Supervisors Minutes December 19, 2012

Westfall Township, Matamoras, PA

December 19, 2012

The Westfall Township Board of Supervisors held a Special meeting on Wednesday, December 19, 2012 at 7:00 PM. The meeting was held at the Township Building on Delaware Drive and LaBarr Lane, Westfall Township.

Those present were Chairman, Robert Ewbank; Vice-chairman, Paul Fischer; Supervisors Raymond Banach and Robert Melvin; Solicitor, Robert Bernathy and Secretary, Lisa Green. Also present were Scott Myer, Bill Jamros, John Stieh, John & Tina Hess, Thomas Mincer, Scott Quinn, Beth Brelje, and seven members of the general public. Supervisor Larry Flansburg was not present.

AGENDA:  Motion to approve the agenda was made by Supervisor Banach. Motion is seconded by Supervisor Melvin and carried with all in favor.

PUBLIC COMMENT: Bill Jamros said he is in favor of the amusement tax however in his research he found that most municipalities were charging upwards of 5% and that 1% is very low. Solicitor Bernathy said that was noted during the hearing.


Adopt 2013 Budget: Chairman Ewbank said we have resolution 2012-5 and 2012-6 for the purpose of adopting the 2013 budget.

Resolution 2012-5: Solicitor Bernathy read resolution 2012-5 fixing the millage rate for the 2013 budget year. Supervisor Melvin moved to adopt resolution 2012-5. Motion is seconded by Vice-chairman Fischer and carries with all in favor.

Resolution 2012-6: Solicitor Bernathy stated resolution 2012-6 is for the revenues and expenditures of the fiscal year 2013, the amounts shown on the attached 2013 Budget are hereby appropriated from the funds, equities, revenues, and other financing sources available for the year 2013 for the specific purposes set forth.

Supervisor Melvin moved to adopt resolution 2012-6. Motion is seconded by Supervisor Banach and carries with all in favor.

Set Pay Rate for Robert Howard $15.60 Per Hour: Supervisor Banach moved to approve the increase in salary for Robert Howard to $15.60 per hour. Vice-chairman Fischer asked what Mr. Howard is currently making. He is making $15 per hour. Motion is seconded by Supervisor Melvin and carries with all in favor. This pay increase will be effective January 1, 2013.

Hiring of full-time Highway Employee: Supervisor Melvin moved to hire Dick Mai from part time to full time effective January 1, 2013. This will include all full-time benefits as set forth in Westfall Township employee policy manual. Motion is seconded by Supervisor Banach and carries with all in favor.

Berkheimer Associates Resolutions: Chairman Ewbank said we have four resolutions from Berkheimer Associates for the collection of the Amusement Tax. These have all been reviewed by our solicitor and found to be acceptable. Supervisor Banach questioned if the two-year term is standard, and asked if we found the Amusement Tax was not beneficial for us and we backed out would we be penalized by Berkheimer. Solicitor Bernathy said there are provisions in there for placing either party on notice; however this is a two-year contract unless there’s cause. Solicitor Bernathy further stated part of the resolution is the contract which is on the agenda and he is going task that the contract be subject to his review as there are a few things in the contract that he would like to bring to the supervisors attention. Supervisor Melvin moved to approve the four following resolutions. Motion is seconded by Vice-chairman Fischer and carries with all in favor.

Resolution 2012-7 Approved

Resolution 2012-8 Approved

Resolution 2012-9 Approved

Resolution 2012-10 Approved

Berkheimer Associates Agreement: Chairman Ewbank said that we have an agreement from Berkheimer for the collection of the Amusement Tax. Solicitor Bernathy asked to make that subject to his review. Vice-chairman Fischer said he is not clear on the answer to the question raised by Supervisor Banach regarding the two-year term. Solicitor Bernathy said there are a number of things in the agreement that need to be addressed. One being parent authority by execution of the agreement, meaning they have settlement authority to resolve accounts in court. There is also jurisdictional concern and concern of the two-year term. Lastly they referred to approving their rules and regulations and Solicitor Bernathy does not know what they are.  Solicitor Bernathy said with those four changes the board can approve the agreement. Supervisor Banach moved to approve the agreement subject to solicitor Bernathy’s review and with the stated changes. Motion is seconded by Supervisor Melvin and carries with all in favor.

