Before
THE TOBYHANNA TOWNSHIP PLANNING COMMISSION
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In Re: Regular Business Meeting
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TOBYHANNA TOWNSHIP GOVERNMENT CENTER BUILDING
State Avenue
Pocono Pines, Pennsylvania 18350
Wednesday, April 4, 2007, beginning at 7 p.m.
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PRESENT: MARK SINCAVAGE, Chairperson
JOSEPH MILLER, Vice-Chairperson
GLENN RIEKER, Secretary
ROBERT BAXTER, Board Member
TED VANDERVLIET, Board Member
ROBERT McHALE, P.E.,
Township Engineer
PATRICK ARMSTRONG, ESQUIRE, Solicitor
ALSO PRESENT: PHYLLIS HAASE, Zoning Officer
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Panko Reporting
537 Sarah Street, 2nd Floor
Stroudsburg, Pennsylvania 18360
(570) 421-3620
2
1 MR. SINCAVAGE: Call the regular
2 meeting of Tobyhanna Township Planning Commission
3 Wednesday, April 4th, to order. The first item is
4 approval of the March minutes which we received by
5 email.
6 What is the pleasure of the
7 board?
8 MR. RIEKER: I make a motion to
9 approve the minutes.
10 MR. SINCAVAGE: Do I have a
11 second?
12 MR. MILLER: I'll second that
13 motion.
14 MR. SINCAVAGE: I have a motion
15 and second. Any discussion? Any discussion from
16 the public? All those in favor please say aye.
17 MR. MILLER: Aye.
18 MR. RIEKER: Aye.
19 MR. VANDERVLIET: Abstain.
20 MR. BAXTER: Aye.
21 MR. SINCAVAGE: Public have any
22 general comments to make?
23 We'll move on to Keswick Pointe.
24 At this point I'll turn the meeting over to the
25 vice-chairman since I have a financial interest in
3
1 this.
2 MR. MILLER: Okay. Keswick
3 Pointe, Phase 1 PRD. We have our engineer's
4 letter. Bob, you want to go over that? Is there
5 anything that we need to add?
6 MR. McHALE: Actually, their
7 engineer is going to discuss some of the items that
8 were outstanding as of the writing of the letter
9 and he's going to indicate what he turned in
10 yesterday and today, and how he addresses those
11 items. And then he can cover any outstanding items
12 and the status of each of those.
13 MR. HANNIG: I'd like to
14 introduce to you gentlemen the engineer from Reilly
15 Associates who has been assigned to our project.
16 I'd like you to say hi to Casey Cawley. He's going
17 to review with you the list here.
18 MR. CASEY CAWLEY: Bob has asked
19 me to go through the comments and how we addressed
20 them. I made a list of comments that required a
21 response.
22 Starting with Comment No. 2,
23 regarding the E and S post construction stormwater
24 management plan, we've satisfied all the
25 conservation district's comments. They are going
4
1 to issue a letter hopefully tomorrow stating that
2 we've done so, and that they forwarded the post
3 construction to DEP.
4 The next comment would be
5 Comment No. 3. We've submitted our public water
6 supply permit application to DEP at the end of last
7 month. So there is really no updated status on
8 that. It's with the DEP.
9 Comment No. 10 regarding the
10 fire chief's request and plan review. We've
11 submitted all the requirements minus the last
12 requirement on the list which was for an automated
13 gate which we are trying to get further information
14 on to understand how it works, what exactly we'll
15 need to satisfy that comment.
16 MR. ARMSTRONG: What exactly was
17 that again?
18 MR. CASEY CAWLEY: The last
19 comment by the fire chief. They requested an
20 automated gate on the emergency access that would
21 respond to their emergency sirens.
22 MR. ARMSTRONG: So you're just
23 looking for clarification from them on what they
24 are going to do? But you will comply?
25 MR. CASEY CAWLEY: Yes. We've
5
1 gotten a reference from someone who installed
2 something similar and that's where we are at right
3 now.
4 MR. HANNIG: We weren't aware
5 that one existed, but I guess they may have one at
6 Locust Lake that we've been researching and
7 somebody is going to get back to us, but it
8 responds to a siren rather than get out of the
9 vehicle to open the gate. So some type of
10 electronic release that works on an audible thing,
11 much like a glass break sensor or something that
12 senses a particular signal. We never heard of it
13 before, but it sounds like we'll be happy to look
14 into it and comply. The idea is to limit the time
15 of getting out of the vehicle, opening it with a
16 key, putting the gate up. So we'll follow up.
17 That's the only item that we need to research.
18 MR. CASEY CAWLEY: The next
19 comment, No. 15, regarding the HOP plans. We've
20 submitted our traffic impact study and our driveway
21 permit. I talked to them today and we expect to
22 have some type of comment letter back by Friday,
23 Monday at the latest. So we'll -- we are moving
24 along with those two items.
25 Comment No. 18 regarding the
6
1 stormwater plan. There were a couple of changes
2 that Bob asked me to make, to address some of the
3 stormwater issues, concentration and narrative
4 issues which I sent electronically to them
5 yesterday.
6 MR. MILLER: How are they, Bob?
7 MR. McHALE: They are satisfied.
8 MR. ARMSTRONG: Which one?
9 MR. McHALE: The stormwater
10 items, No. 18.
11 MR. CASEY CAWLEY: No. 18 on the
12 list.
13 MR. ARMSTRONG: So it is
14 resolved?
15 MR. McHALE: Yes, sir.
16 MR. CASEY CAWLEY: The next
17 outstanding issue I have up here is 35, Pocono Lake
18 Preserve being added to their emergency action plan
19 for dam failure. We received that today. I
20 forwarded it to Bob McHale. Are you okay with
21 that, Bob, what is going to happen there?
22 MR. McHALE: Yes. Actually Paul
23 Frantz, who is the hydro manager for the Pocono
24 Lake Preserve, had shown a flow chart that was
25 forwarded from Casey to our attention, that shows
7
1 they would be added to the notification list. Now,
2 that won't technically be implemented to the
3 emergency action plan till the first of the year,
4 but it's one of those things that's in the process
5 and there is not going to be any construction or
6 building until after that.
7 MR. CASEY CAWLEY: Until after
8 that. They issue this at a certain --
9 MR. McHALE: Once a year they
10 turn in an emergency action plan.
11 MR. ARMSTRONG: So it's
12 resolved?
13 MR. CASEY CAWLEY: We'll receive
14 correspondence showing that we'll be on it.
15 We have an ongoing discussion
16 with Williams Transco Pipeline for encroachment on
17 their right of way through the property. I talked
18 to Mark Sachetti (phonetic) of Williams and he
19 asked us yesterday, they went out in the field last
20 Friday and they probed the line, got depths and
21 they did a load analysis on it. And he has
22 informally informed me that they didn't want us to
23 have our road on the pipe that's Pipe B. I don't
24 have a map to show you, but the B -- the middle
25 pipe, they have asked us to move 5 feet clear of
8
1 that pipe, which shouldn't be a problem. I haven't
2 actually done the analysis yet. We have -- the
3 townhome section of the project, there is an
4 emergency road that is to be used only for fire
5 trucks, things of that nature, and by the pipeline
6 themselves. So he made the statement that he would
7 like our road to be 5 feet off of that which looks
8 possible, just looking at the plan. I haven't
9 actually drawn it up or anything like that. So
10 that just should be drawn to conclusion.
11 MR. HANNIG: The way we go
12 around the townhouse and back in the next road,
13 just to get a fire lane, we are going to close both
14 of them off. They will be gated and keyed access
15 for emergency personnel and for Williams to access
16 the pipeline at that point. When we crossed A, B
17 was just on the skirting far edge of the road, so
18 just pulling it back a little bit would allow that
19 and they seem to be relatively happy when they
20 probed the depth of it. That's a 36 inch pipe. So
21 the depth was pretty significant, so when they did
22 the load, they were pretty happy with that. If we
23 can eliminate one of them for consideration, it
24 will make them happy. So we are getting movement.
25 We have to sign an agreement with them to reimburse
9
1 them for any out-of-pocket expenses. At least we
2 have dialogue. When we first started, they kind of
3 shut us down. We got warm and fuzzy and now we are
4 talking.
5 MR. CASEY CAWLEY: Those are the
6 comments that I have on the list. Actually, there
7 was one more, I'm sorry. Bob requested the well
8 head protection zone on our plans and some notes
9 that had to do with restricted use of buildings --
10 not buildings so much as tanks, things like that,
11 you can't build in the well protection zone, which
12 is a 140 foot radius around the well head. So I
13 added that to the plan and sent it to Bob. He's
14 satisfied with that.
15 MR. ARMSTRONG: Is that a number
16 on here?
