ZONING HEARING BOARD
MINUTES OF THE MEETING OF JANUARY 4, 2007
The Newtown Township Zoning Hearing Board met on Thursday, January 4, 2007 in the Newtown Township Building. In attendance and voting were: William Wall, Gail Laughlin, Victoria Bowe, David Katz and John Lenihan. Also in attendance were: James J. Auchinleck, Jr., Esq., Solicitor; Michael Solomon, Zoning Officer and Donna D’Arginio, Stenographer.
Call to Order
Mr. Wall called the meeting to Order at 7:30 PM.
The Pledge of Allegiance
Approval of Minutes of December 7, 2006
Ms. Laughlin moved to approve the minutes of December 7, 2006. Mr. Katz seconded and the motion passed unanimously.
Reorganization of Board
Mrs. Laughlin moved to nominate Mr. Wall as Chairman. Mr. Katz seconded and the motion passed 4-1, with Mr. Lenihan voting nay.
Mr. Wall moved to nominate Mrs. Bowe as Vice Chairman. Mr. Lenihan seconded and the motion passed unanimously.
Mr. Wall moved to nominate Mr. Katz as Secretary. Mrs. Laughlin seconded and the motion passed unanimously.
Mr. Lenihan moved to appoint James J. Auchinleck, Jr. as solicitor. Mr. Katz seconded and the motion passed unanimously.
Mrs. Bowe moved to appoint Mary Donaldson as recording secretary. Mrs. Laughlin seconded and the motion passed unanimously.
The agenda was reviewed
Application of Bakul Patel and Sangita Patel
Mr. Katz read into the record the application of Bakul Patel and Sangita Patel, Bakul Patel and Sangita Patel owners appealing from the action of the zoning officer dated October 18, 2006 concerning use of a second structure of the property. The subject property is 430 Durham Road, Newtown, in the PS-2 Professional Services District Zoning District, being further known as Tax Map Parcel #29-3-36.
Mr. Auchinleck informed the Board that he had correspondence from John VanLuvanee, attorney for the applicants, requesting that the application be continued to February, as Mr. VanLuvanee is out of town this evening.
Mrs. Laughlin moved to continue the application of Bakul Patel and Sangita Patel until February 1, 2007. Mrs. Bowe seconded and the motion passed unanimously.
Continued Application of Steven DiMeglio
Continued Application of Chetan and Reshma Patel
Paul Beckert, Newtown Township Solicitor, stated that after consultation with Mr. Solomon, the Township is withdrawing its enforcement notice.
Bernadette Kearney, attorney for Mr. DiMeglio and Mr. and Mrs. Patel, asked that the filing fee for the appeal be refunded.
Mr. Auchinleck said that only the Board of Supervisors could authorize a refund of the filing fee. He asked Mr. Beckert if the intervener in this appeal, represented by Mr. Cordis, had been informed of the withdrawal, and was he in agreement.
Mr. Beckert said that the intervener has been informed; by withdrawal of the enforcement notice, the intervener’s point is moot.
Application of Frank Mastromarco
Mr. Katz read into the record the application of Frank Mastromarco, Frank Mastromarco owner, requesting a variance from Section 404(B) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a single-family residence resulting in an impervious surface ratio of 18.4% where the maximum permitted is 12%. The subject property is 135 Swamp Road, Newtown, in the R1 Medium Density Residential Zoning District, being further known as Tax Map Parcel #29-3-6.
Attorney Don Marshall represented the applicant.
Mr. Frank Mastromarco was sworn in.
Mr. Wall asked if anyone present wished to be a party to this application. There was no response.Mr. Marshall said that the applicant had appeared before the Zoning Hearing Board in 2005, requesting a variance to subdivide a lot in the R-1 district into three parcels. He entered the following exhibits:
Mr. Marshall said that the subdivision created three lots of 36,060 square feet each. Lot number two has a 125 foot frontage onto Swamp Road and is 288 feet in depth. There is an existing in-ground swimming pool on lot two. The plans call for a new home to be built on lot two with a footprint of 2,198 square feet. Initially, the plan had been to remove the swimming pool, but Mr. Mastromarco’s family would like the pool to remain. Lot one will be Mr. Mastromarco’s home, lot two will have the home of one daughter, and lot three will be for his second daughter.
