Pattye Benson

Community Matters

Tredyffrin Township

Tredyffrin’s Solicitor Vince Donohue claims that government does not seek to suppress public comment … Really?

November 4, 2012
42 Comments

The Pennsylvania Sunshine Act requires all public agencies to take all official actions and conduct all deliberations leading up to official actions at public meetings. According to 65 Pa.C.S.A. § 708(a); Sunshine Act, Section 8(a), there are certain discussions that can take place in an executive session where the public is excluded. At the onset of every Board of Supervisors meeting, Michelle Kichline, in her capacity as chair, makes a statement that the Board met prior to the meeting in executive session to discuss legal and personnel matters. Under the provisions of the PA Sunshine Act, those township matters pertaining to personnel or legal matters are not discussed publicly In fact, if during the ‘New Matters – Citizens’ section of the Board of Supervisors meeting, a resident asks a question that falls into the legal or personnel category, either a Board member of the township solicitor quickly points out that they cannot respond to the question. Over years of attending supervisors meeting, I can attest that the solicitor does not permit the supervisors to respond to citizen questions that fall into personnel or legal areas.

Understanding the provisions of the Pennsylvania Sunshine Act, it was surprising to read that Tredyffrin Township’s solicitor Vince Donohue had a public response on a legal matter in Main Line Media News article, ”Community Matters blogger Pattye Benson calls for Tredyffrin Township to adopt policy regarding the use of its website” written by Richard Llgenfritz.

If you recall Llgenfritz wrote the story, “Tredyffrin zoning hearing board member not guilty after police are a no-show at her trial” in late August. His article, in addition to TE Patch, Philadelphia Inquirer, Daily Local articles, blog posts on Chester County Ramblings and telephone and email inquiries from residents, were the reasons that I conducted my mini-research investigation.

As part of my research on the police matter, I spoke with Tredyffrin Township Board of Supervisors chair Michelle Kichline, Chester County District Attorney Tom Hogan, Tredyffrin Police Superintendent Tony Giaimo and District Judge Tom Tartaglio. For the results of my research and corresponding comments in post, “Community Matters closes the chapter on police investigation but Tredyffrin supervisor opens a new one”, click here.

Because of the newspaper articles, blog posts and related public comments on the police situation, Tredyffrin Township supervisor John DiBuonaventuro decided to write and post a personal letter dated September 5, 2012 on the township website, using township resources and township letterhead. Although the use of government resources by an elected official is surprising, it was the fact that the other six supervisors, the township manager and the township solicitor sanctioned the behavior of DiBuonaventuro that underscored the importance for a township website policy.

This past Friday, I posted the letter from my attorney Samuel Stretton on Community Matters. Stretton’s letter was sent to the seven members of Tredyffrin’s Board of Supervisors. I learned in Llgenfritz MLMN article, that Stretton’s letter was forwarded to the township solicitor Vince Donohue. No surprise as this was a legal matter and as the township solicitor, he clearly needed to be involved. However, because this is a ‘legal matter’ (remember the PA Sunshine Act and that legal and personnel matters in the township are not publicly discussed but held for executive session discussion), I was amazed that Donohue discusses Stretton’s letter with Llgenfritz. Gosh, I would think that Donohue should not be talking about sending a response to Stretton – isn’t this a legal matter? And then to further throw out there that it would be up to me whether I make the letter public or not? To my knowledge, Stretton has not received a letter and I certainly have not seen any letter from Donohue. (I will assume that Donohue’s response is ‘in the mail’). So, I am struggling to understand this – the supervisors are not permitted to discuss legal matters in public but it is OK for the township solicitor to discuss legal matters? Shouldn’t the more appropriate response from Donohue to Llgenfritz have been, “… this is a legal matter, and I am not at liberty to discuss”.

However, Donohue does not stop there in his comments to the newspaper, he goes on to address some of the issues that others and I have raised – i.e. First Amendment rights. According to Donohue,

“This township has no interest what so ever in suppressing anybody’s first amendment rights and in fact does not. All you need to do is take a look at our five six-hour public meetings that we’ve had in the last few years. All you need to do is look at the Trout Creek overlay ordinance process where we involved no fewer than 30 members of the public on working groups and commissions held six or seven public hearings even for those members of the community that didn’t like the outcome I think it’s hard to argue with the openness and the fact that the township encourages and invites public input. I think this township’s actions belie any claim that it seeks to suppress public comment positive or otherwise about township matters.”

All I can say is, wow. Donohue approved DiBuonaventuro’s letter going on the township letterhead on the township website. I suggest that he needs to go back and read it and then come up with a more convincing argument as to how his letter is not an attempt to silence those who dare to disagree. DiBuonaventuro writes in his September 5 letter, “What is more important for community to realize from this example is the disturbing trend that has developed with most of the internet elements of legitimate newspapers and the tabloid formatted blogs like “Community Matters”. Public discussion of important community matters is a ‘disturbing trend’ — whether public discussion is over the backyard fence, in the aisle of the Paoli Acme or on the Internet, it is our First Amendment right; open debate and commentary exists under the US Constitution.

In fact, before I contacted Sam Stretton, I sent DiBuonaventuro’s letter to several attorneys and journalists; individuals who do not live in the area and would not know any of the people involved. Not one person responded that they thought the actions of our government in regards to DiBuonaventuro’s letter were OK. In addition, I should add that many people used adjectives like ‘chilling’ in describing DiBuonaventuro’s attempt to suppress public discussion.

It is interesting that Donohue would point to the many meetings held over the Trout Creek ordinance (for the record, there were 7 public hearings), as somehow public comment at supervisors meetings was the same thing as DiBuonaventuro’s use of public resources, public letterhead and public website. Certainly, there were many meetings over Trout Creek, but I wonder how many of the Glenhardie residents feel that their voices were actually heard during the process? Donohue makes no mention of Trisha Larkin and her neighbors in the Daylesford neighborhood. Like the Glenhardie residents, how many of the Daylesford folks think that their voices made a difference to the outcome. The Daylesford neighbors, in addition to many residents throughout the township, were overwhelmingly opposed to the C-1 zoning change. However, as we all saw, their voices did not matter. Yet Donohue claims that the township “encourages and invites public input” … maybe that’s true if you happen to be developer Ed Morris or his attorney Denise Yarnoff, who now have the green light to build an assisted living facility on 1 acre on Lancaster Ave.

