NEWTOWN TOWNSHIP

ZONING HEARING BOARD

MINUTES OF THE MEETING OF MAY 3, 2007

The Newtown Township Zoning Hearing Board met on Thursday, May 3, 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’Angelis, Stenographer.

Call to Order

Mr. Wall called the meeting to Order at 7:30 PM.

The Pledge of Allegiance

Approval of Minutes

Mrs. Laughlin moved to approve the minutes of the special meeting of March 30, 2007. Mrs. Bowe seconded and the motion passed unanimously.

Mrs. Laughlin moved to accept the minutes of April 5, 2007. Mr. Katz seconded and the motion passed unanimously.

The agenda was reviewed.

  • Continued Application of Third Federal Bank – 950 Newtown Yardley Road
  • Application of Maria Larson/James Higgins – 2 Crocus Lane
  • Application of Bret and Sarah Piano – 24 Sibelius Road
  • Application of Linda and Nicholas Lazeration – 24 Barclay Street
  • Application of Phillipa B. Roosevelt – 425 Linton Hill Road
  • Application of Brookshire Estates – Washington Crossing Rd/Gaucks Lane
  • Application of OHB Homes – Eagle Road
  • Continued Application of Leo Holt – 220 Stoopville Road
  • Continued Application of Leo Holt (Appeal of Preliminary Opinion of Zoning Officer)– 220 Stoopville Road

Continued Application of Third Federal Bank

Mr. Auchinleck informed the Board that Don Marshall, representing Third Federal Bank, had sent a letter requesting that the application be continued to June 7, 2007, as the applicant is redesigning the sign that is the subject of the application.

Mr. Katz moved to continue the application of Third Federal Bank to June 7, 2007. Mr. Lenihan seconded and the motion passed unanimously.

Application of Maria Larson/James Higgins

Mr. Katz read into the record the a pplication of Maria Larson and James Higgins owners requesting a variance from Section 1000(E)(3)(e)(2) (Newtown Grant Final Plan) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 15 feet by 25 feet patio resulting in an impervious surface ratio of 30.28% where the maximum permitted is 30% and a 12 feet rear yard and 12.4 feet side yard where 15 feet is required. The subject property is 2 Crocus Lane in the R-2 High Density Residential Zoning District, being further known as Tax Map Parcel #29-19-232.

Maria Larson was sworn in.

Mr. Wall asked if anyone present wished to be party to the application. There was no response.

Ms. Larson explained that she wished to install a concrete patio at the rear of her home. The existing hot tub would be placed on the patio. She already has a permit for the hot tub; her contractor is in the process of obtaining a permit to work in Newtown Township.

In response to questions from the Board, Ms. Larson said that she has spoken to her neighbors, who are in support of her application. The Newtown Grant Homeowners Association has reviewed her plans and will approve pending receipt of a variance. To the rear of her home are a neighbor’s side yard and a hill. Beyond the hill is open space. She was uncertain whether the hill belongs to the Newtown Grant Homeowners Association, or who owns the open space beyond the Newtown Grant open space. It is farmland.

Mr. Solomon had no comment.

Mr. Katz moved to grant a variance from Section 1000(E)(3)(e)(2) (Newtown Grant Final Plan) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 15 feet by 25 feet patio resulting in an impervious surface ratio of 30.28% where the maximum permitted is 30% and a 12 feet rear yard and 12.4 feet side yard where 15 feet is required. Mr. Lenihan seconded and the motion passed unanimously.

Application of Bret and Sarah Piano

Mr. Katz read into the record the application of Bret and Sarah Piano, owners, requesting a variance from Section 803(H-3)(1)(a)(e) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of 235 linear feet of fence where the maximum permitted height is 3 feet. The subject property is 24 Sebelius Road in the CM Conservation Management District Zoning District, being further known as Tax Map Parcel #29-20-1.

Sarah Piano was sworn in.

Mr. Wall asked if anyone present wished to be party to the application. There was no response.

