ZONING HEARING BOARD
MINUTES –
The regular meeting of the Zoning Hearing Board of Lower
Makefield Township was held in the
Those present:
Zoning Hearing Board: Barbara Kirk, Chairman
David Malinowski, Secretary
Paul Bamburak, Member
Greg Caiola, Alternate
Others: Robert Habgood, Code Enforcement Officer
Jennifer McGrath, Township Solicitor
Allen Toadvine, Zoning Hearing Board Solicitor
Steve Santarsiero, Supervisor Liaison
Absent: Rudolph Mayrhofer, Zoning Hearing Board Vice Chair
APPEAL #05-1311, #05-1312, #05-1313 –
Mr. Bernard Schneider called Leonard Gabriel who was sworn in. Mr. Gabriel stated
he is a Licensed Real Estate
Appraiser licensed in the
He also has a Real Estate Broker’s License. Mr. Schneider showed what was marked as
Exhibit A-39, and Mr. Gabriel stated this is his resume which states his experience and
education. Exhibit A-40 was marked, and Mr. Gabriel stated this is his Appraiser
Certification. Exhibit A-41 was marked, and Mr. Gabriel stated this is his Corporate
License. Exhibit A-42 was marked, and Mr. Gabriel stated this is his Broker’s License.
Mr. Toadvine asked if there was any objection to Mr. Gabriel being qualified as a Real
Estate expert, and Ms. McGrath Mr. Pastor had no objection.
Mr. Gabriel was asked what an Appraiser does, and Mr. Gabriel stated they evaluate real
property for the purpose of estimating market value. He stated this entails inspection of
the property, researching recent sales in the area, and making a final reconciliation. He
stated there are times when he must determine past sales. Mr. Schneider asked what
information he relies on to determine past sales, and Mr. Gabriel stated he uses the MLS
service which is the Multiple Listing Service. Mr. Schneider asked if Agents and Brokers
also rely on the MLS to determine what properties are available for sale, and
Mr. Gabriel stated they do.
Mr. Schneider asked if Mr. Gabriel has performed appraisals
in
Township, and Mr. Gabriel stated he has performed approximately 640 to 700 appraisals
in Lower Makefield Township over the past five years.
Mr. Schneider stated he asked Mr. Gabriel to determine the availability of properties of at
least five acres in Residential
Districts in
Screen that come up on the MLS asking for various input including whether the property
is active, pending, or has closed, as well as acreage, dates, and price. He stated he
checked off all categories and did not limit it to Residential. He noted Exhibit A-43
shows the properties, but noted they are no longer available today as they were
withdrawn or expired. Mr. Gabriel noted there were three available during the time
period noted by Mr. Schneider for which they have MLS information.
Exhibit A-44 was marked which is the
listing for the property at
Yardley which was listed
marked which is the listing for the
property at
Ms. Kirk asked about the Notation in the upper right hand corner “RESX/R $789,900.
Mr. Gabriel stated RES indicates that it is Residential, X/R means that it has expired, and
$789,900 is the price at which it expired. Mr. Gabriel stated the listing expired 98 days
later or
Mr. Gabriel stated on that copy, the listing price has been cut off. Mr. Schneider agreed
to substitute copies with the prices shown.
Exhibit A-46 was marked, and Mr. Gabriel stated this is for the property at 583
time it expired was $799,000.
Mr. Schneider provided tonight to Mr. Toadvine Exhibit A-44A
(
A-45-A (
the listing prices shown.
Exhibit A-47 was marked, and Mr. Gabriel stated this is a print-out from the Real Estate
Directory for the property at
Directory is a computer data base taken from Doylestown showing all the Deeds as they
are recorded, and Appraisers also rely on these. Mr. Gabriel stated he went to the Real
Estate Directory as not many properties came up on the MLS. He stated this Directory
shows sales and not active listings. He stated the
a settlement date of 3/2/9/05 and was for a developed property with a building on it. He
stated it is a warehouse property
on ten acres on
shown as R-4, but is it a warehouse property. The sale price was $3,036,992.
Exhibit A-48 was marked, and Mr. Gabriel stated this was the only other large acreage
parcel that he found in the Real Estate Directory for the period noted and is for 1347
$650,000 for 9+ acres.
Exhibits A-39 through A-48, including A-44A, A-45A,and A-46A were moved for
admission and were admitted.
Ms. McGrath asked Mr. Gabriel if these were the only properties he found during the
timeframe, and Mr. Gabriel stated these were the only ones of five acres or more.
Ms. McGrath noted Exhibits A-44, A-45, and A-46 and noted the top left corner where it
states “5 Total Properties” and asked if there were two others that came up in his search.
Mr. Gabriel stated there were two other properties they did not use. Mr. Gabriel stated
they were from a different search. He noted a parcel that was listed in June 2005 so it
was out of the timeframe he was given. He stated it was a five acre parcel with a large
residential home located at
He stated this is an active listing. He stated the other parcel was
but it was also out of the time period. The asking price for this property was $869,900.
Ms. McGrath noted the properties on A-44, A-45, A-46, A-47, and A-48, and asked if
Mr. Gabriel had ever gone out to the properties, and Mr. Gabriel stated he did drive past
the
any Appraisal Reports for these properties.
Mr. Pastor asked if
three to four bedrooms homes of
approximately ½ acre in
Mr. Schneider objected due to relevancy. Ms. Kirk asked for an offer of proof.
Mr. Pastor stated the testimony they offered was that the homes they purchased were less
expensive than five acre properties
in
whether there are other homes in the Township or elsewhere that are less expensive than
the homes they actually purchased. Ms. Kirk overruled.
Mr. Gabriel stated
Ms. Kirk asked for redirect.
Mr. Schneider noted another document that Mr. Gabriel had e-mailed to him, and
Mr. Gabriel stated this was part of the five properties referred to by Ms. McGrath. He
noted this is the
and Mr. Gabriel stated the
Thistlewood and
search, but they did not meet the timeframe he was given.
There were no questions of this witness from those who had requested Party Status.
Mr. Anthony DiRienzo was called and sworn in. Mr. DiRienzo stated he was a resident
of
week, and is familiar with the
neighborhoods of
Mr. Schneider asked if he has had the opportunity to observe the number of automobiles
in driveways in
frequently seen four automobiles in
driveways in
Mr. Schneider asked if he has ever seen more than four vehicles in driveways in Lower
Ms. McGrath objected due to relevance.
Mr. Schneider stated Mr. Koopman raised this issue in his questioning of Mr. Champ.
Ms. Kirk overruled.
Mr. DiRienzo stated he occasionally sees more than five
automobiles in
Mr. Pastor objected and asked what expertise does he have to give testimony.
Mr. Schneider stated Mr. DiRienzo is not an expert witness – he is a fact witness.
Ms. Kirk overruled.
Mr. Schneider asked when he last lived in
Mr. DiRienzo stated he lived in the Township until 1996. He noted at that time there
were six to seven automobiles in his family. Mr. Schneider asked if they drove those cars
at all times of the day and night, and Mr. DiRienzo stated they did. Mr. Schneider asked
if there were ever any complaints from neighbors about driving the cars at all different
times of the day and night, and Mr. DiRienzo stated there were not. Mr. Schneider asked
if there were visits from the Police about the number of cars, and Mr. DiRienzo stated
there were not.
Ms. Kirk asked where he lived, and Mr. DiRienzo stated he
lived at
Ms. Kirk asked where this is in proximity to the three homes involved in these Appeals,
and Mr. DiRienzo stated it is approximately one half mile from the N. Crescent Blvd.
property. Ms. Kirk asked if he was the owner, and Mr. DiRienzo stated his parents were
the owners. Ms. Kirk asked if he was always present at the home all the time to know if
the Police came due to complaints about vehicles in the driveway, and Mr. DiRienzo
stated he was not.
Ms. McGrath asked for what purpose he comes to
four times a week, and Mr. DiRienzo stated his mother is still a resident of Lower
Makefield and he is there at least two to three times a week. He added he also has a
personal friend that lives approximately ¼ mile from one of the subject properties, and he
is there at least twice a week. Ms. McGrath asked if he purposely looks in the driveways
when he is driving through the Township, and Mr. DiRienzo stated he does not, but he
does notice cars in driveways. He stated from living in the Township he was also aware
of how many cars his neighbors had. He stated the friend he visits in the Township has
five cars at his residence as do the people who live next door. Ms. McGrath asked if
there was one biological family living at the home when he lived with his parents, and
Mr. DiRienzo agreed.
Mr. Pastor asked the size of the lot when he lived in
Mr. DiRienzo stated it was approximately one half acre with a two-car garage and a large
driveway. Mr. Pastor asked about the size of the lots and driveways where he has viewed
cars in the driveway. Mr. DiRienzo stated most of the lots in the area are from one half to
one acre in size.
Ms. Kirk asked for re-direct.
Mr. Schneider stated he has no more witnesses tonight, but reserves the right
to re-but.
He stated he may need to call Ms. Frick when she is available. Ms. Kirk noted at the last
meeting they agreed that Ms. Frick was not available for this evening, and that they
would proceed with other witnesses presented by other Parties in the matter. Ms. Kirk
noted that Mr. Pastor had indicated he would like to present testimony of a Land Use
Planner. Ms. McGrath had no problem with proceeding with this witness.
A short recess was taken.
