The Newtown Township Zoning Hearing Board met on Tuesday, February 13, 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 Newtown Center Associates 2, LP

Attorney John VanLuvanee explained that he had met with the Planning Commission and had attended a work session of the Board of Supervisors to review the plans he had submitted to the Zoning Hearing Board on February 4, 2007. After seeing the computer plan for egress of tractor-trailers, the Planning Commission had voted to recommend that the Board of Supervisors not oppose this application for variances, subject to the condition that the retail area be limited to one tenant in addition to Petsmart, if that tenant were to have tractor-trailer deliveries; if deliveries are by box truck, then the retail area should be limited to Petsmart and up to three additional tenants. The Board of Supervisors did not agree with the Planning Commission’s recommendation and voted to send the Solicitor to oppose the application unless the retail space is limited to Petsmart and one additional tenant.

Mr. Wall thanked Ms. Saylor for providing the Zoning Hearing Board with the additional information explaining the computer program used. He asked if that program had been run to show whether a tractor-trailer could safely make a left turn to exit the rear of Petsmart at the Farmer’s Market exit to the shopping center. He said he had concerns about tractor-trailers continuing behind the shopping center stores to exit near the Wendy’s exit.

Mr. Katz expressed some concern about tractor-trailers exiting near the Farmer’s Market with cars parked along the drive.

Mr. VanLuvanee entered as Exhibit A-4, the information about the computer program that had been mailed to the members, and as Exhibit A-5 the plan showing a tractor-trailer exiting the shopping center.

Referring to Exhibit A-5, Ms. Saylor showed that a tractor-trailer could safely exit to the left of the building. The cab of the trailer would briefly enter the other lane, but the body would not. This program shows the tractor-trailer making the turn in one move with cars parked in the marked spaces. She said that the program had not been run with cars illegally parked along the road.

Mrs. Bowe said that she had some concern about the hours of deliveries because of the parents and small children crossing from the daycare center. She asked if there had been any discussion about restricting delivery times.

Mr. VanLuvanee said that the applicant had not been asked by the Supervisors to restrict the hours of delivery to evenings, only.

Mr. Beckert noted that Petsmart had indicated at its conditional use hearing that it expected two deliveries per week: one weekday, one weekend. The trailer would be left in the loading dock for a day or two as additional storage until it could be emptied, at which time it would be picked up, and another trailer would be dropped off. This arrangement has been given conditional use approval.

The members discussed whether to limit the number of tenants. They continued to have concerns about trucks driving behind the existing shopping center, and about cars and pedestrians walking in the loading area. Mr. Wall said that he was reluctant to restrict the number of tenants as part of the variance, but suggested requiring delivery trucks to exit near the Farmer’s Market and prohibiting additional parking at the rear of the store.

Mr. Wall moved to grant 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, subject to the conditions that all tractor-trailers make an immediate left turn from behind the building when exiting, and that there be no parking permitted behind the building itself except for delivery vehicles in the loading berths. Mrs. Laughlin seconded and the motion passed unanimously.

Continued Application of Leo Holt

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
  • John Rice, 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
  • James DeFalco, 852 Washington Crossing Road
  • John Melching, Jr., owner of property at 8 Woodland Road

Mr. Auchinleck indicated that Mr. Hunt had not provided any memo of law to support his challenge for reasons other than contract zoning, spot zoning and procedural matters.

Both Mr. Rice and Mr. Beckert questioned whether the other reasons cited in the challenge were to be deemed abandoned.

Mr. Hunt said he was unwilling to provide case law to his opponents. He was willing to provide this to the Board only. He indicated that these other reasons had not been abandoned.

Mr. Auchinleck said that Mr. Hunt had attempted to fax him something marked “confidential” but he had refused acceptance.

Mr. Rice questioned whether Walt Wydro would be called as a witness. He asked why Mr. Wydro would be called when two other Planning Commission members had already been examined. He complained that the witness list keeps changing and he was concerned that Mr. Hunt is attempting to drag out the proceedings. He indicated that Supervisor Gunser has had an accident and would not be available as a witness.

Mr. Auchinleck said that he would rule later on whether Mr. Wydro could be called.

Mr. Wall warned that there is to be no ex-parte communication and that in the future copies of all exhibits are to be provided for all parties to the application.

John Melching, Jr. was sworn in. In response to Mr. Hunt’s questions, Mr. Melching said that he owns property at 8 Woodland Road, adjacent to the Melsky tract. He indicated his property on the map, Exhibit A-5. He does not live on this 10-acre parcel, but is building a home that he expects to be completed by mid-April. He purchased the property from Mr. Betlyon, who is also a party to this application. He visits the lot about three times each week, and walks along the property line. He never saw any notices about the zoning change posted along his property line.

In response to Mr. Beckert’s questions, Mr. Melching said that because Stoopville Road had been closed for a while, he had not traveled there, and did not see the postings. He was “vaguely aware” of the zoning changes.

