NEWTOWN TOWNSHIP

ZONING HEARING BOARD

MINUTES OF THE MEETING OF FEBRUARY 1, 2007

The Newtown Township Zoning Hearing Board met on Thursday, February 1, 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

Approval of Minutes of January 4 and January 8, 2007

Mr. Lenihan moved to accept the minutes of January 4 and January 8, 2007. Mrs. Bowe seconded and the motion passed unanimously.

The agenda was reviewed

  • Continued Application of Bakul Patel and Sangita Patel – 430 Durham Road
  • Application of Robert K. Gartner – 30 Copperleaf Drive
  • Application of Newtown Center Associates 2, LP – 2600 South Eagle Road
  • Continued Application of Leo Holt – 220 Stoopville Road

Continued Application of Bakul Patel and Sangita Patel

Attorney John VanLuvanee represented the applicants.

Mr. Wall asked if anyone in attendance wished party status. There was no response.

Township Solicitor Paul Beckert represented Township Code Enforcement Officer Michael Solomon.

Mr. Solomon, Bakul Patel and Sangita Patel were sworn in.

In response to Mr. Beckert’s questions, Mr. Solomon said that he has a Masters Degree in planning from Temple University and from Widener University. He has worked as a code enforcement officer in other municipalities for five years. As Code Enforcement Officer for Newtown Township, he received a letter from Mr. VanLuvanee on October 6, 2006 requesting his opinion on the Patels’ request to build a new home while retaining their home occupation veterinary clinic, to which he responded on October 18, 2006.

Mr. Auchinleck offered as Exhibit ZHB-1, the memorandum prepared for the Zoning Hearing Board by the Codes Department, summarizing this appeal.

In response to Mr. Beckert’s questions, Mr. Solomon said that the property at 430 Durham Road is in the PS- Professional Services Zoning District. In October of 1997, the Patels were granted a variance for a home occupation, a veterinary clinic, at 430 Durham Road. He met with the Patels, who indicated that they would like to build a new home on the property, while retaining the existing dwelling as an accessory structure for use as a veterinary clinic. Based on Section 803.H.3.3 of the Ordinance, the existing dwelling could not be defined as an accessory structure. That section defines an accessory structure as a barn, garage, greenhouse, etc. This building is a dwelling with a kitchen, bathroom, and bedrooms. A variance had been granted in 1997 for a home occupation of veterinary clinic in the same building as the dwelling.

Mr. VanLuvanee stipulated to the finding of facts in the decision of the Zoning Hearing Board in 1997, and read into the record fact number 18:

“18. A variance from Section 803.H.19 and Section 502.A.1.d to permit a principle residence with a home occupation veterinary office subject to the above conditions would be a de minimus variance from the provisions of the ordinance.”

In response to Mr. VanLuvanee’s questions, Mr. Solomon said that an accessory structure could be built for a home occupation, but that the existing house could not be considered an accessory. As Zoning Officer, he would have no objection to building a large addition to the existing structure if it met the other zoning requirements.

Mr. VanLuvanee asked Mr. Solomon to review the plan of the property. He noted that the existing building is in the eastern corner of the building envelope, and the building could only be expanded in one direction.

Mr. VanLuvanee entered as Exhibit A-1 the plan of the property dated July 6, 2005, revised in 2007 to reflect a lot line change.

Mr. VanLuvanee pointed out the location of the area of the building currently used as a dwelling area, and the area used as the veterinary clinic. He noted that the only area that could be expanded would be on the side of the building opposite the current living area. To pass from one section of the dwelling area to the other, it would be necessary to go through the clinic.

Mr. Solomon said that he did not know whether this is the only way to expand the dwelling area.

Mr. VanLuvanee asked if the Code Officer would agree that the current structure would be an accessory if the Patels agreed to renovate the structure to remove all that makes it a dwelling, making the structure non-residential.

Mr. Solomon said that the existing structure is a dwelling unit, built as a dwelling unit. An accessory is defined by the ordinance as a barn, shed, greenhouse or bathhouse. It is a subordinate structure.

