Emmaus Borough Council has begun paving the way for the creation of Fields at Indian Creek, an age 55-and-older community of 211 homes that will be located in the borough as well as in Upper Milford and Lower Macungie townships.
Council is moving toward creating an “age-qualified community overlay district,” which was initiated by Rick Koze of Kay Builders so he can build Fields at Indian Creek.
After nearly two hours of discussion Monday night, council voted to “adopt” on first reading the proposed overlay district zoning ordinance, which will require roads that are at least 26 feet wide with sidewalks on both sides of them in Fields at Indian Creek and any future development like it in Emmaus.
Council’s vote raises the possibility that Fields at Indian Creek could have sidewalks on both sides of its private roads in Emmaus, but no sidewalks on narrower roads in the rest of the development.
“This will be a little bit tricky for the developer because of the multiple municipalities involved,” said borough solicitor Thomas Dinkelacker. “But hopefully what happens is you’ll end up with one nice community that looks uniform throughout.”
After the vote, Koze said council’s actions will not stop him from proceeding with Fields at Indian Creek, although he said putting sidewalks on both sides of roads is ridiculous.
Koze said no similar developments in the area have sidewalks on both sides of the street. “It’s a waste of money and environmentally it doesn’t make sense.”
But Dinkelacker said most high-density developments like Koze is proposing have sidewalks and curbs.
Council’s vote actually only authorizes advertising the proposed ordinance, explained Dinkelacker. He said the proposed ordinance now will be shared with the Emmaus and Lehigh Valley planning commissions, as well as with the developer.
After those commissions review the ordinance for up to 45 days, a public hearing will be held.
Dinkelacker said if any changes are made to the ordinance as a result of that hearing, it has to go back to the LVPC and borough planning commission for another 45-day review.
He added if changes are substantial, the proposed ordinance must be re-advertised.
“You really don’t want to change it as a result of a hearing,” he said.
Borough manager Shane Pepe has said council could vote to adopt the ordinance by mid-July.
Even if Emmaus does adopt the overlay district this summer, land development plans for Fields at Indian Creek must be reviewed and approved by all three municipalities.
Koze hopes to have all local and state approvals so he can begin the development by the summer of 2014.
Most of the proposed 72-acre development is in Upper Milford., with just a sliver in Lower Macungie.
The development will be next to the Pennsylvania Turnpike, just north of the Chestnut Street entrance to Indian Creek Golf Course and the Farmhouse restaurant in Emmaus, although its residents will come and go via Indian Creek Road on the north side of the development.
Koze estimated 54 acres of the project will be in Upper Milford, which will have 155 homes; 15 acres in Emmaus, which will have 56 homes, and three acres containing no homes in Lower Macungie.
Despite the name of the proposed development, it is Leibert Creek that curves around part of the property.
Although the development will be built on Indian Creek Golf Course, Koze said at least nine holes of that golf course will remain.
Koze plans to build single family homes, although he may do some townhouses because the proposed Emmaus ordinance would allow them. Dinkelacker said it also would allow duplexes, twins and quadraplexes.
Council member Wesley Barrett abstained from voting on the proposed overlay district, explaining he feels voting for the amendment would be a potential conflict of interest because he owns a real estate office. He added he also has a potential financial contract, but did not elaborate.
What council approved
Koze wanted no sidewalks in Fields at Indian Creek, but was willing to put them on one side of the roads in the Emmaus portion of the development.
When the seven-member council put the sidewalk issue to a vote, only Brent Labenberg supported requiring sidewalks on just one side.
Koze said the state Department of Environmental Protection wants to reduce impervious coverage and prefers storm water run off the sides of road surfaces and be absorbed into yards, rather than channeled by curbing into streams.
“It wasn’t about cost; it’s about what’s good planning and aesthetics,” he maintained, adding: “There is less water going directly into streams.”
But Dinkelacker said Emmaus will require curbs for storm water management.
