Newtown Township

Board of Supervisors

Minutes of February 13, 2013

The Newtown Township Board of Supervisors met on February 13, 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 Rabbi Aaron Philmus of Congregation Brothers of Israel and the Pledge of Allegiance.

Reports of Committees, Boards and Commissions

Planning Commission: Vice Chairman Robert Whartenby reported that at its February 5, 2013 meeting the Planning Commission reviewed the Zoning Hearing Board application of Brazilian Jiu Jitsu, 2829 South Eagle Road for a use variance for a commercial school use in the PC zoning district and recommended that the Supervisors not oppose the application.

The Commission reviewed the conditional use application of Zoe’s Kitchen, 280 North Sycamore Street for uses E-5 eating place and E-6 take out, and recommended that the Board of Supervisors approve the application subject to certain conditions, including HARB approval for signage. The restaurant proposes a similar style of service as Cosi Café, the prior occupant. The Commission was in agreement that although the premises do not have a liquor license, no prohibition of alcohol would be added as a condition, as this falls under the jurisdiction of the Liquor Control Board. The Commission did not object to possible BYOB.

Historical Architectural Review Board Appointment: Mr. R. Gallagher moved to appoint Mike Crane to the Historical Architectural Review Board to complete the unexpired term of Brian Miller (2014). Mr. Benchener seconded and the motion passed 5-0.

Pension Report: Pension Manager Grant Kalson of Dehab Associates reported that in 2012 the pension portfolios had a net increase of $2.5 million and an additional increase of $500,000 since the beginning of the year. The current value of the three pension funds is $14,634,000. The rate of return has been 16.3% and is ahead of 98% of other public pension funds, due to the efforts of the four active managers. PIMCO, the bond manager has done very well. Two of the managers did not do well, Neuberger Berman for large cap growth and NFJ large cap value, which has underperformed in the fourth quarter. NFJ has been a historically good manager and Mr. Kalson would like to watch it closely, but is not recommending a change. He expects to have a recommendation for Neuberger Berman shortly. He is also considering a change to Longview 1500, a division of Amalgamated and part of Prudential. It is making a change away from Prudential and would offer a very low fee, saving about $3500 a year. He would like to watch this for a short time before recommending a change.

Mr. Kalson said that he has also spoken to the actuary about this past year and its impact on smoothing since 2008. This could put the funds in a better category.

Mr. Benchener asked whether Mr. Kalson has any opinion about changing the bond allocation as the equities are doing very well. The policy would allow for a reduction in the bond allocation.

Mr. Kalson said that the funds are already aggressively invested and the 25% bond allocation has been doing well with PIMCO. He would not recommend a change.

Mr. Benchener asked whether the funds should be invested more in international funds.

Mr. Kalson said that the emerging markets are doing well and he might recommend investing a portion of the funds currently with Neuberger Berman if a change is to be made. He noted that many domestic funds are indirectly invested in the international markets.

Mr. Benchener said that before considering Longview he would like Mr. Kalson to compare it to other similar opportunities. He would also like a comparison of international index funds when considering a move from Neuberger Berman.

Mr. Kalson urged the Board to consider active managers, as they have made a difference in 2012.

Mr. M. Gallagher asked whether the 2012 results would impact the minimum municipal obligation (MMO).

Mr. Kalson said that the actuary was vague on this.

Mr. Ferguson said that he did not think it would influence this year’s MMO, which is done in June, but would impact 2014.

Dr. Ciervo asked whether the 16.3% increase includes the contributions made by the Township and the employees.

Mr. Kalson said that calculations were adjusted for the new contributions. The 16% is a reflection of performance.

Mr. R. Gallagher asked about changes in the market in the coming year.

Mr. Kalson said that when working with pension funds it is best to take a long view.

Chairman: Mr. M. Gallagher announced that the Township will host an electronics recycling event on Saturday morning, March 30 at the Township building to collect computers, televisions, etc. He reminded residents that these items can no longer be thrown into the trash.

Engineer’s Report

Weglos Land Development, Newtown Yardley Road – Certificate of Completion #1: Mr. R. Gallagher moved to authorize escrow release in the amount of $53,075 to Weglos Dental. Mr. Benchener seconded and the motion passed 5-0.

