Supervisors Workshop Minutes-September 23, 2013

The Westfall Township Board of Supervisors held a workshop meeting on Monday, September 23, 2013 at 7:00 pm at the Township Building on Delaware Drive and LaBarr Lane, Westfall Township.

Those present were Chairman, Robert Ewbank; Vice-Chairman, Paul Fischer; Supervisors, Robert Melvin and Larry Flansburg; Solicitor, Robert Bernathy and Secretary, Jodi Hulse. Also present were Roadmaster, William Schneider; Zoning Officer, Michael Rendleman; John Dalton, John Stieh, Mike Barth, John Hess, Mr. and Mrs. Meyer and approximately ten members of the general public. Supervisor Raymond Banach attended the meeting by speaker telephone.


Solicitor Bernathy informed the people present that Supervisor Raymond Banach was available by phone and he would be participating by phone.


TRACTOR SUPPLY: Solicitor Bernathy stated that Tractor Supply has been here on two previous occasions informally and they appeared before the Planning Board through Attorney Stieh. He said they are asking the Supervisors and the Township to consider a permitting process rather than an approval process. Planning is recommending that the township consider a permitting process rather than an approval process. Solicitor Bernathy asked the representative for Tractor Supply to make the same presentation to the Board of Supervisors. Attorney Stieh reminded Solicitor Bernathy that he does not represent Tractor Supply and that he represents the Luhrs Family. Solicitor Bernathy apologized and said it is the Tractor Supply application. Attorney Stieh explained that it is actually an entity called TKC who has entered into a contract of sale to purchase the building. He said TKC came informally to the Planning Commission sometime in June and there was some confusion which emanated from what they really wanted to do. He added that it started to evolve into something it did not need to be. He said he became involved in this about a month ago and met with the Planning Commission a week or so ago. Attorney Stieh said the Luhrs have entered into a contract with TKC who is a representative of Tractor Supply in a number of states for the purpose of buying buildings and setting up the Tractor Supply stores. The application is for Tractor Supply and a Dollar Store. The fireplace store is going to remain also. He said one of the requirements of the proposed purchasers is to provide more parking. They are proposing to use the garden center and expand it slightly to the back and Tractor Supply requires that to be hard surfaced so that gets us into the question of storm water management. He stated he is here to represent Jim and Tom Luhrs and that they appeared at the Planning Meeting a couple of weeks ago and suggested they do not need to go through a complete land development process. He said they are not changing parking except for expanding a little bit, entrance or exits, or size of the building. They would only be expanding the hard surface on one side and expanding the parking a little bit so he asked if they could do it under the zoning ordinance (Section 8) which allows for this kind of thing. He added that the engineers for the township and TKC were present and the township Solicitor was also present. There was a discussion amongst all. He said that everyone was in fairly good agreement that it is not necessary to go through the complete land development process but to go through the permitting process instead. All agreed that this process could work. He said Solicitor Bernathy stated at the meeting that the Planning Board is recommending this but he would need to talk to his bosses about it. He said this is the reason we are here tonight.

