Newtown Township

Board of Supervisors

Minutes of September 11, 2013

The Newtown Township Board of Supervisors met on September 11, 2013 in the Township meeting room at 7:35 PM. In attendance and voting were Supervisors: Chairman Michael Gallagher, Vice Chairman Matthew Benchener, Secretary Ryan W. Gallagher and Philip Calabro and Robert Ciervo, members. Also in attendance were: Kurt Ferguson, Township Manager, Jeff Garton, Township Solicitor and Michele Fountain, Township Engineer.

Call to Order : Chairman Gallagher called the meeting to order with a moment of silence followed by an invocation by Pastor John Stange of Core Creek Community Church and the Pledge of Allegiance.

NBA Featured Business – Action Karate: Mr. Petrucci, president of the Newtown Business Association thanked the Board for their recognition of the businesses in Newtown. He discussed the requirements for being a member of the NBA and invited the public to review their website. He announced that this month’s featured business is Action Karate and introduced Ken Ogborn. Mr. Ogborn updated the public with regards to the programs offered by Action Karate. Mr. Ogborn thanked the Township for its commitment to the community and businesses.

2012 Audit Presentation – Major and Mastro: Linda Major presented the 2012 Audit.

She reviewed the Township’s Statement of Net Position as follows:

She reviewed the Township’s Statement of Activities as follows:

Ms. Major noted a shortfall of $9,063,255.

She reviewed the Township’s Statement of Revenues, Expenditures, and Changes in Fund Balances Governmental Funds as follows:

She reviewed the Township’s Statement of Revenues, Expenditures, and Changes in Fund Balances – Budget and Actual-General Fund as follows:

Dr. Ciervo inquired with regards to the earned income tax received in 2012 compared to 2011. Ms. Major advised that there was no comparison. Mr. Ferguson reminded the Board with regards to an error that had occurred in 2012 where a payroll company inadvertently coded funds to be credited to Newtown Borough. The mistake was corrected and the Township received the funds in May, 2013.

Mr. Benchener thanked Ms. Major for the presentation. He commented on the information in this report compared to past years and noted that the financial picture has stabilized and the Township is now on a strong financial footing.

The Supervisors thanks Ms. Major for her time.

Reports of Committees

Park and Recreation Board – Authorization to approve application of open space funds (Noah’s Playground) - Resolution: Mr. Levine reported that he is presenting the final design for Noah’s Playground located in Veteran’s Park. He advised on the history of how the playground came to be and the funds raised by the Cohen family. The final budget for the playground is $195,640, of which $53,000 will come from the foundation formed by the Cohen family and the remaining two-thirds will come from County matching funds. There should be little or no cost to the Township. He is seeking authorization to move forward and submit the application for the matching funds as well as Mr. Garton’s review for the potential conservation easement that may be needed. He commented on discussions with the County.

Mr. Ferguson requested Mrs. Pawlenko to report on the opening of Veteran’s Park and the additional fundraiser. Mrs. Pawlenko reported on the upcoming community yard sale and welcomed support for the public. She also reported that on October 5, 2013, the fields will be opened to play. There will be an opening day celebration.

Mr. Levine introduced Jason Cohen and noted that his family was very intricate in raising funds for the playground.

Mr. M. Gallagher thanked Mr. Levine, Mr. Cohen and Mrs. Pawlenko for their time and noted that he fully supports the project.

Mr. M. Gallagher moved to approve Resolution 2013-R-9, A Resolution of the Board of Supervisors of the Township of Newtown, Bucks County, Pennsylvania, to file an application for funds under the Municipal Open Space Program. Mr. Benchener seconded and the motion passed 5-0.

Public Comment

Resident Jack Brod advised that he is a twenty year resident and the current President of the Crown Pointe Homeowners Association. He noted that the Crown Pointe development is opposed to the sewer plant proposed for the Township. He discussed expenses to the residents, the cost for Newtown, Bucks County, Joint Municipal Authority (NBCJMA) to break their contract with the Bucks County Water & Sewer Authority (BCWSA) and the effects to the community. He requested that a motion be made to eliminate the proposed sewer treatment plant from the Act 537 Plan. He thanked the Supervisors for taking the time to discuss this matter.

Resident Rick Bankoff noted that he is also opposed to the proposed sewer plant. He commented on various meetings he has attended where the proposed plant was being discussed and on the research he has done. He had photographs for the Supervisors and public to view. He thanked the Supervisors for their time.

Resident/local relator Linda Oshatz discussed how the proposed plant is affecting real estate sales within the community. She feels the plant is not a good idea and will hurt the Township. She thanked the Supervisors for their time.

Resident Karen Barton updated the Supervisors on correspondence presented to NBCJMA from Crown Pointe (The Township was provided with a copy.). She discussed her attendance at a presentation made by NBCJMA with regards to the proposed plant. She is hoping that the Supervisors’ will persuade the NBCJMA to listen to the residents. She also feels that a public meeting is needed to discuss this matter. She thanked the Supervisors for their consideration.

Resident Betty Tatham reported that she wants to keep the community safe; she noted that effects to the town would include odors, property values dropping, businesses suffering, health issues and flooding. She requested the Supervisors vote against what is being proposed.

Mike Gersic, George School Director of Operations, advised that George School is 100% against the building of a water treatment plant.

Resident Harvey Harris also discussed his attendance at a NBCJMA meeting where the proposed plant was presented. He noted that he is against what is being proposed; he feels it is an insult to the Township. He thanked the Supervisors for their time.

Resident Prebhakar Thatte noted that he is an engineer by trade. He advised on the research he has done and that he would provide that information to the Township Engineer if requested. He commented on major issues needing further study. He would like the Supervisors to reject the proposed plant.