17 MR. McHALE: Which item is that?
18 MR. CASEY CAWLEY: I don't have
19 the number in front of it, unfortunately. Possibly
20 is it No. 3?
21 MR. HANNIG: Three or 36, it
22 could have been.
23 MR. CASEY CAWLEY: It was No. 3,
24 Comment No. 3 to show the calculated well head
25 protection zone.
10
1 MR. McHALE: These are notes
2 that were added to the plan.
3 MR. RIEKER: I have a question
4 on No. 40. Maybe I'm just reading this as a double
5 negative. I just don't understand this one line
6 about tree conversation, maximum lot of up to 75
7 percent will be allowed for each lot for all trees
8 greater than six inches in diameter measured at the
9 trunk. So you're allowing removal -- are you
10 recommending removal of everything larger than 6
11 inches or less than 6 inches.
12 MR. HANNIG: We followed your
13 ordinance. Whatever the ordinance is relative to
14 the clearing of the lot. I think we are allowed to
15 clear up to 75 percent.
16 MR. CASEY CAWLEY: Of six inches
17 or greater.
18 MR. RIEKER: Six inches or
19 greater.
20 MR. HANNIG: I think the purpose
21 for saying it that way is anything less than that
22 really didn't count as cover, brush, if you will or
23 immature growth.
24 MR. MILLER: Bob, are you pretty
25 well satisfied with the planning stage, what's been
11
1 submitted?
2 MR. McHALE: Yes, sir. The
3 items that pertain to the basic planning of the
4 project and anything related to the major component
5 of the design related to the final plan, yes,
6 that's in compliance. The only outstanding items
7 are the outside agency permits and items that would
8 be addressed directly with the board and agreements
9 that the township solicitor would be reviewing and
10 coming to some closer.
11 MR. HANNIG: There is about four
12 or five items that I talked to the township
13 solicitor about, and got him some more paperwork
14 and he's reviewing that. But the items we
15 addressed here tonight are items that would be
16 under the purview of the planning commission. I
17 did bring an extra copy for the record of -- in
18 case the planning commission wants to see it. The
19 township asked us to extend our period of time. We
20 sent that to the supervisors and I can give you
21 that for the record.
22 MR. ARMSTRONG: Thank you.
23 I also have a letter dated
24 February 28th of 2007 from the volunteer fire
25 company. You're going to comply with all the
12
1 comments in his letter? I think there were five of
2 them.
3 MR. HANNIG: I think we are way
4 beyond that. We've had a second letter.
5 MR. McHALE: You've addressed
6 the first four, and the last item was related to
7 the gate that you mentioned earlier.
8 MR. HANNIG: Did you say
9 February?
10 MR. ARMSTRONG: February 28th.
11 Just so you're also aware that
12 there was a phasing difference between the
13 tentative approval and the final plan that was
14 submitted.
15 MR. HANNIG: Yes.
16 MR. ARMSTRONG: And you
17 understand that will be a condition, because the
18 township board of supervisors has to -- I don't
19 think there was a problem with the planning
20 commission. The township board of supervisors have
21 to look at that.
22 MR. HANNIG: We've spoken
23 unofficial to the township about that. They are
24 aware of it. We've also somewhat represented that
25 this body didn't have a problem with it. We just
13
1 shifted it because of changes we made. And they
2 understood that they would probably give us a
3 waiver for that. We weren't before them, so I
4 couldn't make an official statement, but they are
5 aware that we have a slight adjustment in the
6 phasing.
7 MR. ARMSTRONG: It sounds like
8 all the issues that are not resolved in this letter
9 of Bob McHale of March 30th, 2007, you will comply
10 with. There is no issue that you will not comply.
11 MR. HANNIG: No. Most we made a
12 statement that we'll comply or when the permits
13 become available we'll supply them to the township.
14 Now, some of those may require other minor
15 revisions, in which case, if we had a minor
16 revision, likewise, we'd copy the township on the
17 revision as to any of those bodies in an attempt to
18 secure the permit.
19 Bob, there are other issues like
20 the sewer and things like that that I met with the
21 township supervisors and they are deciding what
22 things they want to do with that and we are waiting
23 for their answer.
24 MR. MILLER: Before I ask for a
25 motion is there any public comment?
14
1 Do I hear a motion to recommend
2 to the supervisors that we approve the Final Plan
3 Phase 1, Keswick Pointe PRD?
4 MR. RIEKER: So moved.
5 MR. ARMSTRONG: Conditional
6 upon --
7 MR. RIEKER: Conditioned upon
8 the outside agencies and the permits that we don't
9 have control over.
10 MR. ARMSTRONG: Any outstanding
11 issues set forth in the --
12 MR. RIEKER: In the engineer's
13 letter.
14 I make a motion for
15 recommendation of Keswick Pointe PRD Final Plan,
16 Phase 1, as long as you follow the permits that are
17 involved with outside agencies, that we don't have
18 any control over, and the letter from the township
19 engineer dated March 30th, 2007.
20 MR. MILLER: Do I hear a second
21 to that motion?
22 MR. VANDERVLIET: Second.
23 MR. HANNIG: Could I ask for a
24 point of clarification? Could it be the engineer's
25 letter as revised. Since that letter we have added
15
1 stuff that would already be off the list.
2 MR. ARMSTRONG: I think the
3 motion was outstanding issues of the letter. If
4 you resolved them, they won't be outstanding.
5 MR. HANNIG: I stand corrected.
6 MR. MILLER: Motion and second.
7 No further comment. All in favor?
8 MR. RIEKER: Aye.
9 MR. VANDERVLIET: Aye.
10 MR. BAXTER: Aye.
11 MR. MILLER: Aye. Opposed?
12 MR. SINCAVAGE: I'll abstain.
13 Thank you, Joe.
14 Next item, Pinecrest Phase 7,
15 Final Land Development Plan.
16 MR. MARSHALL ANDERS: Good
17 evening.
18 MR. SINCAVAGE: You want to
19 start on the letter dated April 3rd, 2007? Is that
20 where you would like to start?
21 MR. EDWARD CARROLL: Yesterday's
22 letter?
23 MR. SINCAVAGE: Yesterday's
24 letter. If you want to start somewhere else.
25 MR. EDWARD CARROLL: No, no.
16
1 That's fine. I'm just going to go with -- not the
2 ones that are settled.
3 Item 2 basically says that
4 information has not been received to indicate that
5 this process has been initiated.
6 What they are talking about is
7 the submission of the conservation district. We
8 were going to submit and I wrote the checks I think
9 in December, the conservation district, but we
10 found out that in December, the DEP has changed
11 every kind of rule and regulation. They don't even
12 have their own manual done. We had to do some
13 testing. Obviously in the winter you can't do perk
14 tests. Even though it snowed a week or so ago, we
15 dug the first -- the test holes and we have now the
16 test results and except that tonight, Nate Oiler is
17 representing us tonight because Mark Gable is on
18 vacation this week. We'll submit to the
19 conservation district probably towards the end of
20 next week. So you will have -- Bob, what do they
21 call those letters? Adequacy letters or something
22 like that.
23 MR. McHALE: Letter of
24 completion would be the first one.
25 MR. EDWARD CARROLL: You'll have
17
1 that, pretty shortly.
2 Three is not a problem. Four is
3 not a problem.
4 MR. ARMSTRONG: I'm sorry. With
5 Item No. 2, you said you will be submitting that
6 next week?
7 MR. EDWARD CARROLL: Yes.
8 MR. ARMSTRONG: Okay.
9 MR. EDWARD CARROLL: Three is
10 not a problem. Four is not a problem. Five is not
11 a problem. Six I would like to ask Nate Oiler to
12 respond to these comments. And this has to do with
13 the road and all that and maybe we ought to talk
14 about, you know, what we've come up with as a final
15 resolution, that basically as we said to you last
16 month, the approximately 11,000 feet of loop road
17 will be two way with the exception of where it
18 chokes down going through wetlands. Let's for
19 instance say that the choke down is 20 feet long.
20 At each side of the 20 feet, the road will go back
21 to 26 feet wide so that people can pull off and
22 we'll do signage and all that stuff. But, Nate, do
23 you want to comment on that?
24 MR. NATE OILER: Sure. Some of
25 the specifics that Bob has raised, the first one is
18
1 about the road grades. But Mike had given me this.
2 I thought that was part of the tentative road
3 standards that were set up in the tentative
4 approval. That outlined what the grades and site
5 distance and road design standards were as part of
6 the tentative application. I think there were also
7 road profiles that were prepared to show
8 feasibility.
9 MR. McHALE: Yes. And I believe
10 that Roadway A, one of the items here, that was 14
11 percent, I think shows up on the tentative plan as
12 10 percent.