Mr. VanLuvanee entered as Exhibit A-2 the Ordinance definition of an accessory, and as Exhibit A-3 the definition of an accessory structure, noting that on page 193, paragraph three, after the list of barn, bathhouse, greenhouse, shed, is the word, “etc”. He asked Mr. Solomon if the word, “etc” referred to structures other than those listed. He asked if the Patels would have the right to convert the house into a three-car garage.

Mr. Solomon said that there would not be a problem with converting the dwelling into a garage, which would not be an accessory for a home occupation.

Mr. VanLuvanee entered as Exhibit A-4 the Ordinance definition of “dwelling unit”. Mr. VanLuvanee asked whether the building would be a dwelling unit if the kitchen were removed, and the other space currently used as a residence were used for storage.

Mr. Solomon said that the building was constructed as a house, and would remain a house.

Mr. Katz asked whether it would be possible to seek a variance to expand the current dwelling area outside of the building envelope, so that the addition would be on the same side as the current dwelling area.

Mr. VanLuvanee said that a variance cannot be assumed.

Mr. Auchinleck advised the Board that encroachment into setbacks is not a right.

In response to Mrs. Bowe’s questions, Mr. Patel said that he has continued to abide by all conditions of the variance granted in 1997.

Mrs. Bowe said that she visited the site and found that there were signs in the windows, which is restricted as a condition of the variance.

In response to Mr. Wall’s question, Mr. Solomon said that he did not think the dwelling unit could be considered an accessory. He said that the existing structure could be razed, with a new dwelling and separate accessory structure for a home occupation erected in its place.

Mr. VanLuvanee entered as Exhibit -5, a copy of a deed dated January 10, 2007 between Autumn Leaf Enterprises and the Patels, Exhibit A-6, another deed dated January 10, 2007 between Autumn Leaf Enterprises and the Patels. He explained that there had been a lot line change and land swap and sale of some property between Autumn Leaf and the Patels. He entered as Exhibit A-7, a plan for lot 1, the Patel lot with the new lot lines, and as Exhibit A-8 the deed dated 1997, when the Patels acquired the property. The structure was on the property at the time of purchase.

Mr. Patel said that the existing structure is 1300 square feet, divided between his family’s residence and the veterinary clinic. He would like to build a larger house for his family of four people, and continue to use the existing structure for the veterinary clinic. If he were to put an addition on the building, it would have to be on the same side as the clinic. If he were permitted to build a new structure he would continue to abide by the conditions of the variance for his home occupation, and he would remove the kitchen. There would no longer be a dwelling unit in the clinic building. He would not seek any other variances.

Mr. Lenihan said that he had been on the Board at the time of the 1997 variance. In response to Mr. Lenihan’s questions, Mr. Patel said that he and his wife and two children, a seventh grader and a sixth grader, live on the property. The 1300 square feet is divided into 800 square feet for the living quarters, 500 square feet for the clinic. His veterinary practice has expanded, but he would live up to the restrictions of the variance and not expand the clinic beyond the permitted 1000 square feet. He would continue to comply with all restrictions, including “no boarding”.

In response to Mrs. Bowe’s questions, Mr. Patel said that he only has one sign on the road, for which he has a permit. There is no clinic sign in the window; the only sign is a directional sign on his home’s front door, directing patients away from the house, toward the clinic. He has no outside storage, only the box, similar to a mailbox, for lab specimens to be picked up. This is not outside storage.

In response to Mr. Auchinleck’s questions, Mr. Patel said that the property is now 1.9715 acres. It has public water and he intends to abandon the septic system and hook up to the sewer being brought to Delancey Court.

In response to Mr. Katz’s question, Mr. Patel said that he could add a second story to the existing dwelling but he is not sure that the existing dwelling could support a second story.

In summary, Mr. VanLuvanee asked the Board to rule on whether the building, currently used as a dwelling unit, can be converted into anything else. No variances are sought; the codes department would control the issuance of permits. The applicant would agree to abandon the dwelling aspect of the building.

