Newtown Township

Board of Supervisors

Minutes of January 23, 2013

The Newtown Township Board of Supervisors met on January 23, 2013 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 Phillip 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 Harry Whyte of More View Bible Church and the Pledge of Allegiance.

Reconvene Reorganization Meeting: Mr. Ferguson explained that the reorganization meeting held on January 7, 2013 and the January 9, 2013 Board meeting were not duly advertised as required by law as part of the Township’s annual schedule of meetings.

Mr. Garton said that the actions taken at those meetings should be affirmed by formal motion. Any Supervisor not in attendance can add is vote to any action item.

Mr. Benchener moved to affirm actions taken at the organization meeting of January 7, 2013, Draft minutes attached as Exhibit A.) Mr. M. Gallagher seconded and the motion passed 4-0-1, with Dr. Ciervo abstaining, noting that he was absent at the January 7, 2013 meeting.

Reconvene Regular Meeting of January 9, 2013: Mr. Garton explained that the Board should affirm actions taken at this meeting, except for the adoption of Ordinance 2013-O-1, which had been properly advertised as per the second class township code.

Mr. R. Gallagher affirmed actions taken at the regular Board of Supervisors meeting of January 9, 201, (draft minutes attached as Exhibit B). Dr. Ciervo seconded and the motion passed 4-0-1, with Mr. Benchener abstaining, noting that he was absent at the January 9, 2013 meeting.

Special Actions

Adopt-a-Road Agreement with St. Andrew’s Fathers: Mr. M. Gallagher explained that the St. Andrew’s Fathers wish to participate in the “adopt a road” program, and will care for Wrights Road between Eagle Road and Durham Road, keeping the road clean and performing certain minor maintenance tasks. He thanked the Fathers Club for its commitment to the Township.

Dr. Ciervo moved to approve the “Adopt a Road” agreement with St. Andrew’s Fathers. Mr. Benchener seconded and the motion passed 5-0.

Public Comment

Mr. M. Gallagher noted that a large number of residents were in attendance to discuss the proposed trailer park on the Newtown Swim Club property. As the Board of Supervisors will take a quasi-judicial role in a PRD hearing scheduled for this project on February 13, 2013, members may not comment on the project, as speaking on the issue could disqualify Board members from participation at that hearing.

Mr. Garton confirmed that the Board must hear all evidence from the applicant and any parties, before it can enter discussion on the proposed project. To express any opinion this evening could disqualify a Board member from participating.

Dr. Ciervo asked whether disqualification of a majority of the Board would impact the PRD hearing.

Mr. Garton said that the application would be deemed approved if the majority were disqualified.

Resident David Wagner, representing Headley Homeowners Association, said that his community is unanimous in its opposition to the proposal for a trailer park at adjacent Newtown Swim Club, but is supportive of the originally proposed 52 townhome development, with appropriate buffering and fencing between the two communities. He presented a petition with 207 signatures, all in opposition to the trailer park and asked the Supervisors to reconsider their position on the townhome development. Headley has joined with Newtown Walk, Raintree, Wiltshire Walk and Windermere to oppose the trailer park and will seek party status at any PRD hearings on that plan.

Kent Lufkin and Karen Miller, co-presidents of Newtown Business Commons Association, representing 300 businesses and over 10,000 employees, said that they are disappointed that the townhome plan has been rejected and their Board of Directors met to unanimously vote to voice opposition to the trailer park. Mr. Lufkin asked the Board to reconsider its position of opposition and approach representatives of the developer to discuss revisiting the townhome plan. He said that the Commons generates over $3,000,000 in annual tax revenues to the Township and the business owners feel the trailer park directly opposite the Commons will have negative impact on the Association’s ability to attract and retain tenants in the Commons.

Ms. Miller said that while the trailer park is a by-right use, it will have greater density that the townhome plan. The 52 townhome plan is less dense than the surrounding townhouse developments and presents a reasonable use of the property.