Solicitor Bernathy said there were a couple of things he would like to make note of for the record. They are proposing what he considers to be non occupiable space. They are going to pour a pad which will be approximately fifteen thousand square feet and approximately in the area where they had the garden center as Attorney Stieh stated. It is important to note that this is not an enclosed space, it is non occupiable and it will not have immediate impact on parking or other services necessarily utilities or otherwise that are provided to the site so if someone in the future wanted to pursue the permitting process rather than what otherwise would be required which would be a land development application we can distinguish this if you so choose that route by saying this is non occupiable space. He said nevertheless they were some concerns regarding the impact an additional use would have that, in his opinion, would represent an additional use of the pre-existing structure which is not going to be increased in size at all. He said he thinks that would commensurate an impact on parking. They have agreed currently there are seventy six parking spaces on site and they have agreed to increase the spaces to one hundred four to address his concern regarding the additional use even though the building is not expanding, there is an additional use. He added the applicant has also agreed to address the storm water issue because the impervious surface will create storm water runoff. The applicant will also need to go through the county for the storm water issue and they have agreed these would be conditions that will be attached to a zoning permit rather than having to go through a land development process which is very time consuming. He said he would also distinguish this because it is a pre-existing use and if the Supervisors are going to consider the permitting process which Planning is recommending it would be pursuant to Section 801 B as provided in our zoning for a number of principal uses and principal buildings per lot and it talks about the applicant having to submit a site plan. The applicant has not only agreed to submit that plan as part of the zoning process but that plan would be reviewed for adequacy by our engineer and that they would agree to pay the reasonable cost for those reviews and for whatever costs the permits will be. He stated if the Supervisors are considering this process it is important to distinguish this so that it is not used against the township moving forward if someone wanted to expand their business the Supervisors need to do what is necessary to make sure this is something that fits these facts and that can be distinguished from others.

Supervisor Banach had a comment about the storm water. He asked if the water runoff which will come from the additional impervious surface be retained on Westfall Township property or will it be collected in an area in Milford Township. Attorney Stieh answered the area we are talking about is actually in Milford Township but the water will be retained within the perimeter of the property. Supervisor Banach suggested the applicant at least have Milford Township review the plan to eliminate future issues between the townships. Solicitor Bernathy stated he has answered this inquiry previously. His opinion on this matter, and he stated he has researched the law, is that he discussed this at the planning meeting and we need to put Milford Township on notice regardless of how we proceed. He said the law is quite clear that predominantly the structure and the development portion of this is on property which is situate in Westfall Township and the law does not provide for review of such an application by multiple municipalities. The law provides that the application process or permitting process would be in one municipality and that municipality would be where most of the development is. He said most of the building, if not all of the building, and most of the impervious surface is in Westfall Township. His recommendation is that we contact Milford Township and in fact he has been contacted informally by Don Quick who is a Supervisor for Milford Township and he informed him Westfall Township would put him on notice either way as a courtesy and an adjoining township. His understanding is that this is not a dual permitting process and that the applicant would proceed in one municipality and not both. He said to Supervisor Banach that is the law in Pennsylvania. Attorney Stieh said the septic system to the subject property is in Milford Township and they have made the necessary arrangements with the Milford Township Sewage Enforcement Officer for review of this process as to sewage concerns. Solicitor Bernathy confirmed with Attorney Stieh that is a permitting process. Attorney Stieh said that the SEO of Milford Township has indicated that based on the fact that it will be retail to retail and no increase to the number of potential users that they do not anticipate any sewage issues. Attorney Stieh stated again that they want to move this process along and they want to get this done and that is the reason they are appearing before the Board. He said there are ordinance provisions which allow this to occur and that is why they are here today.

Supervisor Flansburg stated all of the questions he had were answered. He stated his vote is for the permitting process. He did have one question regarding the impervious surface. He asked if the application would exceed the impervious surface allowance. Solicitor Bernathy stated he asked that question at the Planning Meeting and they are well under the impervious surface allowance. Supervisor Flansburg confirmed his vote is for the permitting process.

Solicitor Bernathy asked if there were any more comments regarding this issue. He then explained this is not a formal process. They are here basically “testing the waters” on an informal basis asking what it is as far as your discretion in concerned. He asked the Supervisors if they preferred the applicant submit for a land development process or as provided for in 801 B which is the permitting process with aforementioned stated conditions which we have gone through here. Supervisor Melvin said his concerns were the additional concrete pad and the water runoff which has been addressed and that the all of the retail stores stay within the same building. Solicitor Bernathy stated the addition of the dollar store will be an additional use. Supervisor Melvin confirmed there will be an additional twenty eight parking spaces and that those spaces would fit in the property boundary lines. Solicitor Bernathy confirmed. Chairman Ewbank asked Mike Rendleman if he had any comments and he said no. Supervisor Banach said he is good with it as long as the county reviews it and they pay the cost for our engineer review it. Solicitor Bernathy told Attorney Stieh he would send out a letter so that they could go through the permitting process.