Resident Judy Norkin advised that she lives in Cliveden and is a candidate for the Newtown Board of Supervisors. She commended the residents of Crown Points for the work they are doing with regards to the proposed plant. She asked the Supervisors to exclude the proposed plant from the Act 537 Plan. She thanked the Supervisors for their consideration in this matter.

Newtown Grant resident John D’Aprile advised that he is not for the proposed plant, but he questioned what would happen if Philadelphia would close services to other municipalities. He thanked the Supervisors.

Resident Gordon Beck advised that he has been a resident since 1976 and discussed the changes to the community since then. He requested the Supervisors’ not to approve what is being proposed and thanked them for their time.

Newtown Walk resident Jen Dix commented on the impact of what is being proposed and advised that she feels that the residents impacted the most should have been invited to the Supervisors’ May meeting where what is being proposed was presented. She is requesting that the proposed sewer plant not be included in the Act 537 plan. She discussed the moratorium that has been in place for the past year and the lack of correction being done by the BCW&SA. She feels that the Supervisors should reach out to the BCW&SA demanding that they promptly address the problem, which would eliminate the need for a local sewer plant and that this Board needs to insist that the control of the local sewer ownership be retained so that the BCW&SA will have no right in the future to force a plant be built in Newtown. She thanked the Supervisors for their time.

Resident Jack Brod recapped the comments from residents with regards to the proposed plant and noted that this matter is a regional issue. He is looking for the Township leadership to put an end to what is being proposed. He wants to keep Newtown beautiful.

Newtown Walk resident Kyle Davis advised that he is a candidate for the Newtown Board of Supervisors and agreed with the residents – no sewer plant. He also discussed the communication issue between the NBCJMA and the BCW&SA and the debt involved with regards to the Neshaminy interceptor. Mr. Ferguson advised on his discussions with Ben Jones, BCW&SA CEO, with regards to the Neshaminy interceptor debt. Currently there are fifteen (15) entities included in the obligation of repaying that debt. There is no buyout prevision.

Mr. Benchener requested the Supervisors to take action on this issue.

Mr. M. Gallagher noted that he has been following this issue and is glad for the publics’ input on the matter.

Mrs. Fountain advised that the preplanning meeting with the DEP next week.

Mr. M. Gallagher moved to have Mrs. Fountain attend the preplanning meeting with the DEP with the understanding that a sewer treatment facility will not be included in the Act 537 Plan. Mr. Benchener seconded.

Discussion of motion: Mr. Benchener commented on the financial information presented to the Board at the May work session. He noted that he supports the motion. He acknowledged that a future Board of Supervisors could overturn the Act 537 Plan and have the plant built. He advised the residents on the need to stay vigilant on this matter in the upcoming years. He thanked the residents for coming out tonight and expressing their concerns.

Dr. Ciervo thanked the residents for all the work they’ve done. He reported that he had advised the NBCJMA that their proposal would need to be presented at a televised Supervisors’ meeting. He commented on the information provided in May and discussed tonight with regards to the proposed bond interest rate. He noted that the Board is not ready to vote on the Act 537 Plan and advised that he would not be supporting the proposed plant. He also thanked the Crown Pointe residents for all their work regarding what is being proposed.

Mr. R. Gallagher also thanked the public for coming out tonight. He supports the motion. He commented on the proposed dollar numbers not making any sense. He discussed what is being proposed and how it would affect the quality of life in the community. He favors excluding the proposed plant from the Act 537 Plan and any amending process. He is concerned with regards to the moratorium and feels that regional discussions need to take place.

Mr. Calabro also discussed the affects to the residents’ quality of life and noted that he is proud of the residents. He thanked the Crown Pointe community for getting involved. He advised that he does not support including a sewer plant in the Act 537 Plan.

Mr. M. Gallagher amended the motion to also request Mr. Ferguson to send correspondence to the NBCJMA asking them to cease further exploration and to advise this Board where they are at now, without sending any more money. Mr. Benchener seconded. Mr. Gallagher called the question and the motion passed 5-0.

Mr. Gallagher announced that there would be a short recess.

Mr. Calabro reported that the last motion was only to approve the amendment. What should have been done was to approve that original motion and then to approve the amendment. He referred to Robert’s Rules.

Mr. M. Gallagher moved to ask Mrs. Fountain to proceed with the Act 537 Plan without the option of a sewage treatment plant and to ask Mr. Ferguson to send a letter to NBCJMA requesting them to cease further exploration of the possibility of a sewage treatment plant without first addressing this Board. Mr. Benchener seconded. The motion passed 5-0.

Reports of Committees, Boards and Commissions

Planning Commission: No representative from the Planning Commission was present, but the Supervisors’ packets did contain a report with regards to Oishi Restaurant.

Land Development

Conditional Use Hearings

Conditional Use, Lookout Lane Enterprises d/b/a Nannies and Tutors, 277 North Sycamore Street: Mr. Garton said that this is a public hearing for approval of Use C-3, commercial school use at 277 North Sycamore Street, Tax Map Parcel #29-12-26 in the TC Town Commercial Zoning District. The use will occupy approximately 1,050 square feet. The application as well as all reports and recommendations have been reviewed by the Township Engineer, the Township’s Planning Commission and the Township Planner and are incorporated into the record. The hearing has been duly advertised. He asked if anyone wished party status. There was no response. The Township’s Planning Commission recommends approving the application subject to several conditions.

Corey and Judy Reef of Nannies and Tutors advised that they are looking for conditional use approval and will comply with the conditions. They explained what type of services their business will be providing.

Mr. R. Gallagher moved to approve the conditional use application of Lookout Lane Enterprises d/b/a Nannies and Tutors, 277 North Sycamore Street, in the TC Town Commercial Zoning District for use C-3, commercial school use, subject to the following conditions:

Mr. Benchener seconded.

