Newtown Township

Board of Supervisors

Minutes of April 10, 2013

The Newtown Township Board of Supervisors met on April 10, 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 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 an invocation by Leo Fitzpatrick of Wrightstown Friends, followed by a moment of silence and the Pledge of Allegiance.

Changes to the Agenda: Mr. Gallagher announced that the Police Report and discussion of Newtown Swim Club would be moved to the top of the agenda.

Police Report: Lieutenant Robert Matthews reported that last month the Department responded to 1308 calls, including 16 thefts, 3 fraud cases, 12 DUI’s, 11 narcotics cases, 11 domestic calls and 81 medical emergencies. There were only 15 struck deer last month. The Department conducted 59 traffic details. There were 37 reports of suspicious circumstances.

Solicitor’s Report

County Builders/Newtown Swim Club Discussion: Mr. Garton reminded the Board that after the developer, County Builders, submitted plans to the Township to develop the Newtown Swim Club as a 56 pad trailer park, the Board had requested that he contact County Builders’ attorney, John VanLuvanee to discuss the possibility of resubmitting earlier plans for a townhouse development on that site. After a few telephone conversations, Mr. VanLuvanee sent a letter dated March 19, 2013, in which he outlined certain conditions under which a townhouse plan would be reconsidered. A concept plan with 56 townhouses was attached to the letter. Mr. Van Luvanee stated that if the conditions were met and a series of SALDO waivers were granted, his client would consider development of the townhouse development. Among the conditions sought were:

Mr. Garton said that the waiver requests would be discussed later by the Township manager. No public hearing has been scheduled nor has an application for townhouses been submitted at this time. The developer is seeking a response from the Board of Supervisors related to the conditions which could lead to the filing of an application for a PRD townhouse project.

Mr. Garton said that he has researched whether the Supervisors can approve a townhouse PRD use at the Swim Club; the R-2 zoning district permits detached single family clusters or a mobile home park on 15 acres as a permitted use. A mixed dwelling type PRD is permitted on 25 acres. This parcel is 16.5 acres. It is his opinion that pursuant to the provisions of the Municipal Planning Code, the Supervisors may approve a change in use from mobile homes to townhouses as part of a PRD application. The courts have ruled in a few cases that, “it is the very essence of a planned residential development that it may diverge from zoning requirements.” Our JMZO states that the “administration procedure for the application and approval of a planned residential development shall be in accordance with Article V11 of the Pennsylvania Municipal Planning Code.”

Mr. Garton discussed this matter with Newtown Township’s previous solicitor, Stephen B. Harris, Esq., who confirmed that during his tenure as solicitor, when most of Newtown’s PRD’s were approved, the sitting Boards of Supervisors deviated from zoning provisions as part of the approval process, and that after PRD’s were approved, residents wanting to deviate from the PRD standards for setbacks, impervious surface, etc., appeared before the Board of Supervisors for relief because the Township had concluded that the Zoning Hearing Board did not have jurisdiction. This practice continues today.

Regarding the requested waivers, Mr. Ferguson explained that he met with the Township staff, including the Solicitor, Engineer, Traffic Engineer, Codes Enforcement Officer, Fire Marshal and Police Chief to review each request, as follows:

Mr. Gallagher reminded residents that Newtown Swim Club had submitted a Zoning Hearing Board application for 64 townhouses. The Supervisors asked the developer to reduce the density. He returned with a 52 townhouse Zoning Hearing Board application, which the Board voted to oppose, after which a 56 pad trailer home park was submitted for land development review. This evening, the Board of Supervisors would consider whether to agree to County Builders’ conditions and waiver requests for a 56 townhouse concept plan.

