Newtown Township

Board of Supervisors

Minutes of November 28, 2012

The Newtown Township Board of Supervisors met on November 28, 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 Reverend Paul Chreiman of Newtown United Methodist Church and the Pledge of Allegiance.

Changes to the Agenda: Mr. Ferguson announced that a review of the HVAC maintenance agreement has been added to minor approvals and the budget discussion has been moved to Board reports.

Minor Approvals

Historical Architectural Review Board, Allstate, 5 N. Sycamore Street: William Mahler of HARB presented an application for a certificate of appropriateness for a free-standing sign for 5 N. Sycamore Street. He explained that when reviewing Allstate’s application, HARB found that some of the signage might need some zoning relief, and so only recommended approval of the permitted free-standing sign. The applicant has agreed to change the lighting described in the application to smaller LED lighting.

Greg Kramer of Allstate said that the lights now proposed will be smaller and broader and energy efficient. He said that his business is an active participant in community affairs, including a “no texting while driving” initiative for young drivers and sponsorship of local sports teams.

Mr. Benchener moved to approve a certificate of appropriateness for signage at 5 N. Sycamore Street, as outlined in a memo dated November 14, 2012, with lighting to be replaced by small LED lights as recommended by HARB. Dr. Ciervo seconded.

Discussion of motion: Mr. Kramer said that he found the Township signage ordinances very restrictive and difficult to work with, especially for franchisees, who are required by the franchise to use specific signage. Of particular concern to him is a restriction on the entrance door at the rear of the building, which, in addition to being a directional sign for the entrance, contains the Allstate logo, as required by the franchise, but prohibited by the Township.

Mr. M. Gallagher said that the Township is aware that its signage ordinances have some restrictions which should be re-evaluated and he hopes that the Planning Commission will review and make some recommendations for changes which will improve the approval process.

Mr. R. Gallagher asked about the rear door sign.

Mr. Kramer said that his business does not have a front entrance. The entrance is at the rear, facing the parking lot. Allstate provides the signage which, in addition to the word “enter”, contains the Allstate logo, hours of operation, telephone number and some licensing information.

The motion passed 5-0.

HVAC Maintenance Contract: Mr. Ferguson explained that the Township is entering the final year of a three year maintenance contract with Worth & Company. This contract contains an opt-out provision. The cost of the contract for the final year is about $8300. He would recommend giving 30 days’ notice to opt out and then seek quotes for another contract with other providers. Worth would be invited to make a proposal, as well. He estimated that costs could be lowered about 30%.

Dr. Ciervo asked whether the Township would be obligated to accept the lowest bid. He had concerns about being forced to accept a low bid from a less reputable provider.

Mr. Garton said that this is considered contracted professional service and would not be subject to the bidding process.

Mr. Ferguson assured the Board that the Board would have discretion to consider providers’ reputations as well as costs.

Mr. M. Gallagher moved to authorize the Township Manager to opt out of the HVAC contract with Worth and Company and seek other options. Dr. Ciervo seconded and the motion passed 5-0.

Reports of Committees, Boards and Commissions

Planning Commission: Chairman Allen Fidler reported that at its November 20, 2012 meeting the Commission reviewed the Zoning Hearing Board application of David and Geraldine Platt, 761 Newtown Yardley Road. The previous application sought relief for use B-19, transitional residential, to build a 64 unit townhome development. As the Supervisors had indicated opposition to that application, the property owner and developer have revised the plans to now seek relief for a 52 unit townhome PRD, use B-15. Use B-15 requires a mix of housing types and a minimum of 25 acres. The subject property is 16.36 acres and only one type of housing, townhomes, is proposed. Attorney John VanLuvanee, representing County Builders, equitable owners, presented plans for a 52 unit by-right plan with a mix of townhomes and single family homes with 40% open space as a comparison to the 52 townhome development depicted in the application, which would allow 55% open space.

The Commission asked the applicant to revisit the request to provide shared access to the property with Weglos Dental Offices. The applicant agreed to attempt this and volunteered help with redesign of the Weglos parking to accommodate the single shared access.

The Commission discussed recreation facilities for the development. The applicant indicated that preliminary discussion had taken place to share recreational facilities with Headley.

