The regular meeting of the Planning Commission of the Township of Lower Makefield was held in the Municipal Building on October 22, 2001. Chairman Roeper called the meeting to order at 7:30 p.m.

Those present:

Planning Commission:

Albert Roeper, Chairman
Deborah Gould, Vice Chairman
Ron Tofel, Secretary
Edward Koch, Member
John Pazdera, Member


Nancy Frick, Director Zoning, Inspection & Planning
John Koopman, Township Solicitor
Duke Doherty, Township Engineer
Frank Fazzalore, Supervisor Liaison


Mr. Russell Tepper, Mr. Marc Brookman, attorney, Mr. Chris Burkett, engineer, of Gilmore & Associates, and Pam Conti, Orth-Rodgers, were present.

Mr. Larry Borda, representing RAM, stated he understands that under the Sunshine Law, Act 93, Section 101a, that there should be a reasonable opportunity for residents to comment prior to official action. He stated he also understands that they have the option to accept Public Comment at the beginning of the meeting and if this is the case, they would request on behalf of the 4,000 petitioners who have signed against the project and are not being paid for their attendance this evening, that they be permitted to speak first. He stated he feels this would take between one and two hours.

Mr. Roeper stated the Planning Commission does not receive any compensation. He stated the task of the Planning Commission is to make certain that any proposed development is done in according with Township Ordinances and any Development Agreement. He stated the Planning Commission has no authority to compel compliance or determine the rights of a developer. The net results of the Planning Commission efforts will be a recommendation to the Board of Supervisors. All authority rests in that Board. When an organization or an individual desires to develop a parcel of land, they must submit very detailed Plans which contain all necessary information required by Township Ordinances. These Plans must then be reviewed by the Township engineers and other required organizations such as the Bucks County Planning Commission, Sewer Authority, Fire Marshall, Conservation District, etc. When all of the reviews are completed, the developer is given an opportunity to appear before the Planning Commission and respond to any comments. This evening is the first time Matrix has appeared before the Planning Commission and the discussions will most likely be lengthy and Matrix may have to appear at a future meeting after the Plans have been modified to reflect the discussions this evening. Following the conclusion of the Planning Commission’s discussions with Matrix this evening, the meeting will be open to questions from the audience. They request that those present not interrupt before that time.

Mr. Brookman stated they are present this evening to request approval of the first Phase of the Octagon Center. He provided to the Planning Commission this evening, a reduced version of what they propose for Phase 1 which includes two retail stores and one office building. They also propose parking areas and traffic improvements as noted on the Plan.

Mr. Brookman stated Octagon Center was originally approved as the Bucks County Corporate Center in 1988 for Bellemead Development Corporation. At that time, the site was approved for 1,280,000 square feet of commercial and industrial uses as part of a Planned Office Park. The approval created in favor of the land and the owners of the land the rights to develop the land for a period of fifteen years. As part of that approval, there were requirements that the applicant going forward with respect to subsequent approvals, comply with the Ordinance criteria of 1988 and no subsequent changes in the Zoning, Subdivision, Land Development, or other Ordinances were to impact or impair that approval. Approximately two years ago, the applicant began a series of public meetings with the Board of Supervisors seeking to have the Plan modified and the Agreement amended. What is shown on Phase 1 includes the other portions of Octagon Center located in Lower Makefield Township that received Master Plan Approval by the Board of Supervisors on December 4, 2000. In addition to that Approval, the Board of Supervisors amended the Agreement and provided for a number of items including the reduction in the size of the development proposed to be in Lower Makefield Township from the original 1,280,000 square feet to 990,000 and accelerated and increased the amount of traffic improvements required for the development of the site. All of the proposed traffic improvements for the site in Lower Makefield would have to be bonded and installed as part of Phase 1. The Approval Agreement also provides for permission to use the site for those uses permitted under the underlying Zoning designations. A portion of the site is zoned C-2 and another is zoned C-3.

Mr. Brookman noted the comment letters received and stated he feels they will be able to comply with the comments and suggestions made. He stated because this matter is currently on Appeal to the Court of Common Pleas of Bucks County from the Land Use decision that was rendered by the Board of Supervisors, they are not prepared this evening to entertain or respond to any questions that may be the subject matter of that lawsuit which is currently pending before the Courts. Mr. Brookman stated they are asking for a nine lot Subdivision as part of the Plan and have also submitted a request for waivers which have been enumerated. He noted these waivers are to Section 11.173(a)(2) for the overall Plan dimensions, to Section 11.91(d)(6) for a reduction in the slope ratio from four to one to three to one, to Section 11.64(n) which requires pedestrian crosswalks, and Section 11.64(o) a request that not all of the proposed light standards be located in the islands proposed for the parking area in the retail portion.

Mr. Brookman noted the CKS letter dated 10/19/0. He stated with regard to Item #1 they are awaiting capacity information from Middletown Township and that analysis has been done in Lower Makefield Township. They have received letters from Bucks County Water and Sewer and have determined that they will be amending the original 537 Module for this site. They hope by the next Planning Commission meeting, they will have the capacity information and will provide all of this to the Township and its consultants. Item #2 was noted and they will comply with this request. He stated they have been meeting with Pennsylvania American Water Company and will provide an extension of a sixteen inch line to the site to provide water to the Octagon Center. Item #3 was noted and they will comply. Item #4 was noted, and Mr. Brookman stated they did try to obtain the existing Agreement referenced which has not yet been received. Subject to the review of that Agreement, they anticipate they will be able to comply. Items #5, #6 were noted and they will comply. With regard to Item #7, Mr. Brookman stated they must determine if there is a problem complying with the 30 foot width request in one area to the rear of the proposed retail stores where they agreed to provide a buffer. Items #8, #9, and #10 were noted and they will comply. With regard to Item #11, they are investigating the limitations of this with respect to Item #7 previously noted.

