. A revised Tentative Sketch Plan addressing conditions herein shall be submitted for Township records.
26. The owner shall make payment of fees and expenses of the Township’s professional consultants who perform services on behalf of the Township with respect to these plans and the work contemplated thereunder and will establish and maintain with the Township those escrows for the payment of such fees required by Township Code. Owner agrees that any statement from the Township for such fees which remain unpaid for a period of 30 days may be recorded against the property as a municipal lien.
27. The owner shall make payment of the Township Engineer’s inspection fees within 30 days of presentation. A penalty of 1.5% per month will be due for late payments from the date of presentation. If any shares are not paid within 60 days of presentation, the Township may elect to suspend any outstanding permits until all pending charges are settled.
28. The property owner(s) shall comply with all applicable federal, state, county, local and Lower Merion Township ordinances and laws regardless of specific mention herein.
PUBLIC COMMENT ATTACHMENTS: Description Type Issues Briefing Backup Material Township Engineer's Review Backup Material County Review Backup Material
63 3.
October 28, 2020
TO: Planning Commission Members
FROM: Adam Thomas, Planner, Department of Building & Planning
SUBJECT: Tentative Sketch Subdivision & Conditional Use Plans – 318 N. Ithan Avenue, Bryn Mawr, LD# 3870 & 3870C, Ward 6.
This application was submitted under the zoning in place prior to February 27th and is not subject to the new zoning code requirements.
Proposal The applicant and owners, Hobart and Pamela Porter, are seeking Tentative Sketch Subdivision approval for the following:
• Subdivision of the existing 43,901 square foot (1.1 acre) property into two lots. o Lot 1 is proposed to be 27,058 sq. ft. This lot is shown to include the existing two-story single-family detached dwelling with an attached garage and driveway access to Ithan Avenue. o Lot 2 is proposed to be 14,629 sq. ft. This lot is proposed to be oriented toward Greenbank Avenue. The applicant is also seeking Conditional Use approval to create a rear lot, pursuant to Zoning Code Section 155- 128. The creation of Lot 2 as a rear lot allows the owner to maintain the existing structure on Lot 1.
The proposal is illustrated on the attached five (5) sheet plan set dated February 24, 2020, last revised October 15, 2020, and prepared by Momenee, Inc.
Property Description The 43,901 sq. ft. (1.1 acre) property is located along N. Ithan Avenue in Bryn Mawr. The property is located in both the Township’s former R-3 Residence zoning district, which has a minimum lot area of 10,000 square feet and the former R-2 Residential district which has a minimum lot area of 18,000. The property is improved with a two-story single-family detached 318 N. Ithan Avenue dwelling with an attached garage and a circular driveway with access to Ithan Avenue. The parcel slopes slightly upward from Ithan Avenue and then slopes downward to the east side of the parcel and at the rear onto Greenbank Road. There are mature trees along the perimeter of the parcel, including the area to be subdivided.
Conformity with the Comprehensive Plan The Township’s 2016 Comprehensive Plan (pg. 163) provides the following Residential Land Use Vision: Zoning Districts
1
64 “To preserve the character of the neighborhoods, enhance the established housing stock and neighborhood pattern, and capitalize upon opportunities to add complementary, attractive, high quality housing that is affordable to a wide range of households at appropriate densities through infill and redevelopment.”
The proposed subdivision of the lot and construction of a residential dwelling is generally consistent with the Comprehensive Plan’s vision for residential land use.
Purpose of Tentative Sketch Plan The purpose of a Tentative Sketch Plan is to determine appropriate locations for buildings, driveways and parking lots and how such improvements can least impact a site’s natural features. It has become practice in the Township to use the Tentative Sketch Plan phase to flesh out other issues and give applicants a program to address at the Preliminary Plan phase.
Zoning The subject property is primarily located in the former R3 zoning district with a small portion of the property along Greenbank Road located within the former R2 zoning district. Under Zoning Code Section 155-8 Boundary Tolerances the less restrictive zoned portion of a lot may be extended 50’ into the lot by right. As a result of the application of this provision the standards of the R3 zoning district boundary have been applied.