Discussion of motion: Dr. Ciervo commented on the number of parking spaces being provided and the review letter from Boucher & James. He also questioned how many students will be on site at one time. Mr. Reef advised that students will be dropped off at the rear of the building. Dr. Ciervo commented on the number of people in the building at any one time and noted that he just wants the use to have adequate parking.

Mr. Gallagher called the question and the motion passed 5-0.

Conditional Use, Corner Bakery Café, 3 West Road: Mr. Garton said that this is a public hearing and that the property in question is located at 3 West Road in the Newtown Shopping Center, Tax Map Parcel #29-3-24 in the PC Planned Commercial Zoning District. The hearing has been duly advertised. The applicant seeks to amend the prior conditional use decisions granted by the Board of Supervisors on October 12, 2011, August 8, 2012 and September 19, 2012 so as to be able to allow outdoor music in the patio area. The application, all reviews, prior approvals and any reports are incorporated into the record. He asked if anyone wished party status. There was no response. The Township’s Planning Commission recommends approving the application subject to several conditions.

Attorney John VanLuvanee represented the applicant. He advised that the applicant is requesting permission to extend the indoor music out to the patio. There is a separate volume control. He reported on discussions with the Township’s Planning Commission and advised that the applicant will comply with the Planning Commission’s recommendations.

Mr. M. Gallagher inquired on the PA system. Attorney VanLuvanee advised that there are outdoor speakers for the patio music. Mr. Jason Rose reported that the music played inside is very low, basically meant for background noise and may not even be noticed by customers. The applicant advised that he will comply with the conditions.

Mr. R. Gallagher moved to approve the amended conditional use application of Corner Bakery Café, 3 West Road, in the PC Planned Commercial Zoning District to allow outdoor music in the patio area, subject to the following conditions:

Mr. Benchener seconded.

Discussion of motion: Dr. Ciervo suggested clarifying the motion that no live music would be played outside. Mr. Rose agreed not to have live music outside.

Mr. R. Gallagher amended his motion to include that there would be no live music. Mr. Benchener seconded. Mr. Gallagher called the question and the motion passed 5-0.

Conditional Use, Oishi, 2808 – 10 South Eagle Road: Mr. Garton said that this is a public hearing and that the property in question is located at 2808 – 10 South Eagle Road in the Village of Newtown Shopping Center, Tax Map Parcel #29-3-24-4 in the PC Planned Commercial Zoning District. The use will occupy approximately 4,836 square feet. The hearing has been duly advertised. The applicant is looking for approval of Uses E-5 eating place and E-6 eating place take out. The application as well as all recommendations are incorporated into the record. He asked if anyone wished party status. There was no response. The Township’s Planning Commission recommends approving the application subject to several conditions.

Harold Lichtman, architect advised that Oishi is currently located at 2817 – 19 South Eagle Road and has been there since 1999. Due to their success they are looking to expand. The owners will not be vacating the current space, rather reprogramming the existing restaurant and the new location will become Oishi. He reported on discussions/approvals from the Newtown Sewer and Water Authority. He commented on the presentation before the Township’s Planning Commission and noted that the applicant will comply with their recommendations. He also introduced John Im, Oishi co-owner.

Mr. Garton reviewed the Planning Commission’s recommendations.

Mr. M. Gallagher questioned why the hours of operation would be restricted. Mr. Lichtman advised that the restaurant is closed in the afternoon, between lunch and dinner. Mr. Benchener asked the applicant if they would like to change the hours of operation. The applicant advised they would. It was agreed that the hours of operation would be changed 11:00 AM – 12 AM Monday through Sunday.

Mr. R. Gallagher moved to approve the conditional use application of Oishi, 2808 – 10 South Eagle Road, 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:

Mr. Benchener seconded.

Discussion of motion: Dr. Ciervo inquired on the number of seats. Mr. Lichtman advised that there will be 150 seats. Dr. Ciervo inquired on total number of seats for Lee’s and the Basil Leaf. Mr. Lichtman advised that he did know the answer to that question and has been unable to locate the occupancy placards. Dr. Ciervo also commented on the number of parking spaces being allotted. Mr. Lichtman reported that one advantage is that there is parking in the rear and that all employees will be required to park in the rear. Dr. Ciervo asked about the number of maximum number of employees and suggested increasing that number. Mr. Im requested increasing the maximum number of employees to twenty (20) and noted that he did not feel that employee parking would be an issue due to many of the employees carpooling. Dr. Ciervo recommended that the motion be amended to increase the maximum number of employees.

Mr. R. Gallagher amended his motion to include the increase in the number of employees to a maximum of 20 employees. Mr. Benchener seconded. The motion passed 5-0.

Mr. Im advised that the new restaurant will be named KO.

Consideration of Development Agreements for Brookshire Estates, Phase II: Mr. Garton advised the Board on the consideration of development agreements for Brookshire Estates, Phase II. One lot is located in the Township. Approval is needed before proceeding.

Mr. R. Gallagher moved to approve the development agreements for Brookshire Estates, Phase II. Mr. Benchener seconded and the motion passed 5-0.

Beneficial Bank, 34 South Sycamore Street – Preliminary as Final Plan: Mr. Garton advised that the applicant is proposing to construct a 3,186 Square Foot bank building on Tax Map Parcel #29-11-56. The Traffic Impact Study was performed by McMahon Transportation Engineers and Planners, dated May 2013. The plans presented tonight were prepared by Bohler Engineering, Inc. dated May 6, 2011 and last revised July 19, 2013. The general project description and stormwater management calculations report was also prepared by Bohler Engineering, dated May 6, 2011, last revised July 22, 2013. The plan was the subject of a Court approved Stipulation entered by the Honorable James J. McMaster May 29, 2013. The Township’s Planning Commission recommended approval subject to conditions at its meeting held on July 2, 2013.