Ms. Piano explained that she would like a four foot fence around her property, which is at the corner of Wrights Road. She has three small children and feels that the three foot high fence that would be permitted is not adequate for the children’s safety. In response to Mr. Katz’s questions, Ms. Piano said that she has a petition of signatures of her neighbors in support of her application.

In response to Mr. Auchinleck’s question, Mr. Solomon said that the plan has not been reviewed for sight triangle; it does not appear that the fence would impair visibility at the intersection. Mr. Solomon had no further comment.

Mr. Lenihan moved to grant a variance from Section 803(H-3)(1)(a)(e) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of 235 linear feet of fence where the maximum permitted height is 3 feet. Mr. Katz seconded and the motion passed unanimously.

Application of Linda and Nicholas Lazeration

Mr. Katz read into the record the application of Linda and Nicholas Lazeration, owners, requesting a Special Exception under Section 1208(c)(2) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of 10.25 feet by 17.7 feet living room addition on a non-conforming lot. The subject property is 24 Barclay Street in the R-2 High Density Residential Zoning District, being further known as Tax Map Parcel #29-10-11-13.

Linda Lazeration was sworn in.

Mr. Wall asked if anyone present wished to be party to the application. There was no response.

Ms. Lazeration said that she wished to put an extension on the rear of her home to enlarge her living room. This would be a one-story addition. She does not have a Homeowners Association.

Mrs. Bowe moved to grant a special exception under Section 1208(c)(2) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of 10.25 feet by 17.7 feet living room addition on a non-conforming lot. Mrs. Laughlin seconded and the motion passed unanimously .

Application of Phillipa B. Roosevelt

Mr. Katz read into the record the application of Phillipa B. Roosevelt owners requesting a variance from Section 404(B) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 650 square feet in-ground swimming pool, 140 square feet of coping, 47 square feet pad, and 113 square feet gazebo resulting in an impervious surface ratio of 17.4% where the maximum permitted is 12%. The subject property is 425 Linton Hill Road in the R-1 Medium Density Residential Zoning District, being further known as Tax Map Parcel #29-10-13-4.

Phillipa Roosevelt was sworn in.

Mr. Wall asked if anyone present wished to be party to the application. There was no response.

Ms. Roosevelt explained that she wished to install a pool in her yard to provide therapy for a medical condition. The Planning Commission had expressed some concern about the large increase in impervious surface. She has redesigned her plans, eliminating the gazebo, so that now she is only requesting 14.9% impervious surface. She has learned that there is a 17 by 70 foot dry well on her property that accommodates the run-off. In response to Mr. Wall’s question, she said that she would have her engineer determine whether the existing dry well could accommodate the additional run-off, and if not, she would install another dry well if necessary.

Mrs. Laughlin moved to grant a variance from Section 404(B) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 650 square feet in-ground swimming pool, 140 square feet of coping, and a 47 square feet pad resulting in an impervious surface ratio of 15% where the maximum permitted is 12%, subject to the condition that an engineer confirm that the existing dry well is adequate for additional run-off. If the dry well is not adequate, accommodation will be made to handle additional run-off. Mr. Katz seconded and the motion passed unanimously .

Application of Brookshire Estates LP

Mr. Katz read into the record the application of Brookshire Estates LP owners requesting a variance from Section 401(B)&(C) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 29 lot residential development where one of the lots is located in Newtown Township resulting in an impervious surface ratio of 20% instead of 15%, open space of 1.213 acres instead of 1.985 acres, 70 feet and 28 feet front yard set backs instead of 100 feet and 40 feet side yard instead of 50 feet. In addition the applicant seeks a variance from the 70 feet width of right of way for a feeder street to permit 50 feet. The subject property is Washington Crossing Road North of Gaucks Lane in the CM Conservation Management Residential Zoning District, being further known as Tax Map Parcel #29-16-8.

Attorney Ed Murphy represented the applicant.

William Briegel, Vice President of Planning and Engineering for Orleans Home Builders, was sworn in.