The following table details the bulk, area and setback requirements for the existing and proposed conditions. The applicable zoning regulations can be found here:
R-3 Zoning District Existing Proposed Lot 1 Proposed Lot 2 Minimum Net Lot Area (sq. ft.) 10,000 43,901 27,058 14,629 Minimum Lot Width 75’ 190’* 150’ 40’* Maximum Building Area 20% 9.34% 9.34% 10.93% Minimum Front Yard 40’ 68.8’ 66.8’ 74.25’ Minimum Side Yard & 10’ min 44’ 44’ 10.6’ Aggregate Side yard 30’ agg 89.6’ 89.6’ 43’ Minimum Rear Yard 25’ 51.5’ 51.5’ 40.7’ Maximum Impervious Surface 28% 17.91% 27.93% 22.24% Maximum Building Height 35’ <35’ <35’ <35’ Parking 2 2 2 2 *Zoning Code Section 155-128.C requires rear lots to provide 20 continuous feet along the street line, and such connection to the street to maintain that width to the point at which the narrow lot reaches the lot width required by the zoning district in which the lot is located. The rear lot reaches the required 75’ width 34.25’ from the street line.
Conditional Use- Rear Lot Development As noted above, Lot 2 is a rear lot. A rear lot is defined as a narrow lot which shall have less than the required width at the street line and at the building line but which meets the minimum lot width at the point of the proposed building closest to the street and extending the full depth of the building plus 25 feet.
Creation of a rear lot is only permitted through Conditional Use approval pursuant to Zoning Code Section 155-128, which states:
The Board of Commissioners may authorize the creation of narrow lots as a conditional use subject to the following regulations: 2
65 A. The minimum lot width of the lot at the building line shall be the minimum lot width required at the street line for lots in the zoning district in which the lot is located. Minimum lot width shall be measured parallel to the street at the point of the proposed building closest to the street and shall extend the full depth of the building, plus an additional 25 feet. B. An applicant shall not be permitted to increase the number of conforming lots permitted in a subdivision through the use of narrow lots. C. Every narrow lot shall include at least 20 continuous feet along the street line, and such connection to the street shall extend at no less than that width to the point at which the narrow lot reaches the lot width required by the zoning district in which the lot is located. The area between the street line and the point at which the narrow line reaches the required lot width shall be capable of providing driveway and utility access to the lot (i.e., shall not be blocked by natural barriers, such as lakes, or slopes in excess of 25%) and shall not be excessively irregular in shape. D. In calculating the lot area of a rear lot, the area between the street line and a line drawn radial thereto at the point where the lot attains the minimum lot width required in its zoning district shall not be included in applying the requirements of this chapter, except those requirements relating to impervious surfaces. E. The Board of Commissioners shall designate which of the required yards shall be the front yard for rear lots. F. The Board of Commissioners shall find that the creation of a narrow lot or narrow lots shall be in accordance with the land use goals and requirements contained in this chapter and in Chapter 135 of the Code of the Township of Lower Merion. G. Any rear lot approved by conditional use shall connect to the adjacent sanitary sewer, when and if it is installed, even though the building may be more than 200 feet away.
To demonstrate compliance with Zoning Code Section §155-128.B. the applicant has provided a yield plan on Sheet 5 of the plan.
The initial subdivision plan submitted to staff showed a traditional rear or flag lot, with an access leg for Lot 2 extending from N. Ithan Avenue and the dwelling on Lot 2 facing the rear of the dwelling Lot 1.
Staff recommended that the applicant reorient the house toward Greenbank Road and remove the access leg to N. Ithan Avenue. Staff notes that the revised configuration requires a greater setback (34’ to meet the minimum lot width of 75’ + 40’ minimum front yard setback) but found that this increased setback was consistent with the existing neighborhood pattern and prevailing setback along Greenbank Road.
A Conditional Use Hearing has not yet been scheduled for this application.
Montgomery County Planning Commission Review The County’s review of the Subdivision Plan stated that they generally support the proposed two-lot subdivision without comment as they have not identified any significant planning issues.
Environmental Advisory Council (EAC) The proposal was presented to the EAC at their September 22, 2020 meeting. The EAC expressed concern with the removal of existing trees on the site. The EAC recommended that the applicant consider reorienting the house and repositioning the driveway to minimize disturbance to the site. 3
66
Issues
1. Layout
The plan shows the location of the house and driveway on Lot 2 disturbs and is situated in slopes exceeding twenty-five (25%) percent. Given the presence of the existing slopes and the concern expressed by the EAC about the disturbance to natural features, staff has included a condition of approval requiring the applicant investigate the feasibility of relocating the house and driveway to avoid steep slope areas and minimize disturbance to the natural features.
Staff notes that if the house is unable to be relocated a waiver of Natural Features Code Section 101-5C(2b) will be required at Preliminary Plan to disturb slopes exceeding twenty-five (25%) percent.