Review Zoning as per Signage – Off Site Signs – Size Limits: Mrs. Green said Supervisor Flansburg had asked to place this on the agenda and the board members each have a copy of the sign section of the zoning ordinance. Supervisor Melvin questioned if it would make sense for the board to review the information because there is concern from some of the businesses in town. Supervisor Banach said we need to review the sign information and hold a workshop to discuss the changes so they can be done all at one time. For example the Home Depot needs a sign and our sign ordinance is very restrictive. Supervisor Melvin said one thing that he has heard from Home Depot is that they have the signage from Interstate 84 but no one knows where they’re located off the Interstate. Supervisor Melvin said the last thing that anyone wants is for Home Depot to lose money and go out of business and the Township to have a big box store that sitting vacant. Further stating that he wants to make sure that those businesses can advertise and thrive. Supervisor Banach said we need to have a workshop in order to talk about that and get with the zoning officer. Further commenting that Phantom Fireworks just had a zoning hearing to get signs approved and they had to pay several hundred dollars for an exception. This item will be tabled until January 7, 2013 when we can schedule a workshop meeting to discuss it.

DVSD – Salt / Antiskid: Supervisor Banach said that this came about when he spoke to Bill Schneider. Further stating that he just signed the bills for the month and we are losing money. Supervisor Banach said a previous supervisor made a deal with the school district to allow them to get winter material from us and their maintenance workers come to the township garage use our backhoe and load their truck’s with our antiskid for the school. Supervisor Banach said if he falls it could be a lawsuit. Mrs. Green asked what is the difference between a yard and a ton because we are billing them per yard but we get billed per ton. Discussion followed. Supervisor Banach feels this is a practice that we should disband. Supervisor Melvin asked if this is because the school district does not have their own facility to store it. Vice-chairman Fischer suggested our road crew load it for them. Solicitor Bernathy said a non-township employee should not be operating our equipment and we need to take action on that. There’s also the disparity between what we are paying and what we are charging. Further discussion followed. Mrs. Green will call Marvin Eversdyke, Director of Support Services for the school district in the morning. Mr. Jamros said as a taxpayer he pays school tax and Township tax and questioned why is the school district taking anything from the Township. Solicitor Bernathy said sometimes there are inter-governmental cooperative agreements. In this case a stop will be put to it immediately.

Letter for Sales Tax: Supervisor Banach said he feels we should get the ball rolling again on the County sales tax. Thomas Mincer said that issue has been raised at the Supervisors convention a few years ago and as long as it was directed on the municipal level to reduce property taxes everyone seemed to be in favor of that but it died. Mr. Mincer said the county was supposed to get half and the municipality would get half and he feels if we send a letter to every Township and Borough in the County that a lot of municipalities would get behind us. Mr. Mincer said he is on the board at Dingman Township and if we send them a letter he will make sure we get their support.


Smokers Choice: Representatives – Attorney, Thomas Mincer

Engineer, Scott Quinn – McGoey, Hauser and Edsall

Owner, Doug Nolan

Solicitor Bernathy acknowledged that we have counsel here for Smokers Choice and gave the Supervisors some background by stating that the record should reflect that the application for land development as well as for the lot improvement has been reviewed first by the Office of Community Planning and they have no adverse comments and find that the plan as submitted is consistent with the Pike County Comprehensive Plan update and municipal ordinances. The record should also reflect that the application has been reviewed by the Pike County Conservation District. They have determined that the plan is adequate and valid for two years from the date of issuance to address erosion and sediment pollution control. It meets compliance with DEP rules and regulations. The record should also reflect that the application has been reviewed by the Township Engineer, Kiley Associates and the comments as contained in the October 22, 2012 letter have been addressed in the plan that is pending before the Supervisors. Finally and most importantly the board has a letter before them from the Westfall Township Planning Commission that indicates a motion was made with two members in favor and two abstentions with one member absent on October 23, 2012 to recommend approval of the application with the conditions that there is adequate water and sewer, that a Lot Combination Deed be submitted, the Township Engineers comments of October 22, 2012 be addressed and finally approval from the Pike County Conservation District.  Solicitor Bernathy said sitting in with Planning on this review that Planning did its best under the circumstances to ask for alternatives for purposes of ingress and egress as far as the adjacent streets are concerned. They did ask and did receive through the applicant from PennDOT their note that they would not consider one of the existing accesses on Route 6 and 209 as anything other than an exit. Planning did consider that, hoping that maybe that would be an entrance and exit however PennDOT representative Kevin Miluszusky said PennDOT was not interested in allowing an entrance to that property off of Route 6 & 209. Again that review came from planning’s concerns about the impact that that would have on adjacent residential areas. The plan that’s presented to the board now has an exit onto US Route 6 and James St. and away from Elizabeth Street. Other than that it is up for the boards review and consideration.

