ZONING HEARING BOARD
MINUTES – JULY 19, 2005
The regular meeting of the Zoning Hearing Board of the
Zoning Hearing Board: Barbara Kirk, Chairman
David Malinowski, Secretary
Paul Bamburak, Member
Paul Caiola, Alternate Member
Others: Nancy Frick, Director Zoning Inspection and Planning
Richard Habgood, Code Enforcement Officer
Jennifer McGrath, Township Solicitor
James Majewski, Township Engineer (left meeting in
Charles Marte, Zoning Hearing Board Solicitor
Steve Santarsiero, Supervisor Liaison
Absent: Rudolph Mayrhofer, Zoning Hearing Board Vice Chair
Paul Kim, Zoning Hearing Board Alternate Member
APPEAL #05-1315 – DAN AND SHEILA ADAMCZYK
Mr. and Mrs. Adamczyk along with Mr. Jeff Renneisen, from Anthony Sylvan Pools,
were sworn in. Ms. Kirk stated this matter had been continued from the July 5, 2005
meeting. Ms. Kirk reminded that they had previously marked the Application as Exhibit
A-1. Exhibit A-2 had been marked which was the Zoning Permit Plan submitted with the
Application. The Board had marked as Exhibit B-1 a memo from the Assistant to the
Township engineer to the Code Enforcement Officer dealing with the issue of the
calculation of the impervious surface coverage. When they were previously before the
Board they were asking for an increase up to 31% from the existing 24%; however, there
had been questions raised as to their calculations, and it appeared that they were actually
asking for 32.8% increase. The matter had been continued so that they could go back and
discuss the matter with the individual who had done the Plan to see if there was a way to
reduce some of the requested impervious surface.
July 19, 2005 Zoning Hearing Board – page 2 of 35
Mr. Renneisen stated they did revise the topographical survey, and the new Plan dated
6/30/05 was marked as Exhibit A-3. He noted that on this they had reduced the
walkway from the house to the pool as well as from the driveway to the pool area which
reduced the total impervious percentage they are now requesting to 30.8%.
Mr. Renneisen stated the maximum allowed for their lot is 28% but in order to stay at this
level after, they could only have 291 square feet of decking and on a pool of this size 291
square feet would not give them even a three foot walkway around the pool. He stated
they would need 768 square feet to have an adequate decking and patio.
Ms. Kirk stated on Exhibit A-3, they broke out separately the concrete steps and the
stepping stones and she asked if these were included in the original Plan. Mr. Renneisen
stated they were not. He stated the original Plan dated 3/28/05 had the entire proposed
decking at 900 square feet which included the walkways from the house and from the
driveway. Ms. Kirk stated it appears they have broken out the concrete step and stepping
stones from the proposed decking on the Revised Plan, and Mr. Renneisen agreed.
Ms. Kirk stated the proposed decking has actually only been reduced from 900 square
feet to 868 square feet. Mr. Renneisen stated the original suggestion was to entirely
remove the walkways from the house; however, this would make it difficult to get to the
pool from the house based on the elevation. He stated they do have to step down out of
the house, and they would need steps from there up to the pool area. They did try to
reduce the overall coverage from the house to the pool to just a concrete step into the
stepping stone pathway. They wanted to maintain access to the back yard to the pool.
Ms. Kirk asked if they propose a wooden deck area adjacent to the concrete stepping
stones, and Mr. Renneisen stated it would be concrete. Ms. Kirk asked if they could have
a wood deck rather than concrete because a wood deck would not count as impervious
surface as opposed to concrete. This would be 36 square feet.
Ms. Kirk stated the Zoning Hearing Board was also concerned with the sitting area in the
upper right and asked the distance at the widest point of that concrete area.
Mr. Renneisen estimated it to be between sixteen to eighteen feet off the back of the
coping to the right. Ms. Kirk stated this is a significant distance if they are trying to do a
three foot walkway and asked if they could reduce this. Mr. Renneisen stated they could
make it four feet coming back which would still be a comfortable sitting area. This
would be between forty to eighty square feet. He would have to calculate this on the
computer. Ms. Kirk stated if they do this and substitute a wooden deck, it would reduce
it from seventy-six to one hundred sixteen square feet. Mr. Majewski was asked for a
reasonable number of they shaved off four feet from the sitting area, and Mr. Majewski
stated it would be almost one hundred square feet.
Mr. Majewski stated there are discrepancies with the existing impervious surface
calculations, and he and Mr. Habgood concur that the existing impervious surface ratio is
actually 26.2% and not the 24.5% shown on the Plan. He stated the discrepancy is in the
July 19, 2005 Zoning Hearing Board – page 3 of 35
porch that is not included in the front of the house and the driveway calculations. He
stated the driveway calculation is approximately 1300 square feet, and they have shown it
as 1065 square feet. The Township’s calculation was based on the dimensions shown on
the Plan and by scale from the Plan. Ms. Kirk asked Mr. Majewski if the porch area is
included in the calculations, and Mr. Majewski stated it is not. Ms. Kirk asked
Mr. Renneisen if this would have been included in their calculation of the front walk, but
Mr. Renneisen was not certain if his surveyor included the porch on the house calculation
or in the front walk. Mr. Majewski stated he does not believe it was included in the
calculation. He stated although there are some minor discrepancies in their favor as well,
they are still at 26.2% existing and not 24.5% as they have indicated.
Mr. Bamburak asked if their engineer’s worksheets could be provided so they could see
how the numbers were calculated compared to the Township calculations, and
Mr. Renneisen agreed to provide these. Ms. Kirk suggested that they also discuss these
calculations with the Township engineer’s office or Mr. Habgood to try to see where the
Ms. McGrath asked the proposed impervious under the new Plan, and Mr. Majewski
stated he feels it will be 32.5%. Mr. Habgood was questioned as to the calculation he
arrived at for the new Plan, and Mr. Habgood stated it was 32.5% impervious surface.
Ms. McGrath asked what calculations were done to get to that number, and Mr. Habgood
stated he calculated the existing at 26.2% and he added to that what they are proposing to
get to 32.5%.
Ms. Kirk stated at this point there are too many unanswered questions. Mr. Caiola stated
there are also too many discrepancies at this point to make a decision and the proposed
32.5% is still substantial. Ms. McGrath stated the Township would be opposed to 32.5%
impervious surface. Ms. Kirk stated if the calculations can be done to try to address the
discrepancies as noted by the Township; and if they look into removing some additional
impervious surface as discussed, they would then have a more definitive number as to
what they are looking for.
Mr. Renneisen asked if there is a percentage that they should work toward. Ms. Kirk
stated ideally it would be 28%, but they are looking for the minimal amount as much as
possible. The Applicants were acceptable to continuing the matter until August 2, 2005.
Ms. Kirk moved, Mr. Caiola seconded and it was unanimously carried to continue the
matter to August 2, 2005.
July 19, 2005 Zoning Hearing Board – page 4 of 35
APPEAL #05-1319 – TRISTRAM P. HEINZ
Mr. Tristram Heinz was sworn in. Mr. Michael Boucher was also present and was sworn
in at this time. The Application dated 6/10/05 was marked as Exhibit A-1. Attached to
this which is the basis for the Appeal was a two-page letter directed to the Applicant by
Ms. Frick, the Director of Zoning Inspections and Planning dated 6/2/05; and this was
marked as Exhibit A-2.
Ms. McGrath stated the Township is opposing the Application and supporting the
Mr. Henry VanBlunk stated he is present representing Michael and Tammy Boucher, and
they are requesting Party Status in this matter. Ms. Kirk stated a letter was submitted to
Ms. Frick dated 7/19/05 by Mr. VanBlunk indicating his representation of Michael and
Tammy Boucher and requesting Party Status. This was marked as Exhibit O-1.
Mr. Heinz stated he is seeking relief from the enforcement notice by the Township and as
such asked a procedural question with respect to a procedure and enforcement of a
Township enforcement notice and asked if it is the Township’s burden to proceed first to
show that there is actually a violation as cited in the enforcement notice. Ms. Kirk stated
she presumes that the Appeal is a Cease and Desist Order issued by the Township Zoning
Officer regarding the Township Zoning Ordinance. Mr. Heinz stated this is not the case.
He stated the case is that the Appeal is from a determination by the Zoning Officer that
he must file a new Building Permit Application for the work proceeding on his Tax
Parcel including repairs to, as referred to by the Township, a “root cellar” and block wall.
Ms. Kirk asked Ms. McGrath what Section of the Township Zoning Ordinance was at
issue that rendered the Cease and Desist. Ms. McGrath stated it was issued pursuant to
Section 200-89 which states that a property owner is not allowed to do work - erection,
construction, reconstruction, alteration, to any building or any structure without the
benefit of a Building Permit. Ms. Kirk stated this was a Cease and Desist issued by the
Township in accordance with enforcement of a Zoning Ordinance; therefore,
procedurally, the Township has the burden of proof to move forward.
Ms. McGrath stated they are present tonight because Mr. Heinz has been doing work on a
root cellar and block wall for quite some time without the benefit of a Building Permit.
She stated this matter has already been before Judge Burns in a previous enforcement
notice that covered the exact same violation.
