Zoning Hearing Board

Security fencing for Valley Forge Middle School, TE Middle School and Conestoga High School – TE School District seeks variance to construct 6-foot fence

fencing 1During 2014, 5-foot high chain link fencing was installed around TESD’s five elementary schools – Beaumont, New Eagle, Valley Forge, Hillside and Devon. Sandy Hook and other school shootings pushed the issue of school security into the limelight and the elementary school fencing project was one of the security upgrades recommended by the District’s Safety Committee.

The construction of the elementary school security fencing project was not without controversy. Residents opposed the District’s decision to fence the elementary school for a variety of reasons. Some suggested that the fencing would make it more difficult for children to evacuate in emergencies — concern that they could become trapped inside the property by the fencing and that the fencing could slow emergency aid. Others cited inconvenience; aesthetics and monetary cost (approximately $220K) in their opposition to the fencing and some questioned if the District obtained the required building permits. In the end, the elementary schools received their security fencing last year.

Apparently, the District’s fencing project was not contained to the elementary schools. A surprise to some, security fencing is planned for Valley Forge Middle School, TE Middle School and Conestoga High School. At the October 27, 2014 TE School Board meeting, the school board approved Daley & Jalboot’s 2015 infrastructure implementation fee proposal on the consent agenda. Included in the architect’s project was Project #1405, the installation of perimeter site fencing at the three schools. Daley & Jalboot’s fee is $$8,600 and they estimate the construction costs at $236K.

The security-fencing project of the middle schools and high school is out for bid and construction is set to start June 24 with completion by the start of school in September.

Unlike the elementary school fencing project in 2014, the District has a hurdle to get over before they can move forward. The District’s plan to construct a 6-foot chain link fence at Valley Forge Middle School and TE Middle School requires a variance from the Zoning Hearing Board. Tredyffrin Township’s Zoning Hearing Board will hear these two appeals tonight at 7 PM and residents are encouraged to attend and provide comments.

The proposed chain link fencing at Valley Forge Middle School may be a challenge for the Zoning Hearing Board. The school is in Chesterbrook, a planned community of 28 villages, and each of the villages is independently managed by homeowners associations and governed by specific bylaws. The Chesterbrook village of Green Hills (single family homes) is adjacent to Valley Forge Middle School. The plan for VFMS fencing is along Valley Forge Road and on the shared property line with Green Hills. Because the proposed chain link fencing is not consistent with the homeowner association bylaws of Green Hills,  and an earlier agreement between these homeowners and the school board regarding development, the approval for the variance may not be a given for the school district.

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End of VFMS tennis court saga – Zoning Hearing Board approves variance

The tennis courts at Valley Forge Middle School received their reprieve at last night’s Zoning Hearing Board.  After 4+ hours of listening to various appeals, finally at 11 PM, the TE School District presented its case for a variance that would permit the additional parking spaces and keep the tennis courts.  The combined impervious coverage of the additional parking spaces and the tennis courts is slightly more than the township stormwater permits.  The District’s application to the ZHB sought a variance for the additional impervious coverage.

The fate of the District’s tennis courts was contingent on the ZHB ruling.  Had the ZHB denied the variance to the District, the VFES tennis courts would have been demolished.  After testimony from the School District attorney and architect plus members of the community, including impassioned remarks from VFMS neighbor Don. Detweiler, the ZHB members rendered their decision in favor of the variance.  With a 2-1 vote (chair Dan McLaughlin dissented), the tennis courts appear to have been saved.  Previously the Facilities chair Pete Motel voiced concern that to save the tennis would cost the District $14K to the contractor not to demolish the tennis courts. The Board of Supervisors waived the ZHB filing fee of $2K to the District. With the approval of the ZHB variance, presumably the School Board will approve the ‘saving of the tennis courts’ and the District will move ahead with the summer parking lot expansion at VFMS.