Attorney VanLuvanee discussed the Boucher & James, Inc. review letter dated August 13, 2013. The applicant will comply with all comments with the exception of the comment regarding the sign. He discussed the CKS Engineers, Inc. review letter dated August 14, 2013. The applicant will comply will all comments with the exception of 1d; feels that the plan is in compliance. He discussed the comments received from the Township’s Planning Commission.

Dr. Ciervo inquired on the stipulation agreement with regards to the entrance/exit off of Richboro Road. Mr. Garton reported that the stipulation agreement calls for no left out. Dr. Ciervo advised that he is concerned with access.

Mr. M. Gallagher questioned the applicant’s response to the correspondence received from Gilmore & Associates, Inc. dated June 10, 2011. Attorney VanLuvanee advised that a response was given and that Gilmore & Associates, Inc. never responded to the response.

Mr. M. Gallagher moved to approve the preliminary plan as final for Beneficial Bank, 34 South Sycamore Street, subject to the following conditions.

(a) Section 402.3B&C, so as to permit an aerial photo in lieu of a survey;

(b) Section 5.224.B to allow grading within five feet of the property lines;

(c) Sections 402 and 403 to allow the Plan to be reviewed and approved as Preliminary/Final Plan;

(d) Section 402.1.A and 403.1.A to allow the Plan to be drawn on a scale of one inch equals thirty feet;

(e) Section 521.5B to allow existing ground cover to be used in the predevelopment condition in lieu of meadow condition;

(f) Section 224.3 of the Newtown Township Stormwater Management Ordinance to use existing site conditions to determine allowable release rates;

(g) Section 238.C of the Newtown Township Stormwater Management Ordinance to allow roof drains to discharge to areas other than in infiltration areas or vegetative BMP’s;

(h) Section 530.3.D.3 to permit the planting of trees within fifteen feet of overhead wires, but to compensate for the location of the trees, ornamental trees selected from the latest edition of compatible tree fact sheets ( a resource outling trees approved by PECO and other utility companies for use and proximity to power lines) shall be used so as to not adversely impact the power lines;

(i) Section 5.224.A to permit a three to one grade in lieu of the required four to one;

4. Compliance with the Boucher & James report dated August 13, 2013 except to the

extent waivers have been granted;

Mr. Benchener seconded the motion failed 2-3 with Mr. R. Gallagher, Mr. Calabro and Dr. Ciervo voting nay.

Newtown Swim Club/Townhome PRD, 761 Newtown-Yardley Road – Tentative PRD Submission: Mr. Garton said that County Builders is seeking tentative approval of a PRD consisting of 56 townhouses at 761 Newtown Yardley Road, Tax Map Parcel 29-10-52-2. The application has been duly advertised. The application, along with reviews by Bucks County Planning Commission and Newtown Township Planning Commission are incorporated into the record. The applicant seeks the following modifications of the JMZO:

The applicant is seeking the following modifications of the SALDO:

Mr. Garton asked if anyone wished party status. The following asked for party status: Marc Zahirnyi, 9 Adrian Place, Newtown; Peggy Kennedy, 2 Jericho Run, Washington Crossing, a Swim Club member; Mark Waldinger, 250 Andrew Drive, Newtown Borough and attorney Terry Clemons on behalf of the homeowners associations of Wiltshire Walk and Headley developments. Mr. Garton said that being a member of Newtown Swim Club would not be sufficient to give someone party status.

Mr. Calabro asked Mr. Garton to explain the meaning of “equitable owner”. Mr. Garton explained that the equitable owner is party to an agreement of sale with the owner of record of a property. The equitable owner has standing to make applications for land development.

Marc Zahirnyi was sworn in. In response to Attorney VanLuvanee’s questions, Mr. Zahirnyi said that he lives in the center of the Ridings development and described its location in relation to the Swim Club. He cannot see but can hear Newtown Swim Club from his home. There is a large area of open space between the Swim Club and the Ridings. He is not any more or less impacted by this application than any other residents of his community, who will be impacted by increased housing density and increased traffic. Attorney VanLuvanee objected to granting party status to Mr. Zahirnyi, as he is not an aggrieved party, as he is not personally impacted any more than any other residents of Newtown Township.

Mrs. Kennedy withdrew her request for party status.

Mark Waldinger was sworn in. In response to Attorney VanLuvanee’s questions, Mr. Waldinger said that his home is about one mile from the Swim Club and it is not visible from his home. He will be impacted by the increased density and increased traffic, but will be impacted the same as any residents of Newtown.

Mr. Garton suggested that the Board postpone considering the question of granting party status until the time of the written decision. Those seeking party status could participate in the hearing. While he believes those seeking party status have marginal standing, he would recommend postponing a decision until the issues have been clarified further. He would not want to litigate party standing at this time.

Dr. Ciervo and Attorney VanLuvanee said that they would like some clarification now on whether party status would be granted.

Dr. Ciervo moved to grant Mr. Zahirnyi party status. Mr. Calabro seconded.

Discussion of motion: Mr. Garton said that if status is granted now, it could avoid future challenges from Mr. Zahirnyi.

Mr. R. Gallagher asked whether the Board could change its mind as to Mr. Zahirnyi’s status at the time of written decision.

Mr. Garton said that the Board could postpone its decision until after the hearing, at the time of the written decision. If the Board supports Dr. Ciervo’s motion, Mr. Zahirnyi will be a party to the application

.

The motion passed 5-0.

Mr. Garton said that Mr. Waldinger’s standing is more remote. He was not granted party status.

Attorney VanLuvanee provided the Board with packets of copies of his exhibits. He entered as Exhibit CB-1, the complete application.