Mr. Michael Boucher was called and stated he resides at
Ms. McGrath asked the location of his property in relation to 532 Stony Hill, and
July 19, 2005 Zoning Hearing Board – page 5 of 35
Mr. Boucher stated his back yard abuts Mr. Heinz’s yard. He noted his wife, Tammy,
also resides at the home. Ms. McGrath asked if at some point, did he notice that
Mr. Heinz was excavating or building a block wall on his property, and Mr. Boucher
stated starting in 2002, they noticed that Mr. Heinz had been digging and excavating the
area to varying degrees; and it got to the point where he erected a cinderblock wall along
the back side which at this point goes onto the Boucher property by about one foot. He
stated this was in the fall of 2003 or spring of 2004. He stated it is an eight to ten foot
cinderblock wall, underground, that actually goes onto the Boucher property by about one
foot. The cinderblock wall is about eight to ten feet tall.
Ms. McGrath asked how many times over the past year and a half has Mr. Boucher
noticed that work was done on the wall; and Mr. Boucher stated every few months he has
observed some activity. He noted that the most noticeable was on Memorial Day, 2005
when for almost an entire afternoon there was excavating going on with shovels and
buckets. Ms. McGrath asked who was on the property. Mr. Boucher stated the activity
that was observed on Memorial Day was continued excavation of the hole and whatever
is under there. He stated he observed people taking out soil, rocks, and debris. He did
take pictures of the work being done.
This set of photos was marked as T-1. These are the photos taken by Mr. Boucher on
5/30/05, and he stated that they accurately depict the conditions on that day.
Mr. Boucher noted the left hand photo which shows Mr. Heinz with a bucketful of soil;
and he is throwing debris, branches, etc. up out of the hole. On the right hand picture at
the top, Mr. Heinz is shoveling; and he believes his sister is also shown and each have a
bucket and are excavating and taking the buckets up out of the hole. He stated the bottom
picture shows Mr. Heinz climbing out of the pit with a bucket and a wheelbarrow full of
soil and rocks. Mr. Boucher stated the next day he contacted Ms. Frick and presented her
with the photos.
Mr. Heinz asked Mr. Boucher if any of the photos depict anyone building anything, and
Mr. Boucher stated they do not. Mr. Heinz asked if Mr. Boucher has made previous
complaints about this property over the course of the last three years, and Mr. Boucher
stated he has made several complaints.
Mr. Caiola asked the nature of the other complaints. Mr. Boucher stated they were
relative to the excavation and building onto his property. Mr. Heinz asked if he has made
any other complaints, and Mr. Boucher stated there were two others – one having to do
with a trash dumpster that had been used for household trash and left there for six to nine
months, and Mr. Heinz was found in violation. Mr. Boucher stated he also made a
complaint to the Township about junked vehicles – unregistered and unlicensed vehicles
on his property, and he was again found in violation. Ms. Kirk stated these were
violations cited under the Township’s Property Maintenance Code, not under the
July 19, 2005 Zoning Hearing Board – page 6 of 35
Township Zoning Ordinance, and Mr. Boucher agreed. Mr. Heinz stated he objects to the
witness’s characterization of the term “junked vehicles,” and with respect to an alleged
finding of violation with respect to the dumpster since neither of those instances can be
substantiated. Ms. Kirk asked if there was a Hearing before Judge Burns on those
violations, and Ms. McGrath stated there was, but noted it is currently being appealed.
Ms. Kirk asked when the Hearings were held, and Ms. McGrath stated they were held a
few months ago. Ms. Kirk asked the adjudication by Judge Burns, and Ms. McGrath
stated Judge Burns found in favor of the Township on both the property maintenance and
the Zoning violation. Ms. Kirk asked if both those matters have been appealed to
Doylestown. Mr. Heinz stated the matters being discussed are with regard to alleged
vehicles being parked on the lot and have nothing to do with an alleged dumpster.
Ms. McGrath agreed they did have to do with the vehicles. She stated it was a Property
Maintenance violation as well as a Zoning violation. It was property maintenance
violation regarding number of vehicles on the property. Ms. Frick added it involved
unregistered, unlicensed vehicles. Mr. Heinz stated this is on appeal.
Mr. Dobson noted the pictures presented and asked about the wall. Mr. Boucher stated
the wall is shown on the left, and a portion of it is on the Boucher property. Ms. Kirk
asked if they had a survey done. Mr. Boucher stated he had a survey done in November,
2004. He stated even on the Plan submitted by Mr. Heinz, he shows a supposed, existing
root cellar which extends over their property line so what he is suggesting is that the
Township approved work to be done on the existing root cellar onto the Boucher
property. Ms. Kirk stated they are not present to hear the issue as to whether he is
encroaching on the Boucher property or not; but Mr. Boucher stated this is what was
asked in terms of the Building Plan.
Ms. Frick was called and sworn in. She stated she is employed by
Township as the Director of Zoning, Inspection and Planning and as the Zoning Officer.
She stated she is responsible for reviewing all incoming Subdivision Plans, approving all
Building Permits, and reviewing Zoning violations. She is familiar with the Lower
Makefield Township Zoning Ordinance and deals with it on a daily basis.
Ms. McGrath asked if she is familiar with the property at
stated she is, and according to her records the owner is Tristram Heinz and Alisandra
Exhibit T-2 was marked which is from the Township Real Estate Assessment rolls where
it indicates the property owner and their mailing address, and what they own. This
document indicates that the property owner is Tristram Heinz with a mailing address of
Road at least four to five times over the past two
years. She stated it is
Hidden Pond Estates Development. It had an existing house on it and is approximately
20,000 square feet with 115’ feet of road frontage on
July 19, 2005 Zoning Hearing Board – page 7 of 35
Ms. McGrath asked about the improvements on the property. Ms. Frick stated there is an
existing house, a new, three-car garage, and a root cellar type wall structure. This is the
structure referred to in the 6/2/05 enforcement notice. Ms. Frick stated she understands
that the root cellar was used many years ago to store milk, meat, fruits, and vegetables.
There is also a cinderblock-type wall leading down to the door and root cellar. It is
located close to the property line on the right hand side on the eastern side of the lot.
Ms. McGrath noted Exhibit A-2 and Ms. Frick stated she did send one out to Mr. Heinz
and one to Alisandra Cummings as she was also noted as the owner of record. These
were sent First-Class and Certified and were sent to both addresses – not only the mailing
address that Doylestown has as owner of record which is
sent both Certified and regular mail to 532 Stony Hill. The First-Class letters were not
returned to the Township and she does have the green receipt card to indicate that the
Certified Mail was picked up by Mr. Heinz. She stated this was on the one that was
Ms. Kirk noted Exhibit T-3 has six pages as it includes the letter of 6/2/05 as well as a
copy of the relative Sections of the Zoning Ordinance, and the return-receipt card.
Ms. Frick stated the Enforcement Notice sums up that he never obtained a Building
Permit and notes the Judgment issued by Judge Burns on July 29 and the amount as well
as the fact that they were giving him an extra five days to submit for a Building Permit
and that he had a right to Appeal to the Zoning Hearing Board. Ms. McGrath asked what
prompted Ms. Frick to send out the Enforcement Notice on June 2, and Ms. Frick stated it
was the neighbor coming in with the pictures and the work that was progressing.
Ms. Frick added that up to that point they were not aware that the work had been
progressing and had been trying to work with Mr. Heinz on coming in. She stated he had
picked up an Application for a Building Permit, and they were waiting for him to submit
it. When Mr. Boucher came in and advised that Mr. Heinz was working on the property
Ms. Frick stated she received the pictures marked as Exhibit T-1 from Mr. Boucher along
with a cover sheet from him indicating that the pictures were taken on May 30 and asking
her to contact him as soon as possible regarding steps the Township needs to take to
enforce the 2004 Court ruling and the daily fine.
Ms. McGrath asked Ms. Frick the conditions she noted when she reviewed the pictures
that possibly constituted a violation of the Zoning Ordinance. Ms. Frick noted that he
was proceeding with the work and it appears that it was becoming more of a safety issue
as it was getting closer onto Mr. Boucher’s property and becoming a safety hazard
without benefit of a Permit. She stated this would be in violation of Section 200-89 and
this was attached to Exhibit T-3.
July 19, 2005 Zoning Hearing Board – page 8 of 35
Ms. Kirk asked what Sections of the Ordinance are applicable to the Cease and Desist. Ms. Frick stated the first paragraph and also under Sub-Section e – Building Permit
Requirement in that a Building Permit shall be required prior to the erection,
construction, re-construction, alteration, razing, or enlargement of any building, other
structure, or portion thereof. Ms. Kirk stated they are specifically discussing Section
200-89 e and not Section b, and Ms. Frick agreed.
Mr. Caiola noted Building Permit #31783 and asked what this was supposed to cover as
he is contending that whatever work he was doing was covered under this Permit.
Ms. Frick stated this Building Permit states “Approved to perform interior and exterior
renovations to existing building including insulation and re-roofing, electric, HVAC, and
plumbing are included with this Permit. Also, included in the construction is a three-car
detached garage to be ten feet from the side property line, and no more than fifteen feet in
height, size of garage 24’ by 35’.” She stated it also goes on to reference a different
Zoning Hearing Board Appeal which was prior to this for front yard setback. It further
states, “Permit is conditioned upon the historical integrity of the structure to be retained
as previously agreed to.” Ms. Frick stated she also has a copy of the Permit Application
that was filled out by Mr. Heinz and under explanation of work to be done and materials
to be used it states, “Renovation of interior and exterior of existing building to include
insulation and all utilities upgrade and re-roofing. Also to include construction of
detached, three-car garage as per the approved Site Plan.” Ms. Frick stated she also has
available copies of the Site Plan which Mr. Heinz submitted with his Permit Application
which does not show a root cellar or a wall on it. The Building Permit was marked as
Exhibit T-4 and the Application was marked as Exhibit T-5. The Site Plan Mr. Heinz
submitted with his Application was marked as Exhibit T-6.