As a resident of Tredyffrin Township, this is all so very disheartening, including Donohue’s response to Main Line Media News. I am amazed that it is OK for the township solicitor to discuss a legal matter of a private citizen with the newspaper — to talk about a township response that he has sent to my attorney, Sam Stretton, that I have not even seen. Wow.

It’s like some of the rules in Tredyffrin Township only exist when they benefit our elected officials, not the citizens.

Defending First Amendment Rights in Tredyffrin Township

November 2, 2012
23 Comments

It has been 8+ weeks, since Tredyffrin Township Supervisor John DiBuonaventuro wrote and posted his September 5, 2012 letter to the citizens on the township website. (click here to read the letter). Over the last 2 months, I continue to receive phone calls, emails and have had many discussions with residents that are troubled and concerned about DiBuonaventuro’s letter and use of government letterhead, government website and government resources for his personal attack of traditional news sources as well a private citizen, who dare to question our government. Subsequent to September 5th, we have learned that DiBuonaventuro’s personal letter and use of government resources, was apparently sanctioned and approved by former township manager Mimi Gleason, township solicitor Vince Donahue and the other six members of the Tredyffrin Township’s Board of Supervisors.

At the September 17, 2012 Board of Supervisors meeting, I read a personal statement (click here for Community Matters post and links to BOS meeting and statement) which addressed DiBuonaventuro’s letter and subsequent email and joint phone call from the township manager and police chief on this topic.

When the framers of our Constitution insisted on Freedom of Speech rights, one of their aims was so that all Americans – no matter their social class or position in our society – could vigorously examine and criticize our government. These rights have throughout our history nurtured our democracy and made us a beacon to the whole world. However, as history has played out, the battle for these rights has proven at times to be hard-won rights that we have to continually fight for and renew. First Amendment rights are a cornerstone to this nation’s government and citizens have a right to discuss issues that are of importance. The freedom is speech is in place for all of us – including the citizens of Tredyffrin Township. Further, freedom of speech includes ‘me’ as a citizen and Community Matters.

In 1996, Pennsylvania federal judge Stewart Dalzell, wrote his opinion in the ACLU v. Reno, the Internet – Freedom of Speech case, “As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from government intrusion. It also deserves a great deal of attention from civil liberties activists who are concerned about free speech, privacy, and universal access – because the larger the scale of a new medium, the greater the temptation to restrict it.” As background, Dalzell, a 1969 graduate of Penn Law School, was recommended by Pennsylvania Senators Heinz and Spector and nominated by President George Bush to fill a judicial vacancy on the federal bench in the Eastern District of Pennsylvania in 1990. He was confirmed by the Senate in 1991.

The last couple of months since DiBuonaventuro’s September 5 letter appeared on the township website have given me time to reflect. Because all township supervisors, the former township manager and township solicitor supported DiBuonaventuro’s letter and use of the government letterhead and resources, I knew that I needed to take a stand for First Amendment rights in Tredyffrin Township. If an elected official is permitted to use the public website whenever they disagree with a news story, what’s next for the citizens of Tredyffrin Township? Where will it stop? What recourse do citizens have — we are not permitted the use of the township website to defend ourselves. The end result … a chilling effect intended to silence all those who disagree.

To be clear, DiBuonaventuro is entitled to his own freedom of speech; he has every right to explain himself, defend, etc. He could write a letter to the editor, make a comment on Community Matters, etc. etc. — I simply do not think it is OK to use Government resources for a personal matter by an elected official.

As a result of the September 5, 2012 letter written by township supervisor John DiBuonaventuro, using the government letterhead, government website and government resources, I sought legal counsel and have retained the services of attorney Samuel Stretton. The following letter from Stretton dated October 25, 2012 was mailed to each member of Tredyffrin Township’s Board of Supervisors. To date, there has been no response.

October 25, 2012

Michelle H. Kichline, Chair
Board of Supervisors, Tredyffrin Township
1100 Duportail Road
Berwyn, PA 19312-1079

John P. DiBuonaventuro, Vice Chair
Board of Supervisors, Tredyffrin Township
1100 Duportail Road
Berwyn, PA 19312-1079

Philip Donahue
Board of Supervisors, Tredyffrin Township
1100 Duportail Road
Berwyn, PA 19312-1079

Michael C. Heaberg
Board of Supervisors, Tredyffrin Township
1100 Duportail Road
Berwyn, PA 19312-1079

Kristen K. Mayock
Board of Supervisors, Tredyffrin Township
1100 Duportail Road
Berwyn, PA 19312-1079

Paul W. Olson
Board of Supervisors, Tredyffrin Township
1100 Duportail Road
Berwyn, PA 19312-1079

Evelyn Richter
Board of Supervisors, Tredyffrin Township
1100 Duportail Road
Berwyn, PA 19312-1079

Dear Supervisors:

Please be advised I have been retained by Pattye Benson, in reference to a letter of September 5, 2012 written by Supervisor John DiBuonaventuro. This letter was posted on the Tredyffrin Township website. This letter was done on the letterhead of the Board of Supervisors. Attached and marked as Exhibit “A” is a copy of the September 5th letter.

This letter of Mr. DiBuonaventuro, in effect, used Government funds, Government letterhead, and a Government website to respond to a private blog on his personal issues. I believe it is entirely inappropriate to allow a Government official to use Government resources to respond to matters involving his personal conduct. I understand there was and is no policy as to the use of the government website and the expenditure of government funds.

I am asking that this Board immediately adopt a policy so this sort of misconduct and abuse of the First Amendment will not occur again. I am also asking that an apology be placed on the website. Further, I am asking that the letter be rejected by the Board as inappropriate to be placed on the township website.

