4 January 2024 Zoning Board Hearing Summary

Two zoning appeals were heard by the #Newtown Zoning Hearing Board (ZHB) on Thursday, January 4, 2024:

• Application No. 1204-24 – 192 Commonwealth Drive – Barks County Dogs Grooming
• Application No. 1195-23 – 2124 South Eagle Road – The Borscht Belt Deli

Barks County Dogs Grooming

Kathleen Donovan, owner of Barks County Dog Grooming testified in defense of her application for a variance to allow the operation of a dog grooming business located in a townhouse unit in Newtown Crossing where such use is not permitted as a Home Occupation or Accessory Office (H-1 use).

Ms. Donovan testified that the Home Occupation or Accessory Office shall not constitute a possible nuisance to neighbors because of noise levels, odors, significantly increased traffic, extra lights and or night activity, the production or storage of hazardous products and by-products, or the keeping of dangerous animals.

Several residents also spoke in favor of the application and it should be noted that the Board of Supervisors did not oppose this application.

In the end, the Zoning Board granted approval of the variance as long as Ms. Donovan is the owner of the property. 

Listen to the owner plea her case before the ZHB…

Borscht Belt Deli Appeal

Mike Dalewitz, Co-Founder of the Borscht Belt Delicatessen, is appealing the action of the Newtown Township Zoning Officer who has issued a Violation Notice regarding the neon window sign at the newly-opened store located at 2124 South Eagle Road (see photo).

Neon signs are prohibited by Zoning Ordinance, Section 1104(B)(2), which states that “any sign which is illuminated by inert gas or any form of exposed tubes is prohibited.” The Borscht Belt Violation Notice was sent via certified mail to Newtown Center Associates – owners of the shopping center – dated 6/13/23 after the zoning office received an anonymous complaint via phone call.

Spoiler Alert: After hearing two and a half hours of testimony and public comment at the 4 January 2024 hearing, the Newtown Zoning Hearing Board continued the hearing until February 1, 2024, when it will issue its decision on whether the sign can stay or or has to come down. Meanwhile see the following summary – based on audio recordings made at the meeting –  for more details...

Hearing Summary

INTRODUCTIONS (listen to entire recording): Mr Dave Sander, attorney representing Newtown Township, started off saying "there's a neon sign in the front window of the Boscht Belt Deli that in the township view is illegal. Township took enforcement action against the applicant and unfortunately for the applicant, the applicant has not filed a timely appeal. The appeal was filed on August 21st 2023. The action appealed from in the application itself is a July 5th enforcement action taken by the zoning officer. Obviously August 21st is more than 30 days after July 5th." Mr. Sander then put that forward as a motion to dismiss.

Alan Nochumson, the Borscht Belt's lawyer, contended that "we were never officially notified directly about this notice violation. All the violations were directed presumably to the property [owner] but we as the occupants of the ... leased premises were never directly notified by the township. So the clock never tipped on June 13th or July 26th or or or even August 15th. So there's no direct notice that we had to comply with," claimed Mr. Nochumson.

Mr. Sander countered "that [there] is an email dated July 5th 2023 uh from the Township zoning officer Ana Bindhart directly to Mr. Dalewitz advising him of the violation. It is from that enforcement notice that the appeal was taken. That is the only enforcement notice at issue in this case and it went directly to Mr Dalewitz. So it is false that the notice was given only to the owner of the property."

Mr. Nochumson continued with is "selective enforcement" accusation: "we are personally outraged by how the township has conducted themselves in terms of doing selective enforcement based on the content of this sign and if the board hears the history of behind the Borscht Belt and the Deli and the reason why we're so upset as a Jewish Community, then I believe that this board will be outraged by this select enforcement and have one choice or two choices... either allow this signage to remain without any violations or take down every single neon sign that's in the township including a neon sign of a business that is nearby where the township has actually conducted business."

The business Mr. Nochumson may be referring to is Acqua e Farina located at 50 Richboro Rd. The restaurant has an "OPEN" neon sign above the door as shown in photographs supplied by Mr. Nochumson.

APPEAL FILED TOO LATE (listen to the entire recording): Mr. Sander introduced Ms. Ana Gindhart as a witness. Ms. Gindhart is an employee of Barry Isett & Associates and acts as the township's Zoning Officer. Ms. Gindhart issued the original Notice of Violation (NOV) on June 13, 2023. Ms. Gindhart also referred to a June 27, 2023, email sent by Mr. Mike Dalewitz, owner of the Borscht Belt Deli, to the Newtown Zoning Officer email inbox, which Ms. Gindhart responded to on July 5, 2023. Ms. Gindhardt testified that in her email she advised Mr. Dalewitz that he had 10 days from the DATE OF HER EMAIL RESPONSE to remove the sign and 30 days to appeal the NOV to the ZHB. The appeal, which refers to the NOV dated July 5, 2023, was filed on 21 August 2023 - well beyond the 30-day deadline of either date.

“SELECTIVE” ENFORCEMENT CLAIM: In his cross-examination of Ms. Gindhart, Mr. Nochumson cited several businesses that he claims have neon signs in their windows such as Acqua e Farina at 50 Richboro Rd.

Mr. Sander objected saying "the existence of any other sign within the township whatsoever is completely and wholly irrelevant to the enforcement notice being appealed today. Mr. Nochumson, however, said his client was appealing the "selective enforcement" of the zoning code, which he said "is impermissible and unconstitutional under the Pennsylvania and United States constitutions' due process and equal protection clauses. "So it is highly relevant ," concluded Mr. Nochumson.

ANTI-SEMITISM: "I would argue,” Mr. Sander replied, “that the zoning hearing board does not have jurisdiction under the municipality's planning code to hear cases dealing with selective enforcement and constitutional violations. That is best suited ... for the United States district court for the eastern district to Pennsylvania, which in the past Mr. Dalewitz has certainly threatened to file a suit in and to date has not done so. So I'm imploring the zoning hearing board to not let this be get out of control and become an anti-Semitic issue an anti-jewish issue and anti- Borscht Belt issue. This is a sign case."

Mr. Nochumson countered with "the township selectively enforces this regulation against the Borscht Belt and not others based on the content of that speech. We're asking for this board to stop any type of violation, any type of fines against us because of that selective enforcement."

RESIDENTS’ COMMENTS: Several residents spoke up in support of the Deli's appeal and accused the township of anti-Semitism! Resident Brandon Win, the former president of Congregation Brothers of Israel in Newtown and a former member of the zoning hearing board, said "I am repulsed by the notion that people are using the term anti-Semitism about a sign. Listen to all the public comments…

CLOSING ARGUMENTS: Listen to closing arguments from the lawyers...