BOARD OF COMMISSIONERS by alicejenny

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									BOARD OF COMMISSIONERS
Monday, April 14, 2008
StoneBridge Conditional Use Hearing

President Steele called the meeting to order at 6:00 p.m. with the following in attendance:

       Comm. Briddell                 Elizabeth Heathcote
       Comm. Knepper
       Comm. Ness
       Comm. Silberstein

Prior to Attorney Courtney making his presentation, Comm. Silberstein questioned the
revised traffic study being delivered to his home, was that an ex parte communication and
could it be permitted as evidence? Can it be discussed without all parties agreeing? This
is not supposed to be happening.

Solicitor Hovis: We have talked about the communication and the MPC states: ‘The
board or the hearing officer shall not communicate, directly or indirectly, with any party
or his representatives in connection with any issue involved, except upon notice and
opportunity for all parties to participate, shall not take notice of any communication,
reports, staff memoranda, or other materials, except advise from their solicitor, unless the
parties are afforded an opportunity to contest the materials so noticed and shall not
inspect the site or its surroundings after the commencement of hearings with any part of
his representative unless all parties are given an opportunity to be present.’

Comm. Steele: It should be entered as an exhibit even though a party may have an issue,
it is part of the record.

Comm. Silberstein: If a party contests this document, what happens?

Comm. Steele: Whether they have an actual or valid objection it’s still the traffic study
by applicant.

Comm. Silberstein: It’s the second traffic study.

Attorney Courtney: All of the testimony in all of the information that we intent to present
tonight, that study was revised based on comments that we received from the township’s
traffic engineer. That’s what precipitated the revised study.

Comm. Steele: Did you provide a copy of this document to the township other than the
five commissioners?

Attorney Courtney: Yes, we submitted that to the township, the township staff and the
township’s traffic engineer.
April 14, 2008
Page 2

Comm. Steele: What I think I heard you say, ‘you would like to make a presentation
tonight on the traffic study, but not enter this booklet into the record as an exhibit’?

Attorney Courtney: No, that’s not what I said. I’m not asking you to take notice of what
was previously provided to the board. What I plan to do tonight is to offer the full traffic
study, we will have a traffic engineer as to its contents. We will go over it, at the end of
the testimony and at the end of our case in chief, I will ask that the traffic study be
entered as part of the record.

Comm. Steele: What we have is a document dated March 14, 2008 prepared by Trans
Associates. This document is a revised traffic study.

Attorney Courtney: That’s correct.

Attorney Hovis: Is that the document that at the end of the day you will ask to be
submitted as part of the record?

Attorney Courtney: Part of the documents, yes.

Attorney Hovis: As noted, the issue is that they need to identify the documents and they
will be marked as an exhibit and at some time they will move for the admission of those
documents and at that point in time anyone who wants to object to the admission of the
documents would be given an opportunity to do so. The board would have the ability to
determine if it is entered as an exhibit or not, or made part of the record.

Comm. Steele: I’m really perplexed as to where I go with this. We can allow them to
submit testimony on their traffic stuffy, but not accept this as a document as an exhibit?
Is that correct?

Attorney Hovis: What I would like to do given the fact that the applicant has provided
this to the township prior to this hearing, and therefore it is not as if they are presenting it
tonight for the first time to the township. The township has had it. Under the MPC you
have a situation where there has been staff memorandum, reports, communication,
something provided to the board. Therefore, it’s my opinion even if Attorney Courtney
did not present it tonight, there would need to be an obligation to identify that, and say
that this has been provided to the board for their consideration and the parties could
object to its inclusion in the record. The applicant may say they don’t want it part of the
record.

Comm. Ness: I read the same section that Mr. Hovis read and I think we are getting off
track because it says ‘any party or his representative connected with any issue involved,
except upon notice and opportunity’. I think what Mr. Courtney and Mr. Hovis will agree
with the way the MPC is written that they should provide notice that they were going to
April 14, 2008
Page 3

provide this traffic study and they haven’t provided notice that they are going to provide
a traffic study. I think what happens at lot of times in this situation, everybody that is the
township and the parties involved have not received notice. If they are going to bring
anything in we should receive notice and at that time all parties would be notified. We
haven’t done that. We haven’t done that consistent in the past, now’s the time to say
‘let’s do it right’. To be perfectly honest with you we have had situations in the past
where the township didn’t provide correct notice on a hearing and the one side
complained about that, and I think the same thing should avail itself now because the
same party did not give us proper notice per the MPC. I think we should not allow this
into evidence tonight, and I think we should figure out how we should do this properly
and follow the MPC.

Attorney Courtney: Just for clarification, Steve, what section are you looking at so I
know we are working off the same page.

Attorney Hovis: 908. subsection 8 is the language we have been discussing. You kind of
raise the issue with the traffic study, put yourself in the position of staff reviews, the
application itself when it comes in, revised materials that are provided the township
between hearing dates. It’s not just the traffic study, it’s all the other things which are
encompassed, communication reports, staff memorandums and other materials.

Comm. Silberstein: That’s very true and I think I made the point last week when the
Village at Heritage Hills submitted revised maps and drawings, I sent you an email and
copied all the commissioners, and I know there was a response back from you and I know
that was an ex parte communication. I believe that I got the same basic answer from you
that it probably was an improper communication, that we would have to note at the
beginning of the hearing, be entered into evidence as an exhibit and the parties would
have an opportunity to object. I don’t believe we have been given notice of these things
as Comm. Ness is saying. I don’t see how somebody can object. I think they’ve got a lot
of ways to object, but they haven’t even been given notice that it’s happening so there’s
no formal mechanism in place for them to object yet.

