Westfall Township, Matamoras, PA
June 4, 2013
The regular meeting of the Westfall Township Board of Supervisors was held Tuesday, June 4, 2013 at 8:05 pm. The meeting was held at the Township Building on Delaware Drive and LaBarr Lane, Westfall Township.
Those present were Chairman, Robert Ewbank; Vice-chairman, Paul Fischer; Supervisors, Raymond Banach, Larry Flansburg and Robert Melvin; Solicitor, Robert Bernathy, and Secretary, Lisa Green. Also present were Treasurer, Scott Myer; Zoning Officer, Michael Rendleman; Bill Schneider, Bill Jamros, Luis Bocaletti, Lisa Mickles, Beth Brelje, Lisa Babcock, Reginald Gardner, Mike Barth, Twila Decker, Steve Height, Chuck Pranski, John Schneider, and approximately 15 members of the general public.
Chairman Ewbank announced that an executive session was held on May 13, 2013 at 7:00 pm for the purpose of personnel and litigation.
AGENDA: The agenda was approved on a motion by Supervisor Flansburg. Motion is seconded by Vice-chairman Fischer and carries with all in favor.
PUBLIC COMMENT: Attorney John Schneider representing Have a Hoot said he had raised a legal issue during the public comment for the Amusement Tax which exempts places that have fitness, exercise and weight control and continued by stating they had sent a letter to the Township claiming the exemption and have continued to receive notices from Berkheimer Associates the townships tax collector to comply with the tax. In their cover letter Berkheimer indicates if you claim an exemption you are to notify them, however they have done that along with forwarding the letter that was sent to the township and they have not received a response. The letter they sent to the Township and to Berkheimer date back several weeks ago yet they have received no response on their determination of an exemption. Berkheimer told Mr. Schneider that they are the tax official that is appointed to make determinations of tax issues yet he does not know the next step. He does not want his client to be sued or have criminal charges brought against him for failure to comply with the tax. Since he has received no response he has come before the board to try to get the matter resolved. Solicitor Bernathy said he can’t speak for Berkheimer but the Township can get in touch with them and as far as the Township is concerned we do not feel that his client is exempt as was brought up during the hearing. Mr. Schneider said there are many inconsistencies relating to the tax, and he is not sure what is covered. Mr. Schneider brought up Malibu Dude Ranch who was in favor of the amusement tax and questioned if they would pay the tax if they are renting a horse or only for the rodeos that they hold, and continued by stating there are inconsistencies and who would determine what is an amusement. Solicitor Bernathy said that is a determination that should be left for the Court because this ordinance has been upheld by the court and Have a Hoot is not involved in interstate commerce and is not exempt from the ordinance. Mr. Schneider said he understands that this is going to go to a court that he needs to know what the next step is. Solicitor Bernathy said he doesn’t want to advise his client however if they say they are exempt then don’t pay the tax and a collection proceeding will be instituted and we will end up in court and they can raise the defense that their client is involved with fitness or weight control and that will be a determination map is made by the court. Mr. Schneider said he would like to see if there was an administrative proceeding in which they could make that argument. Solicitor Bernathy said that is already defined in the ordinance and that the determination is made by the court. Discussion was held. Supervisor Flansburg asked Mr. Schneider if he is saying that laser tag and hotdogs etc. are considered exercise. Mr. Schneider said no one here knows the rehabilitation that takes place there. Further discussion was held. Solicitor Bernathy said we will make sure that Berkheimer gets in touch with Mr. Schneider.
Mike Barth said rather than going to Court over the ordinance wouldn’t it make sense to have an appeals process before the board. Solicitor Bernathy said that is not the case because we have already had this discussion before the ordinance was enacted. Supervisor Flansburg asked Mr. Barth if everyone in the room raised their hands and said that Have a Hoot was not a place of exercise did he think that that would satisfy Mr. Schneider. Stating that it probably would not and they would end up in court. Further stating he agrees that there should be a better process but he doesn’t know of one.
