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Welcome to the March 21, 2020, issue of Newtown News Update. Back issues and subscribing information can be found here.  If you do not wish to receive further updates, please use the "Unsubscribe" link at the bottom of this email. The opinions expressed here are solely the those of John Mack and do not reflect the opinions of any other person or entity.

Newtown COVID-19 Press Release

All Newtown Park Facilities Closed 'Until Further Notice' - Organized sports are prohibited from utilizing the fields until further notice. Read the 3/20 Press Release.

A Coronavirus Pandemic Imperative: Public Meetings Behind Closed Doors?

The March 25, 2020, Newtown Township Board of Supervisors (BOS) meeting has been cancelled due – of course – to the Coronavirus pandemic. Other PA municipalities have done the same.

What about meetings in the near future such as the April 2 Zoning Hearing Board meeting, the April 7 Planning Commission meeting, and the April 8 BOS meeting, all of which are still scheduled?

It is likely that the “social distancing” rules imposed by the state will still be in effect at least through the middle of April and perhaps even later. Essential town public meetings cannot all be cancelled. In particular, the BOS must hold at least one public meeting every month. Therefore, the question is, can these meetings be conducted remotely; i.e., not physically accessible by the public?

The Closed Door Option

On the Pennsylvania State Association of Township Supervisors (PSATS) online discussion board, a Crawford Township, PA supervisor posted this message and question to members:

“Our township is closing the doors for a meeting coming up 4/6 to the public to keep the spread of the virus to a minimum. As supervisors, are we allowed to vote on any motions or do we have to wait until the public can be present?”

The Newtown Township solicitor advised the Board that closed-door BOS meetings could be held as long as there was a means for the public to participate – i.e., ask questions, make comments – remotely via Facebook, Twitter, email, texting, or by conference call. The BOS meetings are televised live on cable TV, so the public can view the meetings in real time and send in their comments remotely by one the means just mentioned.

This idea, however, has yet to be fully developed into a viable plan. Is it even legal? It is extremely important that we have a plan because there are critical decisions that the Board must vote on, such as how to prepare for the loss of earned income tax due to - hopefully - temporary layoffs (read, for example, “Newtown Harvest Lays Off 70”).

Can Supervisors Attend Virtually?

What about supervisors attending meetings? Can they do so remotely?

The law requires Board meetings to be as public as possible yet we are encouraged to limit public gatherings to less than 10 people. With a 5 member Board, that would only allow 4 additional people to attend the Supervisor's meetings. Usually, Newtown Board meetings include a reporter, solicitor, and township engineer in addition to the 5 Board members.

One suggestion heard on the PSATS bulletin board: “My Supervisors are talking about attending by phone or Skype.”

Personally, I am unlikely to attend a physical meeting of Supervisors even if it was closed to the public because I am in a high-risk group – over 65 years of age with underlying medical conditions – and I am avoiding being in any group, even if it is less than 10 people. In any case, the Second Class Township Code may not permit Board members to join public meetings remotely.

All this needs a quick fix ASAP. According to the Newtown Township Manager Micah Lewis, the township will likely be testing a web-based meeting platform in the near future in order to hold remote public meetings.

And Then There Is The Sunshine Act

According to an opinion by the Pennsylvania Office of Open Records, the Sunshine Act is clear that public meetings should be held at public buildings with open public participation whenever possible, yet, when official emergency declarations are made, a meeting via teleconference, webinar, or other electronic method that allows for two-way communication is permissible in most circumstances. However, any agency taking that step must provide a reasonably accessible method for the public to participate and comment pursuant to Section 710.1 of the Sunshine Act and that method should be clearly explained to the public in advance of and during the meeting to ensure transparency.

Moreover, the Office of Open Records strongly recommends that any agency holding such a meeting record the meeting and proactively make the recording available, preferably online, so that a full and complete record of the meeting is available to the public. Hopefully, all local governments will follow those guidelines in the event that they do meet remotely.

A Concern

I am concerned that virtual public participation will have much less of an impact on the members of the Board than does a physical presence. Resident commenters will NOT be visible to live TV viewers of the meeting nor will the streaming video archive include images of residents making comments. Out of sight, out of mind!

This is especially worrisome because the Board will have to make very important decisions that may have a great impact on residents. I believe it is important to delay such decisions until regular meetings can be held with the public allowed in the room where these decisions are being made.

Residents Urge Supervisors to Abide by the Spirit of Conservation Management & Reject Toll Bros Plan

A Toll Brothers proposal to put 45 single-family homes at the corner of Durham Road (Route 413) is still a possibility as the Newtown Board of Supervisors "kicked the can down the road" for a second time at the March 11, 2020 public meeting.

The supervisors decided to continue deliberating over the conditional use application after several residents implored them to abide by the "spirit" of the Conservation Management zoning ordinance.

Joyann Charlton, who lives on Twining Bridge Road adjacent to the proposed development, was one resident who spoke up in opposition to the plan on March 11, telling supervisors "you don't have to do this."

Abide By the Spirit of the Law!