If the pool remains, there will be an impervious surface ratio of 18.4%. Lot two has a right of way of 120 feet, instead of the 60 feet typical of the R-1 zoning district. The 30 additional feet of right-of-way from the center line amounts to 3750 square feet of dedicated land. The swimming pool is 1080 square feet. If the pool and the right of way were removed from the calculation of impervious surface, the ratio would be 12.11%. Mr. Marshall noted that to the north of these three lots is the Walnut Ridge development, with an impervious surface ratio of 25%, and to the rear is Tyler State Park, which will not be developed. These three homes will be in keeping with the surrounding housing.
Mr. Mastromarco agreed with Mr. Marshall’s presentation.
Mr. Solomon had no comment.
Mr. Lenihan moved to grant a variance from Section 404(B) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a single-family residence resulting in an impervious surface ratio of 18.4% where the maximum permitted is 12%. Mr. Katz seconded and the motion passed unanimously .
Application of Dr. Mark and Laura Brown
Mr. Katz read into the record the application of Dr. Mark and Laura Brown, Dr. Mark and Laura Brown owners, requesting a variance from Section 803(H-8)(1)(b) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of an 855 sq ft pool with 898 sq ft of decking and 130 sq ft of coping resulting in a rear yard of 7.05 feet where 10 feet is required and an impervious surface ratio of 48.6% where 40% is allowed. The subject property is 7 Ainsley Drive, Newtown, in the CM Conservation Management Zoning District, being further known as Tax Map Parcel #29-20-51-lot 22.
There was not a representative of the applicants in attendance. Mr. Auchinleck said that he would contact the applicants for an explanation of their absence.
Mr. Lenihan moved to continue the application of Mark and Laura Brown until February 1, 2007. Mr. Wall seconded and the motion passed unanimously.
Application of Leo A. Holt
Mr. Katz read into the record the application of Leo A. Holt, aggrieved party, Applicant challenges the validity of Ordinance No. 2006-18 an amendment of the Joint Municipal Zoning Ordinance of 1983 creating a Federal Cemetery Overlay District. The subject property consists of various large tracts of land in Newtown and Upper Makefield Townships, now in the CM Conservation Management Zoning District, being further known as Tax Map Parcel ## 29-7-4, 47-8-16, 48-8-16-3, 47-8-17, 47-8-34, 47-8-56, 47-8-56-3, 47-8-59, 47-8-64, 47-17-1, 47-17-2, 47-17-3, 47-18-8.
Mr. Wall asked if anyone in attendance wished party status.
The following asked for party status in this appeal:
In response to questions from Mr. Auchinleck, Ms. Johnson said that the Upper Makefield Conservancy does not own any property.
Jane Johnson was sworn in. In response to questions from Mr. Beckert, Mrs. Johnson said that she is not sure of the distance from her property to any of the lots involved in the zoning change. Her property does not share a property line with any of the lots, but there is one house between hers and the nearest affected lot.
Mr. Rice objected to the granting of party status to Gene Epstein, as he lives in Wrightstown Township, and his property does not adjoin any of the affected lots. He asked the location of the homes of a number of the others seeking party status.
Pam Fitzpatrick was sworn in. Mrs. Fitzpatrick said that her home is in Newtown Township, opposite the Melsky property.
Frances Bielsky was sworn in. Mrs. Bielsky said that her home is in Dolington Village on the opposite side of the road from the proposed cemetery.
John Melching, Jr. was sworn in. He said that he owns and is building a home on a lot adjacent to the Melsky property. He shares a property line with the Melsky property.
Nick Siebel was sworn in. He said that his property is in Newtown Township and is across the street from the Melsky property.