Attorney Courtney: The provisions of 908, as was pointed out in one of the first hearing,
was the provisions for the conduct of the ZHB. They are provisions under the article
under the heading ZHB. The restriction under 908.8 when it says the board or the
hearing officer, the board means, not the BOC, the board means the ZHB. Those
provisions apply to ZHB. 908.2 does come into play in the conditional use provisions,
but 908.8 does not. The rules we are dealing with, and I remember one of the earlier
conversations, what is the township’s procedure or policies etc. That we were operating
outside of the provisions of 908 that aren’t directly referenced under your conditional use
provisions.
April 14, 2008
Page 4

Comm. Silberstein: We have had the opportunity to get some additional legal opinion, I
wouldn’t say it’s a finality of any kind. We have gotten several attorneys that have told
us that the only difference between a conditional use and special exception is that the
conditional use is heard by the governing body instead of the ZHB. Section 908 does
apply to conditional use hearings. Would you agree, Comm. Steele?

Comm. Steele: That would be my opinion, but I’m not an attorney.

Attorney Courtney: I can tell you that’s taking a leap. There is no case that says that the
provisions under 908 that aren’t specifically referenced in the conditional use provisions
under the governing body’s jurisdiction, unless it’s referenced there’s no case that says
908 applies to conditional use hearings.

Attorney Hovis: I talked with Matt Crème subsequent to the meeting, and talked about
the information that he provided. In Lancaster it’s the consensus of the attorneys that
they apply 908 in conditional use hearings. As noted by Attorney Courtney, there is no
case out there or provision in the MPC that specifically states which.

Comm. Silberstein: Before we are done York Township will probably be the case.

Comm. Steele: There is a publication from the governor’s office, booklet 7, which
specifically states that a conditional use held by this board is to be held under provision
of 908.

Attorney Courtney: Is the position of this board that all the provisions of 908 apply?

Comm. Steele: I don’t know, I can’t speak for the other four, but I can speak for myself
and I think 908 does apply.

Attorney Courtney: All of the provisions of 908? I’m asking this for a specific reason
for purposes of advertising of hearings. There are specific provisions for advertising for
ZHB procedures. If you are opening up the door and blanketly saying that 908 applies….

Comm. Steele: I gave you my opinion. I can’t speak for the other four. As the hearing
officer for this, I don’t think we can enter this traffic study in as an exhibit. I don’t know
if my fellow commissioners would agree with that. I believe you have the right to make a
presentation on the traffic impact study by their consultant. That would be my opinion.

Attorney Hovis: It’s my understanding that part of that presentation they are going to
have their traffic engineer testify and one of the things he will be testifying to is the
information and findings in the traffic study, at which time that document will be marked
as an exhibit. Are you saying that you are not going to allow that to be introduced at that
time as part of that testimony?
April 14, 2008
Page 5

Comm. Steele: I believe that if all of the parties had an opportunity to review the book I
believe we could enter it as an exhibit.

Attorney Courtney: On what basis is there to exclude the traffic study?

Comm. Steele: Because it was given to the five commissioners and staff and it wasn’t
announced that it was happening.

Attorney Courtney: We intend to present it tonight. Here’s the way the hearing
procedure normally happens. There never is a notice that says ‘hey at the next meeting
we are going to advertise we are going to talk about traffic’. That’s what was done here
by the way. It wasn’t advertised in the newspaper but three meetings ago after two
missed meetings, three meetings ago it was specifically discussed that at the next meeting
we were going to talk about traffic. Any one that was a party, anyone that was at the
hearing knew we were going to talk about traffic. We will present the traffic study, if
anyone has questions or comments we have brought extra comments, we can provide to
anyone that wants a copy. They can look at it. We can bring Mr. Cullison back at the next
meeting for cross examination. That’s normally the way it happens. There’s no disclosure
by the applicant on what they are going to present that night or present an exhibit list to
all the parties. That’s not what happens in zoning proceedings.

Mr. Bowders: Mr. Steele, do you want to hear from anybody other than the applicant?

Comm. Steele: No sir, I didn’t ask for anybody else yet.

Comm. Ness: I would like to say about what Mr. Courtney just said. I would agree with
you, but I was just working real hard on the other traffic study that was presented and put
into exhibit before I received this one on March 14th. Basically what I feel, in my opinion
is, that you came along and gave us another traffic study. Whenever you did that and
what you say is true as a zoning hearing proceedings go, I agree with that. But you came
along and you gave us, the commissioners and township, a copy and if you would have
give a copy to some of the parties I wouldn’t have too much of a problem. You are
giving a copy to the parties tonight, if I understand you. The parties, whoever they might
be, have not had notice nor did they have any look at this particular new traffic study.
However, what can happen is we could be very efficient tonight and finish the traffic
study and gavel it shut and the parties would not have an opportunity to study the report
or utter a word.

Attorney Courtney: I am not suggesting, nor have I suggested, that we finish traffic
tonight. What I am suggesting is that we present the traffic study, and if it’s the board’s
wish because it’s being seen by other parties tonight, if they want to allow them to cross
examine the witness later, that’s perfectly fine.
April 14, 2008
Page 6

Comm. Steele: Comm. Silberstein do you have a comment? Do we enter it as an exhibit?
Do we accept the traffic study tonight?

Comm. Silberstein: I honestly believe that what we are doing if we accept this thing, I’m
not a lawyer, but I am going to give you my layman’s view of what’s going to happen.
We are going to accept this traffic study into evidence, we are going to let them make
their presentation, other parties are going to object to us doing this, and we’ve just
created one more reason for them to go and take an appeal to the courts.

Comm. Briddell: I think we should include it as an exhibit tonight, on the basis that
according to the MPC persons opposed to the application may upon written consent or
consent on the record by the applicant the municipality may grant additional hearings to
complete opposition to the application provided the applicant is provided the same
number of hearings for rebuttal. Bottom line it comes in. We look at it. We receive
testimony everybody asks questions, they have time for the opposition to object anyway
to it.

Comm. Steele: What are you reading from?

Comm. Briddell: MPC, amendments 1998-2005, Chapter 3, Article 9, page 96.

Comm. Knepper: Attorney Hovis, at what point do you enter things as evidence, prior to
the hearing, prior to the information given, or at the end of the information?

