ZONING HEARING BOARD
MINUTES OF THE SPECIAL MEETING OF JANUARY 8, 2007
The Newtown Township Zoning Hearing Board met on Monday, January 8, 2007 in the Newtown Township Building. In attendance and voting were: William Wall, Chairman; Victoria Bowe, Vice-Chairman; David Katz, Secretary; Gail Laughlin, and John Lenihan, members. 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
Continued Application of Leo Holt
Tracy Paul Hunt represents the applicant. The following parties to the application were also in attendance:
Mr. Auchinleck asked if anyone present wished to be granted party status.
Gene Epstein was sworn in. Mr. Epstein said that he lives at 1238 Wrightstown Road, Wrightstown. He asked for party status as a resident of the Jointure, noting that any change in the Jointure’s zoning affects him, as it affects all residents of the Jointure. In response to questions from Mr. Rice, Mr. Epstein said that his home is about ½ mile from the Melsky tract, the nearest of the parcels in the Cemetery Overlay District. He again noted that, as a Jointure resident who has been very active in his attempts at preserving the character of Wrightstown and its open space, he is impacted by the zoning change. It has impact on his taxes, on housing density and on traffic and on the possible dissolution of the Jointure. In response to Mr. Auchinleck’s questions, Mr. Epstein said that he is not differently impacted by the zoning amendment than any other Jointure residents.
Mr. Rice objected to the granting of party status to Mr. Epstein.
Mr. Auchinleck granted party status to Mr. Epstein.
The following residents were sworn in:
Mr. Auchinleck granted all party status.
Mr. Hunt provided the Board with copies of Exhibits K and L that had been missing from the application. He offered as Exhibit A-5 a copy of map exhibit K with relevant parcels outlined in yellow. He asked that the witness chair be moved, noting that most of his witnesses are adverse witnesses, and are able to speak with opposing counsel. The chair was placed farther from opposing counsel’s table.
Michael Solomon was sworn in. In response to Mr. Hunt’s questions, Mr. Solomon said that he has been Newtown Township’s Zoning Officer for eight months. He works in Newtown for twenty-five hours per week. He has also been Middletown Township’s part-time Zoning Officer for two years. Prior to this he had been the zoning officer for Montgomery Township for five years. He said that a notice of Ordinance 2006-18 was posted on the Newtown Township portion of the Melsky tract, tax map parcel 29-007-004, on October 6, 2006 by the Newtown Township Fire Department. Photographs of the posting were taken by the Fire Department. He did not know who posted the property, as the assignment was handled through the Township Manager’s office. He did drive by and see that the signs were unobstructed and visible from Stoopville Road. There were four laminated signs mounted on poles on the perimeter of the property. He did not recall the exact location of each sign. Notices were sent to the owners of properties in the Overlay District by Susan Piette, the Jointure Solicitor. Ms. Piette drafted the letter. He did not know whether the letter was sent by certified mail. He provided copies of the photographs of the posted notices as well as the notification letters to the Board, marked as Exhibit NT -1.
In response to Ms. Stuckley’s questions, Mr. Solomon said that he did see that the posting was sufficiently conspicuous when he drove by the property, but does not recall the exact location of each sign. He is familiar with Ordinance 609B1, but could not comment on its provisions without a copy in front of him.
In response to Mrs. Johnson’s questions, Mr. Solomon repeated that he drove along Stoopville Road and saw that the property was posted and the notices were sufficiently conspicuous, but he does not recall the exact location of each sign. He did ascertain that the property was properly posted.
Leo Fitzpatrick said that he did not receive a copy of the notice. He was provided a copy by the Zoning Hearing Board Solicitor, who noted that the statute only requires that owners of properties in the Overlay District be notified. Mr. Fitzpatrick complained about the visibility of the signs posted on Stoopville Road. Mr. Auchinleck said that there was to be no testimony at this time, only questioning of the witness.
In response to Mr. Auchinleck’s question, Mr. Solomon said that Stoopville Road is the only street frontage of the Newtown Township portion of the Melsky tract; the fire department determines the location of the signs. He does not know who in the Fire Department determined the number of signs, but four were used because of the size of the property. In response to Mr. Katz’s questions, Mr. Solomon explained that the Newtown portion of the Melsky tract fronts Stoopville Road, but that the rear of the property, without street frontage, is in Upper Makefield.