Koze also wanted the private roads to be only 24 feet wide. A motion by Michael Waddell to allow 24-foot-wide roads died for the lack of a second.
Borough engineer Chad Peters said a 26-foot-wide roadway allows parking on one side, with enough room for two passing cars to “squeak by” in the travel lane, because the average vehicle is about eight feet wide. He also said emergency vehicles need enough room to get through.
Council did not agree to the developer’s request to reduce or eliminate a recreation fee stipulated in the proposed ordinance. Council president Lee Ann Gilbert said that fee is $1,000 per dwelling unit, which goes to the borough.
Council showed more flexibility regarding the composition of a pedestrian pathway and nature trail through Fields at Indian Creek, voting that it will determine that composition -- although both the borough solicitor and borough engineer argued that pathway should be paved.
Peters said it must be a hard surface to meet federal ADA requirements, meaning wheelchairs can be used on it. He said stone, gravel or mulch does not meet ADA requirements.
Although Fields at Indian Creek will be private, Koze said it will include a portion of a trail system that will be open to the public to link Emmaus with Camp Olympic Park in Lower Macungie. The trail will be along Leibert Creek.
Koze said the state does not allow paved trails or sidewalks within 200 feet of a stream.
Koze told council “I’ll do whatever you want” but warned: “I just don’t think some of these ideas are good planning for the future.”
He asked for more flexibility “to make it a project somebody wants to do. We’ll live with whatever you come up, but it may not make sense economically.”
Atty. John Hacker, Koze’s lawyer, told council: “The more bells and whistles we add to this thing, the more unaffordable this type of community becomes. It’s fine and dandy to put everything you want into these things, but someone has to pay for it. In the long haul, particularly with private streets, it’s going to be the residents of the community.”
“We’re trying to put a community together that looks nice,” said Koze. “We chose active adult because it generates less traffic, it’s a good tax generator and there’s no demand on the schools.”
He said the Upper Milford side of the property could be “loaded up” with 350 apartments “but I don’t think that makes sense."
While the proposed ordinance is being created for Fields at Indian Creek, council member Brian Holtzhafer told Koze: “I am acting on an ordinance that doesn’t relate to Indian Creek. I don’t know anything about your plan. The ordinance we’re acting on tonight has nothing to do with any specific plan.”
Holtzhafer also expressed concern about creating an overlay district based on input from just one developer. “I don’t think a developer should have this level of input.”
He said having the developer in his face saying “hey, guys, do this for me, do this for me” created an uncomfortable situation.
Said Holtzhafer: “The ordinance we’re acting on tonight has nothing to do with any specific plan. When a specific plan comes to us, they could ask for relief to not have to put sidewalk on both sides of the street and we as a council could grant it.”
But Dinkelacker said that relief would come not from council, but from the Emmaus zoning hearing board, if the developer would seek a variance. Koze told council he would not get a variance, because he would have to prove hardship.
Avoiding spot zoning challenge
Before the vote, Dinkelacker gave borough council a detailed overview of the proposed overlay district, assisted by Peters.
Dinkelacker said an age-qualified community overlay district permits higher density, meaning more homes. But he added it also requires recreational facilities and 50 percent open space.
Dinkelacker said at least 50 percent of Fields at Indian Creek must be open space. He said the land around each house counts as part of that open space because residents of the development will own their homes but not their yards. The development will be owned and operated by a homeowners association.
He said recreation areas would be for residents and their guests, but not other borough residents. He said the developer will have to pay a recreation fee to the borough or donate land suitable for parks and recreation.
Dinkelacker said the borough does not want to create a problem called spot zoning, which he defined as allowing changes to the zoning ordinance that don’t fit into the community. He said that could create legal challenges based on density or traffic.
He advised council what the ordinance must include to be protected under the law.
“The likelihood of it being legally challenged – successfully challenged -- is slim to none,” said the solicitor. “You should prevail if there is a challenge.”