Mack's Memorandum of Law Defends His Right to "Refuse to Recuse"

 

The Newtown Township Board of Supervisors met on 18 September 2023 to resume hearing a validity challenge of its ordinance brought by a developer [KRE Upper Macungie Associates LP] seeking to build a multistory, 245-unit apartment building on Lower Silver Lake Road (for background, read “Developer Challenges Validity Of Zoning Ordinance In #NewtownPA Township”).

Recall that KRE filed a preliminary motion to disqualify me from hearing the challenge arguing that my blogs and Facebook postings have shown bias against the filing (for more on that, read “Developer Moves To Disqualify #NewtownPA Supervisor John Mack From Zoning Challenge Hearing”).

At the hearing, Newtown Solicitor Dave Sander asked Supervisor Mack "if he can hear and decide this case fairly based on the evidence presented to the Board of Supervisors in this proceeding?" This following 2-minute video documents my response:

Mack’s Memorandum

My attorney, Bryce H. McGuigan, Esquire, introduced a Memorandum of Law In Opposition to The Motion by KRE to force my recusal (i.e., keep me from hearing the case). The memorandum, which you can read here, cites several legal standards in defense of my rights noting that “Pennsylvania law establishes a high burden for forcing the disqualification of a supervisor from performing his or her official duties.” 

The law is clear and unambiguous in its protection of the rights of elected officials to be vocal on issues of importance to the community. Also, the memorandum cites legal reasons why KRE failed in its burden of showing that Supervisor Mack holds any bias in connection with the present Application.

The Memorandum further states (my emphasis added):

It appears that the Applicant’s Motion is based upon past statements that Supervisor Mack has authored related to potential development within Newtown Township. Just as any elected official within Pennsylvania is permitted to make statements and provide updates to his or her constituents regarding important issues facing a municipality, so too is Supervisor Mack- and that is what Supervisor Mack does more directly than almost any elected official within this Commonwealth. Supervisor Mack goes the extra mile to alert his constituents to new and developing issues and utilizes his position as an elected official to obtain input from local residents as to these significant issues facing their community. Such practices of our elected officials should be encouraged, rather than used as the basis from preventing them from performing their official duties.

The current Motion seeks to punish Supervisor Mack based on his notifying local residents of potential development and expressing an opinion regarding certain items within the public domain. Such statements are well-within his province as an elected representative of the residents of Newtown Township, and any effort to remove him from that role on this basis alone serves as a clear violation of not only the rights of Supervisor Mack under Pennsylvania law, but also of thousands of his constituents. Failure to respect Supervisor Mack’s direct determination that he can freely and fairly determine the instant Application, especially where there is no evidence of bias or predetermination, would only serve to violate the rights of Newtown residents to have their elected officials represent them in proceedings that have the potential to significantly impact the municipality, such as the matter at present. Absent more, Applicant cannot satisfy its heavy burden under the law to disqualify a duly elected supervisor from carrying out the duties that he was elected to perform for the citizens of Newtown Township.

Expert Witness Challenged

In the end, KRE’s motion to disqualify me from hearing the case was denied and I was able to cross-examine KRE’s first witness – Town Planner Thomas J. Comitta. View the following video clip where I focused on the applicant's claim that experts such as the Bucks County Planning Commission believe that the township zoning requires a B-11 use (i.e., multistory apartment building such as the one KRE wishes to build) in order to satisfy the needs of a so-called substantial increase in population.

 

As I noted in my cross-examination, the predicted population growth for Newtown Township for 2020 to 2030 period is pretty low – the Delaware Valley Regional Planning Commission (DVRPC) projects an increase of only 224 people (see Table 1 below and “Report by BCPC to Jointure on 2020 Census Population & Housing Data”).

Posted on 21 Sep 2023, 01:25 - Category: Development