Mr. Beckert said that the appeal should be denied. The Ordinance refers to accessory structures as barns, greenhouses, bathhouses; the use of “etc” refers to sheds, detached garages and other storage areas. Although there has been testimony of hardship, this is not a variance application, and so hardship should not be considered. There has been no evidence that this building is an accessory structure. The Ordinance allows, but does not require, cooking facilities in a dwelling, so removal of the kitchen does not change the structure from being a dwelling unit.

Mr. Wall moved to grant the appeal to uphold the petition to overturn the ruling of the Zoning Officer. Mr. Lenihan seconded and the motion passed 3-2, with Mrs. Bowe and Mr. Katz voting nay.

Application of Robert K. Gartner

Mr. Katz read into the record the application of Robert K. Garner, owner, requesting a variance from section 1000(E)(4) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 10 feet by 10 feet storage shed with an 11 feet side yard on left side and 8 feet side yard on right side where a minimum 12 feet side yard is required. The subject property is 30 Copperleaf Drive Newtown in the R-1 medium density residential district being known as tax map parcel #29-29-164.

Robert K. Gartner was sworn in. He noted that his name was misspelled in the advertisement. His name is G-A-R-T-N-E-R.

Mr. Wall asked if anyone present wished party status. Kathleen O’Leary was sworn in.

Ms. O’Leary said that she lives at 40 Copperleaf Drive, next door to the applicant.

Mr. Katz said that the advertisement refers to an 11 foot side yard and an 8 foot side yard, however the Code Department Summary Memo refers to relief of 11 feet on the left side and 8 feet on the right side, and a request for a one foot side yard on the left, and four feet on the right.

Mr. Auchinleck reviewed the application and compared it to the memo and advertisement. He agreed that the advertisement is in error, and the application must be re-advertised.

Mr. Gartner said that the shed has already been installed. He did not know a variance was required. He works evenings, and took the night off to present his application. He would like to resolve it this evening.

Mr. Auchinleck said that Mr. Gartner could give testimony; however a decision could not be made by the Board until the corrected advertisement had appeared in the newspaper and neighbors have been notified. There could be other parties with questions and concerns that Mr. Gartner would want to address. He suggested that the application be continued to the March meeting.

Mr. Lenihan moved to continue the application of Robert K. Gartner to March 1, 2007. Mr. Katz seconded and the motion passed unanimously.

Application of Newtown Center Associates 2 LP

Mr. Katz read into the record the application of Newtown Center Associates 2 LP. Owner, requesting variances from sections 602(B)(1) and 1002(I) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of an addition to the rear of a retail building resulting in a rear yard set back of 79.08 feet where 100 feet is required and three loading berths where four are required located at 2600 “South Eagle Road in the PC Planned Commercial Zoning District also known as tax map parcel number 29-10-85 and 29-10-85-5.

John Van Luvanee represented the applicant.

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

Mr. Beckert said that the Township does not oppose this application; however at the recommendation of the Planning Commission, the Board of Supervisors has asked him to appear at this hearing to ask that the use of the building be limited to Petsmart and one other retail use, a total of two retail uses.

Mr. Van Luvanee said that the Planning Commission had reviewed the plan when representatives of the applicant were not in attendance. The Planning Commission had concerns about the circulation of delivery traffic around the building. He asked that the Board defer its decision until a later meeting. The applicant would be returning to the Planning Commission to discuss its concerns. He hoped that once the plan is reviewed with the applicant, the Planning Commission’s concerns would be addressed, and it would no longer recommend limiting the uses to two.

Mary Ellen Saylor of Pickering Corts and Summerson and Philip Yurkow were sworn in.

Mr. Van Luvanee entered as Exhibit A-1 a plan for the undeveloped portion of Village at Newtown South dated August 18, 2005.

In response to Mr. VanLuvanee’s questions, Mr. Yurkow said that he works for Metro Construction, and has a contract with Newtown Center Associates. He has been in discussion with prospective tenants for lot A-2, but there is no committed tenant. Petsmart is the tenant for lot A-1. The plan for this portion of Village at Newtown South has loading berths, not loading docks. Petsmart has indicated that it will need a loading dock for tractor-trailer deliveries.

