John Mack - Newtown Supervisor
Ordinances Category

What's Next for Ordinance Amendment to Allow Wawa on Newtown Bypass?... It's Complicated!

Recall from a previous post that on October 16, 2018, the Newtown Planning Commission sent back to the Board of Supervisors (BOS Definition) for revision the proposed OR zone ordinance Text Amendment Definition designed to allow a “modern, motor vehicle fueling center consisting of a convenience store with accessory motor vehicle fuel sales” (e.g., Wawa) on the Bypass (read "The Newtown Township Planning Commission Stymies Path Forward for Wawa - For Now").

Several residents wondered what the next steps are in the process and when will they be able to see the amended ordinance. I wondered as well and asked Dave Sander, the Township Solicitor Definition, to outline the steps at the October 24, 2018, BOS meeting. The short answer was "it's complicated."

The following video clip from the October 24, 2018, BOS meeting provides the definitive and a more detailed answer, which may or may not clarify things.

I jokingly suggested we needed a flow chart to visualize the steps. Of course, I went ahead and created my own flow chart! There may be some steps that I left out, such as the participation by the Wrightstown and Upper Makefiled Planning Commissions. We are currently (October 30, 2018) at step #3. As suggested by BOS members, the whole process can take many months, even years! 

Blue represents the stage when the public can finally get a glimpse of this amendment. 
Red represents the stage where there will be a public hearing for residents to
comment on the amendment before a final vote is taken. As of the beginning of
November, 2018, we are at stage 3 waiting for changes, input from the attorneys.

Posted on 29 Oct 2018, 13:33 - Category: Ordinances

The Newtown Township Planning Commission Stymies Path Forward for Wawa - For Now

At its October 16, 2018, public meeting, Newtown Planning Commission members ripped apart the proposed Ordinance Definition amendment (a so-called “Text Amendment Definition”) to the Newtown Area Joint Municipal Zoning Ordinance (JMZO Definition) that is designed to allow a “modern, motor vehicle fueling center consisting of a convenience store with accessory motor vehicle fuel sales” on the Bypass. The ordinance was drafted by developers and their legal counsel and modified by Newtown Township officials specifically for a Wawa Super store, a Sketch Plan Definition for which was first presented to the Board of Supervisors (BOS Definition) in May, 2018 (read “Developer and Attorney Present Their Case for a WaWa Superstore on the Newtown Bypass”).

Wawa Sketch Plan

The following is a summary of the questions and comments made by Planning Commission members regarding this proposed ordinance, which would amend the OR District Definition zoning regulations to allow for this Conditional Use Definition, which otherwise does not allow such use. The Planning Commission review is the first step before the draft ordinance is presented to the Jointure Definition for approval by all three members (Newtown, Wrightstown, and Upper Makefield). Newtown is the only municipality in the Jointure that includes an OR District. Consequently, as pointed out by the Wawa representatives, if Newtown wants to change the ordinance that only applies to it, then the other Jointure members are not likely to oppose it (see videos here: “Updated Wawa Plan Presented to Newtown Planning Commission”).

For background, recall that Wawa representatives presented a sketch plan for a Super Wawa – convenience store plus gas station – on the southeast corner of Lower Silverlake Road and the Newtown Bypass. “This site is never going to be a corporate headquarters or office building,” claimed land use and zoning law attorney John VanLuvanne in remarks to the BOS (read “Developer and Attorney Present Their Case for a WaWa Superstore on the Newtown Bypass”). To remedy this supposed defect, Mr. VanLuvanne volunteered to draft an amendment to the JMZO. The BOS agreed to accept the draft and the result was the edited document before the Planning Commission.

Julie Bonds, the attorney representing the applicants, summarized the major sections of the document:

  • Section 1 amends the OR District to allow a motor vehicle fueling center use E-25 by Conditional Use. Section 2 sets forth the dimensional criteria applicable to the motor vehicle fueling center.
  • Section 2 specifies the dimensional requirements such as minimum lot area, minimum number of feet from any roadway, etc.
  • Section 3 amends the use regulation with a definition of the E-25 motor Vehicle Fueling Center. It then lists the specific criteria that this use must comply with. Provisions deal with location, access, parking, lighting, signage, sidewalk, canopies, buffers, and loading zones.
Is There a Need?

