Andrea Felkins

Does a Private Citizen Have Civil Rights in Tredyffrin Township?

Following the public hearing and vote for the C-1 zoning change, the Board of Supervisors meeting reconvened the regular meeting.  Of note, the township Finance Director Tim Klarich was named acting township manager, township secretary and Municipal Authority secretary and  township Zoning Officer Matt Baumann was named Open Records Officer.  Yesterday marked Mimi Gleason’s last day as Township Manager however, she was approved for a consulting contract with the township (contents of agreement were not disclosed.)

The regular Board of Supervisor’s meeting ended with supervisor and citizen new matters.  Chairman Michelle Kichline read a statement from the Board of Supervisors concerning the use of the township website for John DiBuonaventuro’s letter to the citizens.  Although a personal attack on a private citizen, Kichline stood by the decision to post his letter on township letterhead on the website.  She did say that the board will look into developing a policy for the use of the website going forward.  As the private citizen who was the target of DiBuonaventuro’s venomous attack, Kichline and the Board of Supervisors response was far from satisfactory.

Following Kichline’s statement on the Suzy Prawtoski matter and the use of the township website for a supervisor’s personal letter, Andrea Felkins, a former School Board director and longtime resident, presented a lengthy statement in opposition.  Felkins was absolute in her conviction against  DiBuonaventuro’s use of the township website for his personal attack on me and of Community Matters.  She spoke of the school district’s strict policy and suggested strongly that a similar policy should be adopted by the township.  Felkins has been a regular commenter on Community Matters, especially for all school board related matters.  Her comments always thoughtful and engaging.  I would like to publically thank Adrea for her public support.

To view the Kichline statement and Felkins statement video, click here.

Last night posed a near impossible situation for me. A close friend has often remarked to me that I see people as I wish them to be, not as they are … that was never truer, than last night. The last couple of weeks have sadly left me wondering about people who I thought that I knew and who I thought that I could trust.  It has been particularly sad to realize and have to accept that there are those in positions to make a difference or create change in Tredyffrin, but choose ‘group think’ rather than independent thought.  As if life could not have been more challenging, something happened last Friday that will forever alter how I view the place that I call home.

To watch my BOS personal statement, click here.

Below is the transcript of my statement from the September 17 Board of Supervisors meeting.

Pattye Benson
Personal Statement
September 17, 2012

Members of the Board of Supervisors and citizens of Tredyffrin Township – I had not intended to speak tonight, preferring to listen to other’s voices.  But something happened this past Friday, that has shaken me to my very core.  At approximately 9:40 AM on Friday, September 14, I received a joint phone call from township manager Mimi Gleason and Police Superintendent Tony Giaimo that has forever changed who I am.  In life’s journey, this is my watershed moment and a feeling that I will never forget.

Unable to shake how I was feeling, after 24 hours, I wrote the following email to Mimi Gleason and copied Michelle Kichline, chair of the Board of Supervisors.

Let me share that September 15 email with you.

Dear Ms. Gleason,

There are two reasons that I am writing this email (1) to state that as a citizen of Tredyffrin Township, I now feel threatened and harassed by our government and (2) to request that you never contact me again, unless it is with a written apology for your actions.

I have thought of little else since receiving your phone call yesterday, Friday, September 14.   As a township resident, to be blindsided with a conference call from the township manager and the police superintendent was more than a little intimidating; I have to wonder how often you have taken a similar approach with other citizens in this community. The telephone conversation left me wondering exactly what was the purpose of the call and why did you involve Tony Giaimo except as a witness or possibly to record the phone conversation.  Although there was no mention made of the call being recorded, Tony did state he was in his police vehicle, so am I to assume that the telephone conversation was recorded without my knowledge.

Between the historic house tour, the Paoli Blues Fest and personal health issues, I do not have the time or energy for your directives, missives or whatever else was the intention of your phone call or of your email dated September 7.  On September 7, I emailed you the following simple question:

“Who is responsible for Mr. DiBuonaventuro’s letter on the township website?  Was placing the letter on the website sanctioned by you, the township manager?”