Kathleen Pisauro was sworn in.
Mr. Rice said that Mrs. Pisauro is a member of Upper Makefield’s Planning Commission; he asked for an offer of proof of the relevance of Mrs. Pisauro’s testimony. He objected to her being called as a witness.
Mr. Hunt said that he would be looking for testimony about contract zoning and about a non-governmental organization’s participation in drafting the Ordinance.
Mr. Auchinleck said that the Board could not strike down an ordinance on the grounds that there was participation of non-governmental organizations.
Mr. Hunt objected to the requirement that he provide an offer of proof. He said that he would be asking about the comprehensive plan and the general welfare of the community. The Planning Commission held four special meetings and was asked to give feedback on the Ordinance.
Mr. Rice said that this is the normal zoning process. The Planning Commission is an advisory body. He would submit its minutes. The Planning Commission is not involved in contract zoning.
After further discussion, Mr. Rice withdrew his objection.
In response to Mr. Hunt’s questions, Mrs. Pisauro said that she has been a member of the Upper Makefield Planning Commission for fifteen years, and chairman for five years. Prior to moving to Upper Makefield, she served on the Ewing Township, New Jersey, Planning Commission. She voted to recommend that the Board of Supervisors approve the Cemetery Overlay Zoning Ordinance. She did not recall seeing any traffic studies or environmental impact studies. She did not see the original application for the Ordinance, but believed that Upper Makefield was the applicant. There is a provision in the Ordinance to permit sewer lines in wetlands. The Planning Commission was not provided with any studies of projected populations or needs for higher density housing in the region.
In response to Mr. Hunt’s further questions, Mrs. Pisauro said that the Melsky tract is not contiguous with the proposed cemetery tract. Prior to the enactment of the Ordinance the properties were all zoned CM Conservation Management. She said that there is an increase in the permitted housing on the Melsky tract under this Ordinance. She understood that the Melsky property is owned by Council Rock School District. Council Rock has not filed a conditional use application for the Melsky property. She is not aware if Council Rock endorsed or objected to the limit of 40 acres of the Melsky tract for school use. The sketch plans prepared by Toll Brothers show 40 acres of Melsky for a school. Mrs. Pisauro said that she recalls Mr. Hunt making a presentation about purchasing the Melsky property on behalf of Mr. Holt, but only Toll Brothers had sketch plans. She did not recall if the area for a school was the same size in every version of the sketch plans.
When Mr. Hunt questioned Mrs. Pisauro about agricultural soils, Mr. Rice said that he would stipulate that there are no agricultural soils in the Overlay District.
In response to Mr. Auchinleck’s question, Mrs. Pisauro said that the Planning Commission Solicitor had reviewed a letter from Council Rock giving its permission to the Planning Commission to review sketch plans for the Melsky tract prepared by parties other than Council Rock. The letter did not limit this permission to plans prepared by Toll Brothers, as far as she knew.
In response to Mr. Hunt’s questions, Mrs. Pisauro said that she was aware that Toll Brothers wanted to be able to build about eighty houses on Melsky in exchange for the sale of 200 acres to the VA for a cemetery.
Mrs. Pisauro said that she attended an open meeting is Washington, DC with other community representatives to talk about the cemetery. Senators Arlen Specter and Rick Santorum, Congressmen Mike Fitzpatrick and Jim Gerlach were in attendance, as well as Toll representatives. She said that she thinks that Toll indicated that it would need to have about 180 building lots to complete any deal; that a deal would not be completed until there were preliminary and final plan approvals. She did not recall conversations indicating that the ordinance would have to match the Toll plans. DEP approvals were not discussed at this meeting.
Mr. Hunt offered as Exhibit A-6 two typed pages that he referred to as “Mrs. Pisauro’s notes”. Mrs. Pisauro agreed that these were her notes from the meeting. There is reference to approved funding for Upper Makefield to preserve 27 acres of open space on the White tract. As far as Mrs. Pisauro could recall, she said that representatives of the VA were in Upper Makefield to discuss the cemetery, but they did not visit the Planning Commission. She did not know if they asked that the Melsky tract be included in the Ordinance. There had been a conditional use approval for the Gray tract already in existence; she had been involved in the review of that conditional use.