Attorney Hovis: It’s typically as part of the hearing process. Let’s take the situation
where no traffic report was provided in advance. Mr. Courtney would be introducing his
traffic expert and he would be going through the report providing his conclusions based
on the information received. That report would be identified by the expert, they would
then introduce that document as part of the record. It would be marked and introduced
and all the parties would have the opportunity to object it being part of the record. I’m
hearing mixed signals. In one case I hear the response, we need to get as much
information in advance to look at prior to hearing so we don’t get ambushed at the
hearing or don’t know what we are looking at. On the other hand, hearing what the
response is tonight it would be my recommendation that nothing be provided to the board
in advance, not a traffic report, nothing, and it be presented at this hearing for the first
time and at which time then at that point in time you can be behind the eight ball, not
have the information, not have read it, not understand it. At that time it would be
introduced, it would be part of the hearing, everyone would be expected to ask questions
on it. That would be my recommendation based on the dialog and dissention that I am
hearing tonight. I’m hearing mixed messages from the board.

Comm. Steele: Mr. Bowders I see you standing there, you are one of the parties, would
you like to make a comment?
April 14, 2008
Page 7

John Bowders: I would indeed. York County Citizens for Smarter Growth. I think there
is a middle ground here. You can mark this document, this new document that was
delivered to all of you, but not to us. You can mark that for identification and assign it an
exhibit number, it doesn’t have to be entered into evidence tonight, nor for that matter
does there need to be testimony tonight. I would like to point out that the applicant did
an original traffic study on May 16, 2006 and submitted that with the original application,
and marked as A-8. In response you hired your own traffic expert, and his information is
marked as A-7 and was dated August 9, 2006. There have been two traffic studies
floating around for a long time now. The applicant promised us several months ago to
talk about traffic. At that time if they knew there was going to be a new traffic study,
there would be nothing whatsoever to prevent them from saying we have a new traffic
study, we would like it marked for identification, we would like to distribute to you , it’s
available to the public. We would buy it just like we bought these from the township. We
would pay 25¢ a page for them, so that we could review them. But if this study that only
you have seen and we haven’t, is the subject of testimony tonight, we are disadvantaged.
We have read these, see these yellow stickies, we’ve made notes. We think we know
what’s in here, we thing we understand the issues. We have no idea what’s in there. If
you want to mark their new document for identification and assign an exhibit number and
say that they can present that next time, in the meantime you’ll read it, we’ll read it and
we will be prepared 3 weeks or a month from now, we will be prepared to speak to it.
We haven’t seen that, we don’t know what’s in there.

Comm. Steele: Are there any other parties that want to comment on this?

Attorney Courtney: If we had not provided it to the board they would be in the same
position. There’s no obligation that we present all of our evidence or provide our exhibits
in advance. If we were here tonight presenting the traffic study for the first time, never
provided the copy to the township and the traffic engineer, they would be in the same
position. That’s the way the process works. You can buffer that by saying okay, that’s
the first time they had a look at it, and we will have cross examination of the witness at
the next hearing. Typically that’s how it’s handled.

Comm. Steele: And that’s how we are going to handle it. We are going to accept your
revised traffic study. We are going to make an exhibit out of it. We are going to let you
make your presentation. We will not ask you any questions. The audience will not be
allowed to ask any questions. We will hold that for another meeting. We will hear York
Township’s traffic engineer tonight, we will not ask any questions, nor the audience ask
any questions. We will proceed.

Attorney Courtney: One other matter and it was sparked by something you said Comm.
Steele. If it is this board’s policy or this board’s opinion that all of the provisions of 908
of the MPC apply to conditional use hearings then my question is, I want to make sure
that those provisions also include posting requirements and other things. I want to make
April 14, 2008
Page 8

sure that this hearing, which is a continuation, but was not based on a continuation, I
want to make sure that this has been fully advertised. I don’t think the posting
requirements or advertising requirements under 908 apply to conditional use hearings,
that’s my opinion. I also don’t want, understand that it is a much different world now
and Pennsylvania Supreme Court in Luke vs Caltaldy, it affects the township, it affects
us.

Comm. Steele: Hold up, I’m not an attorney. I just gave you an opinion. Do you have
your traffic engineer or consultant here this evening?

Attorney Courtney: I do. But that issue needs to be resolved. I’m not going to go
through 9 months of hearings or longer and have the court say down the road because the
township thought those conditions applied we are going to invalidate the decision.

Attorney Hovis: I would agree with the applicant. If the board’s now going to take the
position……I would like to have a definitive response, I think everyone has provided
their opinion, if it is now going to be the policy of the board that the provisions and all of
the provisions of 908 apply, Attorney Courtney is absolutely correct. I would like
direction from this board. I thought I heard there was a consensus that 908 applies.

Comm. Briddell: I know Bob when we were at one of the meetings on the TND you read
the statement out of the governor’s handbook and in your mind it was very clear, and
there was another attorney sitting beside you that said he wouldn’t interpret it that way.
That governor’s handbook does it have a basis of law behind it. Is that what it is? Or is it
up for legal interpretation?

Attorney Hovis: It’s the governor’s staff providing guidance. It’s not a court decision or
anything like that. We’ve had this discussion over and over. I think the question is under
913.2, it does provide the township to identify expressed standards and criteria for a
conditional use hearing. If you are saying our expressed standards are going to be those
set forth in 908, we need to back up to make sure we have met all of the criteria in 908.

Comm. Briddell: What happens if we say 913 is our guiding criteria?

Attorney Hovis: 913 is not as specific as 908. We’ve always had the discussion of the
creeping of the 908 information into our conditional use hearing. At some point in time
the board needs to make a decision of certain criteria with respect to subpoena. We have
talked about that, there is no provision in 913 concerning subpoenas. If you would like to
adopt a subpoena for conditional use, I provided a document. Or we can adopt the
section of 908 that deals with subpoenas. You have the authority to adopt specific
criteria from 908. You have heard from other attorneys that say okay we believe that 908
applies even absent any expressed decision or direction from the board. I think that is
what you are struggling with.
April 14, 2008
Page 9

Comm. Briddell: We are so many sessions into this conditional use hearing for
StoneBridge, at this point can we say 908 is what we are being guided by or 913 is what
we are being guided by to answer his question?

