Meeting Minutes

Board of Supervisors

Tuesday, December 22 2009

Buckingham Township Board of Supervisors

December 22, 2009

Meeting Minute

The regular meeting of the Buckingham Township Board of Supervisors was held in the Township Building, 4613 Hughesian Drive, Buckingham, Pennsylvania.

Present:

Maggie Rash,   Chairperson

Jon Forest,    Vice-Chairman

Henry Rowan,   Member

Craig A. Smith, Esquire,    Township Solicitor

Dana S. Cozza,    Township Manager

Daniel Gray,   Township Engineer

Thomas Kelso,    Township Water/Wastewater Consultant

Lynn Bush,    Bucks County Planning Commission

Mrs. Rash called the regular meeting to order at 7:42 pm and led The Pledge of Allegiance.

PUBLIC COMMENT

Mr. John Cunningham asked the Board to make the agenda item descriptions more descriptive.  Mrs. Rash suggested Mrs. Cozza expand the information when the agenda item was placed on the web site.  Mr. Rowan suggested providing a link to the resolutions.  Solicitor Smith noted that the resolutions that would be posted would only be drafts up for consideration by the Board and could well later be changed as the Board considers an issue. 

Mr. Harry Heinzl asked why it was necessary to increase taxes 300%.  Mrs. Rash explained that the increase in millage covered old debt for the open space bonds (approved by the voters in referendums) and an additional 0.5 mills to pay for any future preservation in 2010.  A more detailed summary of the Township tax discussion can be found in the December 9, 2009 minutes when a presentation was made on the issue. Mrs. Rash explained that the reason the jump was high was because between 2006-2009 the Township reduced the millage for open space debt (except for 0.5 mills) and took the money out of the general fund surplus (earned income tax and transfer tax funds).  She explained that the Township no longer had a large surplus and so the voter approved debt had to be paid and the way to do it was through the open space millage.  Discussion followed about the use of the surplus and whether incremental tax increases should have been made in previous years to prevent such a large jump this year.  Mr. Heinzl asked for the financial documentation to show how the millage was determined.  Ms. Pistory agreed to provide the financial work papers used in the analysis, which could also be posted on the Township web page. 

Mr. Ron Shapiro, Furlong, asked when properties were last assessed and noted that the open space bond was approved by 80% of those who voted.  Ms. Bush explained that assessment was a County, not a Township responsibility.  Mr. Shapiro thought the Board should consider removing the extra 0.5 mill.  Mr. Shapiro asked how long it took to get minutes posted to the internet.  Ms. Cozza explained that once they were approved (at the following meeting) they were usually posted the following day.  Mrs. Rash explained the process for approving and posting minutes. 

 Ms. Marsha Moran, Reserve at Holicong, asked how often the taxes would be increased.  Mrs. Rash responded that she did not foresee a change for past debt (for which the rate was set) and that another 0.5 mill was included for possible future land preservation.  Mrs. Rash said a millage increase the next year would depend on how much land was preserved.  Mrs. Rash explained that at the end of 2005 the millage was 3.0 mills for open space.    

Mr. Michael Byersmith noted there was an excess surplus in past years and asked why the money was not rebated back to the taxpayers.  Mr. Forest explained that the Township surplus was now down to 40% of the operating budget.  Mr. Rowan explained that with real estate and earned income providing the bulk of income it was not easy to rebate and the cost of rebating would be more than the cost of the rebate.  He explained that because the Township had control over the property portion, they chose to lower that to keep the surplus from growing out of control.  Mr. Rowan noted that a 300% increase looked like bad planning.  Mr. Forest noted that millage dropped in 2006 so nothing was permanent and should the transfer tax and income tax revenues again increase as the economy gets better, then the real estate tax could be decreased.  Mrs. Cozza noted that County and Township taxes came on the same bill so a few people thought their total bill was going up 300%.  Mrs. Cozza noted that it was only the Township portion of the tax bill that was increasing and that increase would be on average from $75/year to $275/year.   

Mr. Charles Christenson, small business owner, noted that people were going to be hit with increased State and Federal taxes and asked the Board to revisit the budget and “hammer out the numbers.”  Mr. Christenson requested that the Board remove the additional 0.5 mills for future land preservation.  

Mr. Jim Moran commented that the last time assessments were done was 1972.  Ms. Bush and Mrs. Cozza concurred.  Mr. Moran asked when the next assessment would be as he felt newer homeowners were bearing an unfair tax burden.  Ms. Lynn Bush responded that it was a decision of the Bucks County Commissioners, not the Township, and he must ask them. 

Mr. Christenson noted that he had applied for reassessment and was denied. 

Mr. Heins Grueber, Mechanicsville Road, asked about revenue for the capital and operating budgets.  Ms. Pistory responded that the operating budget was $6 million and it was funded through the real estate tax, transfer tax and income tax and that there was no funding source for capital.  Mr. Grueber asked if capital gains/passive income was taxed.  Ms. Pistory explained that the township and school district local income tax was only on earned income.  Discussion followed about communities taxing passive income.  Ms. Pistory and Mr. Rowan did not believe it could be done in Pennsylvania.  Mr. Grueber asked for an explanation of the tax increase.  Ms. Pistory explained that the 3 mill tax increase was for open space debt service.  Mr. Grueber asked why the Township was not floating a bond.  Ms. Pistory explained that the Township was paying down open space bonds with the tax increase.  Discussion followed about the debt of the community and the different rates of the various open space bonds.  Mrs. Rash explained that the Board made a unanimous decision during budget discussions in support of the 0.5 mill increase for future acquisition of easements on open space if the situation arose.  She noted that right now the Township was looking at an 80 acre parcel that is attractive and also attractive to developers.  Solicitor Smith cautioned that the Board should not discuss real estate negotiations in public.  Mr. Forest noted that it was cheaper to preserve land than to allow it to be developed and pay increased school taxes.  He noted that 85% of the local real estate tax bill goes to the Central Bucks School District and 1% goes to township.  Mrs. Rash invited Mr. Grueber to come in and meet with her and staff if he had further questions and asked him to leave his phone number with Mrs. Cozza.