Vice chairman Fischer said it is his feeling that it is in Berkheimer’s hands right now and they need to make that determination.
Bill Jamros said he doesn’t understand it because it’s only a 1% tax and several other townships have greater taxes. He did not see the problem with a pass thru tax.
Chuck Pranski said if Berkheimer is the appeal officer he feels that this a conflict of interest since they are earning a commission on the tax, further questioning at what point this Township will draw the line on how much money they are willing to spend. Solicitor Bernathy said we are duty bound to enforce the ordinance that was passed. Mr. Pranski feels we should do away with the ordinance because it is costing too much money. Solicitor Bernathy said it can be repealed if the supervisors decide.
Mr. Pranski said at last months meeting it was stated that this board was notified of something only a few minutes before a town resident made a complaint against an officer of the Police Department and he finds it hard to believe. Solicitor Bernathy said we are not here to discuss the complaint against Police Department. Mr. Pranski said this is about the Township possibly getting sued again because of the inadequacy of the board. Solicitor Bernathy said this is about the police and complaints that he has and this is up to the Police Commission. Mr. Pranski wants to know why it was brought up before the board rather than the Commission and stated the resident happened to be the brother-in-law of one of the board members. Solicitor Bernathy said he has reviewed the record and he stated it needed to be brought up before the commission. Mr. Pranski questioned why it was stated that people have been stopped by the police and questioned about what was said at the Township meeting. Solicitor Bernathy said he does not believe those comments are in any way impactful on the running of the Police Department. Discussion followed. Solicitor Bernathy said Mr. Pranski has gone to the Commission and he knows that they are investigating this complaint. Supervisor Banach questioned whether Mr. Pranski does work for the Police Department, commenting that he has a vested interest in the department. Solicitor Bernathy said he sees that somebody is recording Mr. Pranski’s comments and they do not have the permission of the Township. Reporter, Beth Brelje said she is audio and video recording and she has the right to do that. Supervisor Flansburg addressed Mr. Pranski and said isn’t it safe to assume that they are here to listen to complaints just like they’re listening to his complaint. Stating that the resident did not want to go to the Commission however there were two Commission members sitting on the board that evening. Further discussion followed. Solicitor Bernathy asked if the public had anything further to comment on.
Mr. Jamros said two years ago he went to a Police Commission meeting and said his piece and they immediately went into executive session afterward. Vice-Chairman Fischer stated that was because they were scheduled for an executive session at the end of the meeting and that Mr. Jamros could asked for an agenda and he would have known that.
Ms. Babcock said she is submitting petitions to the board as she was instructed last month and that she would like to see them forwarded on. Supervisor Banach moved to send a letter to PennDOT. Motion is seconded by Vice-Chairman Fischer and carries with all in favor. Chairman Ewbank said since they are discussing Interstate 84 that he went to a meeting recently and for 24 months beginning January 2014 there’s going to be one lane of traffic on I 84 and both directions from New York to the Milford exit. Ms. Babcock said not before she gets her sound barriers. Discussion followed. Mr. Bostinto said that with regard to the bridge New York State owns 75% of that and PennDOT owns 25%. Chairman Ewbank said he was told NY owned 2/3 and PennDOT 1/3.
Steve Height said the last time he was here they were talked about the situation with his garage and he had the building inspector come up and found out they did not need a permit because the change did not involve a loadbearing wall. Supervisor Flansburg confirmed that was his understanding as well. Mr. Height said the second thing they needed to take care of was proving that the business had continued as a nonconforming use for the past several years. He has records going back to 2008 but not previously because the state doesn’t require him to keep earlier records. Solicitor Bernathy questioned if Mr. Height is asking for his business to be registered as a nonconforming use. Mr. Rendleman and Supervisor Banach both said he already is a nonconforming use. Solicitor Bernathy suggested that Mr. Height present his receipts to the board and that they will be reviewed.
Mr. Jamros that he felt there was something missing from the building when he observed on primary day people driving up and down Delaware drive passing the building with no idea what was going on and suggested the Township put in an illuminated sign notifying the public of meetings and special events.