Dr. Ciervo said that the Board had reviewed a zoning hearing board application for relief to build 52 townhouses on a 16.5 acre parcel as a PRD; a PRD is permitted on 25 acres with a mix of housing types. Our zoning officer has confirmed that for a PRD, 25 acres are required and the mix must contain 30% single family homes. Dr. Ciervo said that the current proposal should not fall to the “governing body” to decide, but should be addressed either through the Zoning Hearing Board with variances or through the procedure to amend the PRD Ordinance. He said that he has also researched the cases Mr. Garton referenced, and does not believe that they are applicable, as they deal with different circumstances. In those cases, the applicants had met the PRD standards but had been denied approval. He did not believe that approval of this plan would be within the Supervisors’ jurisdiction, but must be addressed by the Zoning Hearing Board or through an amendment to the JMZO. He would not agree to the requested waivers unless the plans for the mobile home park were withdrawn first.

Mr. Garton noted that the purpose of the PRD is to give governing bodies some flexibility to address development in the public’s interest. An amendment to the JMZO is not necessary.

Mr. M. Gallagher agreed with Dr. Ciervo’s concerns about approving the townhouse plan before the mobile home plan is withdrawn, but also understood County Builders’ position, in that the Jointure is adopting an ordinance changing the required acreage for a mobile home park. The already submitted mobile home park could not be withdrawn and resubmitted after this zoning change takes place. The zoning change is on this evening’s agenda.

Mr. Benchener said that as the redevelopment of this property has been discussed, it has become clear that while the Supervisors would have wanted to see single family homes, the developer favors the mobile home plan. The Board must decide whether to seek a compromise or expend efforts to fight the mobile home park, which would incur legal fees and might be unsuccessful. The Board has seen many pages of petitions from residents in support of a townhouse development; many of the petitions come from residents immediately adjacent to the swim club property. The property is surrounded by townhouse developments. Our solicitor’s opinion is that the Board can consider a PRD with only townhouses. He understands that the departure from the PRD ordinance to allow only townhouses on a parcel less than 25 acres must be in the public interest, which this application seems to be. Zoning is a tool to guide development and it allows for some flexibility. He would be supportive of this compromise.

Mr. R. Gallagher agreed with Mr. Benchener, noting that the PRD was created by the state to allow municipalities flexibility in land development. He also said that the Board should apply common sense to this question. The surrounding properties are all townhouse developments and another townhouse development makes sense for this parcel. The Board has asked the solicitor to give his advice and opinion on the matter. Mr. Garton is an expert with many years of experience and Mr. R. Gallagher would rely on that advice. He would like to work in a non-adversarial manner to develop this property in a way that is best for the residents of Newtown.

Mr. Calabro said that what would be best for the community would be for the Township to purchase the property as a community center, by condemning the property and taking it over by eminent domain. He questioned why the applicant never proceeded to the Zoning Hearing Board with either application, even without Supervisors support. He suspected there might be some political motivation behind the entire procedure.

Mr. Calabro moved to authorize an appraisal of the Newtown Swim Club property with a goal of entering into condemnation proceedings. The motion failed to be seconded.

Responding to Mr. Calabro’s suggestion that the Township acquire the property, Mr. M. Gallagher said that he would not be supportive of the Township taking private property. He opened the floor for public comment.

Resident David Wagner, speaking on behalf of Headley Homeowners Association, said that 92% of Headley’s residents have signed petitions favoring a 52 unit townhouse development. The plan showed over 100 feet of open space between the nearest house and the Headley property line. Residents have been assured that the property line will be heavily buffered with both deciduous and evergreen trees and shrubs. Since it was learned that the plan now shows 56 townhouses, he has been able to speak to 90% of the residents, with none objecting. The residents are eager for this matter to be resolved quickly, as it is impacting property values. He confirmed that he only has support from 90% of residents because he was unable to reach 10%.

Karen Miller, a real estate developer and owner of 11 and 12 Penns Trail said that Newtown has a reputation for not being business friendly and she is very concerned about the thought of taking of private property. She also knows, as a developer, that a mobile home park could be an economically viable proposition, but would have negative impact on the adjacent business commons. She urged the Supervisors to approve the townhouse plan for the good of the Township’s residential and business communities.

Resident Charles Feuer, representing Newtown Walk Homeowners Association, said that his development supports the townhouse development. He asked whether the new plan for 56 townhouses would still have over 50% open space and whether the waivers discussed earlier have been granted to other developers.

Mr. M. Gallagher confirmed the 50% open space and said that these and similar waivers have been granted to other developers on past projects.