Commission Chair, Alan Fidler began with the “whereas’s” that summarize the reasons for proposing this amendment and he focused on #4, which he quoted as saying, in part, “Newtown Township has acknowledged,” the need for such a use. He said this “gives an official assessment that there is a need present. I don’t know that there is a general consensus from the Planning Commission that this need exists. To use a blanket statement that everyone has recognized this ‘need’ can bias the public and I don’t want the Board of Supervisors or Planning Commission to be labeled with agreeing that this is an acknowledged use.”

Commission member Peggy Driscoll suggested that this ordinance should be discussed at a televised Supervisors meeting. The Wawa attorney responded that such a use has been discussed at Joint Zoning Council (JZC Definition) public meetings as can be attested to by the JZC tracking sheet (see figure below).

The agendas of these meetings are not well advertised beforehand and, consequently, no one from the public attended. In addition, the minutes from those meetings, which can be found here, are very sparse and do not get into the details about what was said at those meetings. The October 16, 2018, PC meeting is the first time this proposed new use has truly been put before the public for comment. It is expected that the minutes of this meeting will offer more details. In the meantime, the following are my “unofficial” minutes of the meeting based on an audio recording.

Why Is This Being Put Forward?

At one point early on, Ms. Driscoll asked “Where did this come from?” In answer to that question as well as why this ordinance is being proposed, Mr. Fidler noted that the Township has “made itself available to corporations and businesses that are seeking to come to Newtown Township to set up meetings with staff and administrative officials to discuss what sites, what uses, what types of businesses is the Township looking for. The Township has always been very receptive to bringing businesses into the community that bring a degree of employment opportunities, and viability to the community. It’s not done clandestinely because at some point in time the applicant has to decide whether they move forward and submit a sketch plan or they go away. Apparently Wawa felt that the desirability of coming to Newtown weighed them to believe that working with the Town to get a zoning relief for a new use was to the benefit of the township and probably to a greater benefit to Wawa. This is not anything out of the norm,” said Mr. Fidler. “That being said, this remains a very controversial and sensitive issue,” he added.

Mr. Fidler also noted that the Township followed the same procedure when Lockheed Martin way back in the nineties approached the town to come in with their development. Of course, Lockheed Martin generated significantly more income for Newtown than Wawa would ever be able to do. For example, when Lockheed left with all it’s high-skilled, high-paid workers, Newtown lost more that $700,000 in annual Earned Income Tax (EIT Definition) revenue. Wawa, with a maximum number of 20 low hourly-wage workers, would generate at most about $2-4,000 in EIT per year.

What About Setbacks?

Mr. Fidler’s opinion was that the gas pump canopy should be 100 feet back from the property line, whereas the draft ordinance permits only 50 feet. “My concern is, if you have to have this, I want the insulation from the Bypass that does not throw this in the face of the residents and the travelers on the Bypass. Wawa’s perspective is completely different,” Mr. Fidler admitted.  “They want visibility.” A representative of the developer noted that there was a large right-of-way along the Bypass so that “essentially” the canopy would be more than 100 feet from the highway.

Speaking personally as a long-time resident, Mr. Fidler said he likes the “pristine vistas of the Bypass and if you have to come, respect that! Move your stuff back!” Of course, others don’t feel the vistas are all that “pristine.” 

“Shall, Can, or May”

Aside from the limited financial value for the Township’s revenue stream, Mr. Fidler questioned the wording in Section 3 regarding uses and noted that some uses “may” be included whereas other “shall” be included. He focused particularly on “charging stations” that was included in the “may” category of use. “The wave of the future, in my opinion,” said Mr. Fidler, “is energy efficient transportation. Royal Farms puts charging stations in their facilities and I don’t know why the township would want to give you the option [to put a charging station in or not to do so].” The point being, if Wawa can opt out of providing services like electric charging stations, ATM machines, and exterior pumps for the inflation of tires, then the value to residents is less than what it could be if these were required services.

A point was made that the draft ordinance, as written, would allow any other convenience store with accessory motor vehicle fuel sales to build on the site should Wawa refuse the conditions required by Newtown. That could open the door for Sheetz or Royal Farms, for example. Residents may have a lot less to like about these stores than a Wawa. Additionally, the ordinance sets the minimum lot size as 4 acres instead of 5 that was originally proposed. In light of that, Mr. Fidler asked for an inventory of any other plots of land greater than 4 acres within the OR District that this new ordinance could accommodate.