The meeting was reconvened at
moved all his Exhibits. Ms. Kirk stated based on her notes it does not appear that Exhibit
A-34 through A-38 were moved into Evidence. There was no objection and the Exhibits
were moved into Evidence.
Ms. Kirk noted that the residents who retained Counsel and appeared at the first Hearing
were represented by Mr. DiGrezia, and she asked if he is with Mr. Pastor’s firm.
Mr. Pastor stated they are different firms, but they are acting as Co-Counsel.
Mr. Pastor’s Appearance as Co-Counsel was entered.
Mr. Larry Waetzman was called and sworn in. Mr. Waetzman stated he is President of
The Waetzman Planning Group which is a firm of land planners and landscape architects
located at
planning services to Municipalities
and private clients throughout the eastern
primarily in
Exhibit P-1 was marked, and Mr. Waetzman stated this is a copy of his resume. He
stated he has had thirty-three years of professional experiences beginning as a Municipal
Planning Director and continuing in the private sector as a consultant. He is a Charter
Member of the American
Planner by the State of
He stated he is a Past President of the American Society of Consulting Planners and a
former President of the local chapter of the American Planning Association. He is a
former Director of the Pennsylvania Planning Association. He stated he is also a member
of the Urban Land Institute. He is also listed in a number of biographical references
including Who’s Who in American, and Who’s Who in the World, and has spoken at
numerous National and Regional Conferences on subjects related to Planning. He stated
he conducts a series of seminars on
Planning and Land Use Law in
conducted seminars on behalf of the International Council of Shopping Centers. He has
prepared Zoning Ordinances and Zoning Amendment sand approximately half of his
practice is devoted to assisting Municipalities. He stated they have a number of client
communities in
stated in other instances they perform specialized tasks such as being hired to draft
Comprehensive Plans and Zoning Ordinances including some in
Township.
Mr. Waetzman was offered as an expert in Planning. Ms. McGrath had no objection.
Mr. Schneider stated he had no objection as to his qualifications as an expert witness but
would like to qualify what he is being offered for. Mr. Kirk stated Mr. Waetzman will be
accepted as an expert witness in Land Use Planning and asked the offer of proof.
Mr. Pastor stated Mr. Waetzman will testify about the
Ordinances in
Township and the effect of those Ordinances on properties and the Application being
offered by AVS for the use of those properties. Mr. Schneider stated he feels this sounds
like a legal opinion, and he would object to his testimony. Mr. Pastor stated as a Planner
he is entitled to offer opinion as to the applicability of the local Zoning to the actual uses
noting this is not necessarily legal opinion but is something that is done ordinarily by
Planners. Mr. Schneider stated Mr. Pastor has indicated that he will offer testimony on
the application of the Township’s Code which is legal opinion and is what the Zoning
Hearing Board is to do. He stated he objects.
Ms. Kirk overruled and allowed the testimony noting that the Board will make their
decision as to the applicability of his testimony to their ultimate Decision.
Mr. Pastor stated Mr. Waetzman indicated that he assisted
with Planning and asked for a description.
Mr. Schneider objected due to conflict of interest. Mr. Schneider added he did not hear
testimony that he had assisted
this point is a Party to this case, he feels this is a conflict of interest in his being a Witness
for the residents since he has been
a consultant to
stated she understood Mr. Waetzman’s testimony was that he had prepared Zoning
Ordinances for the Township, but this was some time ago. Mr. Waetzman stated it was
fifteen to twenty years ago. Ms. McGrath stated
taken a position at this point. Mr. Toadvine stated they do have Party status.
Ms. McGrath but stated they have not taken a formal position..
Ms. Kirk asked for a clarification of the question posed by Mr. Pastor, and he stated he
wanted Mr. Waetzman to provide information so that the Board is aware that fifteen to
twenty years ago, he assisted the Township by performing some Planning Services.
Mr. Waetzman stated this included drafting a portion of the Ordinance which is under
consideration. He noted he has not done any recent work for the Township. Ms. Kirk
asked if he was involved in the revisions to the Zoning Ordinance since that time, and
Mr. Waetzman stated he was not. He has not done any further work for the Township
within the last fifteen years and was not consulted by the Township as a Planner for their
Comprehensive Plan or as to any developments or preservation of Open Space within the
last fifteen to twenty years. Mr. Schneider stated he has just testified that he drafted a
portion of the Code that is applicable this evening. Mr. Waetzman stated he did not
indicate that he drafted all of the Ordinance, but was involved in a major updating of the
Ordinance fifteen to twenty years ago. He stated his comments are not related
specifically to his work in the Township. He stated his comments are related to the fact
that he has personal experience of the impact of group homes on the community as he
resides across the street from one, and secondly because he does have thirty-three years
of experience in writing and helping Municipalities better understand the Ordinances.
Mr. Schneider stated he is testifying without a questioned being posed before him.
A brief recess was taken at this time.
The meeting was reconvened at
Ms. Kirk stated after the Board consulted with their Solicitor concerning the objections
raised as to Mr. Waetzman’s testimony, she will allow the testimony but cautioned
Mr. Pastor that Mr. Waetzman is not present to provide a legal opinion or basis, so the
questions must be framed in such a way that he is providing testimony as to his expertise
but not as to the ultimate legal question being decided by the Zoning Hearing Board.
Mr. Pastor asked Mr. Waetzman if he is aware that AVS’s proposed use of the three
single-family homes as group homes is covered by the Federal Fair Housing Act, and
Mr. Waetzman stated yes. He stated it is unlawful to discriminate in housing
opportunities against persons …
Mr. Schneider objected since this is a legal opinion, even though it is favorable.
Mr. Pastor asked if Group Homes are covered by the Federal Fair Housing Act.
Mr. Schneider objected citing legal opinion.
Mr. Pastor stated to determine whether a group home is covered under the Federal Fair
Housing Act is not legal opinion, and a lay person can make that assessment. He stated
they have a person who has been accepted as an expert planner with experience in these
types of issues, and he can testify based upon his background and expertise as to what is
and is not covered by the Federal Fair Housing Act.
Mr. Schneider objected.
Ms. Kirk stated the Objection is noted. Ms. Kirk asked Mr. Waetzman, in his profession
as a Land Use Planner, how does the Federal Fair Housing Act apply to group homes.
Mr. Schneider objected citing legal opinion.
Ms. Kirk overruled.
Mr. Waetzman stated he deals with both Federal and State Fair Housing Acts as a
continuous part of his planning practice. He stated he is currently engaged in preparing
seven affordable housing plans for Municipalities, and he has testified in matters
involving assisted-living facilities where Fair Housing claims were brought. He stated
he has read the Act and knows its general applicability. He is also familiar with the fact
that reasonable accommodations must be made for group homes.
Ms. Kirk asked about the affordable housing plan Mr. Waetzman referred to.
Mr. Waetzman stated this is in
which required that each Municipality periodically prepare a housing plan that provides
opportunity for housing for persons of low and moderate income. He stated there are a
number of ways that properties can qualify for inclusion in those Plans, and one of those
ways is what the State refers to as an alternative living arrangement which could include
a group home.
Mr. Schneider objected noting beyond being a legal opinion, this is irrelevant as it relates
to
Ms. Kirk overruled.
Mr. Toadvine stated this is a question being asked by the Chairman of the Board.
Mr. Schneider stated with due respect to the Chairman, this does not make it not
objectionable, and he needs to protect his rights.
Mr. Toadvine stated he feels it would be in everyone’s interest if they allowed some
latitude noting they are not governed by the rules of evidence and they do allow hearsay
and other objectionable forms of evidence.
Mr. Waetzman stated he has also testified in
Township in
living facility in a Residential Zone where it was not permitted and that case also had
implications with the Federal Fair Housing Act.
Ms. Kirk asked how the Mount Laurel Doctrine is applicable to
Mr. Waetzman stated it is not. He stated the question he was asked was related to the
seven housing plans he has been
involved with and these happened to be in
which has the requirement to provide for affordable housing. He stated in order to do
that, they have to look at a variety of opportunities and some of those included providing
group homes.
Mr. Pastor asked Mr. Waetzman if he has any personal knowledge about the impact of
any group homes, such as those proposed by
residential neighborhood. Mr. Waetzman stated he does, noting he lives at 2725 Pine
Valley Lane which is a corner lot.
Mr. Schneider objected to the relevancy as what affect other providers of group homes
have on the neighborhood is irrelevant. He stated in this instance they are dealing with
profound mental retardation. He stated there is no foundation that the group home
Mr. Waetzman is referring to is an
people with moderate, severe or profound mental retardation.
The objection was sustained. Ms. Kirk asked that Mr. Pastor rephrase the question.
Mr. Pastor asked to come back to the issue.
Mr. Pastor asked Mr. Waetzman if he is aware whether the Federal Fair Housing Act
preempts local Municipal Zoning Ordinances.
Mr. Schneider objected based on legal opinion.
Mr. Pastor disagreed and stated as Planner, this is in the purview of a Planner.
Mr. Schneider stated whether or not the Federal Act preempts local Ordinances is a legal
question. He stated even an attorney being asked that
question under
cannot answer it as it is not the
subject of an expert opinion under
Mr. Pastor stated it is up to the Board to determine the weight to be given to the
testimony, and the Board can make its own determination as to the legality of the issue
presented. He stated they are providing the testimony to provide the factual basis and
analysis of land use planning for the Board to make that determination.
Mr. Schneider stated this is done by oral argument or brief at the end of the Hearing.
