The Newtown Township Zoning Hearing Board met on Thursday, February 19, 2009 in the Newtown Township Building. In attendance and voting were: John Lenihan, Chairman, 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. Lenihan called the meeting to order at 7:30 PM.

The Pledge of Allegiance

Continued Application of OHB Homes, Inc.

Attorney Ed Murphy, representing the applicant, was in attendance, as were John Koopman, representing Newtown Township’s Board of Supervisors, and parties in opposition James McCrane and Tony Lauro.

Mr. Auchinleck reminded the Board that this hearing had been opened and testimony has already been given by Timothy Woodrow at the January 8, 2009 regular meeting. He has not yet been cross-examined by any of the parties. The application has also been scheduled for the regular meeting of March 5, 2009.

Mr. Koopman said that, as he has not yet heard from Mr. Murphy’s other witnesses, he will need time to prepare some cross-examination and to prepare his own witnesses. He asked that, after this evening’s proceedings, the application be further continued to April 2, 2009’s regular meeting.

Mr. Murphy had no objection.

Mr. Auchinleck reminded Mr. Woodrow that he is still under oath.

Mr. Murphy entered as Exhibit A-15, a plan for proposed development of the Goodnoe tract as B-14 housing dated December 15, 2008. He noted that the plan is similar to Exhibit A-9 except that some lines have been added to mark locations that might still be available for agricultural uses, a total of 12.076 acres.

Mr. Murphy entered as Exhibit A-16 an existing residential uses plan. This plan is similar to Exhibit A-11, except that lines have been added to show areas that could be used for agriculture as the property currently exists. Manicured lawns, driveways, etc., have been excluded from the areas, leaving a total of 9.39 acres.

Mr. Murphy entered as Exhibit A-17 an opinion of probable costs for development of the property for B-12 use as shown in the compliant plan entered as Exhibit A-13.

Mr. Woodrow said that Exhibit A-17 showed costs associated with development of the property to meet Township SALDO requirements. The total amount of $887,431.25 is an estimate based on his experience and does not include land acquisition.

Mr. Katz asked whether the proposed areas of open space would belong to a homeowners’ association.

Mr. Murphy said that the open space would be offered to the Township but if not accepted would belong to a homeowners’ association.

Mr. Katz asked whether estimates of costs of improvements had been done for other configurations, such as seen in A-15.

Mr. Woodrow said that Exhibit A-17 was prepared to give the Zoning Hearing Board an understanding of the costs associated with development for a by right plan. He guessed that infrastructure for the plan depicted in A-15 would require some similar features but would have more road and larger stormwater management facilities and would cost about 75% more.

Mr. Murphy offered to prepare an estimate for development of the property as shown in A-15, which would be entered at the next meeting.

Mr. Woodrow said that some areas of the property are currently or have recently been used for farming.

Mr. Koopman asked whether Mr. Woodrow is conceding that the property is currently being used for farming.

Mr. Woodrow said that he is not sure how recently the property has been farmed. The aerial photograph shows farm fields that appear to be fallow. These are areas that could be available for farms; some are currently lawns. There is also a small area of non-agricultural soils that has been used for hay farming.

In response to questions from Mr. Koopman, Mr. Woodrow said that the improvements outlined in Exhibit A-17 are for development of the property as seen in Exhibit A-13 under the new ordinance. The conditional use application for the currently proposed development was filed prior to adoption of the new ordinance. The current plan would be more costly to develop. In Exhibit A-15, showing post-development areas available for farming, the circle of land not proposed for farming in the middle of a farm area is currently heavy brush and trees. It is excluded from the calculations.

Mr. Koopman reviewed Exhibits A-5 and A-6, asking Mr. Woodrow to locate photographs and explain their content, pointing out the existing single family homes of the Goodnoe, Kurnurko and Rambo families, including garages, sheds, spring houses, pool houses, etc. He noted that the structures depicted in photographs #44, 49 and 50 will be removed. He does not know whether any of the structures depicted have historic significance.