Further, the letter is inaccurate. The blog “Community Matters” is written by Ms. Benson to raise important community issues. The blog at issue concerned the conduct of the Tredyffrin Township Police Department in not appearing at the two criminal hearings for a member of the Zoning Board. There were two different cases, and both were set for the same day. Coincidentally, neither officer appeared on that day, resulting in the cases being discharged. The failure to appear by two officers was surprising since the Tredyffrin police officers are known to always appear at criminal hearings. Clearly, the failure to appear raised some questions.

The blog “Community Matters” also raised the question about one of the supervisors and his relationship with the Zoning Board member. These are valid issues of public discussion and concern.

The letter, which is dated September 5, 2012, from Supervisor DiBuonaventuro, is essentially a personal attack on Ms. Benson, supposedly defending himself. This type of personal letter has no place on the Board of Supervisors letterhead and no place on the township website.

What is particularly disturbing is the last paragraph on the first page where Mr. DiBuonaventuro, using Government resources, Government letterhead, and the Government website, criticizes legitimate discussions of public business. He calls this a “disturbing trend”. He utilized the Government website to bully “Community Matters” and others.

This conduct, using Government resources to respond to those who speak out or discuss Government issues is unacceptable and should be disavowed by the Government immediately. If Mr. DiBuonaventuro is not able to accept public criticism, he ought to resign as Supervisor. Those who choose to hold public office have my respect. But as part of serving, one has to understand there will be differences of opinion, which should be welcomed as part of the public discussions. To utilize the platform of the Government website and Government letterhead to try to bully bloggers is totally unacceptable and foreign to the First Amendment.

This improper website use and letter has to be put in the context that my client then received a phone call from the Township Manager with the Police Chief on the same line. Clearly, such a tactic has the effect of chilling legitimate speech.

Further, when Ms. Benson spoke to the Township Manager about the letter, the response was an email dated September 7th to Ms. Benson criticizing her and supporting the use of public resources of the Supervisor without approval to criticize public comments.

It is a sad day if the Government resources can be used by Supervisors to defend their own personal issues. But it is a sadder day when the Government resources and the authority of the Government is used to try to chill First Amendment discussions.

I am requesting an apology to Ms. Benson and I ask that a policy be put in place to prevent Government resources to be used for individuals to express their personal dislike or disagreement of articles. It is unacceptable that an individual can use the power of Government to try to bully and prevent legitimate discussions of questionable conduct by Government officials. I will await your advice. I hope to have a response in the next 7 days.

Very truly yours,

Samuel C. Stretton

A Job May Not be a Life but … Maybe Consulting at $125/hr Is!

October 14, 2012
20 Comments

After tendering her resignation as township manager back on July 17, in a Community Matters post, “… I asked Mimi Gleason why she was resigning – was it another job? No, she is not leaving Tredyffrin for another job. In fact, her explanation for the resignation was actually quite simple … ‘A job is not a life’. She went on to explain that she is uncertain about what she wants to do, but knows that she wants to do something different and to work less. Her plans after September 17 include taking a few months off from work, visiting friends around the country during the fall and her annual trip to Hawaii in January.”

Curious if there was any way that she would extend her employment past the September 17 deadline, I asked her that question. Her response, was an emphatic “no”, her mind was made up. Well, as we learned at the September 17 Board of Supervisors meeting, her mind was not made up. With a unanimous vote, the Board of Supervisors approved a consulting contract for Gleason, effective immediately. There was no disclosure from the supervisors as to the specifics of the contract, i.e. salary, hours, etc. though BOS chair Michelle Kichline did say that Gleason would be helping the township until sometime after a new township manager was appointed and that the former township manager would not have direct contact with the public. On a personal note, as probably one of Gleason’s final contacts with a private citizen, both in email and via her phone call to me of September 14, I completely support that aspect of the contract!

By the September 17 Board of Supervisors meeting, 2 months had passed since Gleason’s letter of resignation, but no replacement township manager had been appointed. If you recall with Tom Scott’s departure as assistant township manager, that position was eliminated. In the interim, township Finance Director Tim Klarich was appointed at the September 17 BOS meeting to serve as acting township manager until a replacement township manager was appointed.

Without details of Gleason’s contract by the Board of Supervisors, several residents asked me about the contract, her consulting fee, the timeline, etc. On September 23, I sent the township a ‘right-to-know request’, asking for the contract and any related correspondence. After a legal review of my request, I received Gleason’s proposal dated August 28 and the signed consulting contract dated September 17 this past Friday. (If you click on the contract, do not be put-off by the 29 pages, the attorney Robert McClintock, Lamb McErlane, included several copies of the contract in the pdf. I am unclear as to why multiple unsigned copies; perhaps they contain small changes, but regardless, go to the end of the document to find the signed and dated version.)

For those experienced in reading contracts, I encourage additional commentary. Below, I offer highlights of Gleason’s proposal and contract:

  • Assist staff in development of 2013 budget & 5-year plan
  • Analyze budget alternatives
  • Available to meet with supervisors, finance committee
  • Assist with BOS meeting preparation
  • Assist with collective bargaining agreements if needed
  • Hourly rate $125, billed monthly to township
  • Work 10-15 hours per week, with notice may work more
  • Will assist new township manager with transition

Working as an independent contractor, Gleason’s consulting contract commenced September 23, no end date assigned. According to the terms of the contract, the township has the right to terminate the agreement with 10 days written notice. Going forward, the agreement may be amended with mutual agreement of Gleason and the township.

Going back to Gleason’s comment to me of July 17 that, “a job is not a life”. Although a job may not be a life, apparently consulting may be the ticket to life. A couple of people, who attended her retirement party last month, reported that Gleason’s consulting plans go beyond helping Tredyffrin Township. According to these sources, Gleason intends to take her land development expertise and offer those skills to other municipalities as a consultant.

