The regular semi—monthly meeting of the Board of Supervisors, Hanover Township, Northampton County, Pennsylvania was called to order by Vice Chairman John J. Finnigan, Jr. at the Hanover Township Municipal Building, 3630 Jacksonville Road, Bethlehem, Pennsylvania, 18017 at 7:30 P.M.

Present were Supervisors Colon, Walbert and Diacogiannis, Attorney Nicolosi for Solicitor Broughal, Engineer Birdsall, Township Manager Sterner and Public Works Supervisor Kevin Healy.

Upon motion of Mr. Walbert, seconded by Mr. Diacogiannis, the Board unanimously approved the Agenda.

Mr. Finnigan yes, Mr. Colon yes, Mr. Walbert yes, Mr. Diacogiannis yes.

Upon motion of Mr. Walbert, seconded by Mr. Diacogiannis, the Board unanimously approved the minutes, as written, from the meeting of the Board of Supervisors dated October 23, 2001.

Mr. Finnigan yes, Mr. Colon yes, Mr. Walbert yes, Mr. Diacogiannis yes.

Upon motion of Mr. Diacogiannis, seconded by Mr. Colon, The Board unanimously approved the List of Bills and Transfers dated November 13, 2001 as prepared by the Secretary/Treasurer, and to enter the signed List of Bills by the Secretary/Treasurer and the Board of Supervisors as an attachment to the minutes.

Mr. Finnigan yes, Mr. Colon yes, Mr. Walbert yes, Mr. Diacogiannis yes.

Mr. Salvesen was not present.

Mr. Finnigan had nothing to report.

It was noted for the record that no one wished to speak.

Mr. Colon moved that the Board approve to authorize the Chairman and Secretary to sign the Site Plan Improvements Agreement and Site Plan Maintenance Agreement for Lot 52 in the Lehigh Valley Industrial Park IV.

Mr. Walbert seconded the motion.

Mr. Finnigan yes, Mr. Colon yes, Mr. Walbert yes, Mr. Diacogiannis yes.

It was noted for the record that Lehigh Valley Corporate Center Phase II Lots 7/8 has granted the Township an extension of time to February 25, 2002.

It was noted for the record that Uplands Office Park has granted the Township an extension of time to March 6, 2002.

Mr. Walbert moved that the Board approve to adopt the following Resolution accepting the Deed of Dedication for Southland Drive:

WHEREAS, on April 4, 2001, WEGMANS FOOD MARKETS, INC. did grant and convey unto the TOWNSHIP OF HANOVER certain road or roads, as is more fully described in said Deeds, copies of which is attached hereto and made a part hereof and marked as Exhibit "A"; and

WHEREAS, said Deeds were recorded in the Recorder of Deeds Office, Northampton County Courthouse, Easton, Pennsylvania on October 17, 2001; and

WHEREAS, the Act of May 1, 1933, P.L. 103, Art. XI, 1140, as amended reads as follows:

"The Supervisors of any Township may accept by resolution in the name of the township, any land dedicated by deed to the township together with a draft or survey of the road, street or alley showing location and width thereof, shall be filed in the office with the clerk of quarter sessions court."

WHEREAS, a draft or survey of the roads showing their location and width, is attached hereto and made a part hereof and marked as Exhibit "B"; and

NOW, THEREFORE, BE IT RESOLVED, that in accordance with the foregoing, the Board of Supervisors of Hanover Township hereby formally accept in the name of Hanover Township, Northampton County, Pennsylvania, the above—described roads which are duly recorded in the Office of the Recorder of Deeds of Northampton County.

AND, the Solicitor of Hanover Township is hereby directed to file a true and correct copy of this resolution in the Office of the Clerk of Quarter Sessions Court, now known as the Clerk of the Court of Common Pleas Office.

Mr. Diacogiannis seconded the motion.

Mr. Finnigan yes, Mr. Colon yes, Mr. Walbert yes, Mr. Diacogiannis yes.

Mr. Walbert moved that the Board approve to adopt the following Resolution accepting the Deed of Dedication for Stoke Park Road:

WHEREAS, on April 4, 2001, WEGMANS FOOD MARKETS, INC. did grant and convey unto the TOWNSHIP OF HANOVER certain road or roads, as is more fully described in said Deeds, copies of which is attached hereto and made a part hereof and marked as Exhibit "A"; and

WHEREAS, said Deeds were recorded in the Recorder of Deeds Office, Northampton County Courthouse, Easton, Pennsylvania on October 31, 2001.

WHEREAS, the Act of May 1, 1933, P.L. 103, Art. XI, 1140, as amended reads as follows:

"The Supervisors of any township may accept by resolution in the name of the township, any land dedicated by deed to the township together with a draft or survey of the road, street or alley showing location and width thereof, shall be filed in the office with the clerk of quarter sessions court."

WHEREAS, a draft or survey of the roads showing their location and width, is attached hereto and made a part hereof and marked as Exhibit "B"; and

NOW, THEREFORE, BE IT RESOLVED, that in accordance with the foregoing, the Board of Supervisors of Hanover Township hereby formally accept in the name of Hanover Township, Northampton County, Pennsylvania, the above—described roads which are duly recorded in the Office of the Recorder of Deeds of Northampton County.