Ms. Kirk asked that Mr. Pastor rephrase.
Mr. Pastor asked Mr. Waetzman if he can testify as to the impact group homes will have
on a neighborhood.
Mr. Schneider objected.
He stated he has not indicated that these are
School group homes or homes for those with moderate, severe, and profound mental
retardation. He stated group homes could include homes for other sorts of disabilities
and could include homes for people with no disabilities at all.
Mr. Pastor stated they acknowledge that AVS does not currently have any homes in
provide testimony to show the types of issues that the Board may wish to consider in
making a determination as to the Appeal. He stated without a basis of that testimony, the
Board is lacking in ability to look at all the issues.
Ms. Kirk overruled but directed Mr. Waetzman to answer in terms of specific types of
group homes that he has come across during his expertise as a land use planner.
Mr. Waetzman asked if he can also share with the Board his personal experience with
living across the street from such a home. Ms. Kirk recommended that at this time, since
he has been offered as an expert witness, he proceed with his expert testimony; and he
could then be called as a Fact Witness. She stated she would prefer not to mix the two at
this point.
Ms. Kirk stated the question that was presented was the impact of group homes within
Residential areas, and she asked that he clarify the types of group homes to which he is
referring in his answer. Mr. Waetzman stated his answer refers to group homes for
individuals suffering from mental retardation, from developmental disabilities, and from
other chronic illnesses. He stated he will not testify as to halfway houses or other types
of group homes.
Mr. Schneider asked that the testimony be limited to mental retardation. He stated there
has been testimony that mental retardation is not an illness or disease, so that chronic
illness is not an issue.
Mr. Pastor stated they would need to provide definitions as to what that is, and they will
get to this in their testimony. He stated in addition, the issues associated with parking
would be across-the-board regardless of the nature of the group home, as would other
similar issues. He stated these are issues that the Board should consider in rendering their
decision.
Ms. Kirk overruled the objection allowing Mr. Waetzman to testify.
Mr. Pastor asked Mr. Waetzman if he attended prior Hearings with regard to the AVS
Appeal, and Mr. Waetzman stated he did. Mr. Pastor asked if he is aware that the Zoning
Officer for
Home, and Mr. Waetzman stated he is so aware. Mr. Pastor asked if he is aware of the
Ordinance which addresses Nursing Homes, and Mr. Waetzman stated he is.
Mr. Pastor asked that he describe the Ordinance.
Mr. Schneider objected as it is a legal opinion. Mr. Toadvine stated he is describing the
Ordinance and is not rendering a legal opinion. Ms. Kirk overruled.
Mr. Waetzman noted Section 200-68A27 of the Lower Makefield Township Zoning
Ordinance defines a Nursing Home as a “skilled or intermediate care facility licensed by
the
individuals who by reason of advanced age, chronic illness, or infirmity, are unable to
care for themselves.” He stated it also classifies Personal Care Homes as Nursing
Homes. Mr. Waetzman stated he was present when Ms. Dean, the State Budget Analyst,
was called as a Witness by AVS, and spoke of the three proposed facilities as
Intermediate Care Facilities. He stated this is also listed in AVS’s Application.
Mr. Schneider objected noting this misstates the record as Ms. Dean referred to
Intermediate Care Facilities for the Mentally Retarded and also explained that there is a
difference between an Intermediate Care Facility and Intermediate Care Facilities for the
Mentally Retarded.
Ms. Kirk overruled and stated the testimony as provided to the Board from Transcripts of
the Court Reporter will speak for themselves.
Mr. Waetzman stated if he had been allowed to continue, he was going to inform the
Board that Ms. Dean testified that there was a difference under State and Federal
Regulations between this type of Intermediate Care and other types of Intermediate Care.
He stated the issue here is not what State and Federal regulations state, rather the issue is
what the Township…
Mr. Schneider objected. Mr. Toadvine stated it does not appear that he is answering a
question at this point. He stated he feels the question was to describe the provision of the
Zoning Ordinance, and he feels this was answered.
Mr. Waetzman stated he is trying to demonstrate how this particular Application very
specifically fits the Township’s Ordinance definition.
Mr. Schneider stated this is clearly a legal question and he objects.
Ms. Kirk sustained..
Ms. Kirk stated it is the Board’s determination to ascertain whether or not that provision
of the Code is applicable to the Application
by
Mr. Pastor asked if Mr. Waetzman listened to prior testimony from witnesses for AVS at
prior Hearings regarding use of the homes as Intermediate Care Facilities, and
Mr. Waetzman stated he did. Mr. Pastor asked Mr. Waetzman if he has looked at the
Ordinance and determined whether or not these facilities qualify as Intermediate Care
Facilities.
Mr. Schneider objected as this is a legal opinion.
Ms. Kirk sustained.
Mr. Pastor asked that Mr. Waetzman define the different between an Intermediate Care
Facility and an Intermediate Care Facility for the Mentally Retarded.
Mr. Schneider objected, noting Mr. Waetzman has not been qualified in this area and has
been qualified as a Planner and not a Regulatory Agent for the State.
Mr. Pastor was asked to rephrase. Mr. Pastor asked Mr. Waetzman if he heard the prior
testimony offered by the expert for AVS as to the difference between an Intermediate
Care Facility and an Intermediate Care Facility for the mentally retarded, and
Mr. Waetzman stated he did. He stated the basis for the difference was State and Federal
Regulations. Mr. Pastor asked Mr. Waetzman if he was aware of these Regulations, and
Mr. Waetzman stated he is not as intimately as the Witness was. Mr. Pastor asked if that
Witness refer to any instances of chronic care.
Mr. Schneider objected noting that he is asking this Witness to repeat for the Board the
testimony of a prior Witness which is already part of the record.
Mr. Pastor stated he is trying to lay a foundation.
Ms. Kirk allowed this to give Mr. Pastor latitude, but asked that they bring this matter
forward.
Mr. Waetzman stated there are two critical elements in the Township’s definition.
Ms. Kirk stated the question was did he hear the prior testimony, and Mr. Waetzman
stated he did.
Mr. Pastor asked if that testimony concerned chronic care, and Mr. Waetzman stated it
did. Mr. Pastor asked if the local Ordinance addresses chronic care, and Mr. Waetzman
stated it does not. He stated it is not defined in the local Ordinance. He stated the
Ordinance states that when a term is undefined …
Mr. Schneider objected as this is a legal opinion.
Ms. Kirk overruled.
Mr. Waetzman stated the Ordinance states in Section 12.008 that “words not specifically
defined by this Ordinance, shall be interpreted to have a standard dictionary meaning.”
Mr. Waetzman stated among the definitions of “chronic” found in Webster’s …
Mr. Schneider objected as this is a legal opinion.
Ms. Kirk overruled.
Mr. Waetzman stated among the definitions of “chronic” found in Webster’s Unabridged
Dictionary Second Edition are “having long had a disease, habit, weakness, or the like;
and of a disease having a long duration.” He stated the same Dictionary goes on to define
a “disease” as …
Mr. Schneider objected as this is a legal opinion.
Ms. Kirk overruled.
Mr. Waetzman stated a “disease” is “a disorder or incorrectly functioning organ, part,
structure, or system of the body resulting from the effect of genetic or developmental
errors, infection, poisons, nutritional deficiency or imbalance, toxicity, or unfavorable
environmental factors, illness, sickness, or ailment.” Mr. Waetzman stated clearly mental
retardation falls …
Mr. Schneider objected as this is legal opinion as he is going to testify whether or not
mental retardation meets that definition and this is a legal opinion.
Ms. Kirk sustained.
Mr. Pastor asked Mr. Waetzman as an expert planner, has he formed an opinion as to
whether a Nursing Home as defined in the Lower Makefield Township Ordinance is an
Intermediate Care Facility.
Mr. Schneider objected as this is a legal opinion.
Ms. Kirk overruled.
Mr. Waetzman stated he has formed an opinion. Mr. Pastor asked the opinion.
Mr. Schneider objected as this is a legal opinion.
Ms. Kirk overruled.
Mr. Waetzman stated that it is his opinion as a professional Planner with over thirty-three
years of experience that AVS’s
three proposed facilities in
meet the statutory definition in the Zoning Ordinance.
Mr. Schneider objected stated this is a legal opinion.
Ms. Kirk overruled.
Mr. Waetzman stated they meet the statutory definition of the Nursing Home in that they
are licensed by the
individuals who by reason of chronic illness or infirmity are not able to care for
themselves.
Mr. Schneider moved that this be stricken for lack of expertise and lack of foundation
because he has not shown himself to be an expert of chronic illness or infirmity.
Ms. Kirk overruled and it will remain in the record. She stated it is the Board’s decision
to place the appropriate weight on his testimony in his position as an expert Land Use
Planner in deciding the ultimate legal question before the Board.
Mr. Pastor asked if it is his expert opinion as a Planner, that the use of these homes would
qualify as Nursing Homes under the local Ordinances.
Mr. Schneider objected stating this was asked and answered and objected stating this is a
legal opinion.
Ms. Kirk overruled.
Mr. Waeztman stated this is his opinion.
Mr. Pastor asked Mr. Waetzman to explain the difference, based on his expertise, of the
definition of Nursing Home and that of a single-family home based upon the local
Ordinance.
Mr. Schneider objected as this is a legal opinion.
Ms. Kirk overruled.
Mr. Waetzman asked that he answer in his position as a Land Use Planner.