Mr. Tofel asked at what point in time they feel they will have the Service Agreement with the Water Company. Mr. Brookman stated they are negotiating the extension of the line at the current time and the expectation is that it will be in place at the time of Final Approval.

Mr. Brookman noted the letter from Mr. Yates dated 10/17/01. He stated a fire hydrant will be located in front of the Phase 1 Office Building, and they will provide a letter to Mr. Yates indicating this as well as update it on the Plan.

Mr. Brookman noted the PCS letter dated 10/18/01. He noted Item #1 which relates to the Waiver request he previously discussed regarding the size of the Plans. He stated all of the Plans do comply with the Zoning and Subdivision and Land Development Ordinance criteria except for the overview Plan which was done at a different scale because it was impossible because of the size of the Center to fit it on the page. The Planning Commission had no objection to granting this Waiver.

Mr. Brookman noted Item #2, and they will comply

Item #3 with regard to Tall Pines Road was noted, and Mr. Brookman stated they will review this request and discuss it with the Township Engineer.

Mr. Brookman stated they will comply with Items #4 through #11. They will also comply with Item #1 under Sheet Three - Layout Phasing Plan and Items #1, #2, and #3 under Sheet Four - Existing Feature/Site Analysis Plan.

Mr. Brookman noted the Comments under Sheet Six - Record Plan and stated they will comply with Items #1 through #5. With regard to Item #3, Mr. Brookman stated they will provide the additional information as part of the Revised Plan. Ms. Gould asked if they would be willing to change the configuration, and Mr. Brookman stated the configuration as shown was requested by the end users based on their experience. Ms. Gould stated she is concerned with experience they have had with other poorly designed parking spaces designed by other end users. Mr. Brookman stated they will make revisions to the drawings and provide them to the Township engineer. This will provide greater detail as to the movements that are occurring in this area to provide better traffic control. Ms. Gould stated the Township is going to ask the developer for a different configuration. She stated they should not return only with additional details, but should come back with changes to reflect what the Township is concerned about. Mr. Brookman stated he does not feel they have been provided with direction as to how this should be changed. Mr. Roeper suggested this matter be discussed with the Township Engineer and the Bucks County Planning Commission as they have made a similar comment. Mr. Brookman stated Item #6 is a Waiver request for relief from the pedestrian crosswalks and refuge islands at intervals not to exceed 200 feet. Mr. Brookman stated this Waiver request only applies to the Retail Stores 1 and 2. Mr. Brookman stated they have provided numerous plantings. He stated no pedestrian walkways were required at the Kohl’s Center. Ms. Gould noted Kohl’s Center was forced upon the Township and was not planned or approved by the Planning Commission. Mr. Brookman stated while he is aware of this, he used the Kohl’s Center in order to provide a visual standpoint. Ms. Gould stated the Kohl’s Center is a parking lot that does not work in the Township. Mr. Brookman stated for a large complex such as the Octagon Center it was impractical to provide the crosswalks on the Plan.

Ms. Gould stated she feels by eliminating the crosswalks, it is resulting in more parking for the applicant and is less effective for the Township in terms of visual appeal. Mr. Tofel and Mr. Koch were not in favor of granting the waiver. Mr. Pazdera asked if they looked at a lay out with the crosswalks. Mr. Chris Burkett stated they worked out two or three alternatives with regard to the parking lot; and after discussing the matter with their retail users, they were in favor of the Plan presented this evening. They have not re-evaluated the parking lot configuration in lieu of the Township’s comments. Mr. Pazdera stated he would like to see what the options are before he makes a final determination. Ms. Gould stated there is no guarantee that the end user they are working with now is definitely going to go into the Center nor will stay. Mr. Roeper asked that they follow Mr. Pazdera’s suggestion.

Mr. Tofel asked if they are aware who the end users will be, and Mr. Brookman stated Retail 1 will be a Sears Great Indoors which is a combination furniture and design center. Retail 2 is proposed to be a Lowe’s Home Improvement Center.

Mr. Brookman stated they will comply with all items listed under Sheet Seven - Record Plan and Sheet Eight - Record Plan. With regard to Item #1 on Sheet Eight, Mr. Brookman noted no additional right-of-way is required and all proposed improvements are located within existing rights-of-way. Ms. Gould asked the distance to the door of the existing residence, and Mr. Burkett stated it appears there is between seven and eight feet from the right-of-way to the existing structure The curbing will fit within the right-of-way by approximately one to two feet so it will be set back from the face of the curb approximately ten feet. Ms. Gould also asked where they will show the additional land bank parking for Office Building 1, and Mr. Tepper showed this on the Plan.

There was discussion on Sheet Nine - Grading Utility and Drainage Plan. Item #1 is a waiver request on the allowable slope. Mr. Brookman stated the original stormwater management plan had called for the same slope requirement. He stated the basins will be maintained by the Octagon Center Association rather than the Township. By allowing for this slope it will reduce the amount of trees that would have to be cleared. Mr. Doherty stated this has been done in the past in areas where there is private maintenance. It was the consensus of the Planning Commission that they would recommend this waiver.

Mr. Brookman stated they will comply with the remaining items on Sheet Nine.

Sheet Ten - Grading, Utility and Drainage Plan was noted and they will comply with Item #1. With respect to Item #2, they plan to meet with the Township Engineer to clarify this Item. Mr. Roeper asked if they will construct Tall Pines Road as far as the first office building and then continue it later, and Mr. Brookman stated this is correct. He stated the improvements that will be of a finished nature will go slightly past the proposed office building. The road however will be cut all the way through and will have a crushed stone base, but not finished. When you circle back to Big Oak Road, the improvements will be finished for approximately seventy-five feet, but beyond that it will be a stone base. It will be completely closed off and not available for any construction traffic.