Ms. Marsha Moran commented that she was seeing many people lose jobs and felt it was a bad time to raise taxes.  Mrs. Rash explained that 0.5 mills amounted to about $25 per year and that the larger increase was on past (voter approved) debt that had to be paid.  She explained that because transfer taxes were down, the Board did not have the luxury of paying the debt out of the general fund as had been done the previous few years.  Mrs. Rash suggested that residents go on the County web site and look at taxes in other municipalities.  She noted that Buckingham’s taxes are among the lowest of surrounding municipalites and that Buckingham had no general fund millage. 

Mr. Skip Salvesen commented that he had looked at voter turnout in 2008 and approximately 4,000 people voted (45% of electorate) and by over 80% they wanted to protect open space and authorized a tax increase to do so.    He expressed disappointment that people were now complaining because it was time to pay for the beautiful landscape that brought them here.   

Mr. Joe Jagelka asked about the dollar amount for a mill.  Ms. Pistory responded that it was, on average, about $50 per mill.  Mr. Jagelka asked upon what was the value assessed.  Ms. Pistory explained that it was based on the assessment done by the County and residents could find their assessed value on their tax bill.  Mr. Jagelka suggested putting a calculator tool on the web site so people could calculate their tax bill.  Mr. Jagelka asked residents not to sacrifice how the Supervisors were trying to protect open space and preserve the community over $4 per week in taxes.

BOARD’S ANNOUNCEMENTS

Mrs. Rash made the following announcements:

• Upcoming Board of Supervisor meetings:

The Annual Reorganization Meeting will be held Monday, January 4, 2010 at 6:00 p.m.

A Regular Board of Supervisor Work Session and Business Meeting will be held Wednesday, January 13, 2010, beginning at 6:00 p.m.

• The Annual Board of Auditors Reorganization Meeting will be held Tuesday, January 5, 2010 at 7:00 p.m.
• The Buckingham Township Administrative Offices will be closed December 24^th at 12:00 p.m., and all day on December 25^th.  The offices will also be closed on January 1, 2010.
• Red Cross Blood Drive: Tuesday, December 29, 2009, from 2-8 p.m.  Call 215-794-8834 and make your appointment.

PAYROLL AND BILL LIST

Consideration of approving Payroll for the week ending December 20, 2009 and the Bill List for the meeting of December 22, 2009.

 Mrs. Rash made a motion, seconded by Mr. Forest to approve Payroll for the week ending December 20, 2009 and the Bill List for the meeting of December 22, 2009 in the amount of $514,527.03.   Mrs. Rash asked about Signature Bridge.  Mr. Gray explained that they were putting in the Cold Spring Creamery walking bridges.  Mr. Forest asked how the bill was being paid.  Ms. Pistory explained it was money from the developer for the trail system.  The motion carried with Mrs. Rash and Mr.  Forest voting aye and Mr. Rowan voting nay.  

MINUTES

Consideration of approving Supervisor's Minutes of the December 9, 2009 Work Session and December 9, 2009 Regular Business Meeting, and the December 16, 2009 Work Session.

Mrs. Rash made a motion, seconded by Mr. Forest to approve the Supervisor’s Minutes of the December 9, 2009 Work Session and December 9, 2009 Regular Business Meeting.  The motion carried unanimously with Mr. Rowan abstaining.  Mrs. Rash made a motion, seconded by Mr. Forest to approve the minutes of the December 16, 2009 Work Session.  The motion carried unanimously. 

BUSINESS

1.  Consideration of approving Resolution No. 2097, A Resolution of the Township of Buckingham, County of Bucks, Commonwealth of Pennsylvania, Fixing the Earned Income Tax Rate, Local Services Tax Rate, and the Realty Transfer Tax Rate for the Fiscal Year 2010.

Mrs. Rash made a motion, seconded by Mr. Forest to approve Resolution 2097, A Resolution of the Township of Buckingham, County of Bucks, Commonwealth of Pennsylvania, Fixing the Earned Income Tax Rate, Local Services Tax Rate, and the Realty Transfer Tax Rate for the Fiscal Year 2010.  The motion carried unanimously.

2.         Consideration of approving Resolution No. 2098, Fixing the Real Estate Tax Rate for the Fiscal Year 2010. 

Mrs. Rash made a motion, seconded by Mr. Forest to approve Resolution No. 2098, Fixing the Real Estate Tax Rate for the Fiscal Year 2010. 

Mr. John Cunningham asked how this item was different from the budget and asked how much money was paid in interest versus principle last year.  Ms. Pistory responded that the Township had paid $647,000 in principle in 2009 and $462,000 in interest.  Mr. Cunningham noted that there would be a $3.5 million surplus at the end of next year in the general fund and asked why the Township was paying interest when it could use the $3.5 million to pay off debt.  Ms. Pistory explained that the surplus was needed to operate the Township (until tax revenues come in) and it was needed in case any issues (bridge, road repairs, purchase equipment) arise. Ms. Pistory noted that the interest the Township receives on its cash balances  were minimal as the rates were low in recognition that the Township did not invest in anything that was not completely safe.  Mrs. Rash summarized that the Township needed to continue to operate with a surplus and that she felt it would not be responsible to let it fall below 45% of operating budget; the General Fund could not be depleted to the point where the Township could not cover expenses.

Mr. Charles Christenson expressed concern about the small part of the debt in variable interest rates.  Ms. Pistory assured all that the Township kept a close eye on that money. 

The motion carried with Mrs. Rash and Mr. Forest voting aye and Mr. Rowan voting nay.

3.         Consideration of approving Resolution No. 2099, Authorizing the Establishment of Checking, Savings and Investment Accounts and Designating Various Institutions to Serve as Depositories for the Funds of the Township in 2010.

Mrs. Rash made a motion, seconded by Mr. Forest to approve Resolution No. 2099, Authorizing the Establishment of Checking, Savings and Investment Accounts and Designating Various Institutions to Serve as Depositories for the Funds of the Township in 2010.  The motion carried unanimously.