Resident Roman Brant, representing the Wiltshire Walk Homeowners Association, said that his community is opposed to the development of the Newtown Swim Club property as a mobile home park. He presented petitions from his community in opposition to the trailer park but in support of the 52 townhome development with appropriate buffering and fencing. He noted that the Wiltshire Walk stormwater management system was designed to accommodate the Swim Club property as well, but is currently stressed by severe storms. The stormwater management for the development at the swim club should also be carefully considered. He urged the Supervisors to reconsider their position in opposition to the townhome plans.

Resident Michael Jacobs said that he has resided in Newtown since 1980 and is a Council Rock graduate. He feels that a trailer park development would have a negative impact on the Township and on property values. He believed that the developer is trying to pressure the Supervisors in order to make the most profit from development of the property and he urged the Supervisors to find some loophole which would allow them to reject the trailer park plan.

Resident Charlie Feurer, representing Newtown Walk Homeowners Association, thanked the Board for allowing residents to voice their concerns about the proposed trailer park. He urged the Board to reconsider the plan for 52 townhomes, which was a reduction from an originally proposed 64 home development.

Mr. M. Gallagher explained that the property owner had originally sought a variance for a different use with 64 townhomes. When the Board voted to oppose that plan, he returned with a plan for 52 townhomes. The Board voted again to send its solicitor to oppose the plan at the Zoning Hearing Board.

Mr. Feurer said that he did not think the developer was wrong to be upset that his plans were opposed and he suspected the trailer park was proposed out of anger. The residents are asking the Supervisors, who represent them, to attempt to re-open discussion with the developer on the 52 townhome plan. He said that his development is assembling a petition in support of the townhome development with appropriate buffering and asked when such petition would need to be submitted. He also asked how the trailer park plan, or the townhome plan, would proceed through the review process.

Mr. M. Gallagher explained that the current trailer park plan has been submitted for review by the Township’s engineer, planner and solicitor. It is scheduled for review by the Planning Commission on February 5, 2013 in this room. A petition could be submitted to the Planning Commission at that time. The plan will then be reviewed by the Supervisors on February 13, 2013. The plan for 52 townhomes had been submitted as a Zoning Hearing Board application, as it would have needed a variance to proceed. The Planning Commission did review that plan, but when the Supervisors voted to oppose it at the Zoning Hearing Board, the applicant withdrew it.

Resident Fran Stavisky, representing Kirkwood Homeowners Association said that the residents of Kirkwood agree with the earlier speakers in opposition to the proposed trailer park. Kirkwood residents support a 52 townhome development with appropriate buffering.

Resident Lisa Mercatani of Headley said that she agrees with the earlier speakers who are opposed to the trailer park development. She noted that the presence of a trailer park will negatively impact business in Newtown’s upscale restaurants and shops and visitors from surrounding communities will no longer consider Newtown a destination.

Resident Steve Bell, representing Villas at Newtown Homeowners Association, said that his community is opposed to the trailer park but would be supportive of a 52 townhome development.

Mr. M. Gallagher thanked the many residents in attendance for coming to the meeting and discussing their concerns.

Mr. Benchener said that he could not comment on his opinion of the mobile home plan, but wished to discuss the Zoning Hearing Board application for a 52 townhome development. He had considered that application as a large increase in density over the number of single family homes which would have been permitted on the Swim Club property. He did not consider the possibility of a mobile home park as financially feasible; when voting to send the solicitor to oppose the zoning application he was voting to uphold the zoning for single family homes. The situation has changed and although the mobile home park application may have been submitted as an emotional response, it is a serious application. He suggested that the Board could approach the developer to discuss the 52 townhome plan again.

Mr. M. Gallagher said that he attended homeowners association meetings at the four surrounding developments and all were in agreement that they would support zoning relief for a 52 townhome development. He asked Mr. Garton how the Board could proceed.