Mr. Waetzman stated as a Planner everyday he reads, writes, and interprets Zoning
Ordinances. He stated AVS has claimed that the Township permits single-family
dwellings in the Zoning Districts, and that a “family” is defined to include up to six
individuals plus servants who are without number. He stated they have argued that the
house family and the individuals who are additional caregivers to the six client
residents…
Mr. Schneider objected noting this is going beyond the scope of the question which was,
"Is there a difference between a Nursing Home and a single-family residence."
Mr. Waetzman was asked to limit his response to the question. Mr. Waetzman stated
they have heard testimony that AVS intends to provide care for six unrelated individuals
and that care would be provided …
Mr. Schneider objected noting he is not responding to the question.
Ms. Kirk asked Mr. Pastor to direct his witness to answer the question as presented.
Mr. Pastor asked Mr. Waetzman if he is aware of the position taken by AVS with regard
to how to consider servants.
Mr. Schneider objected adding that he has stated his own position and will re-state it in
closing argument or brief as the Board desires and does not feel Mr. Waetzman is in a
position to state AVS’s position.
Mr. Pastor stated he is asking him based on his personal experience having been present
at several Hearings and reviewing the Application whether he is familiar with AVS’s
position as to the status of servants. Mr. Waetzman stated he is.
Ms. Kirk overruled Mr. Schneider’s objection.
Mr. Waetzman stated he is familiar with AVS’s position. Mr. Pastor asked him the
position, and Mr. Waetzman stated the position is that the caregivers and the house
family constitute servants who are allowed without enumeration under the Township’s
definition of “family.” Mr. Pastor asked if he agrees with this opinion as an expert
Planner.
Mr. Schneider objected as this is legal opinion.
Ms. Kirk overruled.
Mr. Waetzman stated he does not. Mr. Pastor asked for an explanation as to why he
disagrees, and Mr. Waetzman stated the intent …
Mr. Schneider objected as this is legal opinion.
Ms. Kirk overruled.
Mr. Waetzman stated the intent of the Zoning Ordinance as enumerated in the
Community Development Objectives is to control intensity of use, to insure that there is
not over-crowing of the community, and to provide for appropriate regulations to insure
that residential neighborhoods are not overburdened unduly.
Mr. Pastor asked what AVS has applied for in their Application with regard to the
number of people in the home. Mr. Waetzman stated they seek accommodation for six
mentally-retarded individuals. He stated they seek to have the house further occupied by
a house family which may include a husband, wife, and up to two children and the duties
of the house parent were testified to also include supervision of other caregivers so it is a
situation where there will be six mentally-retarded individuals living in the house, a
house family that could contain four individuals, but clearly if they hire a house family
that has two children and the wife becomes pregnant, it would be discriminatory to
dismiss that person; and they could have a higher number. He stated there has also been
testimony that there will be an additional one to two caregivers per shift so potentially
they could have eleven to twelve persons occupying the house on a 24-hour a day basis.
Mr. Pastor asked if he has reviewed any Census Information
for
Mr. Waetzman stated he has. He stated in 2000 the U.S. Census found that the average…
Mr. Schneider objected since averages are irrelevant as to this case.
Mr. Pastor stated absent testimony as to each individual home in the Township, he feels
an average is a reasonable basis for the Board to consider when looking at this
Application.
Mr. Schneider stated an average is not a reasonable basis and a natural family in the
Township could have one person to sixteen people or more living in a house depending
on how fertile the couple was. He stated as to unrelated people, the limitation is to a
specific number of five people and it is their burden to prove their case; and if they wish
to prove their case adequately, they should bring a census tract to show what the number
of people in the houses are and not look at averages which are irrelevant.
Mr. Pastor stated the Board has indicated on many occasions that they will give due
weight to the testimony.
Ms. Kirk overruled the objection.
Mr. Waetzman stated the reason Planners use Census Data is that it provides a …
Mr. Schneider objected noting he has not been asked this and was asked whether he has
been shown an average on the Census and he is answering questions he has not been
asked.
Ms. Kirk stated the question is what information the Census provided to
Mr. Waetzman. Mr. Waetzman stated the Census found that there was an average
household size of 2.77 persons per household in the Township and 3.13 persons per
family.
Mr. Pastor asked if AVS’s proposal exceeds the average for
Mr. Schneider objected since it is irrelevant. He stated it does not matter whether it
exceeds the average for
whether it exceeds five and whether or not there should be a reasonable accommodation.
Mr. Pastor asked why the averages are important, and Mr. Waetzman stated the averages
provide an indication of the typical situation which the Zoning Ordinance is designed to
regulate. He stated whether it is 2.77 or 3.07, is immaterial; but whether it is 3 or 12 is
extremely significant because that is an indication of demand on the neighborhood that
the Zoning Ordinance is designed to protect and regulate.
Mr. Pastor asked if Mr. Waetzman is familiar with any testimony offered by AVS
regarding the living quarters for the mentally-retarded persons and for the families that
will be living in the homes. Mr. Waetzman stated he believes that the testimony was that
separate living quarters will be provided for the house family, that bedrooms would be
provide for the residents, and the caregivers would commute to the site. Mr. Pastor asked
if he would consider this to be creation of two dwelling units per home, as a Planner.
Mr. Schneider objected noting this is a legal opinion.
Ms. Kirk overruled.
Mr. Waetzman stated he would.
Mr. Pastor asked if Mr. Waetzman if he is familiar with the local Zoning Ordinance
defining a dwelling, and Mr. Waetzman stated he is. Mr. Pastor asked how the local
Zoning Ordinance defines “dwelling.” Mr. Waetzman stated “dwelling” is defined as a
building containing one or more dwelling units designed or used exclusively as living
quarters. Mr. Pastor asked if, based upon that definition, in Mr. Waetzman’s opinion as a
planner, would the individual buildings remain dwellings; and Mr. Waetzman stated yes.
Mr. Schneider objected as this is a legal opinion.
Ms. Kirk overruled.
Mr. Waetzman stated they would remain dwellings.
Mr. Pastor asked if there is a definition of “dwelling” in the Zoning Ordinance relevant to
this matter regarding the use of the rooms; and Mr. Waetzman stated according to the
Ordinance, a “dwelling unit” is “any room or group of rooms located within a dwelling
and forming a single habitable unit with facilities which are used or intended to be used
for living, sleeping, cooking, bathing, and eating by one family.” He added the definition
does not prohibit shared cooking, bathing, and eating facilities by each of two families.
He stated in his opinion…
Mr. Schneider objected as this is a legal opinion.
Ms. Kirk allowed Mr. Waetzman to finish, and he stated this is a situation where this is a
two-family dwelling. He stated there is one family consisting of the client/residents and
their caregivers and a second family, or dwelling unit, which is occupied by the host
family, or house family, which may or may not be employed in the care of the residents.
He stated there has been testimony that one of the spouses would be involved and
possibly both, but he stated a case could not be made that the children are caregivers or
servants to the family; therefore, they constitute a second living unit, a second dwelling
unit, in a Zoning District that only permits one dwelling unit per lot.
Mr. Pastor asked the Zoning classification for the area where the homes are located, and
Mr. Waetzman stated they are in the R-2 Residential District. Mr. Pastor asked if the R-2
allows for more than one dwelling unit per lot, and Mr. Waetzman stated it does not.
Mr. Pastor asked if the conditions described by AVS in their Application lead to a higher
level of activity and impact on the surrounding properties than would be deemed to be
one dwelling unit. Mr. Waetzman stated it would compared to a typical one-dwelling
unit. Mr. Pastor asked him to describe the impact based on his experience.
Mr. Waetzman stated there would be approximately four times the individuals living in
the dwelling as compared to a typical single-family situation. He stated there would be
more parking and additional amounts of solid waste produced. He stated the issue is not
reasonable accommodation – it is impact on the neighborhood. He stated there will be
noises associated with shift workers coming and leaving which would not be in a typical
single-family environment.
Ms. Kirk asked in his expertise as a professional planner, what he would define as a
typical family. Mr. Waetzman noted the Census definition for
he already testified to. He stated the definition for a nuclear family was a husband and
wife and a number of children but now there can be unrelated partners living together,
and unrelated individuals. He added typically the numbers of those living in dwellings
the size of the three properties in question tonight would be less than the numbers you
would expect to find under the conditions proposed by AVS.
Mr. Schneider moved to strike as this was unresponsive as the question was “what is a
typical family.”
Ms. Kirk overruled.
Ms. Kirk stated it is not unusual to find single-family units with the number of persons
similar to that proposed by AVS. Mr. Waetzman stated he would find it highly unusual
in a single-family neighborhood with relatively small houses of 2,000 to 2,500 square
feet to have up to twelve people in the building on a continual basis. He stated there are
families that have a lot of children, but these are extremely rarer and they would typically
seek larger quarters.
Mr. Pastor asked if Mr. Waetzman is familiar with the Bulk Standards for Nursing
Homes as set forth in the Lower Makefield Township Ordinance, and Mr. Waetzman
stated he is. He stated it requires a minimum lot area of half acre. In addition there is a
requirement for 300’ lot width, front yards and rear yards should be 100’ deep with two
50’ side yards. He stated the impervious coverage ratio must be complied with.
Mr. Pastor asked if Mr. Waetzman has investigated the three homes involved and do the
three properties comply with the Bulk Standards for Nursing Homes. Mr. Waetzman
stated he has investigated them and they would require a significant number of Variances
at each of the three properties.