As this meeting lacked a quorum, recommendations to the Board are informal. The townhouses proposed will be 3,000 square feet and will be attractive to families with children. The Commission members in attendance had concerns about the proposed density and its impact on roads and schools. The members are recommending that the Supervisors consider whether the density can be further reduced before the application proceeds to the Zoning Hearing Board. If the Supervisors are not in favor of the currently proposed density or are unable to come to an agreement with the applicant on an appropriate density, then the Commission would suggest that the Township participate as parties at the Zoning Hearing Board. The members also recommend that the Supervisors seek as conditions of zoning relief that the shared access point with Weglos Dental be incorporated into the design and that efforts continue to forge an agreement to share recreational facilities with Headley or that the development provide some recreational facilities on site.

Dr. Ciervo questioned the characterization of the 52 unit plan with a mix of housing types as “by right.”

Mr. Fidler said that the applicant’s attorney presented a plan which he called “by right.” The Planning Commission did not question this, but only evaluated the application for the 52 unit townhouse development.

Board Members’ Reports: Dr. Ciervo reminded residents that Saturday, December 1, 2012 is the Township’s annual candy cane hunt at Roberts Ridge Park at 11:00 AM. Registration through is required for this free event of our Park and Recreation Department, sponsored by donations from a number of local businesses.

2013 Preliminary Budget

Mr. Ferguson explained that since the budget was presented on November 14, 2012, he has made a number of adjustments. He provided the Board with copies of the general funds, TSA I and II and liquid fuels budgets as well as a summary of changes recently made. The first draft budget showed a 2013 year end reserve of about $36,000. Through a number of changes, some large and some small, the general fund balance at the end of 2013 is now projected to be $821,203.

Mr. Ferguson reviewed a number of the changes made to the budget, including an increase in projected real estate transfer tax and earned income tax collection, elimination of a management salary and sale of an easement for Township owned cell tower land. The Township’s finance director has retired and that position will be eliminated. The Township has been contemplating sale of the cell tower land for some time. This will bring in about $550,000. In addition, other small adjustments have been made to expenditures.

Mr. Benchener said that he feels the changes to projected tax revenues are appropriate, although they are still very conservative projections. He would be comfortable increasing the real estate transfer tax and earned income tax even higher, reflecting an improvement over this year’s actual collections. He would also like to add purchase of a police car into the budget.

Mr. Ferguson said that he strongly favors being very conservative on the revenue side. The revenue can be reevaluated in the summer and if funds are available the decision to purchase a police car can be revisited. He strongly favors postponing consideration of capital purchases until mid-year. He noted that the cell tower land sale is a one-time addition.

Mr. M. Gallagher said that while he agrees that spending must be very conservative, he has concerns about falling behind on equipment replacement. He would like to consider adding one police car to the budget.

Mr. Garton said that the budget can be increased but purchase of the car can be postponed until summer, when the Board will have a better understanding of whether revenues are keeping pace with projections. He reviewed the requirement to pass a preliminary budget which will be advertised for twenty days. After the preliminary budget has been passed it can be changed by 10% or can have individual categories changed by 25% before the final budget is adopted at the December 19 meeting.

The members discussed whether to increase the EIT and transfer tax revenues. Mr. Calabro favored being very conservative on the real estate transfer tax income. The members agreed to be cautious and use the numbers in Mr. Ferguson’s budget.

Mr. Gallagher said that the numbers do look better than the first draft numbers. He would be comfortable adding the purchase of the police car without adjusting the revenue; actual purchase of the car should be postponed until summer.

Mr. Ferguson said that even without changing the income and adding the police car, the budget will show a reserve fund balance of about 8%. DCED guidelines recommend a 7% reserve fund balance.

Mr. M. Gallagher asked about the change in ratio of resident to non-resident earned income tax.

Mr. Ferguson said this is the result of better coding by the new tax collector.

Mr. M. Gallagher asked about animal control.

Mr. Ferguson said that this has been moved to contracted services.

Mr. Ferguson reviewed the TSA funds for the Terry Drive extension, noting that $110,000 is in the budget for engineering. There has not been any estimate for construction costs yet, so it has not been included. There is another project also to be funded, but this can be discussed at a later time. There is $900,000 in the TSA fund.

Mr. M. Gallagher asked about cell phone service.

Mr. Ferguson said that the service issues have been resolved but he will be reviewing providers next year. The Board should have a discussion on its policy regarding reserve funds and whether to place certain capital purchases in the budget or review those purchases mid-year when a better indication of funding will be available.

Dr. Ciervo noted some mathematical discrepancies in the fire protection fund.

Mr. Ferguson said that there was a totaling error in the calculations which he will correct before posting the budget.