In response to Mr. Beckert’s questions, Mrs. Pisauro said that the Planning Commission held two meetings to review the Ordinance, during which there was public comment. Reporters from the Bucks County Courier Times and the Newtown Advance were in attendance at the meeting in Washington, DC. The Bucks County Planning Commission and Mike Frank, a planning consultant, each provided a review of the Ordinance. Mr. Frank is a paid consultant for the Upper Makefield Planning Commission.
In response to Mr. Epstein’s questions, Mrs. Pisauro said that she is appointed to the Planning Commission for a term of six years by the Board of Supervisors. All plans are submitted to the Codes Department for review; Planning Commission members have nothing to do with deciding which plans will or will not be reviewed. The Planning Commission did not get the letter giving permission to review sketch plans for the Melsky tract; this letter was sent to the Solicitor, who agreed that the Planning Commission could review the sketch plans. She does not know if the Planning Commission has reviewed other sketch plans submitted by parties that are not the owners of the properties. She does not know Derek Reid, the Council Rock School District Solicitor, nor did she know that he is employed by, or is a partner in the firm of Eastburn and Gray. She does not know whether Toll Brothers is a client of Eastburn and Gray.
In response to Mr. Blackburn’s questions, Mrs. Pisauro said that the Board of Supervisors has turned down recommendations of the Planning Commission in the past. The Planning Commission is an advisory board; it can only make recommendations. It has no recourse if the Board of Supervisors does not act upon its recommendations.
In response to Ms. Stuckley’s questions, Mrs. Pisauro said that the Planning Commission did not deliberate on whether to review plans that were submitted by Toll, who was not the equitable owner of the Melsky tract. There might have been some brief discussion, but Mary Eberle, the Planning Commission Solicitor, said that the sketch plans could be reviewed. There had been some discussion of possibly swapping a portion of William Gunser’s land for a portion of the Melsky property, but Mrs. Pisauro does not know whether Mr. Gunser had written a letter similar to the Council Rock letter, giving his permission for the Planning Commission to review plans involving his property.
When Mrs. Stuckley questioned Mrs. Pisauro about a transfer of residential density (TRD), Mr. Rice said that there is no TRD in the JMZO.
In response to Mr. Auchinleck’s questions, Mrs. Pisauro said that there might have been a small section of Mr. Gunser’s property containing a residential lot in one of the sketch plans submitted by Toll Brothers. The Department of Agriculture said that the land swap would not be feasible. It is her understanding that if the VA does not establish the cemetery, then all zoning goes back to what it was before the Ordinance. Mr. Gunser was an Upper Makefield Township Supervisor at the time of these discussions. He is still a Supervisor.
In response to Mrs. Johnson’s questions, Mrs. Pisauro said that there had been some discussion indicating that the sketch plans and the amendment to the JMZO go hand-in-hand. The only time constraint that Mrs. Pisauro was aware of was the availability of money for the cemetery. She might have heard this at the meeting in Washington. DC. There were two regular Planning Commission meetings and two special meetings at which the amendment and/or the sketch plans were discussed. The Planning Commission occasionally holds special meetings. Commission member Gregor might have said that it could be possible that the amendment would have to be re-advertised and re-voted by all of the Jointure members if it were changed. Ron Schmidt and Jim Barbera also attended the meeting in Washington, DC. Congressman Fitzpatrick invited Mrs. Pisauro by a telephone call.
In response to Mr. Katz’s question, Mrs. Pisauro said that she was not aware of any relationship between Council Rock School District and Toll Brothers except for the letter allowing the sketch plan review.
Conrad A. Baldwin was sworn in. In response to Mr. Hunt’s questions, Mr. Baldwin said that he has been a member of the Upper Makefield Planning Commission for five years; prior to that he was a Supervisor for eighteen years. He also serves on the Agricultural Security Area Advisory Committee, the Emergency Declaration Team, The Emergency Management Team, and The Police Pension Committee. As a member of the Emergency Management team he has seen some flooding of Hough’s Creek near the Delaware River.
Mr. Rice asked for an offer of proof, and Mr. Beckert said that Mr. Baldwin was being asked for expert testimony on flooding when he has not been accepted as an expert witness. After further discussion, Mr. Rice said that he would stipulate that the Township generated the Ordinance without traffic, fiscal and environmental studies, which the Township is not required to provide.
Mr. Baldwin said that it was his understanding that Toll Brothers was the applicant on the sketch plans, and that Upper Makefield Township was the applicant on the zoning amendment.