4.         Consideration of approving Resolution No. 2100, Township Secretary’s Certification of the 2010 Budget Preparation & Publication.

Mrs. Rash made a motion, seconded by Mr. Forest to approve Resolution No. 2100, Township Secretary’s Certification of the 2010 Budget Preparation & Publication.  The motion carried unanimously. 

5.  Consideration of approving Resolution No. 2101, Appropriating Specific Sums Estimated to be Required for the Specific Purposes of the Municipal Government, Hereinafter Set Forth, During the Year 2010 and Adopting the Annual Budget Reflecting These Amounts.

Mr. Rowan noted that this agenda item included adopting the budget.  Mrs. Rash made a motion, seconded by Mr. Forest to approve Resolution No. 2101, Appropriating Specific Sums Estimated to be Required for the Specific Purposes of the Municipal Government, Hereinafter Set Forth, During the Year 2010 and Adopting the Annual Budget Reflecting These Amounts.

Mr. Joel Nace commented that he was disappointed with the budget process.  He felt that discussions took place outside of regular business meetings.  He noted that he attended the November 18, 2009 meeting where the budget was discussed late at night during a work session after the newspaper reporter had left.  Mr. Forest noted that the newspaper had done a front page article about the Township budget.  Mr. Nace noted that the date and time (December 1, 2009 at 6:00pm) that the Board moved to advertise the budget was not convenient.  Mrs. Rash noted that they were up against a deadline and they did not want to shut down the government because there was not an approved budget.  Mrs. Rash noted that everything was advertised and nothing was done under cover of darkness.  Mr. Rowan noted that the meeting was not posted on the web site.  Mrs. Cozza noted that the Board started budget discussions in work sessions in October, have discussed it at every work session since and all minutes of the budget discussions have been posted on the web site.  She added that Intelligencer reporters sat in on the budget meetings.  Mr. Nace contended that the 2009 budget was used as a prop for election as nothing was budgeted for open space.  Mr. Nace argued $168,000 in interest payments was to be capitalized.  He speculated that by borrowing money to pay interest the $168,000 would grow to $350,000. 

Mr. Rowan expressed two objections to the budget:  1) he felt taxes should have been increased last year and that this year’s tax increase was done to correct problems with last year’s budget and 2) he like Mr. Nace had a problem with capitalizing of interest.  Discussion followed regarding whether interest was in fact being capitalized or the general fund being repaid from interest that had been paid from that fund in the past and whether capitalized interest had been paid in the past. 

The motion carried with Mrs. Rash and Mr. Forest voting aye and Mr. Rowan voting nay.  Mr. Rowan commented that he felt it was a bad budget.

Mrs. Rash asked Mr. Rowan for suggestions other than Mr. Rowan’s problem with the $168,000 in interest payments.  Discussion followed about legal fees.  Discussion followed about $55,000 in budget savings if the Board members agreed to cut health insurance. Mr. Rowan said he would not give up his health insurance benefits.

Mr. Skip Salvesen asked if the health insurance decision had to be unanimous.  Mrs. Rash responded that the State allows Supervisors to take insurance but it does not mandate it. Mrs. Rash said she would give up her benefits and that Mr. Forest would too but she did not think it was right to give it up unless it was unanimous.

6.  Consideration of approving Resolution No. 2102, for the purpose of Amending the 2009 Budget.

Mrs. Rash made a motion, seconded by Mr. Forest to approve Resolution No. 2102, for the purpose of Amending the 2009 Budget.

Mr. Rowan renewed his objection to what he asserted was capitalized interest.

The motion carried with Mrs. Rash and Mr. Forest voting aye and Mr. Rowan voting nay.

7.  Consideration of approving Revised Preliminary/Final Minor Subdivision Plan (plan dated “rev. 11/9/09”) of the “Allison Farm”, Township File SA 2009-02, submitted by Gilmore and Associates, Inc. on behalf of William and Margrit Black, T.P. 6-18-37, 54.352 Acres, 2 Lots, in the AG-1 Zoning District.  Extended 90-day Review Period Expiration date January 30, 2010.

AND

Consideration of approving Wastewater Planning Module Exemption Request.

Representing the applicant was Mr. Jeff Garton, Attorney and Mr. Greg Glitzer, Project Engineer.  Mr. Garton explained that this was a permanently preserved parcel through both the Township and County, with the preservation agreement permitting the owner to create two new lots provided that the two lots did not exceed four acres.  Mr. Garton explained that the application was for one four acre lot instead of two, two acre lots.  Mr. Garton noted that the Planning Commission had recommended approval of the plan.  Mr. Garton noted that the applicant would comply with all issues raised in the December 14, 2009 Knight Engineering Review Letter and the December 3, 2009 Landscape Review Consultants Review Letter.    He noted that the pole barn would not be used to house horses. 

Mrs. Rash summarized that the original easement said they could take two parcels on four acres.  She noted that now there would be a 19 acre lot with one house with a four acre building envelope. 

Mr. Rowan noted that the easement agreement would need to be revised.  Mr. Garton agreed that the approval could be conditioned on revisions to the easement agreement.  Mr. Rowan asked how far back the house was.  Mr. Glitzer responded that it was 1000 feet back.  Mr. Rowan suggested that the Township use the projector so that residents could see plans better.  Mrs. Cozza noted that everything would need to come in on CDs.  Mr. Glitzer noted that they did provide CDs. 

August 10, 2009 Waiver Request letter last revised December 22, 2009

Mr. Garton reported that the Subdivision and Land Development waivers were unanimously recommended for approval by the Planning Commission other than Section 9.16.A.1.b that was added after the Planning Commission review.  Mr. Gray gave his approval for all the waiver requests and noted that the stormwater was properly sized for the improvements proposed.  The Board discussed waiver requests of 9.23.M.3 and whether 7,000 square feet was sufficient for building.  Mr. Glitzer noted that they could probably not build a horse barn but that there was room for expansion of the basic structure and they had included other allowances.