I always thought that Gleason’s continued involvement and intense personal interest in the outcome of the recent C-1 zoning change to permit assisted living at Daylesford, past her notice to resign somewhat strange. It is interesting to note that her last day of township employment had Gleason at the September 17 Board of Supervisors meeting and witness to the 7-1 supervisors vote to approve the C-1 zoning change. Now, I get the connection. Though many township residents opposed the C-1 zoning change, Gleason can now point to this success when negotiating her consulting services with other townships. I guess the same applies for the Trout Creek Stormwater Overlay district ordinance change and her involvement in that zoning change.

Having served 10 years in Tredyffrin Township government, Gleason is fully vested and receives a pension. In addition to the pension, it is my understanding that she will receive healthcare benefits for life. Pension, healthcare coverage and consulting jobs, looks like Gleason had bigger plans than our July 18 conversation following her resignation would have suggested. According to Gleason, ‘a job may not be a life’ but apparently consulting is.

Trout Creek Stormwater Overlay District Ordinance Passes 4-3

October 2, 2012
15 Comments

I guess ‘7’ was the magic number for the Trout Creek Stormwater Overlay District. Following the Board of Supervisors meeting last night, the seventh public hearing was held for the Trout Creek Stormwater Overlay District ordinance. With a standing room only crowd, a dozen or more residents spoke against the ordinance. Their arguments primarily targeted the stormwater issue, feeling that the language of the ordinance was not strong enough. There is also concern about the enforcement and maintenance of the stormwater basins by the township. Another concern cited by a couple of residents was the possible impact the development of the Richter property may have on historic preservation, believing that the property may have served as a burial ground in the 1700’s.

Laurie Elliott, a Glenhardie resident, spoke in favor of the Trout Creek Stormwater Overlay District and the development of the property by Arcadia Land Company. Elliott supports the development believing that this is a step in improving the stormwater issues. We know that it has taken over a hundred years for the stormwater problem to get to this level and it is going to take a major effort by the township, developers and residents to reduce damage caused by flooding and runoff.

Arcadia Land Company’s plan for the 36 acre Richter property site includes townhouses and carriage houses on the 26 acres zoned residential. It is unclear how the 10 acres that is zoned ‘professional’ will be developed. Jason Duckworth, president of Arcadia spoke at the public hearing, assuring residents that the development plan would include necessary infrastructure to help the stormwater problem. According to Duckworth the cost for the required infrastructure and stormwater basins is $4 million; a cost absorbed by the developer versus Tredyffrin’s taxpayers. However, some residents believe that rather than helping the current stormwater situation, the development of the Richter tract will actually increase the problems. Arcadia Land Company may have taken a big step forward with the supervisor vote last night but I think they may be facing an uphill battle with some of the residents.

After seven public hearings, at nearly midnight the vote to approve the Trout Creek Stormwater Overlay District ordinance was 4-3. Supervisors Mike Heaberg, Michelle Kichline, John DiBuonaventuro and Kristen Mayock voted in favor and Phil Donahue, EJ Richter and Paul Olson opposed the ordinance. As I previously said, if the supervisors touted the C-1 zoning change as an economic development move, I did not see how it was possible that they could have voted against the Trout Creek Stormwater Overlay ordinance. From an economic standpoint, the development of the 36-acre Richter site will clearly benefit the township’s financial coffers. However, I remain unconvinced about much revenue will be generated from the assisted living facility on the 1-acre commercial site at Jimmy Duffy’s.

Although I am pleased that so many residents were involved in the Trout Creek overlay ordinance, I am not sure why there needed to be seven public hearings. Except for maybe the development of Chesterbrook, I wonder how many times there have been that many public hearings on a specific topic. On the other side, the C-1 ordinance change only had one public hearing, one extreme to another.

I do have a lingering concern in regards to the Trout Creek Stormwater Overlay ordinance. With the approval of this overlay district, which will presumably encourage redevelopment projects (beyond the Richter project), there appears an open issue on the enforcement and maintenance of the stormwater basins. From prior public hearings, we have learned that there is currently not sufficient township staff to review the existing stormwater basins. Going forward, how will this be handled?

I asked Tom Colman, the Glenhardie resident who co-chaired the citizen-working group with township supervisor Phil Donahue, about his thoughts on the Trout Creek Stormwater Overlay ordinance process and its outcome last night. Coleman was pleased that so many residents were involved and attended the meeting. He remarked, “I am immensely proud of the work done by all in educating the community and providing remarkable research to the process.” I don’t speak for others, but certainly on a personal level, it has been extremely educational to better understand the township’s stormwater and runoff issues and I thank all community members that volunteered their time and expertise in this process.

Is 7 the Magic Number? Seven Public Hearings for Trout Creek Stormwater Overlay Ordinance

September 28, 2012
1 Comment

Following the regular Board of Supervisors meeting on Monday is the continuation of the public hearing to “consider and possibly enact an ordinance amending Chapter 208, Zoning, to Article XXX Trout Creek Stormwater Overlay (TCS) and creating permitted uses, area, bulk, and buffer requirements and special development regulations; amending Article II. Definitions; amending Article XXVII, Conditional Uses.”

I have been approached by several Glenhardie area neighbors about the Richter property and Joe Duckworth’s proposed land development plan for the property. Residents have asked me ‘why’ I don’t write about the plan, wanting me to take a similar approach as I did with the C-1 zoning change for the Daylesford project at the Jimmy Duffy site. In my opinion, the Daylesford and Richter proposed land development projects (and their developers) could not be further apart for a litany of reasons. (For the record, if you type ‘Richter’ in the search box above, you can read four articles I have written on this topic.)

First off, I believe that the recent C-1 zoning change process was flawed; a change pushed through the system without any long range planning or consideration of the implications for other C-1 properties in the township. Tredyffrin Township has a $100K contract with a consulting company to review commercial zoning and I was of the opinion that before racing to accommodate a developer and his zealous attorney, this township change should have slowed to await the consultant’s recommendations.