Solicitor Bernathy stated there is a continuation of the Paddler’s Point Hearing which is scheduled for October 1, 2013. He said we are not here to discuss the facts or what your decision is going to be. He provided the Supervisors with a Memorandum of Law with regard to specifically fees in lieu of dedicating open space. He highlighted the memorandum. He explained that fees in lieu of dedicating open space are allowed and shall be in the amount of $600.00 per dwelling unit. He pointed out the amount is much higher than what was represented at the public proceeding. This is discretionary. He said if the Board and the applicant agree if the proposed subdivision or land development will pay fees in lieu of dedicating open space this fee shall be established by a fee schedule which may be updated by resolution of the Board until such time as a different fee is established the fee shall be $600.00 per dwelling unit. He emphasized the word “shall” which is a mandatory term and is not negotiable. He stated the Board must take into consideration whether the dedication of land would be preferable or fees. He outlined what their decision should be for land versus fees. He read parts of the ordinance which has been authorized by the municipalities planning code. He said the municipalities planning code is interesting and he had provided the law in bold print for review. He said if you were to go in this direction which is discretionary, which he cannot stress enough, the land or fees or a combination thereof are to be used only for the purpose of providing park or recreational facilities accessible to the development. The amount and location of the land to be dedicated or fees to be paid shall bear a reasonable relationship to the use of the park and recreational facilities by future inhabitance of that development or subdivision. He continued to read that section of the law. He asked that the Board familiarize themselves with the law by reading the copy he has provided so they are informed and can make an informed decision when the applicant appears for the continuation of the hearing. He said he cannot stress enough that we are not here to talk about facts or decide the issue but just for him to give his legal opinion

Solicitor Bernathy stated the next issue he researched is whether the minimum square foot required by the zoning ordinance is a legally enforceable requirement so if the Board decided they want to go in the direction to not provide for fees in lieu of and you want to require the open space as your ordinance provides you can do that. Minimum square feet required by the ordinance is enforceable as long as it is related to health, safety, morals and general welfare. He stated he goes into the law on this on the memorandum. He stated there was also an issue or questions regarding low income housing and the possibility this may become low income housing. He said he cannot stress enough and he has provided the law on this. He read a part of the law which states a municipality has the right to reasonably limit an owner’s absolute right to use his property with zoning ordinances designed to protect and preserve health, safety and welfare. The regulations and requirements of the zoning ordinance must not be unreasonably restrictive and must bear a rational relationship to a legitimate government purpose. A zoning ordinance which has the effect of totally excluding moderate or low income persons by means of excluding certain types of multi-family dwellings is exclusionary inherently discriminatory and therefore unconstitutional. He said that is very poignant and very limiting language that you cannot at all consider that this may or may not become low income housing in your decision making process. He said to the Supervisors that it the law and please take and read the memo so that you are prepared for the October 1, 2013 meeting regarding Paddler’s Point.

Supervisor Banach asked Solicitor Bernathy if we could vote against the Paddler’s Point proposal for the Garden Apartments. He wants the applicant to follow our zoning ordinance. Solicitor Bernathy stated he has provided the law in both instances. He said if you choose to go with fees in lieu of open space you can do that or if you wish to stick with the ordinance and have the minimum square footage requirement, you can do that as well. It is completely within your discretion.

Chairman Ewbank asked if the Pond Drive Vacation could be moved up so that Mr. Stieh would not have to sit through the meeting. Supervisor Flansburg agreed.


