Developer Wants Township Supervisor Recused From Hearings On Proposed Apartment Building

The first of what could be several hearings in Newtown Township Wednesday night on a proposed four-story apartment building in the township included a motion by one of the developer’s attorneys that Supervisor John Mack be recused from the matter.

Attorney Joe Blackburn and his partner Ed Murphy are representing Bridgewater, N.J.- based KRE Upper Macungie Associates LP in its bid to construct a four-story, 245-unit apartment building on a vacant 17.87-acre parcel at 42 University Drive, just off Lower Silver Lake Road.

The developer has filed a substantive challenge to the joint municipal zoning ordinance governing zoning for Newtown, Upper Makefield and Wrightstown townships, claiming that the JMZO unconstitutionally has no provision for a standalone apartments use. Its filing includes a proposed curative amendment.

At Wednesday night’s first hearing before the Newtown Township board of supervisors on the challenge, Blackburn said in submitting the motion that statements made by Mack in social media posts and blogs clearly indicate he has prejudged the matter and can’t be fair and impartial as is required of the BOS in these types of cases.

Mack has referred collectively to the KRE proposal, a recently-approved Wawa to be constructed just off the Newtown Bypass and an apartment building proposal for another part of the township as a “Newtown zoning Armageddon” and a “call to arms,” among other statements, Blackburn said. Mack voted against a settlement agreement recently approved 3-2 by the supervisors that paves the way for the Wawa.

“It’s my personal opinion that I’m entitled to,” Mack said after Wednesday night’s hearing in regard to his alleged prejudicial statements. “I will act according to how I’m advised by our counsel and in the best interest of the health and welfare of the township.”

Wednesday night’s hearing was about an hour and consisted mostly of introductory statements by Murphy, Blackburn and Joe Bagley, the outside counsel hired to represent Newtown Township on the matter.

The next hearing on the challenge – what Murphy referred to as the first “substantive” hearing – is scheduled for 7 p.m. Sept. 18 in the meeting room at the township municipal building, just off Route 413.

Bagley indicated Wednesday night he doesn’t think a recusal of Mack is required.

“The Municipalities Planning Code provides that no supervisor shall be disqualified from voting on any matter before the board simply for expressing an opinion,” Bagley said.

Murphy and Blackburn said that in substantive challenge/curative amendment cases, supervisors act not in their usual legislative capacity but as a quasi-judicial board judging matters strictly by the law.

“Mr. Mack has demonstrated and continues to display bias and prejudgment,” Blackburn said.

In addition to the motion to recuse Mack, Bagley submitted a motion to have certain references to statements made by township planning commission members and other officials regarding an apartments use that are contained in the challenge excluded from the record.

“The burden of proof is KRE’s to show that the JMZO excludes a certain use and that is not based on statements made by planning commission members or supervisors,” Bagley said. 

Regular Newtown Township Solicitor David Sander said both motions will be taken under advisement and decisions announced at a future hearing. Sander is sitting with the supervisors and advising them on the challenge but explained that according to rules in the MPC, he can’t act as the township’s official legal representation in the matter.