Kevin Reilly was sworn in. In response to Attorney VanLuvanee’s questions, he said that he holds a Bachelor of Science degree from Penn State University and is a registered professional engineer in Pennsylvania and New Jersey. He is Vice President of County Builders. Prior to his experience in County Builders, he was an engineer at Langan Engineering, preparing projects for land development.

Attorney VanLuvanee entered as Exhibit CB-2, Mr. Reilly’s resume, as Exhibit CB-3, a redacted agreement of sale, pages 1 and 18, between Newtown Swim Club and County Builders dated May 1, 2012 and as Exhibit CB-4, an aerial photograph of the Swim Club property. In response to Attorney VanLuvanee’s questions, Mr. Reilly described the property as 16.6 acres at 761 Newtown Yardley Road in the R-2 zoning district. The Swim Club has been vacated and is not in operation. County Builders filed an application for land development for the Swim Club for a 56 unit mobile home park, a by right use, on December 20, 2012. That application is still pending. The Supervisors discussed the application at their meeting of January 23, after which Mr. Garton contacted Attorney VanLuvanee to discuss the possibility of developing the parcel for townhouse use.

Attorney VanLuvanee entered as Exhibit CB-5, the minutes of the Board of Supervisors meeting dated January 23, 2013. Mr. Reilly said that after the Board meeting of January 23, 2013, County Builders granted the Township an indefinite extension on the mobile home park application.

Attorney VanLuvanee entered as Exhibit CB-6, his letter to Mr. Garton granting the indefinite extension and as Exhibit CB-7 Attorney VanLuvanee’s letter to Mr. Garton dated March 19, 2013, outlining the conditions under which County Builders would consider submitted a 56 unit townhouse PRD. Mr. Reilly confirmed that County Builders authorized Attorney VanLuvanee to prepare and submit the letter marked as Exhibit CB-7. That letter was discussed at the Board of Supervisors meeting dated April 10, 2013.

Attorney VanLuvanee entered as Exhibit CB-8, the minutes of the Board of Supervisors meeting dated April 10, 2013. In response to Attorney VanLuvanee’s questions, Mr. Reilly read into the record from page 6 of the minutes of April 10, 2013, “ 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 Attorney VanLuvanee. Mr. Benchener seconded.” He noted that after some discussion the motion passed 3-2, with Dr. Ciervo and Mr. Calabro voting nay.

Attorney VanLuvanee entered as Exhibit CB-9, Mr. Garton’s opinion letter explaining that the Supervisors could consider a PRD for a townhouse development on this parcel, and as Exhibit CB-10, a memo dated April 10, 2013 from Kurt Ferguson, outlining conditions attached to granting of waivers as requested in Exhibit CB-7. In response to Attorney VanLuvanee’s questions, Mr. Reilly said that he had reviewed the memo, CB-10, and found the conditions attached to the granting of waivers, as recommended by the Township’s professional staff, to be acceptable to County Builders.

Attorney VanLuvanee entered as Exhibit CB-11, a letter dated April 12, 2013 from Mr. Garton to Attorney VanLuvanee confirming the Board’s decision at its April 10, 2013 meeting and as Exhibit CB-12, an 11”X 17” set of the record plan. He asked Mr. Reilly to review the application’s components. Mr. Reilly said that the application consisted of the following:

Attorney VanLuvanee entered as Exhibit CB-13, Mr. Reilly’s energy conservation letter dated June 28, 2013. In response to Attorney VanLuvanee’s questions, Mr. Reilly reviewed the topography of the parcel as flat. The total proposed number of units is 56 with a maximum of 6 units attached. The density will be 3.4 units per acre where the maximum permitted is 3.9 in mixed use or mobile home developments. A modification has been requested to permit this density for a townhouse PRD in a letter from Attorney VanLuvanee dated July 5, 2013. The required open space for a mixed use or mobile home PRD is 40% under the JMZO. For this parcel the requirement of 40%, which requires a modification, would equal 6.5 acres; this plan provides 8.3 acres of open space, or 50.6%. The JMZO requires that 47.33% of open space must be undeveloped. For this plan, 3.1 acres will be undeveloped open space owned by the townhome community association.

Attorney VanLuvanee entered his letter to Mr. Garton dated July 5, 2013 as Exhibit CB-14 and as Exhibit CB-15 sample elevations of the proposed townhouses. Mr. Reilly said that the development would have two-story townhouses, with footprints of 30’X 56’ or 1680 square feet. As confirmed by letter, the development will be served by Newtown Artesian public water and Newtown Joint Municipal Authority public sewers. A stormwater management plan will be part of final land development. Preliminary review of stormwater management shows that stormwater will be diverted to the Wiltshire Walk detention basin through an existing easement. An agreement with Wiltshire Walk regarding payments for maintenance has been entered. The development will meet all stormwater management requirements and will have private streets 30 feet in width as per conditions outlined in the March 19, 2013 letter. There will be 168 parking spaces, 112 on lot and 56 off-lot spaces. Energy conservation measures are outlined in Mr. Reilly’s letter dated June 28, 2013. The development will be completed in one phase.

Attorney VanLuvanee entered as Exhibit CB-16, his letter to Mr. Ferguson dated April 30, 2013 and as Exhibit CB 17, an aerial view of the property and surrounding community. In response to Attorney VanLuvanee’s questions, Mr. Reilly outlined how development of this property as a townhouse PRD is in the public interest, as discussed in Attorney VanLuvanee’s April 30 letter, because it is surrounded by Wiltshire Walk and Headley townhouse developments, the Ridings open space is contiguous with the Newtown Townhome PRD open space and it also is surrounded by Newtown Business Commons, First National Bank, Weglos Dental Office and a church. The proposed density is less than either Headley or Wiltshire Walk.