Attorney Mincer said he is here on behalf of the applicant and he has two witnesses to call. Attorney Stieh asked to be granted standing on behalf of Mr. and Mrs. Hess. Solicitor Bernathy replied that as the Hess’s are adjacent property owners they have standing. Attorney Mincer called Scott Quinn as his first witness. Mr. Quinn brought plans to the Supervisors for their review, stating that the first sheet shows the existing conditions and that this is a lot combination. Four existing lots will be consolidated and the applicant owns all four properties. Supervisor Melvin questioned if this is where the brown house is located and if it will remain. Solicitor Bernathy said that is where the brown house is located but it will not remain and the supervisors will be shown from the plans what to expect. Mr. Quinn said the future plan shows there will be one entrance going in across from the Hess residence and they will be maintaining the existing exit off of Route 6. Solicitor Bernathy said currently the exit is coming out onto Elizabeth Street and lights are shining into the Hess’s house and planning did not want there to be an exit onto Elizabeth Street. Attorney Stieh said there are no headlights shining into their house and disputed where the exit was. For purposes of order Attorney Mincer requested to continue questioning his witness and then allowing Attorney Stieh to do the same. Mr. Quinn and Attorney Mincer reviewed the plans with the supervisors showing the current conditions and the proposed plan. Mr. Quinn spoke of the two drive thru windows that they are proposing and stated the furthest car from Elizabeth Street is about 190 feet. Vice-chairman Fischer questioned if there is a simple way to prevent cars from exiting onto Elizabeth Street. Mr. Quinn answered that they have limited the width of the entrance for the purpose of restricting it to an entrance only and will place curbing & signage off Elizabeth Street. Attorney Mincer said this is one of the agreements the applicant made was to restrict that drive to entrance only. Attorney Mincer asked that the map and everything that has been recorded be made part of the record. Attorney Mincer asked Mr. Quinn if he received technical comments from the Township engineer and whether he has met or exceeded all of those comments. Mr. Quinn said he did receive technical comments and they have been addressed. Attorney Mincer asked if the plans that have been provided for tonight are the final plans. Mr. Quinn said that is correct. Attorney Mincer asked if these plans meet all of the zoning and planning ordinances. Mr. Quinn said yes. Attorney Mincer asked if the applicant has met or exceeded all of the screening requirements. Mr. Quinn answered yes they do. Attorney Mincer asked if there will be better handicap access to the building and handicap parking. Mr. Quinn answered yes that is correct. Attorney Mincer questioned if parking and traffic flows with the new plan will be safer and superior than the traffic flows that currently exist. Mr. Quinn answered yes. Attorney Mincer questioned if PennDOT has made it very clear that there would be no entrance off of Route 6. Mr. Quinn answered that is correct. Attorney Mincer asked if there has to be an alternate entrance. Mr. Quinn answered yes. Attorney Mincer asked if the current entrance onto Elizabeth Street is an entrance and an exit. Mr. Quinn answered yes. Attorney Mincer questioned if that will be restricted to only an entrance now and there will be no headlights coming the other way. Mr. Quinn answered that is correct. Attorney Mincer questioned if James Street is currently an exit and an entrance. Mr. Quinn answered James Street is not a part of the existing plan. Attorney Mincer questioned who owns the properties on the other side of James Street. Mr. Quinn answered the fireworks store. Attorney mincer asked if there were only commercial properties there. Mr. Quinn said that is correct. Attorney Mincer questioned if the zone is appropriate for the use. Mr. Quinn answered yes. Attorney Mincer asked if there were any objections from the Township Planning Commission or the Township Engineer as to any portion of the project. Mr. Quinn answered not to his knowledge. Attorney Mincer said he has no further questions of Mr. Quinn.