Ms. Saylor said that she is an engineer with Pickering Corts and Summerson, 828 Newtown Yardley Road. She developed the plans entered as Exhibit A-1. She has learned that the Newtown Township Planning Commission had some concern that the proposed addition of a loading dock would not leave sufficient room for the remaining loading spaces. In response to Mr. Van Luvanee’s questions, Ms. Saylor explained that Section 1002 of the Ordinance requires that loading berths for retail use measure 15 feet by 50 feet. This particular building requires four loading berths of this size. The plan was submitted originally with four loading berths, each measuring 35 feet by 61 feet.

Mr. Van Luvanee entered as Exhibit A-2 a schematic for deliveries.

Ms. Saylor explained that this plan shows one loading dock for deliveries by WB-67 size tractor-trailers, which are 73.5 feet long. She noted that the cab of the tractor-trailer would not extend into the driving lanes.

Mr. Van Luvanee entered as Exhibit A-3 a computer generated diagram of trucks using the loading berths/dock.

Referring to Exhibit A-3, Ms. Saylor said that the remaining loading berths could accommodate 30-foot long panel trucks. Because the area had originally been designed with 35 foot wide berths, the redesigned area can still have one loading dock and at least three berths for panel trucks. It can accommodate five trucks if necessary.

In response to Mr. Beckert’s question, Mr. Yurkow said that he did not know who the other tenants would be, so he could not say what kind of deliveries would be needed. He agreed that there is no hardship. The applicant is seeking relief from the rear yard setback. It would be possible to design a smaller building.

Mr. VanLuvanee stipulated that a smaller building could be built.

In response to Mr. Katz’s question, Ms. Saylor said that she did not know whether the computer program used to generate the driving diagrams is certified by any professional organizations. It is widely used in the industry. She would provide information on the program to the Board before the next meeting. She said that buffering between the building and the high school is planned. This will be reviewed as part of land development.

Mr. Van Luvanee said that there is no increase in impervious surface; no additional parking area is needed. This plan reconfigures the parking that had already been part of the plan.

In response to Mr. Lenihan’s question, Ms. Saylor said that tractor-trailers would back into the loading dock, and exit the same way, at the entrance near the Farmer’s Market. She would run the program again to provide information showing that tractor-trailers will fit at that entrance.

In response to Mr. Wall’s question, Mr. VanLuvanee said that only the building itself has been approved. Each tenant will need conditional use approval from the Board of Supervisors. Petsmart already had conditional use approval. The remaining retail space is 12,000 square feet; the Board had requested this space be limited to one user. In response to Mr. Auchinleck’s questions, Mr. VanLuvanee said that one entity owns the entire shopping center. There will be no change in the configuration of the entrance.

Mr. Auchinleck said that the record would remain open.

Mr. Katz moved to continue the application of Newtown Center Associates 2, LP to February 13, 2007 at 6:30PM. Mr. Lenihan seconded and the motion passed unanimously.

Continued Application of Leo Holt – 220 Stoopville Road

Tracy Paul Hunt represents the applicant. The following parties to the application were also in attendance:

  • Paul Beckert, representing Newtown Township
  • Ed Murphy, representing Toll Brothers
  • Peter Nelson, representing Upper Makefield Township
  • Jim Betlyon, 9 Woodland Road
  • Carol Stuckley, 852 Washington Crossing Road
  • Jane Johnson, 3 Mt. View Court,
  • Pam Fitzpatrick, 331 Stoopville Road
  • Leo Fitzpatrick, 331 Stoopville Road
  • James DeFalco, 852 Washington Crossing Road

Mr. Hunt called Jim Betlyon. Mr. Betlyon was sworn in. In response to Mr. Hunt’s questions, Mr. Betlyon said that he lives on Woodland Road in Upper Makefield Township. He pointed to his home on the map of Newtown/Upper Makefield Townships, noting that he shares a property line with the Melsky tract. He frequently walks to the border between his property and the Melsky tract, with his children or his dogs. He did not see any posting of the zoning change on this border of the Melsky tract, and he did not receive mailed notification of the change.