Resident Douglas Weigand, representing Wiltshire Walk Homeowners Association, said that Wiltshire Walk’s residents are supportive of the townhouse plan. Their initial concerns about stormwater management have been addressed; the developer will make any necessary improvements and share in maintenance of the stormwater basins. The existing buffering between Wiltshire Walk and the swim club will be augmented. The townhouse plan is in the best interests of the surrounding residents.

Resident Fran Stravisky, representing Kirkwood Homeowners Association, said that Kirkwood is supportive of the townhouse development. She thanked the Supervisors for their efforts to keep the residents and the homeowners associations informed of changes to the plans.

Resident John D’Aprile said that he feels the waivers discussed will create difficulty with parking if residents cannot park in front of their own houses and there is no additional parking for visitors. He also had concerns about safety for emergency vehicles.

Mr. Ferguson said that the EMS Department has reviewed the plans and has requested the truck template, but believes the proposed widths will be adequate for all emergency vehicles provided there are no vehicles parked on the streets and traffic circulates in one direction only. He reminded residents that the Township professionals, not the developer, requested that on-street parking be prohibited.

Dr. Ciervo noted that there are visitor parking areas on the plans, but these parking spaces will back onto the street.

Mr. D’Aprile said that he believed the entire process is politically motivated and that the Supervisors are too willing to cooperate with developers. The waivers will create difficulties for the Township and for the residents of the development. He did not think that the trailer park being proposed would have a negative impact, as they would be new and attractive modular homes. He also felt that a trailer park would have very little impact on most of the Township. As a member of the Newtown Grant master board, representing 1751 homes, he has not heard any opposition from Newtown Grant residents to the trailer park.

Mr. M. Gallagher again reminded residents that no supervisors participated in the review of the concept plan and waiver requests. These waivers were reviewed by the Township staff only.

Resident Cynthia Newsom of Raintree said that there has recently been a Supreme Court case which upheld a municipality’s right to take a property by eminent domain for commercial purposes. While the commercial venture failed, the municipality, in Connecticut, did have a right to make that decision for what it considered the good of the community. Newtown could also consider condemning the property for a community center or for open space.

Mr. Benchener said that while this may be legal, it is not right.

Mr. Calabro said that preserving the swim club property for a community center would be in the best interest of the Township. Once the swim club closes, there will only be one option for recreation in the Township and it is prohibitively expensive for many. This is a prime opportunity and should at least be investigated. The Township has felt the need for a community center for many years. He also took issue with Mr. Benchener’s characterization of the idea as “not right” and did not feel it was Mr. Benchener’s place to determine right from wrong.

Mr. Benchener clarified his earlier statement, saying that he did not say a community center is either right or wrong, but that taking of private property in this circumstance might be wrong.

Karen Miller said that she wished to clarify that as a developer she has found Newtown sometimes difficult to work with when flexibility might have been beneficial to all, but she did not disagree that a community center would be a benefit to the Township, but not through seizing of private property. She also noted that both the swim club and the other recreational facility referenced earlier are both private enterprises.

Resident Peggy Saskell thanked Supervisors Benchener, M. Gallagher and R. Gallagher for their response to this issue.

Adam Bowen said that he has family members living in Newtown near the swim club and he urged the Supervisors to keep in mind the wishes of the residents when they make their decision and to try to be flexible and modify the process to address the residents’ concerns.

Resident Christine Shoenwolf reminded property owner David Platt to keep in mind his legacy as he contemplates redevelopment of his property.

Resident Jay Sensibaugh said that he has concerns about the precedent set if the Board proceeds with approval of a PRD with only townhouses on this property. In the recent past the Township went through the more traditional method of addressing zoning be creating a new use B-19 to build a townhouse development. The Township had also faced a challenge for property along the Bypass whose owners proposed a very dense townhouse development. If this PRD is granted, the Board might again see the owner of the property on the Bypass seeking similar concessions. He said that he had volunteered for over ten years as a member of the Township Planning Commission and has reviewed many development plans and is aware of the procedures to address zoning changes. While he agrees that a townhouse development might be suitable for the swim club property, it is not zoned for such a use. He urged the Board to put forth a zoning change or advise the applicant to seek relief at the Zoning Hearing Board rather than address this issue at the Board level.