The audience was told that the decisions of the Zoning Hearing Board are not precedential to other appeals, so …  does that mean that others seeking relief from stormwater requirements will not be able to cite the tennis court decision?  Just asking the question …

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Zoning Amendment Could be Solution to Saving the Tennis Courts

May 1 was the deadline for the School District to submit their variance application to the Township in order to be listed on the Zoning Hearing Board’s May 23 meeting agenda.  According to Township Manager Bill Martin, the application was received today. Some of the neighbors of the Valley Forge Elementary School tennis courts may think there is nothing to stop the ZHB from awarding the variance, but that may not be the case.

The combined impervious coverage of the tennis courts and the additional parking spaces exceeds the township stormwater requirement. Based on the PA Municipalities Planning Code (MPC) there appears to be no legal basis for Tredyffrin’s Zoning Hearing Board to grant a variance to the School District.

Under the Pennsylvania Municipalities Planning Code (MPC) a zoning hearing board “may grant a variance, provided that all of the following findings are made where relevant in a given case:

  1. That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located.
  2. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable reasonable use of the property.
  3. That such unnecessary hardship has not been created by the appellant.
  4. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
  5. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.”

According to the MPC, the School District needs to show an economic hardship for ZHB to grant a variance in this matter. However, the additional parking spaces at VFES are optional (not a requirement) for the School District and therefore do not constitute an economic hardship. I have been forced to accept that using the logic that the impervious coverage (of the tennis courts plus the additional parking) is only a ‘little over’ will not satisfy the MPC requirement. There is also the matter of a strict stormwater policy in Tredyffrin, and an important issue that is unlikely sidestepped.

A solution that would save the tennis courts, allow the additional parking spaces and not require a ZHB variance was presented to the School District and Township by John Petersen, a former ZHB member.  I was copied on the following email sent to Michelle Kichline, chair of the Board of Supervisors, Kevin Buraks, President of the School Board and the Township and School District solicitors, Vince Donohue and Ken Roos, respectfully.

Here’s a suggestion…

The BoS offers up a zoning amendment that creates an exception for what is counted as impervious coverage: tennis courts, basketball courts, etc. that are available for public use (defined as owned by either the township or school district) that exists on or before the date, the zoning amendment is ratified. A possible permutation is that the first 1K square feet is exempted.

I normally don’t endorse amending the ZO based on specific facts. Like everything, there are always exceptions. For an exception, there must be some solid criteria to support such:

1. The items covered by the exception can never increase

2. Its not de-facto spot zoning because there are any number of places where this applies

3. Not likely to have an adverse impact on storm water (TESD will still have storm water issues to deal with in the parking long construction)

4. There is a strong public policy argument in retaining recreational facilities

I don’t think you will get much, if any push back on this. Is it legal? That’s up to you guys to figure out. In my opinion, this is not objectionable, unlike the recent C-1 amendment. The school district is not just any ordinary landowner.

Baring this, there is no way to keep the courts and build the additional parking. There are no legal grounds to grant a variance.

There’s an old saying that bad facts make bad law. In this case, bad facts sometimes require us to re-visit the law. In 1,000 cases, there may be one time when we should do that. I think this is one of those times. The change is very limited and is in keeping with public policy and finally, no material adverse impacts to storm water. The school district should hot have to choose between courts that have been there for 40+ years and the need to add much needed parking.

John

Although there were follow-up emails sent, to date no one has responded to Mr. Petersen’s suggestion.  The four people receiving Petersen’s email (Kichline, Buraks, Donohue and Roos) are all attorneys and therefore presumably understand the standard required by the Municipalities Planning Code for the Zoning Hearing Board to issue a variance. In fact, if memory serves me, Michelle Kichline served on the ZHB before her election to the Board of Supervisors. Considering the legalities of the MPC, why should the School District bother to submit a variance application?  If not economic hardship, on what grounds is the School District seeking a variance?

