Upper Mount Bethel Township Engineer objects to elements of ordinance amendment for River Pointe developer Lou Pektor to be voted on this evening

On September 8, 2020, UMBT Supervisor John Bermingham held a Q&A session on the River Pointe zoning ordinance and SALDO amendment, also known as "Version 10".  In attendance were roughly 12 citizens, Mr. Bermingham, Supervisor Teel, Township Engineer Justin Coyle, and Township Manager Ed Nelson.

During this session, several residents asked pointed questions about the amendment, such as building height, building spacing, amount of potential building area, sewage disposal, road ownership, wear and maintenance, the process used to produce the amendment, and a reported effort to attach convenants to the properties targeted for development.  Additionally, resident Janet Pearson - the UMBT Open Space chair and former tax collector, presented research that called into question claims that 84% of land in UMBT is not taxed.  Ms. Pearson said she believes the actual number is in the 60s.

The most notable outcome of the meeting was that after citizens asked questions for over an hour - including one resident suggesting that buildings over 60 feet in height be conditional uses, Mr. Coyle made statements that reflect he would advise against adopting the proposed amendment in its current form - if he were asked for an opinion.  This is due to a few significant ways in which the township would be granting "by right" development of buildings and businesses.   Mr. Coyle stated that he would make his opinion known at this evening's meeting.  The question is how the amendment ever got this far without advice like Mr. Coyle's (and that of the LVPC) being taken into consideration and acted on...

Let's review how the process is designed to work, summarize what is known about how UMBT supervisors got to where they are today, and consider some comments made at yesterday's informal yet informative meeting.

The PA Municipalities Planning Code provides for a comprehensive plan, which lays out the goals of the community, including development, recreation, roadways, finance, etc.  UMBT is currently involved in an LVPC project called Plan Slate Belt, a ten municipality multi-municipal plan for the Slate Belt communities.

The zoning ordinance is statutory, and is to be written to achieve the goals of the comprehensive plan.

The MPC provides for planning agencies – a local planning commission, a county planning commission and regional planning agency (multi-municipal).  UMBT does not have the latter.  When a zoning ordinance or SALDO amendment is proposed, it is required by the MPC to request a review from all planning agencies.  Note these are advisory only – it is the supervisory body that has the authority to enact all legislation.

The Department of Community and Economic Development publishes a guidebook for township supervisors.  In this guide, it states the function of the comprehensive plan and describes how zoning ordinances are to be created.  The planning commission assists the BOS, and a professional planner should be utilized.  It envisions that the planning commission is the forum where community input and feedback may be received and used to shape the draft ordinance, and the result is sent to the BOS where their primary purpose is making the decision of adopting or not adopting the draft.  It states that the courts have found that ordinances passed without proper planning may be found to not be valid.  As the LVPC found in its review, proper planning has not been done.

Mr. Teel stated on 9/8/20 that he has worked for months on the amendment (note it was received in approximately March or April.  Significant ordinance amendments can take a year or more to draft, with a professional planner).  Mr. Teel is one person.  Drafting ordinance amendments is a process that requires airing of proposals and feedback from other unbiased community members.

The problem with the current draft, which is a “very significant change” (Township Engineer Justin Coyle of Carroll Engineering), and therefore requires a professional planner’s involvement, is it has not been guided by or received the recommendation of a professional planner.  The great majority of the process has taken place in private negotiations with a developer, and continues to be with the reported effort to negotiate deed covenants (which are not an element of any tool required or suggested by the MPC).  It is notable that a draft of purported deed covenants is not available to the public, and Mr. Teel reported on 9/8/20 that there has been no progress or agreement with the developer on them.

One citizen questioned why supervisors would seek to use deed covenenants to control development, when it is accepted to do this though the ordinance and SALDO.  Let the number of buildings and their placement be governed by the usual tool - the ordinance.  Mr. Teel did not have a good answer to this question, because there isn't one.  His answer was a poor excuse - "any changes to the amendment would have to be reviewed again by the planning commissions."  An amendment that requires significant modification does need to be resubmitted to the planning agencies - and there is a very good reason for that and it happens routinely.  You don't do a work-around no one has heard of to circumvent the process.  And Mr. DeFranco and Mr. Teel have already shown that they have no respect for the LVPC and the planning experts on its staff (see below).  Another resident pointed out that she as a homeowner needs a variance if she wants to do something on her property outside the ordinance - why should a developer be exempted from variances as the amendment proposes?