Reginald Gardiner stated he lives next to Interstate 84 and if they’re going to do extra work and tear the barrier from the side of 84 the noise volume is going to be much worse than it currently is and he is requesting to have the full weight of the board behind the residents to request a sound barrier be installed. Vice-chairman Fischer suggests the weight of the public would probably be greater than the weight of the board. Mr. Jamros said he is not sure but he believed that sound barriers are a federal issue. Chairman Ewbank said we will send their petition out and see what can be done. Supervisor Banach that we will copy the County on the letter. Mr. Pranski asked if a sound study could be done saying he can hear the trucks going by from his home on Pennsylvania Avenue.
Marge Tonkin questioned if they’re going to repave I 84. Chairman Ewbank confirmed that. Mrs. Tonkin said she believes that once they pave there will be less noise. Discussion followed.
Mr. Jamros said he is extremely concerned about the lawsuit that has been filed from Mr. Lamac. Chairman Ewbank said they could not comment on that.
MINUTES: Minutes of the May 7, 2013 regular meeting were approved on a motion by Supervisor Flansburg. Motion is seconded by Supervisor Banach. Motion carries with all in favor.
TREASURER’s REPORT: Scott Myer gave the treasurer’s report for January through May stating that the majority of real estate tax has been collected and from the income standpoint were exactly where we should be. The same can be said for expenses. Mr. Meyer said things will be tight in December. Last week he met with new representatives from the Department of Community and Economic Development regarding the Act 47 plan. Discussion followed as to what benefits the Township receives from act 47. Mrs. Green said she spoke with Jonathon Hendrickson earlier in the day and he would like to schedule another meeting to possibly have the township removed from Act 47. Mr. Pranski questioned if the act 47 status affected our credit rating. Mrs. Green said she couldn’t answer that. Supervisor Banach moved to approve the treasurer’s report. Motion was seconded by Supervisor Melvin and carries with all in favor.
POLICE REPORT: Chief Stewart gave the report for May. There were 220 calls for service and 5,516 miles patrolled for the month. Chief Stewart said this Friday they have a buckle up checkpoint at the bottom of Cummins Hill and they have been working with the FBI and state police on robberies that have occurred over the last several years. Several arrests have been made. Supervisor Flansburg moved to accept the report. Motion is seconded by Supervisor Melvin and carries with all in favor.
FIRE DEPARTMENT: Luis Bocaletti gave the Westfall Township Fire Department Report for May reporting 3 automatic fire alarms, 7 motor vehicle accidents, 1 vehicle fires, 3 wires down, 3smoke investigations, 1 brush fire, 1 Haz Mat, 2 water rescues, 2 asst police, 2 public service, 1 stand by, 1 search and 4 mutual aid to scene for a total of 31 calls for the month. For EMS there were 44 calls for Westfall, 12 covering squad 33 and 5 covering squad 19 and 1 covering Blue Ridge. Mr. Bocaletti said they are having a golf outing on September 23rd and are looking for sponsors. Supervisor Banach moved to approve the report. Motion is seconded by Supervisor Flansburg and carries with all in favor.
HIGHWAY REPORT: Bill Schneider gave the report for May stating that they continue with equipment maintenance, the guide rails have been installed on Heaters Hill. Kiley Associates is working on the DEP permit. They are also doing work on Bluestone Boulevard. There was a tree down across wires on Phillips Lane. They’ve worked on compost site and maintenance on the Township grounds. He attended the road task force meeting and discussed work that is being done on Interstate 84. The crew painted the tunnel and attended a risk management strategy course for Roadmaster’ s and road crew of which material was supplied to the supervisors. Mr. Schneider said last month they discussed Fire Tower Road and he doesn’t believe it is going to work with the highway crew doing the work. Supervisor Flansburg asked what the price would be. When they were going to rent the roller it was approximately $4800. Discussion followed. Supervisor Banach suggested giving Mr. Schneider the authority to check things out with Leeward. Supervisor Flansburg moved to allow the Roadmaster to move forward. Motion is seconded by Supervisor Melvin and carries with all in favor.