Mr. Auchinleck granted party status to all except Gene Epstein and Judy Lehrhaupt, who were not in attendance, and could not be questioned by the other parties. He granted party status to those not in attendance whose family members, residing at the same address, were available to be questioned. He granted party status to the two organizations whose representatives were in attendance. Mr. Epstein and Ms. Lehrhaupt have not been denied party status. They would be considered for party status if they attend a later meeting and present themselves to be questioned by the other parties.
Mr. DeFalco and Ms. Johnson each claimed that Mr. Melching is not president of Save Historic Dolington. The organization was granted party status.
Tracy Paul Hunt represented the applicant, Leo Holt. He said that he has filed a memo on a stay of the issuance of a preliminary opinion given by the zoning officers of Newtown and Upper Makefield Townships. Citing Section 915.1 of the Pennsylvania Municipalities Planning Code, he said that his validity challenge should have automatically stopped the issuance of preliminary opinions of the zoning officers. In response to Mr. Auchinleck’s question, he said that he would like the Zoning Hearing Board to rule that the opinions were invalid and should be rescinded or revoked. He also has an outstanding request for documents.
Mr. Auchinleck said that the Zoning Hearing Board can only rule on applications before it. The current application challenges the validity of the zoning ordinance. It does not address the question of a stay of the preliminary opinions.
Mr. Hunt asked that the Board acknowledge that the issuance of preliminary opinions was improper. He asked that testimony be allowed, or he would file an appeal in Upper Makefield and in Newtown Township challenging the validity of the preliminary opinions.
After some further discussion of the issue of the stay of the preliminary opinions of the zoning officers, Mr. Hunt asked to make a motion amending his application to include the stay of the two preliminary opinions of the Upper Makefield and Newtown Township Zoning Officers.
Mr. Beckert said that the issue of a stay is not before this Board, and an appeal must be filed. Citing the case of “Joe’s Enterprises”, he said that for a stay to take effect there must be land development, which is not the case here. He also said that if an appeal is taken, there is a presumption that the ordinance is valid.
Mr. Rice agreed with Mr. Beckert, noting that there has been no land development, only sketch plans. He said that absent an appeal, the Zoning Hearing Board does not have the authority to rule on a stay.
Mr. Murphy agreed with the position taken by Mr. Beckert and Mr. Rice.
After some further discussion, Mr. Auchinleck asked that Upper Makefield and Newtown Township agree not to proceed with land development applications pending the outcome of this Zoning Hearing Board application. He said that in his opinion, a stay would apply in this case, but that this Board does not have authority to rule on it at this hearing.
Mr. Wall moved to decline to rule on the propriety of the preliminary opinion of the Newtown Township Zoning Officer, or to take any action on the preliminary opinion at this time. Mr. Lenihan seconded and the motion passed unanimously.
Regarding the request for documents, Mr. Beckert said that he is prepared to provide certified copies of relevant minutes of the Board of Supervisors and the Planning Commission. The request asks for correspondence over a two year period. Newtown Township will provide the use of an office for Mr. Hunt to review its public records. The Township will copy those documents Mr. Hunt requests at his expense. The Township is unwilling to provide copies of documents that might not be relevant to all of the parties to this application. This is an attempt at discovery, a “fishing expedition”.
Mr. Rice said that Upper Makefield has been asked for similar production of documents, which is discovery, which is not permitted in zoning. Upper Makefield has also been asked to produce audio and video tapes for the past 24 months. Upper Makefield is also willing to allow Mr. Hunt access to relevant public documents in their offices. Mr. Rice said that this investigation should have been done prior to filing of the challenge. An offer to permit Mr. Hunt to look through Township files was made two weeks ago.
Mr. Auchinleck said that he did not want any documents produced during the hearing that would require witnesses to be called back. He said that after Mr. Hunt has reviewed records at the Townships’ offices, he would be willing to subpoena specific documents, on a case by case basis. He said that documents could be reviewed in Township offices, but not removed. In response to Mr. Hunt’s request, Mr. Auchinleck said that the Townships’ personnel would make copies of requested documents at Mr. Hunt’s expense, but that Mr. Hunt could not bring his own copier to the Townships’ offices.