Ms. Gould asked if they would consider completing Tall Pines Road in its entirety with Phase 1. Mr. Brookman stated they would not be willing to do this as they are installing all of the Oxford Valley and Big Oak Road improvements which are substantial. He stated Tall Pines is intended to serve the proposed Office Buildings only, and they are going to install that road so that there is access in and out off of Tall Pines to Oxford Valley. Ms. Gould stated she sees Tall Pines Road as another way to access the retail stores without having to delay at the light at Big Oak and Oxford Valley Road. She feels it would be better to allow this road as a secondary road into the site. Mr. Roeper stated there is a first Amendment to the Master Plan Agreement and it is conceivable that within that Agreement they do not have to complete Tall Pines. He stated the Planning Commission could make a recommendation to the Board of Supervisors that they consider this, however. Ms. Gould stated she is concerned that if the Office Buildings proposed for Phase 2 are not constructed, they will be left with a road that they cannot use.

Mr. Brookman stated Tall Pines Road is a private road that will not be dedicated to the Township. The traffic improvements that are going to be implemented before the stores are open are the full scope of traffic improvements to Big Oak Road, Oxford Valley Road, and Old Oxford Valley Road for the entire Park, even though they are only proceeding with Phase 1 of the development. He stated they are fairly confident through extensive analysis that the road improvements that they are implementing as part of Phase 1 can more than handle the scope of Phase 1 improvements since those same improvements have been reviewed by their engineer and the Township’s traffic engineer. Ms. Gould asked that they consider improving Tall Pines Road completely as part of Phase 1. Mr. Brookman stated the remainder of Tall Pines Road as they are currently proposing will be available for use by emergency vehicles even though it will not be available for public use.

Sheet Eleven Grading, Utility and Drainage Plans were noted. Item #1 was noted previously which is the Waiver request which the Planning Commission has agreed to recommend. They will comply with Items #2, #3 and #4. With regard to Item #5 Mr. Brookman stated those sheets relate to sheets that are reviewed by those agencies. Mr. Burkett stated that the application to the Bucks County Conservation District included the entire build-out of this proposed facility in Lower Makefield Township as was their request so that Plan Set was a larger Plan Set than Lower Makefield was reviewing. He noted they only reviewed the Grading Sheets and once they went through the first set of reviews, they only submitted three sheets back to them where they required changes. Mr. Burkett agreed to clarify this item with Mr. Doherty.

Sheet Fifteen - Landscape and Lighting Plan was noted. With regard to Item #1, Mr. Brookman stated they will review the Plans and correct any conflicts which may exist.

Item #2 is a Waiver request. Mr. Brookman stated they have shown some light standards located around the perimeter but eighteen of these are located within the parking area and have a concrete base and the pole extends from that. The reason for this is the Plans call for trees to be installed, and they were concerned that the lighting would be diffused if the poles were located in those islands by the tree cover which exists during a portion of the year. The standard way of locating light standards is often a combination of in the parking lot or in the islands, and they have provided both. Mr. Brookman stated they could re-study this in light of the island/pedestrian crosswalk question. Mr. Tofel asked if they could separate the Landscape and Lighting Plans and then provide a composite so that it is easier to review. The applicant agreed to provide this. Mr. Brookman stated they will comply with Items #3 through #5. Ms. Gould asked if they would consider reducing the height of the light standards noting none of the other light standards in the existing shopping centers in the Township are of the proposed height. Mr. Brookman agreed to look into this. Ms. Gould stated at a lower height she feels this will provide a more comfortable lighting situation and will be less glaring. She stated she recognizes that this proposal is more expensive. Mr. Burkett asked if they would consider a mix of the lights. Ms. Gould stated her concern is with the height and she would prefer to have more light standards but that they be at a lower height.

Sheet Seventeen - Landscape and Lighting Plan was noted, and Mr. Brookman stated they will comply with both items.

Sheet Twenty-Five - Standard Construction Details was noted, and Mr. Brookman stated they will look into Item #1. Mr. Brookman stated they will need further discussion with the Township engineer regarding Item #2 relating to the materials to be used in constructing the roadway. They will comply with Items #3 through #6.

Stormwater Management was noted, and Mr. Brookman stated the Township engineer has indicated that the calculation information was not of sufficient size so that it was difficult to review. They will enhance the size of the type so that it is more readily able to be reviewed by the Township engineer.

He stated under General Comments they were asked to submit PennDOT plans for Big Oak Road and Oxford Valley Road, and these plans have been submitted to the Township together with comment letters. Mr. Doherty noted he did review the comments from PennDOT on Big Oak Road, and they are only reviewing as far as Old Oxford Valley Road so that the last portion has not been reviewed. Mr. Brookman noted that is the portion that is under PennDOT jurisdiction. The balance of the road from that location through to the Township border with Middletown Township will be reviewed by Mr. Doherty.

The Bucks County Planning Commission letter dated 9/18/01 was noted. Mr. Roeper stated he feels the only item that was not previously covered is #9 with respect to traffic concerns. He stated he understands that Orth-Rodgers and the Township’s consultant have discussed this and have stated that they have taken into consideration the changes which have occurred, the type of use involved, and some of the traffic coming from different directions. Mr. Roeper suggested that those two individuals meet with the Bucks County Planning Commission and discuss what changes they have taken into consideration so that they can either satisfy the Bucks County Planning Commission or consider the recommendations made by them before further discussion before the Lower Makefield Planning Commission. Ms. Gould asked if they are willing at this point to entertain another traffic study if that is what Bucks County Planning Commission requests. Mr. Brookman stated he would not want to commit to any further traffic study until after the meeting. Ms. Gould stated she is concerned with the timing of a future traffic study since it would then most likely be done in February which would not be useful. Mr. Brookman stated studies were done at other times of the year by the applicant’s traffic consultant and the Township’s traffic consultant. Mr. Roeper stated from the time of the original traffic study and the final data some adjustments were made, and he feels these should be taken into consideration and considered whether they are adequate.