Mr. Garton said that the Board could authorize him to contact County Builders’ attorney, John Van Luvanee, to discuss the zoning application.

Mr. Benchener moved to authorize the Township Solicitor to contact the attorneys for County Builders to discuss resubmission of the 52 townhome Zoning Hearing Board application. Mr. R. Gallagher seconded.

Discussion of motion: Dr. Ciervo said that he is uncomfortable taking such a vote when the issue was not an advertised agenda item. He is also opposed to the motion itself. The increase in density over the permitted number of homes in a “by right” plan is 73%. The Board is responding to a threat. The current zoning only permits single family homes “by right.” A single family cluster or a mobile home park is a PRD, with specific requirements to be met. He reminded residents that the builder could submit another plan and that this Board has not seen fully engineered plans for any other project on this property, only sketch plans. The builder is seeking a variance without demonstrating a hardship. He will also face opposition at a PRD hearing for a mobile home park. He urged the Board to uphold the zoning ordinance and prevent dense development.

Mr. Calabro said that on July 25, 2012, this property owner presented a sketch plan for 64 townhomes attached to a variance request. The Board voted 5-0 to oppose that zoning application. The attorney at that time said that mobile homes were a permitted use for this parcel. While he said this was not “a threat” the possibility was raised then, also. He reminded residents that the Supervisors have never “denied” the owner or developer a townhome development. That decision lies with the Zoning Hearing Board. The Supervisors have voted to send the Solicitor to defend our ordinance. If the developer had been confident that townhomes were the best use for the property, he could have made his case to the Zoning Hearing Board. While he will not oppose sending the Solicitor to speak to the builder’s attorney, he did not think this builder has negotiated in good faith and he still favors upholding the current zoning. It appears that the builder would have the support of many residents if he were to proceed to the Zoning Hearing Board with a townhome plan.

Mr. R. Gallagher said that the current zoning was put in place thirty years ago and has served as a template for the development of the Jointure. The Ordinance does provide for variances, allowing for responsible development and change. Although the townhome development is not specifically allowed in the R-2 zoning district, it seems an appropriate use for this particular parcel, as it is surrounded by other townhome developments. The residents have shown support for this use and not only opposition to mobile homes. For this reason, he would vote to support the motion.

Mr. Benchener said that as Supervisors their goal is to reflect the will of the residents they represent. Our zoning ordinance is a tool to guide us through development. The Board needs to be proactive in working with this developer on a plan.

Mr. M. Gallagher opened the floor for public comment on the motion, only.

Michael Jacobs said that he disagreed with Mr. Calabro’s comments made at prior meetings about the impact traffic from this development would have on the Township. He also disagreed with Dr. Ciervo’s characterization of the trailer park as a threat; it is a reality. He asked for more details on prior discussions of trailer parks at this property.

Mr. Calabro said that at the Board’s review of a zoning application for 64 townhomes on this property on July 25, 2012, the applicant’s attorney said that the townhomes as presented were not a permitted use, but a trailer park with similar density is permitted. The entire Board voted to uphold the zoning by sending the solicitor to the Zoning Hearing Board for that application.

Mr. Jacobs urged the Board not to consider working with the developer as “giving in to demands” but as working for the best interests of the surrounding community.

Resident David DiChicco said that a 52 townhome development will definitely have negative impact on traffic, which is already dangerous at the entrance to his development, Headley, and he would favor upholding the zoning and supporting a development of single family homes.

Resident Mark Zahryni asked whether this is the only parcel where trailer parks would be a permitted use.

Mr. Garton explained that trailer parks are permitted in the R-2 zoning district as PRD’s. Zoning laws require that locations within a municipality be provided for every use, including trailer parks. If a parcel zoned for trailer park use is developed as another other permitted use, municipalities do not have to continue to provide opportunities for the trailer park use.

Mr. Zahryni asked whether the trailer park would need approval, since so many in the community are opposed to it.