Dr. Ciervo asked about capital improvements and spending in the parks.

Mr. Ferguson explained that he hesitated to include any capital spending in the parks until all issues with Veterans Park have been resolved. There is a possibility the Township could have some further expenses in Veterans Park. He did not want to have to borrow from the general fund for the parks.

Dr. Ciervo asked how the budget for building permits was calculated.

Mr. Ferguson said that he based the number on outstanding projects the Township is already aware of; it is a slight underestimation.

After some further discussion, the members agreed to budget $30,000 for a police car.

Dr. Ciervo said that he was uneasy about selling the cell tower easement. This land has produced lease income every year and the sale is a one-time revenue source being used to “plug a hole” in the budget.

Mr. Calabro agreed with Dr. Ciervo, saying that although the budget now shows a reserve of $823,000, $550,000 is from a one-time sale. Without the sale, the reserve fund would be less than $300,000. He was very uneasy fixing the budget by selling Township assets.

Mr. M. Gallagher disagreed, noting the money will be used to boost the reserve fund balance. It is being added to the Township’s savings and not being used for general fund expenses.

Mr. Benchener said that he was comfortable with selling the easement, noting that sale of assets is a very common business practice.

Mr. R. Gallagher said that the Board has been considering this sale for about one year. It is a depreciating asset and it is appropriate to be added to the reserve fund.

Mr. Benchener moved to adopt the preliminary budget, with corrections to the fire fund calculations and the addition of a police car purchase in the amount of $30,000. Mr. M. Gallagher seconded and the motion passed 4-1, with Mr. Calabro voting nay.

Engineer’s Report

Harold Beck and Sons Certificate of Completion #2 – Final: Mr. Benchener moved to authorize escrow release in the amount of $381,286.47 to Harold Beck and Sons, subject to the condition that a maintenance agreement will be signed and all outstanding invoices be paid. Mr. M. Gallagher seconded and the motion passed 5-0.

Solicitor’s Report

Maintenance Agreement for Harold Beck and Sons: Ms. Fountain explained that the applicant wishes to post a cash deposit rather than a maintenance bond.

Dr. Ciervo move to authorize signing of a maintenance agreement with Harold Beck and Sons with a cash deposit in lieu of a maintenance bond. Mr. Benchener seconded and the motion passed 5-0.

Zoning Hearing Board Application, David and Geraldine Platt, 761 Newtown Yardley Road: Attorney John VanLuvanee, representing County Builders, equitable owners of the property, explained that the Board had reviewed an application for this property in July of this year and voted to oppose it at the Zoning Hearing Board. That application had sought relief to develop a B-19 transitional housing 64 unit development. During its review, the Board had suggested seeking a variance to develop a PRD with less than the required 25 acres.

The developer is now seeking relief for a PRD on a 16.36 acre parcel with only one type of housing, townhomes. He explained that the plan shown to the Planning Commission with a mix of housing types showed a cluster of single family homes and townhomes totaling 52 units which met the required impervious surface ratio of 40% impervious. That plan was shown for comparison, only. The developer favors all townhouses, with 52 units leaving 55% as open space. The developer feels this is a compromise, as the land could support 52 units with a mix of housing types. A cluster of all single family homes would not be financially feasible and a mix would not be marketable. An all townhouse development would be more marketable for this location.

Mr. VanLuvanee showed an aerial photograph of the property and its surrounding neighbors with the proposed townhouses superimposed. He noted the surrounding developments at Wiltshire Walk with a density of 3.9 units per acre, Headley, with a density of 9.88 units per acre and Newtown Walk with a density of 3.84 units per acre. This proposed development would have a density of 3.18 units per acre. He did not include Raintree of the Ridings developments, but knew them to have greater density, as both predate the current ordinance.

Mr. VanLuvanee said that the property is the last remaining parcel of R-2 land in the area and is being developed as in-fill in a neighborhood surrounded by townhomes. The property could have been included in the Wiltshire Walk development, but Mr. Platt wanted to continue to operate the swim club. He should not be penalized now for not selling that portion of his property years ago to be included with Wiltshire Walk’s higher density townhome development.

Mr. VanLuvanee noted that some of the Planning Commission members had expressed some concern about traffic. ITE trip generation indicates that the 52 unit townhome development will generate 31 PM peak hour trips, compared to the 40 trips at the fitness center currently at the swim club, or the 120 peak trips in the summer at the swim club. A 30 unit single family cluster would generate a similar number of trips.