Mr. Pastor asked if AVS could qualify for Variances from either the standards required
for Nursing Homes or from the definition of family.
Mr. Schneider objected as this is a legal opinion.
Ms. Kirk sustained.
Mr. Pastor asked Mr. Waetzman if he has formed an opinion as to why the Ordinances
require greater area and Bulk Standards for Nursing Homes. Mr. Waetzman stated this is
because Nursing Homes tend to have larger and more intense impact on the surrounding
area than do single-family homes. He stated even though there is less traffic in a Nursing
Home than in a Commercial establishment of comparable floor area, you tend to have
deliveries, medical personnel coming in and out, therapists, and a number of visitors to
the home visiting the residents. He
stated the home may also host
functions at which other members of the community are invited to attend or at least a
larger number of the families of the residents. He stated all of these provide impact on
the communities which are greater than are found in a single-family home. He stated
there are also added demands on solid waste collection.
Mr. Pastor noted the N. Crescent Boulevard property and asked Mr. Waetzman’s opinion
as to whether that site conforms to the Ordinance standards for a single-family dwelling.
Mr. Schneider objected.
Ms. Kirk overruled.
Mr. Toadvine asked if the question pertains to the property in its present condition, and
Mr. Pastor stated it does and they will move on from there. Mr. Schneider stated the
property in its present condition irrelevant, and Mr. Toadvine agreed.
Mr. Pastor asked if the proposed use for the property at N. Crescent Boulevard will
comply with the standards for a single-family dwelling unit in the R-2 District.
Mr. Schneider objected noting it is a legal opinion.
Ms. Kirk sustained.
Mr. Pastor noted the Ordinance standards in the R-2 District and asked for an explanation
of the differences for the property as proposed by AVS.
Mr. Schneider objected noting this is a legal opinion.
Ms. Kirk sustained. She stated it is the Board’s function to determine whether or not the
Application either complies with the standards set forth under the Zoning Ordinance or
qualifies under a different aspect of the Ordinance.
Mr. Pastor asked if there are any factual differences between the existing use of the
property on N. Crescent Boulevard and the proposed use of that property by AVS.
Mr. Schneider objected stated this is a legal opinion since he would have to apply the
Ordinance in order to determine whether or not the facts are relevant.
Mr. Pastor stated he has been qualified as an expert planner and is qualified to review the
Zoning Ordinance as to differences in the application of that Ordinance.
Ms. Kirk stated she will allow the testimony in his capacity as an expert Witness, and
the objection is overruled.
Mr. Waetzman stated they will have two dwelling units in a single-family home in a
Residential District. The permitted density will be exceeded in every case by a
significant amount. The impacts on the community created by inadequate parking will
have an impact on surrounding on-street parking. The additional increase in trash
collection has been testified to previously. He stated the setbacks for a single-family
home are not designed for the kind of impact that will be presented by these Applications.
He stated in his opinion a smaller number of residents could be accommodated, but what
is being proposed today is beyond
the scope anticipated by the
Township Zoning Ordinance.
Mr. Pastor asked the same question with regard to the
Mr. Schneider stated he has just noticed that Mr. Waetzman is reading from a piece of
paper rather than giving testimony. Mr. Waetzman stated he wrote the paper.
Ms. Kirk stated the Board does have the ability to determine credibility. Mr. Schneider
stated his objection is on the record. Mr. Waetzman stated he wrote the outline which
allows him to cite specific definitions and references rather than having to memorize
them or take the Board’s time to look them up in the Ordinance.
Mr. Pastor asked if Mr. Waetzman is familiar with the
street parking requirements for the use of a Nursing Home, and Mr. Waetzman stated he
is. He stated the Ordinance requires one off-street parking space for every three beds
plus one off-street parking space for each staff doctor. He stated AVS is proposing that
there will be six resident beds which would require two parking spaces plus beds for the
house family. He stated while there will be no staff doctors, there will be caregivers who
will be required to commute to their jobs. He stated there will also be occasions when
family members of the residents will visit. He stated he did read testimony that a
relatively small percentage of family members come to visit; but there will be some and
there will be
may also be specialists who come to the house to provide care and this is a situation
where there will be impacts. He stated there will also be a house van in addition to the
vehicles of the caregivers and other members of the house family which will be parking
on site to take the residents to medical appointments and other events.
Mr. Pastor asked Mr. Waetzman, based on his review of the Applications and the
testimony he has heard, has he formed an opinion as to how many parking spaces would
be required. Mr. Waetzman stated the Ordinance provides several applicable definitions.
He noted the definition for Nursing Home previously. He stated the Township’s
Ordinance also has a standard of two off-street parking spaces for individual dwelling
units; but requires that when there are joint uses on a property, both uses must provide
parking. This would therefore require at least four parking spaces. He stated there is
another standard in the Ordinance which may be applicable which is a standard for
“Other Permitted Uses” in the R-2 District. He stated there is a standard for permitted
uses that are not otherwise enumerated under the Section for Special Exceptions and
Conditional Uses. He stated that standard requires a minimum lot area of one acre and a
minimum number of parking spaces of 2.5 spaces per unit; and if you add this for the
residential care facility to the two spaces required for the house family, this would be 4.5
spaces which would be rounded to five spaces.
Mr. Pastor asked if Mr. Waetzman is familiar with the parking requirements for
corner of N. Crescent and Edgewood Roads. He stated he has also measured the site plan
and applied the Township’s Zoning standards, and in his opinion…
Mr. Schneider objected.
Mr. Toadvine asked that Mr. Pastor ask Mr. Waetzman how many off-street parking
spaces are provided at that location. Mr. Pastor asked how many off-street parking
spaces are provided on
Mr. Schneider objected noting there is no
there is a reason why he is getting
to
Oak and Yardley-Makefield as well. Mr. Toadvine stated he feels he is mis-identifying
the property. Mr. Waetzman stated it is N. Crescent. Mr. Pastor stated he recognizes this
but noted that N. Crescent borders
Mr. Pastor asked if there is off-street parking available on N. Crescent Boulevard.
Mr. Waetzman stated N. Crescent Boulevard is an extremely narrow street and any on-
street parking would interfere with … Mr. Toadvine stated he asked if there is any off-
street parking. Mr. Waetzman stated he feels the property could accommodate two
standard off-street parking spaces and one handicapped space. Mr. Toadvine asked if the
property has a garage, and Mr. Waetzman stated while it does, he does not know whether
or not the Applicant plans to convert that garage to living space as that testimony has not
been permitted. Ms. Kirk asked that he assume that it will not be so converted.
Mr. Waetzman stated the Township Ordinance prohibits stacking of spaces.
Mr. Schneider objected noting he is not responding to the question which was how many
spaces are available.
Ms. Kirk overruled.
Mr. Waetzman stated there is a two-car garage. He stated if those two parking spaces in
the garage are utilized, it would be impossible to provide any other parking in the
driveway without blocking the garage space. Mr. Toadvine stated if this is the case then
every home in
be in violation of the Ordinance. Mr. Waetzman stated this would be an interpretation for
the Board to make. Mr. Toadvine asked the question again, and Mr. Waetzman stated the
issue is if you have a family…
Mr. Schneider objected as he is not responding to the question.
Ms. Kirk sustained and asked Mr. Waetzman to answer the question as presented which
was whether every house in
in violation of the Ordinance, and Mr. Waetzman stated yes if the question is “a house”
as he could not testify to every house in the Township.
Mr. Pastor asked if there is any off-street parking
permitted on
Big
Mr. Pastor asked if Mr. Waetzman is aware whether on-street parking is allowed in front
of
be a highly hazardous situation.
Mr. Schneider objected as he is not responsive.
Ms. Kirk stated he did answer that it is not posted and he is offering his opinion.
The Objection was overruled.
Mr. Waetzman stated there is no sign that states that no parking is permitted but there is
also no shoulder on this extremely busy arterial highway. He stated if the Board chooses
to grant this Application, he would recommend that they request that PennDOT prohibit
parking on street.
Mr. Pastor asked if he has ever had need to investigate safety issues in his experience as a
Planner, regarding use of attics and basements as living space. Mr. Waetzman stated this
is a Code issue. Ms. Kirk stated they are not dealing with Code issues.
Mr. Pastor stated the following questions being directed to Mr. Waetzman are in his
capacity as a fact witness regarding the group home in close proximity to his own home.
Mr. Schneider objected as irrelevant unless it deals with group homes for the mentally-
retarded.
Ms. Kirk overruled.
Mr. Pastor asked Mr. Waetzman his address, and he stated he
lives at 2725
Lane in
proximity to his residence. Mr. Waetzman stated his home is located on a corner fronting
on
operated as a group home for developmentally-disabled individuals under License from
the
residents living there who are served by a staff of caregivers who are on two shifts.
Mr. Schneider objected noting this is going beyond the scope of the question.
Ms. Kirk sustained.
Mr. Pastor asked if he is familiar with the number of shifts of workers at the group home,
and Mr. Waetzman stated he is.
Mr. Schneider objected as irrelevant unless this is a group
home run by
School as what other providers do is not relevant to this proceeding.
Ms. Kirk overruled the objection and indicated that the Board has the ability to assess the
credibility of a Witness and the applicability of their testimony to the proceedings.
Mr. Pastor asked how many shifts of workers are there in a typical day.
Mr. Schneider objected due to lack of foundation.
Ms. Kirk overruled as this is based on his personal observation.