Ms. Manicone asked if the easement currently on the property protected trees.   Mr. Garton responded that they would be willing to modify the existing easement if it did not include preservation of trees and ponds. 

Mrs. Rash made a motion, seconded by Mr. Forest to approve the revised Preliminary/Final Minor Subdivision Plan (plan dated “rev. 11/9/09”) of the “Allison Farm”, Township File SA 2009-02, submitted by Gilmore and Associates, Inc. on behalf of William and Margrit Black, T.P. 6-18-37, 54.352 Acres, 2 Lots, in the AG-1 Zoning District and grant waiver requests in the August 10, 2009 letter revised December 22, 2009 with the following conditions:

• The existing easement would be revised to reflect the following changes:  tree and pond protection would be added if not already included and the two, two acre lots are to be combined into one four acre building envelope onto which one house will be built. 
• The applicant will comply with all issues raised in the December 14, 2009 Knight Engineering Review Letter and the December 3, 2009 Landscape Review Consultants review letter.

The motion included the approval of the Wastewater Planning Module Exemption Request as recommended by Castle Valley Consultants.

Mr. John Cunningham asked if the Township was acquiring development rights.  Mrs. Rash explained that the Township had acquired them in 2001.  Mr. Cunningham recommend that language about the acquisition of development rights should be included as part of the approval.  Mr. Rowan explained there was already an existing easement and so it was already part of the motion.  Solicitor Smith advised that the motion on the floor was sufficient. 

The motion carried unanimously. The Township Solicitor was directed to prepare the written approval as required by the MPC.  The findings, terms and conditions of that written approval, read as complimentary to these minutes, shall be controlling. 

8.  Consideration of approving Revised Final Major Subdivision Plan (plan dated “rev. 10/15/09”) of the “Estates at Forest Grove (Smith Pfeiffer) aka Mill Creek Ridge”, Township File SA 2001-05C, submitted by Gilmore & Associates, Inc. on behalf of Toll Brothers, Inc., T.P. 6-23-1, 6-23-4, 6-23-13, 6-23-14 & 6-23-17, Dark Hollow Road / Smith Road / Forest Grove Road, 183.1 Acres, 71 Lots, in the AG-1 Zoning District. Extended 90-day Review Period Expiration date December 31, 2009.  (Note: Wastewater Planning Modules were approved by PA DEP 12/22/05.)

Representing the applicant was Mr. Steve Harris, Attorney and Mr. Greg Glitzer, Project Architect.  A transcript of the proceedings was taken by a Court Stenographer and will be provided to the Township. 

The Board adjourned to executive session at 10:18pm.  The Board reconvened at 10:28pm.

 Mrs. Rash made a motion, seconded by Mr. Forest to approve the Revised Final Major Subdivision Plan (plan dated “rev. 10/15/09”) of the “Estates at Forest Grove (Smith Pfeiffer) aka Mill Creek Ridge”, Township File SA 2001-05C, submitted by Gilmore & Associates, Inc. on behalf of Toll Brothers, Inc., T.P. 6-23-1, 6-23-4, 6-23-13, 6-23-14 & 6-23-17, Dark Hollow Road / Smith Road / Forest Grove Road, 183.1 Acres, 71 Lots, in the AG-1 Zoning District with the following conditions:

1)      There will be a water supply permit.

2)      The applicant will comply with all issues raised in the November 13, 2009 Landscape Review Consultants review letter, the November 23, 2009 Knight Engineering review letter and the December 4, 2009 (updated on December 19, 2009) Castle Valley Consultants review letter. 

3)      Timing of the buffer planting and notes describing it will appear on the plan.

4)      The Pfeiffer house will be buffered with plantings at the construction entrance prior to construction

5)      The Board will approve the waivers requested in the December 4, 2009 waiver request letter with the exception of 9.20.C.2.b.  The Board would not grant a waiver for the pump station on lot 73 Forest Grove Road but they would grant the waiver for the location of the pump station next to the County property on lot 72.

6)      Toll Brothers will improve site distance by moving a rock on the Connelly property (at Toll Brother’s expense) if permitted by the Connellys.

7)      A façade easement will be placed on the Pfeiffer homestead and the exterior of the façade will be restored to its original “luster” within two years.

8)      Toll Brothers will provide the funds necessary to purchase the 12+ acre Histand tract and it will be remediated to such a state that there would be no regulatory environmental concerns.  Solicitor Smith noted that the details of this transaction would be specified in the written approval that would follow the Board’s decision.  The Histand property is to be graded, seeded and planted with street trees.

9)      The easement will reflect the changes adding a component of tree and pond protection.  (Included in Knight Engineering letter)

10)  The Township will take fee simple ownership of the pump station and water tower and have an easement back to them.  The lot will be deeded to the Township and contain the pump station and water tower (what now shown as lot 72).

Mr. Rowan expressed objection to the approval on the basis that Mr. Rowan feels the preliminary plan approval was not valid because the approval was based on engineering that was not accurate.  With an approved preliminary plan that Mr. Rowan contended was invalid, Mr. Rowan commented that he would not vote for the final plan.  Mr. Forest noted that Mr. Rowan had voted for preliminary approval in December 2003.  Mr. Rowan responded that he did, but the plan was based, in his opinion, on faulty engineering.  Mr. Rowan noted that he did not think the waiver to 9.23.C.2.C was justified because the zoning ordinance and SALDO were written to protect downstream residents from the effects of stormwater generated by development.  Especially in light of flooding that has occurred on Mill Creek in the past, Mr. Rowan did not think it was appropriate to waive this requirement.  Mr. Rowan expressed his discomfort with the sudden offer of the Histand property to the Township.  Mr. Forest reiterated that Mr. Rowan had already voted yes on a preliminary approval.  Mr. Rowan reiterated his belief that the engineering was different on this plan. 

The motion carried with Mrs. Rash and Mr. Forest voting aye and Mr. Rowan voting nay. The Township Solicitor was directed to prepare the written approval as required by the MPC.  The findings, terms and conditions of that written approval, read as complimentary to these minutes, shall be controlling. 

