Developer Challenges Validity Of Zoning Ordinance In Newtown Township

NEWTOWN TOWNSHIP, PA —A developer looking to build a 245-unit market rate mid-rise apartment building on Lower Silver Road is challenging the substantive validity of the Joint Municipal Zoning Ordinance (JMZO), which governs land development in Newtown Township, Upper Makefield and Wrightstown.

At the June meeting of the Newtown Township Planning Commission, attorneys representing New Jersey-based KRE Upper Macungie Associates briefed the planners on its filing, which is seeking a curative amendment to the JMZO to allow a multi-story apartment complex to be built on 17.89
acres in the Office Research zone on Lower Silver Lake Road.

The developer is arguing that the JMZO is deficient because it does not specifically include a B-11 Mid-Rise Apartment Use in its language. It is asking the supervisors to amend its ordinance to cure the deficiency and allow for the use.

KRE is seeking to build its complex at a site previously approved for a 210,000-square-foot office building in the 1990s as part of the Silver Lake Executive Campus.

“Through the summer and early fall we had a series of meetings with staff to introduce our idea,” said land use attorney Ed Murphy, representing KRE. “I thought there was some interest in looking for an alternative development for the site."

At the same time, he said the Bucks County Planning Commission was interested in encouraging municipalities to "look at other types of residential housing, to try and make entry-level opportunities for all different strata of potential renters and buyers,” said Murphy.

“It seemed like good timing that we were talking about a market-rate apartment complex while there were conversations going on countywide about a potential expansion of residential use.”

When it was first created, Murphy said the jointure included a B-11 - Mid-Rise Apartment Use. That use, he said, was eliminated from the ordinance in 2005.

"We think that’s a problem. Every municipality is required to have a stand-alone apartment use provided,” he said.

The layout of the proposed apartment complex on Lower Silver Lake Road.

“We’re here to address what I hope everyone here will recognize is a problem and work to try and figure out a solution to it,” said Murphy.

Land use attorney Joe Blackburn told the planners, “We are not here to talk about the plan we submitted. The desirability of development on the bypass or in the township, in general, is not the topic of conversation for this application. Traffic, the desire for preservation, historical
significance, and open space is not the subject of this application. And zoning armageddons are not the subject of this application.

“What is the subject of this application and the sole issue before you tonight (and the supervisors in July) is whether or not the joint zoning ordinance provides for a B-11 midrise apartment use,” said Blackburn. “That is it.”

Blackburn said the township "has in recent months repeatedly acknowledged that the JMZO does not currently provide for an 'Apartment' use."

The developer is requesting a determination by the board of supervisors "that the Newtown Area Joint Municipal Zoning Ordinance is unconstitutional de jure and/or de facto exclusionary with respect to the legitimate and protected apartment use and corresponding adoption of a proposed curative amendment to cure such defect."

Joseph Bagley, who has been retained by the township to defend the ordinance, refuted the developer’s claim that standalone apartments are not included in the ordinance and as a result the ordinance is invalid.

“I believe the ordinance is valid even though it provides for garden apartments only as a form of subdivision,” he said. “Garden apartments are a form of multi-family use that is permitted in the township. There are other forms of multi-use residential permitted in the township,” he
said.

“And when you look at the Municipalities Planning Code and what it says zoning ordinances must provide, it doesn’t say apartments and it certainly doesn’t say mid-rise apartments. It says a reasonable range of multi-family uses,” said Bagley. “That’s exactly what it says and that’s exactly what Newtown provides and that’s exactly what the board of supervisors will find that it provides.”

Added Planning Chair Peggy Driscoll, “The current ordinance provides for nine different types of housing for residential uses. Apartments are permitted. We have Newtown Place, which is 150 units and it provides one, two and three bedroom apartments.

“Something of this density, people have to understand the effect on the school district, on the infrastructure of the town. If you want to build, build as zoned. Build as permitted,” she told the developer.

The site of the proposed apartment complex on Lower Silver Lake Road.

The planners had a hard time ignoring the impacts such a development could have on the township.

“We have to pay particular attention to infrastructure, it’s like a country road … It’s hard for me to justify throwing this kind of traffic quagmire in the face of our residents, said planner Terry Christiansen.

“I appreciate your desire to talk about traffic, but it remains the case that it is not the subject of this application,” responded Blackburn. “That is not the topic of conversation for tonight, which is whether or not the ordinance permits the B-11 apartment use.”

The township supervisors are scheduled to consider KRE’s challenge at its July 12 meeting.

However, another battle could be looming on the horizon for the property.

The Patch has learned that the Newtown, Bucks County Joint Municipal Authority is currently appraising the property as it investigates it as a potential site for a future sewer treatment plant.