Mr. Wall asked if anyone present wished to be a party to this application. Linda Majewski of 7 Gaucks Lane and Esther Martinolich of 11 Gaucks Lane were sworn in.

Mr. Murphy explained that this is a plan for a 29 lot subdivision, with 28 lots located in Lower Makefield Township, and one lot, lot 29, located in Newtown Township. Lot 29 is 4.6 acres. At the request of Newtown Township’s Planning Commission and Board of Supervisors, the entrance to Gaucks Lane is to be relocated. In order for the entrance to Gaucks Lane to be perpendicular to Route 532, as required by PennDOT, lot 29 is bisected by Gaucks Lane, creating two parcels of open space, labeled as parcel D and parcel E on the plan. From Route 532, all that is visible is the open space. Gaucks Lane is then re-aligned to create an intersection with Jace Court in the new subdivision. It is also re-aligned behind lot 29 to continue to the current Gaucks Lane. The existing intersection with Route 532 is at a skewed angle and offers reduced sight distances. It is being re-aligned for safety reasons. The existing road opening will be abandoned, reseeded, and deeded to the Majewski family.

Mr. Murphy reviewed the request for relief. He noted that the request for relief from Section 401(B) for an increase in impervious surface to 20% is based on the entire 4.6 acre lot, and includes the road. The residential lot would be limited to a 15% impervious surface. The planned retention basin will handle the entire 20% sought. Relief from Section 401(B) is also sought for a reduction in open space on parcel “D”, which measures only 1.213 acres. This is also because of the new road opening.

Mr. Murphy said that relief is sought from the front and side yard setbacks for lot 29. The application seeks 70 foot and 28 foot setbacks, but the applicant would like to modify that request to a 38 foot setback along the Gaucks Lane side and a 60 foot setback on the Jace Court side, to better address the concerns of the neighbors.

In response to questions from the Board, Mr. Briegel said that the change would satisfy the concerns of the parties to the application, and the home would align with the other homes on Jace Court. The Lower Makefield setback requirement is 60 feet. The side yard will remain 40 feet between Lot 29 and lot 28.

Mr. Murphy said that the request for a minimum right-of-way width for the new construction of Gaucks Lane is to make that new construction the same width as the existing street. The Gaucks Lane cartway is about 18 feet wide.

Mrs. Laughlin expressed some concern about impervious surface, as so many newer homes have used the entire allotment, leaving no impervious surface remaining for patios or other outdoor improvements.

Mr. Breigel said that the lots can accommodate 6500 square feet of impervious surface. The largest model offered in this development uses about 6000 square feet of impervious surface, leaving some room for outdoor amenities to be added by the homeowner.

In response to Mrs. Bowe’s questions, Mr. Breigel said that the two municipalities are in discussion about maintenance, snowplowing, etc. Newtown Township will get any fees associated with this lot, including traffic impact fees. The other phase of this development has no road connection with this phase. Parcel “D” will belong to a homeowners association.

Mrs. Majewski and Mrs. Martinolich agreed that they were satisfied with the adjustment made to the front yard setbacks.

Mr. Solomon had no comment.

Mr. Wall moved to grant variances from Section 401(B)&(C) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 29 lot residential development where one of the lots is located in Newtown Township resulting in an impervious surface ratio of 20% instead of 15%, open space of 1.213 acres instead of 1.985 acres, 60 feet and 38 feet front yard set backs instead of 100 feet and 40 feet side yard instead of 50 feet. In addition the applicant seeks a variance from the 70 feet width of right of way for a feeder street to permit 50 feet. Mr. Katz seconded and the motion passed 4-1, with Mrs. Laughlin voting nay.

Application of OHB Homes, Inc.

Mr. Katz read into the record the application of OHB HOMES INC. equitable owners, requesting a variance from Section 902(B)(3), 902(B)(4)(a), 401(B), 903(B)(4)(a)(1), 401(B) and 903(B)7) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 21 lot residential development (Use B-12) with no active recreation land and no payment to the township in lieu thereof, 35.321 acres of open space instead of 45.7639 acres, 78%disturbance of steep slopes instead of 25%, and 45% of agricultural soils instead of 25%. The subject property is Eagle Road South of Wrights Road in the CM Conservation Management Zoning District, being further known as Tax Map Parcel #29-3-40-1, 29-3-40-2, 29-3-40-3, and 29-3-40-4.