In response to Mr. Beckert’s questions, Mr. Betlyon said that he does drive on Stoopville Road. He knows that the Melsky property was posted, but he does not remember whether he noticed the signs when he drove by. His property is entirely in Upper Makefield Township. During the time that this proposed Ordinance and the Veterans Cemetery and the Toll properties were being discussed by Upper Makefield Township’s Board of Supervisors, Mr. Betlyon said that he attended many of the Board meetings. He was aware of the proposed Ordinance and its likely date of adoption.

Mr. Hunt called Philip Calabro. Mr. Calabro was sworn in. In response to Mr. Hunt’s questions, Mr. Calabro said that he is a Newtown Township Supervisor. He was elected in 2005, and took office in January 2006. Prior to his election, he had not served on any other Township committees, boards or commissions, nor had he served in any other municipality. Mr. Calabro did not know who the applicant for the zoning change had been, but guessed it was the Veteran’s Administration. He was aware that for the cemetery to occur, other contingencies, including the rezoning of the Melsky tract, must be included in the Ordinance. He was not sure, but believed he had heard from Mr. Murphy, that there would be no sale to the VA without the rezoning of the Melsky tract. He agreed that Toll Brothers had submitted a sketch plan for the Melsky tract, but he had not seen any traffic impact studies or environmental impact studies. He was not aware of any funding for Stoopville Road improvements coming in, but then-congressman Mike Fitzpatrick had been working on funding for improvements. The VA did not appear before the Supervisors asking for any concessions, only for purchase of the land for the cemetery. He was not aware of any studies that show that Newtown Township needs additional residential housing. He did not go to Washington DC to discuss the cemetery plans. He thought that Supervisor Goren had gone on that trip.

In response to Mr. Beckert’s questions, Mr. Calabro said that he has been vice-chairman of Newtown Township’s Board of Supervisors since January of 2006. He has not seen any written contracts to rezone any portion of the Township for this Cemetery Overlay District, nor is he aware of any oral contract. As vice-chairman, he would be aware of any contracts, if they existed.

In response to questions from Ms. Stuckley, Mr. Calabro said that he first learned about the cemetery in late 2005. He attended the announcement at Washington Crossing Park in January 2006. Prior to the announcement, he had heard, only as rumor, about the cemetery. He did not recall whether the Melsky tract had been part of discussions in January 2006, nor did he recall seeing any of the correspondence between Mr. Murphy and Mr. Rice. He did not see any 2005 correspondence about the cemetery.

Mr. Beckert stipulated that Newtown Township did not see any environmental impact study. This might not be required for the zoning amendment. He stipulated that no traffic impact study was seen by Newtown Township, but this might not be required.

In response to Ms. Stuckley’s questions, Mr. Calabro said that he has seen the Newtown Area Joint Comprehensive Plan through 2010. He knew that JMZO Amendment 2006-18 allowed for some higher density housing than is currently permitted in the CM Conservation Management Zoning District. He did vote in favor of adoption of this ordinance. He did not recall seeing a letter to Senator Arlen Specter about issues related to the cemetery that were not funded.

In response to Ms. Johnson’s questions, Mr. Calabro said that he had seen a press statement dated February 16, 2006, which referred to a “framework of a cemetery agreement”, but that he did not know what that framework was. He did not see a letter from Upper Makefield Supervisor Warden to Senator Specter about any traffic impact.

Mr. Hunt called Thomas Jirele. Mr. Jirele was sworn in. In response to Mr. Hunt’s questions, Mr. Jirele said that this is his ninth year as a Newtown Township Supervisor. He has had no other experience in municipal government. He does not know who the applicant for this zoning change was; he said that he tries not to notice the applicant so that he can judge an application on its merits. He had heard some discussion that the cemetery would be contingent on rezoning. He was aware that Toll Brothers had presented sketch plans. He had not seen any traffic or environmental studies, but they are not required for sketch plans; no formal application for land development had been made. He was aware that Congressman Fitzpatrick was attempting to get funding for improvements to roads in the area; the Board is very supportive of efforts to get money for road improvements. He did vote to adopt the Ordinance. He knew that the Melsky tract had been involved in previous litigation in the mid-1990’s, but he had not attended any meeting to resolve that litigation. He is aware that the Ordinance provides for an elementary school on the Melsky tract as a conditional use. He did not travel to Washington DC, but believed that Mr. Goodnoe and Mrs. Goren did go.