Karen Miller asked whether, should the developer move forward with the trailer park plan, it could be denied by the Board of Supervisors.

Mr. Garton said that if a plan meets all criteria for a PRD it cannot be denied.

Ms. Miller said that she understood that single family home developments would be more densely populated than trailer parks because the single family homes would house bigger families with more children.

Dr. Ciervo said that the Board does not have that information. When speaking of density, the Board is referring to the number of units. This parcel could have a 32 unit single family cluster or 56 mobile homes. A plan for 52 townhomes had been proposed at one time. When speaking of density he has been comparing the number of 32 singles against 52 townhomes.

Mr. Zahryni said that he is very concerned with upholding the zoning as it will have an impact on the Township and the School District.

David Wagner said that the zoning will allow for a 56 pad trailer park. He favors the motion to discuss the townhome plan with the developer.

Resident Cynthia Neutson, a resident of Raintree development, said that she has concerns about the socio-economic status of residents of trailer parks. She said that people who would live in the mobile home park might not be able to afford everyday life in Newtown, shopping and doing business in Newtown where even gas prices are higher than elsewhere.

Lisa Mercatani urged the Board to support the motion and concurred with Ms. Neutson.

Steve Bell said that he supported the motion to work with the developer on a 52 townhome development as it will only be a small increase in density and will have minimal impact on traffic. He asked whether this zoning relief would set a precedent for other zoning issues.

Mr. M. Gallagher said that this would not set precedent.

Dr. Ciervo said that this decision might not set a legal precedent but it will set a precedent for builders considering projects in Newtown. There are still many undeveloped parcels in Newtown which could change hands and be seen as possible sites for more intense development if our zoning is challenged. He also objected to the continued depiction of trailer park as a “by right” use. This is misleading; the project will be a PRD and must meet all PRD criteria.

Christine Shoenwolf, a resident of Headley, urged the Board to listen to the many residents in attendance and reconsider its position on the 52 townhome plan.

Resident Jan Pavelec of Headley, said that a mobile home park will impact everyone and he urged the Board to support the motion.

Fran Stavisky said that both plans will bring children to the schools but that the trailer homes will generate less school tax revenue.

Mr. DiChicco asked whether the Board was aware of the profits involved with the various plans referenced this evening.

Mr. M. Gallagher said that the Supervisors do not discuss profitability of plans with applicants. They do not know the price for the sale of the land. The Board is only considering the proposed uses and their impact on the community.

Resident Henry Lewinsky said that he did not understand the issue of density when 64 or 54 mobile homes would be denser than 52 townhomes. He did not understand exactly what was permitted.

Mr. M. Gallagher said that the parcel is in the R-2 high density residential zoning district. As the parcel is greater than 15 acres, a mobile home park is permitted. Townhomes are only permitted as part of a PRD with a mix of housing types. The property has been zoned R-2 for 30 years but has only recently been the subject of redevelopment. A trailer park had always been a permitted use.

Dr. Ciervo said that for townhomes to be a permitted use the parcel would have needed 25 acres and a mix of housing types. Only single family homes and a mobile home park are permitted on sites with 15-25 acres.

Resident George Vander Zell of Villas at Newtown said that he had researched the community and the zoning carefully before moving to Newtown. He is eager to see the area remain as it is currently and as the zoning ordinance does allow for variances, he would favor working with the developer to preserve the integrity of the community by revisiting the townhome proposal.

Resident John D’Aprile said that he was unhappy with some speakers’ references to the people who might move into a trailer park. He also urged these speakers to be involved in the community by watching the meetings, attending regular meetings and participating in those meetings. This property has been discussed for months and concerned residents could have participated in earlier discussions. He urged the Board to uphold the current zoning; the builder might be bluffing to get the density he wants and if not, a trailer park might not be a bad idea.