Mr. Murphy represented the applicant.

William Briegel, Vice President of Planning and Engineering for Orleans Home Builders, and Robert Jordon of Woodrow & Associates, project manager, were sworn in.

Mr. Wall asked if anyone present wished to be a party to this application. There was no response.

Mr. Murphy explained that this application involves three properties being developed as a 63-acre subdivision. The developer had presented a “by right” plan for B-14 cluster development to the Planning Commission and Board of Supervisors over one year ago. That plan showed 26 village houses on 6500-square foot lots, with the three existing homes to remain. Both the Planning Commission and the Supervisors preferred to see larger lots and fewer homes. The current plan shows 21 new homes and the three existing homes. The new lots measure about 20,000 square feet. This plan has been reviewed by the Park and Recreation Board, who expressed interest in preserving the open space in the area nearest the creek. There was also some discussion with the Park and Recreation Board about possibly allowing some access to the creek area in the future.

Mr. Murphy said that the Park and Recreation Board has requested a fee in lieu of open space, with the condition that the Board have the option of requesting a link to a trail system or an easement through the open space. The applicant will pay the fee, but does not want to provide active recreation.

Mr. Jordon reviewed the reduction in open space, showing the B-14 plan’s available open space on a plan marked as Exhibit B. The current plan, marked as Exhibit C, shows 10.5 fewer acres of open space, but the principle area of 35.32 acres remains intact. The reduction comes from areas surrounding the homes.

Mr. Murphy entered as Exhibit D an existing features plan. He noted that the steep slopes to be disturbed are mostly in the area of Eagle Road, and are man made slopes created during the Eagle Road improvement project. Regarding disturbance of agricultural soils, Mr. Murphy noted that a large portion of the property is agricultural soil. The property is not currently farmed, nor has it been farmed in recent memory.

In response to Mr. Wall’s question, Mr. Murphy said that the Board of Supervisors was not in favor of the village plan because it was similar in appearance to the Overlook development on Eagle Road, and the Board felt that larger lots would have a less crowded appearance. The proposed homes would be similar in size with either plan, about 3400 to 3800 square feet.

Leo Fitzpatrick of 331 Stoopville Road was sworn in. Mr. Fitzpatrick said that he is opposed to the granting of a variance to reduce the amount of open space preserved. It is important to preserve as much open space as possible. He also noted that the Park and Recreation Board needs space for playing fields.

Mr. Murphy said that the Park and Recreation Board had recommended a fee in lieu of accepting dedication of open space. The area of open space along the stream corridor will remain open, but the Board did not think it would be accessible to the public so preferred not to accept it.

Mr. Murphy asked that the application be entered as Exhibit A.

Exhibits A, B, C and D were accepted.

Mr. Solomon had no comment.

Mr. Katz moved to grant variances from Section 902(B)(3), 902(B)(4)(a), 401(B), 903(B)(4)(a)(1), 401(B) and 903(B)7) of the Joint Municipal Zoning Ordinance of 1983 to permit construction of a 21 lot residential development (Use B-12) with no active recreation land and no payment to the township in lieu thereof, 35.321 acres of open space instead of 45.7639 acres, 78% disturbance of steep slopes instead of 25%, and 45% of agricultural soils instead of 25%. Mr. Lenihan seconded and the motion passed unanimously .

Continued Application of Leo Holt (Appeal of the Preliminary Opinion of the Zoning Officer)

Mr. Hunt asked that this application be continued to the June regular meeting of the Zoning Hearing Board.

Mr. Wall moved to continue the application of Leo Holt, the appeal of the preliminary opinion of the Zoning Officer, to June 7, 2007. Mr. Lenihan seconded and the motion passed unanimously.