In response to Mr. Rice’s questions, Mr. Melching said that he accesses his property from Wrightstown Road. His property is at the end of a cul-de-sac. He has no need to travel on Stoopville Road, and did not see any signs posted on the either side of the Melsky tract. He was aware that Toll Brothers wanted to change the housing density on the property adjoining his, but did not read the Ordinance. He read about the Ordinance in the newspapers and spoke to his neighbors and Mr. Betlyon. He bought the property about a year ago. He asked his attorney, Paul Astor of Astor Weiss Kaplan and Mardell, to investigate the Ordinance.

Mr. Rice asked if Mr. Astor wrote a letter to Upper Makefield at Mr. Melching’s instruction.

Mr. Melching said that he had asked his attorney about the zoning change, and was aware that the Ordinance had been advertised and public meetings had been held. In response to Mr. Auchinleck’s question, Mr. Melching said that he did not know exactly what course Mr. Astor would take on his behalf; he was not aware of the letter.

In response to Mr. Hunt’s questions, Mr. Melching said that he believed that Stoopville Road had been closed to traffic for about six months. He travels to his property by way of Highland Road to Wrightstown Road, and has no occasion to drive on Stoopville Road near the Melsky tract.

Daniel Worden was sworn in. In response to Mr. Hunt’s questions, Mr. Worden said that he is chairman of the Upper Makefield Board of Supervisors. He has held that position for over one year, and has been on the Board for four years. Prior to serving on the Board of Supervisors, he served on the Council Rock School Board for two years. On December 8, 2005, he traveled in a jet chartered by Toll Brothers, to Washington, DC, with Skip Goodnoe, Mr. Murphy, Michael Palmer, Daniel Rattigan and Susan Vicedomini of Council Rock School Board, to make a presentation to the Veterans Administration to try to convince them to bring a cemetery to Upper Makefield. It was his understanding that the cemetery would be good for Upper Makefield and for Bucks County, with a $26,000,000 investment in the property and 16 – 18 full time jobs. He got these numbers from the Secretary of Veterans Affairs at the time that the cemetery was announced, on January 6, 2006. He was not aware of the benefit to Toll Brothers at the time of the announcement. His only motivation to attend the meeting in Washington was to convince the VA of the benefit of locating the cemetery in Upper Makefield, at a location that contains the graves of Revolutionary War veterans. When the meeting was over, the VA said they would let them know at a later time whether Upper Makefield was chosen. There was no agreement among Toll Brothers, the VA and Council Rock at the time of the announcement, only an understanding that all would have to go through the land development planning process.

When Mr. Hunt attempted to enter an e-mail as Exhibit A-9, Mr. Rice objected, as the e-mail violated attorney/client privilege. Mr. Rice and Mr. Hunt argued at length as to whether this was a violation, as other than Upper Makefield Supervisors were copied on the e-mail and Mr. Hunt had received it in a public venue. Mr. Auchinleck sustained Mr. Rice’s objections, and Exhibit A-9 was not accepted, nor was Exhibit A-10.

In response to Mr. Hunt’s questions, Mr. Worden said that he did not recall whether he attended a meeting on January 16, 2006, but he agreed that some time in the winter he attended a meeting with Newtown Township Supervisors, some engineers, Toll Attorneys and the solicitors for Newtown, Upper Makefield and Council Rock School District to discuss whether there was a way to “make the cemetery happen”. Mr. Murphy arranged the meeting, at which the number of houses on Gray, Melsky and Dolington and the sewage treatment plant were discussed. Council Rock indicated that it would want 40-42 acres set aside for an elementary school. Upper Makefield has concerns about public utilities crossing into the Township, and wanted a separate package plant. There had been a plan for the Gray tract and there was some discussion of that proposed development taking advantage of the package plant.

Regarding the 40 acres for an elementary school, Mr. Worden said that this is not a “by-right” use in the conservation management district. Mr. Reid spoke of an on-going litigation on the Melsky tract.

In response to Mr. Hunt’s question, Mr. Worden said that he did not know whether Toll Brothers was the applicant for the zoning change. Mr. Hunt referred him to the letter entered as Exhibit A-7, and Mr. Rice stipulated to the letter’s contents. Mr. Worden said that the proposed ordinance and a sketch plan were presented for review at around the same time. It was Mr. Worden’s understanding that if the Melsky tract were removed from the Ordinance that the cemetery would “go away”. Mr. Worden said that he knew about a trip to Washington, DC that Kathleen Pisauro of the Upper Makefield Planning Commission made on July 19, 2005, to meet with the Veteran’s Administration. He had not gone to that meeting, but had been sent an e-mail about it. He read in the paper that Toll Brothers wanted to build 90 houses on the Melsky tract and 80 on the White tract. He did not recall any mention of DEP approvals. The only environmental concern that had been discussed was the possible crossing of wetlands by sewage lines to bring waste to the package plant on the Gray tract from the Melsky tract.

Mr. Hunt entered as Exhibit A-11 a letter from Mr. Worden to Senator Arlen Specter dated December 1, 2006. Mr. Worden agreed that he wrote the letter. This letter refers to a “shortfall” of $6,000,000.

