The Newtown Township Zoning Hearing Board met on Thursday, May 17, 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

Promenade at Sycamore

Mr. Katz moved to send the Solicitor to defend the decision of the Zoning Hearing Board in an appeal of Promenade at Sycamore in the Court of Common Pleas. Mrs. Bowe seconded and the motion passed unanimously.

Continued Application of Leo Holt

In attendance for this appeal were Tracy Paul Hunt, representing the applicant, Carole Stuckley and Jane Johnson, parties in support of the application, Paul Beckert representing Newtown Township, John Rice representing Upper Makefield Township, and Ed Murphy representing Toll Brothers.

Ms. Stuckley offered a letter confirming that the exhibit submitted as C-9 had no signature on the copy in the files of the Upper Makefield Codes Department. C-9 was accepted, with the confirmation letter attached to C-9.

Mr. Hunt called Walter Wydro. Mr. Wydro was sworn in.

In response to Mr. Hunt’s questions, Mr. Wydro said that he has been a member of the Upper Makefield Planning Commission for 37 years, and is currently vice-chairman. He is a member of the Newtown Area Joint Planning Commission, where he serves as chairman.

Mr. Hunt showed Mr. Wydro a letter written to the Upper Makefield Township Manager by Mr. Rice, dated May 1, 2006. Over Mr. Rice’s objections as to relevance, as the letter was referring to an ordinance not adopted, the letter was entered as Exhibit A-12. Referring to the letter, Mr. Hunt asked Mr. Wydro who the applicant for a zoning change was.

Mr. Wydro said that he believed the applicant to be Toll Brothers.

In response to Mr. Hunt’s questions, Mr. Wydro said that he did not remember whether he had been in attendance at a meeting in Upper Makefield Township on January 16, 2006; he had attended several meetings in January of 2006. When asked if he had been in attendance at a meeting with Messrs. Kulig, Young, Warden, Palmer, Murphy, Reid, Mangano, Jirele and Weaver on a holiday in January, Mr. Wydro said no. He had seen a copy of a stipulation and settlement agreement some time around January 14, 2006, during a meeting. It was not shown at a public meeting, and he did not know who had passed the agreement to him; it was circulated at a meeting. When shown Exhibit A-10, Mr. Wydro said that he had not seen that heading, but the stipulation and settlement looked like one that had been passed around during meetings. Mr. Hunt then showed Mr. Wydro an e-mail and asked him to read aloud the hand written note in the corner. Mr. Wydro read aloud, “given to Wydro by West.” He did not remember whether he had seen it before, nor did he recognize the handwriting.

Mr. Hunt offered the e-mail as Exhibit A-13. Over Mr. Rice’s objections as to relevance, the exhibit was accepted.

In response to Ms. Stuckley’s questions, Mr. Wydro said that he had been involved in the formation of the Jointure and in the drafting of the JMZO. At meetings in 1975, there was discussion among representatives of Newtown Borough and Township, Upper Makefield and Wrightstown about joint zoning. The JMZO was adopted eight years after the initial discussions. Mr. Wydro said that he has received numerous awards and honors for his work in planning.

Mr. Wall reminded Ms. Stuckley that Mr. Wydro is a fact witness, not an expert witness, and as such, questioning should be limited to the facts of this application.

In response to Ms. Stuckley’s questions, Mr. Wydro said that he first became involved in discussions about the cemetery after the public announcement in January of 2006. He knew that the Melsky tract would be involved and that some zoning changes would be needed. When shown Exhibits A-7 and S-1, he said that he was familiar with the contents. He continued to state that he did not recall the dates of meetings he attended.

In response to Mr. Auchinleck’s question, Mr. Wydro said that he did not remember whether all five Upper Makefield Supervisors were in attendance when he saw a copy of a stipulation and settlement agreement.

Ms. Stuckley offered as Exhibit C-15 a packet of minutes of Upper Makefield Township Board and Committee meetings, including minutes of the Planning Commission meeting of May 24, 2006. Ms. Stuckley read into the record from page 2 of the minutes, “ After the citizens roundtable met, the Board of Supervisors directed Mr. Rice to prepare a draft zoning amendment; goal of the amendment was to facilitate the cemetery. No zoning amendment will be adopted until there is a specific plan; the amendment and plan go hand-in-hand.” She asked Mr. Wydro what his understanding of the statement “hand in hand” meant.

Mr. Wydro said that the Planning Commission had concerns about making zoning changes based on sketch plans.