In response to Mr. Beckert’s questions, Mr. Jirele said that he did vote to advertise the Ordinance, but that Mr. Beckert is correct; he was not in attendance at the meeting when the Ordinance was voted on. He has not seen a written contract, nor is he aware of an oral contract between Toll Brothers and Newtown Township.

In response to Ms. Stuckley’s questions, Mr. Jirele said that he was aware of discussions about the cemetery in mid-2005. He did not see any written communication in 2005. He was not aware that any land would have to be rezoned until some time in mid-2006. He did not recall when he learned that the rezoning would involve the selling of the Melsky tract to Toll Brothers, nor does he recall seeing copies of letters between Mr. Murphy and Mr. Rice dated January 4, 2006 and February 1, 2006. He is not aware of any funding gap with this Ordinance; who would pay for infrastructure improvements would not be discussed until land development. Mr. Jirele said that it is his understanding that if there is no cemetery, the other provisions of the Ordinance do not come into effect, but he would refer that question to the Solicitor.

In response to Mr. Katz’s question, Mr. Jirele repeated that he had seen no written communication about the cemetery in 2005.

Mr. Hunt called Michael J. Palmer. Mr. Palmer was sworn in. In response to Mr. Hunt’s questions, Mr. Palmer said that he has been division president at Toll Brothers for one year. Prior to that, he had been division senior vice president for one year. He had been familiar with this Ordinance in both of his positions with Toll Brothers. The Melsky tract had been part of the plan when Toll began talks with the Veterans Administration. He did not know who the applicant for zoning change had been; if Toll is the applicant, John Mangano would have authorized the application.

Mr. Hunt entered as Exhibit A-7 a letter from Mr. Murphy to Mr. Rice dated January 4, 2006. Mr. Hunt noted that Mr. Palmer’s name appears on page three as having been provided a copy. He read into the record the last line of the letter, which refers to amending the zoning ordinance, but does not mention the Melsky tract.

In response to Mr. Hunt’s question, Mr. Palmer said that he does not recall the letter and does not know if the letter refers to the Melsky tract when it talks about contemplated adjustments to the JMZO.

In response to Mr. Auchinleck’s question, Mr. Palmer said that the 200 acres referred to in the letter is the Dolington tract. The other 100 acres is the White tract.

Mr. Palmer agreed with Mr. Hunt that Toll Brothers has made it clear that the cemetery is contingent on rezoning of other properties. He said that he is not familiar with specific conditions, but is aware the Mr. Murphy has appeared before the Upper Makefield Board of Supervisors to discuss the cemetery. He did not recall whether 27 acres of open space was to have been purchased for fee simple.

Mr. Beckert asked if Mr. Hunt is claiming contract zoning, when they would learn what that contract is.

In response to Mr. Hunt’s questions, Mr. Palmer said that Toll Brothers had intended to put lots on the 27 acres now designated as open space. There is no pending agreement of sale for the Melsky tract. Toll intends to purchase the entire Melsky tract, but to set aside 40 acres on the western portion of the tract for an elementary school. Half of the school property would be in Newtown, half in Upper Makefield. The intention is to purchase the entire 134 acres, then set aside 40 acres for the school district. There is no agreement yet, so Mr. Palmer said that he did not know how the school would be given title to its portion of the property.

Mr. Auchinleck said that he would decide on questions relating to the value of land individually. He had not allowed certain questions. Mr. Murphy said that he would not allow his client to answer questions about the value of the land.

