The Newtown Township Zoning Hearing Board met on Thursday, October 7, 2004, in the Newtown Township Building. In attendance and voting were: John Lenihan, Vice Chairman; Gail Laughlin, Secretary; Victoria Bowe and William Wall, members. Also in attendance were James J. Auchinleck, Jr., Esq., Solicitor; Thomas Harwood, Zoning Officer and Connie D’Arginio, Stenographer.

Call to Order 

Mr. Lenihan called the meeting to Order at 7:35 PM. 

The Pledge of Allegiance 

The agenda was reviewed.

Continued Application of Melissa Profy – 100 Winchester Lane

  Continued Application of Brandywine Realty Trust – Silver Lake Road

Continued Application of David and Beverly Fleming – Durham Rd.

Continued Application of J. Loew and Associates – West Road

Application of Larry Fyock and Arthur Micchelli – re: Ordinance 2004-0-13 

Approval of Minutes 

Mr. Lenihan moved to approve the minutes of September 2, 2004. Mrs. Laughlin seconded and the motion passed 4-0. 

Continued Application of Brandywine Realty Trust 

Mr. Auchinleck informed the Board that he had a letter from Michael Coughlin, attorney for Brandywine, requesting a continuance until November 4, 2004. 

Mrs. Laughlin moved to continue the application of Brandywine Realty Trust to November 4, 2004. Mrs. Bowe seconded and the motion passed 4-0. 

Continued Application of David and Beverly Fleming 

Mr. Auchinleck said that he had been advised by Mr. Marshall, attorney for the Flemings, that they had receive additional notices of violations from the Township, and that they wished to combine their appeals, and would like to continue until November 4, 2004. 

Mrs. Laughlin moved to continue the application of David and Beverly Fleming to November 4, 2004. Mrs. Bowe seconded and the motion passed 4-0. 

Continued Application of Melissa Profy 

Mr. Auchinleck reminded the Board that this application had been read into the record at the September 2, 2004 meeting, however no testimony had been heard. 

Mr. Thomas J. Profy, III represented the applicant in this matter. 

Ms. Melissa Profy was sworn in. 

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

Mr. Profy said that this application was to permit a 6-foot high fence, a portion of which is in a storm easement, on a corner property. Mr. Profy explained that this is a replacement of an existing fence. 

Ms. Profy said that she had purchased her home in 1997. A 6-foot high wooden slat fence was already in place. She said that she thought the fence was 15 to 20 years old and that it was in poor condition. During the past winter it became very weak, and she feared that it would fall over, possibly injuring her children or her neighbors. She contracted with Home Depot to replace the fence with an identical fence in the same location. It had been her understanding that Home Depot would apply for all necessary permits. She has since learned that Home Depot had never filed for a permit, and that variances were required for the fence. 

Mr. Profy entered as exhibits P-1 through P-11, a series of photographs showing the old fence, the replacement fence and views of the street corner, showing that the fence does not in any way obstruct views of oncoming traffic. 

Mr. Lenihan asked when the fence was replaced and whether a sub-contractor had installed it. 

Ms. Profy said that the fence had been replaced on March 15, 2004. She said that her only contact had been with Home Depot, but she believed that the installation had been sub-contracted. 

Mrs. Bowe asked if Ms. Profy’s Homeowners Association had approved the fence. 

Ms. Profy said that she had not asked for their approval. She did note that her immediate neighbors had all been notified of the variance application, and none objected. 

Mrs. Laughlin asked where the drainage easement is located. 

Mr. Profy entered as Exhibit P-12, a plan of the neighborhood, showing the location of the easement. 

Ms. Profy said that the easement is an underground pipe. She said that the inlet drain is in her neighbor’s yard. The pipe drains water out to the street. 

Mr. Lenihan asked if anyone present wished to make comment for or against this application. 

Ms. Ann Louise Mary Patton was sworn in. 

Ms. Patton said that she has lived at 309 Cambridge Lane for 8 years. She confirmed that the old fence was falling over, that the new fence is in the identical location and that she supports this application. 

Mr. Profy entered as Exhibit P-13 a letter of support from John Greenwood of 2 Westfield Drive. 

Ms. Sandra Gemmell was sworn in. 

Ms. Gemmell said that she has lived at 101 Winchester Lane, across the street from the applicant’s house for 17 years. She said that the old fence was installed in 1988, and confirmed that it was falling over, that the new fence is in the identical location and that she supports this application. 

Ms. Darlene Long was sworn in. 