The only response that my question required was a simple, yes or no, with the possible addition that the chair of the Board of Supervisors and the township solicitor had OK’d the letter for the township website.  However, no, you decided on a different response, one that was not required, not needed and not necessary.  Frankly, as a citizen and taxpayer in this township, your response was one that I believe you should never have sent. When I received your email, I made no response.

Your call yesterday revisited the opinion you stated in your September 7 email to me; again complaining that Community Matters contained misinformation and incorrect facts, specifically the assisted living project.  However, never once in the conversation did you cite specifics as to what was incorrect.  As a response to your complaints about the Suzy Pratowski matter, I stated that the Main Line Media News, TE Patch, Daily Local and the Philadelphia Inquirer had all written articles on the subject.  I further stated that there was at least a week after the news articles appeared for the police department, the township or the Board of Supervisors to make a statement before I wrote anything on Community Matters.  Residents were asking questions and no one seemed to be providing answers.

As a result of the situation, I did my own mini-investigation, speaking with District Attorney Tom Hogan, District Judge Tom Tartaglio, BOS Chair Michelle Kichline and Police Supt. Giaimo.  After a thorough analysis, I presented my own summary statement on Community Matters.   I clarified that John DiBuonaventuro was not the unidentified driver with Ms. Pratowski in the May 28 incident, as a photo in the newspapers may have implied.  In my summary, I stated that DiBuonaventuro was interviewed by the police and that the police were satisfied that he was not in any way involved with the two police officers not appearing for the August 21 court date.  I wrapped the summary up and tied a ribbon on it, stating that the two police officers missing the hearing was a human error, a mistake.  I also thanked those involved (Hogan, Tartaglio, Kichline and Giaimo) for their help and used the words that I was ‘closing the chapter’.  Little did I know, what was to happen … DiBuonaventuro’s letter, your involvement with the letter on the website, your September 7 email and most recently, your telephone call of September 14.

Feeling threatened by your phone call, I remarked at one point during the conversation that I should have an attorney on the call.  I stated to you and Giaimo that as a resident of this township, I have rights, and as a citizen of the United States, I have rights, including 1st Amendment rights.  I believe that our government does not have the right to harass and intimidate those citizens it serves to protect.  I am not an attorney but I cannot imagine that your actions of yesterday (or your email) would be viewed favorably by the courts. Further, I cannot imagine that you would have considered making a similar phone call to Main Line Media News, TE Patch or the Philadelphia Inquirer nor would you have dare taken this approach with an attorney who might understand the legal implications of your actions far better than me.

Supt. Giaimo asked what I would like to see happen going forward – my response was a denouncement from the Board of Supervisors for the letter going on the website and an apology from the township manager.  It should be noted that I quickly also stated that I did not expect either of those two things to happen.

It saddens me greatly that you were compelled to bring Tony into this matter.  He and I have enjoyed a good working relationship over the last several years, including the blues festival and the house tour. Was your motive to damage my relationship with him, or was it to record the conversation?  It is entirely unclear why you involved the police superintendent, except to further intimidate me.

In case you are not aware, your phone call was so upsetting, that I immediately called Michelle Kichline, chair of the Board of Supervisors to report the conversation.  You suggested that I was ‘mistaken’ when I suggested that Ms. Kichline had not seen Mr. DiBuonaventuro’s letter before it was posted on the website. For the record, Ms. Kichline again confirmed that she had not seen the actual letter before it went on the website; I guess you are the one who is mistaken.

In closing, your intimidating actions have contributed to my feeling harassed and threatened by some in our local government.  I ask that you not contact me again, unless it is with a written apology.  For the record, I believe that John Petersen is also owed an apology from you, for the words, “so-called legal expert has no expertise …”   contained in your Sept 7 email to me.

Sincerely,
Pattye Benson

This is the end of my email to Ms. Gleason but I have a few closing remarks.