Regarding concerns about the schools, Mr. VanLuvanee noted that Council Rock has seen declining enrollments and has seen a drop of 600 students in elementary and middle schools in recent years.

Mr. R. Gallagher said that he lives in the same area and feels there will not be any impact on traffic. He has no difficulty now and he does not anticipate that adding 52 units would create traffic jams. He confirmed that the density would be 3.18 units per acre and that the development would have 55.9% open space, significantly more than the original application submitted in July.

Dr. Ciervo asked about the size of the proposed units.

Kevin Reilly, engineer on the project, said that these would be 3,000 square foot units with 3 bedrooms and full basements. The footprint for each unit is 26’ X 58’.

Dr. Ciervo said that there is no hardship in this application. While the developer prefers 52 townhomes, a single family cluster would be permitted and the nearby Wiltshire Walk had no difficulty selling its single family homes. This is an attractive location, close to I95 and the business districts. The permitted density for single family homes would be 30 units. This development proposes 22 additional families. It will contribute to congestion, not just at PM peak hours, but throughout the day.

Mr. Van Luvanee noted that the land is zoned R-2. When Wiltshire Walk was developed the stormwater system was built to accommodate this parcel as developed for townhomes. He said that he is seeking a dimensional variance and this is an appropriate use for the parcel. The additional 22 homes will not have an impact on the community.

Mr. R. Gallagher said that he grew up in this area and still lives very nearby in a much larger development. There are no traffic issues and the addition of 52 homes will not cause significant impact. The area is surrounded by townhomes and it seems an appropriate plan. He also noted that this is redevelopment of an already developed parcel, not development of open land. The plan proposes significant preservation of open space. He also favored the plan to work with Headley to improve and share their recreational facilities. This would be a benefit to both developments. He did not want to send the solicitor to the Zoning Hearing Board and spend money on legal fees in such a tight budget.

Dr. Ciervo disagreed. He felt that the property, as zoned, did have other options for development, including a single family cluster or a mobile home park. The developer is only looking to get more than he is entitled to under current zoning. The change would have a measurable impact on the surrounding community.

Mr. M. Gallagher said that the Platts have been in business in this location for more than thirty years and he thanked them for their contributions to the community. He said that he favored leaving this decision to the Zoning Hearing Board. Its members were appointed by the Supervisors and have the same best interest of the community in mind when they consider applications. He would like the access drive shared with Dr. Weglos incorporated into the plan. He noted the preservation of more than 55% as open space and the generous buffering around the development. Working with Headley on recreation is also a benefit to the community. Townhomes are an appropriate use of the land.

Mr. Benchener also thanked the Platts for their contributions to the community for 30 years. He is sorry to see them go and appreciates their efforts to work on a compromise for this development plan, however he feels that the residents favor less density in new development. He agreed that the peak hour traffic impact seems insignificant, but the addition of 52 new families would generate trips throughout the day. A 30 house single family cluster, permitted by right, would have far less impact on the surrounding community. To allow the proposed density would be a significant change to the zoning ordinance. He favored sending the solicitor to oppose the development.

Mr. Calabro said that the Township sees ITE trip generation numbers regularly and they never seem to reflect what Newtown residents are experiencing. The ITE guide does not consider the time of year or the weather.

Mr. VanLuvanee confirmed that no actual traffic counts were conducted. The ITE guide was used only as a guide to possible traffic impact for the proposed development. Numbers for the swim club and fitness center traffic were based on Mr. Platt’s enrollment numbers.

Mr. Calabro noted that the other surrounding developments have more than one access point. This development will have only one entrance; this will surely impact traffic. While it is true that the Zoning Hearing Board has been appointed by the Supervisors, he favors sending the solicitor to explain the Supervisors’ concerns with this application.

The members briefly discussed whether to send the solicitor to the Zoning Hearing Board as a participant in opposition to the application, or to take no position at all or to send the solicitor to observe and be a party of record.

Dr. Ciervo moved to send the solicitor to the Zoning Hearing Board to oppose this application as it is a 73% increase in density over the permitted density for the parcel. Mr. Benchener seconded.

Discussion of motion: Dr. Ciervo said that the Supervisors are voted into office to represent the residents, who favor lower density. They have voted to send the solicitor on a few other occasions to prevent higher density housing.