At the September 17 public hearing, residents from across the township voiced wide-ranging concerns over the C-1 change, ranging from traffic and safety issues to bed density and property size. With the C-1 zoning change, the previous 10-acre requirement for assisted living facilities is now apparently possible on Duffy’s 1-acre commercial site. Although not a single resident spoke in favor of the C-1 zoning change, the supervisors voted 6-1 to approve the change, citing reasons like economic development and a desire that the developer not incur further costs by waiting for the consultant’s report.

The sweeping township-wide C-1 zoning change was predicated on ‘one’ development and ‘one’ developer … and a change approved during its one and only public hearing on September 17. Six of the seven supervisors voted in favor of the change against major opposition from township residents; believing I suppose, that they know ‘what’s best’.

OK, let’s compare the Jimmy Duffy site and the C-1 change to the Richter property and the proposed Trout Creek Stormwater Overlay (TCS) district. The first thing to note is the number of public hearings – one public hearing for the C-1 zoning versus seven public hearings for TCS. That’s right, October 1, is the seventh public hearing this year in regards to this issue. Let’s not forget that each public hearing costs the taxpayer additional money – advertising, court reporter, etc. I do not recall any recent issue in the township where there was this many public hearings.

For the record, here’s the list of Trout Creek Stormwater overlay district public hearings:

  • January 23
  • February 27
  • March 19
  • May 14
  • June 18
  • July 16
  • October 1

We know that there is a cost to the taxpayers for public hearings, what about the cost to the developer? Taking aside the number of planning commission and community meetings that the Daylesford and Richter developers attended, look at the public hearings – 1 public hearing versus 7 public hearings. The Daylesford project attorney Denise Yarnoff lamented that her client could not afford to wait for the consultant report – the process was costing money and they needed a decision. Voila, the supervisors complied. Not wanting to risk this assisted living project going away, the developer and his attorney got what they wanted from the supervisors … the C-1 zoning change.

What about Joe Duckworth and Arcadia Land Company? It doesn’t seem to me that Duckworth has been given the same advantage as Ed Morris. Duckworth and his team to-date have attended six public hearings, some going on for hours, late into the night. Duckworth has not complained about the time and money that his company has spent on the public hearings, planning commission meetings or citizen meetings. One could argue that the Richter tract at 36 acres is so much larger than the Daylesford property at 2 acres (R1 – 1 acre, C1 – 1 acre approximately) that the Richter property deserves more attention. Twenty-six acres of Richter is zoned R-1 residential and the remaining 10 acres is zoned ‘professional’ district.

I cannot imagine what the potential economic impact for the township will be from the thirty-six acre Richter tract. Duckworth’s plans for the Richter site include carriage houses and townhouses which, in addition to revenue, could provide a great option for Tredyffrin residents, particularly those wishing to downsize from their large single-family homes, to remain in the community. The last numbers that I have indicated approximately 120 units between the carriage houses and townhouses in the proposed development; although I do not know the breakout between the design types. Pricing for the carriage houses would probably be mid-$500K and the townhouses in the $400K range.

Certainly, the financial gain to the township with the development of the Richter property will far exceed the redevelopment of the Jimmy Duffy’s site as an assisted living facility. Using the supervisor’s logic of economic development as rationale for the assisted living project, one could assume that the proposed land development plan for the Richter tract would be a slam-dunk. There is an extra township wide benefit to the Richter development project – additional stormwater requirements contained in the Trout Creek Stormwater Overlay district. This proposed overlay district would provide incentives for certain large sites in the Trout Creek watershed as a way to encourage developers to build substantial stormwater management facilities on those properties.

To be clear, the creation of the TCS district is not a quick fix to years of stormwater problems. The massive stormwater issues were not created overnight and will certainly not be solved quickly. However, to do nothing is certainly not the answer. The Richter property was one of the 10 locations named in the 2010 Trout Creek Watershed Study and Stormwater Management Practice Analysis for stormwater best management practice in the township. The study suggested a 6-8 acre stormwater basis and Duckworth has said that his Richter plan sets aside 8 acres for the basin. The cost for the township to construct this large stormwater basin would be approximately $1 million plus the additional cost of land acquisition. Were the township to purchase the property and construct the stormwater basin, the costs would be several million dollars. As part of the Richter land development project, Arcadia Land Company (rather than the taxpayers) would absorb those stormwater costs.

From my vantage point, it appears that unlike Ed Morris, the Daylesford developer, Joe Duckworth and Arcadia Land Company have bent over backwards to listen and accommodate residents. It would seem that Duckworth is going more than the proverbial ‘extra mile’ to try to help with stormwater issues, even those not on the Richter property. If some of the residents of Glenhardie prevail and stop this development plan from moving forward, when do you suppose there is going to be stormwater relief? How long is going to take to find another developer willing to take on this large a project and try to satisfy the neighbors? Personally, I think that Joe Duckworth has done a yeoman’s job in that respect … I understand that at the end of the day, a developer needs to make money on a project, but I have found Duckworth to be patient and respectful of the residents, and a willingness to accommodate if appropriate.

Compare the C-1 zoning change that permits an assisted living facility at the Jimmy Duffy’s site to the proposed TCS overlay district and the proposed townhouses on the Richter property. Looking at economic gain to the township, ongoing costs to the developer, or stormwater benefit to residents, you would need to conclude that for the supervisors to have passed the C-1 zoning change for the Daylesford project, they would approve the proposed TCS overlay district.

To respond to those Glenhardie residents that suggested I write about the Richter property as I did for Daylesford project; it is not possible. As I have repeatedly stated, I believe that the process was not followed for Daylesford, too much credence given to the developer and his attorney and the decision to approve the C-1 zoning change not a careful, thought-out decision. I found the actions of the supervisors particularly troubling because the voices of many township residents were ignored.