BUILDING/ZONING REPORT: Michael Rendleman said there were five building permits and three zoning permits for the month of May with fees of $1630. In addition 24 of violation notices were sent out. Twenty three for signs and one for illegal storage. Vice-chairman Fischer moved to approve the report. Motion is seconded by Supervisor Melvin and carried with all in favor.
CORRESPONDENCE: On dais for review. Chairman Ewbank said we also have two letters from Chris Wood concerning the DEP and nitrate issues. Chairman Ewbank said there are House Bills and Senate Bills introduced to make this area exempt from the rules and regulations that DEP is trying to impose.
OLD BUSINESS: None
Water Extension – Milford Water Authority: Chairman Ewbank said the Milford Water Authority would like to extend their waterline past Orange & Rockland to the Pierce building. Supervisor Flansburg questioned if they had permission to go as far as O & R. Mrs. Green said she believes they did request and receive permission. Supervisor Banach said he feels that the Township should pass an ordinance and receive monetary compensation for allowing them to come into the Township. Mr. Schneider said the Township should have representation on the Milford Water Authority. Rob Llewellyn said they need to inform the water authority that their fire hydrants do not conform to the configuration that was specified for the Matamoras Water Authority. Discussion followed. Mrs. Green questioned what she should relay to the water authority. There was the issue of drafting an ordinance, hydrant compatibility, hydrant maintenance, return consideration, rights-of-way questions, hydrant tax and a hydrant maintenance agreement. This item will be tabled.
Deputy Constable: Chairman Ewbank said during the primary the Constable that was filling in for Michael Barth was sent home without pay after being here for approximately 6 hours because he was told he was not a township resident. Chairman Ewbank said they need to come up with a Deputy Constable that is the Westfall Township resident to fill-in for Constable Barth when he cannot make it. Mr. Barth said there was never any concern in the past to have a constable who is not a resident but he will make sure he uses a resident in the future.
Change July Meeting Date: Supervisor Flansburg moved to change the meeting date to Tuesday, July 9, 2013 at 7 PM. Motion was seconded by supervisor Melvin and carries with all in favor.
Matamoras Rod & Gun Club – Amusement Tax: Chairman Ewbank said we have a letter from the Matamoras Rod & Gun Club regarding the amusement tax. They are requesting to pay a flat tax in the amount of $65 for the year as opposed to having to spend an immense amount of time with record keeping for such a small amount of money. Solicitor Bernathy said this would need to be referred to Berkheimer Associates. Further stating that as long as this was a correct representation of the amount of funds they would have to pay he has no problem with it. The Supervisors agreed that they also do not have a problem with this.
Resolution 2013-3 – Prevailing Wage Act of 1961: Mrs. Green said this resolution was sent from the Pennsylvania State Association of Township supervisors and she has just retyped it. This resolution would support the State raising the prevailing wage rate. Motion to accept the resolution made by Supervisor Melvin. Motion is seconded by Vice-chairman Fischer. Supervisor Banach abstained. Motion carried with four in favor and one abstention.
Sewage Malfunction – Mitchell 1036 Delaware Drive: Chairman Ewbank read a letter from Chris Wood explaining that he is working on a malfunction in which the new system would be less than 100 feet from the neighbors well. He is notifying the board prior to a waiver being requested. Supervisor Banach questioned if this would mean having to be responsible for having to drill a new well down the road.
EXECUTIVE SESSION: Litigation – Kittatinny & Indian Head Canoes / William Lamac: Called at 9:17. Back in session 9:32.
SUBDIVISION REVIEW AND ACTION:
ADJOURNMENT: Meeting was adjourned at 9:32 p.m. on a motion by Supervisor Banach. Motion seconded by Supervisor Flansburg and carried with all in favor.
Lisa A. Green, Secretary