Some other bones of contention included:

  • A Sidewalk to Nowhere serves no purpose! A sidewalk is not warranted unless it is connected to something. It does not connect to trails and would require a crosswalk across the Bypass, something that is considered impossible to do safely;

  • Conducting Business on a 24-hour Basis. Fidler said this puts employees at risk of robberies in the early morning hours. “I really question whether this community would sustain a 24/7 economical operation for a Wawa,” said Mr. Fidler. It was also suggested that a 24/7 operation may be OK for the location being considered by Wawa but not for other complying parcels that may be closer to residential areas.

  • No vehicle on site for more than 24 hours. The Commission asked who would be responsible for enforcing that? Would it be Newtown Police? Truckers could be pull in at 11 PM and leave before 9 AM the next day, allowing them to catch a few hours of sleep without violating this restriction.

  • Lighting issues. The text calls for lighting the “generally” conforms to accepted industry standards. Mr. Fidler suggested that “either you conform or you don’t.” The Town Planner, Michele Fountain, said specific standards must be included as to light height, brightness, etc.

  • Grading issues. Mr. Fidler noted that the Wawa sketch plan presented to the PC at a previous meeting put the grade “right at the Bypass.” The existing steep ten foot berm at that location is “going to disappear,” said Fidler. “To me, some of the beauty of the existing site is the elevation that exists.” Removing that increases the visibility of the fueling station and building contended Fidler. The engineer representing the Wawa developer disagreed and contended that a higher elevation would increase the visibility!

  • Sign Regulations. Mr. Fidler read the description of an allowed free standing sign of 65 square feet, maximum height of 15 feet: “Changeable text or LED, provided not more than one change every 24 hours and limited to the advertisement of fuel prices.” According to Fidler, the Township “has been very hesitant to permit LED lighting.” Fuel stations, such as Rick Steele’s on Newtown-Yardley Road, are required to have signs that must be changed manually. The Township, said Fidler, “does not want to see the proliferation of LED lighting.” Rick Steele’s, a business that has sustained our community for many years, was denied a variance for such lighting in the past. The applicant argued LED lighting was “esthetically more pleasing.”

Mr. Fidler did not buy the argument made by the attorney representing the Wawa developer that as businesses evolve over time so must ordinances evolve to meet the needs of business. “In this particular case,” noted Fidler, “this is an evolution that benefits one specific property. It doesn’t benefit any one else. That’s where I question the fairness of this particular approach.”

Play By the Rules

In closing, Mr. Fidler seemed to express the consensus of the majority of Commission members when he said “Play by the rules, but if you want to change the rules, change them for everybody.” The Commission decided that the current draft was not ready for the Commission to make a former recommendation to the BOS. It will go back to the Township officials to revise the draft and then be brought before the Commission at a future date.

Comments from Attendees

The following is an edited audio recording of a selection of comments made by residents at the. While these are not all the comments made, it should be noted that EVERY comment was against the ordinance change.

Posted on 19 Oct 2018, 01:18 - Category: Ordinances

Board of Supervisors Decimates Noise Ordinance

In a 4 to 1 vote at the Sept 26, 2018, public meeting, the Board of Supervisors (BOS) approved an Ordinance Definition to remove from the Code of Ordinances of Newtown Township “certain provisions related to excessive and unnecessary noise and other nuisances.” Find the ordinance here.

For specific changes, read "Newtown Township to Consider Amending Noise Ordinance."

I voted "nay" primarily because I did not buy the argument that the ordinance should be gutted just because it was "unenforceable"; i.e., it is almost impossible to catch someone or something in the act of making a noise nuisance.

IMHO, that argument could be used to delete many laws from the books.

In fact, at the same meeting, the BOS voted to pass an ordinance forbidding the firing of a gun on town property such as Veterans park. It's a good idea, but if someone fires a gun in a public park - say squirrel hunting - does a cop have to be there to actually see that person fire the gun to issue a citation?

The reason offered for why the law was unenforceable was the notion that what's a nuisance to one person may not be a nuisance to another person - i.e., the original ordinance is too "subjective" and "arbitrary."

So, OK, firing a gun is not subjective - either it was fired or it was not. But let's examine the notion of "subjectivity" further.

At the meeting last night, several residents complained about a dog kennel that was a "nuisance" because of barking dogs. If only one person complained, I could see how this would be a "he said, she said" subjective situation or perhaps the person making the complaint just likes to complain and waste the time of cops. But if multiple people make the same complaint - as was the case last night - then I think the issue is no longer "subjective" and deserves some investigation by the police to enforce the noise ordinance.