9. Consideration of approving Revised (latest revision 5/31/06) Preliminary Major Subdivision Plan of the “Overholt Tract”, submitted by Gilmore and Associates on behalf of C&M Homebuilders Inc., Township File SA 2003-03, T.P. 6-4-35, Cold Spring Creamery Road, 19.9 acres, 63 Single Family Townhouse units, in the VR-3 Zoning District. Extended ninety (90) day review period expires 12/31/09.

AND

Consideration of approving Resolution No. ___ Act 537 Plan Revision for C&M Homebuilder, Inc. “Overholt Tract”, Township File SA 2003-03.

Representing the applicant was Mr. John VanLuvanee.  Mr. VanLuvanee reported that C&M Developers, the equitable owner of the property, had determined that the Township would not be able to provide water and sewer which resulted in them signing the property back to the Overholts.  Mr. VanLuvanee reported that in December 2005 he appeared before the Board to request a two year extension on the basis that conditional use approval required the owner/developer to cooperate with the Township to secure water and sewer capacity and connect to Township water and sanitary sewer. He explained that the problem was and has been that neither C&M nor the Township has located an area with additional sanitary sewer capacity. 

Mr. VanLuvanee reported that the last plan revisions were filed on May 23, 2006 and there was a resulting September 21, 2006 Knight Engineering review letter.  In December 2007 a two year extension was requested and granted for the same reason.  Mr. VanLuvanee explained that he was requesting another extension on behalf of his clients noting that when sewer and water becomes available the Overholts intend to proceed with the plan.  Discussion followed about there not being any plan revisions since May 2006.  Mr. VanLuvanee pointed out that there was no point to revise plans until it was determined how water and sewer would be supplied.  He noted that if the Board had granted preliminary approval without water and sewer resolution then C&M would have moved forward.  Mr. Rowan asked the last time sewer and water alternatives were explored.  Mr. VanLuvanee responded that C&M had discussed alternatives with him in 2007.  Mr. Rowan asked Mr. Kelso if had ever been approached by the Overholts.  Mr. Kelso responded that the last time he spoke with them was at the meeting of the last extension (December 2007).  Discussion followed about whether the Overholts had approached the Township regarding the water and sewer issue.  Mr. VanLuvanee did not have any notes in his files about any such communications but noted that it was their understanding that if there was an opportunity for water and sewer the Township would have contacted the applicant.  Solicitor Smith noted that the Township had never seen a wastewater analysis and that one should be completed. Mr. VanLuvanee suggested that extensions should not have been granted in 2005 and 2007 if a wastewater analysis was required.  Mr. VanLuvanee argued that they were doing what was asked of them and were cooperating with the consultant.  It was their understanding that when the Township acquired the capacity the Overholts would be contacted. 

Mrs. Rash summarized that this application has been ongoing for many years and obviously conditions have not been met.  Mrs. Rash made a motion, seconded by Mr. Forest to deny the Revised (latest revision 5/31/06) Preliminary Major Subdivision Plan of the “Overholt Tract”, submitted by Gilmore and Associates on behalf of C&M Homebuilders Inc., Township File SA 2003-03, T.P. 6-4-35, Cold Spring Creamery Road, 19.9 acres, 63 Single Family Townhouse units, in the VR-3 Zoning District based on review letters of all consultants from the last plan submitted and the conditions of the conditional use approval.  The motion carried unanimously. The Township Solicitor was directed to prepare the written denial as required by the MPC.  The findings, terms and conditions of that written denial, read as complimentary to these minutes, shall be controlling. 

10.  Consideration of release of the Maintenance Bond for “The Reserve At Holicong”, Township File SA 98-11, with a 21-month final expiration date of December 25, 2009.

Representing the Homeowners Association (HA) was Mr. Carl Weiner.  Mr. Weiner announced that the Homeowners Association wanted the Maintenance bond called as there were a number of issues that the HA wanted resolved. 

Solicitor Smith explained that the Township problem was that the HA was a third party beneficiary to the dedication agreement, had participated in negotiating the agreement and that as the Township received letters from its consultants indicating that all requirements of the dedication agreement were met, then the Township was obligated to release the money.  Solicitor Smith reported that the Township had received those letters.  He noted that if there were legitimate issues that have been missed, then they must be addressed.  But if there are items that fall outside the specific items in the consultant letters, then the Township could be sued for not releasing the bond. Mr. Smith noted that the HA could sue the developer under the dedication agreement if they contended the developer had not complied.   

Mr. Weiner contended there were the following problems:

1)  Stormwater issues.  Mr. Weiner said that there was significant ponding water at Holicong and Mechanicsville Roads that had not been resolved.  He noted that if improvements were done, they were not functioning.  Mr. Weiner contended that the developer was not only responsible for structural integrity but also for the functioning of improvements.  Mr. Gray commented that some of those non draining areas that retained water and had done so in the past before there was a development.  Mr. Gray reported that he had asked Cutler during preliminary plan reviews to determine whether those wet areas were wetlands.  Mr. Gray reported that they were determined not to be wetlands but abandoned drainage features.  Mr. Gray noted that there was no particular requirement of the approved plan to fix this area.  Mr. Weiner said that the pond he was referring to was closer to the bike trail.  Mr. Gray explained that because of the way the development was approved, Cutler could not drain that area and therefore there were no additional requirements during the maintenance bond period.  Solicitor Smith asked why the drainage facility was not included in the dedication agreement.  Mr. Gray responded that it was not something that needed to be resolved per the approved plans.  Mr. Weiner suggested that the area in question was three feet deep and 50’ long x 20’ wide and he felt it was created by the trail installation and a drain that was clogged.  Mr. Gray disagreed stating that the wet area was there before the bike path and noted that at the request of the residents Cutler did try to fix the problem with an underdrain.  Mr. Weiner noted that trees had been replanted in that wet area and they were now dead because of the water.  Solicitor Smith explained that the Township must live by the existing agreement, and this area was not in the agreement.  He reiterated that the Township did not have the option to not release the money; they either called the bond or it expired.  Solicitor Smith explained that the agreement requires the developer to make sure facilities were working properly and the agreement was specific to the consultant review letters.  Mr. Rowan asked if the preliminary plan showed this 50’ x 20’ area as a water feature.  Mr. Gray responded that it was determined not to be a water feature at preliminary plan stages and improvements were built around it. 

