Newtown Township

Board of Supervisors

Minutes of August 24, 2011

The Newtown Township Board of Supervisors met on August 24, 2011 in the Township meeting room at 7:30 PM. In attendance and voting were Supervisors: Chairman Robert Ciervo, Vice Chairman Matthew Benchener, and Philip Calabro and Michael Gallagher, members. Also in attendance were: Joseph Czajkowski, Township Manager, Jeffrey Garton, Township Solicitor and Michele Fountain, Township Engineer.

Call to Order : Dr. Ciervo called the regular meeting to order at 7:35 PM with a moment of silence. This was followed by the pledge of allegiance.

Special Action

Presentation of First Fourth Donations: Joe Gordon, George Wilson, Paul Salvatore and Margo Wilson were in attendance to present donations of First Fourth proceeds to Newtown Township’s DARE program and the Lower Bucks Civil Air Patrol Troop 101. Mr. Gordon thanked the Township for its support of the celebration, which was held at various locations throughout the Township. The Committee is already planning for next year and Mr. Gordon asked anyone with comment on this year’s events or suggestions for next year to send e-mails to him at Mr. Gordon then presented a check for $600 to DARE Representative Lieutenant Glenn Forsyth and a check for $250 to Lieutenant Hoger and Lieutenant Kenser of the Civil Air Patrol. He thanked the Civil Air Patrol for its help with parking management on the day of the celebration.

Dr. Ciervo thanked the Committee for its efforts for a very successful celebration and for its partnership and support for the Run over Cancer 5K race, which was the first event of the First Fourth celebration.

Public Comment

Resident Mark Joseph asked for an update on Veterans Park.

Dr. Ciervo said that the Solicitor and Consulting Engineer on the project have been working to make sure that the park is completed correctly. He does not have a timeline for completion yet, but hopes to have a more detailed report within the next two weeks. It is hoped that work will be completed by late fall of this year.

Minutes, Bills Lists and Reports

Minutes: Mr. Gallagher said that page 2, paragraph 10 of the minutes of August 10, 2011, should read, “Mr. Benchener said that these are deficits from the recreation capital, capital project and Woll tract funds, not debts…”

Mr. Gallagher moved to approve the minutes of August 10, 2011, as corrected. Mr. Benchener seconded and the motion passed 3-0-1, with Dr. Ciervo abstaining.

Bills: Mr. Gallagher moved to approve payment of bills totaling $101,585.62. Mr. Benchener seconded and the motion passed 4-0

Mr. Gallagher moved to authorize interfund transfers totaling $190,277.76. Mr. Benchener seconded and the motion passed 4-0.

Reports of Committees, Boards and Commissions


Pension Manager’s Report: Pension Manager Grant Kalson of Dahab Associates reported that although the market has seen some turmoil in recent weeks, he would recommend that the funds remain as invested, as he feels the economy is on the mend and the funds are invested to meet very long term goals.

Mr. Kalson said that he is recommending pension managers for the four new asset classes to be added under the new investment policy statement. He presented a report outlining three possible choices for each fund and explained his reasons for favoring one manager in each class.

Under the new investment policy statement, 15% of equity is to be invested in Mid-Cap Value stocks. He recommended Ridgeworth Investments. There has been no employee turnover in recent years and dividends are important; there are clear buy-sell criteria and a diversified portfolio with $2.4 billion invested. On the negative side, this firm tends toward investment in large companies, is not a deep value player and has no employee ownership.

Five percent of the funds are to be invested in High Yield Bonds. Mr. Kalson recommended The Hartford, which has access to new issue high yield bonds. 70% of The Hartford’s portfolio is invested in high yield index funds. The negative is that some might feel that 70% is too conservative.

Mr. Gallagher said that when the Board decided to change the investment management, there was a preference for passive investment, as active management can be costly. He referenced the basis points for the managers being recommended.

Mr. Kalson said that the passive funds would have lower returns; the active funds’ returns outweigh the basis points. If the Board wants only index funds, he can speak to the managers about some adjustments.

Dr. Ciervo asked why Mr. Kalson is not recommending Federated, which has similar performance but lower basis points.

Mr. Kalson said that Federated has not beaten the index; he prefers a more aggressive viewpoint.