Solicitor’s Report

JMZO Wireless and Cellular Communications Amendments: Mr. Garton reminded the Board that Northampton Township recently experienced some difficulty when wireless companies installed towers without the need to secure municipal approval. As a result of this experience and subsequent litigation, BCATO reached out to attorney Dan Cohen, an expert in wireless communication regulations to help draft amendments to municipal ordinances to regulate communications facilities. The three Jointure members’ solicitors and managers met to discuss this and were in agreement that Mr. Cohen should be engaged to draft an amendment for the JMZO at a cost of $4500 divided three ways. Mr. Garton asked the Board for its concurrence to proceed.

Mr. M. Gallagher said that it was his understanding that Mr. Cohen’s cost is based on a certain number of municipalities signing on.

Mr. Garton said that the Jointure would count as three and there are already eight others. It appears that the required number will be met.

Dr. Ciervo said that he understood that this would be less costly than asking the Jointure Solicitor to draft an ordinance, as Mr. Cohen is an expert.

All agreed that Mr. Garton should inform the Jointure that Newtown is in support of using Mr. Cohen to draft the ordinance.

Conditional Use – Zoe’s Kitchen, 280 North Sycamore Street : Mr. Garton opened the hearing for Zoe’s Kitchen. He noted that the hearing has been duly advertised. This is an application for Uses E-5 eating place and E-6 eating place/take out at 280 North Sycamore Street, Tax Map Parcel 29-3-29-4 in the PC Planned Commercial Zoning District.

Mr. Garton asked if anyone wished to be party to this application. There was no response.

Bryan Waghalter of Zoe’s Kitchen explained that the restaurant is part of a chain from Birmingham Alabama featuring a Mediterranean style menu with emphasis on freshly prepared organic foods with vegetarian and gluten free options. Service would be similar to Cosi’s, the former occupant of this site, with orders placed at the counter and delivered to tables.

Dr. Ciervo moved to approve the conditional use application of Zoe’s Kitchen, 280 North Sycamore Street, in the PC Planned Commercial Zoning District for uses E-5 eating place and E-6, eating place/take out, subject to the following conditions:

  1. That the applicant comply with the Boucher and James review letter dated January 8, 2013,
  2. That the proposed use satisfies the general requirements applicable to the proposed use, E-5 and E-6 under Section 803 of the JMZO,
  3. That the proposed use satisfies the specific requirements applicable to the proposed use under Section 1301.B of the JMZO;
  4. That the average number of employees will be 10 per shift with a maximum of 15;
  5. No hazardous, flammable or explosive material which require special handling shall be stored or used in the building,
  6. 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.
  7. Hours of operation shall be 11:00 AM to 9:00 PM, Monday through Sunday,
  8. No drive through window service will be provided,
  9. The applicant shall obtain a certificate of appropriateness from the Historic Architectural Review Board for all signage,
  10. The premises shall be ADA compliant.
  11. All review, legal, engineering, administrative and other review fees shall be paid to the Township;
  12. The applicant shall provide proof of lease as required under Section 1302.B of the JMZO shall be provided to the Township.
  13. No loud music shall be generated on site and no music shall be audible from the premises .
  14. No liquor shall be sold without licensing from the Liquor Control Board,
  15. All loading and unloading of deliveries by tractor trailers or similar size vehicles shall be at off hours between 10:00 p.m. and 10:00 a.m. and no deliveries shall take place along Sycamore Street or Durham Road.
  16. Outside seating, shared with Jules Thin Crust Pizza, is limited to 25 seats,
  17. Parking is deemed adequate,
  18. The applicant shall comply with all applicable codes, ordinances, laws and regulations of the Township.

Mr. R. Gallagher seconded.

Discussion of motion: Dr. Ciervo said that the Board likes to advise applicants to consider its best possible business outcome when seeking conditional use approval and ask for the most employees they would need and the longest hours of operation they could need so they will not need to return if they decide to stay open later or need more help for busy times. Employees will park off-site.

Mr. Waghalter said that the maximum number of employees would be 15. Usually a maximum of ten are needed for each of two shifts, with some crossover. The business does not have late hours at all.

Dr. Ciervo asked whether signage will comply with the Township’s signage ordinances.

Mr. Waghalter said that the signage will comply with Township ordinances and he has been meeting with HARB to discuss colors for awnings because of the historic district requirements.

Mr. Garton confirmed that a certificate of appropriateness would be required for signage.

The motion passed 5-0.

Manager’s Report

Police Report: Police Chief Henry Pasqualini reported that the Department had responded to 1187 calls in the last month, including 35 traffic accidents, 68 medical emergencies, 9 thefts and 9 frauds. There were 32 reports of suspicious circumstances. He urged residents to phone the police if they see anything unusual in their neighborhoods.

