Developer Vying To Build 4-Story Apartment Building Files Challenge To Newtown Twp. Zoning Law

A developer is challenging Newtown Township zoning law as one step in its bid to build a four-story, 245-unit apartment building at 42 University Drive, right off Lower Silver Lake Road in the township.

In a substantive validity challenge and request for curative amendment filed with the township through its local attorney on the project Ed Murphy, Bridgewater, N.J.-based KRE Upper Macungie Associates, LLP asserts that the joint municipal zoning ordinance makes no provision for a stand-alone apartment use. The JMZO governs zoning for Newtown, Upper Makefield and Wrightstown townships.

Relief requested in the document is “Determination that the Newtown Area Joint Municipal Zoning Ordinance is unconstitutionally exclusionary with respect to the legitimate and protected apartment use, for which use provision must be made in all Pennsylvania municipalities, and corresponding adoption of proposed curative amendment to cure such defect.”

Newtown Township Solicitor David Sander declined to comment on the challenge, other than to say that the township will contest it and the supervisors will hear the matter.

“I am sitting with and advising the board of supervisors in this matter as required by the MPC (Municipalities Planning Code),” Sander wrote in an email. “The township has engaged Joseph Bagley, Esq. to represent it in opposition to this curative amendment application.”

Bagley, who specializes in land use and zoning law, will be paid $250 an hour. The township has also engaged municipal planning consultant David Babbitt to help it on the case at a rate of $150 an hour.

Township Supervisors’ Chairman Dennis Fisher did not respond to a request for comment on the zoning challenge.

The property where the apartment building is proposed is a 17.87-acre tract that is Unit 3 of the Silver Lake Executive Campus Condominium Association, the zoning challenge stated. The SLEC now consists of one building housing a college and another with multiple office tenants.

Unit 3 of the campus, which is located in the Office Research zoning district and is just a few hundred yards away from Newtown Township’s border with Middletown Township, was laid out and approved for a four-story, 210,000 square-foot office building with 1,050 parking spaces that was never developed. The property remains vacant except for the association community stormwater basin, the zoning challenge continued.

Murphy asserted in the challenge, which is 95 pages including supporting documents, that the JMZO had provision for a B-11, mid-rise apartment use from 1984 until 2005 “but no use of this kind ever developed.”

Newtown Township then adopted an ordinance in April of 2005 eliminating the mid-rise apartment use from the JMZO, according to the zoning challenge.

“The JMZO participating municipalities never replaced or reinstituted the use by any further amendment,” it continued. “The township by and through its various boards and bodies has in recent months repeatedly acknowledged that the JMZO does not currently provide for an apartment use. The failure of the township’s zoning scheme to provide for apartments is unconstitutional.”

Arguments that Newtown Township provides for a variety of housing types and that garden apartments are allowed in conjunction with other uses within a development do not fly because the JMZO does not provide for apartments as a specific, stand-alone use, the zoning challenge asserted.

It goes on to state that if a request for a curative amendment is found to have merit, a municipality must either accept an applicant’s proposed curative amendment or prepare and adopt one of its own. A curative amendment prepared and approved by municipal officials in September of 2020 was part of the process that led to the Newtown Township supervisors recently approving a settlement agreement that will result in construction of a Wawa with gas pumps at the corner of the Newtown Bypass and Lower Silver Lake Road, roughly a mile away from the proposed apartment building.

So, in this case Newtown Township will have no other option but to accept KRE’s proposed curative amendment, the zoning challenge claimed. That is because municipalities are prohibited by law from adopting their own curative amendments within 36 months of the last time that happened, it continued.

In traffic and fiscal impact studies attached to the zoning challenge, KRE representatives asserted that the apartment building would have positive effects.

Regarding traffic, it would “result in 1,248 fewer trips over the course of a typical weekday than the presently approved 210,000 square-foot office building. That is assuming a 275-unit development as opposed to the 245-unit development in the plan attached, so the reduction would be even greater than stated.”

The apartment building would result in only seven public school-age children and would have net positive financial impacts on both Newtown Township and the Council Rock School District, according to the fiscal impact analysis.

“It’s anticipated to produce an annual surplus (revenues net of anticipated spending on services) of $254,266 for Newtown Township and $1,078,663 for the Council Rock School District,” it stated.