2. Sidewalk & Pedestrian Access
The recommendation of the Comprehensive Plan is to require pedestrian improvements with new development. Subdivision and Land Development Code Section 135-28 requires “sidewalks be provided along heavily traveled streets and at any location where the Board of Commissioners shall determine that sidewalks are necessary for public safety or convenience.”
Currently Greenbank Road does not contain a sidewalk and the subject property is not located within a Priority Area on the Prioritized Pedestrian Improvement Map of the Comprehensive Plan. Staff recommends a partial waiver of Subdivision and Land Development Code Section 135-28 to defer the installation of the sidewalk until required by the Board of Commissioners.
Staff has included a condition that the proposed walkways extend from the home’s entrance on the primary front façade to the public right of way, rather than to the driveway.
3. Action
The Planning Commission must take the following actions for this application:
1. Provide a recommendation on the Conditional Use request under Zoning Code Section 155-128 to create a rear lot 2. Provide a recommendation on Tentative Sketch Subdivision Plan 3. Provide a recommendation on partial relief from Subdivision and Land Development Code Section 135-28.A. to defer sidewalks along Greenbank Road until such time as request by the Board of Commissioners.
4
67
TOWNSHIP TOWNSHIP ENGINEER
OF 75 E. Lancaster Avenue Ardmore, PA 19003 2376 LOWER MERION Telephone: (610) 645-6200 www.lowermerion.org MONTGOMERY COUNTY
LOWM 256.34 October 26, 2020
Christopher Leswing, Director of Building and Planning Township of Lower Merion 75 East Lancaster Avenue Ardmore, PA 19003
Re: 318 N. Ithan Avenue Tentative Sketch Plan Review
Dear Mr. Leswing:
In accordance with your request, we have reviewed a set of five (5) plans prepared by Momenee, Inc dated 02-24-20, last revised 10-15-20 for the referenced submission. We offer the following comments for your consideration:
A. MAJOR ENGINEERING ISSUES
Stormwater—As the property is located within the Lower Merion Act 167 Drainage Area Release Rate District (3-14) stormwater rate control and recharge are required. Calculations shall be submitted and evaluated with the Preliminary Plans.
Steep Slopes—The house and driveway construction disturbs and is situated in slopes exceeding twenty-five (25%) percent. The house on Lot 2 is shown to be in an area of steep slopes. The feasibility of relocating the house and driveway to avoid steep slope areas shall be investigated, otherwise a waiver referencing code Section 101-5C(2b) is required.
With the resolution of the preceding major engineering issues and the remaining comments in this letter incorporated, we recommend that the Tentative Sketch Plan be approved.
B. ORDINANCE REQUIREMENTS
1. Section 121-4A(1b)1—As the property is located within the Lower Merion Act 167 Drainage Area Release Rate District, the two (2) year post development peak rate of runoff shall be controlled to the one (1) year pre-development peak rate of runoff. The five (5) year frequency storm must be controlled to the lesser of the two (2) year pre-development rate of the percentage of the pre- development rate as listed in Appendix B for the 3-14 sub-watershed district. For the ten (10) and twenty-five (25) year storm, the post-development rate shall be controlled to fifty (50%) percent of the pre-development rate. The fifty (50) and one hundred (100) year storms shall be controlled to the peak discharges which occurred prior to development in the respective storm frequencies.
68 LOWM 256.34 Page 2 October 26, 2020
2. Section 121-4B(2a)1—At a minimum, the increased volume of stormwater generated by the proposed development for the twenty-five (25) year storm shall be recharged. Meadow cover condition must be used as the base line for determining the volume. Calculations documenting this shall be submitted with the Preliminary Plans.
3. Section 121-4B(2d)2—In addition to the twenty-five (25) year recharge requirement, the calculations must demonstrate that the Re v infiltration volume requirements have been met for all impervious surface developed on the site. This shall be evaluated with the Preliminary Plan submission.
4. Section 121-4B(2d)3—Field tests such as double ring infiltrometer or hydraulic conductivity tests shall be performed at the level of the soil infiltration in order to demonstrate adequate design parameters. Complete test reports must be submitted. The location of each test must be indicated on the plan. This must be submitted with the Preliminary Plans.
5. Section 121-4B(2d)4—A minimum depth of twenty-four (24”) inches between the bottom of the proposed seepage bed and the limiting zone must be demonstrated. Soil tests shall be submitted with the Preliminary Plan as required to demonstrate compliance.
6. Section 121-4B(2d)5—The seepage bed must be demonstrated to empty the Re v volume within four (4) days. Calculations demonstrating this must be submitted with the Preliminary Plans.