Mr. M. Gallagher explained that the developer had originally approached the Township asking for 64 townhomes, which required zoning relief. The Board had tried to negotiate for 30 single family houses, and although some negotiation had been attempted, a compromise had not been reached. The motion before the Board is to ask Mr. Garton to attempt to reopen discussion with the developer to try to find some compromise. There would still be a number of issues to address, including traffic, stormwater and zoning issues. The townhome plan would still need zoning relief.

Dr. Ciervo said that he appreciated the efforts of residents to educate themselves on zoning matters and to attend this evening’s meeting. He also reminded residents that even if the Board does attempt to compromise with the developer, the Supervisors do not have the final say on approval of the townhome plan. That decision will rest with the Zoning Hearing Board, but variances can only be granted if the applicant can show a hardship.

Mr. Benchener said that it should be made clear that there is no legal precedent in zoning, nor is there policy precedent. Each zoning decision is based on its own merits. Fighting the application could be fruitless and expensive. The residents in the immediate area are supportive of the townhome plan for this parcel and it is a unique situation.

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

Reports of Committees, Boards and Commissions


Appointment to Joint Historic Commission: Mr. M. Gallagher said that he had received a letter from Craig Deutsch, a Planning Commission member, seeking to be appointed to the Joint Historic Commission as a voting member. There is a vacancy on the Commission. Mr. Deutsch has already agreed to serve as Planning Commission liaison and he is an architect with extensive knowledge of historic preservation.

Dr. Ciervo moved to appoint Craig Deutsch to the Joint Historic Commission for a term to expire in 2014. Mr. Benchener seconded and the motion passed 5-0.

Board Members: Dr. Ciervo reported that he attended the Joint Zoning Council meeting on January 3, 2013. The Council discussed revisions to the energy ordinances to allow some flexibility for the individual municipalities to further regulate certain standards for wood fired boilers and solar panels. The Commission also began consideration of possibly changing the required acreage for mobile home parks from 15 to 25 acre minimum in the R-2 zoning district.

Engineer’s Report

Removal of Excess Topsoil at the Birches: Ms. Fountain explained that the developer has removed 11,000 cubic yards of topsoil and will need to put 4,000 cubic yards back but has no need for the excess topsoil.

Mr. Garton confirmed that the Township has no need for additional topsoil elsewhere in the Township.

Dr. Ciervo moved to permit removal 7,000 cubic yards of topsoil from the Birches land development project. Mr. Benchener seconded and the motion passed 5-0.

Removal of Excess Topsoil from Weglos Dental: Dr. Ciervo moved to permit removal of 156 cubic yards of topsoil from Weglos Dental land development project. Mr. R. Gallagher seconded and the motion passed 5-0.

Solicitor’s Report

Manager’s Report

Compensation for Elected Tax Collector: Mr. Ferguson explained that ten years ago the Board of Supervisors passed a resolution setting the compensation for the elected tax collector at $27,000. Change to the compensation can only be made by resolution and only during a year going into an election. If the Board wishes to change the tax collector compensation this year, it must be addressed before February 15, 2013.

Mr. Garton explained that if no new resolution is adopted the current compensation remains in force.

Mr. M. Gallagher asked that Mr. Ferguson research a comparison of compensation with other municipalities.

Mr. Garton reminded the Board that it will be difficult to create a direct comparison, as some municipalities provide office space free of charge, some allow a different per bill fee to be collected for school taxes.

Mr. Ferguson also reported that the elected auditors are conducting their audit and Master and Maestro will be conducting its audit beginning in February.

The cash on hand at the end of the year was $236,700; this is still not a final number, as revenues are still being received and bills still being paid for 2012. It does appear that the final number will be better than had been budgeted.

Minutes, Bills Lists and Reports

Minutes: Mr. Ferguson noted that the agenda for this evening had been posted on the Web site with both the regular and organization meetings listed as having been dated January 9, 2013. This was corrected but not posted on the Web site. The correct dates did appear in advertisements, however.