For investment in emerging markets, Mr. Kalson recommended Aberdeen Asset Management. Aberdeen does not have a five year performance record because its mutual funds are relatively new. Aberdeen has offices in six countries and visits over 1600 companies each year as it researches its investments. The negative for this firm is that it will be closing off this product shortly and its basis point fee is going up.

For Real Estate Investment Trusts (REITS) Mr. Kalson recommended Principal Investment Group, which invests in private real estate operating companies, hotel groups, lumber companies and other real estate investments. Principal makes over 200 visits to companies it invests in and has $2.5 billion invested. The negative is that it is top-heavy, with 61% of its investment portfolio in the top ten names.

Mr. Kalson said that in some of these categories, Vanguard is best, but the policy does not permit investment in Vanguard.

Mr. Benchener said that it had been his understanding that the Board favored low cost index investing to keep the Township’s costs lower and to avoid excess risk and to limit the Board’s fiduciary risk. He noted that the rules for fiduciary responsibility are being reviewed in Washington right now and he has some concerns about the Board’s risk with active management. He does not disagree with the choices recommended for active management, but with active management, itself. He favors indexing, especially for investment in emerging markets and mid-caps, as there is more diversity and lower costs.

Dr. Ciervo moved to accept Mr. Kalson’s recommendations for mid-cap with Ridgeworth, high yield bonds with Hartford, emerging markets with Aberdeen and REITs with Principal.

Dr. Ciervo said that he does not disagree with Mr. Benchener but feels that the index funds are not performing as well as actively managed funds.

Mr. Calabro seconded the motion.

Discussion of motion: Mr. Benchener said that he understands the good performance of the actively managed funds, but favors lower cost and lower risks.

The motion failed 2-1-1, with Mr. Gallagher voting nay and Mr. Benchener abstaining.

Mr. Gallagher said that he has concerns that the basis points charged for active management may become too costly.

Dr. Ciervo disagreed because the costs are rolled into the overall performance.

Dr. Ciervo said that he would like the Board to consider using State Street Global for the transition period from Merrill Lynch at a cost of $3000.

Mr. Kalson said that when a third party handles the transition, that third party assumes fiduciary responsibility, which would otherwise fall to the Supervisors. Merrill Lynch had estimated a 7 to 10 day transition, but State Street Global estimates a 3 to 4 day transition period. If the market goes up during that time, the portfolio will go up. M&T, the custodial bank, has had a very positive relationship with State Street Global.

Dr. Ciervo moved to approve State Street Global to sell and re-invest the pension funds. Mr. Calabro seconded and the motion passed 3-0-1, with Mr. Benchener abstaining.

Planning Commission: Commission Chairman Allen Fidler reported that at its August 16, 2011 meeting the Commission reviewed the applications for land development and conditional use for The Birches, 54-84 Durham Road. The applicant is seeking approval for conditional use C-12, nursing home and land development for consolidation of seven parcels for construction of an 87,243 square foot assisted living facility with associated parking, access drive improvements, landscaping and stormwater management. Of concern is the parking calculation; the applicant used the per shift maximum number of employees, 30 employees on the day shift, rather than the total number of employees for all shifts, which is 45, to calculate required parking. As a result, the applicant used 224 parking spaces for site calculations, rather than 239 spaces. This change would increase the impervious surface calculation by 659 square feet, or 0.2% above the permitted maximum impervious surface. The applicant has expressed an intention of holding all but 88 parking spaces in reserve, to be installed if needed, and has agreed to an annual review of the parking and has agreed to review the plans to attempt to find 659 square feet of impervious elsewhere on the plan which could be removed to compensate for the parking calculation change, or would return to the Zoning Hearing Board for the relief for an additional 0.2% impervious surface. The Commission voted to recommend that the Supervisors approve both the conditional use application and the land development application subject to certain conditions. Included in the conditions are: that the Eagle Road entrance be right in/right out; that no trail be extended on Eagle Road on this property; that tree replacement be confined to the site rather than to other properties in the Township, if possible. It was the opinion of the Commission that planting trees elsewhere could be a burden to the Township, as these trees would not be part of the 18 month maintenance tree replacement requirement. While the majority of the members in attendance voted to recommend the two applications, this was not a unanimous vote. Some members had concerns that the installation of 88 parking spaces would not be adequate and that the annual review of parking would be a burden to the Township. Those opposed felt that the parking would not be sufficient for weekends and special occasions when residents of the facility have visitors. Some of the facility’s residents continue to own cars and drive, adding to the parking burden. The members voting against the recommendation were only concerned about the parking, but were otherwise supportive of the plans and the use.