Mr. Tofel stated according to the Bucks County Planning Commission letter, there should be a total of 54 handicap parking spaces and he only sees a total of 28 on the Plan. Mr. Brookman stated at the time the project was approved in 1988 there were no handicap requirements in the Ordinance so they have complied with the Federal criteria and have provided the necessary spaces to meet those requirements. Mr. Burkett stated they have already discussed this matter with the Bucks County Planning Commission. Mr. Roeper stated if they meet the Federal standards, he does not feel more are necessary.

Mr. Pazdera asked for information on the phasing of the road improvements. Mr. Burkett stated the colored areas on the Plan provided this evening show the areas of improvement that are included in Phase I. This will include all of Big Oak Road. Ms. Pam Conti, Orth-Rodgers, stated on Big Oak Road they will begin on the eastern and western end with tie down points and traffic will be maintained on existing Big Oak Road while the two tie down points are being constructed. One lane in each direction will be maintained the entire time which is what exists today. She noted there will be three phases of construction - the east end, the west end, and the center portion. Most likely this will take one construction season which is approximately a month or two for each of those phases. She stated a construction season typically starts the end of April and goes until the middle of October. Mr. Roeper noted Oxford Valley Road will be open all the time although there will be a shifting of traffic.

Mr. Tofel asked the color of the proposed light that will be distributed onto the parking lot, and it was noted it will be white light.

Mr. Roeper asked if there was a representative from Middletown Board of Supervisors or Planning Commission present who would like to speak, and Mr. Charlie Harbison, Chairman of Middletown Planning Commission, was present. Mr. Harbison stated he hopes that when Matrix comes before his Board that they come with a clean review letter. He noted when Matrix previously appeared before them there was discussion on the improvements to Big Oak Road, and he would suggest that they take those improvements further down Big Oak Road.

Ms. Gould asked that the developer re-design the Plan so that there is less of an impact on the community than as it currently exists. She noted the land bank for parking and stated it appears that it will be built even closer to Oxford Valley Road rather than giving the Township green space. She stated she would prefer to see either green space and/or attractive buildings as opposed to parking spaces. Mr. Brookman stated they recognize that the buffering of the project from the roads is very important to the Township and the community. They have incorporated significant landscaped buffers between the roads and the development. They also feel that the buildings they will construct will be attractive and they have presented renderings in the past that suggested what the buildings may look like. Mr. Tofel stated it appears that Office Building #1 is 300 feet from the road and that there is a tremendous landscaped berm along Oxford Valley Road.

Mr. Roeper opened the meeting to Public Comment. He asked that those speaking confine their comments to the discussions which were held this evening. He stated they are not interested in comments which would be better directed to the Board of Supervisors.

Mr. Larry Borda provided a packet of materials to the Planning Commission that he asked be made part of the record. He agreed to provide a copy to Ms. Frick prior to his departure. He stated more than 4,500 petitioners have objected to this project. He noted the information provided from the Commonwealth of Pennsylvania Department of Community and Economic Development Planning Series No. 2, excepts of which have been included in the packet of materials provided this evening. He read portions from the packet pertaining to the duties of Planning Commissions. He asked that the Planning Commission consider the impact on the community from this development and filter the residents’ concerns to the Township Supervisors which to date the residents have had very little opportunity to convey. He stated the residents share many of the concerns that have been addressed by the Bucks County Planning Commission in its letter dated 9/21/01. Specifically, they are asking that the appropriateness of the project with respect to this particular zoning in this area be looked at. He stated it was noted by the Planning Commission when the initial project was proposed, that there was a limitation on the number of 10,000 square foot plus buildings that were allowed on this site. Bucks County Planning Commission has noted that there is one too many buildings within the context of that criteria. Mr. Borda stated the C-3 Zoning indicates that if there is a shopping center, an exception is required that must be reviewed by the Zoning Hearing Board. Mr. Borda stated he feels this is a shopping center and has been referred to as such in the Township Supervisors meeting Minutes. He feels this matter is therefore not appropriately before the Planning Commission at this time. Mr. Borda stated they have asked Mr. Sugarman, attorney in this process, to be present this evening to speak about the manner in which this project has been approved; and by virtue of the manner in which it has come before the Planning Commission today, it is wrongfully so in that it has not given them the opportunity to deal with it through proper channels.

Mr. Robert Sugarman, attorney representing the Residents Against Matrix, was present and noted the Bucks County Planning Commission comments which raised issues related to Zoning. He stated they have learned that there is a proposal to create a number of lots - i.e. a Subdivision - and there is nothing that he can find in the Amended Agreement of 12/04/00 which authorizes a Subdivision. He stated this is therefore a new application for a Subdivision. Under the Subdivision Ordinance, a Subdivision cannot be approved unless it complies with Zoning. Since this is a new Application for a new Project - i.e. a Subdivision, they have no basis either in the 1988 Agreement or the Amendment to preclude consideration of compliance with the present Zoning Ordinance. They believe that a Subdivision, over and above anything they have asserted in the lawsuit because the Subdivision had not been proposed at that time, triggers a requirement that the project comply with the current Zoning Ordinances. Mr. Sugarman stated the idea of the Supervisors granting approval to a Plan on the basis that it was "grandfathered," reflects a voluntary action on the part of the Township. To that extent, it arguably preempts this Commission’s jurisdiction. Mr. Sugarman stated they ask that the Planning Commission, from a planning point of view, comment on the desirability of that Amendment to the Agreement and to the Plan. He stated he does not feel the Supervisors were legally obligated to approve the Agreement. He stated it is irrelevant that the square footage has been diminished when it comes to the impact on traffic and other items. He stated the traffic impacts were dramatically increased, and the Supervisors made a voluntary decision to do that. Mr. Sugarman stated there is no obligation under any Agreement or any Ordinance for the Planning Commission to accommodate end users. He stated they are asking the Planning Commission to uphold their own Ordinances. He asked that the Planning Commission turn down the request for a Subdivision because the Subdivision proposal does not comply with current Zoning requirements.