Dr. Ciervo asked whether the police monitor businesses which require licenses. He said that he had read in the newspaper about an accused murderer in Philadelphia who was an unlicensed subcontractor of a Newtown contactor with an expired license.

Chief Pasqualini said that he was familiar with this case, however, licensing is handled by the State Attorney General. When the Department is made aware of a license issue, it reports to the Attorney General. The Department will follow up but this is not police jurisdiction.

Manager’s Report: Mr. Ferguson reported that the current cash balance, after paying today’s bills will be $824,313. This includes the first two weeks of earned income tax receipts and $80,000 in building permit fees. This year’s franchise fees from Verizon and Comcast are up 2.5% and an additional $111,000 is expected. The year-end balance is short $62,000 but this year looks to beat the budgeted year-end balance. The finalized 2012 budget should be available soon.

The 2010/11 pension audit is beginning now. He expects to see a long term reduction after implementing a change to post-employment health benefits.

Mr. Ferguson said that he has implemented a program of monthly land use meetings. Each month, on the fourth Thursday, he will meet with the Township’s consultants to discuss all land use projects. Developers contemplating projects are being invited to attend the meetings to review concept plans before any money is spent on formal plans. He hopes that this will eliminate developers’ having to go through costly revisions to comply with Township requirements.

Mr. M. Gallagher asked if Supervisors could be kept apprised of agendas for these monthly meetings and included in them.

Mr. Garton reminded the Board that only two Supervisors could attend such meetings at the same time.

Welcome Day Banner: Mr. M. Gallagher said that this banner is the same as has been displayed in past years. It will hang across Sycamore Street from Newtown Presbyterian Church to Mr. Lombardi’s house in advance of the Welcome Day celebration on May 5, 2013.

Mr. Benchener moved to approve the Welcome Day Banner. Mr. R. Gallagher seconded and the motion passed 5-0.

Veterans Park Update: Mr. Ferguson explained that the Township will need to address the repair work required to bring the Veterans Park athletic fields into playable condition. He has included in the Board packets estimates of work from Superior Turf. The first estimate includes work for the fields to be done in the spring for $33,346, plus an additional $7,152 for infield repairs and pitchers’ mound work. This will be paid out of the Park and Rec Capital Fund, which will still have sufficient funds available for the final payments.

Mr. M. Gallagher said that he is very angry with the contractor about the field conditions and work not completed, however he is eager to make the park available to residents, so would agree to the Superior Turf proposal.

Mr. Ferguson noted that the proposal also includes a three year improvement/maintenance proposal for an additional $40,000.

Mr. M. Gallagher asked whether the project would need to go through a bidding process.

Mr. Garton said that this is a service and does not require bidding.

Mr. M. Gallagher said that he would be supportive of the proposal, as the Township and its sports leagues have all worked with Superior Turf before and have been very satisfied.

Mr. M. Gallagher moved to approve the contract with Superior Turf for field work totaling 40,498. Mr. Benchener seconded.

Discussion of motion: Mr. Benchener said that he feels this is an $80,000 decision, as the recommendations for three-year maintenance are also being considered.

Mr. Ferguson said that this motion is for the first portion only, to bring the fields into playable condition for the fall. He would favor holding off on the second phase of the proposal so that he would have a better understanding of the Township’s finances and would know whether the payments would come from Recreation Capital or the general fund. The second portion would be paid in three annual payments, not a lump sum.

Mr. M. Gallagher said that he favors speaking to the sports leagues’ representatives about the three year program before agreeing to a contract. The leagues put a great deal of effort into Township fields and he would not want to do anything which conflicts with their work.

Dr. Ciervo asked whether the Birches project has paid its recreation impact fee.

Mr. Ferguson said that fee was paid in 2012.

The motion passed 5-0.

Mr. Benchener said that this will help to remedy a bad situation, but is not an indication that the Township is accepting the current condition of the fields.

Mr. R. Gallagher asked about irrigation for the fields if the planting is done and there is not enough rain.

Mr. Ferguson said that the Township has equipment available to water the fields if necessary.

Draft Cell Tower Easement Agreement: Mr. Ferguson said that the draft cell tower easement agreement was included in Board packets. The agreement has identical language to the current agreement regarding the Township’s ability to have a repeater for local channels on the tower.