Mr. Calabro asked whether the Eagle Road entrance, which is restricted, would be the only entrance.

Mr. Fidler said that the plans show a full entrance with deceleration lanes on the Durham Road side of the building. It is his understanding that the applicant has not yet submitted a highway occupancy permit application. Residents of Cliveden have asked that the Eagle Road entrance be restricted so as not to impact traffic near the intersection with Durham Road.

Ms. Fountain confirmed that the highway occupancy permit had not been submitted yet. She and the traffic engineer will be meeting with the project’s engineers shortly to review possible intersection improvements at Eagle and Durham Roads.

Mr. Fidler said that the project could not move forward without the highway occupancy permit.

Engineer’s Report

Newtown Walk Phase III Certificate of Completion: Mr. Benchener moved to authorize escrow release in the amount of $183,088 to Newtown Walk Phase III. Dr. Ciervo seconded.

Discussion of motion: Dr. Ciervo asked whether the issues with the stormwater basin have been resolved.

Ms. Fountain said that the basin was constructed as per plan. The developer has gotten a permit from the DEP to clean out the basin in response to residents’ complaints. This will not impact the certificate of completion.

Mr. Calabro asked whether this development was part of the restriction on using the word “Newtown” in naming developments.

Mr. Garton said that the development was approved about five or six years ago and now has vested rights to the name.

The motion passed 3-1, with Mr. Gallagher voting nay.

Solicitor’s Report

Red Berry Yogurt, 2830 South Eagle Road, Conditional Use: Mr. Garton reminded the Board that this hearing had been opened at the August 10, 2011 meeting. At that time the Board had asked the applicant to obtain letters from his immediate neighbors, Radio Shack and Miele Vacuums as well as from Bagel Junction, confirming that they did not object to twice weekly deliveries at the front entrance.

Applicant David Wheeler said that he spoke to the owners and managers of the businesses and obtained approval from Miele and Bagel Junction. While Radio Shack’s manager had no objection, he could not sign the letter without approval from the corporate offices. The corporate office would only agree to approval if the deliveries did not disrupt Radio Shack business. He presented a photograph of the already designated delivery parking space and agreed that his delivery truck would only use that space, which is in front of his and the vacuum shop, not in front of Radio Shack.

Resident John D’Aprile said that the Township should be supportive of applicants trying to bring new business to Newtown. The drive aisle is adequate to accommodate delivery vehicles and passing cars.

Mr. Garton reviewed the conditions of approval, which included a condition that the approval is for this applicant only and not to any future owner of the business.

Mr. Gallagher said that he did not think that condition would be necessary.

Mr. Wheeler agreed to the proposed conditions.

Mr. Gallagher moved to grant conditional use approval for an E-5 eating place and E-6 drive-through/carry out eating place at 2830 South Eagle Road in the PC, Planned Commercial Zoning District, subject to the following conditions:

  1. That the applicant comply with the CKS Engineers, Inc. review letter dated July 26, 2011,
  2. That the applicant comply with the Boucher and James review letter dated June 23, 2010,
  3. That the proposed use satisfies the specific requirements applicable to the proposed uses, E-5 and E-6, under Section 803 of the JMZO,
  4. That the number of employees will be 3 to 4 per shift for a maximum of 7;
  5. That the hours of operation will be 9:00 AM to 11:00 PM, Monday through Sunday,
  6. No hazardous, flammable or explosive material which require special handling shall be stored or used in the building,
  7. No noxious, hazardous or offensive impact upon surrounding areas be created by the proposed use by reason of dust, odor, smoke, gas, vibration, illumination or noise, or which constitutes a public hazard by fire, explosion or otherwise.
  8. No loud music shall be generated on site and no music shall be audible from the premises .
  9. Signage shall conform to the Township sign ordinance;
  10. The premises shall be ADA compliant.
  11. That the proposed use satisfies the specific requirements applicable to the proposed use under Section 1301.B of the JMZO;
  12. Parking is deemed adequate;
  13. All review, legal, engineering, administrative and other review fees shall be paid to the Township;
  14. A copy of the lease, as required under Section 1302.B of the JMZO shall be provided to the Township;
  15. Outdoor seating shall be limited to benches in front of the shop;
  16. Deliveries shall be twice per week by truck in the designated delivery space and not in front of Radio Shack,

Mr. Benchener seconded and the motion passed 4-0.