Mr. Sugarman stated they are confused about the nature of the application which is before the Planning Commission. He asked if this is a Final Plan Approval as has been reported, and questioned whether there was a Preliminary Plan Approval. He asked why they have been allowed to bypass Preliminary Approval. He asked if this is for Final Approval, have they complied with all of the provisions of the Ordinances that are applicable. He stated as noted in the handbook, the mandate for the Planning Commission is broad and is to look into all the Planning factors. He asked that they look at them in light of Lower Makefield’s Ordinances. He questioned why waivers should be granted for a bad project.

Mr. Roeper stated normally a project of this size would come before the Planning Commission first as a Sketch Plan. This would be followed by a presentation to the Board of Supervisors. A Preliminary Plan would then be presented followed by a Final Plan. Mr. Roeper stated these planning steps took place from 1988 through 1991, and the Township executed a Development Agreement. That Agreement says that if they want to make a change to the Final Plans which were approved in 1991, that they only have to submit a Final Plan. He stated the Planning Commission is therefore denied the normal input of Sketch and Preliminary. He stated they are also bound by the fact that the 1988 Ordinances apply and not those in existence at the present time. The Development Agreement further specifies the rights of the developer and severely limits the actions or recommendations which the Planning Commission would normally make.

Mr. Koopman stated what Mr. Roeper has indicated is correct, and the Planning Commission has to follow the dictates and the Agreement that was entered into back in 1988. He stated in December of last year there was an Amendment to the Master Plan that was entered into between the Board of Supervisors and Matrix. Mr. Koopman stated he is aware that issues pertaining to the validity of those Agreements are on Appeal to the Court of Common Pleas of Bucks County; but he feels that until and unless those Agreements are set aside and determined to be invalid, the Planning Commission is obligated to review the Plans that are before it in accordance with the terms of the Master Plan Agreement and the Amendment. Mr. Koopman stated the Master Plan provided for various uses and gave Bellemead or its successor, Matrix, a vested right for fifteen years to develop in accordance with that Approved Master Plan and in accordance with the Ordinances that were in effect in 1988. He stated unless and until that Agreement is determined to be invalid, the Planning Commission is constrained legally to review the Plans in accordance with those constraints. He stated he recognizes that the Planning Commission has the right to make whatever recommendations to the Board of Supervisors that they determine to be appropriate; however with regard to making a recommendation for approval or disapproval, they are constrained to the Master Plan Agreement, the Amendment, and the Ordinances that were in effect in 1988.

Mr. Sugarman stated he feels since Mr. Koopman has indicated that the Planning Commission has the right to make recommendations they may feel appropriate in regard to this project, this gives them the right to express their views as to this project. Mr. Sugarman stated Mr. Koopman has not addressed the fact that there is an Application for a Subdivision which was not reflected or contained in the Master Plan or the Amendment. He stated a Subdivision opens up all the issues including compliance with Zoning. He stated the Applicant is therefore no longer adhering to the Master Plan that the Supervisors approved. He stated they are now proposing to divide into either or nine lots, and the Subdivision Ordinance requires that any such Subdivision comply with Zoning.

Mr. Koopman stated he understands that the Master Plan Agreement indicated that they had the right to develop in accordance with the Master Plan and in accordance with the l988 Ordinances. He stated the 1988 Ordinance authorized Subdivisions so he does not feel there is anything inconsistent with the Master Plan Approval.

Mr. Sugarman stated the Master Plan called for one unified tract. Mr. Doherty stated he disagreed, and noted it had several lots. Mr. Koopman stated even if it did not show lots, it did say you develop in accordance with a Plan and Ordinances that took place in 1988. He stated the 1988 Ordinance permitted Subdivisions.

Mr. Roeper asked that Mr. Koopman review this matter further. Mr. Roeper stated he was on the Planning Commission when the Final Plan for the Bucks County Corporate Center was approved; and while there was some objection to the development, in general there was not nearly the objection there is today. He stated the Planning Commission did consider that Plan and recommended it to the Board of Supervisors who approved it. Mr. Roeper stated the Planning Commission will take into consideration the comments being expressed when they make their recommendation to the Board of Supervisors.

Mr. Borda stated he feels a decision made thirteen years ago was for a Corporate Center as opposed to today where they are now dealing with extended stay hotels and huge, big boxes with all that is appended to them. He does not feel the Supervisors in a decision made thirteen years ago locked in the residents present today to accept such a totally different use.

Ms. Gould stated the Supervisors in office in December were the ones who locked the residents into this.

Mr. Borda stated he feels the Planning Commission should consider how this proposal fits in with the community. Mr. Borda stated they feel that this Plan will result in a horrendous impact on the community and that they should consider all options that might be available to the Township to appropriately reject the project. He stated they were going to ask that they seek a new Traffic Study based on the issues raised by the Bucks County Planning Commission and were glad to learn that Matrix has agreed to have a discussion with Bucks County Planning Commission on the issues that were raised since these are regional big boxes and will take traffic to a higher level. Mr. Borda reviewed items Mr. John Allen will address in terms of the traffic. Mr. Borda stated the MPC, Section 209.1 empowers the Planning Commission to prepare and present to the Board of Supervisors an environmental study, and they would ask that it be conducted for this project as the project contains the headwaters of Brock Creek which is the most important water system in the Township. He stated the Bucks County Planning Commission has noted that approximately ten acres of the wetlands contained on the project, which form a part of those headwaters, disappeared in the transition from the Bellemead Plan to the Matrix Plan. They feel that an unfinished dam that exists on the project that was partially constructed by Bellemead has dried up a portion of the wetlands and turned them into woodlands. He stated they want those wetlands back and feel they should be recreated in the condition that they were in 1988. Mr. Borda stated for 165 acres of prime agricultural farmland to be plowed under and in turn impact vital headwaters and wetlands absent a study on how this will impact the environment is wrong.

