ZONING HEARING BOARD
MINUTES OF THE MEETING OF FEBRUARY 5, 2009
The Newtown Township Zoning Hearing Board met on Thursday, February 5, 2009 in the Newtown Township Building. In attendance and voting were: David Katz, Vice Chairman, Karen Doorley, Secretary, Mario Lionetti and William Wall, members. Also in attendance were: James J. Auchinleck, Jr., Esq., Solicitor, Richard O’Brien, Codes Officer and Justine Gregor, Stenographer.
Call to Order
Mr. Katz, acting as chairman, called the meeting to order at 7:30 PM.
The Pledge of Allegiance
Approval of Minutes
Mr. Katz moved to accept the minutes of January 8, 2009. Mrs. Doorley seconded and the motion passed 3-0-1, with Mr. Wall abstaining.
The Agenda was reviewed:
Continued Application of OHB Homes, Inc.
Mr. Auchinleck reminded the Board that this meeting had been continued with all parties agreeing to further continue to a special meeting.
Mrs. Doorley moved to continue the application of OHB Homes, Inc. to a special meeting on February 19, 2009. Mr. Wall seconded and the motion passed 4-0.
Application of Lockheed Martin, LCM Properties
Mrs. Doorley read into the record the application of Lockheed Martin, LCM Properties, Inc., owners, requesting a variance to permit construction of a 19,254 square feet high bay P.I.M. chamber/antenna range expansion with a height of 60 feet and a one story 800 sq ft chiller expansion resulting in a 133.54 feet rear yard setback where 150 feet is required and a 60 feet building height where 50 feet is the maximum.
Attorney Don Marshall represented the applicant.
Mr. Katz asked if anyone wished to be party to the application. There was no response.
Ron McLaughlin of Lockheed Martin and Tim Stoudt of Langan Engineering were sworn in.
Mr. Marshall said that Lockheed Martin has a 52.536 acre facility on Campus Drive for G-2 laboratory use. They are seeking two variances for a 35,307 square foot high bay P.I.M. chamber antenna range expansion 60 feet high and a 1-story 800 square foot chiller expansion. A variance is needed for the 60 foot height where only 50 feet is permitted and for a setback of 133.54 feet. A 19,579 square foot office addition will be constructed which had been approved as part of the original plans but never constructed.
Mr. Marshall noted that the setback variance is for the existing chiller. At the time original permits were issued it was thought that the minimum setback was 75 feet. The existing chamber at the site had a variance to be 60 feet high; the height is necessary to test antennae.
Mr. Marshall entered the following exhibits:
Mr. Marshall showed an artist’s rendering of the site with the proposed expansions, noting that the additions are not visible from the Bypass. The proposed office building will include a conference facility for internal meetings, only. Lockheed Martin has recently been awarded a government contract that will involve numerous meetings with authorities.
Mr. Auchinleck asked about properties to the rear of the Lockheed facilities.
Mr. Marshall said that to the rear are Holy Family College, Crossing Community Church, Township owned land and a drainage facility.
Mr. Stoudt confirmed Mr. Marshall’s statements. He said that no further relief will be required.
Mr. McLaughlin, director of operations for Lockheed said that the 60 foot height is needed for testing GPS systems that need a large open area. He noted that the customer for the project frequently brings visitors to the site, for which conference space is needed. There has been some addition to staff, occupying space on Stony Hill Road in Lower Makefield. Over the past year there has been an addition of about 400 people to the staff and growth will continue. There are 1200 employees at this time.
Mr. Marshall noted that much of the parking has been kept in green.
Mr. O’Brien said that the property was posted at January 29, 2009.
Rhea Lichtenstein of Middletown was sworn in. She said that she owns 9.2 acres adjacent to the Lockheed property and she wanted to make sure that the proposed 60 foot addition would not obstruct her view.
Mr. Marshall located Ms. Lichtenstein’s property on the artist’s rendering and assured her that the addition would be next to the existing building, and she would not see it from her home.
Mr. Wall moved to grant a variance to permit construction of a 19,254 square feet high bay P.I.M. chamber/antenna range expansion with a height of 60 feet and a one story 800 sq ft chiller expansion resulting in a 133.54 feet rear yard setback where 150 feet is required and a 650 feet building height where 50 feet is the maximum. Mr. Lionetti seconded and the motion passed 4-0.