Mr. Waetzman stated he has confirmed this with the Director of the Divine Providence
Village which operates the group home.
Mr. Schneider objected due to hearsay.
Ms. Kirk overruled.
Mr. Waetzman stated there are three shifts. He stated the shifts operate between the
hours of
with three caregivers, and an
overnight shift from
There is no house family.
Mr. Pastor asked Mr. Waetzman if he has personally observed the number of vehicles
that come and go from the group home.
Mr. Schneider objected as irrelevant as based on his description it does not fit the
description before the Board as they are talking about a home with caregivers and two
employees per shift so it is not comparable.
Ms. Kirk sustained.
Mr. Pastor asked if Mr. Waetzman has any personal observations regarding adverse
impact of the group home on his particular property.
Mr. Schneider objected as irrelevant as it is not comparable. Mr. Pastor stated the reason
for the question is that the Board is being asked to determine the potential impact of a
group home on the residences in
witness who lives in close proximity to a group home and there may be some issues that
the Board can consider.
Ms. Kirk overruled based on his personal observation.
Mr. Waetzman stated he observes this on a daily basis. He stated the home has half the
number of patents proposed by AVS. It has fewer total people living there because even
though there is no house family, there are three caregivers per shift and only three
patients and the impact in terms of on-street parking are significant. Mr. Pastor asked the
type of impact the home has. Mr. Waetzman stated the group home, when it received
permission to operate, converted a two-care garage into additional living space as a
family room. He stated this left only a driveway which was wide enough to
accommodate two cars. However, the van that is assigned on a twenty-four hour basis to
this house typically parks in the center of the driveway and all of the caregivers park on
street. In addition, it is particularly a problem on
weekends at the
every evening at
neighborhood are trying to sleep.
Mr. Pastor asked if he has personal observations regarding activities at the change in
shifts at that home which affect his use and enjoyment of his property.
Mr. Schneider objected as there are differences between this home and what has been
described for AVS particularly due to the fact that there is no garage and that there is on
the street parking. He stated the testimony has been that there will be off-street parking
for AVS.
Mr. Pastor stated they are discussing a home that by testimony will have fewer residents
and fewer traffic than the proposed homes by AVS and they are establishing something
the Board may want to consider.
Ms. Kirk sustained. She stated she feels Mr. Waetzman’s previous answer sufficiently
addressed this.
Mr. Pastor asked if Mr. Waetzman has had any personal observations regarding refuse or
trash at the group home across the street from where he resides, and asked if it is more or
less than his own home. Mr. Waetzman stated it is substantially more at the group home.
Mr. Schneider objected due to relevance.
Ms. Kirk overruled.
Mr. Pastor asked that Mr. Waetzman provided further details on this.
Mr. Schneider objected due to relevance as he has not shown that his home is comparable
to any of the neighborhood homes.
Mr. Pastor asked how many residents live in his own, and Mr. Waetzman stated there are
two.
Ms. Kirk asked how often trash is collected from the group home across the street from
his home. Mr. Waetzman stated it is collected twice a week. Ms. Kirk asked how many
bags they put out, and Mr. Waetzman stated yesterday there were three trash cans filled
to the top with plastic bags. He stated there have been occasions in the past when the
plastic bags have overflowed the trash cans; and on rare occasions, the contents have
spilled onto the street and been ripped open by dogs. He stated there are diapers as many
of the patients are incontinent. There are also rubber gloves that handle bodily fluids, and
they are exposed to the neighborhood children. Ms. Kirk asked how often they put out
three cans, and Mr. Waetzman stated this is a typical day and sometimes they exceed this.
Mr. Caiola asked if there have ever been health-related issues with the Health Department
coming out or complaints about overflowing trash. He asked if the trash is picked up by
the Municipality or a private hauler. Mr. Waetzman stated it is picked up by the
Municipality, but he has not contacted the Board of Health to see if they have had
specific complaints.
Mr. Pastor had no further questions. Mr. Schneider indicated that he does have cross-
examination. A short recess was taken at this time.
The meeting was reconvened at
Mr. Schneider stated Mr. Waetzman is present because he has a personal animus against
the group home across the street from his home. Mr. Waetzman stated this is incorrect.
Mr. Schneider asked if he opposed the group home, and Mr. Waetzman stated he did
not. He stated he consciously did not because he felt there was a moral and professional
obligation to permit this use with reasonable restrictions in a Residential neighborhood.
He added it is when the impacts exceed the limit permitted by the Zoning Ordinance that
he feels the reasonable accommodation standard is not met. He stated he did not attend
the Hearing on the matter and trusted the Township to impose adequate safeguards.
Mr. Schneider asked Mr. Waetzman if he has complained to anyone about the problems,
and Mr. Waetzman stated he has not. Mr. Schneider asked if he would like to have
someone on site so that he could complain to about the parking so that the problem could
be taken care of. Mr. Waetzman stated the reason he has not complained is because as a
professional Planner, he feels there is an obligation to provide housing for people with
disabilities. He stated there was one occasion when he had a serious problem because
there was one caregiver who was constantly speaking loudly and playing a radio loudly at
times when people were trying to sleep; and he did call the Director of the operating
agency, and she was responsive and that situation stopped. Mr. Schneider asked if he
would agree that it would be good to have a Supervisor on the scene who could be just as
responsive to discuss problems with. Mr. Waetzman agreed with regard to a House
Manager, but stated a House Family creates a …
Mr. Schneider asked that this be stricken as he only asked about a House Manager.
Ms. Kirk advised Mr. Waetzman to just answer the questions.
Mr. Schneider asked if Mr. Waetzman heard Mr. Champ’s testimony that one of the
purposes of the House Manager is to be able to deal with problems with neighbors, and
Mr. Waetzman agreed. Mr. Schneider asked Mr. Waetzman if he feels this is a good
idea; and Mr. Waetzman stated Mr. Schneider is putting words in his mouth.
Mr. Toadvine stated this is cross-examination. Mr. Schneider again asked if
Mr. Waetzman thinks this is a good idea, noting he could explain his answer after he
answers. Mr. Waetzman stated the answer is yes, but only when the impacts are in
accordance with Zoning and do not overburden the neighborhood.
Mr. Schneider noted the testimony regarding the dog going through the garbage across
the street from Mr. Waetzman’s home, and asked if this dog was living in that residence.
Mr. Waetzman stated there are no dogs in that residence to his knowledge.
Mr. Schneider asked if he called anyone to complain about the dog, and Mr. Waetzman
stated he did not call about the dog as it is not something that happens on a daily basis
and happens occasionally. He stated when there are impacts on his community whether
they are from the group home or other inappropriate uses on the block, he has complained
to the Township Commissioner. Mr. Schneider stated the group home is not the only
one on the block which has impacts about which he has complained, and
Mr. Waetzman stated there was a neighbor at the end of the block who was operating a
used car agency from his property, and he did complain about this to the Township
Commissioner and that use ceased immediately.
Mr. Schneider asked if Mr. Waetzman has ever observed any AVS group homes, and
Mr. Waetzman stated he has not.
Mr. Schneider asked Mr. Waetzman if he is being paid to be present this evening, and
Mr. Waetzman stated he is at a reduced rate. Mr. Schneider asked the rate he is being
paid.
Mr. Pastor stated this is irrelevant.
Mr. Schneider stated it goes to credibility. Mr. Pastor stated the fact that he is being paid
has been asked and answered and the rate is an irrelevant issue for the Board.
Mr. Schneider stated the rate goes to credibility.
Ms. Kirk allowed the question, and the objection was overruled.
Mr. Waetzman stated when he was originally contacted by the group of neighbors who
retained him, he gave them his standard rate which is $175 an hour. They began to have
financial problems due to the extraordinary length of the proceedings, and he reduced it
to $160 an hour and finally was asked to stop attending the meetings because the costs
were becoming prohibitive. He was asked to consider attending this evening’s meeting at
a flat rate of $600, which he agreed to do because he felt it was an unfair burden on the
community. Mr. Schneider asked how much he has charged to date beyond the $600, and
Mr. Waetzman stated he would be unable to provide an exact figure. He stated it was a
substantial amount. Mr. Schneider asked how many hours he has put in, and
Mr. Waetzman stated it was a substantial amount as he was retained in May and attended
Hearings through the end of July, and put in a lot of time preparing his outline,
researching the matter, investigating various aspects. In that period he put in a significant
amount of hours although he cannot provide an exact figure under oath. He stated since
the Hearings have progressed, at the request of his client, he has dramatically scaled back
his involvement until tonight’s Hearing.
Mr. Schneider noted the N. Crescent property and Mr. Waetzman’s comments about
parking. He asked if he observed anyone parking on N. Crescent, and Mr. Waetzman
stated he visited N. Crescent on two separate occasions on those two occasions there was
no on-street parking other than himself. He stated he did take a wheel with him and
measured the cartway, and he believes it was 18’ to 20’ wide and cars had to go around
his parked vehicle into the oncoming lane in order to pass.
Mr. Schneider asked if five college students lived in any of these three properties, based
on Mr. Waetzman’s expertise, would he agree that they would constitute a family under
the Ordinance, and Mr. Waetzman agreed. Mr. Schneider asked if they could each have
a vehicle and still be in compliance with the Ordinance based on his expertise.
Mr. Pastor asked if he means living arrangements or some other aspect when he refers to
compliance with the Ordinance.