Solicitor Bernathy stated that Mr. Stieh has submitted a letter. Mr. Stieh addressed the Board. He stated he has lived on Pond Drive since 1978 and that when they built their home there was a cul-de-sac in the front of his house. He said he aligned his house to look down the cul-de-sac and he did so based on the fact Pond Drive was a public road at that time that terminated at the cul-de-sac. There was a dirt road which ran off to the right. The township, unbeknownst to him, had not accepted the last grade going up to his house to where the cul-de-sac was and the township told the developer to re-grade that portion of the road because it was too steep. As a result Pond Drive actually shifted seventy five to eighty feet to the right of where it was. He said his house then looked over the driveway which leads to what was Mr. Biondo’s property. He stated the township agreed to take Pond Drive which included the loop which would allow emergency vehicles to travel through and the people who lived there could get around. He said the township accepted the road based on this and all of the people who bought from the Corcoran property up bought with the understanding it would be a continuous road. Biondo brought the road into compliance with the township road ordinance. He tar, chipped, graded, and did all he needed to do. He said after about a year the township came in and tar and chipped it again. The township maintained the road. He said Mr. Biondo told him he has paid taxes on it. Mr. Stieh said he has paid taxes on it and all of the property owners bought with the understanding that the road was public. He said the township passed resolutions stating Pond Drive was a public road. His understanding from Mr. Biondo is that sometime in the 1990’s someone from the township said to Mr. Biondo that no one has any houses back there so do you mind if we do not maintain it the same way as we maintain the rest of the road. He added that the township has always plowed and cindered the road. Mr. Biondo told the township he did not care as long as when he sold a house back there it would be taken care of by the township. Mr. Stieh said that is the deal that was made. He said that all of the owners of property on Pond Drive are thinking how is an ambulance or fire truck going to get around in case of an emergency. He said no one is saying to the township that the road needs to be paved. He said it was once paved and at one time a grader went through and tore up the tar and chip and turned it to gravel. He asked Bill Schneider how long the road is. Mr. Schneider said 1,940 feet which is about 4/10 of a mile. Mr. Stieh said the township has received Liquid Fuel funds since that portion of the road was dedicated to the township. He said the township has collected the money for it and now for whatever reason the township does not want it as a township road anymore. He also said it is his understanding that to receive Liquid Fuel funds the requirement is that a traditional vehicle is able to be driven at fifteen miles per hour. He said that is the way the road is today and he can drive his tractor, pick-up truck and his car on it. He does not understand why the township wants to vacate the road. It will affect Biondo who has lots back there, the property owners association, and every land owner on Pond Drive. He said the township will still receive the Liquid Fuel funds for it. He questioned where the plow trucks would turn around if there were no cul-de-sac. The road is 22 feet wide. Bill Schneider added the road must be 33 feet wide according to state law. Supervisor Flansburg asked Bill Schneider how the road is plowed at the current time. Mr. Schneider said they plow around the road but it depends on the storm. He said there was an issue last year when the road became so muddy that a fire truck could not make it around the circle. There was no base left on the road and the fire truck sunk to the axle and had to stay there while the road was closed. He said the issue is we need to put money into the road which will be quite costly or vacate it. Supervisor Flansburg said he thinks the issue is if someone were to develop the property and the township was required to bring the road up to specs that the township does not have the money to do so. Supervisor Banach stated if someone were to drive on that portion of the road and they ruin their car that would be an issue. He said that he thinks Mr. Stieh is a little off on his date and time and that there were numerous people present when Mr. Biondo wanted to make that a town road. There were people at that meeting that brought pieces of tar and chip road. The road was built as tar and chip over dirt without any base. People were at that meeting and they did not want Pond Drive to be a town road because someday this would happen. He said to Mr. Stieh if someone drives down that road and gets hurt the township will get sued and we do not have the money for another lawsuit nor do we have the money to bring the road up to specs. He also said it is a dirt road, no one uses it, the township cannot plow it, and it is too much liability. We want to shed the liability. Mr. Stieh said the road was built according to the township specs because the township accepted it as a township road and he assumed that the township engineer at the time took a look at it. Supervisor Banach said it will cost hundreds of thousands of dollars to bring the road up to township specs. Mr. Stieh said he has no idea how much it would cost to bring the road up to spec since he does not know what the township specs are Mr. Banach is making reference. He said it is a township road and the township has accepted Liquid Fuels funds for it for the past thirty five years that he is aware, it is used by the township and is a benefit to the residents of the township who pay their taxes. Mr. Stieh said to Mr. Banach to say it is a liability to the township is wrong. The law as is exists, and your solicitor can confirm this, that pertaining to state highways, there is very little law supporting that if someone gets stuck on the road that there would be liability to the township or to the state but more importantly what would be the liability for damages to the township under the eminent domain code. He said under the eminent domain code if the township vacates a road, the damages suffered by the property owners association are recoverable under the eminent domain code. No one wants to do that since we all live here, we all pay taxes here and we all enjoy living here. He said for the sake of spending a few dollars to plow the road and put some stone on the road why someone would be bothered to go through that expense and the enormity of the turmoil that would create for the township. He does not understand that. Mr. Stieh asked Mr. Dalton if he had anything to add. He said no and that Mr. Stieh has said it all. Solicitor Bernathy stated the Supervisors have a copy of his opinion letter dated August 13, 2013 regarding his research as far as vacation of the street is concerned. The second class township code does provide that you can vacate by ordinance any road or portion of road located within the township and obviously there are requirement that need to be met before doing so. He said there is provision under the law for the township to vacate the portion of that road but advance notice to adjacent property owners must be given. The owners can agree on the vacation but by what Mr. Stieh is indicating he does not think there will be an agreement as far as the vacation is concerned. He said the township is free to vacate selected portions of a road. That is without a view. He said that is the law on it and the Supervisors have asked that he move forward on this matter and he prepared the opinion letter accordingly. He said we are prepared to go forward with the vacation of Pond Drive but it is up to the discretion of the Supervisors.

