Newtown Township

Board of Supervisors

Minutes of August 22, 2012

The Newtown Township Board of Supervisors met on August 22, 2012 in the Township meeting room at 7:30 PM. In attendance and voting were Supervisors: Chairman Michael Gallagher, Vice Chairman Matthew Benchener, Secretary/Assistant Treasurer Ryan W. Gallagher and Philip Calabro and Robert Ciervo, members. Also in attendance were: Kurt Ferguson, Township Manager, Jeffrey Garton, Township Solicitor and Michele Fountain, Township Engineer.

Call to Order : Chairman Gallagher called the meeting to order with a moment of silence. This was followed by an invocation by Pastor Dwyer of Addisville Reformed Church and the Pledge of Allegiance.

Reports of Committees, Boards and Commissions

Historical Architectural Review Board: Member Bill Mahler reported that HARB reviewed an application for a repainted sign at Brass Lantern, 221 North Sycamore Street, and though the meeting lacked a quorum, those in attendance recommend that approval.

Mr. Benchener moved to grant a certificate of appropriateness for The Brass Lantern, 221 N. Sycamore Street, as outlined in a memo dated August 13, 2012.

Brass Lantern owner Roger Anderson said that he would be downsizing his business and moving from Carousel Gardens to the former Carriage House on Sycamore Street.

Mr. Mahler said that HARB members had discussed a number of signs in violation of the Ordinance throughout the historic district and asked the Board to enforce this.

Mr. M. Gallagher said that the Township would follow up, but suggested that HARB contact the Sycamore Street Community Association, which had expressed willingness to monitor the street for sign violations.

Planning Commission: Chairman Allen Fidler reported that the Commission had reviewed an application for a use variance for uses E-5 eating place and E-6 eating place drive-in, in the cafeteria in the Waste Management building, 100 Brandywine Blvd. Applicant Frank Agabiti has opened the cafeteria to serve the employees working in the building only, but wishes to expand to service the surrounding business districts with take-out and catering, Monday through Friday from 6:30 AM to 5:00 PM. The Commission discussed this application at length. It presented a number of concerns having to do with the use variance and with this particular plan. Of particular concern were the following questions:

The Commission realizes that to amend the ordinance to permit this type of use would require approval of the Township and Jointure partners and would delay the applicant’s business plans to his business’s detriment.

Regarding the hardship criteria, the Commission felt that if the applicant can demonstrate that he could not successfully support the cafeteria business without expanding to serve the entire business community through off-site catering and lunch deliveries, it could be considered a hardship.

The Commission discussed the possible impact to the surrounding community. Without information on traffic, the Commission was only anecdotally able to judge, but felt that the business is located at the intersection of two major arterial roads, making it a good location with minimal traffic impact. The Commission discussed the possibility of serving patrons in the morning stopping on their way to I95, but did not see this as a traffic difficulty. It was also noted that with a cafeteria on site, the tenant employees would not leave the site at lunchtime, which would offset any additional patron traffic coming to the cafeteria. The Commission considered that the presence of a cafeteria at this location could improve the occupancy rate of the building.

While the Commission is recommending that this application be left to the discretion of the Zoning Hearing Board, it is also asking the Supervisors to consider amending the ordinance to permit E-5 and E-6 uses in our business districts as a conditional use, with clearly defined standards. The Commission did not have an objection to this use at this location, agreeing that it could possibly prove beneficial to the surrounding business community.

Mr. Garton asked whether the Commission had discussed parking.

Mr. Fidler said that the applicant indicated that he had 18 designated spaces in the very large parking lot. When the building is at full occupancy, the parking would need to be reviewed.

Mr. Benchener asked what percentage of the building is currently vacant.

Ms. Fountain said that two of the three floors are occupied, leaving about 1/3 of the building unoccupied, minus the cafeteria. She estimated that about 25,000 square feet are still vacant.

Board Reports


2011 Draft Audit: Linda Major and Vicki Maestro were in attendance to review the draft audit for 2011. Ms. Major noted that this is a qualified opinion, as Keystone, the County-wide earned income tax collector, did not have a controlled audit available for review. As a result, Major & Maestro does not know whether Newtown Township has received all that it should have.

Mr. Gallagher noted that as a result of this, Bucks County has paid for an independent audit of Keystone.

Mr. Ferguson said that he has had experience working with Keystone in the western part of the State and this is not usually a service Keystone had provided. An audit is now being included in RFP’s for tax collection.