Mr. Caiola asked Mr. Heinz if it was his contention that this work was part of the
Building Permit that he had submitted. He added that it does not sound like it was.
Mr. Heinz stated this will be addressed in his presentation.
Ms. McGrath asked if prior to the June 2, 2005 enforcement notice, was a previous
enforcement notice ever sent by her office concerning the same reported violation at the
property, and Ms. Frick stated she sent a letter dated 1/26/05 and attached to it were
numerous letters since the Judge made his ruling on the 29th. Ms. McGrath asked if an
enforcement notice concerning this violation was ever sent prior to the Hearing before
Judge Burns, and Ms. Frick stated there was. Exhibit T-7 was marked, and Ms. Frick
stated this is an enforcement notice sent by Sally Dorner who was the previous Code
Enforcement Officer stating violation of Section 200-80 for the wall and root cellar for
the work that had been done. This was dated 4/22/04. Ms. Kirk asked the relevance of
Exhibit T-7 in that the matter before the Board deals with the Appeal of the Zoning
Officer’s determination of June 2, 2005. Ms. McGrath stated the relevance is to indicate
that this enforcement notice covers the same exact violation, and it has previously been
adjudicated by Judge Burns. This enforcement notice was not appealed, and the decision
July 19, 2005 Zoning Hearing Board – page 9 of 35
from Judge Burns was not appealed. Ms. Frick noted this enforcement notice was not
appealed to the best of her knowledge. Ms. Frick stated the enforcement notice dated
4/22/04 cited the same alleged violation of the one dated June 2, 2005.
Ms. Frick stated when the 4/22/04 enforcement notice went out, no action was taken so
the Township filed a civil complaint, and a Hearing was held before Judge Burns where
she testified that it was her opinion that the block wall and the root cellar were structures
under the definition in the Zoning Ordinance.
Ms. McGrath asked if Mr. Heinz raised the issue of having an existing Building Permit at
that Hearing. Mr. Heinz objected citing Hearsay and the fact that there is no relevance.
Ms. Kirk allowed the question. Ms. Frick stated this issue was raised and the Judge’s
decision was for the Township. A copy of the Decision was marked as Exhibit T-8.
Attached to T-8 is the Civil Complaint that she had filed along with a copy of the
Ms. McGrath noted the Building Permit that had been issued for the property that was
marked as Exhibit T-4. Ms. Frick stated this Building Permit did not cover any work
done on the root cellar that is the subject of the enforcement notice as there were no Plans
for any work to be done on a root cellar and no mention of any work, and it was not
shown on the Site Plan. Ms. Frick stated she makes sure when a Building Permit is
issued that it clearly spells out exactly what the Permit covers so that there is no doubt.
Ms. McGrath asked if the Building Permit has expired, and Ms. Frick stated it has. She
stated in accordance with the UCC Code, and prior to this it was the BOCA Code, any
permit when work has not commenced for 180 days, it becomes void. According to their
records, a Final Inspection was requested on this property in 2002. Exhibit T-9 was
marked which is the inspection record from the Township for the Heinz property under
Permit #31783. Ms. Frick stated this is the entire inspection record which was two pages
which she put on one page.
Ms. McGrath asked if Ms. Frick had any further contact with Mr. Heinz after the Hearing
before Judge Burns in July, 2004, and Ms. Frick stated Mr. Heinz had come in with a
letter to them which she had forwarded to the Township Solicitor’s office for clarification
and she then sent him a letter back. The last letter she sent him was January 26, 2005 and
it went back to the letter she sent him back on August 13, August 16, and September 1.
The letter dated January 26, 2005 was noted and Ms. Frick stated in this letter she stated,
“Reference is made to your most recent letter dated 1/19/05 with respect to the above
property. You were advised in writing numerous times that your request to amend your
Building Permit that was issued to you on 10/23/01 for other work that was performed on
your property as noted therein was denied. The following is a list of letters and their
respective dates that were previously sent to you notifying you that you must apply for a
new Permit for the new work.” Ms. Frick stated it goes on to give the dates of 8/13/04
July 19, 2005 Zoning Hearing Board – page 10 of 35
which was the letter from Jennifer McGrath, 8/16/04 which
was the letter from
Frick, and 9/1/04 which was the additional letter from Nancy Frick, with all copies
attached. Ms. Frick stated the letter further states, “I believe the Township’s position has
been very clear from the beginning with respect to this issue since your initial request to
amend the Permit was received on 7/29/04. I am very perplexed as to why now, on
1/19/05, I am in receipt of a letter from you advising the Township that you will not be
filing a Building Permit for the construction of the block wall and the restoration of the
root cellar. As you are aware Honorable District Justice Michael J. Burns entered his
Judgment with respect to same on 7/29/04 which is almost six months ago and yet it is
apparent that no progress has been made with respect to bringing this matter to a close.
This letter is to advise you once again that you must file without further delay an entirely
new Building Permit for the work on the wall and the root cellar that was started without
benefit of the necessary Permits. Also, I am returning herewith your check #145 in the
amount of $850 as this check should be endorsed and sent directly to the Local District
Justice. You may contact them directly at 215-736-1121 for specific information in that
regard.” This letter was marked as Exhibit T-10. Ms. Frick stated this letter had
attachments including a copy of the check. It was noted that Exhibit T-10 includes nine
Mr. Bamburak asked for clarification about the expiration of Building Permits. Ms. Frick
stated that it is correct that a Building Permit does expire unless the Township is notified
in writing in accordance with the UCC Code. She noted she does have this Code
available is necessary. Ms. Kirk asked if it expires in 180 days if work is not commenced
after it is issued or if no inspections are made. Ms. Frick read from the Code as follows:
“Every Permit issued shall become invalid unless the work on the site authorized by such
Permit is commenced within 180 days after its issuance or if the work authorized on the
site by such Permit is suspended or abandoned for a period of 180 days after the time the
work is commenced.” Ms. Kirk asked if it is the Township’s position that when the Final
Inspection occurred on 12/2/02 and there was no further work done on the root cellar that
any work under that Building Permit #31783 was abandoned or suspended. Ms. Frick
stated any work that would have been included in that Permit would have been
abandoned or suspended, but the Township never assumed that the root cellar was
included with that Permit. Ms. Kirk stated it is therefore the Township’s position that the
root cellar was not part of the existing Building Permit that was issued, and Ms. Frick
Mr. Marte stated the records on Exhibit T-9 indicate
of the Township’s records.
Ms. Kirk asked if the root cellar were to be included how would the Building Permit have
been issued. Ms. Frick stated they would have included wording such as “reconstruction
of root cellar as per the Approved Plans.” She stated it would have been specifically
July 19, 2005 Zoning Hearing Board- page 11 of 35
Ms. McGrath asked if Mr. Heinz ever submitted a new Building Permit Application after
the 1/2605 letter went out, and Ms. Frick stated he did not. She added that he did come in
for a Building Permit Application after the Judgment of 7/2/9/04, but he never submitted
it. He took the Application and discussed the matter with herself and Ms. Dorner but
never submitted it. She stated he picked this up on the afternoon of the actual Judgment
day. Ms. McGrath asked if as of today a Building Permit Application has ever been
submitted by Mr. Heinz that would cover the parameters of work done on the root cellar,
and Ms. Frick stated it has not.
Ms. McGrath asked the last time Ms. Frick was out to the property, and Ms. Frick stated
she was there today. She stated that she observed today that work in fact had commenced
since her last visit to the property. She stated the area is very overgrown with weeds and
grass; however, you could see that another layer of the actual E P Henry was added and
additional stone was put on the other side. Ms. McGrath asked if the work she observed
had been done would qualify as work being done under Section 200-89 of the Zoning
Ordinance without a Permit, and Ms. Frick agreed noting that it comes under the Zoning
Ordinance definition of a structure.
Ms. McGrath asked if pictures were taken today, and Ms. Frick stated they were.
These were offered as Exhibits. Ms. Frick noted Exhibit T-11 and stated this shows a
pallet she had not seen previously with the E P Henry type blocks on it to the left and
plywood that is crossing over top of the stonework was not there on her previous visits.
She stated it also appeared that work been done in the area of Mr. Boucher’s fence. She
noted there was no grass in that location and some sort of work had taken place there.
Exhibit T-12 was noted, and Ms. Frick stated this shows the entrance into the root cellar.
Exhibit T-13 was marked which shows stone that was not present in that amount during
previous visits to the site. She stated the pieces of wood were also not there on previous
visits. She stated she assumes that the wood was put over top of this so no one would fall
in the hole, and this was not there before.
Exhibit T-14 was marked which shows the wall, and Ms. Frick stated at least one of the
top layers of block was not present when she was previously on her last visit.
Exhibit T-15 was marked, and Ms. Frick stated this is new stone that was brought to this
area of the site. It was not in that area on previous visits to the site.
Exhibit T-16 was marked, and Ms. Frick stated she was assuming the stake was in as a
corner marker, and she wanted to see exactly how close the work was being done to the
property line as the Ordinance requires that no work be done within five feet of the
property line. She noted this is the property line that adjoins Mr. Heinz and Mr. Boucher
to the eastern side of the property. Mr. Marte asked if there is a six foot high privacy
July 19, 2005 Zoning Hearing Board – page 12 of 35
fence along that entire property line, and Ms. Frick stated there is. Mr. Marte asked if the
wall goes under the fence, and Ms. Frick stated it appears that some work was done under
the fence – the wall presently as it exists does not appear to go under it, but definitely
work had been done in that area and maybe had been dug up from underneath the fence.