Attorney Hovis: 908 includes 10 subparts. For me to provide an opinion here as to each
of those subparts, if each of them would conflict with what we have done so far or create
an appealable issue….I think anyone could appeal on any issue.

Comm. Briddell: If we say 913 is our guiding light and we choose what applies from 908
is that legitimate as we run the hearing? Does that allow us to continue?

Attorney Hovis: I’d have to see what was incorporated or what was not incorporated to
see what may be an issue.

Comm. Briddell: If we say 913 we are going to with that, can we proceed?

Attorney Hovis: You are still grappling with people who think 908 applies, that’s going
to be an appealable issue also.

Comm. Ness: I think what you are seeing is the result of a poorly written ordinance. I
said that many times. My opinion is that we should go by 908 simply because it……

Comm. Silberstein: What are the notice requirements that Attorney Courtney is referring
to…that his concerns weren’t met tonight. I believe it is notice factor.

Attorney Hovis: Advertising, 2 times no sooner than 7 days no greater than 30 at least 7
days apart for the advertising, as well as posting the property.

Comm. Silberstein: Do we need to provide certified letters for every continuing meeting?

Elizabeth Heathcote: We did, and I have a copy of the ad and the notice from the
newspaper advising when it would be in the paper.

Attorney Courtney: We have the public notice, the newspaper notice, which was done
and was proper. We have the notice for all the parties. Your ordinance doesn’t identify
anybody else to whom notices must be sent to in conditional use proceedings. My
specific question is the posting.

Comm. Silberstein: What posting? Of the property?

Attorney Courtney: Correct. 908 requires that public notice of the hearing be posted on
the affected track and what I want to make sure is….
April 14, 2008
Page 10

Comm. Silberstein: I can tell you there is a sign at the front of your property.

Attorney Courtney: I agree there’s a sign. It’s got to be notice of the hearing, date,time
and place. If you are following 908 and you think that applies then we need to make sure
that had the date of this hearing.

Elizabeth Heathcote: No, it did not.

Comm. Silberstein: I can tell you that I do not believe any notice in this township has
required the specific notice and time, it says an application has been applied for and call
this office and it has the township’s number for more information. What you would be
telling me is that every application held before the ZHB for the last 5 years has been
improper.

Attorney Courtney: The MPC says written notice of the hearing.

Comm. Silberstein: It’s says posted and written.

Attorney Courtney: It says written notice of the hearing shall be conspicuously posted.
Most of the notices that I have seen posted before a ZHB, not a conditional use, ZHB
proceedings have the date, time and place of the hearing.

Comm. Steele: Do we proceed…908….913 opinion?

Comm. Silberstein: I have to believe if Solicitor Courtney is saying that he doesn’t
believe we have posted adequately, of course I would have to question why it wasn’t
posted adequately ions ago. I would say we don’t go tonight.

Comm. Knepper: Solicitor Hovis, can we move ahead safely?

Attorney Hovis: The public notice definition in the MPC deals with notice published
once each week for two consecutive weeks of general circulation, such notice shall state
the time and place of the hearing and the nature of the matter to be considered at the
hearing. That is the definition of public notice. Section 908 does provide additional
criteria that written notice shall be given at such time in such manner as shall be
prescribed in ordinance or in absence of ordinance. In addition to the written notice
provided herein written notice of said notice shall be conspicuously posted on the
affected track of land one week prior to the hearing. We have a definition that says with
respect to the publication that shall provide the specific time and place. Section 908
indicates that written notice shall be conspicuously posted, typically if you are giving
notice you give the date and time. The subject of the notice in question says that a notice
has been filed in regards to the property and provides information how to contact the
township, contains the date and time of the hearing.
April 14, 2008
Page 11

Comm. Silberstein: Would you be willing to characterize the zoning and land use
attorneys in the York….that come before York Township that they are pretty savvy
attorneys? Would you say they all just fell off the turnip truck? I just think it’s mind
boggling that this would be the first time in probably 20 years or since the MPC came out
that somebody is questioning whether any regular ZHB hearing has been posted properly.
Certainly there have been cases where people have been unhappy with the decision of the
ZHB and had they thought the posting provisions were totally missed, somebody would
have appealed based upon that. I have to believe that there have been enough attorneys
before the ZHB that somebody would have picked up on improper posting prior to this
event.

Comm. Steele: Do we move on tonight, or our we on safe ground to accept this as an
exhibit and allowing them to furnish their testimony on the traffic study and neither we or
the citizens will ask any questions tonight?

Attorney Hovis: Is it your intent to allow them to present their testimony and no
questions would be asked by the BOC or citizens and next time you would allow the
questions and comments?

Comm. Steele: Let’s see where we go.

Comm. Briddell: When they are done with their testimony there has to be a question
period, right?

Comm. Steele: We can hold that to the next meeting.

Attorney Hovis: I think the observation by the parties that were disadvantaged would like
an opportunity to look at the document before asking questions. I think the chairman’s
position is that he would allow them to do that.

Comm. Briddell: I’m only asking about our consultant, would he follow along after theirs
without that question in between?

Attorney Hovis: Getting back to whether it’s been properly noticed or not. If subsequent
to tonight we determine that it was improperly posted, I’m looking to you, Attorney
Courtney, we may be back here redoing exactly what you are doing tonight properly
posted and advertised meeting?

Comm. Steele: Let the record show that we are going to accept StoneBridge traffic
impact study dated March 14, 2008 provided by Trans Associates for Charter Homes as
an exhibit.
April 14, 2008
Page 12

Comm. Silberstein: I have a question. If we’re……the last thing Solicitor Hovis said we
may be back here and doing this again, if it’s determined that this not a properly posted
meeting, I would question if that doesn’t question if the entire hearing doesn’t have to
restart? Because none of it would have been properly posted according to them because
we have never put the date and time on a notice ever.

Comm. Briddell: Doesn’t it come back to whether we follow 908 or 913? If we go with
913, let’s continue if the majority of the board feels that way.

Comm. Knepper: Who’s objecting to it not being posted?