George Williams of Newtown Borough said that he is opposed to the trailer park plan because it will attract lower class residents and will bring crime to the community.

Resident Henry Lavitsky, representing Villas at Newtown Homeowners Association, said that his development supports the proposed townhouse development and is opposed to the trailer park. He asked whether there would be on-street parking by special permission from the police. He also asked why the plan now has 56, rather than 52 townhouses.

Mr. M. Gallagher said that he did not believe there would be exceptions to the on-street parking prohibition, however the plan does show some designated visitor parking. The concept plan submitted with the letter showed 56 townhouses and is the only plan being discussed this evening.

Referring to Mr. Sensibaugh’s comments, Dr. Ciervo said that the Jointure created a new use, transitional housing, use B-19, which allows townhouses on properties contiguous to parkland and Newtown Borough. The JMZO was amended for this use. It allowed Newtown Walk to be built. He said that while he had originally been opposed to this plan because of the density, he is now also concerned because of the process used to approve the plan. He has concerns that this process will put other parcels at risk for intense development.

Mr. Garton advised the Board that if it wishes to signify willingness to accept the developer’s proposal for a 56 unit townhouse development a motion in support of the plan as outlined in Mr. VanLuvanee’s letter would be required. He asked whether the conditions attached to the waivers would be acceptable to the developer.

Attorney John VanLuvanee, seated at the rear of the meeting room, stood and indicated that the applicant would accept the conditions attached to granting of waivers.

Mr. M. Gallagher said that he understood the concerns expressed about the process being used to address this issue. He also understands that most residents are very supportive of the townhouse plan and are eager to see the matter resolved.

Mr. M. Gallagher moved to accept the conditions outlined in attorney John VanLuvanee’s letter to Mr. Garton dated March 19, 2013 regarding development of a 56 unit townhouse development and to grant waivers subject to the conditions outlined by the Township professionals and agreed to by Mr. VanLuvanee. Mr. Benchener seconded.

Discussion of motion: Mr. Lavitsky asked whether the plan would include a traffic signal at the entrance to the development.

Mr. M. Gallagher said that the PennDOT TIP list has a project to widen Newtown Yardley Road and install additional traffic signals at Friends Lane to alleviate traffic concerns, but the townhouse plan does not anticipate a traffic light at the entrance.

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

Reports of Committees, Boards and Commissions

Board of Supervisors Report: Dr. Ciervo reported that he has confirmed with McGrath Builders that they will meet with the Supervisors and residents of the Villas at the next work session. He asked the Board if they would be in attendance for a work session on April 15, 2013. If so, he would notify the Villas HOA.

All agreed to attend a work session on April 15, 2013.

Mr. M. Gallagher reported that he attended Action Karate’s 5K Run for ALS at Tyler Park. It was very successful.

Mr. M. Gallagher asked residents interested in serving on the First 4 th Committee to call the Township of check the Web site. Volunteers are needed for the parade and other special events.

Land Development

Brookshire Estates Phase II, Final Plan: Attorney Ed Murphy represented the applicant.

Mr. Garton reminded the Board that this plan had been granted preliminary approval in 2005. The Planning Commission has reviewed the plan, which consists of eight homes, seven in Lower Makefield and one in Newtown, and recommended approval.

Mr. Murphy said that Phase I of this development, entirely in Lower Makefield, is nearing completion. Phase II will begin this summer. The access to the development is in Newtown at Washington Crossing Road and Gaucks Lane. Gaucks Lane will be realigned. The applicant will comply with all review letters and has agreed to all of the recommended conditions of approval.

Mr. Benchener moved to approve the application of Phase II of the Brookshire Estates consisting of eight lots with one of the eight lots located in Newtown Township with the remaining seven lots being located within Lower Makefield Township. All eight lots will take access to Washington Crossing Road in Newtown Township. The plans were prepared by Van Cleef Engineering Associates, dated March 25, 2005, and last revised February 4, 2013. The Highway Occupancy Permit Plans, also prepared by Van Cleef Engineering Associates, were dated September 8, 2006 and last revised on January 10, 2013. Approval is subject to the following conditions:

Mr. R. Gallagher seconded and the motion passed 5-0.