The great irony is that today is this country’s Constitution Day.  Two hundred and twenty five years ago, on September 17, 1787, forty-two of the 55 delegates to the Constitutional Convention held their final meeting. Only one item of business occupied the agenda that day, to sign the Constitution of the United States of America.  Our founding fathers fought and died for our freedom, and I am left wondering if what is going on in this township is what they would have intended.

In closing, I am but one person, but I believe that I represent a far greater community.

Can we question our government?

Do we dare to have an opinion?

I believe that ALL our voices matter.

Thank you.

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Tredyffrin’s Proposed C1 Zoning Amendment Change … Where do we go from here?

Residents from the Daylesford neighborhood made their opinions known at last night’s Planning Commission meeting. With the exception of one person, all others in the Daylesford community spoke against the proposed C1 zoning ordinance change and the assisted living facility plan for the old Jimmy Duffy catering site.

The president of Daylesford Neighborhood Association, Trisha Larkin, presented a powerful 20-min. power point presentation, which explained the timeline to date for the C1 zoning ordinance change and the rationale behind the resident’s objections to the proposed assisted living project.  It was obvious from their reaction, that some audience members and Planning Commissioners were not fully aware of the timeline and ‘how in the dark’ the most-effected neighbors were in regards to this proposed project. (Click here to review the timeline.)

A couple of things were striking about the comments from Larkin and other Daylesford community members … R.E.S.P.E.C.T.   I have attended many Planning Commission meetings and often neighbors become very vocal in their opinions, and at times disrespectful to the planning commissioners, staff and/or applicants.  Not so last night.  A steady stream of residents offered their positions on the proposed C1 zoning change; their comments delivered with the utmost respect.  Although the vast majority of residents were either opposed to changing the C1 zoning to permit an assisted living use and/or asked for additional restrictions to be added to the zoning change, those choosing to comment did so with respect for the developer, his attorney, township staff and Planning Commissioners.

The other striking theme to the discussion on the proposed assisted living project was the process itself.  The planning commissioners acknowledged that they have been working on this project with the developer Ed Morris of Berwyn Real Estate and Gerald Farrell of Capital Health Service, for over 2 years. Yet the residents most-effected by the proposed assisted living facility only found out about in January of this year. By the time the Daylesford Neighborhood Association were aware of the proposed C1 zoning change, Morris and Farrell along with their attorney Denise Yarnoff, had attended several Planning Commission meetings.  Morris openly declared at these public meetings that there was no opposition to the project from the neighbors.  Resident after resident pointed out, they could not support (or oppose as is the case) a project that they knew nothing about.  Unfortunately for Mr. Morris,  he misspoke when he portrayed the neighbors supported this project … as evidenced last night, nothing could be further from the truth.

In addition to Daylesford neighbors, the proposed C1 zoning ordinance change brought questions and concerns from other township residents in attendance.  Berwyn resident Andrea Felkins asked about the definition of ‘assisted living’ versus ‘personal care facilities’ … how was it defined in the municipal zoning code, what was the difference? Her questions hit a cord with Planning Commissioner Ed Sweeney who in his remarks, referenced Felkins question, and asked for clarification from township staff and/or solicitor for the August Planning Commission meeting.  Andrea offers further explanation as follow-up to her comments given last night:

The C1 Ordinance Amendment draft describes the additional use as “A residential care facility for older persons providing permanent residential accommodations and/or assisted living facilities/services (and supplemental services) as defined in the applicable Pennsylvania state statutes, rules and regulations along with support services, which may include, but not limited to: personal care and health care services, medical services, skilled nursing, community facilities, and congregate dining facilities; provided that the property shall have direct access to an arterial street.”

In contrast, a very preliminary search of regulations for PA provides this language:

 “What is the difference between an Assisted Living Residence (ALR) and a Personal Care Home (PCH)?