13 MR. NATE OILER: But there were
14 grades up to 14 percent in the tentative plan.
15 MR. McHALE: There is a couple
16 of them.
17 MR. NATE OILER: I think that
18 the design standards allowed up to 14 percent in
19 the original tentative plan and that's what we
20 were, as far as following, as far as design
21 standards. The reason for that is there are some
22 steep areas over there, and, again, just trying to
23 minimize some of the grading and some of the land
24 impact that reduce grading and reduce impact to the
25 existing vegetation. So that was really -- the 14
19
1 percent was the maximum set out in the tentative
2 plan approval.
3 MR. ARMSTRONG: But on the
4 tentative plan, was the road at 10 percent or 15
5 percent?
6 MR. NATE OILER: I don't know
7 specifically about roadway A. There have been some
8 changes to the alignment. If Bob has that, it says
9 it was 10 percent, I would assume that's correct,
10 but general design standards were set forth which
11 allowed up to 14 percent.
12 The tentative plan was fairly
13 conceptual. Yes, Bob, is showing me a picture of
14 roadway A on the original profile. That particular
15 location had a maximum of 10 percent grade, but I
16 think in terms of determining, there have been a
17 number of modifications to the layout. The
18 tentative plan was a conceptual layout. Design
19 standards were set up and we tried to continue to
20 follow those design standards, but there have been
21 modifications where we changed design to
22 accommodate other design criteria as we moved into
23 final plans.
24 MR. ARMSTRONG: I don't think
25 the tentative plan -- when you say conceptual, it's
20
1 not a conceptual model. A tentative plan is
2 something that final approval will be based upon.
3 What you submit as a tentative plan is what you
4 submit. I just wanted to clear that up. It's not
5 like a sketch plan. A tentative plan is a
6 tentative plan.
7 MR. NATE OILER: No, but it's a
8 set of rules in which the development must be
9 developed by. Those were outlined in the design
10 criteria. In the past, we've used some of those,
11 we've kind of relied on those design criteria as we
12 move ahead with the design of the project.
13 MR. McHALE: If roadway A had
14 the horizontal configuration similar to the
15 tentative plan, then you should be able to
16 accomplish the 10 percent, is that correct?
17 MR. NATE OILER: Well, it's
18 possible. Can I have that again. I see it had a
19 pretty good size cut to accomplish that. It's
20 showing a cut of approximately 10 feet for quite a
21 distance there, in this area here, correct? It is
22 showing a fairly good size cut. I really haven't
23 compared the plans, but it may be able to be
24 reduced at the compromise of access to the side
25 units and excavation, typically what is compromised
21
1 in reducing your grades, especially going on an up
2 slope roadway.
3 MR. EDWARD CARROLL: Could I ask
4 a question, why? And I'm assuming the answer is
5 the next paragraph. Bob, you're saying that you
6 want them all at 10 percent, even though the
7 community design standards go from 10 to 14?
8 You're saying it's because of fire?
9 MR. McHALE: The International
10 Fire Code indicates the 10 percent.
11 MR. EDWARD CARROLL: I
12 understand.
13 MR. McHALE: The AASHTO
14 indicates about 11 percent.
15 MR. EDWARD CARROLL: Right.
16 MR. McHALE: There is a couple
17 of roads on the tentative plan that show the 14
18 percent. Road A is not one of them. That's what
19 we are highlighting.
20 MR. EDWARD CARROLL: First of
21 all, our position is the International Fire Code
22 doesn't apply. It's our position it doesn't apply
23 because it was passed subsequent to us getting
24 approval. And the municipal planning code, we've
25 been trying to get Mr. Kapelsohn -- is that his
22
1 name, Kapelsohn?
2 MR. ARMSTRONG: Yes. The
3 township solicitor.
4 MR. EDWARD CARROLL: Yes, the
5 township solicitor, I'm sorry. -- to call us back,
6 because as you remember, the planning commission,
7 there was an issue of the permits ran out. Well,
8 then we sent them the new case law. The permit
9 didn't run out. Then it was the case of the fire
10 codes. We sent him that information. Then it was
11 the case of buffers. We sent him that information.
12 It's four months now.
13 MR. MARSHALL ANDERS: If I can
14 jump in.
15 MR. EDWARD CARROLL: Yes. Go
16 ahead.
17 MR. MARSHALL ANDERS: At the
18 last final plan approval, Sections 5 and 6, the
19 supervisors determined that the International Fire
20 Code, the 2003 enactment did not apply. You can't
21 change horses in the middle of a stream, especially
22 the planning commission. The planning commission
23 may make a recommendation, but they have already
24 decided. So that's the applicable law of the case
25 if you will, to what we are doing here.
23
1 MR. ARMSTRONG: I don't agree.
2 I respectfully don't agree, Mr. Anders.
3 MR. MARSHALL ANDERS: You don't
4 agree that they approved it without the -- excuse
5 me, without the imposition of the 2003 Fire Code?
6 Are you saying that that's not correct?
7 MR. ARMSTRONG: What I'm saying
8 is there are a number of issues with respect to
9 this International Fire Code issue. Number 1 -- I
10 don't want to get into a legal argument here.
11 MR. MARSHALL ANDERS: I don't
12 either. I don't think you have the authority to
13 overrule the supervisors.
14 MR. ARMSTRONG: Well, there is
15 also a letter out there that I have a copy, dated
16 March 1st, from the township solicitor, indicating
17 that the International Fire Code does apply.
18 MR. MARSHALL ANDERS: That was
19 before I responded to and sent him the information,
20 which he apparently didn't have, such as the
21 minutes from the last final plan approval for
22 Sections 5 and 6, where the supervisors
23 specifically determined it did not apply and some
24 case law that said you can't change the game in the
25 middle of the stream.
24
1 MR. ARMSTRONG: I don't know if
2 there is any case law out there that says that
3 specifically about the IFC.
4 MR. MARSHALL ANDERS: It doesn't
5 have to say that.
6 MR. ARMSTRONG: The
7 International Fire Code is different than a lot of
8 case law out there with respect to zoning
9 ordinances and SALDO ordinances. It's a
10 significantly different type of code.
11 MR. MARSHALL ANDERS: Yes.
12 However, SALDO says it doesn't apply just to
13 subdivision and doesn't apply just to zoning. It
14 applies to any applicable ordinance in the township
15 and that is the case law. It doesn't say only
16 subdivision changes, only zoning changes. It
17 applies to anything that's going to affect your
18 development of the property. This affects our
19 development of the property. With all due respect
20 to you, at that meeting, the township planning
21 commission attorney was there, the township
22 solicitor was there, so they had two attorneys
23 there agreeing with our position.
24 MR. ARMSTRONG: When was this?
25 MR. MARSHALL ANDERS: Back in at
25
1 the last submission date. I gave you that
2 information at the last time I was here and you
3 were going to go back and check those minutes.
4 Apparently you haven't gone back and checked the
5 minutes, which I asked you to do.
6 MR. ARMSTRONG: I have seen the
7 minutes and I think I understand what you're
8 talking about, but there are a lot of subsequent
9 issues in this case that are involved here. Number
10 one is, there are a number of extensions, to my
11 understanding, I mean, we are getting into this a
12 little late. The planning commission -- like I
13 said, this is just a comment thing. A lot of your
14 issues I think you're going to need to take up with
15 the board of supervisors.
16 MR. MARSHALL ANDERS: I think we
17 should leave here and get to the supervisors.
18 MR. ARMSTRONG: Let me continue,
19 please.
20 There were a number of
21 extensions granted to your client. Those
22 extensions may have extended the amount of time
23 that he could submit his final plan. But I don't
24 think they specifically said that it extended his
25 protection under certain things. There is a number
26
1 of issues that come into play.
2 MR. MARSHALL ANDERS: That's not
3 an issue because if you're not extending my
4 protection, you better tell me. If you're
5 extending it, I have a right to rely on dealing
6 with the same laws that I was before. You can't --
7 it's not my burden to say that do I come under this
8 new ordinance or not. That's the township. The
9 township thinks the extension is conditioned upon
10 our meeting these ordinances. No. The township
11 has to say that.
12 MR. ARMSTRONG: Okay. Sitting
13 here tonight, we are operating under the impression
14 that the International Fire Code applies based
15 upon, number one, the township solicitor's letter
16 of March 1st; number two, the fact that the
17 International Fire Code is distinguishable from
18 SALDO ordinances as well as zoning ordinances.
19 MR. MARSHALL ANDERS: If it
20 affects my road, how is it different?
