BoS Meeting 10/4/2007 - Kings Mill Discussion And Vote

Notes of the Kings Mill discussion at the 10/4/2007 Board of Supervisors meeting follow:

BEFORE DISCUSSION

Resolution # 071004-1 – KMRD, L.P. Litigation – Suspension of legal proceedings - Before starting discussion on this agenda item, Hoff clarified that the Township has not entered into any discussion or settlement with KMRD. He said, too, that the Board has no idea what KMRD "would like to propose other than a suspension of the hearing until they can make a presentation to the Board." The agreement on the agenda says that the Board "will suspend (the hearing) under certain conditions."

Howell questioned the statement "until they make a presentation to the Board?" Howell said that the thought that Kline had been asked simply to determine the ground rules for discussion. Howell said that he had no idea that a presentation had been discussed.

Kline explained the background: The KMRD partnership is composed of attorney Dennis Benner, his partner attorney Piperato, Zawarski builders, and Maloney builders. The developers have filed four different lawsuits.

KMRD has control over 545 acres in the Farmland Protection District (FP) and wanted to build a medium density residential development (a by-right plan because it conformed to 2001 zoning - in place at the time of filing - weeks before the 2006 zoning was adopted). The Township denied the by-right plan because the Township felt that the developer was "dragging its feet." KMRD appealed directly to the Court of Common Pleas of Northampton County. Kline referred to this as Case #1.

Case #2 is the substantive challenge to the 2006 zoning ordinance currently in process before the Forks Zoning Hearing Board. KMRD alleges that the 2006 zoning ordinance contains provisions that are illegal and therefore not enforceable.

Case #3 is a procedural challenge to the zoning ordinances adopted in 1986, 1988, 2001, and 2006. This challenge is made possible by two recent PA Supreme Court decisions. This will go before the Forks Zoning Hearing Board.

Case #4 is for a conditional use permit under the 1983 zoning ordinance. It is for multi-family housing in the FP district. This hearing will be before the Board of Supervisors. In essence, KMRD says that since (see Case #3) the 1986, 1988, 2001, and 2006 ordinances are invalid, the conditional use permit should be reviewed under the 1983 ordinance, the one that allows them "to do what they want to do."

Kline said that a month or two ago, he was contacted by KMRD to inquire of the BoS if it would entertain any kind of proposals to resolve the litigation. Because it was litigation, Kline presented it to the Board in Executive Session. He said that the "sense of the Board" was that they were willing to listen to what KMRD had to say - without commitments.

Kline explained further that he communicated to the developer that a majority of the Board was willing to look at what KMRD had to offer as long as there was a "cease fire" - that is, a general cessation of all litigation while the parties talked. Attorney VanLuvanee wrote letters to the BoS and to the ZHB which arrived on 9/19/07. The BoS declined to vote on the request because it was not received in time for it to become an agenda item for public discussion at the 9/20/07 meeting. Thus, the ZHB, at its October 1st session of the KMRD zoning challenge, was the first to discuss and vote on the KMRD request.

KMRD was advised by Kline that a resolution would be on the 10/4/07 agenda. The resolution has several parts:

1. The Township agrees to suspend all hearings and proceedings.
2. No rights are waived.
3. Either party has the right to restart the hearings/proceedings with proper notice.

By way of additional comment, Kline said that (to his knowledge) no proposals have been submitted to the Township by the developer. He added that this is very complex because it involves 545 acres and a very detailed SALDO and a very detailed Zoning Ordinance. It is not something that can be worked out in a week and would likely not be before the Board before January, when the new Board will be in place.

James Wideman (resident, Chairman of the Farmland and Historical Subcommittee for the Comprehensive Plan, former member of the PC, and candidate for Supervisor) asked if the Board normally asks the Solicitor to draft a resolution without a public vote? Kline said that the resolution to be discussed had to be very clear. Howell offered that the resolution was simply prepared as a guide for discussion.

.......... BREAK ..........

Miller began this session by making a statement that he never had a meeting or phone call from KMRD regarding anything. He said he had no idea why they are requesting a cessation and suggested that they may or may not be having financial problems - he didn't know. He thought the Township would save a lot of money since it wouldn't have to pay the attorney.

Nicholas said that she, too, has not talked with anyone from KMRD. She said she knows nothing of KMRD's plans and that she first heard about it from Kline in Executive Session. Ackerman, too, said that he has had no contact with them in any way, but that he's "an open minded person and willing to listen." Howell said that he has no reason to talk with KMRD and if the majority of the Board wants to suspend the litigation, Kline will be very busy as the communication link between the parties.

