Gerard Farrell

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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Jimmy Duffy Redevelopment Project … Does the End Justify the Means?

This is a follow-up to an earlier post, Jimmy Duffy’s Redevelopment Plan Requires Zoning Change … Is There Community Support?  

Last week’s town hall meeting included an update on the redevelopment project from developer Ed Morris, who was accompanied by Capital Health Group, LLC representative Gerard Farrell and their attorney Denise Yarnoff of Riley Riper Hollin & Colagreco. In addition to members of the Daylesford Neighborhood Association (DNA) was Mimi Gleason, township manager and Matt Bauman, township zoning officer, 3 supervisors (JD DiBuonaventuro, Michelle Kichline and Kristen Mayock) and 3 Planning Commissioners (Bob O’Leary, Tory Synder and Trip Lukens).

Perhaps the intentions of the meeting were good but overall, I found the meeting less than satisfactory as an audience member.  Having attended the 2 planning commission meetings (September, October 2011), 2012 January Board of Supervisors meeting and developer-DNA public meeting this past February (where this project was discussed), I expected that this latest meeting would give local residents an opportunity to really be ‘heard’ by those representing our government, in addition to an update from the developer.  I did not leave the meeting feel that mission was accomplished.

The discussion surrounding the Jimmy Duffy project is confusing … on one hand, there has been no formal land development plan presented to the township by Capital Health.  (Currently, the C-1 and R-1 zoning of the Duffy property does not allow for an assisted living facility.)  Yet, on the other hand, based on the number of meetings and input from planning commissioners, supervisors and township staff, suggests that this project has advanced beyond a vague, casual stage.

Eagle Bank owns the Jimmy Duffy property and with the current economic climate, I’m guessing may be willing to sell it for a significantly reduced price.  However, a developer probably would not want to purchase the property unless there was  a degree of assurance that the deal would go through so … he/she would be looking for ‘buy-in’ to the project from the community and the local government; hence the visits to and discussions with, the planning commissioners.

However, here’s the ‘dicey’ part for me and what I do not understand.  Although Ed Morris has made concessions in his latest draft drawings of his project (one less floor, more trees, etc) he still has the problem that the current zoning does not permit this usage of the property.  Current zoning only permits assisted living in the Industrial Overlay district and that has a 10 acre minimum requirement.  As I understand township zoning, an applicant would need to take his land development plan to the Zoning Hearing Board and seek a variance to build the project on the 2-acre Duffy site.  But rather than taking the variance route, the discussion has evolved to Ed Morris writing an amendment to the current C-1 zoning ordinance to include assisted living as an acceptable use.  Although I have been told that it is a normal, and acceptable practice, for a developer to draft zoning ordinance language, it certainly appears odd and rather self-serving to me. But I certainly do not claim to be a zoning or planning expert!

Former township supervisor and  Zoning Hearing Board member John Petersen weighs in with his opinion on the Jimmy Duffy redevelopment project.  He has submitted the following op-ed article, ‘Why the contemplated development at the old Duffy Catering site is a bad idea’ to Main Line Media News for publication:

Why the contemplated development at the old Duffy’s Catering site is a bad idea

This critique has nothing to do with the project’s underlying merits. It may very well be that an assisted living use may be a good idea on the 2 acre site in spite of the fact that such a use is currently only permitted on a 10+ acre parcels. Rather, this critique has to do with the process and procedure surrounding the Tredyffrin Township Board of Supervisors (BOS) and Planning Commission’s (PC) apparently affinity to abandon established process and procedures in favor of fast-tracking said project on said site. To fast track the development, the BOS and PC are considering the drastic step of adding assisted living as an approved use in the C1 zoning district. There are 3 basic and simple reasons why the BOS and PC are yet again, showing an astonishing lack of judgment.

1. The project developer, already has a remedy that has not been exhausted
The developer has not applied for a variance from the Zoning Hearing Board (ZHB). A zoning variance allows for a use or condition that exists outside the current zoning regulations. If the ZHB were to grant a variance, a wholesale change to zoning would not be required. The benefit is that the change applies only the specific parcel and can be tailored to only apply to current owner. When asked about a variance, developer’s counsel replied “That would take too long.” I used to sit on the BOS and the ZHB and I don’t recall “Taking too long” as being a bona-fide reason to abandon procedure. It’s also been reported that the township’s zoning officer kept “deferring” to applicant’s counsel. That is highly irregular. In effect, applicant’s counsel is dictating and driving procedure, and in this case, changing it for the benefit of the developer. It is certainly to the developer’s benefit to have the zoning changed since that would obviate the need to seek a variance. As one supervisor pointed out at the town hall meeting “It’s not the BOS’s job to seek out projects.” Yet, that is exactly what is happening here. At the very least, this project sought out this BOS and PC. Regardless of how they found each other, the BOS and PC seem ready, willing and able to give this specific developer, this specific project and this specific parcel of land special treatment. This sets a dangerous precedent.

2. The BOS just committed to spend $100K on a review of its ZO
Some would point out that grant money makes the net cost only $30K. However, those grants are not guaranteed. The only thing that is guaranteed is the $100K consulting appropriation. Only when and if the revised zoning, based on the consultant’s recommendations are approved, do the grants have the potential to be realized. Once the BOS committed to having the ZO reviewed, a moratorium on zoning changes should have been established. What if this contemplated new use in C1 is deemed to be a less than optimal use? It appears foolish to tweak something that is about to undergo a comprehensive and expensive review.