Ms. Stuckley offered as Exhibit C-16 an e-mail dated May 24, 2006 from Ron Schmidt to J. Betlyon. Mr. Rice objected, asking for an offer of proof of relevance. Mr. Auchinleck asked that Mr. Wydro look at Exhibit C-16 and asked whether Mr. Wydro had seen it. Mr. Wydro had not seen it before. Exhibit C-16 was not accepted.

Mrs. Stuckley referred to the minutes of the Upper Makefield Board of Supervisors dated May 31, 2006.

Mr. Beckert said that if those minutes are in the packet marked as Exhibit C-15, he would stipulate to the minutes.

In response to questions from Ms. Stuckley, Mr. Wydro said that he attended a meeting in Washington, D.C. with Kathleen Pisauro and two representatives of Save Historic Dolington. The Planning Commission had discussed 27 acres of open space, and had asked whether, instead of preserving the entire 27 acres, the buffering near the Gunser farm’s existing houses could be expanded. The objective had been to expand buffering, but the Planning Commission had been told that the Historic Dolington group had presented something different.

Ms. Stuckley asked Mr. Wydro about a review by the Bucks County Planning Commission of a Historic Patriotic Overlay District ordinance. Mr. Beckert objected as to its relevance. Mr. Wall and Mr. Auchinleck discussed relevance and the rules of evidence with Ms. Stuckley. Mr. Wall said that he expects the parties to this application to learn and adhere to the rules of evidence.

In response to Ms. Stuckley’s question, Mr. Wydro said that he is familiar with JMZO 2006-18 and with the Newtown Area Joint Comprehensive Plan.

Mr. Beckert objected to further questions about the Comp Plan and CM zoning because Mr. Wydro is a fact witness, not an expert witness.

Upon questioning about inconsistencies between JMZO 2006-18 and the comprehensive plan by Mr. Auchinleck, Mr. Wydro said that there were some inconsistencies that have been resolved; others have not been resolved. Mr. Wydro said that under the old ordinance, in the CM zoning district, cemetery and school were permitted by conditional use; under JMZO 2006-18 these are uses by right. The major inconsistency with the comprehensive plan is the protection of agricultural soils. The comprehensive plan does not identify a need for rezoning for higher density. He said that JMZO 2006-18 requires a buffer around farmland, but does not preserve farm land.

In response to Ms. Stuckley’s questions regarding Exhibit C-11, Mr. Wydro said that there is very little topographical difference between the White/Melsky tracts and the other land in the CM zoning district. He has not seen any environmental impact statement; it would be presented with any final plans for development.

Ms. Stuckley questioned Mr. Wydro about conditions attached to JMZO 2006-18. Messrs. Beckert, Murphy and Rice stipulated to the conditions in the Ordinance.

In response to Ms. Stuckley’s question, Mr. Wydro said that he has seen other ordinances with certain conditions included.

Ms. Stuckley asked about attendance at Planning Commission meetings by the School District Solicitor. Mr. Beckert objected, as to the question’s relevance. His objection was sustained.

Mr. Wall again cautioned Ms. Stuckley to ask only relevant questions. He said that she is entitled to ask questions that have a bearing on this challenge, only.

Ms. Stuckley asked about the inclusion of so many parcels in the Cemetery Overlay District.

Mr. Wydro explained that the Overlay District includes land from Eagle Road to Dolington Road. For planning purposes in made more sense to include the entire area.

As Ms. Johnson began to question Mr. Wydro about the purpose of conservation management zoning and the Gunser farm, Mr. Rice stipulated that the County has protected the Gunser farm; it is preserved for a specific long term and cannot be developed. Upper Makefield purchased development rights in perpetuity.

In response to Mr. Beckert’s questions, Mr. Wydro said that as chairman of the Joint Planning Commission, he has received letters from the Jointure Solicitor on the progress of any proposed ordinance. Ordinance 2006-18 was reviewed by the Bucks County Planning Commission, the Jointure Planning Commission, the Planning Commissions of the three Townships in the Jointure. It was advertised, and hearings were held in each of the Townships prior to adoption. The Boards of Supervisors decided to adopt the Ordinance; the planning Commissions are advisory bodies. If one of the Townships proposes an ordinance, it is not required to provide impact studies.