AUDIENCE COMMENTS

1. Erik Chuss (resident, Chairman of the Planning Commission, and candidate for Supervisor) - began by getting on his "soapbox" about density. He felt that what happened at the ZHB was a very serious breach of protocol and that it leads to the implication that the BoS is willing to compromise. The Planning Commission has been hard at work on the new Zoning Ordinance, the SALDO, and Comprehensive Plan update and a settlement in this case will change everything since whatever is decided will apply to the entire FP district. Chuss said, "They started this. We need to finish it." He said, too, that agreeing to a compromise will have "severe and grave consequences." He cannot see any justification for one more house than the zoning allows in the FP. - applause
2. Sharon Davis - said that she agreed with Erik Chuss' statement and added that she spent the summer as a volunteer working on a Planning Commission Comprehensive Plan Farmland and Historic Preservation Subcommittee. She did it because she cares about the community. She's spoken to many in the Township and they all have one voice on KMRD - "defend our zoning." She thought that with the real estate market in a slump the developer wants a break from having to spend money. - applause
3. David Billings (resident, Chairman of the Recreation & Trails Subcommittee for the Comprehensive Plan, and candidate for Supervisor) - spoke as a parent of school children to the dramatic impact that Kings Mill would have on our community and the costs involved for the school district ($45 million), roads, and other infrastructure improvements that would be needed. He said that he believed the current zoning ordinance to be defensible and that Forks will prevail in court. He requested a roll call vote of the Supervisors. (Read the full text of Billings' comments here.) - applause
4. Nicole Alexander - told the Board that if they settle now, they set a precedent. She said that this should be fully litigated because if it is not, a future Board will go through this again when some other developer comes before them with a plan for the FP. Setting a legal precedent now will define to future developers what they can and cannot do. She urged the Board "to continue the litigation and set this precedent because it's never been more important to save our farmland." - applause
5. James Wideman (resident, Chairman of the Farmland and Historical Subcommittee for the Comprehensive Plan, and candidate for Supervisor) - said he spoken very strongly on this issue on many occasions. He said that Forks zoning is enforceable. He said, too, that there is no reason to doubt a decade of zoning work. Wideman urged the Board to maintain the zoning. He cited the costs of staying the course at around $20 per household (based on 5000 houses and $100,000 in costs). The future costs of a compromise will be much, much higher - possibly doubling school property taxes (per the EASD). Wideman urged the Board to "stay the course, make the hard decision, and defeat this resolution." - applause
6. Robert Egolf (resident, Vice Chairman of Zoning Hearing Board, and candidate for Supervisor) - said that he was speaking only as a private citizen in asking "the Supervisors to uphold the unanimous decision of the Forks ZHB to reject KMRD's request for a continuance." He read from the the zoning ordinance's purpose - "to promote, protect, and facilitate public safety and general welfare by providing standards..." He said, too, that Forks attorneys have just started. He asked, "Have you ever heard of a game being suspended because one team is afraid it will lose?" Egolf said that the laws shouldn't be changed "to suit anyone who wants to overload our roads, overcrowd our schools, overrun our open space, and over-burden our tax base." - applause
7. Louis Moyer (resident and member of the Zoning Hearing Board) - said that he was speaking as a private citizen and limited his comments to what was in the local newspapers. He said that as proposed, Kings Mill would add 17,000 cars per day to the roads, over 6000 students to the schools, and thousands of calls to EMS. He urged the Board not to bow down to these developers because if they do, a militia will be needed to stop more developers from hammering at the Township. - applause

SUPERVISORS + MORE AUDIENCE COMMENTS

Hoff said that the word "compromise" had not been used by the Supervisors. They are talking about an open dialogue and he too, firmly believes that the zoning is enforceable. He said that expensive litigation is not a reason to stop. Hoff also said that he was elected for a 6 year term, not a 5 year and 9 month term, and he's going to fulfill it.

Ackerman clarified that there is only one preserved farm in the FP and that FP means Farmland Protection not Farmland Preservation. He said that it was done by design to protect the farmers from the citizens. Ackerman said that he'd like to see what KMRD has and to tell them what "we want." He said that if the Planning Commission had spoken up early on when asked by Kings Mill what they (the PC) would accept, this wouldn't be going on now.

Chuss said that the Planning Commission did speak at the time. They told KMRD that the PC wanted what was allowed, a by-right plan. - applause - Wideman, a member of the PC when this first came before them, backed up what Chuss said, that the by-right plan would have been acceptable.

Howell noted that there is no motion on the floor. Wideman asked to take a poll of the Board as to how much the Board would be willing to go outside of the current zoning? Hoff said that there will be no polls and no decisions. Hoff said, "Why would we offer the developer any idea?" He added that the resolution is just to suspend the hearing in order to open a dialogue.

Miller said that they were not changing zoning and there there is no compromise before the Board.

By way of clarity, Howell said that if discussions are begun and the presented plan doesn't conform to the zoning, a curative amendment will be needed - that is an amendment to the zoning ordinance. The Act 537 plan would have to be changed also. Kline remarked that if the proposal is determined to be in the best interest of Forks, then the form of the settlement agreement may require changes to the zoning ordinance.