In response to a question from Mr. Rice, Mr. Hunt said that Mr. Holt is the owner in fee simple of 220 Stoopville Road.
Mr. Beckert said that Newtown Township would not accept preliminary plans filed under this Ordinance while this challenge is pending before the Zoning Hearing Board.
In response to questions about land development from Ms. Stuckley, Mr. Auchinleck said that while this action is open, the Townships would not accept plans for land development filed under this Ordinance. Sketch plans do not start and clock.
Mr. Benson asked that records be made available to him and to all parties to the appeal.
Mr. Wall said that all would have the same access, but copies would be made at the parties’ own expense.
John Mangano was sworn in. In response to questions from Mr. Hunt, Mr. Mangano said that he has been group president for Toll Brothers for three years. He has been an employee of Toll Brothers for twenty years; his previous position had been division president. He is familiar with this Ordinance, and with the properties encompassed in it. Toll Brothers has been equitable owner of the Dolington tract since 1998. He has personally been involved with the property for about three years, but was not involved with the initial acquisition.
At Mr. Hunt’s request, Mr. Murphy provided a copy of the Agreement of Sale and the first amendment and second amendment to that agreement. The three documents combined were identified as Exhibit A-1.
Mr. Hunt noted that many portions of Exhibit A-1 had been redacted, and asked that the information be provided. Over Mr. Murphy’s objection that this information is financial information, Mr. Hunt said that it was needed in order to show contract zoning and to prove that the sale of the property is a windfall for Toll Brothers.
Mr. Auchinleck said that all of the agreements are between the property owners and Toll Brothers and are not evidence of contract zoning. After Mr. Hunt continued to press for the information in order to make his point that without the zoning change the sale of the property to the Veterans Administration (VA) would be a bad business decision, Mr. Auchinleck again sustained Mr. Murphy’s objection.
In response to Mr. Hunt’s questions, Mr. Mangano said that the VA is offering $7,000,000 for the property. He was not sure of the value but estimated that the VA’s offer is about 1/3 of its actual value.
In response to Mr. Auchinleck’s questions, Mr. Mangano and Mr. Murphy were unable to answer whether the redacted portion of paragraph 3 of Exhibit A-1 was an amount of money. Mr. Murphy said that the document was redacted by in-house counsel for Toll Brothers in preparation for a prior conditional use proceeding.
In response to Mr. Hunt’s questions, Mr. Mangano said that he is not really certain of the value of the property, but it is worth more than the VA could pay. The 200 acres of cemetery property is in the Conservation Management Zoning District, where cluster development is permitted by conditional use, which would have allowed one house per net buildable acre. There had been some litigation between Toll and Upper Makefield about this property, but Mr. Mangano said that he had no direct involvement; his predecessor, Rich McCormack was involved with this. Toll had not been permitted to build 800 to 1000 homes on the tract. He is familiar with the Melsky tract of 134 acres not contiguous with the cemetery parcel. Many years ago Toll had an agreement of sale for this parcel. Prior to the adoption of the Ordinance, Toll Brothers drafted sketch plans for this parcel as part of round table discussions held with residents. These sketches showed plans for 90 homes, although some earlier versions showed more than 90 homes. He did not remember whether there was a specific number of homes as a contingency to the agreement to purchase the property from Council Rock School District.
Mr. Hunt offered as Exhibit A-2 a letter from Toll Brothers to the VA dated March 18, 2005.
Mr. Murphy objected, asking for an offer of proof of the letter’s relevance. His objection was overruled.
Referring to the letter, Mr. Mangano said that this was Toll’s first contact with the VA. He was encouraged to contact the VA by Congressman Fitzpatrick, who had been referred by Mr. Murphy. Prior to this contact there had been some discussion, but the price of the land was too high. This discussion might have been with Mr. McCormick. There was a meeting at Toll’s offices with the VA later in the year to provided information about the site.
Mr. Hunt asked whether Upper Makefield’s Township Manager, Rich Gestrich, or Mr. Rice had been involved in any of the conversations.
Mr. Murphy objected. Mr. Rice said that this is all part of the public record, and that it could be stipulated to, although he questioned the relevance.