She noted that there are no weeds in this area where everything else is overgrown except
in this location. Mr. Marte noted the fence does not appear in Exhibit T-1. Ms. Frick
stated the fence was not up at that time. Mr. Marte noted it does not appear in Exhibit
T-12. Ms. Frick noted the fence is not on that side – it is on the opposite side. The fence
faces the door.
Mr. Heinz stated Ms. Frick mentioned in her testimony that
Ponds Estates, and Ms. Frick agreed. Mr. Heinz asked if the approvals for that
Subdivision were processed by the Township Zoning Department, and Ms. Frick stated
they were processed by the Township Planning Commission and Board of Supervisors.
She stated she was not involved in the Approval process nor was anyone from her office.
Ms. Frick stated the Plans were sent to reviewing agencies, but she is not one of the
Mr. Heinz noted Exhibit T-6 and asked if this was part of the original Subdivision Plat.
Ms. Frick stated this was submitted with Mr. Heinz’s Permit Application and she does
not know whether it was part of an original Plat and she is not sure where Mr. Heinz got
this from. Ms. Kirk stated submitted with the Application was a photo copy of what
looks to be the Subdivision for Hidden Ponds Estates and Exhibit T-6 appears to be a
blow-up of Lots #27 and #28 on that Subdivision Application. Mr. Heinz asked if
Ms. Frick has the Subdivision Plans in her Office, and Ms. Frick stated she has the
recorded linens. Mr. Heinz asked if this looks like a photocopy from the recorded linens,
and Ms. Frick stated she would not be able to answer that without further review but
would assume it came from something like this as Lot Numbers are shown, but she
cannot answer this. Mr. Heinz asked if the recorded linens are submitted to her office by
the developer, and Ms. Frick stated they are submitted to the Township. Mr. Heinz asked
if there is any verification that goes on that those Plans are accurate. Ms. Frick stated she
feels the attorneys check this. Mr. Heinz asked if anyone goes out to actually inspect to
make sure that everything that is on site is included on the linens. Ms. Frick stated she
does not know the answer to that.
Mr. Heinz noted Building Permit #31783 which was issued for a Tax Parcel. Ms. Frick
stated it is issued for an address and shows
the Tax Parcel #. Mr. Heinz asked if her Office has more than one Building Permit open
on a single Tax Parcel at any one time, and Ms. Frick stated they could have several.
Mr. Heinz noted Ms. Frick’s testimony with progress of work. He stated she has testified
to the best of her recollection from having inspected the property previously, and
Ms. Frick agreed. Mr. Heinz stated she cannot state for certain whether or not there was
July 19, 2005 Zoning Hearing Board – page 13 of 35
another layer of block and that the top layer of block was not there during her previous
inspection. Ms. Frick stated she stated what her position was to the best of her
recollection. Mr. Heinz stated it is possible that her recollection could be wrong.
Ms. Frick stated this is possible. Ms. Kirk asked the date of her last inspection prior to
taking the photos today, and Ms. Frick stated she was there since the Judgment of July
29, 2004, but she did not take pictures those times. Ms. Kirk asked if she did an
inspection of the property prior to issuing the most recent Cease and Desist Letter, and
Ms. Frick stated she did not. She stated she issued it based on the pictures taken by
Mr. Boucher over the Memorial Day
Mr. Heinz noted with respect to the photographs that she is relying on to issue the
opinion that further work was done, he asked if Ms. Frick sees any activity that would
constitute actual construction. Ms. Frick stated she sees buckets. Mr. Heinz asked if use
of buckets constitutes construction. Ms. Frick stated she sees a wheelbarrow, and work
being done. She stated she sees Mr. Heinz shoveling things into the bucket and the
buckets being carried up the wall and she would state that work is being performed.
Mr. Heinz asked if this could have been clean up, and Ms. Frick stated he would be the
best one to answer this. Mr. Heinz asked if in her opinion this could be clean up.
Ms. Frick stated this is not what she observed from the picture. Mr. Heinz asked what
she observed from the pictures, and Ms. Frick stated she has stated this already. She
stated she sees Mr. Heinz putting stuff in buckets, shoveling stuff in buckets, and work
going on at the wall, the extra layer that she did not observe previously, and the
additional stone that was not there previously. Mr. Heinz stated she has already stated
that there may not actually be an extra layer, and Ms. Frick stated it appeared to her that
there was an extra layer. Mr. Heinz stated she did state that her recollection could be
flawed and there may not actually be an extra layer. Ms. Frick stated Mr. Heinz stated
this. Mr. Heinz stated Ms. Frick affirmed this. Ms. Kirk asked that Mr. Heinz move on.
Mr. Heinz asked about the pallet and asked if this is necessarily construction. Ms. Frick
stated in her twenty-five experience as Township Zoning Officer most people do not
bring a pallet of block in and put it on their front lawn, if they are not going to do
something with it. Mr. Heinz stated that she has testified that to the best of her
recollection that pallet was not there; and in fact it could have been. Ms. Frick stated to
the best of her recollection it was not there. Mr. Heinz stated but it could have been.
Ms. Kirk asked that Mr. Heinz move on.
Mr. Heinz asked about the grass along the fence and asked why that grass was there.
Ms. Frick stated she stated she had no idea why it was there. Mr. Heinz asked if she has
any basis for her assertion that he did this. Ms. Frick stated since it is on that side of the
fence she assumed it was done on that side. Mr. Heinz stated she has no evidence
whatsoever whether or not he may have killed grass there. Ms. Frick stated she did not
state he killed the grass. She stated there was no grass growing there and obviously some
work had been done. Mr. Heinz stated she is qualifying the fact that there is no grass
July 19, 2005 Zoning Hearing Board – page 14 of 35
there with work being done, and Ms. Frick stated she also noted the fact that there was
fresh dirt. Ms. Frick stated it was not that someone just cut that. It was there and at this
time of year there would have been weeds or something and there were no weeds there.
Mr. Heinz asked if that could have been done by poison. Ms. Frick stated it could have
been done by anything; and she is not saying how it was done. Mr. Heinz asked if it
could have been done by run-off poison, and Ms. Frick stated she is not an expert in that
field. Mr. Heinz asked if it is possible that there is run-off poison from under the fence,
and Ms. Frick stated again she is not an expert in that field. Mr. Heinz asked if it could
be in fact weed killer, and Ms. Frick stated she has no expertise in this field.
Mr. Heinz stated with respect to the Site Plan submitted as part of the Building Permit
Application, which is Exhibit T-6, he asked when the site Plan was submitted to the
Township; and Ms. Frick stated the date is on it and it is 8/3/01, the date Mr. Heinz
submitted the Building Permit Application.
Mr. Heinz stated with respect to the work being done under Permit #31783, was the work
commenced within 180 days of the grant of the Permit, and Ms. Frick stated it was not.
She stated the Permit was issued on 10/23/01 and the work was completed 12/2/02.
Mr. Heinz asked when the work began. Ms. Frick stated she misunderstood the question.
She stated 12/4/01 is the first record she has of an inspection. Mr. Heinz stated the work
could have been done before that, and Ms. Frick stated he would have had to as for a
footing inspection it would have had to have been dug. Mr. Heinz stated her records
indicate that the Final Building Inspection failed on 11/27/02. He stated that was not for
no entry. He stated it also failed on 12/2/02 for no entry. Ms. Frick agreed.
Mr. Heinz asked if Ms. Frick has any personal knowledge whether there is continuing
work being done under Building Permit Application #31783, and Ms. Frick stated she
does not. He asked if she has any personal knowledge whether work is being done on the
premises that would comply with #31783 in her view. Ms. Frick stated since Final
Inspections were requested and were given, she would assume that the Permit was
receding as usually Permits are the last things that are received. Mr. Heinz agreed this is
correct if they pass; but if they fail, in theory, there is more work that needs to be done.
Ms. Frick disagreed. She stated it failed because the last entry shows they could not gain
access. Mr. Heinz asked about the previous listing for failure, and Ms. Frick stated she
would have to look up the specific records for that date. Mr. Heinz asked if it failed
because they could not gain entry, does this mean no more work needs to be done.
Ms. Frick asked why he called for a Final Inspection if work was not done, since they do
not go out on Inspections unless they are called for.
Ms. Kirk asked if since the entry of 12/2/02, has the Township received any additional
requests for additional inspections under this Building Permit from the property owner,
and Ms. Frick stated they have not.
July 19, 2005 Zoning Hearing Board – page 15 of 35
Mr. Heinz asked following the 11/27/02 failure, does she know if work ever stopped on
site, and Ms. Frick stated she does not.
Mr. Heinz noted the letter he sent to the Township dated 7/29/04 which was the date of
the Judgment from Judge Burns. A copy of this was provided to Ms. Frick. Ms. Kirk asked if this is part of any Exhibit that has been submitted, and Mr. Heinz stated
he does not believe it was although he knows the Township does have record of it.
Mr. Heinz asked if she recalls the content of the letter, and Ms. Frick stated she does.
Mr. Heinz stated in this letter he requests amendments of his existing Buildnig Permit
#31783, and Ms. Frick agreed. Mr. Heinz stated this Amendment request also included a
blow-up Sketch Plan of the site which showed the house and the semi-sub-terranian
building in the side yard and a Site Plan further out showing the entire site and a Sketch
Plan at the bottom showing a structure and notations at the bottom of the page. Ms. Frick
stated this is correct and she replied to that letter by her letter of August 16, 2004.