Attorney Stieh asked Mr. Quinn if there was anything in the Township ordinance that required an entrance off of Elizabeth Street. Mr. Quinn answered not to his knowledge no. Attorney Stieh questioned if the Township chose not to approve this plan you could still acquire access off of James Street and have both an access and an exit off of James Street and not interfere with the Hess’s property. Mr. Quinn said they looked at just that and it just doesn’t work with this building with the drive thru windows. Attorney Stieh said if you change the configuration of the building you could have access off of James Street isn’t that correct. Mr. Quinn said not with this building. Attorney Stieh questioned if there is a problem with the building or a problem with the parking as it is laid out. Mr. Quinn said he doesn’t understand the question. Attorney Stieh said suppose you move the entrance off of James Street to the south you could still have your drive-in going into the drive-in window couldn’t you. And you can have an exit on Route 6 couldn’t you? Mr. Quinn said possibly. Attorney Stieh said you could have traffic circulation for an exit off of James Street. Mr. Quinn said you couldn’t still have two way traffic off of James Street. Attorney Stieh questioned what Mr. Quinn had up in the front. Mr. Quinn said there is a 30 foot setback to the property line. Attorney Stieh questioned if there is any prohibition to having a driveway there. Mr. Quinn said not to his knowledge. Attorney Stieh stated they could have a driveway across the front of the property have traffic circulate in and out of James Street go through the drive in and not interfere with the use of the Hess’ property on Elizabeth Street. Chairman Ewbank said the only problem he sees with that is the traffic would be going backwards from the way the building is designed. Attorney Stieh said he would have to circulate around. Supervisor Banach said you probably could not have a driveway in the state right-of-way. Attorney Stieh questioned how close a certain parking spot was to the property line. Mr. Quinn answered approximately four to five feet. Attorney Stieh questioned the side yard setback. Mr. Quinn said the back yard setback is 20 feet and each of the three sides must be considered a front yard setback. Attorney Stieh asked if Mr. Quinn looked that section 505.202 of the SALDO which says ‘the total lot area shall be sufficient to provide adequate space for required yards, proposed buildings, off street parking and loading, landscaping, sewer and water systems, and other facilities. And a. Each lot or area plotted for industrial and/or commercial use shall provide, inside of the required yards, an area at least equal to the projected horizontal area of the proposed building, plus such additional area as is required for parking.’ Attorney Stieh said this parking is in fact in the setback. Supervisor Melvin questioned the equation. Attorney Stieh said there was no equation. And reread section 505.202 a. of the SALDO. Plans were reviewed. Solicitor Bernathy said additionally the board needs to note that this is an pre-existing business that has been there for some time and as far as setbacks are concerned you can tell by the pre-existing drawings those setbacks as far as applicability is concerned are superseded by the fact that this is a pre-existing business. So as far as setbacks are concerned you need to take into consideration that this is not an undeveloped parcel and rather this is a parcel that is pre-existing and we have close proximity to US Route 6 and Elizabeth St. so you need to take that into consideration. And of course that business is going to be demolished. Attorney Stieh said this is not a prior nonconforming use. Solicitor Bernathy said it is a pre-existing use and that is exactly what it is and as far as Attorney Stieh’s position is concerned it is a pre-existing use and the setbacks as applicable are already, using your argument, being violated by the conditions of the property. And that is the whole idea behind an existing pre-existing use. Attorney Stieh said this is a new development proposal. Solicitor Bernathy said you have a pre-existing business with the pre-existing footprint and pre-existing parking. Attorney Stieh said that this building is not being built on the same footprint. Solicitor Bernathy said it does not matter it is the parking as it exists now, just so the supervisors are aware. Further stating the attorneys have both made their points. Attorney Stieh questioned if there has been a traffic study done to review the impact of this proposal on the neighborhood. Solicitor Bernathy said there has not been a formal traffic study done. Attorney Stieh questioned if there has been any determination made by anybody other than the applicant’s engineer that this does not constitute a hazard to traffic. Solicitor Bernathy said yes by the Township engineer and he referred to his letter which is the October 22, 2012 letter from Kiley Associates. And if there were they would bring it to the Supervisors attention so therefore it is not an issue. Attorney Stieh questioned how Solicitor Bernathy knows it is not an issue. Solicitor Bernathy answered if it were an issue it would be in his letter. Attorney Stieh questioned what has been done to ensure that there will be no conflicts with homes. Mr. Quinn said he believes they will be making a better situation than what is existing there now by making the building setback further from the home, making the window further from the home, by providing additional stacking that is provided by this plan, and they are taking measures to prevent people from exiting onto Elizabeth Street. Attorney Stieh questioned if he is correct in that the traffic will now pass their clients home and then turn into the store which does not do that now. Mr. Quinn said they can come from Elizabeth Street and also from James Street. Attorney Stieh said that amplifies his point that there is no need for an entrance off of Elizabeth St. Mr. Quinn said that is not correct. Attorney Stieh said his clients’ home is directly across the street from the entrance to the store and questioned if Mr. Quinn knew how long the Hess’s have owned their home. Mr. Quinn said he didn’t know. Supervisor Banach questioned if all of these lots that are being incorporated are in the commercial zone not residential. Mr. Quinn answered yes they are all commercial. Supervisor Banach asked the Hess’s is if their property was in a commercial zone. Mrs. Hess answered neighborhood commercial. Attorney Stieh asked if the lots are nonconforming lots. Mr. Quinn answered it is an existing nonconforming lot combining four lots to make it closer to the requirement it will be just over an acre. Attorney Stieh said that correspondence reflects that is a nonconforming lot. Mr. Quinn answered it is an existing nonconforming use and building but the proposed building was laid out to be conforming with all setbacks. Attorney Stieh questioned what the applicant is going to do to prevent traffic from exiting onto Elizabeth Street. Mr. Quinn said they’ve taken a number of measures to try to prevent people from exiting. They’re installing curbing and signage showing one way and have narrowed the entrance. Attorney Stieh said they have done nothing to create traffic devices to preclude cars from going through there such as tire deflating devices. Mr. Quinn said no they have not. Attorney Stieh said then cars will be able to pull out there if they choose to do so. Mr. Quinn said that is possible. Attorney Stieh questioned if there is anything in connection with this application where the Township is passing an ordinance dealing with traffic signage and enforcement of it. Mr. Quinn said no. Attorney Stieh questioned what the enforcement is. Mr. Quinn answered it would be up to the applicant. Attorney Stieh questioned if Mr. Quinn was the applicant and he saw somebody going out of the entrance onto Elizabeth Street what would he do. Attorney Mincer said he is not the applicant he’s the engineer and he believes that everybody understands Attorney Stieh’s point. Supervisor Banach questioned if these matters were before the planning board. Solicitor Bernathy answered yes over a period of several meetings that were well attended where the Hess’s were present and participated actively and planning tried to answer all of their questions and work with them. Further stating these are not new issues these are issues that were kicked around and discussed somewhat at length. Supervisor Banach asked if there were any concessions made. Mr. Quinn answered there were many concessions. Moving the building as far away as they could within the setback line, the signage, the curbing, the screening, fencing. Solicitor Bernathy said he does not believe the type of fencing that is on the plan was required however the applicant agreed as part of the approval process to install that to create a buffer from the adjacent parcel and the house that is existing there. Supervisor Banach questioned the landscaping plan to create a buffer between the store and the Hess’s. Further questioning the lighting which Mr. Quinn answered was addressed. Solicitor Bernathy said that was asked of planning, and the question is whether the plan as presented is going to cut down on traffic that’s going to appear on the adjacent street. Mr. Quinn answered yes because now it will be entrance only. Mr. Quinn showed the board the landscaping and lighting plans. Solicitor Bernathy said the woman that lives adjacent to the parcel on lot 17 attended the planning board meetings and requested fencing and she was satisfied with that. Supervisor Banach suggested sidewalks down the side of the property for future planning and questioned the storm water basins. Supervisor Melvin questioned if a drive thru entrance sign could be placed along with the main entrance sign to cut back on the traffic flow on Elizabeth Street. Attorney Mincer questioned Mr. Quinn if the Township has any authority to close down an existing access. Mr. Quinn said not that he is aware of. Attorney Mincer said they’ve voluntarily agreed to an entrance only to cut down on the traffic flow and will voluntarily place the signs. Attorney Mincer said there was a question regarding a sidewalk on the side of the property and the applicant has agreed to it as long as the Township engineer agrees that it is safe. Bonding was proposed. Attorney Stieh asked about section 505.301 which states ‘traffic movements in and out of commercial and industrial areas should not interfere with external traffic, nor should it create hazards for adjacent residential areas.’ Questioning what traffic study has been done to determine whether or not there would be any hazard. Attorney Mincer said it has already been noted that no traffic study was done. Attorney Stieh said he believes it is up to the supervisors to determine whether a traffic study is required. Solicitor Bernathy said it is not necessary under these conditions. Attorney Mincer asked if the Township engineer required a traffic study. Mr. Quinn said he did not. Attorney Mincer asked if the Township engineer had any questions regarding the SALDO and their reviews. Mr. Quinn said no there were no further questions as Mr. Stieh has raised. Attorney Mincer asked if the Township engineer made any recommendations as to the existing blacktop as regards to setback on the property. Mr. Quinn stated he had no concerns. Attorney Mincer said he noticed there was no technical review or comment where this has violated any zoning ordinance and in fact they are hoping by this plan to alleviate potential traffic issues. Mr. Quinn answered yes. Attorney Mincer asked if with the money available they have done everything possible to try to make this a safe to the community as possible. Further questioning if the fencing was planned to put the non-permeable light fence in to keep light away from the other side. Attorney Mincer said the Supervisors have now requested a sidewalk along the side of the property as long as the Township engineer says it can be done for safety purposes and questioned Mr. Quinn if he would assist the applicant in doing so. Mr. Quinn answered yes.