In response to Mr. Koopman’s questions, Mr. Woodrow said that Exhibit A-2 is the plan shown with OHB Homes’ original Zoning Hearing Board application. It showed single family homes under the ordinance that the current plan is based on. The original Exhibit A-2 plan showed natural resource protections under JMZO section 902 as 45.5 acres. Under the current plan natural resource protection is 37.85 acres. The difference in the numbers is because of different interpretation of the Ordinance by the Township. The current plan has been developed working with Township staff; Section 902.B.2 allows for overlap of natural resources.

In response to Mr. Koopman’s questions, Mr. Woodrow said that the four lots used in the estimate in Exhibit A-17 were part of the subdivision plan created in 1982 or 1983. The two Goodnoe lots were merged with development and improvements. There are already houses and improvements on each of the properties. These have been included in calculating the net buildable area. Mr. Woodrow was the engineer on the original application. The Township was not party to that application and he did not recall whether any residents had objected to the application. He did not know whether the property owners had been paid for the flowage easement. Agricultural soils are referenced in Section 903 of the Ordinance; they have been mapped by the USDA, and include the rights of way, flowage easement and portions of the property that have been built on. The total acreage is 45.8 acres. Exhibit A-8 shows agricultural soils, but does not include agricultural soils in the right of way. The title line is in the middle of Eagle Road. That would be included in the 45.8 acres. The agricultural soils ordinance does not only protect current farms. Prime wetlands are on the Kurnurko property. There are also woodlands, a portion of which can be developed. Exhibit A-9 does not show agricultural soils within the flowage easement. A southwest corner of the property is identified as a possible recreation area. The decision to develop the area for active recreation would be part of land development.

Mr. Koopman asked Mr. Woodrow to review the steep slopes.

Mr. Woodrow said that the total area of steep slopes is 13,940 square feet. The slopes in the stream and flowage area are not to be disturbed. Only slopes along Eagle Road and the Goodnoe driveway, all of which are manmade, will be disturbed. Section 903.B.4 does not distinguish between naturally occurring and manmade slopes.

Mr. Koopman referred Mr. Woodrow to the “Notes of Testimony” from the January 8, 2009 meeting, pointing to a reference on page 57, discussing Exhibit A-9. There is reference to 10.97 acres as 3.9%. He asked if this was an accurate reference.

Mr. Woodrow said that the correct amount is 23.9% and assumed it was a typographical error.

In response to Mr. Murphy’s questions, Mr. Woodrow said that Exhibit A-17 references costs for development of a B-12, by right plan as depicted in Exhibit A-13. The costs would be similar for a plan as depicted in Exhibit A-14, an 8 lot twin home development. He will prepare an estimate for a development as seen in Exhibit A-9, a 40 lot twin home development for the next meting. Mr. Woodrow said that the subdivision plan entered as Exhibit A-7 does not have any restriction against further subdivision. Referring to Exhibit A-9, he said that the Ordinance requires identification of land for active recreation but does not require the developer to provide active recreation. In identifying agricultural soils, the Ordinance does not distinguish between improved and unimproved land.

Mr. Koopman questioned whether active recreation land can be just a fallow field.

Mr. Murphy entered as Exhibit A-18 a letter dated February 4, 2009, confirming the Newtown Township Park and Recreation Board’s decision to recommend that the Board of Supervisors accept a fee in lieu of open space.

Mr. Auchinleck asked what happens to open space if the Township does accept a fee in lieu.

Mr. Murphy said that the area would be maintained as open space by a homeowners’ association. The fee is in lieu of providing active recreation or dedication of the land itself to the Township.

Mr. Murphy’s witness, Thomas McGowan was sworn in. Mr. McGowan said that he lives at 2186 Twining Road. He has been a self-employed farmer for four years. He holds a Bachelor of Science degree from Delaware Valley College in agronomy. With his uncle William Sterling he farms 125 acres in Newtown, 200 in Lower Makefield, and 100 in Upper Makefield. He grows corn, hay, soy beans and other vegetables. He is familiar with the Goodnoe property as he has worked with Mark Woodward, who has farmed that property. He has recently visited the Goodnoe site and observed that there are 63 acres, of which approximately 8 acres have been farmed recently. He identified the areas that have recently been farmed on Exhibit A-4.