Now that that option is gone, residents have no recourse but to take legal action themselves. That does not make for good neighbors.

It would be best, of course, if people could talk to each other and solve the problem amicably without bringing in the authorities.

I also think that although the police often - but not always - cannot tell who is being a nuisance and who is not, they are not over burdened by noise complaints. Only 76 noise complaint calls were made in all of 2017. Furthermore, when police go out on calls like this, it is an opportunity for them to interact with residents even if it is just to listen to both sides without handing out a citation. I know I would think twice about playing my music too loud if a police officer came to my door and said a complaint was made by a neighbor.

UPDATE (10/8/2018): Here's how Micah Lewis, the interim Township Manager, explained what was left in the Ordinance to a resident who wondered how it impacted noise at private events such as the Green Parrot Irish Festival: "As you are aware, Newtown Township recently amended its Noise Ordinance. The intent of the modifications to the Ordinance were to remove subjective/unenforceable provisions that were difficult to prove that a violation had occurred. The modifications to the Ordinance do not impact the sound attenuation level requirements (decibel levels) outlined in the current ordinance, which are measurable and supportive when a violation does occur. The modifications to the Ordinance do not impact PA State Law as the Liquor Control Laws stand for themselves and are a State provision."
UPDATE (10/13/2018): It seems the NT police are still making calls responding to noise complaints. According to the summary of calls made by the department bewteen October 5, 2018 and October 11, 2018, on October 7, 2018, "Police were dispatched to a Delaware Court residence around 2:45 am for the report of a loud party. Upon arrival, police made contact with three individuals engaged in underage drinking. The individuals, a 20 year old female and two 20 year old males, were issued citations." Although it appears the call was made regarding a loud party, it was classified as "Underage Drinking" because citations were issued for that offense, not for noise. This just demonstrates why, IMHO, it is important to have a noise ordinance and for police to respond to noise complaints. It could be that this particular call saved the life of one of those individuals who may have otherwise left the party intoxicated and crashed his or her car. Hey, it's plausible.

BTW, read the following article published before the BOS meeting in the Bucks County Courier Times for my personal experience with a noise complaint made to Newtown police.

Posted on 27 Sep 2018, 01:13 - Category: Ordinances

Newtown Township to Consider Amending Noise Ordinance

At the September 26, 2018, public meeting, the Newtown Township Board of Supervisors (BOS) will consider and vote on an ordinance (here) to remove from the Code of Ordinances of Newtown Township “certain provisions related to excessive and unnecessary noise and other nuisances.”

Specifically, the changes that are suggested include

Delete entire Section 10-501.1.B., which states:

“Excessive Noise Prohibited. In addition to the above, it is hereby declared to be a nuisance and shall be unlawful for any person, firm or business entity to make, cause, suffer or permit to be made or caused upon a property owned, occupied or controlled by him or it or upon any public land, street, alley or thoroughfare in the Township of Newtown any excessive noises or sounds, by means of vehicles, machinery, equipment (including sound amplification equipment and musical instruments) or by any other means or methods which are physically annoying to the comfort of any reasonable person or which are so harsh, prolonged, unnatural or unusual in their use, time and place, as to occasion physical discomfort, or which are otherwise injurious to the lives, health, peace and comfort of the inhabitants of Newtown Township or any number of residents thereof” (see here).

Amend Section 10-501.1.C. to delete the following “Special Prohibitions”:

  • Possessing, harboring or keeping an animal or bird which makes any noise continuously and/or persistently for a period of 15 minutes or more, in such a manner as to disturb or annoy any person at any time of the day or night, regardless of whether the animal is situated upon private property.
  • Operating, playing or permitting the operation or playing of any radio, television, audio equipment, sound amplifier, musical instrument or other such device in such a manner as to cause annoyance to persons in the vicinity.
  • Repairing, rebuilding, modifying, testing or operating a motor vehicle, motorcycle, recreational vehicle or powered model vehicle in such a manner as to cause annoyance to persons across a real property boundary from the noise source.
  • Operating or permitting the operation of any mechanically powered saw, drill, sander, grinder, lawn or garden tool or similar device used out of doors between the hours of 10:00 p.m. and 7:00 a.m. in such a manner as to cause annoyance to persons across a real property boundary from the noise source.