Even if the Township reduces the fees to the School District, there are professional costs (legal, architectural) involved with the ZHB variance application.  Why not consider a zoning amendment – the tennis courts are saved and the parking lot is expanded.  Looks like a win-win for the Township, the School District and the residents who use the tennis courts!

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Note: I am sending this article to Kichline, Buraks, Donohue and Roos asking them to comment directly to me on (1) the grounds for the ZHB to issue a variance to the School District and (2) the consideration of a zoning amendment.  Their responses will be posted on Community Matters.

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UPDATE: DA Tom Hogan Weighs In … Is it a Get Out of Jail Free Card for Tredyffrin Official? You be the Judge!

9-3-12 UPDATE: District Attorney Tom Hogan Weighs In (See end of post)

There was a troubling news article in last week’s Main Line Media News  about one of Tredyffrin Township’s Zoning Hearing Board members, Suzy Pratowski.  TE Patch, the Daily Local and, then a couple of days ago, the Philadelphia Inquirer, picked up the story.

There are several reasons why I think this story caught people’s attention, me included.  The initial newspaper headline, ‘Zoning hearing board member not guilty after police are a no-show at her trial’, causing some of us a double take.  Zoning hearing board member? Trial? MIA police officers?  What was all of this about? Since when do township police officers not show up at trials?  I cannot believe that this is a regular occurrence … I wonder when the last time was that a police officer did not show up for a scheduled hearing?

Remembering back a few years ago,  I decided to fight a traffic violation in Tredyffrin and showed up at my scheduled time at Judge Blackburn’s courtroom.  The traffic officer who had written my citation arrived on time for the hearing with his 6 in. thick codebook ready to defend his case against me.  Although I was well prepared, (albeit sans an attorney), the police officer’s testimony prevailed – I lost the case and paid my fine.  The point is, my hearing was for a routine traffic violation and the officer involved showed up.  From the newspaper articles, Pratowski’s case is far from routine, and she isn’t just ‘Joe Citizen’ … Suzy Pratowski is a supervisor-appointed member of Tredyffrin’s Zoning Hearing Board.

For those that have not followed the case, Pratowski was arrested in Chesterbrook on May 28, charged on two counts, public drunkenness and disorderly conduct, and issued citations. The situation involved a domestic altercation between Pratowski and her former husband, Jay Ciccarone.  I have read the police reports and the account in the newspaper is accurate with one clarification. When Pratowski arrived to pick up her children at Ciccarone’s house, she was not driving but rather a passenger in a car driven by an unnamed male, a designated driver.  Ciccarone was unwilling to turn the two boys over to Pratowski, citing their custody agreement, which requires that Ms. Pratowski not drink alcohol 10 hours before driving and picking up the children. The police officer determined that Pratowski had been drinking and therefore the children should remain with Ciccarone.

A photo accompanying the Main Line Media newspaper article showed Ms. Pratowski with township supervisor John DiBuonaventuro at a 2011 Devereux charity event.  In reading the article, in conjunction with the accompanying photo, it is possible that a reader could conclude that DiBuonaventuro was the unnamed male driver on May 28.  However, that assumption would be wrong … the police report names a Haverford attorney as the driver, not supervisor DiBuonaventuro.  Pratowski left Ciccarone’s home without the children however, returned later that night on her bicycle and police were again called.  With a PBT (preliminary breath test) reading of .18, the officer cited Pratowski with public drunkenness, disorderly conduct and returned her home in a police car.

Two years earlier, in June 2010, during a vehicle stop, Pratowski was charged with DUI, having received a PBT reading of .127.  Pratowski’s two children were in the vehicle at the time and although initially charged with child endangerment, that charge was later dropped. Pratowski pleaded guilty to the DUI.  In reading the police report from 2010, I noted that situation also involved Pratowski’s former husband Jay Ciccarone.  Concerned for his children’s wellbeing, it was Ciccarone who called the police which ultimately resulted in Pratowski’s DUI arrest. The recent May 2012 incident was Pratowski’s second involving alcohol — a second offense that could have had grave consequences for Pratowski legally.