Mr. Heinz noted this letter dated 8/16/04 and asked if she stated, “Reference is made to
your letter dated July 29, 2004 with respect to the above-referenced property, a copy of
same was forwarded to our Township solicitor, Jennifer McGrath.” who happens to be
here tonight. Mr. Heinz read further, “Enclosed please find a copy of her letter dated
August 13, 2004 advising with respect to same. If you need anything additional at this
time, please feel free to contact me here.” Ms. Frick agreed that this was the content of
Ms. Kirk stated Mr. Heinz sent a letter dated July 29, 2004 asking that Building Permit
#31783 be amended, and Mr. Heinz agreed. Mr. Kirk stated Mr. Heinz got a response
from the Township either via Ms. Frick or the Township solicitor, Ms. McGrath, stating
that the request for an Amendment was not approved. Mr. Heinz stated this is his
contention and this is incorrect. He stated he specifically received a letter from someone
named Jennifer McGrath from Begley Carlin, not representing herself as the Township
solicitor at the time, stating that she was denying my Building Code Amendment request.
He stated this is not within the powers of the Township solicitor. Ms. Kirk asked
Mr. Heinz if he ever filed an Appeal of that letter. Mr. Heinz stated it was not a
determination since the Township solicitor does not have the power to grant or deny
anything. Ms. Kirk stated Mr. Heinz requested an amendment to the Building Permit.
Mr. Heinz agreed and stated it was never denied. Mr. Caiola stated it was never
approved. Mr. Heinz stated it was never denied and as such it was approved.
Mr. Caiola stated it was not approved. Mr. Bamburak stated the point is that the Building
Permit never covered that work anyway. Mr. Heinz stated the amendment was never
denied. Ms. Kirk stated they now understand Mr. Heinz’s position.
Ms. Frick stated she further replied to that letter again on
9/1/04 which states,
”Mr. Heinz, reference is made to your most recent letter dated 8/27 which was in
response to your previous letter dated 7/29 and my response to same dated 8/16/04, I am
July 19, 2005 Zoning Hearing Board – page 16 of 35
somewhat confused as to why my 8/16/04 letter would need further clarification;
however, you are hereby being advised that you must file an entirely new Building Permit
for the construction of the wall and the restoration of the root cellar on the above-
referenced property. Please do so without further delay as the Township is anxious to
bring this matter to closure.” This was dated 9/1/04 and was part of the packet that had
been marked as Exhibit T-10. Ms. Kirk asked if Mr. Heinz acknowledges receiving that
letter dated 9/1/04; and Mr. Heinz stated he did receive this.
Mr. Heinz had no further questions of Ms. Frick at this time. Mr. VanBlunk had no
questions for Ms. Frick. Ms. McGrath stated she had no further witnesses. A short
recess was taken.
The meeting was reconvened at 9:12 p.m.
Mr. Heinz stated procedurally it will be difficult as he has to essentially question himself
so his presentation will be partly testimony and partly his conclusions. He stated what is
being talked about is a building and they are not talking about a wall, an excavation, etc.
He stated he has photos of the interior of the said building. Exhibit A-3 was marked
which is a picture of the interior of the building depicting an end wall with a doorway
into it which has been partially cleaned up and needs further work. He stated this photo
was taken today. He does not have copies available. Exhibit A-4 was marked which is
the interior of the building which shows the opposite end which is the entry to the
building itself. He stated you can see outside the doorway of the building is some old
stonework. He stated both of these pictures are totally below grade. Exhibit A-5 was
marked and is a wider view of Exhibit A-3. He stated he was inside the building itself.
Exhibit A-6 was marked which is outside the entry doorway in Exhibit A-4 looking up
the stairwell which has now been uncovered and will be shown in a later photograph to
show needs consistent maintenance.
Ms. Kirk noted Exhibit A-6 and stated you can see a difference in the stone coloring. She
noted the top three layers and asked if this is new cinderblock.
Henry Block and it is new. He stated the material underlying this new block is clearly
Exhibit A-7 was marked which Mr. Heinz stated was taken from the same point as
Exhibit A-6 looking back into the building to show the extent of the building.
Exhibit A-8 was marked which is a view taken from the same point of one of the
Township pictures looking into the doorway of the building. Ms. Kirk noted Exhibit A-8
in the bottom left hand corner of the photo it shows new E P Henry Block, and Mr. Heinz
agreed. Ms. Kirk asked if this is attached, and Mr. Heinz stated it is sitting on top of the
old stonework noted earlier.
July 19, 2005 Zoning Hearing Board – page 17 of 35
Exhibit A-9 was marked, and Mr. Heinz stated this was taken early this spring showing
the bottom of the stairwell is full of dirt and grass. He noted the difference between
Exhibit A-8 and Exhibit A-9 noting Exhibit A-8 shows a flagstone floor underneath the
dirt shown in Exhibit A-9.
Exhibit A-10 was marked which is a photograph taken in September, 2002 showing the
condition at that point when they had first finished cleaning up the building. He stated it
shows that in the space of time between September, 2002 and the time Exhibit A-9 was
taken earlier this spring, there has been significant erosion which caused all the dirt to fall
into the bottom of the stairwell.
Ms. Kirk stated when the Township submitted Exhibit T-5 into evidence which was his
Application for a Building Permit, the existing root cellar was on the property.
Mr. Heinz stated his position is that it was existing but he did not know about it at that
time. Ms. Kirk stated at the time the Application was submitted there was the root cellar
and an existing house and he submitted a Building Application to do repairs and
renovations to the existing building which at that time was the existing house because he
did not know the root cellar existed. Mr. Heinz agreed. Ms. Kirk stated also in his
Application was the request to construct a three-car garage. Ms. Kirk asked how he can
say the work he is doing to the existing cellar as an existing building would fall under the
Building Permit that was issued in October of 2001 when he did not know the cellar was
there. Mr. Heinz stated this was the reason for the Judge’s finding. He stated Judge
Burns asked at the Hearing of July 29, “why didn’t you just amend your Building
Permit?” and at that time Mr. Heinz stated he told the Judge he did not know he could.
The Judge made his Findings that the work allegedly being done on this structure was not
covered under the original Building Permit because it was an after-discovered condition.
At that point he agreed to accept the Judgment and indicated he would go ask the
Township to amend his Building Permit to include the after-discovered condition.
Mr. Heinz stated he feels the after-discovered condition is part and parcel of the original
Building Permit because it was part and parcel of the original house.
Ms. McGrath stated she would object to the extent Mr. Heinz is characterizing the basis
for Judge Burns’ decision as there is no written opinion, and he simply entered a
Judgment. There is also no transcript of the proceeding. Ms. Kirk stated she will allow
Ms. Kirk stated when he submitted a request to the Township after the Hearing before
Judge Burns in July, 2004 to amend his original Application, the Township replied that
he would need to submit a separate Building Permit. Mr. Heinz stated the Township did
not reply to the actual amendment request. He stated the Township continuously sent
him letters advising him that he must apply for a new Building Permit Application and
never denied his amendment request. Ms. Kirk asked why he did not apply for a new
July 19, 2005 Zoning Hearing Board – page 18 of 35
Building Permit, and Mr. Heinz stated he would have liked to except for the fact that the
Township, for whatever reason, never denied his request for an amendment. He stated
they could have indicated that they do not amend Building Permits, but they did not state
this. They also could have stated your amendment is flawed in some way, but they did
not say this. They never replied.
Mr. Dobson asked if he ever asked again or sent another letter, and Mr. Heinz stated he
did and this with his letter of August 27 but he has not heard back from them as to why
they have not denied his amendment. Mr. Dobson stated he then got a letter from the
Township dated September 1 stating he must apply for a new Building Permit.
Mr. Bamburak asked if he does not feel that this was a reasonable response that this
meant they were not going to amend it and that he would have to file a new Permit.
Mr. Heinz stated he knows that as a matter of course this Township does amend Building
Permit requests as he received this advice from a person who does this all the time; and
he has this evidence in his possession. Ms. Kirk stated he also received a letter from
Ms. McGrath stating that they were denying the request to amend the Building Permit.
She asked if he did not take this as a denial, and if not, why did he just not submit a new
Application for a Building Permit. Mr. Heinz stated Ms. McGrath’s letter did not address
his Application for an amendment to his Building Permit. Ms. Kirk read the letter which
states, “We are denying your request to amend the Building Permit.” Mr. Heinz agreed,
but stated she does not address him as the Township solicitor or as anybody in any way
related to the Township. Mr. Caiola asked who he felt it was. Mr. Heinz stated he had
no clue. Mr. Caiola asked him if he pursued this any further, and Mr. Heinz stated he
went to the Township Supervisors meeting and asked them who Begley Carlin was and
they advised it was the Township Solicitor. He then approached the Township solicitor
at that meeting and advised the Solicitor that he received the letter from them and asked
what was meant by it. He stated two meetings later he got a letter from the Zoning
Department stating, “Please see the enclosed.” Mr. Heinz stated he did not know what to
make of this. He stated his basic contention is that if the Township wants to take an
action, they have to take an action and cannot just repeatedly say, “You must file a new
Building Permit Application.” He stated they actually have to say, “No we are denying
your request.” He stated the reason he was looking for denial was so he could come to
the Zoning Hearing Board and present his position which is this building is part of the
original structure and part of the original building. He stated he was going to come to the
Zoning Hearing Board anyway and was just waiting for the denial so he could come and
present to the Board his position that this Building Permit should include this
renovation/restoration/fixing of this historic structure which is part and parcel of his
house. He stated he expected to be before the Zoning Hearing Board last September and
felt he would have received a denial and be advised that he should present to the Zoning
Hearing Board his position with respect to amending the Building Permit to include
renovations to the structure. He stated he needed something from the Building
July 19, 2005 Zoning Hearing Board – page 19 of 35
Department to bring him here and felt that they did not want to bring him there so that the
Zoning Hearing Board could not make a finding. He stated he does not know why they
did not want him to come to the Zoning Hearing Board.