Mr. Stieh stated that they will be creating two dead ends that do not comply with the township’s Subdivision and Land Development Ordinance. He said unless you are planning to build cul-de-sacs and then the township will need to be acquiring properties to do that. He asked where emergency vehicles will turn around. Supervisor Flansburg asked if we could vacate the road fifty feet closer and put a cul-de-sac. Solicitor Bernathy stated a cul-de-sac could be put there if there is emergency related concern. He said you could vacate the portion you are proposing to vacate and put cul-de-sacs to accommodate emergency vehicles. He does not know what the cost of that would be. Mr. Stieh stated that under the Subdivision Ordinance the township does not have sufficient right of way. He said he wants the township to leave there what is there. He is not saying to bring the road up to any kind of specification. He said Valley View Community Association has a few lots which shale can be obtained. He has not spoken to the Property Owners Association but he said they will be willing to make that source available to the township. Bill Schneider said that shale does not meet the standards. Mr. Stieh said again that all of the property owners bought under the assumption that was a loop. He said if something happens on the stretch from Mr. Corcoran’s house to his house, he has no way of getting out. Also, if something happens on the stretch from his house to Frank Heater’s house, he has no way of getting out. He said the loop allows that to happen and that is the reason the Planning Commission made the loop. He said that the Township making an agreement with Mr. Biondo not to maintain the road should not come back to bite him now. Supervisor Flansburg asked Mr. Stieh if he agrees that there are many other properties in the township that would have no other way out should there be a problem. River Road, Cemetery Road, Doug Miller, and Laurel Acres, he said they all have no out. Mr. Stieh said we all know those roads were laid out hundreds of years ago. Supervisor Flansburg said he understands Mr. Stieh’s point but he is trying to look at all of the facts. Chairman Ewbank stated that when we first discussed doing this we asked the Highway Department and Fire Department and they said they would be able to turn their vehicles around without going back there. Mr. Stieh asked which driveway will be used. Chairman Ewbank said we asked the question and we received an answer. Mr. Stieh said it does not seem fair to him that he has paid his taxes, the township has collected Liquid Fuel funds, the road was dedicated to the township, built in accordance with the township road dedication standards and now because the township got a buy on maintaining the road by agreement with Mr. Biondo that all of a sudden all of this should be forgotten. Supervisor Flansburg said that he agrees. Bill Schneider asked if the Supervisors would like to have an estimate for the cost. Supervisor Melvin asked if there is a legal standard that the road needs to be built. Solicitor Bernathy stated it has to be built in accordance with the current Zoning Ordinance and this is why it will be quite a significant expense. Mr. Stieh said if it is a public road it needs to be maintained to the standard to collect Liquid Fuel funds which means it must be able to be traversed by a two wheel drive vehicle at 15 miles per hour. Supervisor Flansburg asked the amount of Liquid Fuel we would lose if we vacate the road. Supervisor Melvin said roughly $2000.00. Supervisor Flansburg asked could that Liquid Fuels standard hold up if we were being sued. Solicitor Bernathy stated those are minimum requirements.