ALRs are different from PCHs in 3 ways: concept, construction and level of care. ALRs embody the concept of allowing a resident to “age in place” without having to move to a licensed long-term care facility when their needs increase.

The construction of an ALR is different from a PCH. PCH residents live in bedrooms that may be shared by up to 4 people. ALR residents will have living units with kitchen capacity. No one will be forced to share a living unit. Living units will have a door with a lock and a private bathroom. This housing-service model will allow for privacy and maximum independence. It is similar to a studio apartment where the resident can make meals if desired and have a private bathroom.

The level of care provided in an ALR is distinguishable from a PCH, offering another choice of long-term living options in the commonwealth. A person who needs the level of care of a nursing facility is not permitted to reside in a PCH and must transfer when their needs become too great. That same person, however, will be able to live in an ALR where they’ll be provided with the services they need to age in place. “

Even on its face, the ordinance amendment makes no distinction about which purpose the property intends – stating only that it will follow the applicable state statutes.   No statute is identified … I’m not a real estate lawyer, but with this lack of specifics, this amendment seems to broadly define a use. Likewise, unless “arterial street” is a defined term in our zoning codes, then any C1 property would be free to build any quality or size of facility.  I’m not suggesting that is what is intended, but when we write laws/rules/ordinances/amendments, I think a bit more clarity would be prudent.

Tredyffrin Township solicitor Vince Donahue provided an opinion letter in regards to the grandfathering usage of parking on the 1-acre R1 parcel of the Duffy property. Although the Jimmy Duffy property has remained abandoned for several years, Donahue is of the opinion that the nonconforming use of parking remains available to the owner.  Paoli resident and attorney John Petersen disagrees with Donahue’s opinion, believing the nonconforming use of the R1 parcel for parking has lapsed and offered his comments to the Planning Commissioners last night.  For the assisted living project to ‘work’ on the Jimmy Duffy site, it requires the 1-acre C1 parcel plus the continued use of the R1 parcel as parking.  In an effort to better understand Petersen’s position on the Jimmy Duffy development project, I asked him for clarification.  Here are his comments …

In my opinion, Ed Morris’ contemplated development of the old Duffy’s Catering site is dead in the water for several reasons. 1 – And this is a preliminary point that focuses on the general lack of process and procedure around this particular plan.  2 – Which builds on point 1 above, this is effectively become a spot zoning/contract zoning issue. 3 – The pre-existing non-conforming use of the R1 parcel for parking to support the C1 use has lapsed – which itself is a fatal blow to the project.

On one hand, the PC wants to see the site is used. On the other hand, the PC wants to be comfortable with the use. In last night’s proceedings, it was far from clear how the PC and the BOS could let things get this far. Trish Larkin’s presentation (which by the way I was happy and honored to have input on) made crystal clear how problematic the situation is. What was clear from last night’s meeting was that the PC was giving great weight to the developer, their time, money spent, and almost no consideration to impacts of the zoning change or the needs and concerns of the citizens. To suggest that a “Super Wawa” could go there is a false choice. First, that is a use of right. Second, it is an entirely inappropriate comment to make by Ed Sweeney. The absurdity here is that a legal use is being subordinated to a non-permitted use. Again, it is entirely inappropriate for the PC to consider the money spent by a developer – unless of course – this is really a contract.

The stated reasons in previous paragraph outline a process that is unreasonable and arbitrary. It is unreasonable to the extent the way the needs of the developer appear to be the only areas of concern. There is little to no consideration of the broader zoning impacts. The only consideration appears to be for this developer, this project and this parcel of land.  The arbitrariness goes to the general lack of process. The extent of un-reasonableness and arbitrariness are direct factors that go to determine if spot zoning is in fact, present. One can argue that in reality, there is a contract here – which gives rise to a contract-zoning case.

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.