Continued Application of Leo Holt

In attendance for this appeal were Mr. Hunt, representing the applicant, Ms. Stuckley and Mrs. Johnson, parties in support of the application, Mr. Beckert representing Newtown Township, Mr. Rice representing Upper Makefield Township, and Mr. Murphy representing Toll Brothers, and Mr. McMaster, representing Guy Polhemus, party to the application.

David Kulig was called.

Mr. Rice objected. He asked for an offer of proof of the relevance of Mr. Kulig’s testimony and asked for whom Mr. Kulig is a witness.

Mr. Hunt said that Mr. Kulig was an Upper Makefield Supervisor at the time of the adoption of the Ordinance, and his name appeared on his and on Ms. Johnson’s witness lists.

Mr. Rice’s objection was overruled. Mr. Kulig was sworn in.

In response to Mr. Hunt’s questions, Mr. Kulig said that he has been an Upper Makefield Supervisor since January 2006. Prior to becoming a supervisor he served on the Planning Commission from 2000 through 2005. He first became aware that there would be “strings attached” to the cemetery on January 11, 2006, when he had a telephone conversation with Daniel Worden, who had indicated to him that a zoning amendment and other tracts of land would be involved in the cemetery plans. Mr. Worden told him that the other 100 acres of the Dolington tract and the Melsky tract would be included in a zoning amendment that would involve some changes in housing density. The purpose of this was to allow the cemetery to go forward.

In response to Mr. Hunt’s further questions, Mr. Kulig said that he attended a meeting on January 16, 2006 in the Upper Makefield Township Building, which was closed for the Martin Luther King Day holiday. In attendance at that meeting were Richard Weaver and Tom Jirele from Newtown Township, Mr. Rice, Mr. Murphy, representatives of Toll Brothers and of Eastern States Engineering, along with himself and Mr. Worden. There was talk of higher density housing on the White and Melsky tracts and about sewage treatment facilities. The talk was about where and how to best accommodate sewage treatment. He was not sure who organized the meeting.

When Messrs. Rice, Murphy and Beckert objected to Mr. Kulig’s further statements, Mr. Wall reminded Mr. Kulig that he must only answer questions he has been directly asked.

Mr. Hunt asked Mr. Kulig about a Stipulation and Settlement agreement.

Mr. Kulig said that he was aware there had been litigation in the 1980’s and 1990’s involving Council Rock School District and the Melsky tract. The Stipulation and Settlement addressed this litigation. No written document was produced as a result of the January 16, 2006 meeting; nothing regarding the Stipulation and Settlement was put into any written document. Mr. Rice had sent something in advance of that meeting; it was an agenda about four pages long, and it included reference to sewage treatment facilities. People other than Upper Makefield Supervisors had seen that four-page agenda.

Mr. Hunt asked Mr. Kulig if he had ever seen a document that had been identified as Exhibit A-10, if it had been distributed to anyone other than Upper Makefield Supervisors, and if it was distributed at the meeting of January 16, 2006. Mr. Hunt noted that Exhibit A-10 had not been accepted as an exhibit.

Mr. Kulig said that he had not seen this document before this evening. He did not recognize the typeface.

In response to Mr. Hunt’s questions, Mr. Kulig said that public discussion of an overlay ordinance began in January 2006. He had been present when representatives of the Veterans Administration had made the announcement that Upper Makefield had been chosen for a cemetery location in January 2006. He voted nay on the Federal Cemetery Overlay Ordinance in October 2006. He estimated that with a B-14 development, there would be a maximum of 94 homes on the Melsky tract. It was his understanding after January 16, 2006, that Council Rock School District intended to retain 40 acres of the Melsky property. Derek Reid, Solicitor for the school district, had been in attendance at the January 16, 2006 meeting.

In answering Mr. Hunt’s questions about Kathleen Pisauro’s trip to Washington, D.C., Mr. Kulig said that he was aware of her trip, but that there had not been a formal endorsement of the trip. Ms. Pisauro wrote an e-mail summary of the trip.