Although the charges against Pratowski were significant, it remains a real mystery as to why the police officers involved were no-shows at her hearing.  Not just one police officer but two officers failed to show up.  How is this possible? According to the Main Line Media News article, “Tredyffrin police Lt. Taro Landis said the officer who was supposed to show up in court that day was on another call at the time.”  The police department explained the absent police officer as an ‘oversight’.  Considering this was a second offense for this defendant, I do question why the police officer would have another call at the time. No mention as to why the other police officer was also MIA for the hearing.

In the Philadelphia Inquirer follow-up article, Tredyffrin Police Chief Tony Giaimo cited a ‘clerical error’ on the part of the officers as to the reason they did not show up at Pratowski’s trial.  He further stated that the officers were disciplined but offered no details.  OK, I’m confused … if it was a clerical error, why would the police officers need to be disciplined?  And where exactly did the clerical error occur; within the police department, the District Court … the police officer’s Blackberry schedule?

It needs to be stated that the police officers involved in Pratowski’s May 28 arrest were not rookie cops. Allen Dori, is a 10-yr. veteran in the Tredyffrin police department and Daniel McFadden, a 20-year veteran and a certified crime scene investigator.  Coincidentally just a couple of days before the Main Line Media story first appeared on August 24, both Dori and McFadden were promoted at the August 20 Board of Supervisors meeting. Police officer Dori was promoted from patrol officer to corporal and McFadden promoted from patrol officer to detective.  Based on their experience and background, these two police officers do not strike me as individuals who would miss an important hearing because of a clerical error!

So let me understand this correctly, if there is a clerical error and the arresting police officer (or in this case, two police officers) does not show up at the hearing, the case is simply dismissed.  Does this mean that the records of the case are expunged?  When a clerical error occurs, am I to understand that there is no such thing as the rescheduling of the hearing.  Magically, the problem is solved and the defendant receives a ‘pass’. Wow … amazing! Based on the remarks that Police Chief Giaimo gave to the Philadelphia Inquirer, it appears that the matter is closed, but should it be?  .

In addition to process questions surrounding this incident, we are left with the open issue about Pratowski’s suitability to serve on the township’s Zoning Hearing Board.  Appeals for relief from decisions of the Zoning Officer and/or requirements in the zoning Ordinance are handled by the ZHB. Unlike other boards and commissions in the township, the ZHB is a quasi-judicial body whose decisions are not subject to the approval of the supervisors. I am thinking that Pratowski’s guilty verdict for DUI in June 2010 should have warranted her dismissal from the ZHB.  For those of you wondering what the grounds are for removal from the ZHB, the following is from the PA Municipal Planning Code that governs the ZHB in our municipality:

Article IX – Zoning Hearing Board and other Administrative Proceedings

Section 905. Removal of Members. Any board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the governing body which appointed the member, taken after the member has received 15 days’ advance notice of the intent to take such a vote. A hearing shall be held in connection with the vote if the member shall request it in writing.

Reading the section titled ‘Removal of Members’, it would appear that Pratowski should be removed from the ZHB. Pratowski occupies the seat on the Zoning Hearing Board once held by John Petersen.  As a former ZHB member, a supervisor and an attorney, I asked him for his comments —

I was very sad to hear about Suzy’s troubles. I’ve known her to be a good person and I sincerely hope that she gets to a point, for the benefit of her and her children,  where portions of her life are not being played out in the paper. In most cases, this would be a private matter. Back in 2005 when I was appointed to fill  vacancy on the BOS, I left the ZHB and had recommended Suzy to take my place. I was happy to do so then as she was qualified and has done a good job. However, as a former member of the governing body and the ZHB, I also have to consider the consequences of actions that place confidence in our public institutions at risk. Serving is a privilege, not a right. Given the history here, I have to wonder why Suzy was not removed from the ZHB back in 2010. These latest incidents only serve to add to growing list of questions concerning the integrity of our local government. It’s even worse when there is no confidence in the police, who at various times, holds, albeit brief, a decisive role in a person’s individual freedom. Between township staff, elected officials, certain boards and appointees or the dealings of those appointees and the police, nothing appears to be working correctly in Tredyffrin Township. I  actually fear our government and police as they don’t act in the citizens’ best interest.