Mr. Murphy entered as Exhibit A-19 an aerial photograph of the area surrounding the Goodnoe property.

Referring to Exhibit A-19, Mr. McGowan pointed out areas farmed by Mr. Woodward, noting that the property is contiguous to other properties Mr. Woodward farms. This land has been used for “mulch hay”, a very poor quality of hay. It is mowed once or twice a year, depending on rainfall. The land is “shot.” It is his understanding that Mr. Woodward does not pay rent for the use of this land. Mr. McGowan would not be interested in farming this property because the areas suitable are not contiguous to one another and there is not easy access for large farming equipment. The property would not be suitable for most crops because it would have to be fenced to keep animals out. He also noted the traffic on the roads making it difficult to travel to these small fields with heavy farm equipment.

In response to Mr. Koopman’s questions, Mr. McGowan said that the property might at one time have been used to grow corn, but now, with the land broken into smaller fields, it is no longer economically feasible. To Mr. Murphy’s question, Mr. McGowan said that, to his knowledge, corn has not been grown on the property in about 8 years.

Mr. Katz questioned what Mr. McGowan meant by the land being “shot.”

Mr. McGowan explained that the quality had dropped. There had been no reseeding; weeds have taken over. No spraying has been done in many years. To rehabilitate the property could be done but it would not be economically feasible. There is also concern about extensive damage to any crops by deer.

Mr. Murphy called Kenneth Amey as a witness. Mr. Amey was sworn in.

Mr. Murphy entered as Exhibit A-20, Mr. Amey’s Curriculum Vitae and offered him as an expert on land planning.

In response to Mr. Koopman’s questions, Mr. Amey said that he has not worked in Newtown in four or five years, his last project having been the Hovnanian plan. He is familiar with the Goodnoe tract, having recently inspected it and he has read the testimony given in this hearing. He lived for a number of years in the old farmhouse in Tyler Walk.

Mr. Amey said that he and a colleague had prepared Exhibit A-19 using an aerial photograph from the DVRPC. He reviewed the outlined parcels on the photograph, noting the CM Conservation Management Zoning District. He said that the area has been developed as a suburban residential corridor. There is one small tree farm but no other agricultural activity along Eagle Road. He said that while the Goodnoe property has good access to Eagle Road it is constrained by easements. He is familiar with the JMZO and in particular with Section 305-3.

Mr. Murphy Entered as Exhibit A-21 the JMZO Definition of CM Conservation Management.

Reading from Exhibit A-21, Mr. Amey noted that the goals of CM zoning are protection of natural resources and encouragement of agricultural activities. The plan satisfies the intent of the ordinance as well as the letter. It does protect natural resources, including the flowage easement and it meets requirements for preservation of open space. The areas actually being disturbed are within the allowable 25%. It makes sense to cluster homes close to the Eagle Road because locating houses further back would require even more disturbance for installation of roadways. The open areas would be separated even more. Referring to Exhibit A-13, the B-12 by right plan, Mr. Amey pointed out the oddly configured lots. Exhibit A-14 shows a cluster of eight twin homes. This is an even less likely scenario for development.

In response to Mr. Koopman’s questions, Mr. Amey said that the proposal of 8 twin homes in an isolated area would not create the same community that the 40 twin home development would. The 8 twin home plan does not preserve more open space that the 40 twin home plan. He is not sure whether there will be any deed restrictions on the three lots being preserved for the three existing homes.

Mr. Koopman asked about farming activity in the area.

Mr. Amey noted the County preserved farm on Wrights Road but not other active farming. The other small areas do not appear to have been recently farmed.

Mr. McCrane questioned the reason a development of eight twin homes would not be a community in Mr. Amey’s opinion.