Mr. Kulig said that in August 2006 he met with Toll Brothers representatives and Congressman Fitzpatrick in the Upper Makefield Township’s Engineer’s office to discuss sewage treatment and road improvements. This was not typical of other zoning amendments he had seen. The Melsky tract was included in this discussion. There was no representative of Council Rock School District at that meeting. He was not a part of the December 2005 trip to Washington D.C.

In response to Ms. Stuckley’s questions, Mr. Kulig said that he was at the January 8, 2006 announcement ceremony in Washington Crossing Park. There had been no mention of requirements as part of that announcement. He was at the Upper Makefield Board of Supervisors meeting of January 18, 2006.

Ms. Stuckley offered as Exhibit C-7 a report on that meeting from the Newtown Advance.

Messrs. Beckert, Murphy and Rice objected to this exhibit as not being a record of the meeting. They objected to subsequent questions based on quotes in the article. Their objections were sustained.

Ms. Stuckley referred Mr. Kulig to exhibit A-10, and attempted to question Mr. Kulig on that exhibit.

Mr. Kulig confirmed that his e-mail address is at the top of that exhibit.

Messrs. Beckert, Murphy and Rice objected to questioning on this exhibit, noting that Mr. Kulig has already testified that he does not remember having seen it. Their objections were sustained.

In response to Ms. Stuckley’s questions, Mr. Kulig said that a draft stipulation and settlement had been discussed at the January 16, 2006 meeting. He repeated the names of attendees at that meeting, and added that he believes that John Mangano had been in attendance. He did not remember other Toll representatives’ names.

Ms. Stuckley asked if Exhibit A-10 was physically present at the January 16, 2006 meeting, and if so, whether it had been circulated among attendees.

Mr. Kulig said that he was not sure whether A-10 had been at the meeting or whether it had been circulated. He did not think it had appeared at the meeting in the form shown to him as Exhibit A-10, with the same header.

Ms. Stuckley entered as Exhibit C-8 the agenda from the meeting of January 16, 2006.

In response to Ms. Stuckley’s questions, Mr. Kulig said that he recognized Exhibit C-8 as the agenda from the January 16, 2006 meeting. After that meeting the stipulation and settlement was put on hold, he thought because it went beyond the original litigation. Referring to Exhibits A-7 and S-1, Mr. Kulig said that he had seen both exhibits in the past.

Ms. Stuckley offered as Exhibit C-9 a letter from Mr. Murphy to Mr. Kuhns. Mr. Rice objected and his objection was sustained. Exhibit C-9 was not accepted.

Referring to Exhibits A-7 and S-1, Mr. Kulig said that each exhibit refers to a different number of homes to be built because A-7 only refers to the 100-acre Dolington tract and S-1 refers to the entire deal. Referring again to S-1, Mr. Kulig said that Toll Brothers made clear that rezoning would be required if Toll were to sell land for the cemetery. In his years on the Planning Commission he had never before seen plans presented by parties other than owners or equitable owners. Toll had no equity in the Melsky tract.

Ms. Stuckley offered as Exhibit C-10 a Bucks County Planning Commission review letter.

Mr. Rice objected to this exhibit, noting that this was a review of an amendment that was not adopted. Mr. Beckert also objected, arguing relevance. In response to Mr. Auchinleck’s question, Mr. Rice said that the final draft of the Amendment had also been reviewed by the Bucks County Planning Commission. In response to Mr. Hunt’s statement that the intent had been the same in both the draft and subsequently adopted ordinance, Mr. Rice said that the Commonwealth Court has ruled that legislative intent is irrelevant.

Exhibit C-10 was accepted.

Ms. Stuckley entered as Exhibit C-11, Map I from the Newtown Area Joint Comprehensive Plan, with certain areas outlined in yellow.