7. Section 121-4B(2d)6—The water quality volume (WQ v) must be calculated and demonstrated to be sufficient for the design. This shall be evaluated with the Preliminary Plan submission.
8. Section 121-4E(2c)—The seepage beds shall be designed to empty the total design storm volume needed for peak rate control in twenty-four (24) hours or less. Calculations verifying this shall be submitted with the Preliminary Plans.
9. Section 121-6C—The limits of disturbance shall be clearly delineated on the plan. The amount of square feet of earth disturbance shall be listed. This shall be submitted with the Preliminary Plan.
10. Section 121-6D—Drainage area maps for the during construction analysis, the permanent facility analysis, and for qualification of any existing storm sewer system connections shall be provided with calculations. These shall be submitted with the Preliminary Plans.
11. Section 121-6J—A sequence of construction activities shall be submitted. Installation of a temporary basin, seepage bed, roof collection system, and connection to an existing storm sewer shall be listed. Notification of the Township Engineer shall be listed in the sequence following installation of protective barriers and prior to earth disturbance. Notification of the Township Engineer for inspection shall be listed prior to installation of the seepage bed and piping. This shall be fully evaluated with the Preliminary Plan.
12. Section 121-15—Stormwater runoff crossing to the adjacent properties during the construction phase of the project shall be managed so that the water quality/quantity does not adversely impact the adjacent properties. Diversion berms, stoned construction staging areas, and inlets/piping shall
69 LOWM 256.34 Page 3 October 26, 2020
be provided in order to ensure acceptable conditions during the construction phase. This shall be fully evaluated during the Preliminary Plan.
13. Section 135-16B(14), 121-4E(1b)—All proposed drainage patterns have not been clearly indicated on the Tentative Sketch Plans. The roof runoff connection has not been provided. Details must be fully evaluated with the Preliminary Plan.
14. Section 135-32—Concrete road control monuments shall be shown to be installed at the right-of- way at the intersection of each property line and at all changes in direction. Iron pins can be used with the concurrence of the Township Engineer. This must be provided with the Preliminary Plans.
15. Section 135-40—A Planning Module must be approved by the City of Philadelphia and the DEP prior to recording the Final Plan.
16. Section 101-4C(2a)—Areas of steep and sensitive slopes shall be delineated clearly on the plan with shading. A plan legend shall be provided.
17. Section 101-5C(2b)—The house and driveway construction disturbs and is situated in slopes exceeding twenty-five (25%) percent. A waiver to this code section is required.
18. Section 135-17B(1), 135-17B(13)—The existing structures and driveways on adjoining properties within two hundred (200’) feet of the property shall be clearly provided. The present plan does not clearly show these on the development sheets.
19. Section 155-7.5C(1)—Wooded lot calculations shall be added to the plan and must be compatible with the current code. An exact tree count for the lot shall be provided on the plan. Upon removal of twenty-five (25%) percent of existing trees having a caliper of six inches or greater, appropriate replacement trees will be required. The Township Arborist must approve the size, species, and location of any required replacement trees.
C. ENGINEERING COMMENTS
1. Erosion control measures shall be provided with the Preliminary Plans. The proposed construction access location shall be indicated. Details that conform to township standards shall be shown. Certification attesting to the completeness shall be provided on the Erosion Control Plan.
2. A Lighting Plan shall be submitted with the Preliminary Plan. The Director of Building and Planning must approve the lighting plan.
3. The location of all proposed utility services shall be provided. This must be indicated on the Preliminary Plan.
4. The location of all stormwater conveyance lines within 200’ of the property shall be shown on the plan. The size, material and structure invert elevations shall be provided.
5. A fill material and topsoil stockpile location shall be provided.
70 LOWM 256.34 Page 4 October 26, 2020
6. A Planting Plan must be approved by the Planning Department and the Township Arborist. The greening standards must be documented to be achieved in order for the amount of impervious provided on the plan to be permitted.
7. Curb shall be noted on the plan to be repaired/replaced at the direction of the township.
8. The mean grade of the structure shall be calculated and shown on the plan. The architectural plans must be coordinated with and must comply with the grading proposed with this application. This shall be fully evaluated with the Preliminary Plans.
9. Removal of existing pavement on Lot 1 is necessary to comply with the zoning impervious coverage requirement. An as-built plan must be submitted for both lots certifying the amount of impervious surface on each lot. This shall be made a condition of approval for any permit application(s).