21 MR. ARMSTRONG: It's not a
22 SALDO.
23 MR. MARSHALL ANDERS: I don't
24 care. The Municipal Planning Code does not say
25 SALDO zoning. It says any ordinances. If you're
27
1 telling me that an ordinance affects what I can do
2 as far as the road layout, how I'm going to do
3 that, I'm protected from that because I have, as
4 you were pointing out to Mr. Oiler, you have the
5 footprint. The footprint shows certain things and
6 gives us certain guidelines in which to operate
7 under. We are trying to operate under these
8 guidelines. One of the guidelines is that that
9 fire code is not applicable to us. I mean, you're
10 sitting here saying this, but the supervisors have
11 already decided that, based upon legal advice. So
12 how can you sit here and say, well, now we are
13 going to overrule the supervisors.
14 MR. ARMSTRONG: We are not
15 overruling the supervisors. Okay? The planning
16 commission has no authority to overrule the
17 supervisors. You haven't responded to the fact
18 that there is a letter out there from the board of
19 supervisors' solicitor, dated March 1st, saying
20 that the International Fire Code applies in this
21 situation.
22 MR. MARSHALL ANDERS: That was
23 before I sent Mr. Kapelsohn --
24 MR. SINCAVAGE: Do you have a
25 letter from the solicitor?
28
1 MR. MARSHALL ANDERS: I have a
2 letter that he disagrees with that point, however,
3 that was before I responded.
4 MR. SINCAVAGE: Do you have a
5 response to your further comments?
6 MR. MARSHALL ANDERS: No.
7 MR. SINCAVAGE: Well then, we
8 cannot address the position of the board of
9 supervisors on the International Fire Code. We are
10 continuing to work under the assumption, as Patrick
11 said, that the International Fire Code applies. We
12 can move that on to the board of supervisors.
13 That's an issue for the board of supervisors --
14 MR. MARSHALL ANDERS: That's
15 fine.
16 MR. SINCAVAGE: -- whether or
17 not the International Fire Code applies. This
18 discussion is really irrelevant.
19 MR. ARMSTRONG: That's what I
20 want to get to, Mr. Anders. We don't want to get
21 into a legal argument here.
22 MR. SINCAVAGE: That's at the
23 board of supervisors.
24 MR. EDWARD CARROLL: That's all
25 well and good, but this is the fourth month now,
29
1 and Mr. Armstrong says he's new to it --
2 MR. ARMSTRONG: Fourth month of
3 what?
4 MR. EDWARD CARROLL: Since we
5 submitted. We submitted December 1st.
6 MR. McHALE: All the information
7 that's been submitted over the course of the four
8 months has been kind of transitional. It's been in
9 piecemeal form. We still don't have a traffic
10 study. We still don't have infiltration testing.
11 We still don't have all the pieces to this final
12 plan.
13 MR. ARMSTRONG: There are a
14 number of outstanding issues, Mr. Carroll, as well
15 as the fact that your revised plans were just
16 received both from the township on March 13th, I
17 believe, of 2007. Is that right?
18 MR. EDWARD CARROLL: No, that's
19 not, so.
20 MR. SINCAVAGE: When were the
21 revised plans received by the township?
22 MR. McHALE: The 14th. They
23 came in March 14th.
24 MR. EDWARD CARROLL: Okay. All
25 right.
30
1 MR. ARMSTRONG: Between your
2 December 1st submission date, there were no other
3 revised plans between that and March 14th, right?
4 MR. McHALE: There were pieces
5 of information that came in. Some drainage maps
6 came in one time; then there would be
7 predevelopment calculations come in another; the
8 water flow modeling comes in at another time. All
9 these items are kind of just straggling in, if you
10 will.
11 MR. EDWARD CARROLL:
12 Mr. Armstrong, we submitted December 1st of last
13 year. Okay? Nothing was done with our plans. No
14 review, no anything, and we came to the first
15 meeting of the planning commission in January.
16 When we came, you said to me you have a problem.
17 Your permits have expired. We received a copy that
18 night, whatever the meeting date was in January, of
19 a letter between Mr. McHale and the township
20 solicitor dated July 15th of the previous year.
21 Okay?
22 MR. ARMSTRONG: Mr. Carroll,
23 we've gone through this. I don't think we need to
24 go through this again.
25 MR. EDWARD CARROLL: I want to
31
1 put this in perspective when you're saying there
2 are a lot of outstanding issues. The only
3 outstanding issues are the traffic study which you
4 will get in two weeks and the submission to the
5 conservation district, which you will get in one
6 week. But the other issue, if you proceed to
7 review underneath the International Fire Code and
8 buffer zones and all of this review process -- I
9 got a letter this afternoon -- I mean we have to
10 submit three weeks early, but I got a letter this
11 afternoon at a quarter of 5 from Guardian,
12 something about the fire code again.
13 There is case law, with all due
14 respect to the township solicitor, we've submitted
15 it, the Hakem (phonetic) case. It says
16 municipalities have no power, when reviewing plans
17 submitted for final approval, either to impose new
18 conditions or to amend conditions of tentative
19 approval so as to cast additional burdens on a
20 developer.
21 MR. ARMSTRONG: I'm actually
22 familiar with that case. That is speaking to a
23 stormwater management ordinance, not the
24 International Fire Code.
25 MR. MARSHALL ANDERS: As you
32
1 said, that's an issue we have to address with the
2 supervisors.
3 MR. EDWARD CARROLL: The point
4 I'm trying to make, Mr. Armstrong is, if we are
5 going to sit here, and we don't want to take all
6 your time, but if we are going to maintain the
7 point that we don't come under the fire code and
8 the buffers don't apply and whatever, and you
9 maintain the point we are, we will be stuck here ad
10 infinitum until you push us off into the
11 supervisors where all these issues have to be
12 settled. Now, we have made every attempt to
13 contact the township solicitor and we have sent him
14 transcripts, we have sent him all kinds of case law
15 and I know--
16 MR. ARMSTRONG: I don't want to
17 get into a discussion about the township solicitor
18 hear. You are going to have to take that up with
19 the board of supervisors.
20 MR. EDWARD CARROLL: Yeah, but
21 how do I get to the board of supervisors?
22 MR. MARSHALL ANDERS: I think
23 there is a couple of things, if I can try to get
24 this off dead center. We have two issues which the
25 board of supervisors have to address. The
33
1 International Fire Code and the buffers issue, the
2 50 foot issue, because that's not contained in any
3 condition of approval.
4 MR. ARMSTRONG: What is it?
5 MR. MARSHALL ANDERS: Your
6 engineer is saying we have to have a 50 foot buffer
7 between --
8 MR. ARMSTRONG: No, I think
9 that's in the tentative approval.
10 MR. MARSHALL ANDERS: No, it's
11 not.
12 MR. EDWARD CARROLL: The wetland
13 buffer he's talking about.
14 MR. McHALE: The engineer didn't
15 say that you have to have a 50 foot buffer. The
16 engineer stated what was in the different
17 documents.
18 MR. MARSHALL ANDERS: But you
19 didn't state what was in the conditions. That's
20 the point.
21 MR. EDWARD CARROLL: Yes, he
22 stated the conditions.
23 MR. McHALE: And I also stated
24 what was on the tentative plan, as I had seen and
25 best scaled it, and if I'm incorrect in that, Mr.
34
1 Carroll --
2 MR. EDWARD CARROLL: You're
3 close.
4 MR. McHALE: I tried to find the
5 closest point from a proposed residential unit on
6 the tentative plan and the wetlands area, and it's
7 about 20 feet, give or take. That's what was
8 shown. As far as sorting through the legality of
9 which piece goes, that's out of my realm.
10 MR. EDWARD CARROLL: And that's
11 the issue. How do we -- we've got two -- take away
12 the disagreement for a minute, the items that we
13 are in disagreement on.
14 MR. ARMSTRONG: What are we in
15 disagreement on? The International Fire Code is
16 one and the 50 foot setback --
17 MR. EDWARD CARROLL: The
18 wetlands buffer deal, yes.
19 MR. ARMSTRONG: Other than that,
20 you're going to comply with everything in this
21 letter?
22 MR. EDWARD CARROLL: Exactly.
23 MR. ARMSTRONG: Including the
24 comments on the road as well as the community wide
25 standards for the road. There are a number of
35
1 issues to my understanding -- there is Stormwater
2 Management Act issues, I believe.
3 MR. EDWARD CARROLL: Yeah, but
4 it's not -- see the stormwater issue is an outside
5 agency issue. Mr. McHale can explain to you, the
6 whole DEP is turned upside down. It could take --
7 how long? A year?
8 MR. NATE OILER: It could.
9 MR. EDWARD CARROLL: A year,
10 from the time we submit to the conservation
11 district, which is going to be next week, till
12 anybody figures out what is going on with DEP. So
13 what I'm saying is, if we stay here a year, what
14 are we doing?