In response to Ms. Stuckley’s questions, Mr. Worden said that Representative Petri first discussed the possibility of a Veterans Cemetery in Upper Makefield in the beginning of 2005. He was not aware of a letter from Mr. Mangano to Mr. Nicholson dated March 18, 2005. He did not attend a meeting in Toll Brothers’ Horsham office on July 11, 2005. He did not receive a copy of a letter from Mr. Mangano to Mr. Jayne dated July 12, 2005. He first learned that the Veterans Administration had chosen Upper Makefield for the cemetery about two days before the official announcement. His only contact with the VA was the December 8, 2005 meeting. Supervisor West was not at that meeting, but was in Washington on other business and joined them for lunch, at which no conversation about the cemetery took place. Also in attendance were then Congressman Fitzpatrick, Mr. Goodnoe and Ms. Vicedomini. Toll Brothers paid for the lunch.

Mr. Worden said that he had not seen a draft of a stipulation and settlement agreement on the Melsky litigation prior to the VA announcement. This draft had circulated and been discussed, but he did not recall the date of the discussion. There had been no special meeting to discuss this. It was his understanding that Council Rock had purchased the property without being aware that it was not zoned for a middle or high school, and that subsequent litigation had not been resolved.

Ms. Stuckley referred to the letter Mr. Worden had written to Senator Specter and questioned him about the $6,000,000 shortfall he discussed. She questioned how he could arrive at that number without any environmental impact studies having been done.

Mr. Worden responded that the letter referred to the costs associated with infrastructure. It is his understanding that if the cemetery is not built the zoning reverts to what it had been prior to the adoption of this Ordinance. Cemetery is permitted by conditional use in the CM conservation management district.

Mr. Rice reminded Ms. Stuckley and the Board that he had already stipulated that the Ordinance is not a TDR Ordinance.

Ms. Johnson entered as Exhibit J-1 the Toll Press Statement dated February 16, 2006. In response to Ms. Johnson’s questions, Mr. Worden said that he had been in attendance at meetings referred to in the press statement. It was his role to listen to proposals and indicate whether they made sense. Toll Brothers made proposals trying to find a way to bring the cemetery to Upper Makefield. Representative Petri first mentioned the idea of the cemetery in 2005 as a way to save the Village of Dolington. He thought it was a viable option. Mr. West was in attendance at some of those meetings; Supervisor Falcone was in attendance at one or two. His understanding of the “framework of an agreement’ referred to Toll’s decision to sell 200 acres to the VA. All would have to go through the planning process; some rezoning would be necessary to bring the cemetery to Upper Makefield. The VA could have bought the property without rezoning, but Toll Brothers indicated that it would not sell without some higher density. He did not recall discussion of specific properties.

Mr. Beckert objected, stating that the “framework of an agreement” does not rise to the level of contract zoning. His objection was overruled.

Mr. Worden again stated that only social conversation took place at the lunch in Washington DC in December of 2005. The JMZO does allow a sewer line to cross a wetland by an exception; with the Federal Cemetery Overlay Ordinance, such crossing would be allowed without an exception. He did not recall where he learned of the number $6,000,000 referenced in his letter to Senator Specter; but he did not want the Upper Makefield taxpayers to pay additional taxes to bring the cemetery.

In response to Mr. Rice’s questions, Mr. Worden said that the cemetery would be a benefit to Upper Makefield because it would provide a buffer for Dolington Village. There are outstanding appeals for conditional use approvals for 280 homes and 230 homes, and the cemetery Ordinance would eliminate these appeals. The Veterans Administration had asked Upper Makefield to make a presentation because Congressman Gerlach had made a presentation about bringing the cemetery to his district. Mr. West was not at the presentation, nor was he on the plane. In December of 2005 Mr. Rattigan had been elected but had not taken office. In his four years on the Board of Supervisors he has seen other rezoning within the jointure.

In response to Mr. Auchinleck’s questions, Mr. Worden said that Toll Brothers had plans to develop its properties in accordance with the prior ordinance. He expected that a package treatment plant would have been necessary; Upper Makefield wants on-site systems to avoid connecting with public utilities. Any plant would have been dedicated to the Township; this would not change with the Cemetery Ordinance.

In response to Mr. Katz’s questions, Mr. Worden said that as currently conceived, the package treatment plant would service Upper Makefield Township residents on the Melsky and Gray tracts. There had been discussion of the plant also serving Dolington Village.

Mr. Rice stipulated that the Federal Cemetery Overlay Ordinance reduces the minimum lot size from 10 acres to 3 acres for on-site systems.

In response to Mr. Hunt’s question, Mr. Worden said that none of the conditional use applications for these properties had been approved.

Mr. Rice asked the Board to consider appointing one member as a hearing officer for the remainder of the hearing and for the appeal of the preliminary opinion of the zoning officer that Mr. Holt has filed.

Mr. Wall said that he would not burden any one member with that responsibility.

There was some discussion about the need for additional special meetings, as each of the parties expects to call witnesses, and Mr. Hunt still expects to call a number of witnesses.

Mr. Wall moved to continue the application of Leo Holt to March 1, 2007. Mr. Katz seconded and the motion passed unanimously.

Mr. Wall moved to adjourn at 10:30PM. Mr. Katz seconded and the motion passed unanimously.


Respectfully Submitted:


Mary Donaldson, Recording Secretary