David Platt, owner of the property, said that he is very ill and can no longer run the swim club. Its sale is meant to provide for his family. He has begun discussion with Headley to work out a shared recreational facilities arrangement and feels he will be successful in coming to an agreement. The area is surrounded by townhouses and he has spoken to many of the nearby residents, all who have expressed support for the plan. No one has come out in opposition. He notified all of the swim club members of his plans and they are aware that the land will be developed. This proposed plan is right for the community and for his family.

Mike Meister of County Builders said that the proposal is a compromise between the two permitted by right uses, a 30 unit single family cluster and a 64 unit trailer park. He showed a plan for the 64 unit trailer park and said that without the zoning relief for townhomes, he would proceed with the by right 64 unit plan.

The motion passed 3-2, with Messrs. Michael Gallagher and Ryan Gallagher voting nay.

Manager’s Report

Conflict Solicitor: Mr. Ferguson said that he has gotten two recommendations for conflict solicitors from other nearby Township Managers. Attorneys Don Williams and David Truelove were both recommended as appropriate choices.

Mr. Calabro moved to appoint David Truelove as conflict solicitor in the matter of The Villas at Newtown. Mr. M. Gallagher seconded.

Discussion of motion: Mr. M. Gallagher explained that the residents of The Villas have come to the Township to resolve some issues they are having with the developer. Another attorney at Begley Carlin and Mandio represents the developer, creating a conflict for the Township. The conflict solicitor would represent the Township in this matter.

Dr. Ciervo said that he would vote nay on this appointment because Mr. Truelove has been involved in a politically motivated lawsuit involving school board reapportionment. He would prefer appointing Mr. Williams.

Mr. Ferguson asked how long to expect the conflict attorney to review correspondence and formulate a response.

Mr. Garton suggested that it should take about one week, as it is not a complicated matter.

The motion passed 4-1, with Dr. Ciervo voting nay.

(Mr. Benchener left the meeting at this point).

Minutes, Bills Lists and Reports

Minutes: Mr. Ferguson noted that there is a typographical error on page 8 of the minutes of November 14, 2012. Paragraph 4 should read, “… discrepancy of $50,000…”.

Mr. R. Gallagher moved to accept the minutes of the regular meeting of November 14, 2012 as corrected. Mr. M. Gallagher seconded and the motion passed 4-0.

Bills: Mr. R. Gallagher moved to approve payment of bills totaling $128,426.21. Mr. Calabro seconded and the motion passed 4-0.

Mr. R. Gallagher moved to approve interfund transfers totaling $210,663.42. Mr. Calabro seconded. The motion passed 4-0.

Old Business

Mr. Calabro asked for an update on Newtown Corporation.

Mr. M. Gallagher said that it was his understanding that the bylaws have recently been revised and are being reviewed by Newtown Borough.

Mr. Ferguson said that he had spoken to Newtown Corporation about listing available commercial space on its Web site. That is one of its goals for 2013 as it concentrates its efforts on economic development.

Dr. Ciervo said that earlier in the meeting it had been noted that no one had come to the meeting in opposition to the Zoning Hearing Board application. He pointed out that residents do not usually know about Zoning Hearing Board applications or other development plans until they are underway and they see activity on the land. It is up to the Supervisors to anticipate residents’ concerns and represent them at hearings.

Public Comment

Resident Jen Dix thanked the Board for voting to send the solicitor to oppose the Platt application.

Resident Mick Petrucci, President of Newtown Business Association, announced the Holiday calendar of upcoming events, beginning on Friday, November 30, with a tree lighting ceremony in Newtown Borough at the fire house, followed by the First Night fundraiser at Temperance House. This is the only First Night in Bucks County and he urged residents to come out and support the event. Admission, including food and drink, will also include First Night buttons. First Night is a 501 (C)(3) and donations are tax deductible.

Saturday, December 1 at 11:00 AM, NBA is co-sponsoring the Township Park and Recreation annual candy cane hunt for children ages 3 to 7. Registration is necessary for this free event at Sunday, December 2, 2012 is the annual holiday parade, beginning at the Stockingworks at 2:00 PM and marching up State Street to Washington Avenue then up Sycamore Street. He thanked the Supervisors for their support of the event through the waiving of fees for police protection. Mr. Petrucci thanked the Township for putting its video on the Township cable TV station.

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

Mr. Garton announced that the PUC would hold televised hearings about the Newtown Artesian application for a well on the Tanner property on Washington Crossing Road in the CM Conservation Management Zoning District on Wednesday, December 12, 2012 at 1:00 PM and at 6:30 PM.

The meeting adjourned at 10:35 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