Attorney VanLuvanee entered as Exhibit CB-18 the Newtown Township Planning Commission’s recommendation letter to the Supervisors’ chairman dated July 22, 2013. In response to Attorney VanLuvanee’s questions, Mr. Reilly said that he has reviewed the Planning Commission’s recommendation as well as the review letter of CKS Engineering dated July 3, 2013 and of Boucher and James dated July 2, 2013. County Builders is in agreement with all of the conditions outlined by the Planning Commission and will accept them.

Mr. R. Gallagher said that before this witness is cross-examined, he would like to consider Mr. Waldinger’s status. He has measured the distance from Mr. Waldinger’s home and from Mr. Zahirnyi’s home to the site and finds they are each less than one mile away. He would rather grant Mr. Waldinger the same party status rather than face a challenge later.

Mr. R. Gallagher moved to grant Mr. Waldinger party status. Mr. M. Gallagher seconded.

Discussion of motion: Dr. Ciervo questioned Mr. R. Gallagher’s reasoning. Mr. R. Gallagher explained that he measured both homes to the Swim Club property line, as the crow flies, and found Mr. Waldinger to be 0.7 miles away and Mr. Zahirnyi 0.3 miles away. Party status is usually granted to contiguous property owners, but since Mr. Zahirnyi was granted status although he is not adjacent, he would like to grant Mr. Waldinger the same party status.

Dr. Ciervo said that Mr. Zahirnyi, as a member of the Ridings Homeowners Association, does have a right, as the Ridings open space is contiguous to the Swim Club open space.

The motion passed 5-0.

Attorney VanLuvanee noted for the record that Mr. Waldinger has been provided copies of the exhibits.

Mr. Peter Williams, attorney for Mr. Zahirnyi, referred Mr. Reilly to Section 803(B)(15)(e) of the JMZO, which requires that a PRD provide more efficient use of public facilities and asked how this plan will provide such. Mr. Reilly said that the open space fulfills that requirement.

Mr. M. Gallagher advised that there would be a brief recess.

Attorney Williams asked what are included in the amenities provided for the public. Attorney VanLuvanee asked the specific subsection of 803(B)(15) Mr. Williams was referencing and objected to reference to Sections (c)(d)and (e), as these are not conditions for a PRD. Mr. Garton overruled the objection. Mr. Reilly said that the townhouse cluster provides for over 50% open space, which could not have been achieved by a single family cluster. Mr. Williams said that JMZO Section 1005 requires that the open space must be contiguous. He said that this open space is in small slivers throughout the development. Mr. Reilly pointed to the open space on the plan, which wraps around the entire development where it joins with the Ridings open space and continues to the active recreation open space area. The uninterrupted portion is greater than 48%.

Attorney Williams noted on Mr. Reilly’s resume that he had worked on plans for Walnut Ridge. He asked if a traffic study had been prepared for that development but is not part of the Newtown Townhomes Development. Mr. Reilly said that the MPC does not require a traffic study for a tentative PRD plan submission.

Dr. Ciervo noted that JMZO section 1005 discusses open space and states that the open space cannot be just unusable, leftover land and cannot be separated by roads. He asked how this plan meets the requirements. Attorney VanLuvanee said that the ordinance section referenced deals with undeveloped open space, not developed open space. Section 1005’s requirements are met by the combined undeveloped open space and the recreational open space.

Dr. Ciervo asked whether Mr. Reilly knew how many acres of land are required for a single family cluster and for a mixed use PRD and the ratio of open space for the single family cluster.

Mr. Reilly said that a single family cluster requires 15 acres; a mixed housing type PRD requires 25 acres. Attorney VanLuvanee said that a single family cluster on 15 acres would require 55% open space. This plan does not provide 55% open space.

Dr. Ciervo said that the review letter of Gilmore and Associates dated May 30, 2013 states that a traffic study is warranted, however this application does not include a traffic study, as required by the JMZO. Attorney VanLuvanee first objected to the question then said that this is a legal question, not an engineering question. Under the MPC, Section 707 (4) enumerates the information to be provided to the municipality for a tentative approval of a PRD, and a traffic study is not required at this time. Under 707(6), the MPC states that the tentative approval for a PRD is in lieu of any other procedure. The goal is to streamline the process; a traffic impact study can be required at final land development.

Dr. Ciervo referred to the requirements for tentative approval of a PRD as enumerated in JMZO Section 803, and asked whether the applicant has provided a financial statement, projected tax yields, impact on the municipality and schools, and an explanation of how the proposed development is in the public interest. Attorney VanLuvanee said that the applicant has provided all of the relevant information as required under MPC section 707. His letter dated April 30, 2013 (Exhibit CB-16) outlines the applicant’s opinion that this proposed development is in the public interest in that it is consistent with surrounding development, as certain other permitted uses, such as a mobile home park, might not be. He noted that a permitted mobile home park would require 40% open space for the same parcel.

Dr. Ciervo asked about the stated density of this development as compared to Wiltshire Walk. Mr. Reilly said that the proposed development would have a density of 3.4 units per acre, whereas the Wiltshire Walk townhouses have a density of 4.88 units per acre. Dr. Ciervo pointed out that Wiltshire Walk is a mixed development with a lower density when the single family units are also included in the calculation. He discussed the principles outlined in the 2009 Newtown Area Joint Comprehensive Plan, which addresses prevention of “sprawl”. Attorney VanLuvanee said that the property is zoned R-2 and does permit density of 3.9 units per acre; 64 mobile homes would be permitted.

Dr. Ciervo said that a modification is needed to permit only townhouses and the modification is not consistent with the comprehensive plan. He asked about traffic studies, noting that there had been a recent accident in front of the Swim Club. Mr. Reilly said he was unaware of the accident but would not think a study is needed at tentative plan submission based on one traffic accident.