AND the Solicitor of Hanover Township is hereby directed to file a true and correct copy of this resolution in the Office of the Clerk of Quarter Sessions Court, now known as the Clerk of the Court of Common Pleas Office.

Mr. Diacogiannis seconded the motion.

Mr. Finnigan yes, Mr. Colon yes, Mr. Walbert yes, Mr. Diacogiannis yes.

Mr. Walbert moved that the Board approve the sale of the 1969 Hahn Fire Truck to Payne County, Oklahoma at the offered price of $4,000 and to notify the Hanover Township Volunteer Fire Company of the approval.

Mr. Colon seconded the motion.

Mr. Finnigan yes, Mr. Colon yes, Mr. Walbert yes, Mr. Diacogiannis yes.

Mr. Walbert moved that the Board approve, based on the recommendation of the Township Shade Tree Commission to accept the proposal from Roots Nursery at a cost of $8,755 for the planting, staking and mulching of trees in Pharo, Westgate, Troxell, College Heights, Municipal and Pointe North Parks, and to notify the Shade Tree Commission of the Board's action.

Mr. Colon seconded the motion.

Mr. Finnigan yes, Mr. Colon yes, Mr. Walbert yes, Mr. Diacogiannis yes.

Mr. Diacogiannis moved that the Board approve to authorize the Secretary/Treasurer to advertise that the proposed 2002 Township budgets are on display and will be adopted at a public meeting which will be held on December 11, 2001.

Mr. Colon seconded the motion.

A brief discussion was held on a few items.

Mr. Finnigan yes, Mr. Colon yes, Mr. Walbert yes, Mr. Diacogiannis.

Mr. Diacogiannis moved that the Board approve to authorize the Secretary/Treasurer to advertise that the Board of Supervisors will hold their annual Reorganization meeting on January 7, 2002.

Mr. Walbert seconded the motion.

Mr. Finnigan yes, Mr. Colon yes, Mr. Walbert yes, Mr. Diacogiannis yes.

Mr. Diacogiannis moved that the Board approve to authorize the Secretary/Treasurer to advertise that the Board of Auditors will hold their annual meeting on January 8, 2002, and to notify the Auditors of the meeting date.

Mr. Colon seconded the motion.

Mr. Finnigan yes, Mr. Colon yes, Mr. Walbert yes, Mr. Diacogiannis yes.

Mr. Diacogiannis moved that the Board approve the borrowing of $1,000,000.00 from National Penn Bank in accordance with the terms in the commitment letter dated November 12, 2001 and to authorize the Secretary to sign the commitment letter.

Mr. Colon seconded the motion.

Mr. Finnigan yes, Mr. Colon yes, Mr. Walbert yes, Mr. Diacogiannis yes.

Mr. Sterner had nothing to report.

Mr. Healy reported there was overtime worked last week due to one leaf machine down.

The guys worked until 5 P.M. and on Saturday.

The conditional use approval for ESA Services was appealed by Eastupland Associates; we do have a judgment status affirming the Board's decision.

Mr. Birdsall had nothing to report.

Mr. Salvesen arrived at 7:50 P.M.

Mr. Walbert reported on Road District #1, nothing to report.

Mr. Salvesen reported on Road District #2, nothing to report.

Mr. Diacogiannis reported on Road District #3, nothing to report.

Mr. Colon reported on Road District #4, nothing to report.

Mr. Finnigan reported on Road District #5, nothing to report.

Mr. Salvesen stated he has nothing to report under report of the chairman, however, in regards to the conditional use vote for WaWa, he has written his comments down in an effort to explain his vote. Mr. Salvesen read the following:

"Our Ordinances, specifically the sections dealing with traffic, did not contemplate the advent of the mega gas station, convenience store complex. Our Ordinance clearly calls out and provides for traffic study using the "cookbook approach", and you heard me use that phrase a number of times. In 99.9% of the cases this is more than adequate to protect the township and require any developer to remedy the deficiency in traffic movement if one exists. In the case before us, specifically WaWa, I do not believe that the "cookbook approach" offers the township and its resident's adequate protection from deficiencies that may occur from traffic movement. Unless we know how may vehicles WaWa expects to service at this facility, we cannot make judgments as to the suitability of the road systems in and around the facility and the fact could be very likely to be allowing a very dangerous situation to develop. I do not believe that WaWa, it's staff or professionals intentionally or unintentionally tried to mislead us, I think our own ordinances did that by the way it was written. Unless we have factional information that is site specific, I need how many cars are going into the WaWa site, all I can conclude is that granting a conditional use to WaWa would generate a potentially dangerous situation. Now I know that in our conditions that we had findings of fact of law, we did try to remedy some of that by taking traffic counts, but I would submit to the Board, that was after the fact. In saying that we will get back to the conditional use vote."

Attorney Richard Boyer was present representing the Township.

Mr. Finnigan moved that the conditional use application of WaWa Inc. on Lot 2 in the Lehigh Valley Corporate Center be approved.

Mr. Diacogiannis seconded the motion.