As to the “clerical error”, as a lawyer, I find that to be hard to believe. It’s a rather generic answer – one that the Inquirer should have followed up on with this simple question: “What was the error?” The workings between the district courts, the County and the various police departments are actually quite efficient. If this was a clerical error, then it was an error that was of the same proportion of that single bullet on that fateful day on November 22, 1963. There would have had to have been errors in Judge Sondergaard’s office as well as the administration in the police department and other people. Did other Tredyffrin Police manage to show up that day for other cases, or the day prior or after? Why this case? Why this person? When was the last time this sort of thing happened? Maybe it’s a common practice? But for Suzy’s private issues and the fact that she is a public official did this one come to light? Again, it’s about the appearance of impropriety.

Nobody has mentioned this yet, but I think it is fair game for DA Tom Hogan to make an inquiry here. As I see it, a full and open investigation is the only way the matter can get cleared up. We’ve already had a major scandal with former chief Chambers. And not too long before Chambers, chief Harkness was dismissed amidst a cloud of allegations the subject of which are/were part of a confidentiality agreement.  Between that, alleged civil rights violations and other things – it’s not been a good time for the police or the government as a whole.

For longer than I care to remember, too many bad acts. In many ways, we’ve not progressed beyond Harry Marrone. Too many questions. This really goes to the honor and integrity of people. What I’ve been seeing lately is a lot of inaction and indecisiveness from township leadership. Again I ask – when is it going to stop? When are the adults going to take charge? When can people have confidence that their government and police will treat all people fairly and equally instead of calling person’s political affiliations out as just being a “Data point?” Anybody else, with these players involved, and I doubt seriously that there would be a “Clerical error.”  And when they don’t treat people fairly and equally, will those same governmental actors ever be held accountable? Candidly, I was not a fan of Giamo’s promotion – given the recent history. Has nothing to do with Tony as a person or his qualifications. It has everything to do with the integrity of the institution and the confidence that public has in that institution. Sometimes, you just have to bring people in from the outside. I believe had we had truly shaken things up, there would not have been a “Clerical error.” One simply cannot look past the fact that Suzy was at a time, a TTRC member, dating a supervisor and of course, is a member of the ZHB. Anybody who cites those factors as being irrelevant is simply being willfully naïve.  I lost my political mentor John Waldeyer in 2005. He was a good man and a great steward of good and honorable political values. He always said to me that the most important thing in politics and service is to be identified with good government. Everything else takes care of itself.  A lot of people forgot those words. I’ve never forgotten them. John would be absolutely ashamed of what we see today. And if he were around today, we would not see the crap we’ve seen for the last 7 years.  People around here have long forgotten what good government is. No government is perfect, but it can still be good nevertheless. John exercised discipline. John was an adult.

Finally, a personal plea to Suzy – if you have not done so, offer up your resignation. Doing so would mark the first time in a very long time a public official did the right thing in the face of adversity.

 Do Tredyffrin Township residents really need another St. Davids sidewalk saga or a ‘big check’ moment — remember the fire funding spectacle with cameras rolling? As Carla Zambelli, fellow blogger and friend, wrote on Chester County Ramblings in her post , “enough Tredyffrin. enough”   … “Tredyffrin needs to get its house in order and stop sounding and acting like a Shakespearian tragedy meets a made for TV movie on Lifetime.”   Carla does have a way with words, just wish in this case, she wasn’t right.