Mr. Benchener asked whether the current plan is preferable to the mobile home plan. Mr. Reilly said that, based on residents’ comments at public meetings, he believes it is a better plan.

Mr. R. Gallagher asked what percentage of land must be preserved as open space in a mobile home park. Mr. Reilly said that 40% must remain open in a mobile home park.

Mr. Calabro questioned why a traffic study is not needed. The Bucks County Planning Commission review specifically mentions it. Attorney VanLuvanee said that a traffic study would be presented at final land development but is not required at tentative PRD approval. The MPC section 707 supersedes the JMZO and SALDO.

Mr. Calabro questioned what an equitable owner is and what would happen if this plan is not approved. In response to Mr. Calabro’s question, Mr. Reilly said that County Builders is an equitable owner, not the owner of record of the property. If this plan is not approved, he did not know what County Builders would do.

Mr. Calabro questioned the differences between a mobile home park and a prefabricated home park. Attorney VanLuvanee objected to the question. Mr. Garton advised that the objection was noted. Mr. Reilly said that he was not sure of the difference between “mobile home” and “prefab” home. He has not personally worked on a mobile home project. He has seen Buckingham Springs development but does not know whether the buildings can be moved. Attorney VanLuvanee said that he represents the developer of Buckingham Springs; they are mobile homes which were moved onto the site and could be moved again, but at great expense.

Mr. Calabro asked about impervious surface remaining for outdoor amenities such as decks. Mr. Reilly said decks are included as an upgrade for these homes; there is enough area remaining for the houses to have decks. The smallest deck offered is about 10’ X 10’. He explained the available parking. Each unit has three spaces as required by the ordinance. The two car garages are not included in the parking calculations, so cars could be in the garage and on the driveway.

Mr. Calabro asked whether the sewer moratorium would impact the project. Mr. Reilly said that he understood that DEP is approving full planning modules.

Mr. Calabro referenced the CKS review letter dated June 12, 2013. Attorney VanLuvanee said that the letter was superseded by a letter dated July 3, 2013.

Mr. Calabro asked what the density would be if the property were developed with a mixture of housing types and whether the active recreation area would be impervious. Mr. Reilly said that it could have about 52 units with a combination of townhouses and single family houses. The active recreation provided will probably be playing fields, which are porous.

Dr. Ciervo asked about steep slopes and other public amenities. Mr. Reilly said that based on aerial photographs he did not think there are any steep slopes which would be disturbed. The only public amenity would be open space. Private amenities for residents have not yet been finalized.

Mr. Calabro asked about prices for the proposed townhouses. Mr. Reilly said that based comparisons with surrounding communities he estimated the homes might be in the $450,000 range. The mobile homes would have been a long term investment with rental fees paid monthly.

Mr. R. Gallagher asked what uses are permitted in the JMZO for the R-2 zoning district. Mr. Reilly referred to the Ordinance and read the list which included single family homes, mobile home park and under PRD B-15 use: village homes, atrium homes, garden apartments, twin homes and townhouses.

Attorney Terry Clemons, representing Wiltshire Walk and Headley Homeowners Associations, had no questions for this witness. He called Douglas Wiegand.

Mr. Wiegand was sworn in. In response to Mr. Clemons’ questions he said that he lives on Hartfeld Lane in Wiltshire Walk and is president of the Homeowners Association. He has participated in a number of meetings with County Builders at which the proposed townhouse development was discussed. The Wiltshire Walk Board approves and supports this plan. There had been concerns about landscape buffering and maintenance and use of the stormwater detention basins, which have been addressed.

Mr. Clemons entered as Exhibit WW-1 the agreement for stormwater basin maintenance between Newtown Townhomes and Wiltshire Walk. Mr. Wiegand confirmed that the agreement addresses sharing the costs of maintenance, silt controls during construction and any future culvert work needed. Berms would be built and landscaping planted to form a buffer between the Wiltshire Walk townhouses and the new development.

Dr. Ciervo asked whether Wiltshire Walk residents would prefer the 56 unit townhouse development or a 30 unit single family development. Mr. Wiegand said that the residents are eager to see the property redeveloped quickly and expeditiously. They are eager for this plan to be approved and moved forward. The residents are concerned that the approval process could drag and the site could become an eyesore.

David Wagner was sworn in. In response to Mr. Clemons’ questions, Mr. Wagner said that he is a member of the Headley Homeowners Association Board. He attended the meetings at which the Newtown Townhome plans were discussed with County Builders. Messrs. Reilly, VanLuvanee and Miesner were in attendance. The Headley Homeowners Association supports the plan as presented. County Builders has addressed all of Headley residents’ concerns, particularly regarding buffering and landscaping. County Builders has agreed to have its landscape architect work with Headley’s landscape committee to assure that the new landscaping will work well with the Headley landscaping.

Mr. Garton said that the record is now closed. He reviewed the recommendations of the Planning Commission:

To grant approval for a Tentative Planned Residential Development (“PRD”) for 56 town-homes located at Bucks County Tax Parcel No. 29-10-52-2, prepared by Langan Engineering and Environmental Services dated April 29, 2013, with no revisions, comprised of nine pages, subject to the following conditions:

Attorney VanLuvanee agreed to the conditions outlined.

Mr. Benchener moved to grant tentative PRD approval to Newtown Townhomes subject to the conditioned as outlined by Mr. Garton. Mr. R. Gallagher seconded.

Discussion of motion: Dr. Ciervo said that he fears the Board is going down the wrong path by allowing this density when the parcel is well below the required 25 acres. The Ordinance does not allow townhouse developments; they must be part of a mixture of housing types. No public amenities or significant open space are being provided. It is inconsistent with the zoning standards. Because no traffic study has been included, the Board does not know what the impact of this development will be. He would rather have the Supreme Court decide that the JMZO is invalid in its requirements for PRDs.