Nicholas said that she's been approached by many people from other townships, including those on school boards, about the increase to school taxes. She said that "if one person from every household in the EASD comes to the next meeting, there will be a gridlock of people trying to get to the building. It will be national news." Nicholas added that she feels the zoning ordinance can be defended in the courts. - applause

Ackerman made the motion to accept the resolution. Hoff seconded it.

SUPERVISOR DISCUSSION + MORE

Howell said that "this decision is a lay-up" and that he never thought it would come to this, that is, a discussion of what they want. He said that KMRD submitted a plan under the 2001 zoning and then "fumbled around" buying time so that they didn't have to pay the farmers (yet) for the lands under contract - all are subject to getting final zoning approval. Forks has created a Maginot Line along Newlins Road - above Newlins, no water and no sewer. And, because public sewer and water are the first items on the developers wish list, it is a regional issue. Howell said that he attends meetings in Plainfield, LMBT, and UMBT and they all wonder what Forks is going to do. He added that areas around cities in Colorado and around cities in England have kept their rural character by denying water and sewer. Howell said, "That's the formula, that's the ticket, and that's what we should do."

Howell also said that he's enjoyed working with David (Hoff) and John (Ackerman) over the last two years but he asked to let the decision be determined not by the current Board but by the future Board. There are only six meetings to go in this year, that is six possible Executive Sessions. Election Day is 33 days away. Howell asked that the Supervisors-elect be allowed to speak. Howell said, too, that he thinks Dennis Benner and his partners are "intimidators." Howell said that as a business man, he loved negotiating when he had leverage and that without the township's case being fully presented, the township has no leverage. "The timing is atrocious."

Hoff said that the Township is not losing anything by waiting six months. He said he will not abstain from voting. Ackerman said that he will not abstain either.

Howell said that a delay will lose momentum and in the law business, momentum means a lot. He added that he'd like to take his chances with the Forks ZHB and the appeal to the court. When the court gets it, there will be no witnesses, only the initial argument before the court. The cost of that is minimal.

Chuss reiterated that the Planning Commission needs direction. He said he was not speaking at a candidate but as a person who's put a lot of time into this. Hoff said that he agreed that all four of the candidates spoke as residents of the Township and not as candidates. He added that he can't guarantee what the papers will print.

William Wallace (candidate for Northampton County Council) asked if the litigation would impact the operation of KMRD should it be purchased by another entity? He wondered if the new, larger entity would be able to continue the suit. Kline said that it would likely be carried over to the new company. Howell said that this was an interesting point since, if changes in the ordinance are made for KMRD, it doesn't stop them from not developing the land and selling it instead.

Howell asked if the candidate for Mayor of Easton had anything to say. (R-Gary Bertsch was in the audience.)

Nicholas stated that the Sewer Authority should not have been abolished. She said that it wrote a letter to the Board against sewers in the FP.

Robert Kimmel, a 30 year resident of Forks, asked the obvious: "Why wouldn't we just allow the litigation to continue and talk to KMRD?" Howell said that Mr. Kimmel raised the perfectly obvious suggestion that has "eluded everyone except me and Mr. Kimmel." Kline said that there's nothing to prevent the Township from saying "no" that it will not cease the litigation and at the same time entertain a dialogue. - applause

Kimmel said that that would send a "strong and clear" signal that the Township will not be closed minded and that this is what "we" want. - applause

Alexander said that a strong signal is sent if the Township stands by its litigation. It says, "our zoning rocks." To back off, sends an indirect message that "maybe our zoning isn't as strong as it could be."

Hoff suggested that in view of recent court decisions, the courts cannot be trusted. Alexander countered that the courts are very prone to protecting farmland and open space at this time.

Kline said that he is disturbed by two recent court decisions, Glen Gery vs Dover and Luke vs Cataldi (sic). In the first, the Supreme Court changed the 30 day rule for challenge procedures to any time frame (thus the procedural challenge by Kings Mill). In the second case, the PA Supreme Court changed the look-back period for conditional use challenges from 30 days to as far as one wants. Kline said that he cannot predict how judges will vote down the road.

Wideman asked if Forks wasn't setting a dangerous precedent in negotiating with KMRD. Wideman added that in doing this, he (Kline) feels that there is some procedural mistake over the last decade. Wideman said that he agreed with Kimmel in that, if KMRD has a proposal, it can bring it to the Board at any time. Wideman said that they (KMRD) are asking the Township to compromise.

A roll call vote on the motion was taken:

• Ackerman - Yay
• Nicholas - Nay
• Howell - Nay
• Miller - ...on the fence ... NAY!!! - and the room broke into applause!

Hoff said that the motion was defeated 3:2. He also said that the Board did the right thing by not voting after the Executive session on September 20th. That, he said, threw the ZHB a little out of whack, but he felt it was the right decision.

Kline said that the Township will be at the 10/15/07 zoning hearing to continue its case. Applause!