Ms. Kirk asked if he has any other witnesses, and Mr. Heinz stated he does have a
witness who is willing to testify that this building is part and parcel of the original
structure and that this renovation to this project should be included in the original
Building Permit as an amendment to the original Building Permit. He noted the
phraseology of the Building Permit itself which states “to preserve and protect the
historic integrity of the Roelofs Hotel.” He stated this is about historic preservation and
renovation of an existing historic structure which is on the Township’s Windshield
Survey and has been neglected for years. He purchased it in order to restore it to its
former glory. Ms.
Kirk asked if the property is listed on the Township or
Historical list, and Mr. Heinz stated it is. Ms. Kirk asked if there is documentation to that
effect and will the Township stipulate to that. Ms. Frick stated she has nothing to that
effect. Ms. McGrath stated she could not stipulate to that. Mr. Heinz stated he has a
witness who will testify to this effect and was involved in the Historic Commission.
Ms. Kirk asked if the Township would agree that the root cellar has been there with the
existing building whether it had been seen or not and that it was part of the original parcel
of land. Ms. Frick stated she agrees it does look old, but she does not know whether it
was there and neither did Mr. Heinz. Mr. Heinz stated he did not put it there. He stated
he also has anecdotal evidence from a gentleman who lives across the street.
Ms. McGrath objected on the basis of hearsay. Ms. Kirk agreed to allow it. Mr. Heinz
stated it is hearsay but when he first uncovered it, the gentleman across the street said,
“Oh you found the vault.”
Ms. Kirk stated Mr. Heinz obtained the property in October, 2001; and Mr. Heinz stated
this is correct and at that time the roof of the structure had caved in and needed massive
clean up. He stated the main part of the building is completely in tact as they can see
from the photos he has provided. He stated it has been in that condition since well before
anyone present was alive. Ms. Kirk asked the condition of the entranceway to the root
cellar when Mr. Heinz purchased the property, and Mr. Heinz stated the entire yard on
that side of the house was completely overgrown and he had no idea what was there. He
stated it was a very uneven surface, with many rocks, and sinkholes. He stated after he
cut down the vegetation, most of the sinkholes got larger. As he was working on the
main house he had help from relatives and friends and in the course of this his brothers
discovered there was a “cave.” He then went to the Historic Commission and the
Township Windshield Survey indicated that a springhouse was listed in front of the
Roelofs Hotel. Ms. Kirk asked when this was found, and Mr. Heinz stated they found it
November of 2001. He stated at that time he did not want to get involved with this, and
he put a stone on top of a wooden board over the top of the hole so that no one would get
hurt. In the summer of 2003, he noticed that some erosion was occurring around the
July 19, 2005 Zoning Hearing Board – page 20 of 35
plywood. There was a complaint from Mr. Boucher that he should stabilize the situation
so that there was no erosion. He stated at Mr. Boucher’s request he extended the existing
stone wall back up to grade so that no dirt and debris would fall out from his fence, and
he then requested an amendment to the original Permit to include work on this structure
which was part of the Roelofs Hotel.
Ms. Kirk noted that the Building Permit referred to a “building” in the singular which
was the existing house. Mr. Heinz stated the Building Permit and site Plan contemplated
site work, specifically removal of a patio, building a driveway, and building a garage. He
showed photos of the original house as it was when he purchased it and stated the
developer that signed the Development Plan with the Township did not in fact do the
grading around the house, and he has to hire someone to do that in compliance with the
Building Plat. Ms. Kirk stated this is not at issue in this instance. Mr. Heinz stated site
work is contemplated in the original Building Plan and even if they assume the
“building” referred to is a building in the singular, this “vault” is actually part of the
historic Roelofs Hotel.
The Historic Commission Minutes dated 11/16/99 were noted, and Mr. Heinz stated he
has a member of the Historic Commission who can testify. He called his mother,
Ms. Helen Heinz, who was sworn in. She stated she was on the Historic Commission
since 1987 and was involved in the approval of the Site Plan for the Hidden Pond Estates
Development and was aware of the discussions going on and did attend the meetings.
She stated Mr. McClister had come in to request permission to demolish the house and
they unanimously denied his request. At that point Mr. McClister sold it to the
developer. She stated they had denied the request because the house is listed as a historic
structure and is on the Windshield Survey and one of the structures that is highly
indicative of the Colonial time. She stated the vault was on the survey and she does
recall seeing it when she moved into the Township in 1984. She stated it was a small dog
house like structure. She stated she personally never inspected it, but other members of
the Historic Commission did go out with members of the Historical Society who were
involved as well. She stated an architect who was on the Historic Society inspected the
property and explained that it was a stone house with a Victorian addition and there was
evidence of it being a much older structure than they had previously considered.
Mr. Heinz asked about Ms. Heinz’s background, and she stated she is an Adjunct
Professor of History
She has also been involved in writing the history of
architecture since she moved to
“vault,” and Ms. Heinz stated it is a storage facility for food and more specifically, water.
She stated this particular structure has a well at the end which means it is well below the
frost line and would therefore provide potable water no matter how cold it was. She
stated this was crucial for early survival. She noted the well is still there. Mr. Heinz
asked whether this building is part of the house, and Ms. Heinz stated it is and at some
July 19, 2005 Zoning Hearing Board – page 21 of 30
point it did continue to the house but at this point it is four feet from the house. She
noted the original section of the house probably dates from at least the 1720s to the 1740s
and this structure was basically the outdoor cooking area of the house. It was a one story
house with a loft above and was the area where most of the outside activities occurred.
She stated this building contributed a lot of knowledge about early Colonial refrigeration.
She stated during the Civil War the owners of this house were also involved in the
Underground Railroad and it could have something to do with that as well. She stated in
order to reproduce this structure, it would be very expensive and there are no structures
like it anywhere in
Ms. McGrath stated while this is an interesting history lesson, she does not feel that it is
relevant to the issue at hand. Ms. Kirk sustained.
Mr. Heinz asked the date she would put on the structure, and Ms. Heinz stated it would
probably be between 1740 and 1780. Mr. Heinz asked if it would have any access, and
Ms. Heinz stated it would have a double stair coming out of the structure.
Mr. VanBlunk asked Mr. Heinz is he was present at the Hearing before Judge Burns, and
Mr. Heinz stated he was there. He agreed the Township solicitor was there as well but
noted he had no idea who she was. Ms. McGrath asked Mr. Heinz if it was not correct
that she talked to him at the Hearing. Mr. Heinz stated at the Hearing he recognized that
she did represent the Township.
Ms. McGrath stated Mr. Heinz indicated in his argument that site work was contemplated
in the original Building Permit, and Mr. Heinz stated he noted that on the Site Plan that
was submitted as part of the original Building Permit it stated existing patio to be
removed and the construction of a three-car garage as per the approved Site Plan.
Ms. McGrath asked if it states anything about making changes to the driveway, and
Mr. Heinz stated it does not, but that is part of the site plan.
Ms. McGrath asked Ms. Frick if it is the Township’s policy to amend existing Building
Permits, and Ms. Frick stated it is not. She asked if she has ever amended an existing
Building Permit, and Ms. Frick stated to the best of her knowledge she has not.
Mr. Heinz stated he does feel she does this as a matter of course. Mr. Heinz showed her a
piece of paper and asked if she did not amend Building Permit #34195, and Ms. Frick
stated what he is showing her is a letter he wrote. Mr. Heinz stated this is a letter from
Stephen Heinz, AIA, asking the Building Official for an amendment to the Building
Permit. Ms. Frick stated it appears it is a letter “asking” for it. Mr. Heinz asked whether
this request was approved, and Ms. Frick stated she does not know. Mr. Heinz noted
Building Permit #33958, and Ms. Frick stated what he is showing her is also a letter from
Stephen Heinz. Mr. Heinz asked if these amendment requests were denied to her
July 19, 2005 Zoning Hearing Board – page 22 of 35
knowledge. Ms. Frick stated she has testified that she does not recall amending any
Building Permit in this Township. Mr. Heinz stated this was not the question and he
asked if she recalled denying those amendment requests. Ms. Frick stated she did not
receive those requests. She stated he should address that question to the individual to
whom the letter is addressed.
Mr. Heinz stated he had no further questions.
Mr. Dobson moved, Mr. Bamburak seconded and it was unanimously carried to uphold
the Township Cease and Desist Order dated 6/2/05.
Ms. Kirk stated the Applicant has thirty days after the written denial is submitted to
appeal to the Bucks County Court of Appeals. Mr. Heinz asked about submitting a
Building Permit request, and Ms. Kirk stated that is not an issue for the Zoning Hearing
Board. Mr. Heinz asked what he should do about the Building Permit, and Ms. Kirk
stated he can either appeal the Board’s decision to Doylestown or if he wishes to proceed
with work on the root cellar, he should submit a Building Permit Application; and if there
are questions about what is being done, he should sit down with Mr. Frick or
Mr. Habgood to clarify what the Building Permit is to accomplish. Mr. Heinz stated he
feels they will be back before the Zoning Hearing Board. Mr. Dobson stated they will
deal with that at that time. Mr. Marte stated the Board has ruled the options are either
apply for a Building Permit or file an Appeal.