Mr. Benchener said that all would prefer a plan for single family homes, but that is not being offered. The plan is preferable to the mobile home park, which he had not realized was a viable plan when first presented. Mr. Garton has advised the Board that case law supports use of PRDs and recognizes that they diverge from the zoning ordinance. If the Board fought this application in court, he is afraid the Township would incur large legal expenses and would ultimately lose. The residents in the surrounding community are supportive of the plan, which is consistent with the neighborhood and preserves more open space. In this instance, speed does matter to the residents, who are concerned about the property remaining vacant. Zoning is a tool for the Board to manage development and this plan is the result of compromise, so he is inclined to support it.

Mr. R. Gallagher agreed with Mr. Benchener. He noted that if the parcel were 25 acres and if it were developed as a mixed housing PRD, the 16 acres being considered now might look exactly the same. The JMZO was written to address development of large tracts of farmland. This is a redevelopment in an already developed area. The proposed housing will blend nicely with the surrounding community. Traffic is still to be addressed, but this is a tentative approval and the Board will have opportunity to address traffic concerns before final approval is considered.

Mr. M. Gallagher said that the perfect plan would be for the Swim Club to remain operational for many years to come, but that is not being offered. This plan is good for the surrounding community and is supported by its immediate neighbors. The developer is already working with the surrounding neighbors and he feels the development is good for the neighborhood.

Mr. Zahirnyi said that people have stated that there is no precedent in zoning and that each case is decided on its own merits, however he disagreed. He is concerned that if this density is permitted, when other properties are developed, the same density will be sought. The Township and School District cannot support that kind of population density. The Board has not pushed back with this developer and has not worked to compromise. Mr. Gallagher noted that this is a compromise. The developer could have included garden apartments, which would have increased the density. The original plan brought to the Township included 64 townhouses. This plan is the result of compromise.

Mr. R. Gallagher mentioned that the property could be developed as elderly housing by right.

Resident John D’Aprile said that he feels this is a bad plan. The proposed narrow streets will make it difficult for emergency vehicles to maneuver and there is inadequate parking. He also thought that some political motivations might be involved. The Board has discussed the “surrounding community” but it really must consider the entire Township. This plan will have an impact of traffic and on the impervious surface.

Adrienne DiGiovine of Newtown Borough said she had read some of the review letters and questioned the reference to fees for recreation. Mr. M. Gallagher explained that the Ordinance requires that developers provide active recreation for residents or pay a fee in lieu, which is used to develop Township wide recreational facilities. For example, Veterans Park was financed through developer impact fees, creating a recreational facility available to all residents.

Ms. DiGiovine asked about the timeline for completion of the project, as she is concerned that the property will become an eyesore, standing vacant for years to come. Mr. M. Gallagher said the developer has indicated that this will not be a phased project. If a tentative plan is approved, the developer would submit fully engineered plans for approval before permits for demolition and building could be issued. He is optimistic that the sewer issues will be resolved shortly. Meanwhile the owners are responsible to maintain the property and keep it safe. The Township can and does enforce maintenance of vacant properties.

Peggy Kennedy of Upper Makefield said that the Board is making its decision based on fear of a mobile home park. She urged the Board to uphold the zoning. She asked whether this decision could ever be reversed. Mr. M. Gallagher said that after tentative approval is granted the developer will submit plans for final land development. If the Board sees that the applicant has not complied with the conditions of tentative approval or if some glaring issue, such as serious traffic concerns, are revealed, final approval can be denied.

Dr. Ciervo asked whether the Board could seek fewer units at final approval. Mr. Garton said that if it complies with tentative approval, it could not be denied later. However, if something were revealed at final review, such as traffic issues that would be a danger to public health and safety, the plan could be denied.

Mrs. Kennedy said that a traffic study was not the only thing that was bypassed in this review.

Mr. Garton explained that nothing is being bypassed. All requirements must be met for final land development approval.

Dr. Ciervo said that the professional consultants submitted review letters on June 6, 2013. These letters reviewed the plans as preliminary plans and contained very detailed information on how the plans did or did not comply with our JMZO and SALDO. The letters were not submitted to the Planning Commission for consideration and new, far less detailed letters were included in the Planning Commission packets instead. He felt the June 6th letters of CKS Engineering and Boucher and James should have been part of the packets the Planning Commission reviewed.

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

Reports of Officials

Manager’s Report

Motion to approve (5) Five Year Winter Traffic Services Agreement and to authorize the Township Manager to execute the agreement

Mr. R. Gallagher moved to approve the five year Winter Traffic Services Agreement and to authorize the Township Manager to execute the agreement. Mr. Benchener seconded and the motion passed 4-0. (Dr. Ciervo was not present for the vote.)

Minutes, Bills Lists and Reports

Minutes: Mr. R. Gallagher moved to accept the minutes of August 28, 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 $225,796.15. Mr. Benchener seconded.

Discussion of motion: Mr. Calabro asked if the Township was still using TD Bank. It was acknowledged that the Township is still using their services.

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

Mr. R. Gallagher moved to approve interfund transfers totaling $254,366.07. Mr. M. Gallagher seconded and the motion passed 5-0.

Mr. M. Gallagher announced that prior to the meeting the Board met in executive session.

The meeting adjourned at 1:45 AM.

 

Respectfully Submitted:

Christy Holley-Flaherty, Recording Secretary

 

Attest:

Kurt Ferguson, Township Manager


Michael Gallagher, Chairman

Matthew Benchener, Vice-Chairman

Ryan Gallagher, Esq., Secretary

Philip Calabro, Member

Robert Ciervo, Member