Solicitor Smith again advised that the HA had the right to sue on the bond as they were third party beneficiaries of the dedication agreement and the Township would support them in any way possible.  But Solicitor Smith advised the Board that they could not call the bond if they had letters from consultants saying everything that was to be done was done. Mr. Weiner asked that the Township call the bond. Solicitor Smith asked if the HA would indemnify the Township if they called the bond.  Mr. Weiner responded no, that they did not have the resources to do such a thing. 

2) Downstream Neighbors and Flooding

Mr. Weiner reported that there had been no resolution to the downstream neighbor complaints about stormwater runoff from this development.  Mr. Weiner felt the Township should provide an engineering response.  Discussion followed about water coming off the tennis club and Fisher Farm.  Solicitor Smith asked if the HA had any engineering documentation showing that the stormwater management as designed and installed was not functioning properly; because if they did, then perhaps the Township could rely upon that.  Mr. Weiner responded that they did not.

Mr. Michael Barnett reported that the ditch had gotten much bigger since he has lived there.  Mr. Forest noted that the gulley at the Preston property had been there for years.  Mr. Barnett noted that the water going across Holicong Road gets 6-8” deep and bypasses the retention pond completely.  Mr. Gray responded that work had been done in July and since then we had gone through two major storm events without incident.  Mr. Barnett responded that he was not convinced it works yet. 

Mr. Ed Prajzner asked why the improvement took 10 years to complete.  Mr. Gray responded that it was always a condition they had been asked to address.  Discussion followed about water running off Fisher Farm and down Holicong Road with Mrs. Rash observing that the properties had been wet before the Reserve development was built.  Mrs. Rash acknowledged that the August and October minutes discussed whether there was need for further study on the Preston property.  Solicitor Smith reminded residents that the Township is happy to facilitate and help people solve problems, but was not legally responsible for natural conditions and conditions not caused by the Township.  He cautioned that when minutes they say the Township will look into it they should not be read as the Township accepting legal responsibility.  Mr. Weiner noted that a letter from Knight Engineering acknowledged the issue.

Solicitor Smith reiterated that the Township was bound by the responses they get from consultants. Solicitor Smith cautioned that not only the Township but also the HA could not dispute the Township Engineer if the HA did not have engineering expert testimony of their own. 

Mr. Rowan noted that he understood both points of view.  He asked if consultants make a mistake and approve something they should not have, is the Township still obligated to release the bond.  Solicitor Smith suggested that the Board could adjourn to executive session to discuss such questions and potential litigation. 

Mr. Weiner additionally commented that:

3) Dead plant material in open space has not been cleared; and

4)  Root ball excavation holes have not been filled in the open space.

Mr. Weiner reported that on September 15, 2009 he had written a letter to the Township about issues that had not been addressed (walking trails flood, downstream flooding, excavated areas not backfilled, dead trees, etc.).  Mr. Weiner asked why these items were not included in the Knight Engineering letter.  Mr. Gray explained that he did not have the authority to include additional items that were unrelated to the approved plans in the maintenance period punch list after the dedication agreement had been signed. 

Discussion followed about concerns that the liner was breached in a basin, but it was found not to be true. 

Mr. John Cunningham commented that the logic in the Township ordinance was not to control the amount of water coming off a development but to control the rate at which it was released.          Mr. Cunningham thought that people outside this development were getting water at a higher rate and questioned whether that was not enough evidence that letters from the consultants had a problem.  Mr. Gray explained that it was difficult to see the difference in rate and therefore engineers must rely on the way the basin is built (sufficient volume, outlet structure configuration, etc.) and there was no reason to believe the rate was greater now.  Mr. Weiner noted that the dedication agreement included language about function and not just structure.  Mr. Prajzner questioned a comment made by Mr. Gray in a review letter in which he said, “Although not built as designed…”  Mr. Gray explained that all changes were reviewed and approved.  Mr. Gray added that the basin was built to standards on the construction plans within construction tolerances.

Mr. Weiner read language from the maintenance agreement regarding function of improvements. 

Mr. Rowan commented that the purpose of the maintenance bond was to make sure everything in the development worked and if it was not working then there was an issue.  Mr. Weiner noted that parts of this development were not working properly.   

Discussion followed about a letter issued by former manager Ray Stepnoski in July 2007 which waived items with the Cutler attorney.  Mr. Weiner noted that he did not know what authority the prior manager had to make decisions on waivers. 

Mr. Prajzner announced that if the Township would indemnify him, he would go home.  Solicitor Smith explained that the Township would not indemnify anyone. 

Mr. Weiner commented that the Township was aware of enough information that they could hold the money.  Solicitor Smith explained that they could either call it or let it expire, but not “hold the money.”  Mr. Weiner suggested releasing part of the money and calling the rest.  Solicitor Smith explained that a partial release could not be done and observed that it seemed the HA wanted the township to bring litigation on their behalf rather than the HA doing it themselves. Mr. Smith noted the risks and costs of litigation and explained that the Board must consider and protect the interests of all residents, not just the residents at Reserve at Holicong. Solicitor Smith again explained the Township had secured on the HA’s behalf the right of the HA to bring litigation, if they were unhappy.   Mr. Forest asked if filling holes was part of the dedication agreement.  Mr. Forest asked of the HA list of issues, how many were on the agreement signed by all parties.  Solicitor Smith noted that the agreement was sent to the HA prior to the meeting.  Mr. Weiner referenced paragraph 6 and the requirement to “remedy any defects in any said improvements…”.

Mr. Joel Nace asked what happens when improvements do not work.  He asked if a property owner was told he had the right to litigate, but did not have the money to litigate was his only recourse to let his property wash away.