Comm. Briddell: He is (pointing to Attorney Courtney) if in fact we are following 908
exclusively.

Comm. Silberstein: We can’t pick and choose which sections can we?

Comm. Briddell: There’s more latitude with 913 than with 908.

Comm. Ness: That’s part of the problem.

Comm. Steele: We scheduled this thing, we have cancelled it and rescheduled. We need
to move on or just forget about it.

Comm. Silberstein: The court case that was cited someone vs Cataldy…was related
specifically to due process not being denied of one of the parties. Wasn’t that a
conditional use hearing?

Attorney Hovis: It’s been a while since I read it.

Comm. Silberstein: It’s Luke vs Cataldy, isn’t that specifically relative to 908?

Attorney Courtney: No, it wasn’t a 908 issue, it was a general due process notice issue.
Notice is required under 913 and 908, public notice in terms of public notice under the
MPC, which means two newspaper publications, not more than 30 days, not less than 7, 7
days apart.

Comm. Knepper: Attorney Courtney, what do you think we should do?

Attorney Courtney: My position has been that 913 applies and that this isn’t a posting
issue. We are ready to proceed if the board’s ready to proceed.

Comm. Steele: Board, can I accept the StoneBridge traffic study as an exhibit?
April 14, 2008
Page 13

Vote 4 yes, 1 no (Silberstein)

Attorney Courtney: That’s a majority in favor of 913, correct?

Comm. Steele: There’s a majority that says yes that we are going to accept the
StoneBridge traffic impact study dated March 14, 2008 by Trans Associates.

Comm. Silberstein: It has nothing to do with 913.

Comm. Steele: It has nothing to do with 913. We are just going to accept it is an exhibit.

Attorney Courtney: No, I need to know if you are following 908 or 913. If you are
following 908, I’m going to say let’s pack it up tonight.

Attorney Hovis: I agree, I need to know, too.

Comm. Briddell: I feel if we go 908 we are going to be in the same situation down at the
end that we will be with 913. That whole part of it is not going to make any difference.
It’s going to be appealed no matter what happens. That’s a given. We can come to these
meetings and do exactly what we are doing from here forever, or we can proceed with
our responsibility of looking at this plan to see if it makes sense for York Township and
move forward. Everybody has a right to question the testimony, none of that will be
denied. Let the judge decide what is right.

Comm. Steele: Do I have at least three of us that will say 913 so we can move on? I’m
getting tired of rescheduling my life around this thing.

Comm. Silberstein: I don’t know how you can say that Comm. Steele, you have been
saying at the TND workshops and at these meetings now for a number of months that 908
applies, and now because another attorney is here opposing what you happen to believe,
you are going to acquiesce so that we can move ahead with the hearing? It doesn’t make
any sense to me.

Comm. Steele: Comm. Silberstein, I have a life outside of York Township. I am tired of
scheduling my life around StoneBridge traffic impact study coming over here and
nothing happening. I’m tired of it. Comm. Knepper, who lives across the street, walks
over here and he’s ready to go. I’ve traveled as many as 600 miles to do this and then we
cancel it.

Comm. Silberstein: I’m tired of it too. I would like to point out that the traffic study that
was presented to us initially which was suppose to have been the first meeting on the
traffic study was February 25th, which was cancelled because the applicant wasn’t ready
was prior to the traffic study that was presented to us that they are trying to present
April 14, 2008
Page 14

tonight, which is dated in March. They claimed simply that their traffic engineer wasn’t
going to be here on Feb. 25th and that was the night that you traveled 600 miles, so take
that out on them not the members of the board in York Township.

Comm. Steele: I’m not taking it out on the board.

Attorney Courtney: I’d like to clarify that, because that is not the case. What happened
was we got all these comments on the traffic study, let us go over them, let us revise it, let
us submit an updated study. We are entitled to respond to township comments on plans,
on studies, on all of that. Because traffic is such an issue, we thought it would be easier
for this board rather than to hear a traffic study and then for us to present that and then
later have to supplement it based on comments you rely on your review by your traffic
engineers. We got their comments, we updated it, we wanted to provide one study so we
could be done with the traffic issue with as few hearings as possible, that’s why it was
done. It was communicated to staff, whether it was communicated to you, I don’t know,
that’s why we weren’t there that night.

Comm. Steele: I want to get on with it, whether it’s 908 or 913. I’m willing to do
something and quit talking about it. I will go with 913, let’s move on. You present your
story. If it’s appealable, it’s appealable.

Comm. Silberstein: I’d like to call for a motion then and let’s have an on the record vote.

Comm. Briddell: I’ll make a motion that we follow the guidelines as suggested in 913 as
the guiding document for this public hearing process…for this conditional use process.

Comm. Knepper: I’ll second it.

Comm. Ness: I’d like to make a comment/observation. I think we’re making a mistake,
but that’s beside the point. If we make this thing I think we are making another
appealable issue.

Comm. Steele: Mr. Silberstein, any comments, questions or observations?

Comm. Silberstein: I’ve made it very clear how I feel.

Vote 3 yes, 2 no (Ness, Silberstein)

Comm. Steele: Let’s move on. What we are doing is accepting the traffic impact study as
an exhibit and now you are going to make a presentation on it.

At 7:00 pm Attorney Courtney began his presentation.
April 14, 2008
Page 15


The remainder of the testimony was taken by York Steno and a transcript would be
available through them.


At 8:20 pm Attorney Courtney was finished with his presentation.

The BOC recessed the StoneBridge Conditional Use Hearing to Thursday, May 1st, 2008
at 6:00 p.m.

The hearing was closed at 8:30 pm.

Comm. Steele: Do we wish to discuss the financial director’s letter of April 8th?

Comm. Briddell: I believe that our financial director is recommending scenario 3. I’ll
make a motion that we follow the financial director’s recommendation of scenario #3.