Ms. Major reviewed the Township’s assets and liabilities as follows:

Ms. Major noted a shortfall of $292,000 at the end of last year.

Mr. Ferguson pointed out that the budget had anticipated a shortfall and the estimated shortfall was less that 02% off from what had been anticipated.

Ms. Major said that this is a draft statement.

Waiver of Parade Fees: Mr. M. Gallagher reported that Newtown Borough had recently established a policy waiving fees for security for parades. He would like the Board to discuss whether to establish a similar policy. Fees are usually collected for police protection at a rate of $75 per hour per police officer. First Night required one officer for 6 hours, the Memorial Day festivities required 7 officers for a total of 28 hours, as did First Fourth, which cost about $8500 in police overtime. Sycamore Street events cost about $4350 for security. He suggested that the Board consider a policy which would not charge government entities or non-profit organizations for security for these events.

Dr. Ciervo said that this has been discussed before. During times of very tight budgets, when the Board has suspended charitable giving, he would hesitate to waive these fees. He did not object to waiving the Memorial Day Parade events’ fees, as this is a Township and Borough wide event honoring our fallen soldiers and everyone in Town participates. However, other events, while sponsored by non-profit groups, do, in fact, raise money. He noted that Welcome Day charges fees from vendors and many events do bring profits to the sponsors.

Mr. M. Gallagher said that he favors waiving fees for events sponsored by government entities like the Rescue Squad or the Fire Association.

Dr. Ciervo said that these organizations could be asked to co-sponsor events to avoid fees. He would rather limit the waiver to the American Legion and the Memorial Day Parade, only.

Mr. Benchener agreed with Dr. Ciervo that they could end up crafting a policy which could be abused. He would rather decide each request on a case by case basis, as many non-profit sponsors could help to raise money for commercial enterprises.

Mr. Calabro agreed with Dr. Ciervo, noting the many worthy organizations to which the Township no longer contributes because of budget constraints. Even if a policy were crafted limiting the waiver to events sponsored by government entities, this could include any group which partners with Newtown Corporation.

Mr. Garton noted that in Doylestown events are managed by fire police, which are less costly than off duty police officers. He suggested that when events are in the planning stages, they could be reviewed by the Manager and Police Chief to determine whether a waiver might be appropriate. He noted as an example, that the Township would not bill itself for an EAC sponsored event.

Engineer’s Report

Roadway Improvement Program: Mr. Benchener moved to authorize payment to Bray Brothers, Inc. for the roadway improvement pay estimate #3 in the amount of $149,296.63. Dr. Ciervo seconded and the motion passed 5-0.

Dr. Ciervo asked if the roadway work has been completed.

Ms. Fountain said some minor stabilization work is still to be done and handicapped ramps are still to be installed. The project has come in under budget.

Solicitor’s Report

PrintMail Systems, Inc. – Waiver Agreement: Mr. Garton reminded the Board that in September of 2010, it had agreed to a waiver of land development for PrintMail’s plan to install some of the parking spaces it has held in green. A condition of the waiver had been to enter into a waiver agreement with the Township. PrintMail delayed its plans for internal reasons, but has not executed the waiver agreement. The Board should now consider approval of the agreement.

Mr. M. Gallagher said that he would abstain from voting on this agreement, as PrintMail is his employer.

Mr. Benchener said that he would also abstain, as PrintMail is his wife’s employer.

Resident Jay Sensibaugh said that he did not recall the Township ever waiving land development on a plan that did not directly benefit the Township.

Ms. Fountain pointed out that the parking spaces were part of the original land development plan, but had been held in green. They are now needed. The applicant will be submitting proper stormwater management plans.

Mr. Garton said that at the time the waiver was considered, the Board agreed to it because the parking spaces had been included in the original land development plans.

Mr. R. Gallagher moved to approve the waiver of land development agreement for PrintMail Systems, Inc. Dr. Ciervo seconded.

Mr. Calabro moved to table the motion. It failed for lack of a second.

Discussion of Mr. R. Gallagher’s motion: Mr. Garton said that the Board had approved the waiver well over a year ago, before Mr. Gallagher was employed at PrintMail.

Mr. Calabro questioned Mr. Benchener’s need to abstain. The waiver involves only increased parking. Mr. Benchener would not directly benefit financially from the waiver. He should still be allowed to vote on this.

Mr. Benchener said that he prefers to avoid even the appearance of impropriety and so did not want to participate in the vote.

Mr. R. Gallagher said that it was his understanding that only if a supervisor were to have pecuniary gain should he not participate in a vote.