Meanwhile, resident Eric Pomerantz spoke out during the February 26, 2020, Toll Brothers conditional use hearing before the Newtown Board of Supervisors.

Mr. Pomerantz told the Supervisors to abide by the "spirit of what conservation management is all about" and consider that when making a final decision.

View the video here.

Promote Agricultural Use

Steve Pfanstiel, who resides on Sentinel Avenue, sent the following email to all supervisors on March 9, 2020:

First of all, I was disappointed in how Toll Brothers described their proposal. They made two statements in the last meeting [February 26, 2020], which although factually true, were very misleading and frankly insulting to our community. Specifically:

1. They stated that their new proposal was much better than the prior one. With this statement, they are implying they have "given" something in the process by no longer pursing a development that was 3x the allowable density. The prior proposal was never an acceptable development option, and I resent the comparison.
2. They also used a similar non-sensical argument by stating that their new proposal is less dense than some other nearby neighborhoods. Again, while true, those other properties are not zoned as Conservation Management. I believe both these arguments were used in an attempt to "bully" us into accepting their proposal without honest debate as to what is acceptable within a Conservation Management district.

Putting the above aside, I will state very clearly that I believe Toll Brothers has every right to develop the property consistent with the zoning. However, I firmly believe the proposed development is inconsistent with both the zoning requirements and the intent of a Conservation Management district.

Specifically, Zoning Code Article IV.401.B states that "open space shall be clustered to promote agriculture use of the property".

The proposed plan does the OPPOSITE of the zoning code above! Toll Brothers has aggregated the homes and placed them in the MIDDLE of the largest two contiguous parcels of farmland, which will effectively eliminate ~75% of the currently farmed area within the property.

They are attempting to justify the above by defining residential backyards as "prime agriculture soil preserved for conservation". This is legal non-sense, and I hope that you can see through this. Additionally, any attempt to define a thin stretch of land around the homes as available for "agricultural use" is equally ridiculous. In practice, this land will never be economically feasible for farming, and the adjacent homeowners will never allow farming to persist in reality.

The reality is that Toll Brothers is aggregating houses in the prime agricultural open space and leaving behind a primarily undevelopable drainage basin and two difficult to access small plots of existing farmland. This is not consistent with the zoning code.

I do believe there are ways Toll Brothers could cluster the homes to actually meet the zoning criteria. For example, by developing property further to the interior, developing along the existing woods, or reducing yard sizes. We should be asking them to explore that, rather than their proposed land grab of 75 acres of prime open space.

Additionally, the intent of Conservation Management is not upheld with the proposed Toll Brothers development. The simple fact is that they are simply taking the out-of-view, undevelopable, and non-agricultural portions of the property and attempting to redefine them as "open space".

If this is allowed, the existing agricultural open space that provides beautiful views of Tyler State Park and helps define the character of Newtown and Bucks County will be eliminated. Our community will be left with simply another large neighborhood that destroys any appearance of active conservation management within the area - it will be out with the rolling hills, beautiful views, and farmland and in with the generic picture of suburbia you can get anywhere.

Finally, the Toll Brothers offer to give the undeveloped land back to the community feels like they have constructed the "perfect crime". If approved, Toll Brothers will be allowed to develop prime agricultural open space property for homes and then simply walk away from the community. In this way, they will NEVER be held accountable for actually encouraging "agricultural use" or maintaining "open space" within the property – that's because they won't own it anymore, and it will be Newtown's problem!

In the end, we know this development will not result in the promotion of agricultural use or anything resembling open space – thus, it is not consistent with the zoning requirements. Furthermore, it will diminish the character of Newtown forever and weaken any future legal protections for Conservation Management districts.

I ask you to consider the above. We need to protect our town and neighborhoods, and this is critical decision in deciding what we stand for as a community.

The Next Steps

After failing to vote on the conditional use at the February 26, 2020, hearing, the Board had 45 days to deliberate further and submit a decision to the Toll Brothers regarding the plan. However, the Coronavirus pandemic intervened and the Township was given an extension to make its decision, which now will have to be made at its April 8, 2020, meeting. As the first article in this newsletter mentioned, this meeting will in all likelihood be a "virtual" meeting without any physical presence of the public before the Board of Supervisors.

What's On Your Mind? Join Me for Coffee & a Chat

Are you concerned overdevelopment in Newtown or about traffic in the shopping center or about the quality of our drinking water or about preserving the open space in our parks or about any issue that has or will come before the Board of Supervisors and other township boards and commissions?

MEET MACK on MONDAY to Vent & Learn!

Feel free to attend one of my "Meet Mack Monday" events that I host each month, usually the Monday before the first Board of Supervisors meeting of every month. I will inform you of items coming up for discussion at public meetings you may not be able to attend and that are not televised. I will listen to your concerns and together with other residents and business owners I will try to come up with solutions to problems that make sense for Newtown as a whole.

NOTE: Because of the Coronavirus pandemic, the April meeting may be a virtual meeting on Facebook. Stay tuned for further instructions.