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”).
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.Read More...
Posted on 19 Oct 2018, 01:18 - Category: Ordinances
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 and below.
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.
What's Still Covered
- No person shall make, continue or cause to be made or continued any noise disturbance between the hours of 11:00 p.m. and 7:00 a.m. the following day when the noise produced is associated with:
- The operation of an instrument, sound amplifier or similar device which reproduces, produces or amplifies sound.
- The loading, unloading, opening, closing or other handling of boxes, crates, containers, building materials, garbage cans or similar objects.
- Operating or permitting the operation of any tools or equipment used in construction, drilling, demolition work or home maintenance.
- The operation of powered model vehicles, motorboats, domestic power tools and other motor-driven apparatus; repairing, rebuilding, modifying or testing any motor-operated vehicle, motorcycle, powered model vehicle, motor-driven apparatus or power tool.
- The operation of an electronic insect device which emits unreasonable noises.
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.
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
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
UPDATE (15 August 2018): At last night's Newtown Borough Council meeting, the proposed ordinance was passed without any changes. It was noted at the meeting that this ordinance would NOT apply to Restore Integrative Wellness Center and Chroniceuticals, LLC, which has already applied to open a medical marijuana dispensary on South Street under zoning rules for a retail pharmacy (see story here).
Newtown Borough recently published a notice of a public hearing on August 14, 2018, the purpose of which is the “receive comment and public testimony regarding the proposed amendments to the Newtown Borough Zoning Ordinance adding the Medical Marijuana Grower/Processor, Medical Marijuana Dispensary uses.”
- A Medical Marijuana Dispensary shall not be operated or maintained on a parcel within 1,000 feet, measured by a straight line in all directions, without regard to intervening structures or objects, from the nearest point on the property line of a parcel containing a public, private or parochial school, daycare center. Nor shall a Medical Marijuana Dispensary be located closer than 1,000 feet from another Medical Marijuana Dispensary or from a Medical Marijuana Grower/Processor.
- A Medical Marijuana Facility shall be limited to hours of operation from8:00 A.M. until 8:00 P.M., seven days a week, by appointment only.
- There shall be no emission of dust, fumes, vapors or odors which can be seen, smelled, or otherwise perceived from beyond the lot line for the property where the Medical Marijuana Dispensary is operating.
- A Medical Marijuana Dispensary shall provide proof of a contract with a private security company, and shall be staffed with/monitored by security personnel twenty-four (24) hours a day and seven (7) days a week.
A similar amendment is under discussion for the Newtown Township, Wrightstown, Upper Makefield JMZO.
Newtown Township Planning Commission Chairman, Allen Fidler commented at a June 18, 2018, Work Session of the Newtown Board of Superviors that a dispensary is not something everyone sees as a bad thing [listen to this Special Report by Dr. Sanjay Gupta: "Pot vs Pills"].
Having an ordinance gives the Township control of addressing where dispensaries would be located. Along with a 1,000 ft. separation from schools, the Township may want to consider a separation distance from a Township‐owned park. Township Solicitor, David Sandler replied that it might not be able to do that because it isn’t in State law. See video below:Read More...
Posted on 30 Jul 2018, 13:24 - Category: Ordinances
At the February 6, 2018, Yardley Borough Council meeting, members unanimously (7-0) agreed to advertise a new Anti-Discrimination Ordinance. A final vote to adopt the ordinance will me made sometime in early March, 2018 (see UPDATE below), at which time residents and businesses can submit comments prior to the vote. New Councilman David Bria introduced the ordinance.
The primary purpose of the ordinance is “to foster the employment of all individuals in accordance with their fullest capacities regardless of actual or perceived race, color, sex, religion, ancestry, genetic information, national origin, sexual orientation, gender identity or expression, familial status, marital status, age, veteran status, mental or physical disability, use of guide or support animals and/or mechanical aids, and to safeguard their right to obtain and hold employment without such discrimination, to assure equal opportunities to all individuals and to safeguard their rights to public accommodation and to secure housing accommodation and commercial property.”
“The idea out there is that if the discrimination is related at all to the way someone identifies their sexual identity or gender identity, they would be protected,” he said. “It doesn’t matter how they identify but if it’s related to how ... we want to cast a broad net so there aren’t loopholes with this label or that label.”
Unlawful Acts under the ordinance includes:
- Discrimination in housing, employment, public accommodations or access to educational institutions is prohibited under this subpart.
- Retaliation against any individual because such individual has opposed any practice forbidden by this [ordinance], or because such individual has made a charge, testified or assisted in any manner in any investigation, proceeding or hearing under this [ordinance].
It is not unlawful, however, for a religious corporation or association, “not supported in whole or in part by governmental appropriations, to refuse to hire or employ an individual on the basis of religion.”
Bria noted that there are no state or federal laws that already protect LGBTQ – “Lesbian, Gay, Bisexual, Transgender, and Queer” - citizens. Pennsylvania’s Human Relations Act currently prohibits discrimination in housing and employment, but does not include sexual orientation or gender identity as protected categories. People who self-identify in these categories are not protected under federal laws like the Civil Rights Act either.
The proposed ordinance also prohibits “conversion therapy” of minors. Such therapy seeks to change an individual’s sexual orientation and/or gender identity or expression, and includes efforts to change behaviors and eliminate sexual or romantic attractions or feelings toward individuals of the same gender. The worst cases, according to Bria, are where young people are forced to stay in inpatient facilities and undergo shock therapy.
The proposed ordinance establishes a Human Relations Commission, which is charged with handling complaints and convening a “fact-finding” non-public conference concerning the dispute. If there is no resolution to the conflict, the Commission will convene a public hearing and may take additional action and remedies permitted under the Pennsylvania Human Rights Act.
Dave Bria Talks About Anti-discrimination Ordinances
In this podcast interview Bria discusses some of the reasons why he feels it is important for local Bucks County municipalities like Yardley Borough to enact anti discrimination laws.
UPDATE (July 11, 2018): On March 6, 2018, Yardley Borough became the fifth Bucks County municipality to adopt an Anti-Discrimination Ordinance (see here). That ordinance, however, may become null and void if PA House Bill 861 is passed. That bill says a municipality “may not in any manner regulate ... or enforce any mandate regarding employer policies or practices” other than its own (see article below).
Posted on 07 Feb 2018, 14:38 - Category: Ordinances