Mr. Garton said that this is referred to as an easement agreement but it is essentially a buy-out of the lease agreement. He said that in response to the Board’s request that he research lease arrangements further he has learned that there are three kinds of entities which acquire cell tower leases: cell tower companies, investors and management companies. He reviewed sample leases and spoke to some principals of businesses which purchase leases. He learned that cell tower companies would pay about 10-15% higher than investors. He reviewed comparisons for similar lease arrangements with tower companies for other municipally owned properties near the County Courthouse and found the terms to be comparable. When he suggested that the lease could be adjusted if an appraisal proved that a higher rate should be in place, American Tower declined that term, stating it would only enter an agreement with a fixed rate.

Mr. Ferguson said that his research produced results similar to Mr. Garton’s. The price of $550,000 is based on the rent rolls. Plans for Nextel and Sprint to merge will possibly impact rates.

Mr. Benchener moved to move forward with the cell tower easement agreement as presented. Mr. M. Gallagher seconded.

Discussion of motion: Dr. Ciervo said that he is not prepared to act on this tonight. He has concerns about the offer as well as about selling a Township asset. He said that there had been other inquiries for the lease from other sources.

Mr. Ferguson said that there had been an inquiry from someone who wished to be informed if the Township were accepting bids. That person has been kept informed of progress but no offer, or further inquiry, has been made.

Dr. Ciervo said that he is not sure this is a wise move as the asset could prove more valuable to the Township than the sale of the easement.

Mr. Calabro expressed similar concerns He noted that the recent financial update indicates that the Township’s finances are rebounding and the sale might no longer be an urgent matter. He still favors having an appraisal before moving forward.

Mr. Garton said that American Tower would not enter an agreement based on an appraisal. He noted that in this circumstance, what an appraisal would be is an economic analysis of the value of the lease.

Mr. Benchener said that Mr. Garton and Mr. Ferguson have investigated this and he agrees that the offer seems to be reasonable. It is a good deal for the Township, noting that the Township breaks even after twelve years. Technology changes and there may not be a need for the easement in a few years.

Dr. Ciervo continued to object, stating that the need to have an easement for a cell tower will not change in fifteen years. Although technology changes the need for cell towers will not.

Mr. R. Gallagher said that Mr. Ferguson and Mr. Garton have confirmed that this is a reasonable price for the easement and he supports it.

Mr. M. Gallagher asked to call the question, noting that the Board members have not changed their original positions on this matter.

The motion passed 3-2, with Mr. Calabro and Dr. Ciervo voting nay.

Other business: Mr. Ferguson said that he is preparing a report on plantings for the medians on Stoopville Road, which should be ready for the next meeting. He believes that the recommendations will cost between $1500 and $2000.

Mr. Calabro suggested that the proposal include some additional reflectors for the medians, similar to those on the Lindenhurst Road medians. The medians can be difficult to see at night when traveling at 45 MPH.

Minutes, Bills Lists and Reports

Minutes: Mr. R. Gallagher moved to accept the minutes of the meeting of January 23, 2013. Mr. M. Gallagher seconded and the motion passed 5-0.

Bills: Mr. R. Gallagher moved to approve payment of bills totaling $175,554.08. Mr. Benchener seconded.

Discussion of motion: Mr. Calabro asked about a charge for a fence for the police sally port.

Mr. Ferguson said that the fence is an additional cost after completion of the sally port. The bond funds have been exhausted. This payment is from general operating funds.

The motion passed 5-0.

Mr. R. Gallagher moved to approve interfund transfers totaling $187,834.35 Mr. Benchener seconded and the motion passed 5-0.

Old Business

Mr. Garton reported that he has reached out to Attorney John VanLuvanee about the Swim Club redevelopment but has not gotten a response. The trailer park plan should be on the agenda for March 27, 2013.

Dr. Ciervo asked whether Mr. McGrath would be attending an upcoming meeting, as requested, to discuss completion of the amenities at The Villas.

Mr. Ferguson said that he has scheduled a meeting with Mr. McGrath and should have an update before the next regular meeting.

Mr. Ferguson said that he will be attending the next Newtown Business Commons Association meeting, at which he intends to update members on the progress on the proposed Terry Drive Extension. He said that an estimate of costs to complete the project has not been done in many years. He has asked the Township traffic engineer to provide an updated estimate. It appears that the costs have grown over the years and the Township may need to look to other funding sources from the State and County to complete the project.

The meeting adjourned at 9:30 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