Ms. Long said that she lives at 18 Westfield Lane. She said that the fence adjoins her property, and that the storm drain is on her property. She said that the fence does not interfere with the storm grate. She confirmed that the old fence was falling over, that the new fence is in the identical location and that she supports this application. 

Mr. Harwood had no comment on this application. 

Mrs. Laughlin moved to grant a variance from Section 803(H-3)(1)(a), (b), (e), & (f) of the Joint Municipal Zoning Ordinance of 1983 (Newtown Place) to permit construction of a solid fence six feet in height where three feet is the maximum in the front yard and five feet is the maximum in other yards, and a portion of the fence is located in a drainage easement. Mr. Wall seconded and the motion passed 4-0. 

Mr. Profy removed Exhibit P-1 from the file. 

Continued Application of J. Loew and Associates 

Mr. Mark Kaplin, attorney for the applicant, informed the Board that the Township and the Applicant had signed an agreement and that the Township has withdrawn its notices and the applicant withdraws its appeal. 

Application of Larry Fyock and Arthur Micchelli 

Mrs. Laughlin read into the record the application of Larry Fyock and Arthur Micchelli challenging the validity of Ordinance No. 2004-0-13 Revision to Floodplain Regulations, amending the Joint Municipal Zoning Ordinance of 1983. The subject property is owned by Upper Silver Lake Associates, L.P. and is located at Silver Lake Road in the OR Office Research Zoning District, being further known as tax map parcel 29-10-76. 

Mr. Paul Beckert represented the applicants. 

Mr. Wall explained that Mr. Micchelli is a client of his business and that he would recuse himself. 

Mr. Thomas Smith represented the Township in support of the ordinance. 

Mr. Lenihan asked if anyone present wished to be party to this application. 

Mr. Mark Kaplin represented Brandywine Realty Trust, as an interested party in support of the ordinance. 

Mr. Michael McConinch asked for party status for his clients, Theresa Mallon and Chris Mallon of 9 Claire Drive, in support of the challenge to the ordinance. 

Mr. Beckert said that his clients live in properties adjoining the Brandywine Realty Trust property. He said that his clients were challenging the validity of the amendment to the Joint Municipal Zoning Ordinance of 1983, which revises the floodplain regulations. He said that the ordinance has been in place for 20 years. He explained that the ordinance allowed for certain building in the floodplain in one section of the ordinance and disallowed any building in another section of the ordinance.  

Mr. Kaplin objected to Mr. Beckert’s statements, as they are testimony. 

Mr. Auchinleck allowed Mr. Beckert to continue with his statement. 

Mr. Beckert said that Brandywine had purchased the property at Upper Silver Lake Road with the intention of developing it as an office complex with five buildings. The plan submitted to the Board of Supervisors was approved with the condition that Brandywine obtain a special exception and variances from the Zoning Hearing Board in order to build a bridge to access the Newtown By-Pass. Brandywine applied for a variance and special exception, claiming that the language in the ordinance was ambiguous. A special exception and variances were granted, which Mr. Beckert’s clients appealed in the Court of Common Pleas, where the decision of the Zoning Hearing Board was overturned. The Commonwealth Court affirmed the decision of the Court of Common Pleas. At no time did Newtown Township defend the ordinance. A decision was made to amend the ordinance, allowing Brandywine to re-apply for a special exception. Mr. Beckert said that the ordinance was amended solely to benefit Brandywine, and that Brandywine was involved in the drafting of the ordinance. He said that this is contract zoning and special legislation and the amendment should be invalidated. 

Mr. Kaplin responded that Mr. Beckert’s statement is unsupported by law. He said that the amendment to the floodplain ordinance is not contract zoning or special legislation. The amendment positively affects many in the jointure. The existing ordinance prohibited any building in the floodplain, including swing sets and sheds. He said that there is no testimony that Brandywine requested the change. He noted that in order for there to be contract zoning there must be a contract, or bi-lateral agreement. Neither Brandywine nor the Township is under any obligation.  

Mr. Beckert said that any time a property owner benefits by a change it is special legislation.  

Mr. Kaplin responded that the zoning has not been changed, and that case law on special legislation refers to spot zoning. 

Mr. Larry Fyock was sworn in. 

In response to Mr. Beckert’s questions, Mr. Fyock said that he lives at 45 Autumn Drive and that his property and Mr. Micchelli’s adjoin the Brandywine property. He had been granted party status in the Court of Common Pleas and the Commonwealth Court. 