Mr. Amey said that financial concerns enter into his assessment. The property would need a homeowners association to maintain roads, stormwater facilities and open space areas. This would be a financially unrealistic. The plan for three or four homes without a homeowners association would also be expensive.

In response to Mr. Koopman’s questions, Mr. Amey said that with twin homes with common walls a homeowners association is desirable even though each home is on a separate lot. There would be a document regarding common expenses such as open space, maintenance of the frontage and other improvements.

Mr. Auchinleck said that with an 8 lot subdivision there would have to be a homeowners association of some kind to maintain the large open spaces and stormwater management facilities. Someone has to own this land.

Mr. Murphy called John Mangano as a witness. Mr. Mangano was sworn in. He said that he lives at 204 St. Andrew’s Place in Newtown and pointed out his home on Exhibit A-15. He has been employed by Toll Brothers residential builders for 21 years and is currently a group president. He oversees location of areas of the country suitable for development. Prior to this position, he has worked for Toll Brothers as a division vice president and a construction manager. He has a degree in architectural engineering from Penn State University. He has many years experience in evaluating costs for residential land development.

Mr. Murphy offered Mr. Mangano as an expert witness. He will be testifying on Exhibit A-17.

After some discussion, Mr. Auchinleck allowed Mr. Mangano as an expert witness.

In response to questions from Mr. Murphy, Mr. Mangano said that he is familiar with this property; Toll Brothers had considered purchasing it. He is familiar with all of the exhibits presented and with the Ordinance. Regarding Exhibit A-13, a B-12 development, Mr. Mangano said that Toll would not be interested in such a project on this parcel because of the expense to develop it.

Mr. Koopman said that while Toll might not be interested in this opportunity, developers of single homes might be.

In response to Mr. Murphy’s further questions, Mr. Mangano said that he has reviewed Exhibit A-17 and agrees with the estimates. He did have some input into its preparation. He said that he would not have been interested in development of an 8 twin home plan as depicted in Exhibit A-14 because of the additional costs for development, for the approval process, engineering, etc, making the costs exceed the value of the homes. It would be hard to market.

Mr. Koopman objected to this testimony as Mr. Mangano is not an appraiser.

Mr. Murphy noted that such evaluation is a part of Mr. Mangano’s job. He referred Mr. Mangano to Exhibits A-14 and A-13 and asked whether this property would be worth developing as depicted.

Mr. Mangano said that the property is worthless for such development.

Mr. Koopman asked whether Toll Brothers builds twin homes in the Newtown area.

Mr. Mangano said that Toll has offered twin homes in Newtown Borough and at the Roberts property in the Township. He agreed with Mr. Koopman that Toll would not be interested in building a development of only two large homes or 8 twins, especially if improvements would cost $900,000. He said that although he is not the source of the numbers in Exhibit A-17, he does agree with them.

In response to Mr. Wall’s question, Mr. Mangano said that as an executive of Toll Brothers, a competitor of the applicant, he is testifying because the principals of Toll and Orleans are friendly. He is not being paid for his testimony.

In response to Mr. McCrane’s question, Mr. Mangano said that while Toll had been interested in the property at one time, the owners chose Orleans. He thought that 63 acres in a desirable area could have yielded a large number of homes. His engineers were familiar with the CM zoning that would have allowed 1 home per acre,clustered or one home per three acres. A detailed review of the soils had not been done. Had Toll purchased the property it might have been on condition of final approval.

In response to Mr. Auchinleck’s questions, Mr. Mangano confirmed that it would not be feasible for a developer to build only two additional lots or 8 twin homes. The original plan as shown in Exhibit A-2 would have been feasible because there are enough homes to market; costs would be spread over enough homes.

Mr. Lenihan moved to continue the application of OHB Homes, Inc. to April 2, 2009. Mr. Katz seconded and the motion passed 5-0.

Mr. Lenihan moved to adjourn at 10:30 PM. Mr. Katz seconded and the motion passed 5-0.


Respectfully Submitted:


Mary Donaldson, Recording Secretary