3. The process and procedure (or lack thereof) sets a precedent for future developers and projects
The BOS and PC might as well put a large for sale sign on the township. Consider the next developer who seeks to develop a C1 parcel or perhaps a residential or industrial parcel with a use that is not contemplated under the ZO. What are the BOS and PC going to say then? No? That developer may have a very good case to take to court. Zoning must be non-prejudicial. It must be a-political. Zoning represents 50-100 year decisions. These are long term in nature. The costs of making wrong decisions are high. We are already dealing with storm water problems in the township that are due, in part, to bad planning. Good planning begins with a vision that is independent of any specific project. The goal is to have consistent and compatible uses that meet the divergent needs of residents and businesses (retail, commercial and sometimes industrial). You don’t begin with specific projects and let the model shake out from there. We have a zoning map that will now undergo review based on the results of the 2009 Comprehensive Plan Process. At the same time, a new use will be added to C1. And very likely, there will be another parcel in the township that this developer or another developer will seek to develop for another non-permitted use? Based on this precedent, the BOS will be obliged to say yes because the BOS cannot and has not offered a single articulable rational basis for this decision. And let’s not forget that there are no plans in front of the PC. How can this possibly be contemplated now? How is this not favoritism – the problem encountered with spot-zoning?

Conclusion
The 3 aforementioned reasons make it clear that the contemplated actions of the BOS and PC are not in the best interest of this community because the actions represent a departure from established procedures. The actions do not represent what could be considered best-practices insofar as zoning and land use procedure is concerned. Any developer should first submit plans to the PC and where necessary, seek a variance. As a record proceeding, citizens have an opportunity to be present and heard. If that variance is granted, the citizens at least have legal recourse to have such a decision reviewed by the Court. If the variance is denied, then the developer can then seek to have the use added. In that event, the BOS and PC have the benefit of the ZHB proceedings to make a better, more informed decision.

In a civilized society, the ends rarely, if ever, justify the means – especially in the case when there are the means to do things the right way – within the framework of existing policies and procedures.

John V. Petersen
Paoli, PA

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Which came first, the chicken or the egg?

Attending last night’s meeting between the Daylesford Neighborhood Association and the developers of the former Jimmy Duffy’s catering site was interesting. Representing the applicant for the project was Gerard Farrell, partner and general counsel for Capital Health Services along with the project’s attorney Denise Yarnoff and the developer Ed Morris of Morris Realty Advisors.

For the first hour plus, most of the 50+ neighbors listened intently as Ed Morris spoke of the planned redevelopment project, a residential care – assisted living facility. Morris repeatedly described the project as ‘beautiful’ and presented an aerial view of the proposed structure, the parking, neighboring buildings – the Vetcare on one side, a large office building on the other side and to the rear the Larkin’s residential property.

The focus of the questions was primarily centered on traffic concerns.  Although Morris attempted to assure the residents that traffic from the proposed assisted living facility would enter and depart from Lancaster Avenue, many in the audience were not believers.  From the rear of the Duffy property, there is an emergency exit onto Pennsylvania Avenue, which residents report is routinely used by employees of the adjacent office building. Pennsylvania and Glenn Ave. are quiet suburban township streets and residents suggest that there will be increased traffic due to shift changes of the workers employed by the assisted living facility.

In addition to the traffic concerns and the suggestion that perhaps, that Pennsylvania Avenue could somehow be blocked for use by the assisted living employees, other concerns surfaced including privacy issues, lighting, height and size of structure, parking, trash and trash removal, landscaping, etc.  For the most part, the representatives for the proposed redevelopment project, did a good job of explaining and convincing the residents that they were listening to their concerns and delivering assurance that they will ‘work’ together with the neighbors for satisfactory solutions.

As I said, for the first hour plus, the presentation was going well and I thought most people were buying in to the project.  I thought Morris sincere in his response to resident’s questions and concerns.  In fact, satisfied by what they had heard, some residents began to leave the meeting.  About this time, Trisha Larkin (the neighbor whose property is closest to this proposed redevelopment project) makes a statement that suggests Morris has not been entirely forthcoming or upfront with residents; and that this proposed redevelopment project has been going along for sometime without their knowledge.  Morris would have been well served to say nothing but unfortunately, he decided to spin the story, claiming that a recent article [Community Matters] was incorrect and that he had not been to the township in regards to this project, etc.

I have never met Ed Morris and he obviously does not know who I am but there was no way I was going to sit there and let him suggest that I somehow misrepresented the redevelopment project in Community Matters.  I explained to him and the audience, that I was the writer and that the information contained in the article was entirely accurate.  The quotes contained in the article came directly from the meeting minutes of September and October 2011 Planning Commission meetings and the January 2012 Board of Supervisor meetings, which indicate discussion of the Jimmy Duffy redevelopment project and presentation of sketch plans.  (If you click on these links, you will see that the redevelopment project was formally presented to the Planning Commission along with sketch plans – the meeting minutes speak for themselves.)

This twisting or stretching of the facts by Ed Morris is obviously what has troubled the Larkin’s, and probably the reason that Trisha Larkin took up the cause to inform her neighbors of this project.  In a matter of a couple of minutes, I went from completely supporting Ed Morris and his redevelopment plans, to fully appreciating the concerns of the neighbors.

For the record, I support an assisted living facility as a good use for this site, especially given all the far more invasive types of buildings that could go there, fast food, restaurant, bar, etc.  I just wish that the developer had not turned a positive meeting with the neighbors into a situation that left me questioning his sincerity.

As I said yesterday on Community Matters, to maximize the potential for a successful redevelopment project such as what is being suggested for the Duffy site, it makes good business sense for the developer to engage and get ‘buy-in’ from those most affected – the neighbors.  What I should have added is that this ‘buy-in’ from the most affected – the neighbors, needs to be with honest and open discussion from the developer.

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