In response to Mr. Rice’s questions, Mr. Wydro said that, referring to the Upper Makefield Planning Commission minutes of May 24, 2006, as shown in Exhibit C-15, the draft of the cemetery ordinance was initiated by Upper Makefield Township. Mr. Rice, Ms. Bush and Mr. Arabis drafted 2006-18. The Planning Commission thought it would be a good idea to consider the region of the cemetery, and for that reason included the White, Grey, Melsky, McLaughlin and CRSD properties in the overlay. All of the properties except for a portion of the Melsky tract are located in Upper Makefield. A planned sanitary sewer is proposed to be built by Toll Brothers to service the entire area of the overlay district. He did vote to recommend support of the Ordinance. Regarding the Comprehensive Plan, Mr. Wydro said that the Jointure is unique in the state; it provides planning concepts for preservation of open space, farm land and historic villages. There are sections in the Comprehensive Plan that deal with population growth, and a new plan is being prepared now. There have been other amendments that have rezoned property for higher density. He gave as an example the Grey tract, which was rezoned from CM to R-2.

In response to Mr. Katz’s question, Mr. Wydro agreed that combining all of the properties, including the McLaughlin tract in the Ordinance was an example of good environmental analysis.

Upon redirect from Mr. Hunt, Mr. Wydro said that the new comprehensive plan draft is being considered simultaneously with the Federal Cemetery Overlay, and the overlay is reflected in the new draft.

In response to Ms. Stuckley’s questions, Mr. Wydro said that all of the Melsky tract, both residential and school, was included in the overlay and public notices reflected that. There is no mention of rezoning for higher density in the new comp plan.

Mr. Hunt called Robert West. He said that he would like to treat Mr. West as an adverse witness. He has an adversarial history with Mr. West, who has questioned Mr. Hunt’s veracity. Mr. Rice had no objection. Mr. West was sworn in.

In response to Mr. Hunt’s questions, Mr. West said that he served as an appointed member of the Board of Supervisors for 15 months and as an elected supervisor for three years. Referring to Exhibit A-13, Mr. West said that he has spoken to Mr. Rice about this exhibit this evening. He is the author of the e-mail entered as Exhibit A-13. It discusses the stipulation and settlement with Council Rock. He did not recall giving it to Mr. Wydro, and the handwriting in the corner stating that he gave the e-mail to Mr. Wydro is not his handwriting. He showed Mr. West a 9-page document, which he identified as an attachment to Exhibit A-13, and offered it as Exhibit A-14.

Mr. Rice objected to the inclusion of A-14, based on attorney/client privilege. That the document might have been in Mr. Wydro’s possession does not break the privilege, as his firm also represents the Planning Commission. Exhibit A-14 was not accepted.

Referring to Exhibit A-13, Mr. West said that he did not know whose handwriting was in the corner. Referring to items 10 and 11 of Exhibit A-13, Mr. West said that there had been contemplation of additional houses on the Melsky property; 90 houses were considered for the Melsky tract. The stipulation and settlement attempted to address this issue.

In response to Ms. Stuckley’s questions, Mr. West said that he did not attend a meeting at Toll headquarters on July 11, 2005. He attended five meetings about the cemetery from June through December 2005, including one in August, one in September, one on November 4 and one on December 6. He attended a prep meeting in Washington, DC on December 8, 2005, and attended lunch following the prep meeting, but did not attend the VA presentation. He became aware that rezoning would be required in August or September 2005, as a portion of the land under consideration had been zoned VR-1. On the Dolington tract, not more than 200 acres were needed for the cemetery. He became aware that Toll Brothers made requests for increased housing density on CM properties, Melsky and White in the June of 2006. He was aware that the Dolington tract had been selected for the cemetery in late December 2005, near Christmas.

Mr. Auchinleck said that Ms. Stuckley was covering the same information repeatedly. Once something has been stipulated, he told her she did not have to ask it again of every witness. He said that Mr. Goodnoe had already testified to the number of houses proposed in July of 2005. He asked Mr. West if he had seen the same or a similar plan. Mr. West agreed that he had.

Mr. Beckert said that Ms. Stuckley has been asserting an agreement, but has not produced an agreement.

In response to Ms. Stuckley’s question, Mr. West said that he had not attended “Save Historic Dolington” meetings with Toll Brothers.

In response to Ms. Johnson’s questions, Mr. West said that the Board of Supervisors requested Mr. Rice to draft the Federal Cemetery Overlay Ordinance. Mr. Gunser had expressed his perception of a negative impact on his farm. He met with Mr. Gunser at his home in January 2006, but not specifically to discuss the FCO, nor did he discuss housing on the White tract, or a land swap.