Bill Schneider said there are certain times of the year especially in the spring that an emergency vehicle will get stuck at that section of the roadway due to muddiness.

Chairman Ewbank stated they could not make any decisions at the meeting but would take all that is being said under advisement. Mr. Stieh said he would respectfully submit to the Board that it is a better thing to leave that which exists rather than trying to do away with it. Mike Barth asked since we have been collecting Liquid Fuels all of these years and we close the road can we be held legally accountable for not maintaining it. Solicitor Bernathy said the law provides for the vacation of any township road as long as you comply with the requirements set forth in his opinion letter. He said in his opinion, no.


Bill Schneider stated he has had a couple of contractors look at that situation at the Wisniewski property. He said the best way to solve the problem is to stay on the one side of the road where the water accumulates and take the turn out and drop the road lower. It requires funds. An excavator is required and there may be ledge. He is working on obtaining a more precise figure of the cost. Supervisor Melvin stated he understands the issue with the water but it was an existing issue before the house was built and this will cost a lot of money. Mr. Schneider said we were going to hire an engineer but the cost was a few thousand dollars. Supervisor Melvin said that we will be setting precedence for a property with a pre-existing water issue. Supervisor Banach stated that years ago George Decker and Ken Thiele installed culvert in areas where there we no homes. Now there are so many homes and so much traffic. He said Bill Schneider is doing a great job widening the roads but we are sending more water onto people’s property. He said what if Mr. Wisniewski decides to fill in the side of the road we will have water running down the road onto someone else’s property. Solicitor Bernathy stated that the law provides that the township has the right, easement wise, to discharge water that accumulates on the township roadways onto adjacent properties. They would be diverting water from its course which is actionable in a court of law. Supervisor Flansburg asked Bill Schneider where this is on his priority list.
Mr. Schneider said this will need to be hired out and it is not his most important project right now. Supervisor Flansburg asked Mr. Schneider to obtain some more information on cost.