Approval of Findings pertaining to decision not to continue hearings after withdrawal of application of Leo G. Holt
Mrs. Doorley read into the record the application of Leo A. Holt, Challenge to the validity of an amendment to JMZO Ordinance #2006-18 (Newtown Ordinance # 2006-0-15). Parcels affected by the ordinance: 47-8-16, 48-8-16-3, 47-8-17, 47-8-34, 47-8-56, 47-8-56-3, 47-8-59, 47-8-64, 47-17-1, 47-17-2, 47-17-3, 37-18-8. The validity of the ordinance is at issue. Approval of Findings pertaining to decision not to continue hearings after withdrawal of application only.
Mr. Auchinleck reminded the Board that in 2006 and 2007 the Board had held hearings on the application of Leo G. Holt. On June 6, 2007 Mr. Holt withdrew his application; the Zoning Hearing Board held no further hearings. Other parties to the application had requested that hearings be continued and file a mandamus action to compel the Board to continue and render a decision on the challenge to the validity of the Federal Cemetery Overlay (FCO) Ordinance. The Court has ordered that the Zoning Hearing Board render findings on its decision to not hold further hearings. Mr. Auchinleck presented his draft of findings for the Board to consider and to vote on adoption. The Board may allow public comment prior to making its decision on adoption of the findings. Such comment would be allowed on whether to continue hearings, not on the validity of the FCO.
Carol Stuckley of Upper Makefield was sworn in. Mrs. Stuckley read a statement in which she noted that 29 individuals and two organizations had been granted party status at the hearings held in 2007. Those seeking party status were told that no written request was required; those seeking party status were to come to the hearings and request party status on the record. Some of those seeking party status were asked a series of questions by the applicant’s attorney or attorneys in opposition to the application. Some of those granted party status participated in all hearings, interrogating witnesses, providing their own witnesses and entering exhibits into evidence. After Attorney Tracy Paul Hunt withdrew his application on behalf of his client Leo G. Holt, Ms. Stuckley said that she and other parties had requested that the hearings be continued and a decision be made. Then chairman William Wall said at that time that there was no longer an application before the Board for consideration.
Ms. Stuckley said that she would like to complete the record and seek a ruling on the validity of the FCO. She said that a memo of law submitted by the Zoning Hearing Board had claimed that the parties had no legal rights to continue the case citing a 1972 case which Ms. Stuckley said is different than the circumstances in this instance, as she and the others had all been recognized as parties to the original application. In memos of law filed by the Board and parties in opposition to the application there was an assertion that each party must have filed his or her own appeal. Ms. Stuckley asserted that the Pennsylvania Municipal Planning Code provides for parties to participate together on one appeal. The aggrieved parties’ argument was not ended with the withdrawal of Mr. Holt’s participation.
Ms. Stuckley noted that the posting of legal notices failed to include tax map parcels numbered 47-18-8, 29-7-4, 47-8-14. The posting failed to include 29-7-4 and 47-8-14. Tax map parcel 37-13-8 though included is not part of the FCO.
Ms. Stuckley urged to Board to continue with the hearing to complete the record. Mr. Holt’s withdrawal does not change the status of the other aggrieved parties.
Christine Gunser was sworn in. She said that she was one of the parties to the application. She asked that the hearings continue.
Pam Fitzpatrick was sworn in. She said that she, her husband Leo and daughter Rachel were all parties to the original application. She asked that the hearings continue. She noted that there had been only one posting of the application on Stoopville Road and it had been blown away by the wind and could not be seen.
James de Falco was sworn in. He said that he was a party to the original application and he asked that the hearings continue as there is a lot of work still to be done.
Robert Gorring was sworn in. He said that he is the former chairman of the Upper Makefield Zoning Hearing Board. During his tenure as chairman the Zoning Hearing Board’s decision against Toll Brothers had been upheld after a seven-year long challenge to the validity of the ordinance. The land in question is also the subject of this application. He said that Toll Brothers is attempting an “end run” around the JMZO. He also noted that the original hearings were not formally discontinued; no vote of the Board had been taken. Only the attorneys, not the Zoning Hearing Board members, said that the hearings were over. He questioned the use of certain “scare tactics’ and rumors that had circulated at the time saying that without the overlay district the veterans cemetery was in jeopardy.