Mr. Borda stated this is the largest project that the Township will probably ever see. He stated the theme which runs through the Bucks County Planning Commission letter is that you cannot simply "piggy-back" onto a thirteen year old Plan while ignoring the major changes that are being proposed by Matrix or the impact it will have on the community. Mr. Borda stated he feels that the Planning Commission needs to re-evaluate the project in its totality. He stated the Planning Commission from Middletown Township rejected a Zoning change to accommodate this project. He stated the only thing this project will create after a ten year build-out is approximately one hundred dollars in tax ratables per household in Lower Makefield Township. Mr. Borda noted that Bucks County Planning Commission presented three pages of major concerns with the project many of which concur with some of the issues that have been raised by Matrix.

Mr. John Allen, 57 Egertown Road, Langhorne, stated he is the traffic expert for RAM. He is a New Jersey Department of Transportation Project engineer, and was present to speak to Exhibit B of the booklet provided to the Planning Commission this evening relative to the Traffic Impact Study. Mr. Allen stated he became involved in this project prior to the 5/7/01 Board meeting and was able to review the Traffic Impact Study and comment upon it at the 5/7/01 meeting. He was assured that his comments would be passed along to the consultants and responses would be forwarded to him. Approximately one and a half months later he did receive comments from Orth-Rodgers but only three of his ten comments were answered satisfactorily. Subsequently he received a letter from Parsons-Brinckerhoff supporting what Orth-Rodgers had done. He has requested, but not received, additional information. With regard to the traffic counts at the intersections on Oxford Valley Road, they were counted during the P.M. peak hours (from 5 to 8:30) in August and a Saturday count was done in February. Mr. Allen stated from his experience at 4:00 P.M. the traffic is already peaking. He is concerned starting the count this late, they have missed the true peak hour. The Saturday count was done 2/5/00. He noted the table for shopping centers from the Trip Generation Manual used by all Transportation Planners which shows that February has the least amount of traffic. He stated they conducted the count from 11:00 A.M. to 2:00 P.M. which misses the P.M. peak for Saturday shopping.

He noted the table from the Trip Generation Manual showing hourly variations for Saturday. He feels they should have counted both peaks and counted from 10:00 A.M. to 6:00 P.M. He feels that the counts used under-represent the true existing peak conditions and must be re-done.

Mr. Allen also noted the Background Growth Rates which are the rates used to grow the existing traffic to a future year condition. He stated Orth-Rodgers used a one percent per year growth rate and Mr. Allen feels that this is too low. He asked for documentation for what they used to develop this rate and they indicated to him that the one percent growth rate was appropriate based upon their investigation. Mr. Allen stated he did his own investigation by obtaining growth projections from the Delaware Valley Regional Planning Commission and they provided population/employment projections that show that the area around the Matrix site will grow at approximately 1.6% per year. He also stated he knows from living in this area that there are other substantial developments occurring. He also researched work done in Middletown where they ask their consultants to use a five percent per year background growth rate for all their traffic studies. Mr. Allen stated in his professional judgment he would consider a two percent per year background growth rate more reasonable and in line with what is actually occurring. He stated this is double what Orth-Rodgers used in the Matrix study. He stated the recommended improvements may therefore not work as presented in the study.

Mr. Allen stated he is currently working on a similar project where he commissioned another traffic count project to be done since the counts provided were done in February. He found that the traffic volumes were fifteen to twenty percent higher when they were re-counted at a different time of the year. He feels the proper counting program and background growth rate are extremely important in making sure that the right improvements are in place.

Mr. Allen noted the Bucks County Planning Commission letter, which he did not read, but did read the newspaper relating to this letter. He stated their concern was with the regional draw for the big box retail. They indicated that the number of trips oriented toward Route 1 and Interstate 95 may have been underestimated. Mr. Allen stated this relates to trip distribution which he also questioned, but did not receive any additional answers. Mr. Allen stated the Traffic Study shows that forty percent of the traffic will be coming from Big Oak Road up from Township Line and Railroad Traffic which he feels is high since on Route 1 it is only ten percent. He asked them to provide their equations or assumptions but these were not provided. He agrees with the Bucks County Planning Commission that this should be re-considered and revised.

Mr. Allen recommended that the Planning Commission strongly consider asking for a new Traffic Study. He added that he would be willing to participate in a new study and could help partner with the consultants, develop a new scope work, and review the product.

Mr. Borda stated the Bucks County Courier Times in its Editorial on 10/12/01 recommended another Traffic Study since the previous studies were conducted before the stores now under contract were part of the Plan and since the taxpayers would have to pay for future costs of road improvements. Mr. Borda noted this Editorial and other information is provided in Exhibit E of the booklet submitted this evening.