 Solicitor Smith questioned why the HA asked to be a third party beneficiary if not to have enforcement rights of their own.  Mr. Weiner responded that the Township had in its hands the leverage against Cutler and they were asking the Township to use it.  Mrs. Rash asked if the basin had ever overflowed.  Mr. Barnett answered it had not but it had come to the walking path.  Mrs. Rash commented that it sounded like the basin was functioning.  Discussion followed about the flooding from the Fisher farm being an existing condition and Mr. Fisher denying Cutler the right to go on his property.  Mr. Rowan noted that the Township had an interest in protecting from excessive water.  

Mr. Jim Tallia commented that water was not running down Holicong Road but was going to the drainage basin.  Mr. Gray explained that the idea was that water fills up in the basin and then goes out slowly.  Mr. Tallia commented that there was no proof that the basin was operating per design.  Mr. Gray explained that calculations were done showing what happens before and after development.  Mr. Tallia asked if the flow rate was field tested.  Mr. Gray explained how calculations were done (by national standards) and that there was no real life study as part of any regulations.  He explained that if a sample were taken now there would be no predevelopment comparison.  Mr. Tallia felt it would be hard to prove that it was operating as defined.  Mr. Gray explained that the orifice gives a specific amount of flow.

Mrs. Rash asked why Cutler did not have to remove dead trees.  Mr. Gray responded that they were not a result of construction.  Mrs. Rash asked if there was a certification of the basin.  Mr. Gray explained that they compare what was built to what was designed; the basin was built in conformance and within construction tolerances.  Solicitor Smith noted that minutes from the night the property was dedicated note that Cutler did not want to get equipment into the open space, but that Mr. McBride had agreed to meet with the HA at the site and the HA was satisfied with that and did not ask it be, part of the dedication agreement. 

Solicitor Smith noted that the HA Counsel was present the night the dedication agreement was voted upon.  Mr. Weiner responded that they were not a part of negotiating the agreement.  Mr. Weiner asked why the Township would not require Cutler to take care of a 3’ pond or remove dead plants.  Mrs. Rash responded that Cutler was not allowed to go into the open space. Mr. Rowan commented that he had to believe the three foot deep 50’x20’ pond was not there during preliminary plan review or else it would have been discussed.  Discussion followed about asking Cutler to put in a pipe.  Mr. Gray responded that it would not work because there was not enough fall.  Mr. Barnett felt the basin could be fixed for as little as $1,000. 

Mr. Rowan commented that he agreed with Mr. Joel Nace.  It sounded like Cutler tried to put in a pipe and it did not work and then nothing else was done.  Mr. Gray explained that the pond had been looked at multiple times and it was determined that it was outside of the limit of disturbance.   

Ms. Dell Martin commented that other people who live outside the development use the path too and it was a safety issue.

The Board adjourned to exec session at 12:30am

The Board reconvened at 12:55am

Mrs. Rash reported that the Board had held an extensive discussion about the legality of calling a bond.  Solicitor Smith explained that this was a $482,000 bond which required a confession of judgment, someone must sign a verification and affidavit saying Cutler defaulted under the agreements.  Solicitor Smith did not believe there was anyone in the Township given the consultant’s letters that was willing to swear to that and take on that risk for financial damage to the Township if the bond was not called properly.  Solicitor Smith explained that the Board had reviewed minutes and recalled that at the March 26, 2008 meeting Mr. Weiner thanked the Board for the third party beneficiary status and announced that they had reached an agreement with Cutler about the root ball excavation holes.  At that same meeting Mr. Weiner reported that Mr. McBride had agreed to meet on site to rectify the situation with standing water near the walking trail.  Solicitor Smith explained that those items were not included in the Board dedication agreement because the HA had reached side agreements.  Mr. Weiner asked about the standing water.  Mrs. Rash responded that the Board was trying to come up with a solution that would take care of the safety issue.  Mrs. Rash proposed putting up a split rail fence to fence off the area along the walking path where there was potential danger in order to deter children or others from running in there or getting caught in the water.  She explained that it was not in the agreement and they could not hold Cutler to doing the drainage.  Mr. Barnett did not think a fence was a good solution noted that they would have to replace a wood fence every few years.  He felt they had to get the water out of the area and put it on Holicong Road.  Mr. Barnett suggested holding 50% of bond.  Solicitor Smith again explained it was an all or nothing situation.  Solicitor Smith offered to assign rights to the HA if they wanted to argue.  Mr. Rowan suggested a plastic fence, however, Mr. Barnet did not like the atheistic of the plastic fencing.  Discussion followed regarding the standing water on the trail. 

Mr. Weiner noted that the HA received the agreement the night it was signed and that it was not a negotiated agreement.  Solicitor Smith again cautioned the Board not to put the Township at risk for pulling a bond of that size when they had consultant letters saying that everything was done.  Solicitor Smith reminded the HA that they were made 3^rd party beneficiaries so that they could pursue the developer if they thought something was not right.  Mr. Forest noted that the HA had not shown the Board any structural defects. 

Ms. Dell Martin asked if the Cutler attorney was not present because he knew the money would be released.  Solicitor Smith responded that he did not know why the Cutler attorney was not present. 

Mr. Rowan commented that minus the downstream water issue, the repairs here were relatively small.  He felt that for the level of repairs the risk was too high for the Township to call the bond.  He noted that filling holes and moving trees were minor issues and a fence could address the safety issue of the standing water.  The Board agreed that they might be willing to help with a solution like a fence because it would be cheaper, quicker and more reasonable; however they would require an agreement so the Township could not be held liable.  Discussion followed about dumping gravel. 

Mr. Jim Moran asked if a fence would reduce the liability.  Solicitor Smith recommended that they consult their counsel but noted that there were limitations on liabilities for natural feature and that putting a fence around it would address some liability issues.  Mr. Rowan noted that the greater safety issue at the development was the large pond.  Mr. Prajzner noted that pond maintenance had not yet been discussed.  Mr. Gray noted that the information was attached to easement agreement.  Mr. Gray agreed to go out and discuss with the HA the required pond maintenance.  Mr. Barnett noted that they did coerce Cutler to put up four signs around the retention pond.  Discussion followed about removing the walking trail around the pond.  Mr. Rowan noted that kids would go there whether there was a trail or not. 