Mr. Gorring said that denial of the parties’ right to continue with the hearings must be publicly discussed and a vote must be taken. The ending of the hearings denies residents of the Jointure their day in court. Toll Brothers is attempting to avoid judicial review. He urged the Board to table this decision for further consideration and to take a vote to rescind the actions already taken.
Amy McLellan was sworn in. She asked that the hearings be continued as this issue is of great concern to many residents.
Guy Polhemus was sworn in. He said that he was a party to the original application. He asked that the hearings continue and noted that he is opposed to high density housing in the cemetery overlay district.
Jane Johnson was sworn in. She said that she was a party to the original application. She said that as an aggrieved party she should have been informed of this evening’s hearing and she did not get anything except the notice of hearing. She asked that the Board continue with the hearings to complete the record.
Tracy Paul Hunt, representing Leo G. Holt, said that he had been counsel to the original applicant. He wants to preserve the record. His client posted a $15,000 application fee. His client subsequently withdrew his application. If this hearing is to continue without the participation of Mr. Holt, the only party to have paid the application fee, he would request an accounting and perhaps ask for a pro rata refund of a portion of the application fee. His client should not bear the entire expense for the 31 other parties. In response to Mr. Katz’s question, Mr. Hunt said that his client would not seek party status, but if this ends in the Court of Common Pleas, depending on the outcome, if his client is impacted, he will reserve that right.
William Gunser was sworn in. He said that he had been a party to the original application and he urged the Board to continue with the hearings.
John Melsky was sworn in. He said that he had been the original property owner and a party to the original application. He asked that the Board continue the hearings.
Le Sheppard was sworn in. He said that as a resident of Wrightstown he is impacted by the FCO because Council Rock School District has changed its agreement for future use of the Howe tract for schools as a result of the sale of the Melsky tract. He urged the Board to continue with the hearings so that all voices can be heard.
Mr. Auchinleck said that the Board might want to consider the public comment given this evening. It would be appropriate to table a decision on the findings to consider all that has been presented. His recommendation was to close the hearings and table the matter that is currently under consideration.
Mr. Wall moved to table the decision to adopt the findings in the application of Leo G. Holt to March 5, 2009. Mrs. Doorley seconded and the motion passed 4-0.
Mr. Katz noted that the Chairman is not in attendance at this hearing, but had been on the Board at the time of the Holt hearings. He said that he thought it was important to have the full Board participate in the decision. He asked whether parties to the original application who are not in attendance this evening would be permitted to give comment at the March 5, 2009 meeting.
Mr. Auchinleck said that it would be permissible to allow others who might attend to speak. He reviewed the decision of the Court to recognize that the Board had stopped holding hearings but had required a finding on the decision. The parties do have a right to request a decision on the original application and they do have the right to appeal the findings.
Mr. Lionetti said that he had served fourteen years on the Zoning Hearing Board and noted that it had been the Board’s practice to stop consideration of an application if the applicant had withdrawn.
Mr. Auchinleck explained that in this particular case the parties were in support of the application and had taken a position similar to that of the applicant. He noted that Mr. Hunt has stated that if the hearings are continued, Mr. Holt had been the appellant. The parties would then be parties appellant equal to Mr. Holt. Mr. Holt had been required to pay a fee; none of the other parties had paid a fee. Mr. Auchinleck discussed with the Board the continuation of this evening’s hearing. By continuing the hearing, they would be continuing the discussion on the decision to adopt findings.
Mr. Katz asked whether continuing this evening’s hearing would allow for the original parties who were opposed to the application to participate.
Mr. Auchinleck said that would be the case.
Mr. Lionetti moved to continue the discussion of adoption of findings in the Application of Leo G. Holt to March 5, 2009. Mr. Wall seconded and the motion passed 4-0.Mr. Lionetti moved to adjourn at 10:25 PM. Mr. Wall seconded and the motion passed 4-0.
Mary Donaldson, Recording Secretary