At a July meeting of the Newtown Township Board of Supervisors, counsel for the Kushner Real Estate Group (KRE) asked that Supervisor John Mack be disqualified from voting on a zoning ordinance validity challenge. The vote stems from KRE's proposed 245-unit multistory apartment building on Lower Silver Lake Road near the Newtown Bypass.
Attorneys Ed Murphy and Joseph Blackburn, on behalf of KRE Upper Macungie Associates LP, filed a substantive validity challenge arguing that the current Newtown Township zoning ordinance does not address multi-family, mid-rise apartments like what the developer is proposing.
Therefore, a curative amendment is needed — not unlike the one Newtown Supervisors approved in 2020 that cleared the way for development of a Wawa with gas pumps on Lower Silver Lake Road.
Blackburn submitted a motion asking that Mack be disqualified from the vote for displaying prejudice and bias against the development via emails, Facebook groups, and online blog posts. During the hearing, the board heard opening remarks from Murphy and Blackburn in addition to attorney Joseph Bagley, who is representing the township and defending the zoning ordinance.
Township solicitor David Sander explained that the July 12 meeting would only include introductory arguments. All parties agreed to continue the hearing during the supervisors’ Sept. 18 work session. At that point, the full scope of the case will be presented.
Murphy stated that a previously present zoning clause addressing mid-rise apartments was removed from the Joint Municipal Zoning Ordinance (JMZO) governing Newtown, Wrightstown, and Upper Makefield townships.
“What does exist in the jointure ordinance is a B-10 garden apartment use,” Murphy said. “Our view is that because of earlier appellate decisions, each municipality has an obligation to provide an avenue for market-rate apartments, not as part of some other performance subdivision mixed-use. You need to provide that use for the benefit of your residents and future residents."
Speaking in support of the zoning ordinance, Bagley said, "The burden of proof in the case is with KRE, they have to show that the ordinance as applied excludes a certain use. This is not based on any statements by the supervisors or planning commission members. It is a very statutorily mandated procedure, we base it on the ordinance as it's written and on the land it applies to."
On the subject of Mack, Blackburn said the supervisor has displayed a pattern of prejudice stemming from Facebook and blog posts expressing dismay and anger about the project and opposing all development on the Newtown Bypass.
"Mr. Mack has no intention of applying the law and has demonstrated and continues to demonstrate bias, prejudice, capricious disbelief, and prejudgment. He even overtly stated at your last meeting that he has no intention of applying the law."
"The fact that he had ignored the direction of Mr. Sander with respect to legal matters in the context of the consideration of the Wawa settlement, we feel that clearly demonstrates his unwillingness to adhere to the law. We ask that Mr. Mack recuse himself."
Responding to Balckburn's comments, Bagley cited township codes that dispute many of the KRE attorney's claims.
"The second-class township code says a member of the board shall not be disqualified from voting on any issue before the board solely because the member has previously expressed an opinion on the issue in either an official or unofficial capacity."
"I've seen this before from a challenger in a curative amendment case where they try to get one of the board members to recuse themselves. I have even seen the challenger file a motion with the court of common pleas and the court refuses to get involved because it's one that is solely within the jurisdiction of the board of supervisors."
In statements he published to his blog after the hearing, Mack echoed the solicitor’s remarks drawn from the second-class township code and noted that this isn’t the first time a developer has sought to “muzzle a supervisor, including me” and that those previous efforts failed.
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