Minutes of the meeting held on March 2, 2010


Present: Vice Chairmen Susan Beasley and Robert Whartenby, Paul Cohen, Peggy Driscoll, Dennis Fisher, Michael Iapalucci and Jay Sensibaugh, members. Also in attendance were Kevin Kochanski, Township Planner, John Boyle, Township Assistant Manager and Jerry Schenkman, Township Supervisor.

Call to Order: Vice chairman Susan Beasley called the meeting to order at 6:30 PM.

Approval of Minutes: Mr. Sensibaugh moved to accept the minutes of February 16, 2010. Mr. Whartenby seconded and the motion passed 6-0-1, with Mrs. Beasley abstaining.

JMZO 2010-___ Federal Cemetery Overlay District Amendment: Mr. Sensibaugh explained that this amendment would remove certain parcels from the Federal Cemetery Overlay District (FCO). He reviewed the history of the FCO, which had been adopted to facilitate sale of land to the Veterans Administration for a cemetery. Each of the three Jointure municipalities accepted some of the zoning changes, with Newtown and Upper Makefield gaining some housing density and Wrightstown gaining two schools on a Council Rock School District tract. Mr. Sensibaugh said that although all three municipalities adopted the 2006 Ordinance creating the FCO, Newtown Township would experience the biggest impact, accepting increased housing density on the Newtown portion of the Melsky tract, all traffic from the Melsky development and increased traffic from the cemetery itself.

Mrs. Beasley noted that the School District property known as the Howe tract in Wrightstown which could have two schools on it is on Route 413 at the border of Newtown.

Mr. Sensibaugh said that each municipality gave some concession to bring the cemetery to the Jointure, but at this point, the land has been sold outright to the Veterans Administration and the School District has completed its sale to Toll Brothers of the Melsky tract. That tract has an approved plan for 45 homes in Newtown and 45 in Upper Makefield.

Mr. Sensibaugh said that the proposed amendment removes all parcels except the cemetery from the FCO. The parcels to remain are listed in Exhibit “A” of the amendment. As presented, the amendment does not contain all of the tax map parcel numbers for those parcels to be removed. It is Mr. Sensibaugh’s understanding that some of these parcels have recently been subdivided, so new tax map parcel numbers have not been made available by the County.

Mr. Cohen asked who owns the parcels to be removed from the FCO.

Mr. Sensibaugh said that the parcels to be removed belong to Toll Brothers. Some land has also been transferred to the County to be preserved as open space. It is his understanding that approved plans for these tracts would not be impacted by adoption of the amendment. By removing the parcels, they would revert to their original zoning designations, for example, the Melsky tract would revert to CM Conservation Management zoning, which permits one house per three acres.

Mr. Cohen expressed some concern about the legal consequences of adoption of this amendment. He said this could be perceived as a “bait and switch” situation and could possibly lead to litigation, which could prove very expensive.

Mr. Iapalucci asked if this Planning Commission is the first to review the amendment.

Mr. Sensibaugh said that it has been briefly discussed at the Joint Zoning Council, but Newtown’s is the first Planning Commission to review it. He explained that the amendment is being introduced by Newtown Township but at this point it may not have the full support of the Jointure partners. Any amendment introduced to the Jointure might be revised at the recommendation of any of the Planning Commissions or Boards of Supervisors. All three municipalities must be in agreement on any revisions.

Mr. Sensibaugh said that there are some lawsuits still in the courts about the FCO. He does not know how many or the details of them.

Mr. Sensibaugh said that this zoning change would be good for Newtown and he would ask the other Planning Commissioners to support it.

Mrs. Driscoll said that she agreed that it would help control housing density, which is good for Newtown and for the School District. She did not think it is realistic to expect that the District would build two new schools on the Howe tract as the school age population has been steady and in some areas, shrinking.

Mr. Cohen asked why the Jointure partners are not in full support at this time.

Mr. Schenkman said that the resistance is in part based on fear of costly litigation should Toll Brothers bring in a new plan for the properties. The Township will rely on the advice of the Solicitor as to the likelihood of litigation. The Township should proceed cautiously because of these concerns.

Mr. Cohen said that he supports efforts to reduce future housing density in Newtown but has real concerns about the costs associated with litigation with developers. He would have wanted the Planning Commission to have the benefit of legal counsel on the likelihood of litigation.

Mr. Whartenby noted that the Planning Commission is an advisory body which will only make a recommendation to the Supervisors.

Mrs. Driscoll expressed willingness to proceed with the amendment as it is in the best interest of the Township.

Mr. Sensibaugh moved to recommend that the Board of Supervisors pursue JMZO 2010-___ amending the Federal Cemetery Overlay District, removing certain parcels in Upper Makefield and Newtown from the FCO as presented in a draft amendment to the Planning Commission on March 2, 2010, subject to the condition that a thorough legal review has been conducted prior to being voted by the Board of Supervisors and that legal descriptions, including tax map parcels, for parcels to be included in Exhibits “B” through “G”, be included in the amendment. Mr. Iapalucci seconded.

Discussion of motion: Mr. Iapalucci said that removing these parcels from the FCO is in the best interest of the Township. The Planning Commission is recommending adoption of an amendment after complete and careful review by the Solicitor.

Mr. Cohen said that the amendment is premature and he has concerns about possible costly litigation. For that reason he would vote nay to the motion as presented.

Mrs. Beasley asked why this has been placed on the agenda urgently, as this evening’s meeting had been canceled then reinstated late last week.

The recording secretary said that the Township manager had requested that the review be placed on the March 2 agenda. She was not sure of his reason.

Mr. Schenkman said that Wrightstown Township has the amendment on its March 11, 2010 agenda. If Newtown’s Planning Commission had not reviewed it, Wrightstown might have removed it from its agenda. Mr. Schenkman said that he would like the Planning Commission to know that it could be headed toward a decision which could later prove problematic.

The motion passed 6-1, with Mr. Cohen voting nay.

Mrs. Beasley and Mr. Whartenby each asked that the synopsis provided to the Supervisors include the position of the dissenting voter.

New Business: Mr. Fisher asked Mr. Boyle whether the new, very large sign at Newtown Walk is permitted. It is larger than the original sign and very distracting.

Mr. Boyle said this has already been called to the Township’s attention and is being investigated.

The members briefly discussed signs placed at Goodnoe’s Corner restricting certain parking spaces to Rite Aid customers.

Mr. Boyle said that the question of assigned parking has already been researched by the Township solicitor. Goodnoe’s Corner has a variance for 146 shared parking spaces. The assignment of specific spaces is not part of the Township’s approval of the development, but is a landlord/tenant matter.

Mr. Sensibaugh said that he had understood that the shopping center and each individual tenant is limited in the number of signs it can have. Rite Aid has a large number of signs marking parking spaces in addition to the Rite Aid store signs and directional signs for the drive-through window. He asked Mr. Boyle to check whether the additional signs are permitted.

Mr. Sensibaugh moved to adjourn at 7:15 PM. Mr. Cohen seconded and the motion passed 7-0.


Respectfully Submitted:


Mary Donaldson, Recording Secretary