Solicitor Bernathy stated with regard to the Amusement Tax, there are some outstanding matters regarding requests from businesses with specific regard to Have A Hoot. He said he had a discussion with Attorney Duke Schneider who represents Have a Hoot. Solicitor Bernathy said it is the township’s position the operation of the business is a family fun center not a family fitness center. The business is advertised as a fun center. There are batting cages, arcade, laser tag and parties are convened there. There is also food there. Pizza, hamburgers, and hot dogs are served. Supervisor Flansburg said no health food is offered. He said this facility’s primary purpose is not for physical fitness. He said someone may be able to make an argument that it is partly for physical fitness but not primarily and he has communicated this to Attorney Schneider. Solicitor Bernathy said they may, as they have done with the school, consider the tax in lieu of but that must be based on what it is that they are generating and they are substantiating their numbers. He said the township’s accountant put something in writing and his primary concern was that this was not being uniformly implied or based on speculation and that is not the case. He said that is not the case and we had asked the school district for numbers regarding the attendance at their football games and it was based on those numbers that we said you can make a onetime payment rather than incurring the administrative costs over a course of time. We are not cutting deals with businesses. If we did that, I agree with your accountant, we would have to do it with all of them. With all due respect that is not what we are doing. Regardless of what ever that tax may generate if they wanted to pay us that lump sum once rather than having to administrate it over the course of a year it would be fine. They would need to just pay for the cost of putting the collection program on their computer or whatever collection device they are using. Solicitor Bernathy indicated to Atty. Schneider that would be the supervisor’s position. Atty. Schneider said that he would get back to solicitor Bernathy. He has not heard from him as of yet. He added that would be the status of anyone who is taking the position that they are exempt. Solicitor Bernathy said if they refuse to pay that tax he would want authority to institute legal proceedings but he hopes we do not have to do that. There are other businesses that have paid their tax. They have paid on time. It is generating some income not the income we would like but it is generating some income from the Township. He said to the supervisors they have an obligation to enforce it. He said he indicated to attorney Schneider that it is a business and that sharing with us their books can be a delicate and confidential venture and he indicated that was not the supervisors intent but that you would want to see some substantiation of what is generated to get some idea of what the onetime payment would be a lieu of the tax. Supervisor Melvin that it would make sense to obtain the amount on the 1040 form just so they could get a general ball park estimate and not dive into the books or know how much profit is being made or what their costs are. Solicitor Bernathy stated that would be sufficient evidence.


Bill Schneider stated that in areas where people are black topping their driveways they are taking out the existing culvert pipes. His opinion is that the ordinance should be changed so that the culvert pipes are required to be changed before the black topping takes place.


Chairman Ewbank stated we have four proposals that have been presented to the Board. The prices vary. He and the Board reviewed and discussed the estimates and said they will take all estimates under consideration.

MIKE RENDLEMAN-Temporary Zoning Offers-Discuss details for Advertisement for Zoning Officer Position:

Chairman Ewbank confirmed that Mr. Rendleman will be retiring at the end of the month. He said he spoke with Mr. Rendleman and he has agreed to take the position of Temporary Zoning Officer for the Township until a replacement is hired. Solicitor Bernathy said to put the advertisement on the agenda for the October 1, 2013 Supervisor Meeting.


Chairman Ewbank stated there will be a Public Hearing on November 7, 2013 to discuss and possible vote on the Burning Ordinance. Solicitor Bernathy said the Ordinance will establish requirements and it exempts out what we are calling the “triangle” and it needs to be read in that context. Supervisor Banach stated he sent a copy of the Ordinance with some changes he has made. He said he is in 100% agreement and this has been talked about for such a long time. We have purchased the leaf picker. He said there should be no burning of leaves in the section on Tenth Street all the way out. There should be no burning of mattresses, tires and those types of items throughout the township. He does not think the Police Department should enforce this ordinance and that our Zoning Officer should be the enforcer. He also thinks there should not be a permit required for burning brush. He wants to make sure the township does not make another ordinance that is not enforceable. Our main goal was to make sure there is no rubbish or tires being burned down town and that the burning of leaves does not fill Matamoras and the whole valley with smoke. Vice Chairman Fischer agreed with Supervisor Banach. Solicitor Bernathy said the way the Ordinance is written burning is allowed except in prohibited areas without a permit from dawn until dusk. He explained that part of the Ordinance and added that is prohibits burning on Sunday but that can be changed as well if desired by the Board.

Mike Barth addressed the board with a question regarding having a bon fire in his back yard fire pit. Supervisor Flansburg said it is allowed. Solicitor Bernathy confirmed there will be no permits required for that. Mr. Barth asked about leaves and tree trimmings. Chairman Ewbank said the leaves would be picked up by the Township. Bill Schneider said we do not want to get involved in picking up any brush or branches, only leaves. The compost area will be open for dumping of brush and branches. John Hess stated that he is glad to see the Burning Ordinance. He said less than a month ago someone was burning plastic at 9:00 at night. There was a discussion held regarding the enforcement of the Ordinance.

