Developer Moves To Disqualify Supervisor From Newtown Zoning Challenge

NEWTOWN TOWNSHIP, PA — A developer seeking to build a multistory, 245-unit apartment building on Lower Silver Lake Road is asking the board of supervisors to disqualify vice chairman John Mack from hearing its validity challenge of the township's ordinance.

KRE Upper Macungie Associates LP is challenging the substantive validity of the township's ordinance arguing that the ordinance does not include a multi-family, mid-rise apartment use, which it is planning on Lower Silver Lake Road.

It has also filed a preliminary motion to disqualify supervisor Mack from hearing the challenge arguing that his blogs and Facebook postings have shown his bias against the filing.

During Wednesday night's meeting of the board of supervisors, the supervisors officially opened a hearing on the validity challenge during which the developer and an attorney hired to defend the township's ordinance delivered introductory remarks and issued preliminary challenges.

In his introductory remarks, land use developer Ed Murphy, representing the developer, said in 2005 the B-11 mid-rise apartment use was removed from the Joint Municipal Zoning Ordinance. The B-11 use allowed for buildings no shorter than three stories and no taller than six stories and no fewer than 16 units.

"What does exist is a B-10 use - a garden apartment use. But that use is not a standalone use," said Murphy. "Our view is that each municipality has the obligation to provide for market-grade apartments, not as part of some other subdivision."

Bagley, during prior comments, has argued that the township's ordinance adequately provides for a variety of housing options, including rental apartments, such as garden apartments. He will be arguing in support of the JMZO during the validity challenge.

In addition to laying out their arguments, the lawyers submitted preliminary challenges to the supervisors, including one seeking to disqualify supervisor John Mack from hearing the challenge.

Citing blogs and Facebook comments by Mack, KRE attorney Joseph Blackburn argued that Mack has shown his bias against the project and "has no intention of applying the law" and should be "disqualified" from hearing the challenge.

He argued that during a validity challenge, the members of the board of supervisors must act in a "quasi-judicial" manner, hearing testimony and drawing conclusions based on law, not opinion.

Attorney Joseph Bagley submitted a preliminary motion to exclude statements in the developer's validity challenge made by members of the planning commission and by Mack.

"The burden of proof in the case is KRE's," he argued. "They have the burden to show that the ordinance as applied excludes a certain use. In this case, they allege apartments. This is not based on any statements by any supervisors or any planning commission members. We base it on the ordinance as written on the land that it applies to and on certain expert testimony."

Bagley also cited the second-class township code, which says a member of the board "shall not be disqualified from voting on any issue solely because a member has previously expressed an opinion in either an official or unofficial capacity."

The board of supervisors will be meeting with its legal counsel sometime over the summer to review the developer's request and Bagley's preliminary motion. It will announce its decision when the hearing continues on Monday, September 18.