Mr. Garton confirmed this and again noted that the waiver had already been granted. This agreement was one of the conditions of the waiver; the applicant has met all of the conditions. The agreement only confirms the waiver. He explained that for an action to be approved would require three affirmative votes in a second class township.

Dr. Ciervo said that he has rarely been willing to grant a waiver of land development except in the case of benefit to the Township or in certain instances when non-profit organizations undertake very small projects. In this instance, the parking was part of the original plan but is only now being installed. He did not think a full review was necessary. He asked whether the applicant could proceed with the installation without stormwater management.

Ms. Fountain said that other Township ordinances and the waiver both required stormwater management.

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

Grease Ordinance: Mr. Garton reminded the Board that at the July 11, 2012 meeting the Board had authorized advertisement of an ordinance to allow the Newtown Sewer Authority to monitor grease interceptors in commercial facilities to prevent greases, oils and fats from entering the sanitary sewer system. The Ordinance has been duly advertised and after a public hearing is ready for adoption.

Mr. M. Gallagher opened the public hearing.

Dr. Ciervo moved to adopt 2012-O-5, an amendment to the provisions of chapter 18 of the Township’s Code of Ordinances. Mr. Benchener seconded and the motion passed 5-0.

Zoning Hearing Board Application, Frank Agabiti- 100 Brandywine Blvd.: Mr. Garton explained that the applicant is seeking a variance to permit uses E-5 and E-6, eating place and eating place/carry out in an existing accessory cafeteria in the Waste Management building. These uses are not permitted as primary uses in the OR, office research zoning district. He noted that a variance would run with the land and the business could be sold to a fast food restaurant in the future.

Attorney Don Marshall represented the applicant. He explained that the cafeteria had been built for a single user building. That building is now used by multiple tenants; none of the tenants wants to run the cafeteria and so it has been offered for lease.

Mr. Agabiti supplied photographs of the 4070 square foot cafeteria, which currently has seating for 52 patrons. He explained that in addition to the cafeteria for tenant patrons, he would like to offer breakfast and lunch to outside customers and would like to offer off-site catering and delivery. He would like to remain open until 5:00 PM, offering take out dinners to employees in the area. The building has 530 parking spaces; his business is specifically allotted 18 spaces, but that can be revisited.

Mr. Marshall said that he understood that the Planning Commission had suggested adding the E-5 use as a conditional use. The applicant is willing to accept conditions that would prevent the business from being sold to McDonald’s or any other fast food or full service restaurant.

Mr. Garton said that the Board could possibly consider expanding the already approved accessory use to permit catering and off-site sales to non-tenants.

Dr. Ciervo asked whether there is anything to prevent the applicant from expanding his hours.

Mr. Marshall said that there are no restrictions on the hours for the already permitted accessory use.

Dr. Ciervo said that he has some concerns about allowing a restaurant use in the OR District, which had been specifically designed and planned for offices, only. He would not want to see any of the empty parcels developed as full service restaurants or fast food restaurants.

Mr. Marshall noted that the business cannot be successful with the current restrictions but the applicant would be willing to withdraw the application if the accessory use could be expanded to allow service to non-tenants and outside catering.

Mr. M. Gallagher asked if Dr. Ciervo would be opposed to food preparation at this location for delivery elsewhere off-site.

Dr. Ciervo asked whether a catering business would be permitted under the ordinance without any on-site food service.

Mr. Garton said that it is not permitted. He asked whether the applicant would provide on-site catering.

Mr. Marshall said that the applicant does not want to police his customers to be sure they are employees of the building tenants and he wants the ability to prepare food for deliveries off-site, only. There would be no on-site catering.

Dr. Ciervo said that he has concerns about traffic with a business that offers coffee and breakfast foods to go so close to I95. He noted traffic congestion near the Dunkin Donuts in Lower Makefield as the reason for his concern. He would be opposed to opening the restaurant to the public, but did not object to catering and food preparation for delivery from the site.

Mr. Garton said that the accessory could possibly be expanded with certain limits on the on-site service to non-tenants. He suggested that he work with Mr. Marshall to develop an agreement that would address Board concerns while allowing some expansion of the permitted business.

Mr. Benchener said that he has similar concerns to Dr. Ciervo’s. He would not strongly object to some expansion of the accessory use, but would not support a variance for a full service cafeteria open to the public.

Mr. Marshall said that the cafeteria site had been run by the single tenant for the benefit of its employees. The space is no longer fully occupied nor does it have a single tenant. The business now needs to be run as a for-profit entity.