Mr. R. Gallagher moved to accept the minutes of the meeting of January 9, 2013 regarding adoption of Ordinance 2013-O-1. Mr. M. Gallagher seconded and the motion passed 4-0-1, with Mr. Benchener abstaining.

Bills: Mr. R. Gallagher moved to approve payment of bills totaling $292,988.47. Mr. Benchener seconded.

Discussion of motion: Mr. Calabro noted a payment to Marazzo’s North River for snow plowing. He questioned the payment of subcontractors for plowing when we have had layoffs of public works employees and there is work that now needs to be contracted out.

The motion passed 4-1, with Mr. Calabro voting nay.

Mr. R. Gallagher moved to approve interfund transfers totaling $185,143.37 Mr. Benchener seconded and the motion passed 5-0.

Old Business

Mr. Calabro reminded the Board that it had approved a modification in the agreement for Delancey Court, with a condition that the fence could only be eliminated from the plan with the approval of the Society Place Homeowners Association. He did not believe that the prospective developer, Toll Brothers, had approached the Homeowners.

Mr. Garton said that he would speak to the attorney for Toll Brothers about this. If approval is not given, then the originally proposed fence must be installed.

Mr. Calabro said that this year’s budget had included the sale of an easement for the cell tower property. He asked whether there is an agreement of sale for the Board to consider at this time.

Mr. M. Gallagher said that any agreement of sale would have to be discussed by the Board before a sale could take place. He expected to have something during the first quarter of the year.

Mr. Calabro said that he continues to have concerns that this is a line item in the budget, used to provide the year end general fund balance, and yet no agreement of sale exists. The number used in the budget is not based on an appraisal.

Mr. M. Gallagher said that the number used is an estimated number. There has not been an agreement or an appraisal.

Mr. Benchener said that this is an estimate based on preliminary investigation into the sale. It is not unlike including in the budget a $30,000 expense for a police car. No car has yet been purchased and we are not certain of the exact price, however we have based the budget on this $30,000 expenditure.

Mr. Ferguson said that he and Mr. Garton have been working on an agreement. There are other components to the agreement, including allowing the Township to place an antenna on the tower. These details are still to be worked out, but he anticipated having an agreement before the Supervisors in late February or early March.

Mr. Calabro asked what the interest rate on Township borrowing would be.

Mr. Ferguson said that he believed the rate would be about 3.75%.

Mr. Calabro suggested that if interest rates are this low, it might be more beneficial to the Township to borrow the needed $500,000 to balance the budget and keep the asset. The easement generates a return of 8% compared to a cost of 3.75% for the sale of an asset. He felt this would be a better plan than the sale.

Dr. Ciervo said that he agreed that perhaps an appraisal should be conducted before any sale takes place.

Mr. Benchener said that the decision to sell the easement was based on a net present value calculation, which does take into consideration whether it would be better to borrow than to sell off an asset. It does consider the income from the asset, but also the depreciation of the asset. He said that the easement will not continue to bring income in fifteen years; its value will have diminished. He did not disagree with seeking an appraisal on the asset before any sale.

Mr. Garton said that the price would be based on the rent roll. He suggested that Mr. Ferguson research pricing through a broker’s opinion, while at the same time working on the negotiation with American Cell Tower.

The Board agreed to this course of action.

Public Comment

Resident Jay Sensibaugh said that there should be a procedure for sale of an asset by a government entity, the same as there is for purchase of capital goods; there should be a point at which something equivalent to a bidding process should be required.

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

The meeting adjourned at 10:20 PM.


Respectfully Submitted:
Mary Donaldson, Recording Secretary



Kurt Ferguson, Township Manager

Michael Gallagher, Chairman

Matthew Benchener, Vice-Chairman

Ryan Gallagher, Esq., Secretary

Philip Calabro, Member

Robert Ciervo, Member