Comm. Steele: I’ll second it to get it on the table. The issue is that we have been putting
money in a fund which is called debt reduction. We’ve been putting money in there
anticipating at some point we would pay down our debt. That money that’s been in that
fund has been gaining more interest than we have been paying on the debt. But that is
changing and what is happening is we are now paying more than we are receiving on our
money. Currently we have $600,000 sitting in our fund to pay down the debt. This fund
was created based upon desire by Comm. Knepper several years ago that we started
funding that. We are talking about the fund we created several years ago. We asked our
financial director, Mr. Krause, to review the possibilities of what we could do with that
$600,000 to best advantage. There are 3 scenarios that we could use as to the way to do
it. I don’t know if you like to be read to or not, but there is a letter dated April 10, 2008
that talks about those 3 scenarios.

The first is to refinance the bond without paying down the principal to get a better rate.

The second one is to refinance the bond assuming we use $600,000 to pay off the last 2
years of the bond issued in its entirety reducing our annual payment by about $500,000 a
year, which is $10-15,000 less than our current schedule.

The third was to refinance the bond assuming we use the $600,000 to reduce our annual
payment to about $450,000 a year, which is $65,000 less than our current schedule.

Several scenarios were presented to us in terms of what it really means to us in paying
down the debt. The first scenario looks like we would realize about $124,000 savings;
and the second one….if you refinance and use the $600,000 it shows the total savings at
bond maturity of $1,212,000 at the present value this is $661,000; and the third scenario
April 14, 2008
Page 16

if we refinance and use the cash to pay it down to reduce our payments on the bond issue
the option would be to keep the bond issue maturity date of 2022 and reduce our
expenses each year by $60-65,000 resulting in a savings of $932,000. The present value
of that savings if $665,000. At this point our finance director has recommended scenario
3, by refinancing the bond and paying down our debt and spread the savings out over a
number of years. Today Ken asked for additional information, asking that we look at
another rate on the bond and that data was handed to us this evening. I’m sorry I have
not had an opportunity to look at it, and don’t know if it changes Fred’s recommendation.

Comm. Knepper: I know that everyone has a philosophy about how to spend money and
everyone is a professional on how to spend money. My opinion may differ from Mr.
Krause. I respect his opinion. It is my opinion that we should apply that $600,000
toward our furtherest out bond and eliminate that one, since we have already committed
several years ago to this level of debt and continue on the same level of debt that we have
and making it a shorter bond in the end. I think the fartherest year out is 2022, and that is
our largest percentage rate, it is my opinion that that’s the one we ought to go after first,
since we have committed ourselves to this level of debt, and continually set money aside
each year and eventually get rid of 2021 also. It is my opinion that we ought to sacrifice
up front for a better tomorrow.

Comm. Steele: I’m not sure you can pick and choose what you are paying.

Comm. Knepper: Steve, am I correct that the bond of 2022 is callable?

Attorney Hovis: All of the bonds are callable at some point.

Comm. Knepper: So you could pay out the last bond? At some point you could pay off
the one after that one.

Comm. Briddell: Actually scenario 2 is paying off the last 2 years.

Attorney Hovis: Scenario 2 knocks out the 2022 and 2021 maturity.

Comm. Briddell: I asked the solicitor during the break, if we were to refinance this bond
then it would be 5 years until we could do it again…

Solicitor Hovis: That’s the typical bond provisions that you are seeing a 5 year call,
some are 10, some are zero. When you are dealing with an 11 or 12 year bond issue you
are probably in the market going to require a 5 year call.

Comm. Briddell: During the next 5 years we would be putting money aside in escrow
perhaps to do another refinancing 5 years down the road to redo what we are doing
tonight. I guess my basis for concurring with Fred on that, looking ahead we had a pretty
April 14, 2008
Page 17

tight budget here this year and I expect the next couple of years will be that way. A
significant portion of our income stream for the township relates around all of the fees
generated and we are going to notice a significant impact on that I’m sure coming up in
the next couple of years. Although I agree theoretically with what you are saying I think
this next 5 year period it really warrants ways to reduce our annual expense, and the
difference between $10-15,000 and $60-65,000 is significant enough that I would tend to
go with the third scenario.

Comm. Steele: The 3rd scenario looking at present value is the best deal, if you calculate
money at 5%. I’m not an economist. Mr. Silberstein, it’s your business, isn’t it? You’re
close to it.

Comm. Silberstein: It’s what I went to college for and that’s why I asked some of the
questions that I asked. Maybe I can impose on you to read my email to Fred and his
response and then I can explain a little bit what the answer is.

Comm. Steele: I can do it if your throat’s bothering you. Mr. Silberstein wrote a note to
Mr. Krause and he said ‘Thanks for the information on bond refinancing. I would be
interested in knowing how different the results are for scenario 2 and 3 assuming a
discount rate of 3%, 4%, 6% and 7%. What degree of probability can be associated with
the 5% discount factor as opposed to any of the others? Would it make more sense to let
the markets stabilize for a month or two before making a decision? Your thoughts would
be very welcomed.

The response from Fred said ‘in all honesty your guess about the market stability is as
good as mine. However, I do not believe it will improve much through the end of this
year. I think rates will more than likely go down again and we will continue to see the
interest expense on the bonds exceeding any interest revenue that we would get on the
$600k cash reserve. The probability of the discount rate being 5% is an estimate. It was
picked because of the past averages that have been seen and basically because it is a
median estimate but that doesn’t necessarily mean that it couldn’t change in the
environment that we are in. Brad Remig supplied me with the different discount rate
scenarios that you questioned. I also have summarized it in the attached excel sheet
called pay down analysis which shows the differences for your use in your decision.’

Comm. Silberstein would you like to explain what it means to us, scenario 2 and 3 at a
different rate.

Comm. Silberstein: When I took finance 101 a number of years ago, one of the questions
that I had to come to grips with was this whole concept of discount rates and what it truly
meant. I asked the professor if he could help me understand what the difference was
between a 4% discount rate, a 6% discount rate, or a 5% discount rate and what the
probability was that in any given year that any one of those would be any one of those
April 14, 2008
Page 18

rates. And he went like this (shrugging shoulders). That’s where we are today, exactly
up here, exactly where we are with this. Scenario 2 and 3 in a present value sense which
is basically simply looking at the value of money is today versus what the streams of the
cash flow are over a period of 15-20 years in this scenario is basically break even. You
can’t say that $3000 one way or the other is anything more than a break even on a million
dollars. What you are looking at if you are trying to decide between scenario 2 and 3 at
4-6% is not a whole lot more than a break even when you are looking at a series of cash
flow over a 10-15 year period.