Attorney Mincer asked if there were any other concerns that anybody brought up from the Township or the Township zoning officer or other property owners regarding the project. Mr. Quinn answered not to his knowledge. Attorney Mincer had no further questions. Attorney Stieh asked if Mr. Quinn has ever been involved with a situation where the engineer has overlooked something. Mr. Quinn said he does not disagree with that. Attorney Stieh said just because the Township engineer did not raise the issue of the traffic study… Mr. Quinn said it was talked about and determined that it was not warranted. Attorney Mincer asked to make a brief statement to the board stating the plans as presented have been studied and reviewed by all Township officials including the Township Engineer and the Solicitor and the applicant has done everything the Township has asked him to do. The Township does not have the authority to tell them you have to shut the entrance down, further stating it is an existing access way and he could’ve left it both ways however in an attempt to try to accommodate one of the neighbors he has limited that to one-way traffic. It is possible that people are going to violate the signage but the applicant has done everything humanly possible and it will be a much better situation than is there currently. They created a second in and out off of James Street to alleviate some of the traffic. PennDOT will not let them do anything else on Route 6. Attorney Mincer said the applicant has gone above and beyond on a permitted use to be a good neighbor as possible, pointing out that there is a fireworks store right next to the building and the gas station is two buildings down. The majority of property straight up-and-down is commercial in a neighborhood commercial District. They are trying to be at good neighbor and that there will be a more aesthetically pleasing building for the neighborhood. It will be better from the standpoint of lighting and they have met or exceeded every single requirement. Attorney Mincer said Attorney Stieh wants to bring these issues up now and the time for that would’ve been long before when it was in the planning process. The applicant has done everything possible with the exception of closing down the access. Attorney Mincer asked the board to approve this tonight so that they could move forward with the project.

