Berwyn Real Estate

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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Proposed C1 Zoning Change in Tredyffrin to Accommodate Developer and Specific Project

A couple of weeks have passed since supervisor JD DiBuonaventuro held a town hall meeting for members of the Daylesford Neighborhood Association (DNA). Also attending the meeting were township manager Mimi Gleason, zoning officer Matt Bauman, supervisors DiBuonaventuro, Michelle Kichline and Kristen Mayock, and planning commissioners Bob O’Leary, Tory Snyder and Trip Lukens. Representing the proposed project were developer Ed Morris, Berwyn Real Estate L.P., Capital Health representative Gerard Farrell and attorney Denise Yarnoff. The focus for the meeting is a 93-bed assisted living facility proposed for the old Jimmy Duffy’s catering site on Lancaster Ave. in Daylesford. The property is 2.069 acres, containing 1.069 acres of C1 Commercial and 1 acre of R1 Residential property.  Current zoning does not permit this usage.

The mid-May meeting follows other DNA meetings, planning commission meetings and Board of Supervisor meetings where the assisted living project was discussed.  Attending most of the meetings, I have now decided this proposed project represents something more significant than simply a NIMBY (Not-in-My-Back-Yard) syndrome for a local neighborhood.  Residents raised questions about the proposed project including traffic, density, lighting, trash collection to name a few.  Although certainly important issues to those residents most affected, I was not entirely convinced that an assisted living facility was a bad idea.  In an attempt to gain community support, the developer made concessions at the town hall meeting  –  the latest sketch plan reduced the number of floors, closed off the back exit to adjourning Pennsylvania Ave from the site, enclosed trash collection, etc.

My problem with the Jimmy Duffy redevelopment project has nothing to do with the specific project but rather, the way this project has seemingly been fast-tracked and given a green light to move forward.  What do I mean?  An assisted living facility is not currently on the list of permitted uses in the township’s C1 district.  Because the current zoning does not permit an assisted living facility, traditionally a developer would seek either a variance or a conditional use for the project.  When questioned at the October 2011 planning commission meeting as to why the applicant would not take this approach, attorney Denise Yarnoff responded that, “the process would delay the project, cause a financial burden, and not address all the project-related issues.”

If you are a developer and don’t want to see your proposed project bogged down by the time required to seek a variance or conditional use (and don’t want the additional cost this path would require) why not just get Tredyffrin Twp to change the zoning to accommodate your plans.  Yes, that is exactly what has happened … an Ordinance Amendment draft to permit assisted living in C1 zoning was submitted by Yarnoff along with a $5,000 application fee. The ordinance amendment is scheduled for the Planning Commission’s July 19 meeting.  In researching this situation, I have not been able to find any other project in the township in recent years where zoning usage was changed to accommodate a specific developer and specific project.  What is it about this specific project or its developer that would warrant such special treatment by the township?  I have no idea.

Anyone that is reading this post needs to recognize that this situation and the ramifications of the proposed zoning change is not just about the Daylesford assisted living project. Should the C1 zoning Ordinance Amendment continue down the green light path, the zoning change will permit assisted living in all C1 districts in the township.  Should this ordinance amendment be approved, it means that a zoning change for a specific project, benefiting a specific developer will change the permitted uses for all C1 properties in Tredyffrin Township.  So the next question is ‘why’ have a comprehensive plan?

According to the township website, the comprehensive plan “provides local officials with a highly effective planning tool that will support day-to-day decisions about future development so that they may be thoroughly rational and consistent …”   I have to ask, is changing zoning to accommodate a specific project “rational” ? A comprehensive plan is in place to guide growth and development in an orderly manner … does changing zoning to accommodate a specific developer’s needs promote a fair and orderly process?

Beyond obvious concern that changing zoning for a specific project is precedent setting for the township, there’s something else.  In April, the Board of Supervisors voted unanimously to spend $100,000 for a consultant to update commercial zoning regulations in the township.  The consultant was hired to review the township’s existing commercial zoning and make recommendations.  Would it not seem to make sense if the township (taxpayers) is spending $100K for professional zoning advice, there should be a moratorium on any zoning changes until after the expert presents his update?  That is not to say that this assisted living project couldn’t move forward – the developer would just have to use either the variance or conditional use routes versus the zoning ordinance amendment change.

As follow-up to the town hall meeting, DNA president Trisha Larkin sent a series of questions to supervisor DiBuonaventuro in regards to the proposed assisted living project.  A specific question and response from DiBuonaventuro caught my attention –

 Larkin:
4.  Why is there not a moratorium on commercial zoning (re-zoning) until the independent consultant comes back with some solid recommendations?

DiBuonaventuro:
This developer began talking to the Township last year, before a decision was made to begin work on the commercial zoning districts.  The commercial zoning work is just beginning and will take another 18 months before it is completed.  In fairness to the developer and to the bank that owns the property, a decision needs to be made one way or the other long before the completion of the commercial zoning work so the bank knows whether it should seek a different buyer.

Should the process for a land development project be based on what is ‘fair’ to a developer or the property’s owner (in this case Eagle Bank)?   Or … should any proposed land development project be based on what is ‘fair’ to the community and its residents?  Zoning decisions must be policed both from the top-down and from the bottom-up, using processes that encourage neighborhood residents to participate actively in decision-making.  Citizen participation both gives voice to the interests of neighborhood residents and provides the most effective safeguard against corruption of the zoning process.

The rationale behind municipal zoning power is that effective land use planning is necessary to promote and protect the interests of the entire community. Those making land development decisions need to create the community that we, the residents, want.

I am going to be very curious to see how the assisted living project plays out … will the draft C1 ordinance amendment, as provided by the developer’s attorney, win the approval of the Planning Commissioners and go on to the Board of Supervisors for their final approval?  Will DNA residents continue to voice their concerns over the project?  Will other township residents view zoning changes to suit a specific project or to accommodate a particular developer as setting precedence … and therefore,  worthy of further discussion?  

Stay tuned; the outcome on this proposed zoning change may mean a new era for development in Tredyffrin Township.

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