Mr. Hunt entered as Exhibit A-8 a letter from Mr. Murphy to Mr. Beckert dated October 11, 2006. Mr. Hunt referred to the penultimate paragraph on page two, and noted that the school district had insisted that the price for the Melsky tract would be $7,000,000, the same price as the VA would pay for its 200 acres. He began to discuss the price for individual lots.

Mr. Auchinleck ruled that the price of the lots is not an issue in this hearing.

In response to Mr. Hunt’s questions, Mr. Palmer said that he went on the visit to Washington, DC with Mr. Mangano in December 2005 to discuss the cemetery. He went on a Toll Brothers jet along with Mr. Mangano, Mr. Murphy, Susan Vicedomini of Council Rock School Board, Upper Makefield Supervisors Dan Rattigan and Dan Warden, and Newtown Township Supervisor Goodnoe. The Upper Makefield Solicitor was not on the trip. The purpose of the one day trip was to demonstrate to Secretary Nichols the willingness of the Jointure and Toll Brothers to bring the cemetery to Upper Makefield. A few weeks later, Upper Makefield was chosen as the site for the cemetery. There was competition with Congressman Gerlach’s district for the cemetery. His district had also been invited to make a presentation. Mr. Palmer did not know whether a developer had been involved in Congressman Gerlach’s presentation.

Exhibits A-7 and A-8 were accepted.

Mr. Murphy referred to his letter dated January 4, 2006. On the last page, there is reference to an agreement of sale with the VA. He asked Mr. Palmer if Toll Brothers has entered an agreement of sale with the VA. Mr. Palmer said no.

In response to Ms. Stuckley’s questions, Mr. Palmer said that he became aware of the cemetery in the summer of 2005, and was aware of correspondence between Mr. Mangano and Secretary Nichols. He attended a meeting with the VA on July 12, 2005. He was not sure about the accuracy of a memo summarizing the meeting. He prepared the press statement about the cemetery that was released to the Philadelphia Inquirer and the Bucks County Courier Times on February 16, 2006.

Mr. Murphy stipulated that letters in January and February 2006 accurately state Toll Brothers’ position at that time.

Ms. Stuckley entered as Exhibit S-1 a letter dated February 1, 2006 from Mr. Murphy to Mr. Rice. She said that this is a second letter; the first has been entered as Exhibit A-7. She said that Exhibit A-7 refers to 100 units, while S-1 refers to 235 units. She asked why there were different numbers referenced in each letter.

Mr. Palmer said that the 100 units refers only to the White tract, the 235 units refers to White and Melsky. Mr. Palmer said that he did not remember whether he attended a Board of Supervisors meeting on August 16, 2006 with Mr. Mangano and Mr. Murphy. He has attended many of these meetings, but does not remember this one specifically.

Mr. Wall asked that the proceedings move along more quickly.

In response to Ms. Stuckley’s questions, Mr. Palmer said that he attended the meeting in Washington DC with Ms. Pisauro, but has not seen Ms. Pisauro’s minutes, so cannot say whether they are accurate as to number of units, square footage of lots, or DEP approvals.

In response to Ms. Johnson’s questions, Mr. Palmer said that he had attended the meeting at which a “framework for an agreement” had been discussed, but no procedure for rezoning had been discussed; no concept was discussed. There was no verbal agreement. Upper Makefield Supervisors Warden, Rattigan and West were in attendance at the meeting. There were several meetings in 2005.

Mr. Katz asked if, during conversations that led to the “framework” all parties believed that in return for the sale of land to the VA at a price of $7,000,000, Toll would get something in return.

Mr. Palmer said yes.

Mr. Beckert asked whether Mr. Hunt had provided any brief on the basis for this application other than contract and spot zoning and some procedural irregularities.

Mr. Auchinleck said that he expects this before the next meeting.

Mr. Lenihan moved to continue the application of Leo Holt to February 13, 2007 at 6:30PM. Mrs. Bowe seconded and the motion passed unanimously.

Mr. Lenihan moved to adjourn at 11:30PM. Mrs. Bowe seconded and the motion passed unanimously.

 

Respectfully Submitted:

 

Mary Donaldson, Recording Secretary