In response to questions from Mr. Smith, Mr. Fyock said that the change in the ordinance does not create any right to use his land, however he is very concerned about flooding on his property. He said that he does not have any specific knowledge of any contract between the Township and Brandywine. 

Mr. Michael Coughlin was sworn in. 

In response to questions from Mr. Beckert, Mr. Coughlin said that he has been the attorney for Brandywine throughout the process of land development for this property, including at the Court of Common Pleas and Commonwealth Court. 

Mr. Beckert entered as Exhibit P-1 a copy of an approved plan for the site of the Brandywine development. Mr. Coughlin said that he did not know if this was the approved plan, as there have been many changes in plans. 

Mr. Beckert said that this plan shows a bridge across Core Creek and that the Township had agreed to accept dedication of this bridge. 

Mr. Coughlin said that this was a condition of preliminary plan approval. 

Mr. Beckert asked if a variance and special exception were required under the old ordinance to build the bridge. 

Mr. Coughlin said that under the previous ordinance the floodplain was divided into two sections, one in which a detailed flood study had been conducted and one in which a study had not been conducted. He said that under the old ordinance, in an area that had not been studied, certain building, such as piers, bridges, and streets would be permitted if they caused a rise in the 100 year flood level of .99 feet or less. However in another section of the ordinance no building is permitted in a floodplain in which a detailed study has been conducted, if the building causes any rise in the floodplain. He said that engineers had argued that any building at all would cause a rise in the flood level in the 100 year flood, and that the ordinance was ambiguous. 

Mr. Beckert asked if the Township had defended the ordinance at the Zoning Hearing Board, the Court of Common Pleas or the Commonwealth Court. 

Mr. Coughlin said that the Township did not oppose Brandywine’s application to the Zoning Hearing Board, and did not participate at the Court of Common Pleas and the Commonwealth Court, however Mr. Harris, representing the Township did appear at the initial meeting with Judge Rubenstein, in support of Brandywine’s application. 

Mr. Beckert entered the following exhibits:

·         P-2 – the decision of the Zoning Hearing Board dated July 12, 2002

·         P-3 – the decision of Judge Rubenstein dated July 10, 2003

·         P-4 – the decision of the Commonwealth Court dated August 2, 2004

·         P-5 – the order of the Commonwealth Court denying reargument dated October 4, 2004

·         P-6 – the correspondence file of David Sander on Brandywine  

Mr. Beckert said that he had subpoenaed Mr. Sander and the file, however Mr. Sander is not available this evening. 

Mr. Beckert asked Mr. Coughlin if he was aware of any discussions about an amendment to the Ordinance. 

Mr. Coughlin said that in September of 2003 Brandywine had submitted a sketch plan for development of the property on Upper Silver Lake Road, which had eliminated the proposed bridge. He said that shortly after that he had heard that the Township was considering amending the ordinance. He said that he did not recall whether he had heard about it from Mr. Sander. 

Mr. Beckert referred to a series of faxes and letters between Mr. Sander and Mr. Coughlin and asked why Mr. Coughlin had been faxed a copy of the draft ordinance and if he had forwarded comments to Mr. Sander. 

Mr. Coughlin said that he had asked for and received copies of the draft ordinance because Brandywine is a property owner affected by the proposed change. He said that he had asked Mr. Sander for an opportunity to review and comment on the draft. He said that he had one or two telephone conversations with Mr. Sander, had written comments on the draft, had received copies of correspondence between Mr. Sander and Township Manager Robert Pellegrino, Township Engineer Gerald Smith and FEMA. He acknowledged that as far as he was aware, he was the only non-government person that   was copied on these correspondences. 

Mr. Beckert entered the following exhibits:

·         P-7 - e-mail dated January 15, 2004 from Mr. Coughlin to Mr. Sander

·         P-8 - e-mail dated December 17, 2003 from Mr. Coughlin to Mr. Sander

·         P-9 – e-mail reply dated December 17, 2003 from Mr. Sander to Mr. Coughlin

·         P-10 – e-mail dated December 23, 2003 from Mr. Coughlin to Mr. Sander

·         P-11 – series of e-mails dated January 9, 2004 between Mr. Coughlin and Mr. Sander

·         P-12  - series of e-mails dated February 6, 2004 between Mr. Coughlin and Mr. Sander

·         P-13 - e-mail dated March 23, 2004 from Mr. Coughlin to Mr. Sander

·         P-14 – series of e-mails between Mr. Sander and Mr. Coughlin dated March 6 – 29, 2004

