From Jimmy Duffy’s Catering to Sage Senior Living … Planning Commissioners to review plans tonight

Looks like the old Jimmy Duffy catering site may soon to have a new name … ‘Sage Senior Living Development’.

For months leading up to September 2012, there was an urgency to pass the new C1 zoning ordinance to permit assistant living facilities (ALF).  The driver behind this zoning change was Capital Health and developer Ed Morris with plans to build an ALF on the former Jimmy Duffy’s Catering site on Lancaster Ave in Daylesford. During that period there was much discussion and debate with township supervisors, planning commissioners, township manager and residents regarding the C1/R1 site and its suitability as the future home of an assisted living facility.

On September 18, I wrote “Community Matters: Your Voice Matters … Except when it comes to C-1 Zoning Change” discussing the ordinance change and what I viewed as a flawed township process. Here is an excerpt from that post …

I thank all the citizens who took 4-1/2 hours of their time on Monday night to show support and to have their voices heard on the C-1 zoning change to permit assisted living usage. Tredyffrin residents spoke out from across the township, Paoli, Berwyn, Strafford, Wayne, etc. not just the Daylesford neighbors.  Hours of public testimony and not a single resident voiced support for the proposed C-1 zoning change. Citizens stated opposition for a host of reasons … flawed process, spot zoning, preferential treatment to a developer, should be a conditional use not a by-right use, bed density, safety concerns for patients, increased demand on township’s emergency services, etc. — the list went on and on.

Given the urgency in pushing the C1 zoning change through the system, it has been very surprising that the developer and his plans have been MIA for the last seven months.  If you recall, one of the rationales from the Planning Commission in regards to the C1 zoning change, was the fear that the township might lose Morris’ development plan if they took too long in changing the zoning.  Touting economic development for the community, there was a concern among some of the planning commissioners that we might lose this opportunity if the township didn’t move swiftly to permit ALF as a permitted use in C1.

So … on tonight’s Planning Commission agenda is the following:

06-2013; Sage Senior Living Development: Sketch Plan Application for an assisting living facility in C1/R1 Districts (parcels 43-10J-127/43-10J-128.1). Action: Discussion and input by the Planning Commission to the applicant for conceptual site plan prepared by Momenee & Associates, Inc., dated 4/4/2013.

The Jimmy Duffy site is comprised two parcels, zoned C1 and R1  … for Ed Morris to make his proposed ALF project work he needs use of the R1 for parking.  The Sage Senior Living Development project hinges on whether the R1 parcel is ‘legally’ abandoned. Last year, Tredyffrin’s solicitor Vince Donohue provided an opinion letter in regards to the grandfathering usage of parking on the 1-acre R1 parcel.  Although the Jimmy Duffy property has remained abandoned for several years, Donahue was of the opinion that the nonconforming use of parking remains available to the owner.

At least one other attorney did not share Donahue’s legal opinion that the nonconforming use of parking in the R1 parcel can continue.  In a July 20, 2012 Community Matters article, “Tredyffrin’s Proposed C1 Zoning Amendment Change … Where do we go from here?” attorney John Petersen offered his opinion,

Perhaps the bigger issue is the R1 parking and whether it is grandfathered. There are four reasons why Vince Donahue’s analysis in his opinion letter is flawed:

  1. There has been a change in ownership
  2. The catering business ceased at least 3-5 years ago
  3. Mr. Donahue’s analysis leaves it to a reasonableness standard
  4. Donahue cites fact in support of his conclusion as opposed to case law

The conclusion in Mr. Donahue’s opinion is that the zoning officer “Could not reasonably conclude that the use has lapsed.” In fact, I just gave a number of reasons why Matt Baumann, our zoning officer, could reasonably conclude that the use did lapse. In fact – I’d say that based on these facts – Baumann couldn’t reasonably conclude the use didn’t lapse. If the township tries to grandfather this use, that itself could be a prima facie case of contract zoning – which is always construed to be spot zoning.  Ironically, where the PC and at least some on the BOS thought they were helping this project along, they actually did more to harm it by not following sound process and procedure.

Whether or not the grandfathering of the R1 parking is permitted is the key to the Sage Senior Living Development project.  For the project to move forward with the Planning Commissioners will require a resolution.  The Planning Commission is 7 PM tonight at the Township Building.

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  1. This is very interesting, and would make for a good law school discussion…
    If there is no case law, then will this ultimately have to be adjudicated by the courts, no matter how it is decided by the township?

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