Attorney Stieh said this has been the Hess’s home for 40 years it was a residential neighborhood when they moved in there. The zone was created as a C-1 neighborhood commercial zone, not a C-2 or C-3. The idea the neighborhood commercial District was to create a reasonable interface between the commercial use and residential use. In the zoning ordinance it says the objective of that zone is to avoid intensive commercial uses that are most likely to conflict with the scenic rural character and most likely to cause conflicts with homes and to provide for smaller scale uses that will not be intrusive; to carefully locate commercial areas and commercial driveways and minimize traffic safety congestion problems along the roads. Mr. and Mrs. Hess do not have a traffic congestion problem by their property now. This project Attorney Stieh submits will create that and that will be contrary to the intent of the zoning ordinance. Attorney Stieh further states that the SALDO speaks in several places about the need to look to and be careful about traffic hazards. Attorney Stieh states there is nothing in the world that says they have to have the access off of Elizabeth Street. There is nothing that requires that. It is a matter of their choice and desire and they have to prove that it does not cause a traffic hazard as the SALDO talks about in section 505. The ordinance also speaks to when a traffic impact study is required. Attorney Stieh said that is exactly what they’re asking the board to do is to look at a traffic impact study. Because the applicant has not done so does not mean it’s correct or follows the black letter of the law. Attorney Stieh said this also comes forward without the support of the planning commission because it only had a two member out of five member vote in favor and if he remembers the law correctly that would be a no vote. Attorney Stieh asked that the board would please give consideration to the Hess’s home which has been there for 40 years.