·         P-15 series of e-mails between Mr. Sander and Mr. Coughlin dated April 23 – 26, 2004

·         P-16 series of e-mails between Mr. Sander and Mr. Coughlin dated April 23 – May 25, 2004

·         P-17 series of e-mails between Mr. Sander and Mr. Coughlin dated May 25 – June 21, 2004 

In response to questions from Mr. Beckert, Mr. Coughlin said that he had been in touch with Mr. Sander because Brandywine was interested in the status in the proposed change to the ordinance. He said that he had commented on some of the language. Mr. Harris, the Township’s solicitor did not use any of the language suggested in Mr. Coughlin’s comments. He also noted that because Brandywine had submitted a sketch plan for their property, and had not yet prepared fully engineered plans, he was very interested in knowing if the ordinance would be changed. He also noted that Brandywine still had other business with the Township to discuss, including the conveyance to Mr. Wright of property on Lindenhurst Road that had been a condition of the first phase of their project. 

In response to questions from Mr. Beckert, Mr. Coughlin said that he did speak in support of the proposed amendment at a Township meeting, noting that Mr. Beckert spoke against it at the same meeting. 

Mr. Beckert asked if Brandywine has filed for a special exception under the new ordinance. 

Mr. Coughlin said that Brandywine has applied to the Zoning Hearing Board for a special exception. 

In response to questions from McConinch, Mr. Coughlin said that he did not know if Brandywine had established an escrow account with the Township. He said that Mr. Sander’s time was not billed to Brandywine. He repeated that as a property owner in the Township, Brandywine was interested in the proposed change in the ordinance, and he had asked to make comment. Some of his suggestions, including language about gaining the consent of adjoining property owners, were rejected by the Township. He said that the Planning Commission had reviewed the latest sketch plan submitted by Brandywine. 

In response to questions from Mr. Kaplin, Mr. Coughlin said that the amendment to the ordinance had been reviewed by FEMA, Upper Makefield, and Wrightstown Townships, in addition to Newtown’s Planning Commission and Board of Supervisors. The amendment had to be adopted by the entire Jointure. Mr. Coughlin explained that FEMA is the Federal Emergency Management Administration, which manages the federal flood insurance program. Mr. Coughlin said that Mr. Sander had contacted FEMA to review the proposed ordinance before showing it to Mr. Coughlin.  

Mr. Kaplin referred to the letters in Exhibit P-6 and asked Mr. Coughlin about the inconsistencies in the old ordinance. 

Mr. Coughlin said that the proposed change in the ordinance was aimed at clearing up ambiguity in sections 905-IV.A and 905-IV.E.a, one section that allows a rise in the floodplain and one section that does not allow any rise. He said that he thought the goal of the amendment was to clear up any inconsistency. He said that the amendment had been reviewed by the Planning Commissions of the three townships in the Jointure, as well as their Boards of Supervisors. He said that the Bucks County Planning Commission had also reviewed the amendments. He noted that among the correspondence were letters between Mr. Sander and Ms. Bradley, the Wrightstown Township Manager, and with Upper Makefield. He said that Brandywine did not appear at the meetings in the Jointure when the amendment was reviewed. 

In response to Mr. Kaplin’s questions, Mr. Coughlin said that Brandywine had no contact with the other municipalities in the Jointure, and that Brandywine is under no obligation to Newtown Township in exchange for the passage of this amendment. He said that Brandywine is not obligated to build the bridge. Brandywine is free to build an office complex according to the recently submitted sketch plan, with three entrances on Upper Silver Lake Road.  

In response to questions from Mr. Smith, Mr. Coughlin said that he has had no contact with any of the government agencies whose approval is necessary to pass the amendment except with Mr. Sander. He said that he is somewhat familiar with Article 6 and Article 8A of the Municipal Planning Code and that he believes that the Jointure also has a Planning Commission which would be required to review the amendment. 

Mrs. Bowe asked if Mr. Smith had contacted Mr. Coughlin or Brandywine for approval of the proposed amendment, or if any other landowners were contacted for comment on the proposed amendment.  

Mr. Smith said that his firm had been in contact with Mr. Coughlin for comment on the proposed amendment only, not for approval. He said that he did not know if any other landowners had been contacted by the Township for comment. 

Mrs. Ann Goren was sworn in. 

Mr. Beckert asked Mrs. Goren is she is a Township Supervisor and if she knew that the Township had agreed to accept dedication of a bridge during the plan approval process. 