What I find intriguing, the higher the discount rate, the higher you believe the risk is that
you are not going to achieve what you are trying to. The higher the discount rate, the
riskier the assumptions that you are not going to achieve what you want to achieve, the
more risky the scenarios are. The up side the 7% would say that we think that we don’t
believe that our scenario is really going to come to fruition and so in that case the most
we stand to get is $62,000. The least risky, which I would argue to you is probably the
most likely scenario in dealing with municipal bonds and rates is that we have the biggest
benefit to potentially gain by going with scenario 2 versus scenario 3. It’s not often that
you and I come to the same answer on some of this financial stuff Paul, but we’re at the
same answer, different ways right now. I would far prefer to pay off the ending part of
this than spread it out over the next 10 years or 12 years. I agree with the conclusion you
have come to, even though we are coming at it from different ends.

I would like to point out that there’s a scenario #4 that we should talk about. I just want
to throw out that we are about to undertake a significant debt obligation in the township
of $3.4-3.6 million dollars. I know we are talking about general obligation bonds versus
sewer bonds, but I would like to make sure that we are not rushing into something with
this $600,000 that we have in hand that’s going to end up costing us more in the long
term by not evaluating that scenario too. I don’t know what the cost of that money is
going to be to us, but I don’t know in today’s environment that there’s a rush for us to
make a decision tonight versus the next couple of weeks. I understand that at the sewer
authority meeting they are expecting to finalize their financing?

Attorney Hovis: In the next month and a half they will open the bids that will give a cost
of the project that will lead to financing. They are going to be looking for the board to
guarantee.

Comm. Knepper: Do you believe that in some way this money should be attached to the
sewer fund, directly or indirectly?

Comm. Silberstein: I’m not saying necessarily that it needs be attached to the sewer
fund. But I would like to know that we are not spending $600,000 now on general
obligation bonds that …….it was earmarked for debt obligation. General debt obligation.
I understand that we are talking about two funds.
April 14, 2008
Page 19

Comm. Briddell: There’s a big difference between GO and Authority bonds. Remember
that only the sewer users pay for the authority. General obligation is the whole township.

Comm. Silberstein: There’s been monies expended out of the general obligation funds
for the sewer authority that we have not totally come back and ever accounted for as well,
from what I understand.

Comm. Briddell: That was back in the 80’s and we decided not to do that again. That’s
the theory that board was operating on. It hasn’t been done since.

Solicitor Hovis: Is your fear that you want to hold back the $600,000 just in case the
authority defaults on that debt and the township has to pay? Is that why you are saying
you have to hold that back?

Comm. Silberstein: No, I’m saying that we are talking about paying down 3% money or
4% money and the authority may end up needing to borrow at 5-6 % and I would
certainly want to evaluate any options that would be there for the $600,000 to reduce
those additional expenses before we put ourselves in a position that we don’t have that
option.

Comm. Steele: We have a motion and second on the table.

Comm. Ness: I heard the four of you say……I agree with you Paul. To be quite frank
with you being in the business I work by the pocketbook theory, if you have it in your
pocketbook that’s how you work, that’s all you have. I was told years ago that if you
have a debt obligation what really happens technically you pay the end of it back to the
front. That’s very true, and I agree with you 100%. I think Ken has a good point, I was
surprised when I say this, there isn’t much difference between the things. I looked at this
at home a little bit. I don’t know much about money except what is pocketbook. I like
the second scenario too. I also pick on you Phil a little bit, to reduce our expenses by
$60-65,000 a year, I think we spend that much in ‘walking around money’. It seems that
way. I think that $1.2 million, that looks good. I’m not a financial guy.

Comm. Steele: We have a motion and a second to accept Scenario 3. My person opinion
I agree with Paul, we ought to pay down the last two years, that’s my opinion. I think
that’s why we started it. I think we agreed to ourselves many years ago that’s what we
ought to do with it. Mr. Briddell do you want to change your motion or have us vote on
it. Scenario # 3. Vote 1 yes (Briddell), 4 no.

Do I have a motion to accept scenario #2 using the $600,000 to pay off the last two years
of the general obligation bond?

Comm. Knepper: So moved.
April 14, 2008
Page 20

Comm. Steele: Second

Comm. Silberstein: I just want to throw out on the table again that I believe there is a
scenario 4 that I would urge the board to take it’s time on making this decision for
another month or month and a half. It’s not going to cost us anything.

Comm. Knepper: Ken, if the money can’t be used for funding sewer project in anyway,
then why are we considering that? Why would that be a consideration?

Comm. Briddell: You can, it’s just you have to do it on the basis that you understand
who’s paying for that.

Comm. Silberstein: Can the general obligation loan the sewer authority $600,000?

Attorney Hovis: I wouldn’t define it as a loan. If anything, a contribution for the sewer
project, but that comes fraught with a lot of issues and problems. They are guaranteeing
the project so fundamentally they are on the hook for it. They are authorized under the
First Class Code to pay for sewer projects and the question is if it’s an authority project
can you use township money to pay down their project? I don’t know the answer to that
off the top of my head.

Comm. Silberstein: It seems like at the end of the day we are trying to reduce the cash
outflow of York Township.

Comm. Briddell: But the sewer is not all of York Township.

Comm. Silberstein: I understand that, but if we are asking York Township to guarantee
the obligation of the sewer authority theoretically the obligation of the sewer authority
should cost less if they have to borrow from an interest rate from a risk stand point it
should cost them less if they are borrowing less.