Mr. Agabiti said that the cafeteria has a fully outfitted commercial kitchen. The lease is very high and will increase yearly. He would need to expand the business in order to make it a success. He had been misled by the former tenant, who did prepare food for catering. To move elsewhere in the Business Commons’ LI district, where catering is permitted, would not be possible, because of outfitting the kitchen. This kitchen has over $500,000 in kitchen equipment.

Mr. M. Gallagher said that he would like to hammer out some kind of agreement to expand the accessory use for this applicant, rather than oppose the Zoning Hearing Board application. He noted that the Planning Commission felt the concept was good. He suggested asking Mr. Garton to try to draft an extension or expansion of the permitted accessory use.

Mr. Marshall said that he would need to speak with his client. He feels there is merit to having an eating place at this location but would need to have a better understanding of what would be acceptable to his client.

Dr. Ciervo said that he would also be concerned about costs associated with Mr. Garton’s time.

Mr. Garton said that he did not think it would take too much time to explore a fair compromise but sending the solicitor to oppose a zoning application would be more expensive.

Dr. Ciervo asked what type of catering Mr. Agabiti planned to do.

Mr. Agabiti said that he has spoken to some of the larger businesses in the area, who sponsor catered events like breakfasts and lunches, frequently throughout the year. He would also be delivering trays for breakfast and lunch meetings.

Dr. Ciervo said that he thought that an agreement might be possible within those parameters.

Mr. Marshall agreed to continue the Zoning Hearing Board application and work with Mr. Garton.

Manager’s Report

DROP Plan for Firefighters: Mr. Garton asked the Board to adopt a resolution to allow firefighters Deferred Retirement Option Plan funds to be invested with ICMA Retirement Corporation.

Dr. Ciervo moved to adopt a resolution to allow firefighters DROP money to be invested with ICMA Investment Corporation. Mr. M. Gallagher seconded and the motion passed 4-0-1, with Mr. Benchener abstaining.

Other Manager’s Business: Mr. Ferguson said that he is updating monthly reports for the Supervisors and hopes to make them more anticipatory, featuring a project checklist.

He has met with both the Fire Chief and the Fire Association Chief to discuss hierarchy of command and control so that the Township Fire Chief is in command at all Township fires. They have an oral agreement which will be memorialized shortly.

Minutes, Bills Lists and Reports

Minutes: Dr. Ciervo moved to accept the minutes of the regular meeting of August 8, 2012. Mr. Benchener seconded and the motion passed 5-0.

Bills: Mr. R. Gallagher moved to approve payment of bills totaling $450,704.21. Mr. Benchener seconded.

Discussion of motion: MR. R. Gallagher noted that this includes the roadway improvement program payments.

Mr. Sensibaugh asked about payments to Northampton Township.

Mr. M. Gallagher said that the Township contracts with Northampton for streetlight repair because Newtown does not have the necessary equipment.

Mr. Sensibaugh asked about payments to Gilmore & Associates for McDonald’s.

Mr. Ferguson explained that these are previously submitted bills for work done on the McDonald’s Zoning Hearing Board application, which had been held until the escrow account had been replenished.

Mr. Sensibaugh asked about the payment to Newtown Ambulance. He noted that the Ambulance Squad’s reserves are larger than the Township’s.

Mr. M. Gallagher said that this is the quarterly remission of a percentage of the local services tax.

Mr. Calabro asked about payment to Milham Ford.

Mr. M. Gallagher said that this was for a replacement vehicle, part of the Township’s replacement plan.

Mr. Ferguson reported a cash balance of $1,049,079 after these payments. He said that he would have a cash balance report at the first meeting of each month, going forward. This would allow for a consistent view of revenues and expenditures.

The motion passed 5-0.

Mr. R. Gallagher moved to approve interfund transfers totaling $202,915.37. Mr. Benchener seconded and the motion passed 5-0.

Old Business

Mr. Calabro asked for an update on Veterans Park.

Mr. Garton said that he is still awaiting responses to his last letters.

Mr. M. Gallagher announced that the Board would remain for an executive session.

The meeting adjourned at 9:35 PM.



Respectfully Submitted:
Mary Donaldson, Recording Secretary



Kurt Ferguson, Township Manager

Michael Gallagher, Chairman

Matthew Benchener, Vice-Chairman

Ryan W. Gallagher, Esq., Secretary/Treasurer

Philip Calabro, Member

Robert Ciervo, Member