Mr. Schneider stated this is based on his testimony with regard to parking.
Mr. Waetzman stated he does not feel they would be in compliance. He added his
expertise is the parking standard in the Ordinance. He stated if there are an adequate
parking spaces to meet the Ordinance, then it would be in compliance. He stated he
could not testify that five college students would have five vehicles. Mr. Schneider stated
he did not ask this, and asked that the answer be stricken from the record. Mr. Schneider
stated he wants Mr. Waetzman to assume that each of the five students has a vehicle, and
if they have a vehicle, under the Ordinance, can they park there. Mr. Waetzman stated
under the Ordinance unless there are five parking spaces, they would be exceeding the
number of permitted spaces required by the Ordinance.
Ms. Kirk asked Mr. Waetzman under the Ordinance for a property being used as a single-
family dwelling, what is his opinion as to the number of parking spaces. Mr. Waetzman
stated there are two off-street parking spaces required for a single-family dwelling.
Mr. Schneider stated those are required. He stated the question is would more spaces be
permitted. He noted there is a difference between required and permitted, and asked
Mr. Waetzman if this is correct.
Mr. Pastor stated this has been asked and answered. Mr. Schneider stated he has not
answered this. He stated the question is whether there is a difference between required
and permitted. Mr. Waetzman stated there is a difference, and the problem arises when
the parking is provided in such a way that you may physically be able to park five
vehicles in a driveway, but if you
are forced to back out onto
which is a busy arterial highway with no shoulder, in his opinion as a professional
planner, you have created a problem. He stated if you can provide additional stacking for
vehicles in a driveway, in his opinion when he is reviewing a Plan for a client
Municipality, he always tries to make sure that there is a place to turn the car around so
you do not have to back out onto a busy street. He stated he also has observed
significant problems created by unnecessary on-street parking where there is inadequate
spaces. He stated the problem with the hypothetical question is that it does not provide
him with any guidance as to the physical parameters of the property they are discussing.
Mr. Schneider stated other than the “yes”, he wants the rest stricken as non-responsive.
Mr. Schneider stated under the Ordinance can the five college students with their five
hypothetical cars, park on the property.
Mr. Pastor objected. He stated they have not put into the record as part of the question,
the size of the home, the size of the lot.
Mr. Toadvine stated this does not matter as there are two off-street parking spaces
required under the Ordinance. He stated the question is can they have more than two and
not be in violation. Mr. Waetzman stated the answer is yes, but perhaps not safely.
Mr. Schneider asked if Mr. Waetzman was present this evening when Mr. DiRienzo
testified, and Mr. Waetzman stated he was. Mr. Schneider asked if he has any reason to
disbelieve Mr. DiRienzo’s testimony, and Mr. Waetzman stated he has no reason to
believe or disbelieve it. Mr. Schneider asked Mr. Waetzman in his everyday experience,
has he observed what Mr. DiRienzo testified to with four to five cars parked in the
driveway in Suburban neighborhoods, and Mr. Waetzman stated he has not.
Mr. Schneider stated Mr. Waetzman testified about servants and House Managers and
Mr. Waetzman agreed. Mr. Schneider stated Mr. Waetzman also testified that he had
read the job description of a House Manager, and Mr. Waetzman stated he listened to it.
Mr. Schneider asked if there is any difference between what a servant does and what a
House Manager does, and Mr. Waetzman stated there is. Mr. Waetzman stated he heard
Mr. Champ testify that the House Manager is encouraged to have a family and that family
may include a spouse and up to two children and this is a separate dwelling unit.
Mr. Schneider asked that this be stricken as non-responsive. Mr. Schneider asked if he
just considers the House Manager,
and if
of encouraging families and provided only a House Manager, is there a difference
between what the House Manager does and what a servant does.
Mr. Pastor objected.
He asked if
to now say that the House Manager may not have a family. Mr. Schneider stated he does
not have to…
Mr. Toadvine stated this is a hypothetical question and asked that he answer the question.
Mr. Waetzman asked if he is being asked to make a distinction between a single
individual living 24 hours a day and supervising the care of the residents and a household
servant. He stated he feels that in this day and age the term “household servant” is
typically intended to refer to a housekeeper, nanny, etc. – someone who lives as an
integral part of the family. He stated the House Manager may serve a care giving
function and may provide some supervisory support but he feels there is a difference.
Mr. Schneider referred back to his five college students and turned them into five retired
women and stated each of them could have a servant in the house under the Ordinance.
Mr. Waetzman stated while they could, he does not feel they would be likely to.
Mr. Schneider stated this was not the question. Ms. Kirk stated he has answered the
question and asked that Mr. Schneider proceed. Mr. Schneider asked if they could each
have two servants in the house, and Mr. Waetzman stated this is not likely.
Mr. Schneider stated the question is could they under the Ordinance, and Mr. Waetzman
stated the Ordinance does not prohibit this, but practically he does not feel it is reasonable
to expect that.
Mr. Schneider stated Mr. Waetzman discussed the impact of Nursing Homes and their
floor area and made a distinction between Nursing Homes and retail saying that while
they would have similar floor area, they are not providing the same function.
Mr. Waetzman stated he does not feel this is what he stated. He stated he had indicated
that a comparable floor for a Nursing Home and an office or retail use, there would be
more intensity. He stated he did not say that a Nursing Home and specifically the use
proposed by AVS would be the same size as a shopping center. Mr. Schneider stated
typically Nursing Homes are much larger than these homes, and Mr. Waetzman agreed.
Mr. Schneider stated the idea behind planning around Nursing Homes is to avoid the kind
of density problems that arise because of such a large facility and use of the facility.
Mr. Waetzman stated it is similar to the problems that arise from have two dwelling units
in a single-family District.
Mr. Schneider stated Mr. Waetzman referred to the definition of a dwelling as being
different from the definition of dwelling unit, and Mr. Waetzman stated this is the way
the Ordinance is written. Mr. Schneider stated the Ordinance allows a dwelling on a lot,
and Mr. Waetzman stated it allows one dwelling unit per lot in the R-2 District.
Mr. Schneider stated he testified that the key distinction between one and two dwellings
was cooking facilities, and Mr. Waetzman stated it is one of several. Mr. Schneider
stated in these houses at this point, the testimony is there is only one cooking facility and
the house parents would cook and eat with the residents. Mr. Waetzman stated he did not
attend every Hearing, but has read notes as to what was testified. He stated he
understood that there was testimony that at least one of the homes had a separate kitchen
that would be used by the house family and that AVS contended that it existed prior to
their acquisition of the property. He stated the definition does not prohibit the common
use of cooking and eating facilities by two families or households. He stated it is one of
the characteristics. He stated in his opinion the family of the House Manager constitutes
a separate household from the household of the clients and their care givers.
Mr. Schneider stated he is only discussing dwelling units and not households. He asked
without two kitchens, how can there be two dwelling units.
Mr. Toadvine stated the definition of a dwelling unit is as follows “any room or group of
rooms located within a dwelling and forming a single, habitable unit with facilities which
are used or intended to be used for living, sleeping, cooking, bathing, and eating by one
family.”
Mr. Waetzman stated that definition does not prohibit the shared use of any of those
facilities by more than one family. He stated it is common to have a situation,
particularly with the elderly, where there are shared living arrangements, where the
individuals would maintain separate residences within a larger dwelling and share
common cooking facilities.
Mr. Schneider stated older parents could then reside with their children, and
Mr. Waetzman stated there would be a distinction as to whether or not there are separate
facilities provided for those parents. He stated his understanding of the one Hearing he
did attend was that Mr. Champ indicated that here would be a separate area of the home
reserved exclusively for the House Parents and he recalls him testifying that they needed
some private space in which to be by themselves. That private space would be a separate
dwelling unit.
Mr. Schneider stated his question is going back to the example given by Mr. Waetzman
and if two parents retire and decide to move in with their children and the parents live
upstairs and the children live downstairs, would these be two separate dwelling units, and
Mr. Waetzman stated it would depend entirely as to whether they function as separate
living units. He stated if they operate and function as a single household, then it is a
single dwelling unit. If you have two separate and distinct areas, then you have two
dwelling units. Mr. Schneider asked that he assume that there are parents in one area of
the house and one area for the children, and asked if this would be two separate dwelling
units, and Mr. Waetzman stated in the instances that he is aware of, they continue to
function as a household unit. Mr. Schneider stated his question is if they did not continue
to function as a household unit and were two separate living areas in the house, are they
two separate dwelling units. Mr. Waetzman stated it would depend on how many of
those separate areas meet the definition of a dwelling unit and how separate they are. He
stated he knows of many instances where parents or in-laws move in with their married
children but they continue to function as part of the household.
Mr. Pastor stated there are three homes that are the subject of the Appeal and they should
deal with the facts of the three homes as opposed to dealing with hypotheticals.
Ms. Kirk overruled and stated a hypothetical has been presented which requires a yes or
no answer. She asked if he would consider those two separate dwelling units, and
Mr. Waetzman stated it would depend on the specific criteria. He stated there are a
number of criteria laid out in the Township Ordinance for defining a dwelling unit. He
stated if the majority of those functions occur independently, then they are two separate
dwelling units. If they do not occur independently and everyone lives together as a
family, even if they retire to their own bedrooms at night, then he would agree it was a
single family. He noted this was not the testimony he heard.