Mr. Kaplin objected that Mr. Beckert was asking leading questions. He asked that Mrs. Goren testify in her own words. 

Mrs. Goren said that she is a Newtown Township Supervisor and that the Township had agreed to accept dedication of the bridge that Brandywine proposed during the plan approval process. 

Mr. Beckert entered the following Exhibits:

·         P - 18 – Minutes of Board of Supervisors meeting dated July 14, 2004

·         P-19 – JMZO Ordinance Number 2004-0-13

·         P-20 – Agenda and Minutes of Economic Development Council dated July 15, 2004

·         P-21 – JMZO Ordinance Number 2004-0-20 (Riparian Buffers) 

In response to questions from Mr. Beckert, Mrs. Goren said that in the Newtown Township Board of Supervisors minutes dated July 14, 2004, she had made a motion to approve JMZO 2004-0-13, “…so that Brandywine can get its bridge”. She said that the minutes of the Economic Development Council discussed the passage of the ordinance and made reference to the Brandywine project in that connection. She said that she had been surprised that Core Creek had been excluded from the amendment on Riparian Buffers. She said that she had known that Newtown Creek would be excluded because of the many properties along Sycamore Street, but she had concerns about excluding Core Creek. 

In response to questions from Mr. Kaplin, Mrs. Goren said that she had been subpoenaed by Mr. Beckert, and that she was not here as a representative of the Board of Supervisors. She said that she had made her motion to approve the ordinance, because it is the Board’s practice to hear a motion, then discuss the motion before voting. She said that she thought that the ordinance was being proposed solely to benefit Brandywine, and she saw no positive aspect to the ordinance. She said that she was aware that others on the Board did not agree with her, and that she was aware that the other municipalities in the jointure had voted to approve this amendment. She said that she had a conversation with Mr. Wydro, chairman of the Planning Commission of the Jointure, and he saw no benefit to anyone other than Brandywine. 

Mr. Kaplin objected to the inclusion of Mr. Wydro’s statements as hearsay. 

Mr. Auchinleck said that he would allow Mrs. Goren to continue, as this is her opinion of her conversation. 

Mrs. Goren said that she had the impression that the other municipalities in the Jointure had voted to approve the ordinance because they were pressured by Newtown. 

In response to questions from Mr. Kaplin, Mrs. Goren said that she had met with Mr. Beckert to provide him with copies of the documents entered as Exhibits P-18 and P-20. She had been given the Economic Development minutes in her Board of Supervisors weekly packet. She said that she was aware that Mr. Jirele had said that with the ordinance unamended, no bridge could be built in Newtown, nor could property owners put swing sets in floodplain areas. She noted that three of the supervisors disagreed with her on this amendment. She said that she did not know of any document that obligates Brandywine to Newtown or Newtown to Brandywine.  

Mr. Kaplin moved for dismissal of the application, stating that the applicant had failed to meet his burden of proof. He said that the applicant had not shown that there is a reciprocal obligation between the Township and Brandywine, nor has there been any re-zoning of property. He said that Mr. Coughlin has a right to represent his client and to attempt to influence legislation. He again stated that the change in the ordinance was for the entire jointure, and had been approved by all three municipalities. Citing case law on the issues of special legislation and contract zoning, Mr. Kaplin noted that all of the existing case law requires an obligation. He again stated that Brandywine is not in any way obligated to the Township in exchange for the passage of this amendment. 

Mr. Smith joined Mr. Kaplin’s motion to dismiss, noting that cases decided on special legislation all refer to cases where something that had once been permitted has been changed to prohibit. He also noted that because there had been lobbying for the change, this does not render the change special legislation. He noted that all lobbying had taken place after Newtown had initiated the amendment process. 

Mr. Beckert said that there is an agreement between the Township and Brandywine, in that Brandywine would build a bridge and the Township would accept dedication of the bridge. He said that this agreement meets the requirements of contract zoning as described in case law. He again noted that Brandywine was the only private party that the Township solicited comment from. He noted that Brandywine’s attorney spoke in support of an amendment to an ordinance that had been in place for twenty years. Mr. Beckert noted that special legislation is legislation passed to benefit one person, and that Brandywine was given a special benefit by the passage of the amendment. He said that the language of the original ordinance was not ambiguous, as areas where a detailed flood study has been performed require greater protection, and this amendment gives those areas less protection. He also said that the amendment allows for backwater in the 100 year floodplain, which was not allowed in the original ordinance. He said that the exclusion of Core Creek by the Riparian buffer amendment was also solely for the benefit of Brandywine. 