APPEAL #05-1311, #05-1312, #05-1313 –
Ms. Kirk stated they agreed at the last meeting that they would continue Mr. Koopman’s
cross examination of Mr. Champ when Mr. Koopman can be present. Ms. Kirk
suggested that they also reserve Mr. DeGrezia’s cross examination until the next Hearing
since Mr. Koopman is not present to hear the testimony. She stated she was under the
impression that they were just reserving Mr. Champ’s cross examination and they would
present their next witness.
Mr. Schneider called Kathleen Deans who was sworn in. Ms. Deans stated she is
employed by the
Supervisor of the Fiscal Accountability Section which does the funding levels and per
diem for non-State ICF MR Programs. She stated she reviews the Budgets and Cost
Reports and is involved in the certification of all of the programs in the non-State ICF
MR Program (Intermediate Care Facilities for the Mentally Retarded). Ms. Deans stated
she works for the Department of Public Welfare in the Office of Mental Retardation.
Mr. Schneider asked for a history of her employment with the Department of Public
Welfare, and Ms. Deans stated she started with the Office of Fiscal Management and
July 19, 2005 Zoning Hearing Board – page 23 of 35
served as Regional Field Program Manager for the Central Region and was responsible
for fiscal reporting, technical reporting, and cost reporting for fourteen Counties in the
Central Regional of
Fiscal Management which became the Bureau of Financial Operations and at that time
made the quarterly and annual payments to the County programs for the mental health
and mental retardation programs. She then moved to the Office of Mental Retardation as
a Budget Analyst II as a rate setter in ICF MR. After six months, she was promoted to
the Supervisor of the Section.
Mr. Schneider asked the function of the first Bureau she was in. Ms. Deans stated this
involved all types of programs – mental health/mental retardation programs, children and
youth, social services, Block Grant, Medical, Transportation, and all types of fiscal
reports. When she moved from the regional field office to the central office, she was
responsible only for the payments for the mental health and mental retardation programs.
She stated she had twenty-six appropriations for mental health and twenty-eight for
mental retardation and calculated and made the quarterly payments that made advances to
the County programs to pay for mental health and mental retardation programs in the
Ms. Kirk asked the offer of proof of this witness, and Mr. Schneider stated part of the
offer of proof is as an expert witness on what an Intermediate Care Facility is versus what
an Intermediate Care Facility for the Mentally Retarded is. He stated it is his reading of
the Township Ordinance that it applies to Intermediate Care Facilities by incorporating
the State regulations, and Ms. Dean is to in part differentiate between the two facilities.
He is providing her background in order to set her up as an expert witness. Ms. McGrath
agreed that Ms. Deans is an expert to what she is being offered. Mr. DeGrezia asked if
she is being offered only to differentiate between the two facilities, and Mr. Schneider
stated there are several programs in the Ordinance, one an Intermediate Care Facility, one
a Skilled Care Facility, one is a Personal Care Home; and she is able to distinguish
between all of those. Mr. DeGrezia stated he would object to the Zoning Ordinance but
not to her expertise as to the State regulations. Ms. McGrath stated she will stipulate to
her as an expert at the State level as well.
Mr. Schneider asked Ms. Deans if she is required to understand what a Skilled Care
Facility is as part of her duties with the
agreed. He asked if there is a difference between a Skilled Care Facility under the State
regulations, and an ICF MR, and Ms. Deans an ICF MR is a program held to Federal
standards which provides residential and habilitative services to persons with mental
retardation and comes under Title 19 of the Social Security Act which is Medicaid. The
program is held to Federal standards as far as licensure and certification in the area of
program services, health, environment, and the safety of the people who are served. The
main purpose of the Program is to encourage the maximum development of people’s
potential in their social integration. She stated a Skilled Care Facility is frequently
July 19, 2005 Zoning Hearing Board – page 24 of 35
referred to by the general population as a nursing home. She stated this facility is a
facility that provides basically custodial, residential, and rehabilitative services. The
rehabilitative services could be short term to help people regain functions and abilities
that they have lost either through injury or through illness and the main reason is to
provide nursing services. The Skilled Nursing Facility comes under Chapter 1181
regulations and Chapter 1101 regulations which are State regulations. She stated
ICF MR comes under Chapter 6210 and 6211 regulations and are considered to be totally
Mr. Schneider asked the difference between custodial rehabilitative services and
residential habilitative services. Ms. Deans stated custodial care basically means they are
taken care of but there is no attempt to develop additional skills and abilities.
Rehabilitative services are to help people regain skills/abilities that people had which
they lost through either illness or injury. The ICF MR Program differs in that the purpose
of the purpose is to take each person and try to develop their maximum potential and
develop skills and abilities that they may not have now. She stated it is the difference
between increasing someone’s potential and merely maintaining what they have.
Mr. Schneider asked if she has to understand what a Personal Care Home. Ms. Deans
stated she does and they come under the Office of Social Programs. Mr. Schneider asked
if there is a difference between a Personal Care Home and an ICF MR. Ms. Deans stated
a Personal Care Home is a facility that provides shelter, food, personal assistance, and
possibly supervision for four adults for more than a twenty-four hour continuous period.
The four adults cannot be related to the operator of the facility. They are held only to
State standards – not Federal standards that the ICF MR is held to. She stated the
Personal Care Home comes under Chapter 2620 regulations. Ms. Kirk asked if these are
definitions under State regulations, and Ms. Deans agreed. Ms. Deans stated the ICF MR
is a Federal program. Mr. Schneider asked if the Personal Care Home provides custodial,
rehabilitative services, and Ms. Deans stated it does not – it provides custodial services.
Mr. Schneider asked the difference between custodial services and residential,
habilitative services. Ms. Deans stated a Personal Care Home is a place for someone to
reside, and they are not provided with nursing services the way a nursing home would
provide. Mr. Schneider asked the difference of the services at a Personal Care Home
versus an ICF MR, and Ms. Deans stated a Personal Care Home is basically a place for
someone to stay. She stated she is not an expert on a Personal Care Home and does not
know all the services they provide but does know they do not provide nursing services.
She stated under the ICF MR program, they are required to provide active treatment
which is an intensive program to try and maximize someone’s abilities and potentials and
this is required by the Federal regulations.
July 19, 2005 Zoning Hearing Board – page 25 of 35
Ms. Schneider asked about Intermediate Care Facilities other than Intermediate Care
Facilities for the Mentally Retarded, and Ms. Deans stated there is an intermediate level
of care under the nursing homes – there are skilled nursing homes and intermediate care.
One comes under Appendix E and one comes under Appendix F of the same regulations;
however in 1996 the Federal Government moved to case mix which erased the lines
between those two and they are basically considered to be the same. She stated one of
the main differences between a nursing home, either skilled care or intermediate care, is
that the people being served in those homes do not require a primary diagnosis of mental
retardation. She stated you cannot be served in an ICF MR without a primary diagnosis
of mental retardation. Mr. Schneider asked the difference between an ICF MR and ICF.
Ms. Deans stated an ICF would require nursing services that would be provided in a
nursing home but does not require a primary diagnosis of mental retardation.
Ms. Kirk asked if this would be what is commonly referred to as an Assisted Living
Facility for the elderly, and Ms. Deans stated it is similar. She stated Assisted Living is
actually a separate program. She stated the Intermediate Care and the Skilled Nursing are
under the same fiscal appropriation but the Personal Care Boarding Homes, Assisted
Living, and Intermediate Care Facilities for the Mentally Retarded are all totally separate
Mr. Schneider asked if nursing care a primary function of an ICF MR, and Ms. Deans
stated it is not a primary function but many of the people they serve do have medical
conditions. She stated the ICF MR program provides everything a person needs –
including nursing, residential services, adult day programs, therapy services, and
anything that is required in a person’s individual plan. They do have people who have
intense nursing needs and others who have no nursing needs at all. Mr. Dean asked if
nursing care a primary function of an Intermediate Care Facility, and Ms. Deans stated it
is the main function.
Mr. Schneider asked Ms. Deans to explain the two types of Intermediate Care Facilities
for the Mentally Retarded in the Commonwealth. Ms. Deans stated there are two types –
public and private facilities. She stated public ICF MR programs are large State centers
and there are five left in the Commonwealth. At one point there were eleven but they
have been downsized and people have been moved into community homes. She stated
they are operated directly by the Office of Mental Retardation. The Program that she
supervises is called non-State or private ICF MR and these are operated by private
provider agencies. She stated they do have one that is operated by a County program.
Mr. Schneider asked if
stated it is. He
asked for an explanation of State funding for providers like
setting is identified in their regulations and every person is calculated for a standard rate.
July 19, 2005 Zoning Hearing Board – page 26 of 35
For a program that finds that the needs of the people they have served have increased in
some way and additional funding is needed, they are allowed to submit a request for a
waiver of that standard rate and ask for additional funding. She stated for a new program,
the provider submits a proposed Budget which is reviewed by herself or her staff; and
they review the needs of the people being served in that specific home and the Budget is
set up accordingly.
Mr. Schneider asked if Ms. Deans was familiar with the process by which AVS obtained
a contract with the State to open group homes to house individuals who had been at
Greenwich Services, Inc., and Ms. Dean stated she was in attendance at all the meetings
that resulted from that contract. She stated
the Administrator who ran the facility died. The Board of Greenwich came to the Office
of Mental Retardation and asked for assistance in running the Program because the
Administrator had run the entire program and the Board had no experience or abilities to
do so. The Office
recommended that the Greenwich Board contact
Schools as they are an excellent provider which they have used in the past when they
have had programs that ran into either financial or program trouble, and had taken over a
number of agencies and had been able to successfully downsize them for the State within
the funding and time periods prescribed. Ms. Deans stated
who agreed to Contract with them with management services to try to straighten out the
program. Once AVS went in and examined the program, they felt that program was not
up to their standards and it would take a significant amount of money to bring it up to
their standards. Ms. Deans stated her Deputy Secretary agreed with their findings.