Furthermore, the only professional planner’s advice that has been received – which is from the county planning agency (LVPC), is both critical of significant aspects of the draft ordinance as well as having been ignored – willfully by at least one member of the BOS (DeFranco).  And another (Teel) has made comments that are consistent with those of the first.  Mr. DeFranco stated prior to receiving the LVPC’s recommendation “I don’t care what the LVPC says.”  This is not an indication of an open minded BOS member, acting based on competent advice, on behalf of his constituents.  Mr. Teel has stated (9/8/20) “I wouldn’t trust the LVPC – look at what they did to Tatamy.”  This is apples and oranges, assuming the LVPC recommended something that ultimately negatively impacted Tatamy.  The LVPC has cautioned UMBT that proper planning has not been done, that the environment may be impacted, criticized exempting a single use from zoning and SALDO regulations, etc – this is the opposite of the LVPC either missing something or advocating something that would cause a negative impact on UMBT and its citizens.

When asked by a citizen what the rush is to adopt the amendment, Mr. Teel responded that he has worked on the amendment for months and the developer has been trying to line up tenants.  This is not a justification for hurrying to adopt an amendment that is not designed to satisfy good community planning, but rather to satisfy the developer.  Mr. Coyle made comments that may have been designed to address the purported urgency or lack thereof - he pointed out that approvals for land development for storm water, soil disturbance, etc require over a year to be approved.  Furthermore, the DRBC is involved for water extraction in excess of 10,000 gallons a day.  Multiple attendees pointed out that while good manufacturing jobs are universally desired, it may be that no manufacturers at all materialize at River Pointe.  Mr. Teel's personal effort to achieve a goal he envisions is not a substitute for intelligent planning.

The only other professional advice appears to be that of the township engineer, who does not have an official say and has pointed out that he serves the BOS and should not have a position, but he also serves the Planning Commission and he has an opinion.  He stated on 9/8/20 at an unofficial meeting hosted by Supervisor Bermingham emphatically “Industrial business parks should be a conditional use”, and “building heights over 60’ should be a conditional use”.  “Making these uses permitted by right gives up all control the township has over an Applicant.  You can’t do that.”  Note that these two items in Version 10 of the draft would be considered uses permitted by right, if it is adopted.  Also note that it was in a meeting with several members of the community that Mr. Coyle made these statements, after hearing concerns from the attendees over the process and consequences if the draft were adopted.  This is the kind of interaction that should take place, over the course of several official meetings, in the process of drafting an ordinance amendment.

The process of drafting of an ordinance amendment based on requisite planning as laid out in the MPC, and followed by municipalities across Pennsylvania, has been turned on its head in the case of Version 10.  Proper planning has not been done on which to base the changes proposed, and the process of revising and updating drafts was not done at the planning commission, but rather in private, out of the public view – contrary to having public participation as is customary and expected.  It is believed that the township planning commission did not see any draft of the amendment until Version 10, and were given only hours to browse its 28 pages prior to meeting to review it.  It is also reported that at this meeting (July 15), BOS member Teel as Vice Chairman of the PC, stated “I don’t see why we have to go through every page.”  Note that the planning commission, as the entity responsible for maintaining and advising on updates to the ordinance, should go through every word of a proposed legislative amendment, in order to advise the BOS.  This calls into question to what extent the review was, and also Mr. Teel’s motivation in suggesting a cursory review, since he is also reported to be the chief negotiator with the developer.  Should a BOS member be recommending against a full review by the advising body, when that BOS member will vote based on that advice?  Should the person who helped revise in private an ordinance amendment, vote to advise the supervisory body that he also sits on to adopt said amendment?  It is further reported that Mr. Teel is now the Chairman of the planning commission.  

BOS members are to be making decisions as elected officials for their constituents, not in spite of them.  Numerous statements were made by the public against adoption of the amendment at the August 31, 2020 BOS hearing.  The process followed here suggests a potential dereliction of duty, if the draft ordinance is passed.