Mr. Schneider stated Mr. Waetzman statistics from the Census indicated it was 2.77
people per household in
Mr. Waetzman agreed. Mr. Schneider noted the definition of family under the Census is
not the same as that of the Ordinance, and Mr. Waetzman agreed. Mr. Schneider asked if
Mr. Waetzman ever met a family made up of 3.13 people. There was no response.
Mr. Schneider stated in order to get to 3.13 people, they took an average, and
Mr. Waetzman stated this was his testimony. Mr. Schneider stated under the Ordinance,
the definition of family could consist of one person, and Mr. Waetzman agreed that most
Planners and Census officials would agree that is a single-person household.
Mr. Schneider asked if under the Ordinance, a family could consist of one person, and
Mr. Waetzman agreed. Mr. Schneider stated in order to get to 3.13, there would have to
be some families that there are at least more than five people, and Mr. Waetzman agreed.
Mr. Schneider asked if there is anything in the Ordinance that prohibits a family being
larger than five provided they are biologically related, and Mr. Waetzman stated there is
not. Mr. Schneider asked if there could be families in the area with ten or more people,
and Mr. Waetzman agreed. Mr. Schneider asked if he has looked to see if there are
families of this size in these neighborhoods, and Mr. Waetzman stated he did not.
Mr. Schneider stated Mr. Waetzman testified that the density problems, traffic problem,
and parking problems could be caused by therapists coming to the homes, and
Mr. Waetzman stated he had said visitors of various types as there may be therapists,
family visitors, deliveries, etc. Mr. Schneider asked if Mr. Waetzman was present when
Mr. Champ testified that there would be no deliveries, and Mr. Waetzman stated he did
not hear the testimony although he knows that at the group home across from his home,
the caregivers go to the…
Mr. Schneider moved to strike as it is not responsive.
Mr. Toadvine asked that he respond to the question, and Mr. Waetzman stated he did not
hear that testimony.
Mr. Schneider asked if he heard Mr. Champ’s testimony that there would not be
therapists coming to the homes, and Mr. Waetzman stated he did not hear that testimony.
Mr. Schneider asked if he heard Mr. Champ’s testimony that there would not be doctors
coming to the homes, and Mr. Waetzman stated he did not hear that testimony.
Mr. Schneider asked if he heard Mr. Champ’s testimony that there will be few visitors
because of the nature of the family relationships, and Mr. Waetzman stated he read a
summary of the meeting at which he made that comment and he generally agrees with
that; however, he also knows from his fact witness basis that there are parties at which
there are a number of visitors. Mr. Schneider asked if there are parties at
Mr. Waetzman’s home where there are a number of visitors, and Mr. Waetzman agreed
that there are.
Mr. Schneider stated he had no further questions.
Ms. McGrath stated Mr. Waetzman testified as a fact witness that there were problems
with shift changes at the home across the street from his home and she asked for further
explanation. Mr. Waetzman stated there are a number of instances where shift workers
are speaking loudly in the street; and sometimes rather than driving to the home, they will
be dropped off and picked up and the person picking them up will sound the horn rather
than go into the house. He stated there have also been instances where alarms have been
set off by the individuals because they have miswired their car. He stated there are also
instances where people have caused congestion in the neighborhood by excessive on-
street parking on a relatively narrow residential street.
Mr. Pastor asked if Mr. Waetzman is normally paid for his testimony, and Mr. Waetzman
stated he is. Mr. Pastor asked if it is common practice for professional Planners to be
paid for their testimony, and Mr. Waetzman stated it is. Mr. Pastor asked if the rate he
normally charged comparable to that charged by others with his experience, and
Mr. Waetzman stated it is.
Ms. Kirk asked if there were any questions by those having Party Status with questions
limited to that which has been testified to.
Mr. F. William Natale,
It was noted he does have Party Status. Mr. Natale asked Mr. Waetzman if he had to
agree when he became a Planner that all of his testimony would be ethical.
Mr. Waetzman stated he did not specifically when he became a Planner, but when he was
a member of the American Institute of Certified Planners he agreed to abide by the Code
of Ethics of that organization which requires that his testimony shall always place the
public interest first.
Mr. Natale asked if he only received $1 for his testimony, would it be legal for him to do
so, and Mr. Waetzman agreed. Mr. Natale asked the responsibility of a Planner before
Zoning and Planning Boards when he represents them. Ms. Kirk stated he testified as an
expert for Land Use Planning. Mr. Natale asked Mr. Waetzman if he prepares the
documentation and items for Planning Boards that they put into legal terminology and
then vote on. Mr. Waetzman stated he does and often represents Municipal Planning
Commissions and Zoning Board and writes Ordinances and Comprehensive Plans and
reviews Development Applications. Mr. Natale asked Mr. Waetzman if when he writes
Ordinances, does the Solicitor require that he state that what he has prepared is not
arbitrary or capricious, and Mr. Waetzman stated this is assumed. Mr. Natale asked if it
is required that he do this, and Mr. Waetzman stated it is part of his mandate as a Planner
but usually he is not challenged on that issue. He stated he takes an Oath as a member of
the American Institute of Certified Planners and many of the Municipalities require him
to take an Oath that requires that he not operate in an arbitrary or capricious manner.
Mr. Natale asked when he sets out the Zoning and Planning issues before the Boards he
represents, would he not try to phase out someone from an area because he did not want
them there, and Mr. Waetzman stated he would not. He stated he felt that he clearly
stated that he believes there is a legitimate right, within reason, to provide for this use in a
Residential neighborhood. He stated his concern is that the impacts of this particular
Application may exceed the guidelines envisioned by the Zoning Ordinance
Mr. Natale asked if a “Mother/Daughter” requires a Use Variance and must go before a
Planning and Zoning Board. Mr. Natale stated a “Mother/Daughter” would be a mother
and father moving into a home and set up an apartment for them, and this would require
that they come before the Board for a Use Variance. Mr. Waetzman asked if that
apartment would require separate facilities. Mr. Natale stated it would be a
“Mother/Daughter.” Ms. Kirk stated this is outside of the scope of what Mr. Waetzman
has testified to. Mr. Natale stated this understanding is that the “Mother/Daughter”
residence requires that in a Residential Zone, they would need to have a Variance.
Mr. Toadvine stated it does not unless there are separate cooking facilities.
Mr. Pastor stated he would like to call his next witness who lives next to the property on
the corner of Esther and Big Oak and he will provide testimony on his own observations
as to the size of households in the immediate area. He stated this has been an issue
tonight presented by both sides.
Mr. Schneider objected due to relevance.
Mr. Pastor stated there was testimony from the Planner as to the average size of the
households in this Township. There were objections raised and questions asked that the
households could be much larger in size. Mr. Pastor stated he feels the size of the
households in the immediate area of the property is a fact that the Board should consider
in looking at this Application.
Mr. Schneider objected due to relevance.
Ms. Kirk sustained.
Mr. Pastor stated he has a request to recall a Witness put on by AVS, Mr. DiRienzo, for
the purpose of asking cross-examination questions. Ms. Kirk stated these should have
been asked during cross-examination.
Mr. Pastor called Mrs. DiRienzo as a witness. Ms. Kirk asked for basis.
Mr. Pastor stated she is the mother of one of the Plaintiffs in the lawsuit, and he would
like to ask if she has any relationship to Mr. DiRienzo who testified this evening
regarding his observations of driving in the Township.
Mr. Schneider stated the lawsuit is irrelevant and he could ask these questions of
Mr. DiRienzo. Mr. Pastor stated he would then like to put Mr. DiRienzo on the stand if
Mr. Schneider is offering.
Ms. Kirk asked why Mr. Pastor wants Mrs. DiRienzo on the stand, and Mr. Pastor stated
he asked to question Mr. DiRienzo and they refused. Ms. Kirk advised Mr. Pastor he had
an opportunity to cross-examine him when he was offered as a Witness by Mr. Schneider.
Mr. Pastor stated he has been denied the right to have Mr. DiRienzo back on the stand in
order to ask cross-examination questions based upon Mr. Schneider’s cross-examination
of Mr. Waetzman. He has two questions of Mr. DiRienzo and if he is denied, he would
like to put Mrs. DiRienzo on to ask her few questions. Ms. Kirk asked what her
testimony would consist of, and Mr. Pastor stated there was a question earlier regarding
potential conflict of interest by the Planner being paid for his testimony, and he would
like the Board to understand that the testimony of Mr. DiRienzo may be tainted because
he is a relation to one of the plaintiffs in the lawsuit.
Mr. Toadvine stated the Zoning Hearing Board understands that all professionals are
paid.
Mr. Pastor indicated he had no further Witnesses this evening. Ms. McGrath stated they
do not have any Witnesses this evening. Ms. Kirk stated Mr. Schneider is reserving the
ability to call Ms. Frick at a later meeting as she was not available this evening.
Ms. Kirk moved, Mr. Caiola seconded and it was unanimously carried to adjourn the
Hearing and that it next be scheduled for
Applications for the next Board meeting scheduled for
Ms. Kirk asked that Mr. Schneider and Mr. Pastor have any other Witnesses available for
that evening. She asked Ms. McGrath how many Witnesses the Township has, and she
stated she did not. Ms. Kirk asked that Mr. Koopman be advised that he should have his
Witnesses available to testify so that hopefully they can conclude this matter on
There being no further business, Mr. Malinowski moved, Mr.
Bamburak seconded and it was unanimously carried to adjourn the meeting at
Respectfully Submitted,
David Malinowski, Secretary