To the Glenhardie neighbors that oppose the Richter tract development, you have had so many more opportunities to have your voices heard than the Daylesford neighbors have. In fact, the supervisors even appointed a citizen working group with subcommittees to review the proposed ordinance and provide input. The Richter development has a developer that has consistently attended citizen meetings, listened and made changes to his plan. The Trout Creek Stormwater overlay district and the development of the Richter property can be a start to improving stormwater problems. Unlike the limited economic benefit to the township of the Jimmy Duffy’s assisted living facility, the development of the Richter tract has great economic potential.

 

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

September 3, 2012
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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.

Updated Draft C-1 Zoning Ordinance Amendment … Looks Like ‘Spot Zoning’!

August 9, 2012
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Per the July Planning Commission meeting, attorney Denise Yarnoff returned to the drawing board to add her style of regulations to the proposed C-1 zoning text amendment change. If you recall, her client Ed Morris, presented a sketch plan to the Planning Commission for an assisted living facility on the old Jimmy Duffy catering site on Rt 30 in Daylesford.

Ms. Yarnoff’s first draft of the C-1 zoning ordinance change was met with great displeasure from many in the community; vague and without associated restrictions or requirements for assisted living facilities. More or less, an ‘anything goes’ kind of approach to the zoning ordinance change … no restrictions in the way of height, buffer, lot size, bed density, nada. In other words, the proposed zoning change suggested a carte blanche approach for developers; i.e. build any size assisted living facility on any lot size in C-1 commercial zoning districts in Tredyffrin Township. No surprise that Daylesford neighbors, and many other community members, balked at Ms. Yarnoff’s initial draft ordinance.

To be clear; Denise Yarnoff wrote the draft zoning text amendment change for Tredyffrin Township but on behalf of her client, developer Ed Morris. Although I still do not understand this process of having a developer’s attorney write township ordinances, apparently, it is legal and that other municipalities handle this type of situation similarly. As I said in an earlier post, ‘if’ (and that is a big ‘if’) I buy into the reasons (financial, etc.) that a developer’s attorney can write a draft township ordinance amendment, I think that any revisions to the document need to come from the township (either staff or Planning Commissioners). At least in the case of the proposed C-1 zoning ordinance amendment change, this was not how it was handled … Ms. Yarnoff did the rewrite on the text amendment and has resubmitted it to the township for next week’s Planning Commission meeting.

To review Ms. Yarnoff’s revised and updated proposed C-1 zoning text amendment change, click here. Here are the six items that Ms. Yarnoff added as restrictions for an assisted living facility in C-1 Commercial District:

  1. The property shall have direct access to an arterial street;
  2. The property shall be located within ¼ mile of a regional train station;
  3. The maximum number of beds per assisted living facility building shall be 500 square feet of the Tract per bed;
  4. The maximum number of beds per assisted living facility building shall not exceed 120 beds;
  5. The development shall comply within the buffer requirement to a residential use set forth in Section 208-66H; and
  6. The assisted living facility shall be licensed by the Commonwealth of Pennsylvania.

Looking at this list, I would expect nothing less from a good real estate attorney – the client is paying her hourly rate and she needs to get the best deal for him that is possible; I get it. However, seriously, I am embarrassed for Ms. Yarnoff … I’m no attorney, but is this the best that she could come up with? Does she think that these are acceptable restrictions?

Bed density was one of the major problems that many neighbors and township residents had with the Morris sketch plan of the proposed assisted living facility. His plan suggests 93 beds/79 units on the 1 acre C-1 Jimmy Duffy site — a higher bed density than anywhere in the county, including the downtown West Chester. Because so many residents took issue with bed density, it made sense that Ms. Yarnoff would probably lower that number, make it less dense in the re-write of the proposed zoning ordinance amendment. Not so … in restriction #4, Yarnoff increased the permitted bed density to 120 beds! So much for listening to township residents.

Looking at #2 of Ms. Yarnoff’s restrictions which requires that assisted living facilities in the township be built within ¼ mi. of a regional train station. Doesn’t that restriction make it convenient for the ‘Jimmy Duffy Assisted Living’ project? How in the world can this restriction in the proposed zoning ordinance change not be viewed as ‘spot zoning’. How many C-1 properties, other than the Jimmy Duffy location, could meet this restriction?

How about #6 on Ms. Yarnoff’s list of restrictions — licensing. Isn’t licensing already a state requirement for assisted living facilities. How does this add to the proposed zoning amendment change?

Lot size … where exactly is the lot size requirement in this proposed zoning change? Without offering any lot size restrictions, is Ms. Yarnoff suggesting that ‘anything goes’? In Tredyffrin, build an assisted living facility on a postage stamp lot and it can have 120 beds! Don’t we need a minimum number of acres for assisted living facilities in Tredyffrin Township? Remember, currently assisted living facilities is included in the township’s Institutional Overlay (IO) district — with a 10-acre requirement. Some argue that the 10-acre restriction is antiquated and needs updating. However, I cannot believe that the township needs to go from 10 acres down to no acreage requirement for assisted living facilities.

And folks, remember that the township recently signed a $100K contract for consultants to review and make recommendations on commercial zoning in the township. What about waiting for those results before we make a change that will affect commercial zoning in the entire township? The next opportunity for public input is on Thursday, August 16, 7 PM at the Planning Commission meeting.

Chester County Planning Commission Comments Reflect the Views of Many Tredyffrin Residents … Will the Board of Supervisors Listen

August 4, 2012
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As follow-up to my Community Matters post of July 20, ‘Tredyffrin’s Proposed C1 Zoning Amendment Change … Where do we go from here’, here’s the latest installment in the continuing saga of the proposed C-1 zoning ordinance change to permit assisted living facilities. Although the proposed C-1 zoning ordinance change would permit assisted living as a ‘by-right’ use for all C-1 township properties, the focus is on the 1-acre Jimmy Duffy property on Lancaster Ave in Daylesford.

Tredyffrin Township’s proposed C-1 zoning ordinance amendment (below),

“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.”

was sent to the Chester County Planning Commission for review on July 5 and this past week Tredyffrin’s Board of Supervisors and Planning Commission received their comments/remarks. (Click here to read the CCPC response).