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9-3-12 UPDATE:  District Attorney Tom Hogan Weighs In

I sent an email to District Attorney Tom Hogan, asking if this situation constitutes an investigation by his office.  The DA called and we had a lengthy discussion on this matter.  It is with his permission that I can offer this update.  According to the Hogan, there has been an investigation and review.  Police Chief Tony Giaimo conducted an internal department investigation and then asked for an outside review from the District Attorney’s office on the ‘clerical error’ matter.  According to the internal police report, there were scheduling issues and the two police officers were not notified of Suzy Pratowski’s hearing date.  The DA also reported that Pratowski’s former husband Jay Cicarrone was also not notified of the hearing date.  Pratowski and her attorney were the only ones to receive notification.

Hogan also offered that because of township supervisor John DiBuonaventuro’s relationship with Pratowski (and questions concerning his possible involvement), the police as part of the investigation interviewed DiBuonaventuro.  The police department determined that DiBuonaventuro was not involved in the situation. The internal investigation determined that a clerical error as the reason that the two officers missed the hearing.  The District Attorney’s office reviewed the police department findings and was satisfied by the report.

I asked the DA how often does  a clerical error occur that police officers miss a scheduled hearing. Although Hogan said that it does happen, he did say it was not common in Tredyffrin Township.  I let our District Attorney know that many of us were troubled by the appearance of this situation.  For the record, the District Attorney’s office has no jurisdiction over Pratowski’s continued membership on Tredyffrin’s Zoning Hearing Board – the appointment and removal of ZHB members is a Board of Supervisors matter.

There was discussion of the ‘not guilty’ verdict for Pratowsk, given that the two police officers and Cicarrone did not attend the hearing.  I will defer the legal explanation of the judicial process to John Petersen, who also spoke with Tom Hogan. Here are John’s comments:

I had an opportunity to speak to DA Tom Hogan on the matter. Normally, jeopardy does not attach in a case like this until the first witness is sworn – when the trier of fact (the judge in this case) has begun his journey of fact finding. This is all about protecting a defendant’s 5th amendment rights to due process, and specifically, a defendant’s right to not be tried more than once for the same crime. In this case, the judge had 3 options (really only two legitimate options in my opinion). The first is to find the defendant not guilty and close the case. This would NOT have been appropriate in my opinion because the prosecution was not present due to what has been regarded as an honest clerical error. How could a judge weigh facts that were not presented? The big problem with this option – jeopardy attaches. To review, in this case, not only did the police not show up, but the judge took the one choice that assured this matter went away forever.

The other two options were to 1 – dismiss without prejudice – giving leave to the police to re file the charges or 2 – to simply continue the trial. It seems to me the one that was most prudent in this case was to simply order a continuance. That would have remediated the clerical error and it would not have resulted in any constitutionally protected rights of the defendant being violated.  Dismissing the case would have required the police to re-file charges – which would have resulted in additional time and expense.

Apparently, Judge Rita Arnold, another DJ, successfully quashed a citation against her son. In her case, she was suspended for 30 days. She’s back on the bench. As for her son, he gets off scot free.  If you are thinking it pays to have connections you are right. I have been told there is a strong likelihood of a memo going out to DJ’s that gives better guidance on when it’s appropriate to make a determination on guilt vs. a dismissal vs. a continuance. It’s a bit concerning that guidance has to be given on this. Shouldn’t judges know better? The DJ system is broken and this reinforces my opinion that DJ’s need to be lawyers. This often surprises folks that DJ’s don’t need to be lawyers.

My conclusion on this – we’ll likely never know what really happened here.  I have to ask whether a regular, non-connected person would be as lucky? The answer is absolutely not. Justice was not served here. And yet again, a connected person caught breaks that non-connected people don’t get. I am left with no other conclusion that this particular defendant was helped by many people with influence. How and why do I conclude that? Because there are no facts to suggest otherwise.

I have no faith in any aspect of our local government, it’s people and it’s ability to do the right thing.

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