Engineer’s Report

Weglos Certificate of Completion #3: Mr. R. Gallagher moved to approve escrow release in the amount of $6475 to Weglos Dental. Mr. Benchener seconded and the motion passed 5-0.

Solicitor’s Report

Adoption of JMZO Ordinance Rezoning Goodnoe Elementary School: Mr. Garton opened the public hearing to rezone Tax Map Parcel 29-10-45-1 as EIR. He reminded the Board that the amendment has been duly advertised. The parcel currently overlaps three zoning districts, POS, R-1 and EIR.

Dr. Ciervo moved to adopt JMZO 2013-01, rezoning Council Rock School District/Goodnoe Elementary School as EIR. Mr. R. Gallagher seconded and the motion passed 5-0.

Adoption of JMZO Ordinance allowing Accessory Outdoor Wood Fired Boilers: Mr. Garton opened the public hearing to amend the JMZO to allow wood fired boilers as an accessory use. This amendment has been duly advertised and had been previously adopted by this Board. It has been modified to add language which states that local policing ordinances of the three municipalities may also govern wood fired boiler uses.

Mr. M. Gallagher moved to adopt JMZO 2013-03, allowing wood fired boilers as an accessory use. Mr. Benchener seconded and the motion passed 5-0.

Adoption of JMZO Ordinance adjusting the gross site area for mobile home parks: Mr. Garton opened the public hearing to amend the ordinance, changing the minimum gross site area for mobile home parks from 15 acres to 25 acres. This amendment has been duly advertised.

Mr. M. Gallagher moved to adopt JMZO 2013-04, adjusting the minimum gross site area for mobile home parks. Mr. Benchener seconded.

Discussion of motion: Dr. Ciervo noted that this is the correct process for amending an ordinance. If this Board takes a position that it can waive ordinance requirements, this becomes meaningless.

Mr. R. Gallagher said that under the PRD ordinance the governing body can choose to ignore zoning regulations. Applicants cannot waive the requirements but the Board can.

Dr. Ciervo said that the PRD is already a variance from the normal zoning requirements. Our PRD ordinance is lengthy and sets very specific standards. To vary from the PRD ordinance should require Zoning Hearing Board relief. He is concerned that future applicants will expect to have PRD requirements waived by future boards, as was done in the case earlier this evening.

Mr. M. Gallagher suggested that the Joint Zoning Council should discuss the need for a PRD ordinance in the JMZO at all. The PRD ordinance was developed in response to a building and development boom in Newtown. It may no longer be applicable and relevant.

Dr. Ciervo said that the PRD ordinance is the only way to regulate high density housing like townhouses and apartment buildings. If the PRD ordinance were eliminated, we would have to develop new uses for higher density housing.

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

JMZO – Solar Energy Equipment Accessory Use: Mr. Garton reminded the Board that this ordinance has been revised to create a solar energy equipment use, with standards regulated by the individual municipalities.

Mr. Benchener moved to authorize advertisement of a solar energy accessory use ordinance. Mr. M. Gallagher seconded and the motion passed 5-0.

Manager’s Report

Treasurer’s Update: Mr. Ferguson reported that the cash balance in the general fund is $1,737.331.

Minutes, Bills Lists and Reports

Minutes: Mr. R. Gallagher moved to approve the minutes of the meeting of March 27, 2013. Mr. M. Gallagher seconded and the motion passed 3-0-1, with Mr. Benchener abstaining.

Bills: Mr. R. Gallagher moved to approve payment of bills totaling $382,131. 02. Mr. Benchener seconded. The motion passed 5-0.

Mr. R. Gallagher moved to approve interfund transfers totaling $181,609.19. Mr. Benchener seconded. The motion passed 5-0.

Mr. Garton said that there would be no executive session.

The meeting adjourned at 10:30 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