By the end of the evening, it became apparent to the Planning Commissioners that there were too many unanswered questions surrounding the C-1 zoning ordinance change for them to feel comfortable taking a vote to move the proposal forward to the Board of Supervisors.  The applicant’s attorney agreed to add restrictions to the proposed text amendment and re-submit at the August Planning Commission.  In the meantime, the township staff will work on finding answers to the questions asked by the Planning Commissioners and residents, including a review of other municipal zoning ordinances that govern assisted living facilities.

I caught up with Trisha Larkin today — curious to know what the DNA president and her neighbors thought of the Planning Commission meeting.  She offers her thoughts below …

Thank you to the Members of the PC, along with the many Tredyffrin residents, and DNA members that participated in a respectful and thoughtful dialogue about the proposed C1 Ordinance Amendment.

DNA members articulated their concerns that the Township could set major negative precedence for changing ALL of the Township’s C1 zoning for this ONE developer, for this ONE project, on this ONE space.  We fully agree with Mr. Lukens that as our population ages, we shouldn’t have to leave Tredyffrin in order to find a suitable Assisted Living Facility.  However, we respectfully request that the PC give a comprehensive analysis as to why Assisted Living use in C1 is a good idea.  The goal should be to have consistent and compatible uses that meet the needs of ALL residents. If the PC recommends that Assisted Living use should be added somewhere OTHER than in the Institutional Overlay districts – ONE THING CLEAR – Tredyffrin has ONE shot to “get it right“.

The DNA was thrilled and grateful to the Planning Commission for delaying the vote last night and opposing the Ordinance Amendment with no restrictions.  We appreciated that the Applicant was asked to “go back to the drawing board” and place conditional uses/special exceptions/regulations.  Rushing this decision comes with a high cost, and careful deliberation is required.  As it stands, the Supervisors delayed the Public Hearing until the September 17 meeting.  The PC has a daunting task to exhaust all possible options by that deadline.

So … what’s next in this process?  Where do we go from here?  Further discussion of the proposed C1 zoning ordinance change is scheduled for the August 16 Planning Commission meeting.  It is anticipated that the developer and his attorney will present an updated version of the zoning ordinance change; hopefully it will include additional regulations and requirements.  We learned this week that the supervisors moved the public hearing on the proposed C1 zoning ordinance change from their August BOS meeting to their September 17 meeting.

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T/E School District and Teacher’s Union … ‘Status Quo’

The June 30, 2012 contract deadline for the T/E teachers came and went with no new contract signed.  Therefore, as of July 1, the School District and the teachers union, TEEA are now in status quo.  This means that the T/E teachers’ salaries will be frozen at their salary level based on their 2011-12 salary until a new contract is signed.

According to the School District website, “… the teachers will continue to receive their salary at the current rate until the earlier of (1) a strike or lockout within the terms of Act 88 of 1992; or (2) the entry into a new contract.”

Also during the status quo period, the teachers health care benefit plan remains intact based on the expired contract, until a new contract is signed between the School Board and TEEA.

The School Board passed the 2012-13 TESD budget in June, which includes a property tax increase of 3.3%, or .6154 mills – equating to approx. $3 million revenue.  The 3% tax increase will translate to an annual increase to homeowners in T/E of about $155.

Former T/E School Board member Andrea Felkins created the following graphs with descriptions below each graph for Community Matters readers.  When we discuss the benefits, salary and pension costs of the District, it is difficult for some (myself included) to fully grasp the magnitude of the situation.  Through the use of the graphs, the data is more organized and easier to understand.  When you view the data through Andrea’s graphs, it is much clearer the role that each of the three components play in the budget, especially as the School District moves forward.  It should be noted that these graphs assume no salary increases.

Based on the final budget presentation, this is just a depiction of the PSERS and the BENEFITS numbers for the next few years.  It’s why I advocate a major change in the benefit plan – knocking $5M off the expenditures annually. 

 

Based on holding salaries constant, while PSERS is climbing, benefits stay well ahead of the PSERS contribution.

 

Each piece of the budget deserves scrutiny.  This graph shows that PSERS takes a bigger piece each year, but the other components dwarf the PSERS costs.

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