10. A copy of the revised plan shall be submitted with any changes highlighted. A letter shall also be provided with the revised plan indicating how each requested revision has been addressed in the re- submission.
Please advise if we may be of further assistance in this matter.
Very truly yours,
Joseph A. Mastronardo, P.E. PENNONI ASSOCIATES Township Engineer
Cc: Robert E. Duncan, Assistant Township Manager Momenee, Inc.
71 MONTGOMERY COUNTY MONTGOMERY COUNTY BOARD OF COMMISSIONERS PLANNING COMMISSION MONTGOMERY COUNTY COURTHOUSE • PO BOX 311 VALERIE A. ARKOOSH, MD, MPH, CHAIR NORRISTOWN, PA 19404-0311 KENNETH E. LAWRENCE, JR., VICE CHAIR 610-278-3722 JOSEPH C. GALE, COMMISSIONER FAX: 610-278-3941• TDD: 610-631-1211 WWW.MONTCOPA.ORG
Scott France, AICP EXECUTIVE DIRECTOR
November 12, 2020
Mr. Christopher Leswing, Director of Building & Planning Building & Planning Department Township of Lower Merion 75 East Lancaster Avenue Ardmore, PA 19003
Re: MCPC #20-0063-003 Plan Name: 318 N. Ithan Avenue (2 lots/1 du on approximately 1.1 acres) Situate: N. Ithan Avenue (N); west of Greenbank Road Township of Lower Merion
Dear Mr. Leswing:
We have reviewed the above-referenced subdivision and land development plan in accordance with Section 502 of Act 247, "The Pennsylvania Municipalities Planning Code," as you requested on October 20, 2020. We forward this letter as a report of our review and recommendations.
BACKGROUND
The applicant, Hobart & Pamela Porter, propose to subdivide the existing lot into two lot,s by creating a second lot with vehicular access from Greenbank Road. The proposed subdivision is the third version, following a similar SOPI plan that was reviewed in a letter dated October 1, 2020. An earlier version of the subdivision proposed a rear lot with shared access from N. Ithan Avenue; it was reviewed in a letter dated March 20, 2020.
The existing house on Lot 1 is proposed to remain with the existing vehicular access from N. Ithan Avenue and a new single-family detached dwelling unit is proposed to be constructed on Lot 2. Additional improvements shown at this time include the removal of portions of the existing asphalt driveways and flagstone patio on Lot 1 and the construction of a new driveway to access the proposed home on Lot 2. The property is located in the township’s former R2 and R3 Residence zoning districts.
72 Mr. Christopher Leswing - 2 - November 12, 2020 Director of Building & Planning
COMPREHENSIVE PLAN COMPLIANCE
The Land Use Element of the 2016 Lower Merion Township Comprehensive Plan identifies this property as Low & Medium Density Residential. In addition, this area of the township is identified as a Suburban Residential Area in the Future Land Use Plan of the Montgomery County Comprehensive Plan, Montco 2040: A Shared Vision. Suburban Residential Areas are residential areas that often have extensive landscaping on individual properties.
RECOMMENDATION
The Montgomery County Planning Commission (MCPC) generally supports the proposed two-lot subdivision without comment as we have not identified any significant planning issues.
CONCLUSION
We wish to reiterate that the Montgomery County Planning Commission generally supports the proposed subdivision without comment.
Please note that the review comments and recommendations contained in this report are advisory to the municipality and final disposition for the approval of any proposal will be made by the municipality.
Should the governing body approve a final plat of this proposal, the applicant must present the plan to our office for seal and signature prior to recording with the Recorder of Deeds office. A paper copy bearing the municipal seal and signature of approval must be supplied for our files. Please print the assigned MCPC number, #20-0063-003, on any plans submitted for final recording.
Sincerely,
Tamar Nativ, Urban Design Planner II 610-278-3757 – [email protected]
c: Hobart & Pamela Porter, Applicant Momenee, Inc., Applicant’s Engineer Gilbert P. High, Jr., Esq., Twp. Solicitor Ernie B. McNeely, Twp. Manager Edward P. Pluciennik, P.E., Twp. Engineer Jillian Puleo-Dierks, Twp. Planner Holly Colello, Twp. Planning Technician Greg Prichard, Twp. Historic Preservation Planner
Attachment A: Reduced Copy of Applicant’s Proposed Site Plan Attachment B: Aerial Image of Sit
73 Mr. Christopher Leswing - Attachment A November 12, 2020 Director of Building & Planning
74 Mr. Christopher Leswing - Attachment B November 12, 2020 Director of Building & Planning
75