Ms. Maureen Friedman noted Bucks County Planning Commission’s comments regarding the difference in wetlands between the time Bellemead had the property and the current time. She stated it was originally 23.19 acres of wetlands and it is now approximately 10 acres. She feels this is because of an illegal dam which has been abandoned and not been monitored which has resulted in drying up of wetlands. Mr. Roeper stated he understands that the Corps of Engineers have made an up-to-date assessment and the Township consultant, Skelly & Loy agreed generally with the findings. Mr. Roeper stated they will accept what their consultants have indicated exist at the present time. Ms. Friedman noted the Aquatic Assessment and Characterization of Selected Streams which is Act 14 and was requested and paid for by the Township. She stated Brock Creek was found to be the major watershed. They recommended that all Ordinances that were in effect in 1997 be adhered to without waiver. She stated in order for wetlands to disappear according to EPA standards, you must mitigate them. She stated what has happened is not justifiable and it is not justifiable as to what has been recommended to be built around Brock Creek. She stated she hopes the Planning Commission will go back through the studies and Act 14 for Aquatic Assessment.

Mr. Roeper asked if there was a study made of the watersheds within the last two years. Mr. Doherty stated he is not certain what they mean by Brock Creek Watershed. Ms. Friedman stated a watershed is a water source. Mr. Doherty stated while he understands what a watershed is, he asked that they note on the Plan where Brock Creek is shown. Mr. Doherty stated he recognizes that Brock Creek runs through the Township but was not aware of it on this tract other than the one small portion in the corner. Mr. Doherty stated if they are insinuating that Brock Creek runs through the center of the site, he does not agree. Ms. Friedman stated this could be debated at a later date. Ms. Friedman noted the dam that was constructed by Bellemead and asked how they could question that it is not on the property. Ms. Friedman stated this dam is non-compliant.

Mr. Borda stated that according to the Aquatic Assessment, the topography on the site is such that while Brock Creek begins at the one corner of the site, the waters that feed the beginning of the Creek are coming from the interior of the site around the area where the dam was partially built. This is what they mean by headwaters. He admitted that he had not seen the Assessment. Mr. Doherty noted Mill Creek runs through the center of the site. Mr. Borda stated they are asking the Planning Commission to look at the Assessment that Ms. Friedman referred to dated 12/97 and prepared by Skelly & Loy and look at why there is a difference in the amount of wetlands. Mr. Borda stated he does not feel the developer should be rewarded for changing the status of the site as it exists with respect to wetlands when they built the dam. He stated whatever the wetlands were in 1988, is what the site should be returned to or have replaced in some fashion.

Ms. Gould stated when the wetlands are identified she would like to know more about the dam. She stated any corrective measures would have to be addressed prior to any identification of wetlands. Mr. Roeper stated a permit or approval must have been given.

Mr. Burkett stated the headwaters do go to Mill Creek and very little of this site is tributary to Brock Creek. For that portion that is tributary to Brock Creek, they have gone through a lot of grading measures to try to reduce impacts to Brock Creek. He stated this upland tributary to Mill Creek flowed where I-95 is currently located. In the 1960s when I-95 was constructed, it cut off the flow from the headwaters of Mill Creek and that Creek was conveyed in two culverts underneath I-95. He stated the dam being discussed was permitted in 1990 and the fill was actually placed under a current permit where the former developer, Bellemead, had permission to place fill in two locations - one of them in Middletown Township and one of them in Lower Makefield Township in association with their approved Final Plans as was referenced earlier around 1991. The fill was placed, the dam was constructed, and they put in sanitary sewer and water lines within the embankments in both of those locations. For some reason, Bellemead did not go ahead with their Plans. Because the final construction did not occur within five years of the Permit, those fills essentially became unpermitted fills. Associated with the fills at the time that the Permits were issued, the Army Corps and the State DEP required Bellemead to do wetland mitigations and there were four mitigation sites located throughout the project in appropriate locations in low-lying areas where the mitigation took place. It has been monitored every two years since then. There may have been approximately two acres of mitigation sites and not all of those areas took as wetlands. In the monitoring process, approximately seventy-five percent of those areas planted as wetlands as mitigation for those fills actually took; and part of what they now propose is to remove any of those fills that are not being used in the development. He noted a fill in Middletown Township that was a road crossing for the former application that in their permit with the State and the Corps, they will be removing and restoring those wetlands. He stated they will not be using the existing dam as a dam and propose to remove the outlet structure.

Mr. Burkett stated there is currently a six foot by eight foot reinforced concrete culvert that goes underneath the existing roadway and conveys water from a pocket of wetlands to the west down to Interstate 95. The applicant seeks to remove the inflow device which makes it act as a dam and simply put headwalls on it so the water will flow through and then they will retain all of their stormwater in the upland areas in the ponds. They will not be impounding stormwater in the wetlands as was the original intent of the Bellemead Corporation.

Ms. Friedman stated they are requesting an updated version in response to Act 14. Mr. Burkett stated they did go through the Act 14 notification process. Mr. Roeper asked if DEP needs to review the Plans, and Mr. Doherty stated this is correct and Mr. Burkett is in constant contact with them. Mr. Roeper suggested that they wait until they get the DEP comments and they will take them into consideration as well as all other reviewing agencies.

Mr. Borda asked about the disparity pointed out by the Bucks County Planning Commission between the Bellemead tabulation of wetlands versus the Matrix Plan. He also asked if the pre-development stormwater calculations assume the site condition as it exists with the dam and whether this will this increase or decrease those calculations. Mr. Burkett stated part of what was mapped as wetlands in 1988 was a good portion of a farmfield located outside of the wood line. He reviewed how wetlands are designated and stated what a designator saw in 1988 on a field that may or may not have been plowed at that point may be completely different from what they see after the field has been in cultivation for ten years. He stated this just one example of several areas on the perimeter of the wetland that could be changed. He stated he has seen on other sites that an evaluation that was done in 1990 may be completely different than something that is done in 2000 simply because the land has been used differently and there are deviations as to how the Corps makes interpretations.