Although we were told that is procedurally OK that the township sent the proposed zoning ordinance amendment to Chester County Planning Commission, it struck some of the residents (myself included) rather pre-emptive to ask for comments from the county in advance of our own Planning Commission giving their ‘thumbs-up or thumbs-down’ on the amendment. As many Daylesford neighbors and other township residents have repeatedly commented, the proposed zoning ordinance amendment needs restrictions/requirements attached to it.

Reading the comments on Tredyffrin’s proposed C-1 zoning amendment change, it is apparent that the Chester County Planning Commission echos concerns of many township residents. The official response from the county, offered the following comments in regards to the proposed C-1 zoning amendment change:

  1. The proposed zoning amendment does not appear to be consistent with the Township’s land use policies as currently written.
  2. The proposed zoning amendment does not appear to be consistent with the goals and objectives specified on page 67 of Tredyffrin’s Comprehensive plan.
  3. The proposed zoning amendment does not appear to be consistent with the purpose statement of the C-1 Commercial District, which, according to Section 208-64, is “designed to encourage and provide for attractive, company, retail convenience-type commercial development in locations close to the residents served”.
  4. Residential care facilities are currently permitted by conditional use in the IO Institutional Overlay District with specified bulk, height and buffer regulations.
  5. Other Chester County municipalities address assisted living facilities utilizing conditional use in medium to high-density residential or institutional zoning areas.
  6. Assisted living facilities are not found in any other Chester County Commercial zoning districts.

If I did not know better, it would seem as if the Chester County Planning Commission were audience members at Tredyffrin’s supervisor and Planning Commission meetings. Every one of the points that the Chester County Planning Commission presented in their review of the township’s proposed C-1 ordinance amendment have been made repeatedly during the last several months by township residents.

The Chester County Planning Commission summarizes their remarks by stating, “Tredyffrin Township should consider the comments contained in this review before taking action on the proposed zoning ordinance amendment.” Well, … by their comments, it appears to me that Chester County Planning Commission is suggesting that assisted living facilities should not be in Tredyffrin’s C-1 zoning districts. My understanding of their comments appears to suggest that clarity is needed from the township with respect to restrictions and regulations.

Here’s an interesting point to consider – although the Chester County Planning Commission looks to be in complete agreement with many of the township residents opposing the proposed C-1 zoning ordinance amendment change, their opinion will not decide the matter. Members of Tredyffrin’s Planning Commission, and ultimately the Board of Supervisors, will have the final say on whether assisted living facilities become a ‘by-right use’ in all C-1 zoning districts. Should the supervisors approve this proposed zoning ordinance amendment change, they will also decide whether to add any restrictions to the ordinance, such as bed density, height, buffer requirements, etc.

Although not a legal requirement for our Planning Commissioners or supervisors to give any credence to Chester County’s recommendations on the proposed C-1 zoning amendment change, I would hope that they seriously consider these comments in advance of the next Planning Commission meeting on August 16.

Ed Morris, the developer eyeing the Jimmy Duffy site for an assisted living facility, will need the C-1 zoning amendment change to move forward. It was Denise Yarnoff, Morris’ attorney, who wrote the township’s proposed amendment change. We learned at the last Planning Commission meeting that the applicant’s attorney agreed to add restrictions to the proposed amendment and re-submit for the August Planning Commission meeting. We have been told that there is nothing wrong with the applicant’s attorney writing the proposed amendment but where does it end? After Yarnoff created the draft amendment, I think it needs to be the responsibility of our Planning Commissioners and/or township staff to add any additional requirements or restrictions. I am troubled that the re-write of Tredyffrin Township’s proposed zoning ordinance amendment is in the hands of the applicant’s attorney … just doesn’t feel right to me.

“A Job is Not a Life” … Mimi Gleason Resigns as Tredyffrin’s Township Manager

July 17, 2012
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For those of us who attended last night’s Board of Supervisors meeting, it went very late, until 11:30 PM. Now I have to wonder if the 4-hour marathon meeting had any bearing on this morning’s decision by our township manager.

Mimi Gleason has been Tredyffrin’s Township Manager for the last 7 years. Prior to becoming township manager in 2005, Mimi served under Joe Janasik as assistant Township Manager for 3 years. There was no indication at last night’s meeting of Mimi’s impending announcement this morning; and the news has taken many of us by surprise.

Rather than speculating on the reason behind Mimi’s decision to resign, I spoke at length with her this afternoon. She assured me that the decision to leave was completely her own rather than anyone pushing her in that direction. Mimi told the township supervisors and her staff this morning of her decision to resign; her last day will be September 17.

I asked Mimi why she was resigning – was it another job? No, she is not leaving Tredyffrin for another job. In fact, her explanation for the resignation was actually quite simple … “A job is not a life”. She went on to explain that she is uncertain about what she wants to do, but knows that she wants to do something different and to work less. Her plans after September 17 include taking a few months off from work, visiting friends around the country during the fall and her annual trip to Hawaii in January. Although Mimi does not view the decision to resign as some type of mid-life crisis, our conversation did turn philosophical as we discussed the importance of really ‘living’ life.

What has she enjoyed most about serving as our township manager? An easy question, she responded “… the people … the staff … the volunteers … the groups she works with”. I then asked what she liked least about the job and that proved another easy question. Her quick response, “night meetings!” Based on last night’s supervisors meeting that ran until 11:30 PM, I could not help but think that may have made her decision this morning a little bit easier.

Wondering if Mimi could be cajoled into extending that September 17 deadline, I asked her that question. No, her mind is made up. Remembering her words, “a job is not a life”, Ms. Gleason has some living she wants to do!

I know that you join me in wishing Mimi well; wherever this life’s journey takes her. We thank her for her ten years of service to the residents of this community and can take some solace in knowing that this was ultimately her decision, and no one else’s.

Tredyffrin Township: What Price Economic Growth?