Mrs. Rash summarized that the Township would help out by getting rid of fallen trees and that they could try a fence along that portion of the path.  Mr. Barnett asked if the Township would support the HA if they wrote a letter to Cutler asking for drainage.  The Board responded they would.

Mr. John Cunningham questioned how the Township could justify spending his money on something for the Reserve and its HA for something that has nothing to do with him.  Mrs. Rash explained that she saw a room full of people who need a little help and the Board was opting to help in lieu of putting the Township at risk for many thousands of dollars.  Mr. Cunningham felt his tax dollars should not be used for this.

Mr. Cliff Radal asked if the Board could help with the engineering design to remove the water.  Mrs. Rash responded that the Township could not take on the cost of engineering.  Mr. Rowan felt the HA still had options with Cutler. 

Mr. Joe Jagelka, asked if the HA had had a conversation with David Cutler.  Mr. Prajzner responded that they had issued many letters but have not gotten a response.

Ms. Martin asked if the money was released because it was determined that everything was installed and functioning properly, then would the development no longer be responsible for anything downstream.  Solicitor Smith deferred to HA counsel but noted that someone would have to prove that downstream problems were a result of the development. 

Mrs. Rash made a motion, seconded by Mr. Forest  allow the Maintenance Bond for “The Reserve At Holicong”, Township File SA 98-11to expire and authorize the pursuit of the $11,659.02 and any additional billings coming in for review from the Developer.  The motion carried unanimously.

 11.  Consideration of accepting the Agreement to Extend the Land Development Contract to January 14, 2011, covering “Bucks County Airport Authority”, Township File LD 2001-03A.

Mrs. Rash made a motion, seconded by Mr. Forest to accept the Agreement to Extend the Land Development Contract to January 14, 2011, covering “Bucks County Airport Authority”, Township File LD 2001-03A.  The motion carried unanimously.

12.  Consideration of accepting the Agreement to Extend the Residential Development Contract to January 12, 2011 covering “Amberleigh”, Township File SA 2001-11.

Mrs. Rash made a motion, seconded by Mr. Forest to accept the Agreement to Extend the Residential Development Contract to January 12, 2011 covering “Amberleigh”, Township File SA 2001-11 noting that the Wachovia Tripartite agreement was replaced by cash escrow in the amount of $139,389.45.  The motion carried unanimously.

ESCROW RELEASE

Mrs. Rash made a motion, seconded by Mr. Forest to approve the above listed escrow releases minus the amount owed, $163,732.48. 

Joe Jagelka asked if in light of the previous if there were any items that needed to be addressed in this neighborhood.  Solicitor Smith explained that this was an interim release based on work completed and this was not the final release.  Mr. Jagelka noted that there were still issues with drainage in yards.  Mr. Gray asked if the homeowners had notified the Township of the issues.  Mr. Gray noted that this development was getting close to dedication (summer of 2010 at the latest) and that residents need to make the Township aware of any problems.   

The motion carried unanimously.

REQUEST FOR PAYMENT

Mrs. Rash made a motion, seconded by Mr. Forest to approve the above listed requests for payment.  The motion carried unanimously.

19.  Consideration of approving Resolution 2103 Disposing of Surplus Property having an Estimated Value less than $1,000.00.

Mrs. Rash made a motion, seconded by Mr. Forest to approve Resolution 2103 Disposing of Surplus Property having an Estimated Value less than $1,000.00.  The motion carried unanimously.

20.  Consideration of approving Resolution 2104 Declaring Buckingham Township’s Support for its Elected Tax Collector.

Mr. Rowan made a motion, seconded by Mr. Forest to approve Resolution 2104 Declaring Buckingham Township’s Support for its Elected Tax Collector.

Mrs. Cozza summarized that the resolution was in support of the combined efforts of tax collectors in the Central Bucks school district in defense of an appeal by the school district ruling at a district court level.  Mrs. Cozza noted that Buckingham had removed a provision about utilizing the township Solicitor and had added specific language objecting to the provision of the Central Bucks School District Resolution in which it states that when taxpayers pay both the school district and the municipal tax in a single payment, the School District will hold the monies collected to return to the municipality but gave no procedure for its return.  Mrs. Rash asked if the tax bill could be changed so that people were not sending school taxes to the Buckingham tax collector.  Solicitor Smith explained that it could not be changed.  The motion carried unanimously.

ADDITIONAL BUSINESS / MANAGER’S ITEMS

1.  Consideration of request to permanently waive the township room usage fee for the Lahaska Room, submitted by Jan Tompkins, for use by the Buckingham Township Civic Association.

Mrs. Rash made a motion, seconded by Mr. Forest to not permanently waive the township room usage fee for the Lahaska Room, submitted by Jan Tompkins, for use by the Buckingham Township Civic Association.  Mr. Forest and Mrs. Rash expressed a preference to consider the waiver on a yearly basis.  The motion carried with Mrs. Rash and Mr. Forest voting aye and Mr. Rowan voting nay.

2.  Consideration of accepting a three-year contract (January 2010 through January 2012) with Emergency Generator Repair Co. of Perkasie, PA, in the amount of $18,885.00 +/-.           

Mrs. Rash made a motion, seconded by Mr. Forest to accept a three-year contract (January 2010 through January 2012) with Emergency Generator Repair Co. of Perkasie, PA, in the amount of $18,885.00 +/-.  Mr. Rowan asked how many emergency generators there were.  Mrs. Cozza responded there were about 15.  The motion carried unanimously.

Mr. Forest made a motion, seconded by Mrs. Rash to adjourn the meeting at 1:50am.  The motion carried unanimously.

Approved by the Board of Supervisors on the 13^th  day of January, 2010.

Buckingham Township Board of Supervisors

Jon Forest, Chairman    

Maggie Rash, Vice-Chairman

Henry W. Rowan, Member

Attest:  Dana S. Cozza, Secretary