15 MR. ARMSTRONG: Here's what I
16 think we should do. Obviously you're not going to
17 agree to comply to No. 6, standing here tonight, is
18 that right? It's not your position that you will
19 comply with that?
20 MR. EDWARD CARROLL: No, we
21 can't comply.
22 MR. ARMSTRONG: You don't agree
23 with any of the conditions in No. 6.
24 MR. MARSHALL ANDERS: Correct.
25 MR. ARMSTRONG: Okay. Then
36
1 let's move on to No. 7. Let's see what you will
2 comply with in this letter. And at the end of the
3 day, if you're not willing to grant the township
4 another -- because we are coming -- you did revise
5 your plan. So we are coming up on -- the township
6 needs to make some action in the next month or so.
7 If you're not willing to grant us another extension
8 and if you want to make it a certain date or not,
9 that's up to you. If you don't want to grant it,
10 that's up to you, but let's go through this letter
11 right now. Obviously, you're saying that you are
12 you are not willing to comply with Item No. 6. Is
13 that correct?
14 MR. EDWARD CARROLL: That's
15 correct.
16 MR. McHALE: All right. Let's
17 move on to Item No. 7. And I apologize, I'm
18 starting to loose my voice today.
19 MR. EDWARD CARROLL: It's not a
20 problem.
21 Seven is completed. Eight is
22 not a problem. Nine --
23 MR. ARMSTRONG: When you say not
24 a problem, you're going to comply?
25 MR. EDWARD CARROLL: Yes, but it
37
1 says no additional design documentation --
2 MR. ARMSTRONG: You're right. I
3 didn't see that.
4 MR. EDWARD CARROLL: Nine we
5 will comply with.
6 MR. NATE OILER: Supervisors'
7 issue is nine.
8 MR. EDWARD CARROLL: It's an
9 escrow agreement. It's not germane to here.
10 Ten we are not going to comply.
11 MR. MARSHALL ANDERS: That's the
12 International Fire Code.
13 MR. ARMSTRONG: That is again
14 the International Fire Code issue.
15 MR. EDWARD CARROLL: That's the
16 issue of the fire code. Now, when I say we are not
17 going to comply, I can mark fire hydrants with a
18 pressure thing and all that. I mean, look, we'll
19 comply where we can. Here's the problem with the
20 fire code. Once we draft down to save those
21 wetlands, even though we go back to 26 feet, it's a
22 violation of the fire code. So if I say I'm going
23 to comply with the fire code, it's over. That's my
24 issue.
25 MR. McHALE: My understanding
38
1 was that the minimum road width for this type of
2 use according to Guardian was 20 feet. Is that not
3 what their letter says?
4 MR. EDWARD CARROLL: Yes.
5 MR. McHALE: I think for Phase
6 7, if I'm not mistaken, those neck-down portions
7 are showing some 19 feet, 18 feet portions, but
8 they have shoulder also. So the paved cartway
9 quite possibly could make that 20 feet.
10 MR. EDWARD CARROLL: Yes.
11 MR. McHALE: If it can make it
12 under Phase 7, then we should do that.
13 MR. EDWARD CARROLL: I have no
14 issue with that. I have the issue --
15 MR. ARMSTRONG: For the
16 technically disinclined, could you --
17 MR. EDWARD CARROLL: What he's
18 saying is, my compliance will be the maximum that
19 it will be. But if I get into a situation where
20 the wetlands can only be 19 feet and this Guardian
21 guy says it's got to be 20 or you're disapproved,
22 silliness.
23 MR. McHALE: If I'm
24 understanding with the International Fire Code is
25 that unless there is some justification in written
39
1 form that says here's why we cannot, it's totally
2 impractical, cannot comply, and I think you all
3 alluded to some verbal conversation with the corp
4 of engineers that they stated they would not grant
5 you something.
6 MR. EDWARD CARROLL: That's
7 right.
8 MR. McHALE: We don't have
9 anything but a verbal conversation that you're
10 indicating to us. I think if they had something
11 that came from the corp of engineers that said they
12 will not allow any impact to wetlands through these
13 areas and you cannot make the 20 feet, you can only
14 make 19, that's something they would be able to
15 consider then. But at this point, they have
16 nothing to go on. I'm not saying you get the
17 approval. I'm just saying that would be
18 something --
19 MR. EDWARD CARROLL: Exactly the
20 problem six years later, and I firmly believe,
21 because the fire code was adopted after our
22 approval, and because Section 507 of the MPC
23 clearly says that you cannot change any kind of
24 ordinance, whether it be zoning or subdivision or
25 any other governing authority, and that the person
40
1 who has tentative approval is entitled to final
2 approval.
3 MR. ARMSTRONG: Section 507,
4 that doesn't apply to PRD's.
5 MR. EDWARD CARROLL: No, but
6 it's the same as Article 7 that does apply to
7 PRD's.
8 MR. MARSHALL ANDERS: We are
9 beating a dead horse here. Whether he quoted the
10 right section or wrong section, it's still --
11 MR. EDWARD CARROLL: It's the
12 same deal. So from our point of view, I'm not
13 trying to be argumentative, but I'm trying to be
14 protective of our position because it's the only
15 sane thing to do.
16 MR. ARMSTRONG: Okay. Item No.
17 10, so you're saying you would agree?
18 MR. EDWARD CARROLL: No, I'm
19 saying I don't agree to 10.
20 MR. MARSHALL ANDERS: We are not
21 agreeing --
22 MR. ARMSTRONG: The marking of
23 fire hydrants?
24 MR. MARSHALL ANDERS: No. As a
25 compromise with the supervisors we may agree to do
41
1 something.
2 MR. SINCAVAGE: You're not
3 complying with Item 10. Move on to 11.
4 MR. EDWARD CARROLL: Right.
5 There is nobody affected by egress and never has
6 been in 25 years, but if there was, we would do
7 whatever the township solicitor felt reasonable.
8 So we are in agreement.
9 MR. MARSHALL ANDERS: Once you
10 file a map, anybody in the overall project has a
11 right to use the roads in that subdivision.
12 MR. ARMSTRONG: So No. 11 you
13 will comply?
14 MR. EDWARD CARROLL: Yes. We'll
15 comply. No. 12 we'll comply. Thirteen is
16 resolved. Fourteen is resolved. Fifteen and 16
17 has to do with the traffic study. The work has all
18 been done. Peter Terry is just putting it
19 together. It will be submitted within 10 days, two
20 weeks.
21 MR. SINCAVAGE: Did the
22 presubmission conference occur?
23 MR. EDWARD CARROLL: No. They
24 wouldn't do a presubmission conference, but they
25 did -- what did Bob say? However, PennDOT was
42
1 contacted and direction provided regarding proposed
2 what we ought to do.
3 MR. SINCAVAGE: We are okay with
4 that, Bob?
5 MR. McHALE: Yes sir.
6 MR. EDWARD CARROLL: Seventeen
7 doesn't apply. Eighteen is all of which has to be
8 worked out with the DEP. We have to go to
9 Harrisburg to find out what they want.
10 MR. McHALE: This is part of
11 things that have to be worked out with this plan.
12 MR. EDWARD CARROLL: Through the
13 conservation district, that's right.
14 MR. McHALE: No, sir.
15 MR. EDWARD CARROLL: No?
16 MR. McHALE: No, sir. This is
17 part of the Stormwater Act 167 that's been adopted
18 in the township. It's the current stormwater
19 ordinance.
20 There is a concern, and I just
21 want to bring this out for Nate to look into, Item
22 No. 5, under the pervious pavement.
23 MR. EDWARD CARROLL: I agreed to
24 that already. You're right.
25 MR. McHALE: I just want to make
43
1 sure it works properly.
2 MR. EDWARD CARROLL: You're
3 right. I think we are trying to do pervious
4 pavement. We are trying to do garden things at the
5 end of cul-de-sacs. We are trying to do stuff off
6 the roof. We are trying to do every kind of
7 mitigation that you can think of. Obviously, if
8 you put pervious pavement on a hill, what's going
9 to happen is the water will go through and wash the
10 base out and you'll have to build a new road. But
11 Bob makes a good point there. We are in agreement
12 with that.
13 MR. SINCAVAGE: Okay, but Item
14 18, these are township issues.
15 MR. McHALE: These are
16 stormwater issues that are related to the township,
17 yes.
18 MR. MARSHALL ANDERS: And you're
19 also referring to DEP in here and the conservation
20 district.
21 MR. McHALE: Yes, there is a
22 couple items that refer to them, yes, as far as
23 approval.
24 MR. MARSHALL ANDERS: So we have
25 to go to them to get approval before we are in
44
1 compliance.
2 MR. ARMSTRONG: Specific
3 conditions.
4 MR. McHALE: Those approvals are
5 part of the drainage plan which is part of Chapter
6 124.