Mr. Wall said that the proceedings must move along. If Mr. Hunt is not prepared, the proceedings would stop for the evening.
Mr. Auchinleck said that this is not a deposition. Mr. Hunt’s questions need to be focused on issues brought up in the application.
Mr. Hunt said that he is entitled to make a record. This has been going on from March 2005 through October of 2006.
In response to Mr. Hunt’s questions, Mr. Mangano said that there had been meetings with Township Supervisors, but there were no promises or guarantees that things would go in Toll Brothers favor. All meetings were held with doors open; there was a great deal of community involvement. There is no agreement with the VA, but if Toll were not happy with the Ordinance there would be no deal. The VA had also been considering other locations.
Mr. Hunt offered as Exhibit A-3, a letter dated July 12, 2005 from Toll Brothers.
Referring to the letter, Mr. Mangano said that he did not know whether the redacted portion referred to financial matters. There is reference in the letter to “cooperation”; Mr. Mangano said that Toll Brothers had 300 acres, which would have been 300 houses. If the VA bought 200 acres at below market value, Toll would want the density transferred to make up for the loss. The letter makes no reference to land that Toll is not the equitable owner of; there is no reference to Melsky. The cooperation referred to makes clear to the VA that Toll could not sell the 200 acres for $7,000,000 without some way for Toll to realize full economic value. There was no agreement in October of 2005. There was an announcement in January of 2006 that the VA would build a cemetery in Upper Makefield. In response to Mr. Hunt’s questions, Mr. Mangano said that he did not travel to Washington DC in a Toll Brothers private jet to meet with the VA. He thought that Mike Palmer of Toll Brothers and Mr. Murphy might have been at the meeting. The VA was considering a number of sites, and the meeting in Washington was to give a presentation on the Upper Makefield site.
Mr. Beckert had no questions for this witness.
In response to Mr. Rice’s questions, Mr. Mangano said that the letters of March and July of 2005 were part of discussion with the VA about the possibility of locating a Veterans Cemetery in Bucks County. There had been meetings with officials in Upper Makefield and Newtown Township, but this was general discussion; no zoning plans were discussed. There was some discussion of transference of some of the housing density from the Dolington tract. The purpose of the December 8 meeting was to convince the VA that Bucks County would be the best location for the cemetery. There was no written agreement stating the number of units with Upper Makefield, Newtown or the VA.
In response to Mr. Auchinleck’s question, Mr. Mangano said that there was an understanding among the VA, Upper Makefield and Newtown Township, that upon adoption of the Ordinance Toll would sell the property to the VA. There was no written agreement.
Mr. Auchinleck accepted Exhibits A-2 and A-3 into the record.
In response to questions from Ms. Stuckley, Mr. Mangano said that the only agreements of sale that Toll has are those on the Dolington tract. A 27 acre portion of the 75 acre White tract, tax map parcel 47-8-56, has been appraised as open space, and he has heard second hand, through a newspaper article, the appraised value.
Mr. Murphy’s objection to Ms. Stuckley’s question as to the appraised value of the property was sustained.
In response to Ms. Stuckley’s question as to fair market value of a parcel across the street from the Dolington tract, Mr. Mangano said that the parcel was appraised as farmland, and the appraisal is not accurate for development land. He did not know whether the Joint Municipal Zoning Ordinance allowed a cemetery as a permitted use. There are no agreements between Toll Brothers and the Townships that refer to a number of units to be permitted, and there are no draft agreements.
In response to Mr. Wall’s question, Mr. Mangano identified those noted as copied on the letter marked as Exhibit A-3 as Michael Vesey, President of Orleans Homebuilders, a joint venture partner, and Bruce Roth, a Toll Brothers employee.
In response to questions from Mrs. Johnson, Mr. Mangano said that there are no other agreements of sale for the Dolington property; there is no agreement of sale with Orleans Homebuilders.
Mr. Auchinleck said that the agreement of sale is with Toll Brothers or its nominees. Orleans would not have to be named in the agreement.