Mr. Benchener asked when the shop will be open for business.

Mr. Wheeler said that he expected to open in January or early February.

Manager’s Report

2011 Fire Protection Fee Schedule: Mr. Czajkowski reminded the Board that the Fire Marshal had discussed an increase in the fees charged for re-inspection and for administrative fees for re-invoicing. The proposed fees the Fire Marshal is recommending are that if the annual fire prevention inspection reveals violations, if those violations are corrected, no re-inspection fee shall be charged, but if uncorrected, a fee equal to the annual inspection fee imposed at the time of the original inspection shall be imposed for each re-inspection. Administrative fees for re-invoicing unpaid fire inspection fees shall be 12.5% but not less than $10 for each 30 day period. The language of the fee structure has been reviewed by the Solicitor. Businesses will be made aware of the fee schedule in advance of inspection.

Mr. Gallagher moved to amend the 2011 fire protection fee schedule as outlined above. Mr. Benchener seconded and the motion passed 4-0.

Defined Contribution Retirement Plan: Mr. Czajkowski reminded the Board that he had been researching a defined contribution retirement plan for newly hired non-union, non-uniformed employees and had spoken to the actuary, who recommends that a mandatory employee contribution of between 3 and 5% should be part of the plan, with the employer matching the mandatory contribution. The cost to initiate such a plan would be $4000.

Dr. Ciervo said that he would like the Township to match up to a certain cap. He would like the plan in place before there are any new hires. He suggested adding this to an upcoming agenda.

Old Business

Mr. Gallagher said that he would like to re-open the question of an appointment to the Planning Commission, which had been tabled at the last meeting.

Mr. Gallagher moved to un-table his motion to appoint Craig Deutsch to the Planning Commission. Mr. Benchener seconded.

Ms. Fountain and Mr. Garton notes that Mr. Gallagher’s motion to appoint had been withdrawn, not tabled.

Mr. Calabro objected to the discussion, as it had not been on the advertised agenda.

Mr. Gallagher moved to appoint Craig Deutsch to the Planning Commission. Mr. Benchener seconded.

Discussion of motion: Mr. Calabro said that he objected to the action being taken when it had not been advertised. He said that he would not want to set any precedent of appointing people to our committees without notifying residents. He felt this was being snuck into the agenda, as it was not mentioned earlier in the meeting when agenda changes can be announced. He noted that there had been more than one applicant.

Mr. Gallagher said that there was only one eligible applicant. He disagreed that it was being snuck onto the agenda, because it had been on a previous agenda. The appropriate place to bring it up is under old business.

Mr. D’Aprile said that he understood both points of view but as a resident felt that a new appointment would benefit the Township and should not be delayed further.

The motion passed 3-1, with Mr. Calabro voting nay.

New Business

Mr. Czajkowski announced that the Supervisors would meet on the first and third Wednesdays in September, September 7 th and 21 st. He has discussed this with all of the Board members; Mr. Schenkman is aware of and amenable to the change.

Dr. Ciervo said that he has been asked by a number of new residents to address their concerns about having been issued temporary certificates of occupancy, and later the developer is not forthcoming in completing certain outstanding work.

Mr. Garton explained that there are often compelling reasons for granting temporary certificates of occupancy, including a buyer’s eagerness to move into his newly built home because he has sold his old home. The requests for temporary certificates are coming from the homeowners, not the developers.

Ms. Fountain pointed out that sometimes the certificates are issued in the winter when outdoor work, such as planting of landscaping and seeding of lawns, cannot be completed.

Mr. Czajkowski confirmed that these requests are coming from the residents/homeowners, not the developers.

Mr. Garton said that it is very difficult to educate residents about temporary certificates, but he noted that developers’ escrow is withheld and the Township does not accept dedication until all temporary certificates have been converted to permanent.

Dr. Ciervo announced that the Board would remain for executive session.

The meeting adjourned at 9:30 PM.


Respectfully Submitted:
Mary Donaldson, Recording Secretary



Joseph S. Czajkowski, Township Manager

Robert Ciervo, Chairman

Matthew Benchener, Vice-Chairman

Jerry Schenkman, Secretary/Treasurer

Philip Calabro, Member

Michael Gallagher, Member