7 MR. EDWARD CARROLL: Are we
8 subject to the new Marshall -- are we subject to
9 the new 167 Act?
10 MR. McHALE: State's current
11 ordinance in the tentative approval.
12 MR. EDWARD CARROLL: State
13 ordinance? I'm sorry. Maybe I got the number
14 wrong.
15 MR. McHALE: 167 is a state --
16 MR. SINCAVAGE: Not under the
17 new 167. That only applies to the Marshalls Creek/
18 Brodhead, but the 167 for Tobyhanna, which you're
19 in, that's been in place for years.
20 MR. EDWARD CARROLL: Okay.
21 MR. SINCAVAGE: Not the new one.
22 That's only a small portion.
23 MR. EDWARD CARROLL: They change
24 the stuff so fast.
25 MR. McHALE: The previous final
45
1 plans were submitted showing compliance with that.
2 MR. NATE OILER: We are going
3 through that and attempting to meet those. The DEP
4 standards will have us meet most of those
5 requirements as well, so.
6 MR. EDWARD CARROLL: That's the
7 issue. Once you figure out what is going to happen
8 with DEP, all of this regarding the township will
9 fall into place.
10 MR. McHALE: That's not fully
11 correct. It takes care of a portion, like maybe
12 the two-year storm, but anything beyond that is
13 governed by the stormwater ordinance, not DEP.
14 MR. SINCAVAGE: You need your
15 engineer to go through it.
16 MR. NATE OILER: To go through
17 some comments here, one is a drafting correction.
18 Infiltration, we talked about that. Detention
19 basin details are some details that need to be
20 straightened out. We certainly agree to that.
21 Construction sequence and scheduling, that will --
22 that's part of DEP. That does need to be clear.
23 We talked about the pervious pavement in five.
24 He's agreed to that. I think 6 would be summarized
25 as looking for additional details, clarifications
46
1 and calculations, Bob.
2 MR. McHALE: Mapping for
3 contributing areas for swales. Curve number
4 calculations there was issues with.
5 MR. NATE OILER: We would agree
6 to those.
7 Seven is an agency, E and S Plan
8 and DEP. Legend and notes, legend, that's drafting
9 revisions. Limits of pervious pavement. We agree
10 to look at those. Ten is horizontal vertical
11 profiles on open channel swales.
12 MR. McHALE: You've shown those
13 on the drawings and provided information. But
14 there is an item there for vertical profiles. So
15 you can submit a written request to waive that
16 item.
17 MR. NATE OILER: I think that
18 would be considered a reasonable request. If there
19 is a grading plan to show --
20 MR. McHALE: The grading plan.
21 MR. ARMSTRONG: You're planning
22 on providing a written request?
23 MR. NATE OILER: Submit a
24 written request to waive the vertical profile
25 requirements for open channel swales, since the
47
1 plan has been provided.
2 Easements for the basins. What
3 was the township solicitor looking for information
4 there? Stormwater -- provide ingress to the public
5 right of way.
6 MR. McHALE: If there is some
7 documentation that provides all of that in lieu of
8 the 15 foot easement, it's already in place, then
9 that's something that can be considered, but if
10 not, then the 15 foot easement should be provided.
11 MR. NATE OILER: Okay. Twelve
12 is a statement about revisions of the plan.
13 Thirteen, E and S plan, again,
14 time schedules. That would be addressed.
15 Operation maintenance plan, we'll provide that.
16 Calculations, functions, criteria, stormwater
17 (inaudible) measures must be shown. We'll do that
18 as well.
19 MR. ARMSTRONG: When you say No.
20 12, you will comply?
21 MR. EDWARD CARROLL: Yes. Well,
22 basically we'll comply to 18.
23 MR. SINCAVAGE: Okay. Nineteen,
24 done. Twenty?
25 MR. EDWARD CARROLL: Nineteen is
48
1 all right. Twenty already covered. Let me see
2 where it is.
3 MR. MARSHALL ANDERS: Five is
4 covered too.
5 MR. EDWARD CARROLL: That's the
6 Aqua. Five has been resolved.
7 MR. McHALE: Excuse me. Could I
8 ask a question? Are you all planning to install
9 the water lines?
10 MR. EDWARD CARROLL: Yes.
11 MR. McHALE: Yourselves?
12 MR. EDWARD CARROLL: Yes.
13 MR. McHALE: Then turn those
14 over to Aqua?
15 MR. MARSHALL ANDERS: Yes.
16 MR. McHALE: Are you planning to
17 do everything that's shown on this particular plan?
18 MR. EDWARD CARROLL: Yes.
19 MR. McHALE: Nate, if you could
20 clarify to make sure.
21 MR. EDWARD CARROLL: That's 23,
22 right?
23 MR. McHALE: Because as part of
24 that phasing thing, Mike had indicated that the
25 roadway network that you're showing on the final
49
1 plan of Phase 7 will not be constructed in full.
2 That it would only go up to the limitations for the
3 most part of Phase 7. So if that is the case, we
4 need a turn-around, temporary turn-around area at
5 the end of those where you're going to stop
6 construction. And you need to show, because the
7 final plans that leave the township that everybody
8 finally agrees on and signed off on are the plans
9 that go to construction, that's the kind of detail
10 we need.
11 MR. EDWARD CARROLL: Okay.
12 Where were we?
13 MR. SINCAVAGE: Twenty-one.
14 MR. MARSHALL ANDERS: Twenty-one
15 is the same as 15 and 16 which has to do with the
16 traffic study which will be in in 10 days, two
17 weeks.
18 Twenty-two we are complying.
19 Twenty-three refers to four and five above again.
20 Four and five: Five has been resolved. This has
21 to do with the utilities.
22 MR. McHALE: Where are we at?
23 MR. SINCAVAGE: 23.
24 MR. EDWARD CARROLL: 23. Yes.
25 And I have just stated to Mr. McHale that we are
50
1 going to do the construction and that that was that
2 discussion.
3 Twenty-four and 29 we are going
4 to comply. And 30 and 31 has been provided. We
5 will provide copies of all the permits to the
6 township when we get them, conservation district
7 and all. You don't need labor and industry and
8 stuff like that, but we'll provide those copies.
9 The issue of 33 has been resolved.
10 Community wide standards we
11 talked about before. Again, I don't know how to --
12 MR. McHALE: We need some ADT's
13 projected for these roads because according to past
14 traffic studies, Pinecrest Drive would be
15 considered a collector. Pinecrest Drive being
16 considered a collector, there is community wide
17 standards that were established that show the
18 minimum roadway width with shoulders that would be
19 supplied for that particular roadway. So any of
20 these other roads that are either minor roads -- I
21 think Lake Shore, what ADT is that? Is that going
22 to be a collector? Is that going to be a minor?
23 MR. EDWARD CARROLL: We'll
24 comply with that. Obviously No. 2 talks about the
25 fire code. We are stating right now we are not
51
1 going to comply with. We'll settle it at the
2 supervisors.
3 Wetland setbacks, we are not
4 going to comply.
5 MR. ARMSTRONG: You're not going
6 to comply with the wetlands, the whole wetlands
7 section, the whole wetlands setback section?
8 MR. MARSHALL ANDERS: No, we'll
9 comply with some of it.
10 Number 4 -- that's what we are
11 saying. The approval, the tentative approval was
12 subject to resolution of all issues between the
13 applicant and the --
14 MR. EDWARD CARROLL: See this
15 isn't a whole wetlands section. Mr. McHale is just
16 restating the history.
17 MR. ARMSTRONG: When I say
18 wetlands section, I'm referring to wetlands section
19 in the --
20 MR. EDWARD CARROLL: In the
21 conditions. We are going to comply with condition
22 8.
23 MR. ARMSTRONG: -- in this
24 letter. When I said you're not going to comply
25 with any of the wetland standards, I meant the
52
1 comments in this April 3rd, 2007 letter.
2 MR. EDWARD CARROLL: These
3 comments, they are not a compliance thing. They
4 are historical. It says at the bottom, the
5 township solicitor is reviewing the wetlands
6 setback issue. It's not --
7 MR. MARSHALL ANDERS: We are not
8 going to say we are not going to comply with all of
9 them. We are going to comply with the ones that
10 are applicable.
11 MR. ARMSTRONG: But you're not
12 going to comply with the 50 foot setback?
13 MR. MARSHALL ANDERS: Correct.
14 MR. EDWARD CARROLL: Which is
15 Item 7 in that wetlands section.
16 Our position is it's not a
17 condition.
18 MR. ARMSTRONG: It is part of
19 the tentative approval, of the finding facts and
20 conclusion of law.
21 MR. MARSHALL ANDERS: You have a
22 finding of facts and you have an order. The order
23 controls, not the finding of facts.