Mr. Burkett stated with regard to stormwater management calculations, they are looking at the site in terms of the pre-development without evaluating the dam. They are looking at the water that comes onto the site and flows through the middle. He stated there is a watershed of approximately 70 acres on the east side of Oxford Valley Road that drains to the site via the stream channel. They are allowing this to go through the culvert and onto the culvert underneath I-95 and pass just as it does today so that pre and post-development in that area does not change. There are several small watersheds that reach up from that stream that drain to it. They have evaluated those streams pre and post for those sub watersheds that drain down to the stream channel and each one of the basins is at the low end of one of those sub watersheds and controls the difference between the pre and post run-off.

Mr. Borda asked what they propose for the dam. Mr. Burkett stated they would like to leave the embankment that exists and use it as a road crossing with a culvert. This will be proposed Tall Pines Road. He noted there is an existing culvert through the fill with inlets in the area and sanitary and sewer water lines stubbed off in this section. They propose to maintain the fill that is existing in that location and mitigate any wetland fills with the State and Army Corps permits. He also noted another area on the Plan where the wetlands are cut off which is an old road fill associated with Bellemead which they propose to strip out, remove the storm pipe, sanitary pipe, and water lines and bring it back down to its original grade and replant it in wetland vegetation and restore this whole area. The only wetland impact the project proposes is maintaining the existing fill as noted.

Ms. Friedman noted Mr. Burkett alluded to farming which may have impacted the wetlands designation, and she stated there has not been any farming on the site. Mr. Burkett stated there is farming going on now. He stated the area that he alluded to was in a farm field that is outside of the current woods line. In 1988 there was a finger of wetlands reaching up in this area and is a large part of the difference between what is wetlands today and what was wetlands then. Mr. Burkett stated the stormwater management program they have basically maintains pre-development rates and will hydraulically feed the wetlands. He stated if the project were to be developed under current regulations, you would have a 50% release rate. He stated this would dry up the wetlands. The old Ordinance said you have to have the same amount pre and post development. He stated the run-off will come from the paving and roof surfaces. He stated they have designed permanent ponds or biofilters that have wetland vegetation in them which will filter the water. He stated the existing condition as a farm field includes pesticides, fungicides and nitrogens that are currently going into the soils that are part of the farming operation on both sides of the stream corridor. That run off is currently going in totally un-mitigated into the stream corridor. Mr. Burkett stated they recognize that with their development they will add nitrates, phosphates and suspended solids to the stormwater; and they are therefore creating large ponds that filter this through detention time and through planting wetlands species that actually uptake some of those non-point pollutants as part of their metabolism and will filter the stormwater before it gets to the wetlands. He feels this concept does more for the water quality in the stream channel than do farm fields.

Mr. Borda stated he does not know the criteria DEP or the Army Corps uses in terms of how far back they go to see what was disturbed to create the existing condition. He feels they should not be rewarded for whoever it was that was farming this tract who changed the nature of the project. He asked that the Planning Commission consider this.

Mr. Mike Upton stated he feels the Planning Commission should consider proposed developments in the community and determine how they fit in the community and whether they are suited to the character of the community. He feels the residents of the community feel the Township is out of balance in terms of amount of development, the kind of development, and the traffic. He stated this project will push the Township over the edge. He stated permitting this project to proceed will allow this kind of retail which they do not currently have in the Township. Mr. Roeper asked how Mr. Upton would develop this land. Mr. Upton stated as a developer he would want to bring something into the Township that adhered to the characteristics of the community. He feels one of the commercial attributes that the Township tries to promote is small, specialty retail.

He would want to bring development into the Township that was of a scale that would adhere to the existing characteristics of the community. He would want to see something that would be people friendly - not traffic friendly. He stated this proposal would not require this amount of land. Mr. Tofel asked if he is suggesting something similar to Lahaska, and Mr. Upton stated this is what he would feel would be best for the site. Mr. Tofel questioned what he would do with the remainder of the tract since it is 185 acres.

Mr. Borda noted it is their contention that the Ordinance is written such that big boxes are precluded. He noted Section F of their booklet which contains pertinent articles against big boxes. He stated he is also concerned with duplication noting that there is another Lowe’s proposed nearby on Route 1.

Mr. Roeper stated in the 1990 what the Planning Commission envisioned for this property was something similar to Newtown Industrial Commons. Mr. Upton stated if this project was being developed according to the 1988 Plan, he does not feel RAM would be present. He stated there has been a major change of direction without involvement of the community and thousands of the residents in the Township are against this.

Mr. Borda thanked Mr. Roeper and the Planning Commission for listening to their comments and thanked Mr. Roeper for the way he handled the meeting.

Mr. Zachary Rueben stated when he moved into the Township, the property was zoned C-3 and it was to be a corporate headquarters with offices. He stated none of the residents are objecting to office buildings off of 332 or Township Line. He feels they should adhere to the original agreement. They are protesting big box retail. Mr. Roeper stated the charge of the Planning Commission is to review the Plans as submitted in accordance with Agreements already in existence.

Mr. Mike Kane, Yardley Meadows, read information regarding an application in another Township. He stated he feels big box retail is a very specific use and once it becomes vacant it is very difficult to re-use.

Mr. Koopman asked if they propose to continue the meeting to a date certain. Mr. Roeper stated Matrix is going to revise their Plans in accordance with the discussions this evening. When they have submitted the revised Plans and all of the reviewing agencies have addressed their comments, they will then schedule a further meeting. Depending upon the nature of the comments, he feels they will most likely have to make a recommendation to the Supervisors. He is not certain whether this will occur on the second or fourth Monday of November. Ms. Gould stated Matrix should understand that not everyone is satisfied with their comments with regard to the traffic study and either the traffic study should be amended to reflect a different percentage or they should initiate a new traffic study.

Mr. Roeper moved, Mr. Koch seconded and it was unanimously carried to adjourn the meeting at 11:02 p.m.