The prohibition of “Performing any construction operation or operating or permitting the operation of any tools or equipment used in construction, drilling, blasting, demolition, excavating, extraction of stone or other such activities between the hours of 8:00 p.m. and 6:00 a.m. or at any time on Sunday” will remain. Note: This provision does not apply to domestic power tools.

Delete entirely Section 10-503, which states:

“Any person or business entity engaging in any use or activity upon property which by reason of odors, fumes, vapors, vibration or dust unreasonably interferes with the use, comfort and enjoyment of another's property, or endangers the health or safety of the occupants of another's property.”

Why is this being considered?

According to the minutes of the June 18, 2018, BOS Work Session, Newtown Zoning officer Martin Vogt said “enforcing, a sound or a smell as a nuisance is arbitrary.” Section 10-501(B) is difficult to enforce. An example cited that “the Township had responded to a complaint regarding excessive noise, [which was claimed to be] ‘physically annoying’ [due to] the hum of a neighbor’s air conditioning unit.” It was suggested that “Complainants try to draw the Township in to make their case for them to reference these things that can’t be measured.”

Also, when there is an annoyance of animals (dog barking, bird chirping) it is difficult to catch them in the act. A barking dog would be a private nuisance since it affects a few people. A public nuisance would be, for example, constructing something over a major intersection that would affect a larger amount of people. The proposed amendment would not affect the enforcement of such “public nuisances.”

Is Enforcing the Current Ordinance a Burden?

According to the August 2018 Police Report, in 2017, there were 76 “Noise Complaints” in Newtown Township and Wrightstown. Compared to other “nuisance” calls such more than 22 false burglar alarms and more than 5 false fire alarms per week, responding to 1.5 noise complaints per week does not seem like a burden. 

It remains to be seen if the passing of this ordinance would have any impact on monitoring the noise level at public events such as the annual Irish Festival hosted by the Green Parrot pub. Loud music from this event has been an ongoing issue with local residents. For more on that read “The Newtown Township Hatfields Versus the Borough McCoys!”; and view this video: “Green Parrot Irish Festival 2018 Pro and Con Debate”.

Whether or not “noise” from this event is a “public nuisance” may be determined by section 10-501.1.A of the Code of Ordinances of Newtown Township. This section – which the proposed ordinance does NOT eliminate – specifies the maximum allowable continuous sound levels (measured in decibels) for various zoning districts. For example, in the TC (Town Commercial) zone, in which the Green Parrot is located, the maximum sound level between 7 a.m. and 7 p.m. is 60 dBA and between 7 p.m. and 7 a.m. it is 50 dBA. These levels can be “measured” by experts at the scene, which was the case at the 2018 Irish Festival event.

Posted on 19 Sep 2018, 12:08 - Category: Ordinances

Is a DAS Antenna Coming to a Pole Near You?

At the August 2, 2018, Newtown, Upper Makefield, and Wrightstown Zoning Council (JZC) meeting, solicitor Vicki Kushto reviewed the current court rulings regarding small wireless cells [aka Distributed Antenna Systems or DAS]. 

At the present time, DAS providers are considered Public Utilities and not subject to local zoning requirements. This means that DAS services could be installed in any public right of way (ROW) for which the Pennsylvania Utilities Commission (PUC) provides approval. 

There is new legislation (HB2564) being introduced by Rep. Frank Farry that would severely limit local municipalities ability to regulate this use or to seek reimbursement for the use of its public ROWs.

The JZC opposes this legislation, which is being driven by DAS providers to install 5G services (see article embedded below).

The Council was concerned that HB2564 legislation could result in DAS poles/structures being installed in developments, which are now served by underground utilities.

According to a memo (here) written by Farry to all PA House members, the proposed legislation is needed “because decisions are made on a municipal level, wireless providers are faced with varying fees and different procedures that may slow and, in some cases, deter their ability to deploy this new and modern infrastructure. With an array of municipal ordinances governing wireless infrastructure, compliance could be burdensome, time consuming, and costly. This results in less robust services for your constituents.”

Upper Makefield Supervisor, Tom Cino suggested the Jointure work together to oppose this legislation. JZC Chair, Chester Pogonowski was in agreement but felt it might be more impactful if the Council raises this issue with the Bucks County Association of Township Officials (BCATO) Boad of Directors, which is already working on this issue and has previously met with Representative Farry to express concern.

Posted on 27 Aug 2018, 01:58 - Category: Ordinances

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