July 16, 2012
25 Comments

What price economic growth …

  • What is the price tag for economic development in Tredyffrin Township?
  • Is it OK to green light a land development project even when it doesn’t meet current zoning regulations?
  • Is it right for a developer and his attorney to create a zoning ordinance amendment to Tredyffrin Zoning Code to suit their needs for a particular project?
  • As a community, do we want zoning amendment changes in Tredyffrin Township without restrictions, requirements or conditional uses?
  • If you are a developer considering a project in Tredyffrin but cannot find suitable zoning, that may not be an obstacle to your plans. All you need to do is write a new ordinance, call it economic development and then watch as the plan moves forward.

This post is an update on the old Duffy catering site on Lancaster Ave. and the proposed assisted living facility. The vacant Duffy property contains approximately 2 acres, with a 1 acre parcel zoned C-1 and a 1 acre parcel zoned R-1. Current zoning does not permit an assisted living facility in C-1 or R-1 in Tredyffrin Township.

With an idea to build a 93-bed/79-unit multi-story assisted living facility on the C-1 parcel, the developer Ed Morris through his attorney Denise Yarnoff of Riley Riper Hollin & Colagreco, submitted a zoning ordinance amendment change to the township to permit assisted living as a C-1 usage.

Tredyffrin Zoning Code currently addresses assisted living facilities in IO (Institutional Overlay) zoning and includes four pages of restrictions and regulations, including residential density, bed density, buffers, setbacks, etc. in addition to a 10-acre minimum acreage requirement. Yarnoff skillfully, and in the best interests of her client, reduced the four pages of regulations to a one sentence zoning ordinance amendment change. She offers no restrictions, regulations or conditional uses … just a C-1 amendment that would allow assisted living in C-1 zoning. I give Yarnoff credit – as the attorney for Ed Morris, she is certainly maximizing the land development needs of her client. Assuming Yarnoff gets this C-1 zoning amendment change, then it should be full-steam ahead for Morris to build his assisted living facility — 93 beds/79 units on 1 acre.

Members of the public do not dare call this proposed action ‘spot zoning’. Supervisors, Planning Commissioners and township staff cringe when residents refer to this proposed change as spot zoning – telling us that it can’t be spot zoning if the change affects all C-1 zoning in the township. On the flip-side, some of these same people tell us there are no plans for assisted living facilities in any other township C-1 locations. As I see it, they cannot have it both ways.

A quick real estate Google search indicates a Tornetta Realty Corp. listing of 6.1 acres of ‘Prime Development’ C-1 land available for $3.5 million at 1057 Howellville Road, Berwyn. Now here’s a thought — if Yarnoff’s proposed zoning amendment change can permit 93 beds/79 units on 1 acre in Daylesford, then by my calculations, there would be room for 560 beds on Tornetta’s 6.1 acres in Berwyn. (Click here to see Tornetta’s Howellville Rd. listing)

I don’t know why certain supervisors and planning commissioners would have us believe that assisted living facilities are not planned for any other C-1 locations. Seems to me that the C-1 land on Howellville Road for sale would present an excellent opportunity for Morris, Yarnoff et al to build a sister location to their Daylesford assisted living facility! And remember folks, no official land development plan has been submitted to the township for this project; this is about changing zoning in anticipation of a plan! Yarnoff’s proposed amendment change for C-1 zoning is being considered without the submission of a land development plan. What’s the saying about the “cart before the horse”?

But aside from any concerns about putting 93 beds/79 units on a 1-acre site, I take an exception to the township’s handling of this land development plan and making changes to zoning to suit a particular developer. Where is the voice of the residents? When elected or appointed officials characterize citizen activism as politics, they’re attempting to marginalize the citizens’ concerns. The most-affected neighbors to this proposed project, the Daylesford Neighborhood Association (DNA) with Trisha Larkin as president, have banded together hoping to have their collective voice heard. Their green and white ‘No C-1 Zoning Change’ signs are populating township lawns and the support is building beyond the immediate neighborhood. Much like George Lucas’ storm troopers in Star Wars, the DNA and their supporters are organizing and preparing for battle but … will it be enough to turn the tides?

Although no land development plan has been officially filed with the township, some seemingly already have the facility built. Let’s disregard the required process in favor of what some officials believe should be the desired outcome. The proposed C-1 zoning ordinance change is on the agenda for Thursday, July 19 Planning Commission meeting — concerned township citizens plan to attend. Right now, I am not certain that their voices will make a difference. According to tonight’s Board of Supervisors agenda, the supervisors will “Schedule Public Hearing to be held on August 20, 2012, to consider amending the Zoning Ordinance, Article XVII §208-65, C-1 Commercial District, Use Regulations to permit a new use: “residential care facility for older persons providing permanent residential accommodations and/or assisted living facilities/services (and supplemental services)”.

Additionally, I have learned that on July 5 the township sent a letter, formally requesting that the Chester County Planning Commission (CCPC) review and provide a formal recommendation on Ed Morris’ proposal to change C-1 zoning. The C-1 zoning amendment change as sent to CCPC is the version written by Morris and Yarnoff, with no restrictions, requirements or conditional use. The deadline for CCPC comment is by August 5 … no accident that the deadline is prior to the proposed August 20 public hearing date.

From my vantage point, the scheduling of the public hearing on the proposed C-1 zoning change and the review request by Chester County Planning Commission in advance of the upcoming Planning Commission meeting is preemptive of the process and citizen input. To move this process along before hearing the concerns of the community is to marginalize the voices of the citizens. Balancing public concerns requires public input and is crucial in determining the pros and cons of development and possible zoning ordinance changes. Residents deserve respect and an opportunity to receive answers from those elected to represent us.

Why the rush to push this zoning ordinance change through? Why no bed density restrictions or regulations? Why no conditional use?

And let’s not forget that Tredyffrin’s Board of Supervisors hired a consulting team in April to conduct an 18-month, $100,000 analysis of the township’s commercial zoning ordinances. This proposal to change the township’s C-1 zoning ordinance is preemptive of the consultant’s analysis which begs a question — why is this township spending $100K for a consultant to analyze the township zoning and make recommendations?

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