In response to Ms. Stuckley’s questions, Mr. Kulig said that he is familiar with the CM Conservation Management zoning district. The current comprehensive plan runs through 2010. It was adopted in 1997, and is in the process of being revised. Referring to the area Ms. Stuckley had outlined on Exhibit C-11, Mr. Kulig said that these are the White and Melsky tracts. They are no different than other CM land. The White tract is adjacent to the Gunser farm, which is a preserved farm. It is his opinion that 80 houses could not be built on 60 acres of CM land.

Ms. Stuckley offered as Exhibit C-12, a letter from the Department of Agriculture dated July 26, 2006 and as C-13, a letter from the Department of Agriculture dated August 22, 2006.

Mr. Rice objected to these exhibits, asking for an offer of proof of relevance. They were not accepted.

In response to Ms. Stuckley’s questions, Mr. Kulig said that he has read JMZO 2006-18 and is familiar with references to conditional clauses for transfer of residential density. It is his understanding that this change in density only would occur if Toll Brothers sells to the VA.

Ms. Stuckley offered as Exhibit C-14, a statement Mr. Kulig had presented to the press regarding JMZO 2006-18. Mr. Rice objected and it was not accepted.

Ms. Johnson offered as Exhibits J-2, the minutes of the Upper Makefield Board of Supervisors meeting of February 1, 2006 and J-3, a tape of that same meeting. Because these had not been confirmed as true copies, they were not accepted at this time.

In response to Ms. Johnson’s questions, Mr. Kulig said that he attended the Board of Supervisors meeting of February 1, 2006. He said that at that meeting, Chairman West had asked Mr. Rice to answer questions from an attendee, Mr. Barbera, about who had requested the zoning amendment. Mr. Rice had said that Toll Brothers would have to produce documents to file for rezoning.

In response to questions from Mr. McMaster, Mr. Kulig said that he had not been given a copy of the agenda prior to the meeting of January 16, 2006. He had been sent a draft stipulation and settlement by e-mail from Mr. Rice, but it was not circulated at the meeting. He did not know whether the stipulation and settlement had been circulated at the meeting in another format; he knows Mr. Reid had a copy, and he thought Mr. Murphy and the representatives of Newtown Township had it. The agenda for this meeting included three drawings or plans for development on the Melsky and White tracts. There was discussion of sewage treatment for both parcels. Toll indicated that it would want more density but Upper Makefield did not agree to that prior to the passage of the Ordinance.

In response to Mr. Beckert’s questions, Mr. Kulig said that there was no written agreement between Toll Brothers and either Newtown, Wrightstown or Upper Makefield. The Stipulation and Settlement Agreement was never signed. The FCO Ordinance was passed in Upper Makefield by a vote of 3-1-1; there was one abstention. His was the only nay vote in the Jointure. At the August meeting in the Gilmore offices he never indicated that he would vote in support of the Ordinance. He did not disseminate the e-mail marked as Exhibit A-10 to anyone else. The Stipulation and Settlement was discussed at the start of the January 16, 2006 meeting. Zoning was not part of the agenda entered as Exhibit C-8. The plans now show 90 homes on the Melsky tract and 80 on the White tract, less than the original 235 homes mentioned. These homes are Toll Brothers’ requirements, and he has heard of other developers having similar requirements. The Board of Supervisors decides whether plans are in conformance with the Ordinance and it can grant waivers from SALDO requirements. The rezoning was approved by the three Boards of Supervisors in the Jointure; all must agree before an ordinance could be adopted.

In response to Mr. Rice’s questions, Mr. Kulig said that he was aware of the possibility of a cemetery in November of 2005, at which time there had been no mention of rezoning. He thought that the “strings attached” that had been referred to earlier were improvements to the B-14 conditional use Toll had wanted on the Dolington tract, the costs of water and sewer and road improvements. Mr. Kulig had been opposed to the Ordinance because of these strings and because he was concerned that the Ordinance had been poorly written and there would be additional costs to the Township for litigation.

Mr. Kulig was excused.

Mr. Lenihan moved to continue the application of Leo Holt to May 17, 2007 at 6:30PM. Mr. Wall seconded and the motion passed unanimously

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

 

Respectfully Submitted:

 

Mary Donaldson, Recording Secretary