Mr. Finnigan read into the record the findings of fact.

Attorney Boyer stated the "blank", letter I on page 6 of the findings of fact, I believe that there was representation made at the hearing that a certain additional requirement would be added to and made a part of that operating protocol, but I cannot remember without having a record transcribe what that was. Does anyone from the Board recall what that was?

Mr. Finnigan stated in reading the findings of fact, I think they are already included in the musak system, the no parking, the lights, I think that is all included and I think that can be stricken.

Attorney Boyer stated that we can indicate that they be redrafted in a form of a declaration of protective covenants as far as the traffic is concerned.

Attorney Boyer made the following comment:

"This is not a lecture, but it is some quotes from a guy named Ryan who wrote the book in Pennsylvania on zoning and land use procedures. He says that a conditional use is nothing more than a special exception, which falls within the jurisdiction of the legislative body rather than the zoning hearing board. It's the same type of thing, except for one difference, which makes this conditional use procedure maybe even a little better than the special exception procedure, and that is that in the Municipalities Planning Code provides in a conditional use hearing, the Board is to consider the recommendations set forth by the planning agency. The law pretty much says that a conditional use is a special exception granted by the township board and not the zoning hearing board. The phrase special exception is an unfortunate selection. A special exception is neither special no is it an exception to the ordinance.

Zoning boards often hear protestants argue that an applicant for a special exception should be required to observe the laws set forth in the zoning ordinance. That argument is appropriate in an application for a variance but not in a case involving a special exception. The applicant for an exception is following the zoning ordinance, his application is one envisioned by the ordinance and if the standards established by the ordinance are met, his use is one permitted by the ordinance's expressed terms. Sometimes there is a feeling particularly in the individuals who observe the proceeding, that there is some change, variance, alteration or exemption to the law that permits things like conditional uses or special exceptions to be conducted on certain land. It is the law itself that contemplates that the use may very well be consistent with a particular neighborhood, a particular zoning district if the conditions and the requirements and restrictions that are also set forth in the ordinance provides so. If the use is clearly inconsistent, then it should be prohibited. If the use is clearly consistent with the district, then it is a permitted use. The conditional use procedure is that sort of gray area where it has been felt that the use could be okay there, but we want to establish additional standards to put it in and have the ability to control it more and hence this idea, the conditional use approval developed under land planning law in Pennsylvania and other states."

Mr. Finnigan stated he has some things that need to be changed and some questions.

Mr. Finnigan made the following changes in the findings of fact:

• Page 3, Number 9, it should read the Lehigh Valley Planning Commission
• Page 5, Letter B, should read Stoke Park Road, not Stokes Park Road.

• Page 5, Item E — Incorporate that item to say at the written notice from the Township Board of Supervisors all up lights and portions of the down lights, etc.
• Page 6, Item H — Incorporate that item to say at the written notice from the Township Board of Supervisors the Musak Sound System will be turned off from midnight to 6:00 o'clock A.M. each day.
• Page 7, Item Q — Change the item to stop at the word tract on the third line in the paragraph.

Mr. Finnigan questioned page 8 line 2; the average of the four (4) counts will then be multiplied by two (2); is that in and out?

Attorney Boyer stated that we are only counting the outs and trips count in and outs. In order to come out, the car has to go in.

Mr. Salvesen stated that as Mr. Finnigan pointed out, WaWa has met our ordinance. All I am saying is that our Ordinances never contemplated the mega store/convenience station and I think we do it an injustice by not considering that.

Mr. Diacogiannis stated the testimony that I saw from the traffic engineer, was really beyond the quote "textbook approach". The study that he presented did have what will be entered in. He did present numbers that were coming from specific mega store sites, in other locations yes, but still other mega convenience stores. They have gone beyond what we have required of other with similar petitions. They have met all our requirements and we have imposed on them conditions based upon what we heard. Had we gotten the exact numbers, we would have imposed some other conditions or more conditions.

Mr. Salvesen stated that this is a unique set of circumstances and once this is approved, it's done, we can't go back and change anything.

Mr. Finnigan stated their plan meets or exceeds every one of our tests and to make them meet a test that might be in the future, I don't think we can do that. We have the evidence. We have to evaluate the evidence based on what we have to evaluate it on, not what can hypothetically happen in the future.

Mr. Walbert stated he agrees with Mr. Diacogiannis and Mr. Finnigan's comments. I don't think the number of gas pumps will not attract extra cars.

Mr. Salvesen no, Mr. Colon yes, Mr. Walbert yes, Mr. Diacogiannis yes, Mr. Finnigan yes.

The motion passed by a 4—1 vote.

Mr. Salvesen closed the regular business meeting at 8:40 P.M. to adjourn to an Executive Session.

Mr. Salvesen closed the executive session and re—opened the regular business meeting at 9:40 P.M.

Upon motion of Mr. Colon, seconded by Mr. Diacogiannis, the Board unanimously approved adjournment at 9:41 P.M.

Mr. Salvesen yes, Mr. Colon yes, Mr. Walbert yes, Mr. Diacogiannis yes, Mr. Finnigan yes.

Linda J. Sterner

Secretary/Treasurer