Mr. Katz said that his copy of the application refers to Exhibits J and K, which are not attached. He asked that the Board be supplied with copies of these exhibits at the next hearing date.
David Kuhns was sworn in.
In response to questions from Mr. Hunt, Mr. Kuhns said that he had been the Code Enforcement Officer for Upper Makefield Township for fifteen years. Toll Brothers has submitted sketch plans for 90 homes on the Melsky tract, but he was not aware of the exact timing, or whether it was before or after the enactment of the Ordinance.
Mr. Rice stipulated that Toll submitted multiple sketch plans prior to the enactment of the Ordinance.
Mr. Hunt offered as Exhibit A-4 a letter from Mr. Kuhns to Toll Brothers dated May 9, 2006. The letter references a sketch plan and he noted that Toll Brothers must show equitable ownership at the May 24, 2006 Planning Commission meeting.
Mr. Kuhns said that this was not required because the Municipal Planning Code no longer requires such proof for sketch plans, only for preliminary and final plans for land development.
Mr. Beckert objected to Mr. Hunt’s question as to whether Mr. Kuhns discussed this requirement.
Mr. Auchinleck questioned what this has to do with the challenge to the validity of the Ordinance.
Mr. Hunt said that he intended to show that Toll had agreed that the sketch plan “will comply” with certain requirements that were used in the drafting of the Ordinance.
Mr. Rice said that the question of equitable ownership has already been litigated and dismissed. The issue has been appealed and a decision on the appeal has not yet been rendered.
In response to Mr. Auchinleck’s question, Mr. Kuhns said that he did not recall why he changed his opinion as to whether a proof of equitable ownership was required for a sketch plan.
Mr. Rice offered as Exhibit UM -1, a group of documents as proof of notice of the Ordinance, including public notice to tax map parcels of adjoining properties, 37 photographs of the notice posted on the properties, visible from the road, a newspaper notice, a letter from Joint Zoning Council Solicitor Susan Piette transmitting the newspaper notice and a list of property owners within 500 feet of parcels subject to the zoning change to be notified.
In response to Mr. Rice’s questions, Mr. Kuhns said that all affected parcels were posted as required. He supplied names of property owners to be notified to the Jointure Solicitor. Each parcel was posted at two locations, with posting then photographed.
In response to Mr. Auchinleck’s questions, Mr. Kuhns said that his staff determines the location of each posting. All signs are visible from the road. There were 12 parcels, and 28 photographs that are labeled.
In response to Mr. Hunt’s questions, Mr. Kuhns said that the photograph marked CRSD is the Melsky tract. The Melsky tract has only one road frontage; no signs are posted along the other property lines, only along the road.
In response to Mr. Benson’s questions, Mr. Kuhn said that staff member Susan Purcell placed the signs. Each notice is in a plastic sleeve to protect it from the weather. The signs are placed at different distances from property lines depending on trees and shrubs. No brush is removed to accommodate signs.
In response to Ms. Stuckley’s questions, Mr. Kuhn said that there are 12 tax map parcels in the Dolington group in Upper Makefield, 9 Dolington, 2 Melsky and Gray. Each of the nine Dolington parcels was separately posted. Certified notices are sent to adjoining property owners by the Jointure Solicitor; he did not know whether return receipt was requested, or if so, received. It is not unusual for sketch plans to be submitted by parties who are not equitable owners of the properties. It happens regularly.
The Board discussed additional meetings for this application, and agreed to continue the meeting to Monday, January 8 at 7:30, with additional meetings if needed on February 1, February 13, March 1, March 5 and March 8. It would be removed from the special meeting agenda for January 22. All other special meetings for this application would begin at 6:30 PM. Regular Zoning Hearing Board meetings on February 1 and March 1 would begin at 7:30 PM.
Mrs. Bowe moved to continue the application of Leo Holt to Monday, January 8, 2007 at 7:30 PM. Mr. Lenihan seconded and the motion passed unanimously.
Mrs. Bowe moved to adjourn at 11:20 PM. Mr. Lenihan seconded and the motion passed unanimously.
Mary Donaldson, Recording Secretary