In response to Mr. Rice’s questions, Mr. West said that his e-mail, entered as Exhibit A-13, expressed his concerns about a stipulation and settlement agreement involving litigation on the Melsky property; the agreement was never executed. In the fall of 2005 he saw plans for housing on the White and Melsky tracts in conjunction with the cemetery during executive sessions of the Board of Supervisors. Messrs. Rattigan and Kulig ran for supervisor in the 2005 election. They were briefed on discussions about the cemetery. There were informal meetings in October and December of 2005 to update them on Melsky, the stipulation and settlement, appointments to Township boards and commissions, the cemetery and the possibility of housing density transfer. He had asked Mr. Rice to draft a press release about the cemetery. They discussed possibly including the number of houses in the press release. It was thought that the VA would announce the selection of Dolington on November 10, 2005, however Congressman Gerlach began to lobby for a location in his district at Pennhurst. The Gunser property was included in the FCO because there was a possibility of a swap with a 4-acre portion of the White property to create a better buffer. The Commonwealth would not allow the swap. He again said that Mr. Rice prepared the application and amendment, as is reflected in the minutes of the meetings.

In response to Mr. Hunt’s questions on re-direct, Mr. West said that, referring to Exhibit A-13, there is no piece of land in the stipulation and settlement that is not in the FCO; 94.25 acres of Melsky would be sold to Toll Brothers and 40 acres would be retained by the School District. He believed that the $7,000,000 price was the same in both. The stipulation and settlement contemplated development on the Dolington tract.

In response to Ms. Stuckley’s questions, Mr. West said that when the cemetery was discussed in executive session in 2005, Messrs. Rattigan and Kulig were not in attendance. There were informal briefings held with them. Referring to Exhibits C-12 and C-13, Mr. West said that he was aware that the land swap was not legal at the time that the FCO was approved.

In response to Mr. Wall’s question, Mr. West said that only two sitting supervisors were in attendance at briefings with Messrs. Rattigan and Kulig in 2005.

Mr. Wall and Mr. Auchinleck discussed Ms. Johnson’s request to re-call Mr. Kulig, and denied the request. Mr. Wall noted that two of the witnesses expected in the applicant’s case had not appeared this evening. He asked what other witnesses are expected.

In response to Ms. Johnson’s statement that she wanted to examine Mr. Gunser, Messrs. Rice and Beckert objected. Both noted that Mr. Gunser had abstained from voting on the Amendment, and any information he could provide had already been covered by other witnesses and by stipulation.

Ms. Johnson said that Mr. Gunser did not receive a notice about the Ordinance. She wanted to question him about the notice and about the environmental impact on his farm.

Mr. Rice objected to questioning Mr. Gunser on environmental impact, as that is not an issue of this appeal. As to whether Mr. Gunser received notification, Mr. Rice agreed to provide an affidavit. Mr. Hunt and Ms. Johnson would be informed of the time Mr. Gunser’s statement would be taken and they could be present.

Mr. Auchinleck said that he would not subpoena Mr. Gunser if an affidavit is produced.

Mr. Hunt said that he wants to examine Daniel Rattigan because Mr. Rattigan had made a motion to discontinue Upper Makefield’s discussions with Mr. Holt in advance of the passage of the FCO. Mr. Holt had been proposing alternatives to the cemetery overlay. He would also have an expert witness.

Ms. Johnson said that she wanted to call Maureen Wheatley of the Bucks County Planning Commission to question her on non-compliance with the Comprehensive Plan.

Mr. Auchinleck said that he would not subpoena Mr. Rattigan or Ms. Wheatley. He asked Mr. Rice to produce a certified copy of the Bucks County Planning Commission review of the adopted ordinance. Mr. Rattigan’s motion is in the minutes already accepted as Exhibit C-15.

Mr. Beckert indicated that he would call the Township Planner as an expert witness if necessary. Mr. Rice said that he has three fact witnesses. Mr. Murphy has no witnesses.

Mr. Wall said that he would like to continue this hearing to the regular meeting of June 7, 2007 and would circulate dates for a special meeting in June. He asked Mr. Hunt to notify counsel of the expert witness prior to the next regular meeting.

Mr. Lenihan moved to continue the application of Leo Holt to the regular meeting of June 7, 2007. Mrs. Laughlin seconded and the motion passed unanimously.

Mr. Katz moved to adjourn at 10:00 PM. Mr. Wall seconded and the motion passed unanimously.


Respectfully Submitted:


Mary Donaldson, Recording Secretary