Solicitor Bernathy asked the Board if he should advertise for the Public Hearing for November 7, 2013. Additional discussion was held regarding the enforcement of the Ordinance and who should do so. Solicitor Bernathy said this should be a line item in the Township Budget. Chairman Ewbank asked Solicitor Bernathy if the Board comes up with someone to enforce the Ordinance by the middle of October if that would give enough time for advertising the Ordinance. He responded, yes.


Chairman Ewbank read a complaint submitted by Robert Meyer concerning storm water from the new Westfall Firehouse running onto his property. Mr. Meyer said in his complaint the problem was not solved when the new firehouse was built and the problem has worsened. Solicitor Bernathy stated this is an issue that Mr. and Mrs. Meyer need to address with the fire department. Mrs. Meyer was present and stated they did speak with the fire department and they said they would do something about it and never did. She said the water runs between her house and her daughter’s house like a river. Solicitor Bernathy stated that if there is water being discharged from their property and it is not running into one of the township easements accordingly, and it is affecting the Meyer property, then you have a private cause of action, therefore this is not a township matter. He said it is a matter that needs to be taken up with the fire department by Mr. and Mrs. Meyer. Solicitor Bernathy said the storm water management should have been designed so that there is no adverse effect on adjacent parcels and it should be discharged on site or if it is offsite that it goes into the drainage areas. If it is not doing that and it is being diverted onto the Meyer property then that is considered a trespass of water and is actionable in a court of law which is not something the township would do on their behalf. Supervisor Flansburg added there are at least three other neighbors that are having some problems with this issue. He said there is also a problem with the dumpster being in the back. He spoke with someone at the fire department and brokered a meeting with them to see what can be done about the issues. Solicitor Bernathy said the fire department needs to comply with the specs of their plan. Supervisor Flansburg said there is supposed to be a dry well. Mrs. Meyer said there is no dry well. Solicitor Bernathy said it does become a township issue if they did not build pursuant to the plan approved by the township. In this case, there should be a violation notice issued. Supervisor Flansburg said he would like to sit with the fire department and discuss the issues. Solicitor Bernathy said we need to see the plans to see if they are built in accordance to those plans. Mike Barth said that the water creates a hazardous situation on Blue Ridge Avenue. Mr. Dalton asked who should have notified the fire department about this situation. Supervisor Flansburg said he has already. Supervisor Melvin suggested that BIU go out and look at the property. Solicitor Bernathy said Joe Hudak would be the one to do that job since he is the engineer. Mike Rendleman stated that BIU looks only at the building. Supervisor Flansburg said that he would review the plans and make a determination by the next meeting. Supervisor Melvin was concerned about missing dry wells.


Solicitor Bernathy said this has already been approved and the maps need to be signed. Jodi Hulse said we are waiting for the Developer Agreement and Bond from Attorney Schneider. Solicitor Bernathy said we need those documents since they are conditions of the approval.

Solicitor Bernathy recognized that Marge Tonkin was present. He said at a planning level she has been attending and we that we have a shortage on the Planning Commission. He said he approached Mrs. Tonkin and asked if she would consider coming back and she said that she would take that under advisement. Mrs. Tonkin confirmed. He is hopeful she will come back. Chairman Ewbank stated the Board of Supervisors has decided to take applications and interview the people for any opening for the positions.

Supervisor Banach asked Solicitor Bernathy the status of the letter to Matamoras regarding the closing of the compost area and the letter regarding the regional split. Solicitor Bernathy said he did not have either of the letters done yet but he would have them done for the October 1, 2013 meeting.

ADJOURNMENT: Meeting adjourned at 8:29 pm on a motion by Supervisor Flansburg, seconded by Supervisor Melvin. Motion carried with all in favor.

Respectfully submitted,
Jodi Hulse