24 MR. ARMSTRONG: It's a tentative
25 approval document.
53
1 MR. EDWARD CARROLL: The only
2 section of the tentative approval document that I
3 have to reply to are the conditions.
4 MR. ARMSTRONG: I think some of
5 the setback distances differ between the tentative
6 plan as compared to the final plan as well.
7 MR. McHALE: We were discussing
8 that earlier, that on the tentative plan it shows
9 some housing units closer than 50 feet.
10 MR. EDWARD CARROLL: There is no
11 law that requires a setback from -- as of today,
12 from the wetlands. In 1991 when this started,
13 there was discussion of that, but it's never been
14 adopted. That's where all this came from.
15 MR. McHALE: Just from a
16 practical stand point, depending on however this
17 issue gets resolved, as far as should there be and
18 how much of a setback and that type of thing, I
19 mean, if you look at your plans, the footprint of
20 not just the envelope of the box around the
21 residential units, but the corners of the
22 residential units themselves are so close to the
23 wetlands that when someone is out there with a
24 backhoe physically digging, you know, a footer for
25 this structure, it's not practical that they could
54
1 not get into the wetlands. So, therefore, you need
2 to make sure and shift those. So from a practical
3 stand point you're not showing us that you're going
4 to be in violation.
5 MR. EDWARD CARROLL: We agree
6 with that. And if you recall, all of these houses
7 are footprints subject to movement in the field,
8 obviously, and we have to provide an as-built of
9 where they really are.
10 MR. McHALE: But we would rather
11 not see anything on the drawing again.
12 MR. MARSHALL ANDERS: We agree
13 with that.
14 MR. NATE OILER: We agree that
15 both the 50 foot --
16 MR. McHALE: There is adequate
17 room on the drawing to shift these things.
18 MR. EDWARD CARROLL: Which we
19 will do.
20 MR. NATE OILER: We agree with
21 that, the 50-foot buffer as well as looking at
22 those close to the wetlands.
23 MR. McHALE: The perimeter
24 buffer.
25 MR. EDWARD CARROLL: That's
55
1 correct.
2 MR. SINCAVAGE: I'd like to
3 clarify something, Mr. Carroll. In No. 7, you
4 say -- I guess you write a letter dated August 16,
5 2003, "I did not agree at the public hearing to a
6 50 foot setback".
7 MR. EDWARD CARROLL: Yes.
8 MR. SINCAVAGE: But then in a
9 letter, there is correspondence from the law office
10 of Thomas Dirvonas --
11 MR. EDWARD CARROLL: That's
12 correct.
13 MR. SINCAVAGE: Was he the
14 township planning commission at the time?
15 MR. EDWARD CARROLL: That's
16 right.
17 MR. SINCAVAGE: Just wanted to
18 clarify that.
19 MR. ARMSTRONG: In his
20 responding letter it seemed like he indicated
21 that --
22 MR. EDWARD CARROLL: He
23 recommended not to change that, but subsequent to
24 that the supervisors did not take his
25 recommendation.
56
1 MR. ARMSTRONG: Well, if you
2 disagreed with anything in that tentative approval,
3 you needed to take action.
4 MR. EDWARD CARROLL: No, no.
5 It wasn't a disagreement of a
6 condition in the tentative approval. It was a
7 comment.
8 MR. ARMSTRONG: Your letter,
9 according to this, is saying that you don't agree
10 with the public -- the 50 foot setback, referring
11 to the tentative approval.
12 MR. EDWARD CARROLL: That's
13 correct.
14 MR. MARSHALL ANDERS: But it
15 wasn't a condition of the tentative approval.
16 MR. ARMSTRONG: It was in the
17 tentative approval finding of facts and conclusion
18 of law.
19 MR. MARSHALL ANDERS: It doesn't
20 matter.
21 MR. EDWARD CARROLL: It wasn't
22 in the orders of the supervisors. See this letter
23 here? It doesn't have any findings of facts,
24 conclusion of law. It has the order of the
25 supervisors. That's the law. You don't respond to
57
1 every word of the thing. You respond to the
2 conditions.
3 MR. MARSHALL ANDERS: We have an
4 obligation to object to a condition. Since it was
5 not put in as a condition, we didn't have to object
6 to it.
7 MR. ARMSTRONG: I disagree.
8 MR. SINCAVAGE: Okay. Move on.
9 So that you're going to comply with some items, but
10 not all items in 18?
11 MR. MARSHALL ANDERS: We said
12 we'd comply with it. We'll comply with the
13 conditions of tentative plan approval.
14 MR. SINCAVAGE: Okay. Fine.
15 The buffer?
16 MR. MARSHALL ANDERS: We'll
17 comply with that.
18 MR. SINCAVAGE: This issue is
19 not resolved. You will comply with that?
20 MR. NATE OILER: Yes. It's
21 minor encroachment to grading and some utilities.
22 Bob, I think those changes you would agree can be
23 made easily. The 50 foot buffer is adjusting the
24 plan. There is water laterals shown.
25 MR. EDWARD CARROLL: That's
58
1 backed up to the Bethlehem Water Authority. He may
2 have thought --
3 MR. NATE OILER: It's shown on
4 the plan.
5 MR. McHALE: There is still
6 fencing, utilities, excavating, a number of items
7 shown in the setbacks.
8 MR. EDWARD CARROLL: We are
9 going to take it out.
10 MR. McHALE: We should label
11 that also. Buffer 50 foot, natural state to
12 remain.
13 MR. SINCAVAGE: Then, Bob, the
14 plans should clearly delineate proposed
15 improvements for Phase 7?
16 MR. McHALE: We briefly touched
17 on that a little earlier.
18 MR. EDWARD CARROLL: What they
19 are talking about, Mark, is obviously you finish
20 the roads to finished paving in Phase 7. It's a
21 question of whether you run two miles around that
22 out of Phase 7, and he's raising the issue of
23 turn-around safety and all of that.
24 MR. NATE OILER: The plans need
25 to be clear as to how that will be handled.
59
1 MR. SINCAVAGE: That's the
2 issue.
3 MR. NATE OILER: We agree.
4 MR. ARMSTRONG: You also
5 referenced that Guardian Inspection Services letter
6 dated March 29 of 2007. Did you talk about that?
7 MR. EDWARD CARROLL: Couple of
8 hours ago, yes.
9 MR. ARMSTRONG: You're not
10 planning on --
11 MR. EDWARD CARROLL: No, we
12 don't come under the fire code.
13 MR. ARMSTRONG: I didn't ask
14 that, I asked if you're going to comply with the
15 comments in that inspection letter?
16 MR. MARSHALL ANDERS: That's
17 basically the fire code. If some arrangement can
18 be reached with the supervisors, we'd be happy to
19 do that. What you have to understand, if we agree
20 to come under the fire code, that just doesn't
21 affect Section 7, that affects all of our future
22 sections.
23 MR. ARMSTRONG: Not everything
24 in this letter concerns the International Fire
25 Code. There are some things that do not.
60
1 Am I right?
2 MR. EDWARD CARROLL: It says,
3 regarding Pinecrest Phase 7, IFC review.
4 MR. McHALE: Item 4 is speaking
5 to the cul-de-sacs and actually having enough room.
6 In the previous final plan approval, the
7 cul-de-sacs were all paved so a fire apparatus
8 could make that turn. With the proposed rain
9 gardens in the center and if people park in any
10 portion of the cul de sac --
11 MR. EDWARD CARROLL: They can't
12 park there.
13 MR. McHALE: The plan doesn't
14 say anything about that.
15 MR. EDWARD CARROLL: Well, I
16 mean --
17 MR. McHALE: If they can't,
18 that's wonderful.
19 MR. EDWARD CARROLL: It doesn't
20 make any sense to park there.
21 MR. McHALE: The driveways are
22 adjacent to where you pull in right there and if
23 they have three people come by in three different
24 vehicles and they can only fit two in their
25 driveway, they're going to park in the cul-de-sac.
61
1 MR. EDWARD CARROLL: First of
2 all, that's true if you're talking about primary
3 residence, but each house has a two car garage.
4 And each house has a turn-around to back out of the
5 garage, a 10 by 20 and each house has two spaces
6 behind the garage. I have lived there for a long
7 time.
8 Now, could there be one night on
9 new years eve where some guy had a party? I don't
10 know that I can control that by putting the signs
11 up or whatsoever.
12 MR. MARSHALL ANDERS: We'll be
13 happy to put signs up, but we have no more power
14 than a municipality.
15 MR. EDWARD CARROLL: We are
16 happy obviously to make the turn-around even though
17 we are using it on the cul-de-sac, the garden
18 feature, to make them wide enough for these
19 gigantic trucks to run down a 16 foot road and then
20 have to have a 26-foot road to fight a fire, we are
21 happy to do that.