In response to Ms. Stuckley’s questions, Mr. Baldwin said that he does not recall ever reviewing plans for the Planning Commission that were submitted by someone who was not the equitable owner of the property. He does not recall such a review during his years as supervisor. A cemetery is permitted by conditional use in the CM Conservation Management Zoning District. The housing density is greater in the other properties in the overlay district than would have been permitted in the CM district. The purpose of the Ordinance is to provide greater housing density. Mr. Baldwin said that he attended the Washington, DC meeting on July 19, 2006 at the invitation of Congressman Fitzpatrick. It was his understanding that all in attendance were invited by Congressman Fitzpatrick. Toll indicated that it would need 170 lots with fully approved and unappealable final plans, and that the zoning ordinance would have to match this requirement. There were two versions of the Ordinance. The first was reviewed by the Bucks County Planning Commission. DEP approvals were not required, but would be part of the preliminary and final plans for land development. There was no resolution to the question of funding of 27 acres of open space. It was his understanding that Upper Makefield would not fund the 27 acres. The Planning Commission had voted 7-0 against rezoning for higher density in April or May of 2006. If the VA drops out of the cemetery deal, all zoning reverts back to what it had been prior to the enactment of the Ordinance.
In response to Mr. Auchinleck’s questions, Mr. Baldwin said that if the entire 311 acres of the Dolington tract were developed for B-1 residential use, he would estimate that about 89 to 92 houses could be built. The Bucks County Planning Commission reviewed the first Ordinance, which was not adopted.
In response to Mr. Beckert’s question, Mr. Baldwin said that the majority of the Planning Commission voted to recommend approval of the second Ordinance. He voted no.
In response to Mrs. Johnson’s questions, Mr. Baldwin said that Upper Makefield paid for the filing for the Ordinance; the Ordinance had a map attached that did not show any of Mr. Gunser’s land included in the overlay district. He does not know if there is anything to prevent the VA from buying the land and reselling it at a profit.
In response to Mr. DeFalco’s questions, Mr. Baldwin said that he did not vote to recommend approval of the Ordinance because he wanted the Ordinance to contain certain environmental protections for floodplains and wetlands.
In response to Mr. Betlyon’s question, Mr. Baldwin said that the Melsky tract is included in the Ordinance because Mr. Murphy had indicated that the White tract and the Melsky tract were tied together.
In response to Mr. Murphy’s questions, Mr. Baldwin said that stormwater management and floodplain issues are addressed during land development, but that this case is different because a higher density was being permitted in the Ordinance and he felt it was necessary to build in certain environmental protections. He understood that his position on the Planning Commission is advisory, and that ultimate decision lies with the Board of Supervisors. The density that he had earlier referred to as permitted without the Ordinance is “by-right” density. There had been multiple sketch plans presented in 2006. The idea for a land swap with Gunser land was to preserve better tillable acreage for the Gunser farm. There are no written contracts between Upper Makefield Township and Toll Brothers.
In response to questions from the Zoning Hearing Board, Mr. Baldwin said that the Melsky tract was included in the overlay district because Toll Brothers has been interested in that tract for years. He could not confirm that Upper Makefield signed the application forms; he did not see the original filing.
In response to Mr. Hunt’s questions, Mr. Baldwin said that the 27 acres of open space in the Overlay district might not necessarily have been preserved as open space without the Ordinance; this would depend on the housing type. The Gunser property is subject to a permanent easement held by the County.
Exhibit NT – 1, Exhibits A-5 and A-6 were accepted into the record.
Mr. Hunt indicated that he would be calling Upper Makefield and Newtown Township Supervisors as witnesses at the next meeting.In preparation for upcoming meetings to continue this hearing, Mr. Auchinleck said that he would need legal support for the following grounds for striking the Ordinance:
Mr. Beckert said that Mr. Hunt has repeatedly referred to contract zoning, and so would need to prove a contract. He would also ask for an offer of proof of the relevance of the testimony of Newtown Township and Upper Makefield supervisors; the legislative history of elected officials is irrelevant.
Mrs. Bowe moved to continue the application of Leo Holt to February 1, 2007. Mr. Lenihan seconded and the motion passed unanimously.
Mr. Katz moved to adjourn at 11:00 PM. Mr. Wall seconded and the motion passed unanimously.
Mary Donaldson, Recording Secretary