Mr. Kaplin objected to Mr. Beckert’s statement that a studied area needs more protection, as no evidence has been given in support of that statement.

Mr. Auchinleck asked Mr. Beckert if he could show that the amendment treats Brandywine differently than any other property owner in the jointure by this amendment. 

Mr. Beckert responded that Brandywine is not treated differently but that the amendment was passed for its benefit. 

Mr. Auchinleck explained to the Board that they are to consider the contract issue, as to whether a contract exists between Brandywine and the Township, and if there has been special legislation in that the change in the ordinance treats Brandywine differently than other property owners. 

Mr. McConinch said that there is no motion practice in zoning and that this Board is required to make a decision. 

Mr. Lenihan asked if anyone present wished to make comment for or against the application. He said that the Zoning Hearing Board could only decide on the question that is before them this evening, which is whether the amendment to the ordinance is valid. 

Mr. Emil Matchyshyn was sworn in. 

Mr. Matchyshyn said that he is a resident of Kirkwood development. He said that the ordinance has been in effect for twenty years. He said that he does not think that a bridge should be built in a floodplain and that other options should be considered. 

Mr. Auchinleck reminded those in attendance that the only question before the Board is the validity of the ordinance, and that all public comment should address that question only. He said that Brandywine would be applying for a special exception for the bridge at the November meeting, and that public comment on the bridge would be appropriate at that meeting. 

Mr. Matchyshyn said that he thought that Mr. Beckert had presented evidence that there had been collusion between Brandywine and the Township and that the amendment had been passed to benefit one private landowner. 

Mr. Jonathan Dix was sworn in. 

Mr. Dix said that he is a resident of Wiltshire Walk, which is in the R-1 Zoning District, and that his property adjoins Upper Silver Lake Road. He presented a petition signed by 127 residents in opposition to the bridge. 

Mr. Auchinleck said that he could not accept the petition. He said that it would more appropriately be given to the Board of Supervisors, and the Zoning Hearing Board can only consider the question of the validity of the ordinance.

Mr. Dix said that the e-mails presented into evidence clearly show that there was a contract between Brandywine and the Township to build the bridge and that no other residents of the jointure will benefit by the change in the ordinance. 

Mr. Kaplin asked Mr. Dix if he was aware that the Brandywine property is zoned OR- Office Research; that Brandywine owns the property and intends to develop it for office use; and that Brandywine has the right to build the office complex, accessing Upper Silver Lake Road. 

Mr. Dix said that he was aware of this. 

Mr. Kaplin objected to the petition, as the signers are not present to be cross-examined. 

Mr. Auchinleck denied acceptance of the petition, noting that it asks the Zoning Hearing Board to deny variances, and no variances have been applied for.

Mrs. Nancy Crescenzo was sworn in. 

Mrs. Crescenzo said that she attends most of the Township’s public meetings. She said that every citizen has a right to approach public officials and access public information. She said that all residents have a right to ask the Township Solicitor questions and participate in the local government, making comments and letting the Board of Supervisors know if they would like changes in the government. 

Mr. Larry Grant was sworn in. 

Mr. Grant said that he has been following the Brandywine development plans, and that he noted the original variance application requested a variance for a rise of less than one foot in the 100-year floodplain. He said that the new amendment now allows exactly that, and was clearly passed to benefit Brandywine. 

Mr. Harwood had no comment. 

Mr. Lenihan said that the question of whether the changes made to the ordinance are correct decisions is not for the Zoning Hearing Board to decide. He said that the only question for the Board to consider is whether the ordinance is valid, or whether special legislation or contract zoning has taken place. Mr. Lenihan said that he did not think that there had been any evidence given of a quid pro quo, and that neither Brandywine nor the Township had any obligation to each other as a result of this amendment. He said that while Brandywine might benefit by the change in the ordinance, there has been no evidence that an agreement is in place. 

Mr. Lenihan moved to deny the challenge to the validity of Ordinance No. 2004-0-13 Revision to Floodplain Regulations, amending the Joint Municipal Zoning Ordinance of 1983. Mrs. Bowe seconded and the motion passed 3-0-1, with Mr. Wall abstaining. 

Mr. Lenihan moved to adjourn at 11:30 PM. Mrs. Laughlin seconded and the motion passed 4-0.

Respectfully Submitted

 ____________________________
Mary Donaldson, Recording Secretary