22 MR. ARMSTRONG: Okay. Okay.
23 MR. SINCAVAGE: Seems like there
24 is several issues you still have to resolve,
25 specifically the traffic study, stormwater
62
1 management, items for the township.
2 MR. EDWARD CARROLL: We can't do
3 the stormwater until we get into --
4 MR. ARMSTRONG: You've got a
5 waiver you've got to submit to the township, a
6 waiver request. There is a number of things that I
7 think your engineer went through, the items. He
8 said he has to revise the plan pursuant to this No.
9 18.
10 MR. EDWARD CARROLL: Well,
11 Mr. Armstrong, we just went through this and gave
12 you and update on the state of all this. You
13 obviously know where it is. Could we get
14 conditional approval subject to this letter, so we
15 can move forward? Well, I'm asking the planning
16 commission.
17 I'm asking you guys, can we get
18 a conditional approval -- recommendation for
19 approval subject to us doing these things? The big
20 things are the conservation district which we'll
21 have in a week and the traffic study which you will
22 have in two weeks. But I can tell you it's going
23 to take, I don't know how long, maybe another year
24 for us to be able to go to the supervisors, with
25 all -- not the escrow agreements and the notes on
63
1 the plan and all the housekeeping stuff, the major
2 things of what DEP will require.
3 MR. SINCAVAGE: Mr. Carroll, we
4 are not concerned about the outside agency. The
5 traffic study; complying with the Act 167
6 stormwater, which your engineer said they would do.
7 Anyone else have any -- do you have any comments?
8 MR. ARMSTRONG: There are a
9 number of issues that came up here. I mean, the
10 outstanding issue of the International Fire Code.
11 MR. MARSHALL ANDERS: That can't
12 be decided here. You can't decide. We want to get
13 to the supervisors to get it decided.
14 MR. ARMSTRONG: Outside of that
15 there are a significant -- a number of issues.
16 Stormwater Management Act issue. There is a number
17 of issues.
18 MR. NATE OILER: But we can't
19 resolve the stormwater issue if we haven't resolved
20 the design issue, which are, to some degree, the
21 fire code, these grades.
22 MR. EDWARD CARROLL: See, you're
23 holding us in limbo here. If you move us on to the
24 supervisors, at least they can say yes or no. I
25 mean, we've already spent $65,000 on this thing,
64
1 and I know it's not an economic issue to you, but
2 before we go off on a year chasing our tail to DEP,
3 if the ruling is that we are underneath the fire
4 code and underneath the buffer and all that, that's
5 a whole different set of circumstances. But you
6 admit you can't give us a ruling and that's why we
7 are asking, hey, look, you got the letter here,
8 which is longer than the first letter.
9 MR. ARMSTRONG: I think I
10 indicated quite clearly that it's the commission's
11 position that the IFC does apply.
12 MR. MARSHALL ANDERS: You can't
13 change -- I haven't heard the commission say that.
14 I have heard you say that, not withstanding the
15 fact that the supervisors have already made a
16 decision. I don't really understand how you can
17 take the position --
18 MR. ARMSTRONG: I don't -- is
19 there an outstanding road issue? Have the road
20 paths changed from the tentative plan to the final
21 plan?
22 MR. McHALE: Yes, they have.
23 MR. MARSHALL ANDERS: Yes.
24 MR. McHALE: The grades have
25 changed, the road configurations, the phasing, the
65
1 number of units. There is a number of items that
2 have changed that if the township holds the
3 position that you must build per the tentative
4 plan, IFC aside, these plans are not in conformity.
5 MR. EDWARD CARROLL: Substantial
6 is the governing thing, the MPC. I mean, when you
7 do a project from 1983 and it's 2007, you think
8 nothing is going to change? That's unreasonable.
9 MR. McHALE: The roadway
10 configuration could be looked at as far as getting
11 closer to what was on the tentative plan.
12 MR. EDWARD CARROLL: If you
13 impact the wetlands, if you want the planning
14 commission to take the side of go ahead and impact
15 the wetlands so that the road can positively mirror
16 what was put on a tentative plan approval --
17 MR. McHALE: That was all
18 surveyed at the time of the tentative plan. All of
19 the wetlands were surveyed at the time. So the
20 roadway configurations that were shown, took that
21 into account at that point in time.
22 MR. EDWARD CARROLL: I don't
23 know.
24 MR. McHALE: And they had
25 profiles to go with it. Nate saw those. I don't
66
1 want to get into a lengthy discussion over it. I'm
2 just saying there is a number items that the
3 applicant needs to ask the township and these folks
4 to allow these changes and deviations from the
5 tentative plan.
6 MR. EDWARD CARROLL: That's what
7 we are doing. In fact, when we came in here with
8 the first go around of the road, it was a one way
9 situation. You guys said, no, that's not good.
10 See if you can modify it. So what we've got now is
11 a two-way situation except where it flows down
12 through the wetlands.
13 MR. SINCAVAGE: You agree we are
14 okay with that.
15 MR. EDWARD CARROLL: In concept.
16 MR. SINCAVAGE: In concept we
17 agree with that. But what --
18 MR. BRANDON CARROLL: By us
19 resubmitting the road map, that changed the
20 original roadway configuration because you didn't
21 want one way.
22 MR. EDWARD CARROLL: In other
23 words, the one-way road was exactly the way it was
24 in 1991.
25 MR. VANDERVLIET: That was
67
1 expressed before at a meeting of change in
2 direction and having a give and take, and the
3 narrow bridges, etcetera, and I believe everybody
4 was in consort with that.
5 MR. EDWARD CARROLL: All I'm
6 saying is, we'll never get off the dot here. You
7 have a document, this letter that we've agreed or
8 not agreed to do, on the public record, certain
9 things. We just want to get pushed to the
10 supervisors. We can't get Mr. Solicitor to respond
11 to us when we show him case law or anything.
12 MR. SINCAVAGE: But there was a
13 March 1st letter saying you must comply with the
14 IFC.
15 MR. EDWARD CARROLL: And we
16 disagree.
17 MR. SINCAVAGE: That's where it
18 is.
19 MR. MARSHALL ANDERS: Not quite.
20 I did talk to him last night. He said he was going
21 to take a look at everything and call me today.
22 MR. McHALE: This was the
23 wetlands issue.
24 MR. RIEKER: Can I make a
25 comment?
68
1 MR. SINCAVAGE: The wetlands
2 issue was brought up on March 26th and was
3 addressed in your March 26th letter.
4 MR. MARSHALL ANDERS: Yes.
5 MR. RIEKER: You have to bear
6 with my ignorance. This is a simple midwest farm
7 boy here. We are at point A trying to get to point
8 C and we can't get through B because we have issues
9 with the fire ordinance, whether you agree with it
10 or don't agree with it. We keep, with all these
11 meetings we have, we keep going in circles. How
12 can we -- what are our options as a planning
13 commission to adopt this or to address it, not
14 adopt it, because a lot of the design implications
15 is, as some of us know with past builders and
16 developers, Mr. Carroll can't progress with some
17 design implications because he doesn't know what
18 the standing is of the planning commission and the
19 township supervisors. So you can't proceed -- or
20 you can and waste a lot of money -- with designs.
21 MR. EDWARD CARROLL: Exactly.
22 MR. RIEKER: We may come back to
23 the supervisors and say, you know what, number one,
24 you can't do that, $50,000 later. So what can we
25 do as a planning commission to say -- what do we
69
1 have to do? Do we have to say, yes and pass it on
2 and have the supervisors turn it down or do we have
3 to -- I don't know what the implications of this
4 are. After a number of years, I'm still new on the
5 planning commission. Do we say no, we don't
6 recommend it, and then I don't know what Eddie has
7 to do after that. But, you know, one of the
8 definitions of clinical insanity is doing the same
9 thing over and over again, expecting a different
10 response, doing the same thing over and over again.
11 MR. MARSHALL ANDERS: We have
12 agreed to do the majority of the outstanding
13 non-issues. As I see it, the two major issues are
14 the wetlands situation and the fire code situation.
15 I would suggest that you give us conditional
16 approval subject to --
17 MR. ARMSTRONG: I don't --
18 MR. MARSHALL ANDERS: I didn't
19 get to finish.
20 MR. ARMSTRONG: I would not like
21 you to suggest to the planning commission to do
22 anything. But you can continue.
23 MR. MARSHALL ANDERS: I would
24 request, request is the same as suggest. I would
25 request that you give us conditional plan approval
70
1 subject to us meeting the requirements of the
2 letter and with recommendations of the supervisors
3 that they have to make a decision on the
4 International Fire Code and the wetlands issue
5 because they are the ones that have to make the
6 decisi