Attorney Mincer said Attorney Stieh made an incorrect statement that out of a five member board the planning commission had two that voted affirmatively and two that abstained and one member was absent. That is not a no vote. Solicitor Bernathy said both attorneys know that the planning commission is a recommending body and asked to move on. Further discussion was held.

Mr. Hess said everybody that comes before the board promises the world and they are saying that they will be better off however he does not feel he’s going to have less traffic down there. Attorney Mincer said now was not the time for this the time for this would’ve been three months ago when I was up planning stage.

Mrs. Hess said she brought this up several times during the planning stage.

Attorney Stieh said this is the first time this public hearing has been before the supervisors and more importantly it is the time for the supervisors to hear the applicant and to hear his clients’ position. Attorney Mincer said that is why they have the planning commission and asked that the board takes action tonight to move this project along this evening.

Solicitor Bernathy said he notes the general extensions granted by the applicant and as far as the traffic study is concerned that is only if required. It is discretionary and you have the opinion of the Township engineer stating it is not required. It is a pre-existing and arguably nonconforming use as it relates to setbacks. There is no record of an existing traffic problem and as far as this creating additional problems you would be engaged in speculation. The record should reflect this being less impactful on Elizabeth Street currently proposed rather than more impactful. If the board desires they could request a traffic study however it was not recommended by the planning commission, the Township engineer, or at Pike County Planning Commission. However the board has options. It could be approved with conditions, it could be denied and those are some of the options the board has at this time.

Supervisor Banach said he believes this to be an asset and with the driveway being all the way down there will be less people backing up onto Route 6 and 209. Mrs. Hess said there’s not going to be any signs or curbing that’s going to stop them. Supervisor Banach asked if there would be a maintenance agreement going along with this project. Solicitor Bernathy said the applicant would be required to have all the signs as stated on the plan and if they do not they would not be in compliance and would get a violation notice from the Township. Mrs. Hess asked who would enforce the traffic. The board answered the Township would enforce the signage but not the traffic. Chairman Ewbank said everything is designed to keep people from exiting onto Elizabeth Street. Further discussion followed. Mrs. Hess questioned where they were going to put the snow. Supervisor Banach questioned Mr. Quinn if the whole area in the right-of-way will be put back to grass and they can use that for snow removal. Further stating the sidewalk there would alleviate parking on the road.

Supervisor Banach moved to approve the Smokers Choice land development and Lot Combination with the following conditions: 1) Water and sewer adequacy 2) Lot Combination Recorded Deed 3)  Comments from October 22, 2012 Township Engineer letter 4)  Approval from Pike County Conservation District 5) Shrubbery added and 6) Sidewalks as agreed with Township engineer. Motion is seconded by Vice-chairman Fischer and carries with all in favor.

ADJOURNMENT: The special meeting adjourned at 8:26 pm on a motion by Supervisor Banach.  Motion is seconded by Vice-chairman Fischer and carries with all in favor.

Respectfully submitted,

Lisa A. Green, Secretary