Comm. Briddell: Also remember the difference in what kind of bond it is, one is a
general obligation and the other is a revenue bond. The users of the sewer system are
paying for it by their revenues. The general obligation is the obligation on all the
residents of the township. There is a difference between the two, that’s what got murky
20 years ago and they decided they didn’t want to go down that road and that’s where
they went back to the authority takes care of its projects and the township takes care of
theirs. The whole idea was to retire the debt against this building and complex, and that’s
what we are doing, whether we do it with a lesser payment each year or take the last two
years off. That’s the idea, and that’s why we funded that line item, and in that respect
that’s why I agree with 2 or 3. I just think the cash flow over the next couple of years is
going to be pretty important.
April 14, 2008
Page 21

Solicitor Hovis: With respect to the creation of the capital reserve account that was
created for the debt payment. If we created that under the first class township code for
reserve accounts, it takes a 4/5’s vote to actually use those funds for a purpose other than
what was originally identified. Although it was identified as debt reduction, I don’t think
the authority debt would be defined within that original ordinance that created that
account. It was debt of the township, not the authority.

Comm. Silberstein: I’m certainly not opposed to pay down the debt. I’m just trying to
make sure we don’t’ make a mistake in less than 60 days it’s going to come back to haunt
us. If you are assuring me that no way that $600,000 can be utilized to reduce the cost of
the sewer project, then I’m willing to vote in favor of this.

Solicitor Hovis: I’m not going to say there’s no way. First you need a 4/5’s vote of the
commissioners and you need sufficient authority to apply those funds to the authority
project. There are a bunch of hoops to jump through to get to that point.

Comm. Ness: Steve, you might want to look at section 2406, I just want to point out that
‘the cost of construction of any system of sanitary sewers or drains, constructed by the
authority of this subdivision of this act, (assuming that’s the sewer authority) may be
charged upon the properties benefit, improved or accommodated thereby to the extent of
such benefits, or may be paid for wholly or partially by general taxation. Any amount not
legally chargeable upon properties benefited, improved or accommodated shall be paid
out of the general township fund’.

Solicitor Hovis: And the debate that we had a few years ago when Comm. Craley was
here was whether that specifically was related to a township sewer project, a township
sewer system versus an authority owned sewer system.

Comm. Ness: I understand. I’m not saying you have to do something. I’m just saying
that it’s possible.

Comm. Briddell: I was saying that you can do something legally.

Comm. Steele: I think we should honor what we said we were going to do when we said
we were going to do it. We established a fund for that. We have put money in that fund
anticipating the day would come that we could use it to pay down the debt. With that
said, I would like to put that to a vote. All in favor to have our financial advisor to use
scenario #2, use the $600,000 to pay off the general obligation bond for the last two
years. Vote 5 yes.

Comm. Knepper: I want you to be sure you understand, it was never my hope or desire
to ever indebt this township with another sewer project. Never. I think it was wrong
then, I think it’s wrong now. I think we are almost past that point now. I hope sometime
April 14,2008
Page 22

that commissioners and supervisors of other townships take a stand and say, if you want
sewer you have to be willing to pay for it yourself. But I think we are past that point on
this one.

Comm. Silberstein: I’m not sure…..

Comm. Steele: We have on our agenda to establish a date for the TND revision group to
have a meeting to put the changes in front of everybody. Is there a date we can pick from
that works around all of our conditions? I’d like to do that as soon as I could.

Comm. Ness: I’d like to bring this up, I understand Mr. Knepper you would like to
rewrite the ordinance, are you going to withdraw that or what?

Comm. Knepper: It’s not dead in the water, but it’s bigger than I can do at this point.
I’m not sure I can come to a full grasp to do that on my own.

Comm. Ness: I’ve been toying with….I’ve wrote the TND two or three times already. I
would like to present some of the things I have.

Comm. Silberstein: I believe any date has to be after May 14th.

Comm. Steele: Monday, May 19th at 6:00 pm in the training room. I will try to get the
document out to everyone.

On motion of Comm. Silberstein, seconded by Comm. Briddell $6700 can be moved
from capital reserve, subsection of road work for a line item for the EAC. Vote 5 yes.

Comm. Silberstein: Can we revisit this TND revision meeting? Are we providing any of
the people who are writing this with any direction on what section of the MPC this is to
be written under?

Comm. Ness: That’s one thing you have to talk about at the meeting.

Solicitor Hovis: Just an update. I did inform Comm. Steele that I received a telephone
message from Attorney Katherman today on the Heritage Hills TND in that I’d left him a
message indicating that the board voted to utilize a hearing officer. I received a message
from him, saying ‘I’ve spoken to my client and he is very opposed to the use of a hearing
officer’.

Comm. Silberstein: Does that mean that comes off the agenda for that night? Or are we
still going……and are we going to run this other lawyer here to find out he is not….

Comm. Steele: I’m having a tough time hearing you.
April 14, 2008
Page 23

Comm. Ness: Mr. Silberstein said he is wondering whether we had talked about putting
on the agenda about the hearing officer, whether we are going to do it or not? What I
want to ask Mr. Hovis, what would be the best way to proceed with this? Are we going
to proceed the way we decided or are we going to do something else?

Solicitor Hovis: My opinion based on the decision or the action taken by the board,
given the fact that it was a conditional hiring of the hearing officer that right out of the
gate, we don’t have all of the parties agreeing to it, in a sense the hearing officer goes
away. You haven’t met the conditions that you placed upon utilizing a hearing officer.
You have advertised the hearing, you’re going to have it ready for the 28th, go ahead and
just have it and continue on. It’s going to be a scenario where Comm. Briddell had
actually opened the hearing as the person in charge.

Comm. Briddell: Relative to that, I’d like to have the consensus of the board, and anyone
of the others can attend, and if you have comments make me aware of them. I would like
the opportunity to sit down with Dave Jones ahead of time so we can lay out a game plan,
so he and I when anyone asks a questions, we can be on the same page. I anticipate
coming out of the meeting, there will be questions. Everyone will have a chance to weigh
in on, so we don’t spend two hours finding out where we are. I would be glad to share
that with the rest of you.

Comm. Steele: Seems to make sense to me.

The meeting was recessed to Thursday, May 1, 2008 at 6:00 pm.



            Secretary

								
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