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 [on 15 May 2023] 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.”
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.”
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.
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*NOTE: According to the challenge "a municipality is foreclosed from attempting to prepare and enact a municipal curative amendment within 36-months following the date of enactment of a separately adopted municipal curative amendment or reaffirmation of the validity of its zoning ordinance."
The Newtown Board of Supervisors (BOS) approved by a 3-2 vote to adopt the E-30 (Wawa) so-called “curative amendment” on September 23, 2020.
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