Mr. DeGrezia objected based on hearsay. Ms. Kirk stated she would allow it.
Mr. Caiola asked if the Chairman has the sole responsibility to rule on objections, and
Mr. Marte stated usually the Chair has the right to make legal rulings. The Chair or the
Board can consult with the Solicitor.
Ms. Deans stated the Deputy Secretary always has the final say on what is decided by the
Office of Mental Retardation. She stated he visited the
AVS that it was an old building, which was very crowded; and the people who were
being served were aging. Since it was a large two-floor dormitory style building, as the
people aged and were becoming more non-ambulatory, and the bedrooms were on the
second floor major renovations would have been required within a reasonable amount of
time. The Office of Mental Retardation does not support maintaining these large
facilities and the preference is to move the people into community homes. The Deputy
Secretary made the decision that rather than put additional money into the old building,
he preferred that AVS come in with a plan to downsize the building and move people into
Mr. Schneider asked if Ms. Deans was involved in reviewing
proposals, and Ms. Deans stated she was. Exhibit A-29 was noted, and Ms. Deans stated
July 19, 2005 Zoning Hearing Board – page 27 of 35
this was the proposal that they submitted. Mr. Schneider asked if the Office of Mental
Ms. Deans stated they did because the Office took a look at
recognized that there were problems with the building. AVS gave them an estimate as to
what they felt it would cost to bring it up to their standards and how they wanted to
change the building to make it more livable, and the Deputy Secretary made the
determination that he would prefer that the individuals be in small group homes. He
asked that AVS come in with a Plan and stay within the funding level that was currently
available. Ms. Deans stated they like to request additional funding when they do a
downsizing project; but because of the timing of when AVS came in with their request, it
was already too late in the Budget cycle to request additional funding for the next fiscal
year. She stated they have to have their requested funding levels in by September in
order to have them approved for July of the next fiscal year. Ms. Dean stated the Deputy
Secretary wanted the people moved out of the building as soon as possible and asked
AVS to come up with proposals to see if it was possible, within the funding level that was
already allocated to the
homes. She stated the Office of Mental Retardation has a preference for four-person
homes. She stated this is the ideal, and they want people served in the smallest, least-
restrictive, most home-like setting possible; but when they looked at the amount of
funding that was available for
needs of everyone at the
proposals based on four beds, five beds, and six beds; and the amount of additional
funded needed decreased with the number of people in each program.
Ms. Kirk asked if the preference is for four-bed homes, and the decision for that was
based on funding allocated to
requested additional funding on its own in order to move those additional residents to
other facilities to maintain four-bed homes. Ms. Deans stated AVS would have to request
their funding through her and it would then go into the Governor’s Budget, and it would
not have been available until the 06/07 fiscal year. She stated the Deputy Secretary made
the decision that it was more important to move the people out of the building as soon as
possible. She stated they do have small group homes that range from four to eight
people. She stated they do have a large number of eight person homes and have never
had any difficulty in having those approved. She stated the larger number of people in a
home, the more economically-feasible it is. He stated the Deputy Secretary made the
decision to do this in a step-down process to open the homes as six person homes
initially; and then as money became available, to downsize them to four-person homes.
Ms. Kirk asked if AVS knows that by a certain year the funding will be available to
reduce the six bed homes to four bed homes, and Ms. Deans stated they will request in
the Governor’s Budget each year sufficient funds to downsize two of the six person
homes into four-person homes. Ms. Kirk asked if it is guaranteed that the funds will be
available to do this; and Ms. Deans stated there is no guarantee, but in the thirteen years
July 19, 2005 Zoning Hearing Board – page 28 of 35
she has been in the Office of Mental Retardation and been responsible for requesting
additional funding for downsizing, they have never had such a request denied. Ms. Kirk
asked if the approval granted to AVS has a specific condition that these will be
downsized in a year or two, and Ms. Deans stated it does. Mr. Schneider noted Exhibit
A-30 which is the contract between the Office of Mental Retardation and AVS, and
Ms. Dean stated this is the contract and on paragraph 6 it states that the Office of Mental
Retardation required that all of the homes be open during fiscal year 05/06 which runs
from July, 1, 2005 through June 30, 2006. She is in the process of preparing the request
for the Budget for fiscal year 2006/2007 and in that Budget they will request additional
funding so AVS can immediately begin to downsize the fourteen homes to four-person
homes. AVS is expected to downsize two homes a year for the next seven years as the
funding becomes available and the State is bound by that contract to provide the funding.
Mr. Dobson asked if they were worried about funding and costs, why did then come to a
high cost area in the State when there are many other areas that would cost much less
than $450,000 per home and still be able to get the same primary care that AVS provides
elsewhere. He stated this would also cost the taxpayers less if they would go to an area
which was not as high cost. Ms. Deans stated the types of homes that they find similar to
the ones in
renovations than smaller homes. Mr. Dobson stated he does not accept this argument.
Ms. Deans stated it costs less in renovations when they have large homes, and their
renovations have to meet C-1 occupancy and it becomes cost effective for them.
Mr. Caiola asked what they find is the average cost when they consider the purchase of
the homes and the renovations. Ms. Deans stated they anticipate that the average cost
will be $565,000 including renovations and the purchase price. She stated they do not
charge mortgage costs and they have depreciation and interest on their homes. She stated
AVS has a large bond project or a large funding project where they will capitalize the
costs and those costs will be depreciated over a period of twenty-five years. The
renovations will also be capitalized. Mr. Caiola asked if she is indicating that she would
need $400,000 worth of renovations if they purchased a $200,000 home, and Ms. Deans
stated they would not buy a $200,000 house as it would not meet the square footage
requirements. Mr. Dobson asked if this is not true for anywhere in the State of
them in this area.
Mr. Schneider asked if Ms. Deans oversees
of the Contract, and Ms. Deans stated she does. She stated it is her responsibility to
review the Budget and assist in the licensure and certification of the Programs.
Ms. Deans stated there are certain paperwork procedures that have to be done to get
certification which is done through the Department of Health which comes out and
inspects the homes and have the renovations approved through the Life Safety Codes of
the Department of Health, and meet C-1 occupancy. It is part of her job to expedite this.
July 19, 2005 Zoning Hearing Board – page 29 of 35
Mr. Schneider asked if she would approve the purchase of five acres of property for one
of these buildings. Ms. Deans stated they try to approve each one on an individualized
basis, but there is no requirement in the ICF MR program to have that much land;
although there may be some specific reason why this may be appropriate. She stated
generally speaking they would not approve it because it would be too high maintenance
and serve no purpose. Mr. Schneider asked if she would approve a purchase by AVS of
homes in ranging from $799,000 to $999,000; and Ms. Deans stated they would look at
them on an individual basis but doubts that a house that expensive would fall within the
funding available for each one of the homes.
Mr. Schneider asked how many ICF MRs she reviews for funding, and Ms. Deans stated
they have 32 provider agencies, and 182 programs, 151 of which are group homes. Of
these existing group homes, none are on lots of five acres or more.
Mr. Schneider asked if Ms. Deans is familiar with AVS other than through the
negotiation of this contract, and Ms. Deans stated she is, and they are her largest provider
agency. She has been reviewing AVS for thirteen years. Of the ICF MR facilities that
her office reviews, 63 out of the 182 belong to Allegheny Valley Schools. Mr. Schneider
asked if AVS has a license for each of the programs, and Ms. Deans stated they do have
an individual license for each program. Mr. Schneider asked if AVS has to be reviewed
for license renewal each year, and Ms. Deans stated they do. Mr. Schneider asked how
many agencies from the State review this, and Ms. Deans stated the survey is a Federal-
based survey done by the Department of Health which makes a recommendation to the
Office of Mental Retardation for licensure and the License is actually approved and
program certified by the Office of Medial Assistance programs. The Office of Medical
Assistance program is the Federal Medicaid State Agency. Mr. Schneider asked
Ms. Deans about her role in the licensing process; and Ms. Deans stated she reviews
requests for increases and decreases in certification and the initial request for the license.
They are re-certified every year. Mr. Schneider asked if Ms. Deans reviews the reports
from the auditors who do the licensing inspections as part of her job, and Ms. Deans
stated every year the Department of Health does a Certification Survey and uses the
Federal guidelines which are very specific. Based on that survey a determination is
made whether the program is re-certified and re-licensed and she does review these.
Mr. Schneider asked if Ms. Deans would know if AVS was ever denied a license, and she
stated they were not. She stated they have never lost a license. Mr. Schneider asked if
Ms. Deans has made visits to AVS group homes, and Ms. Deans stated she has and does
this because she feels her staff should understand the people they serve and when they
approve a Budget or funding level they need to know who it affects. She stated she
makes it a habit to take her staff out regularly and visit different group homes. She stated
she tries to visit all of her provider agencies. Ms. Deans stated she has visited
approximately twenty to twenty-five AVS group homes in
Beaver, and Mercer Counties. Some of these visits were pre-announced and some were
July 19, 2005 Zoning Hearing Board – page 30 of 35
not. Mr. Schneider asked Ms. Deans to describe the conditions of the buildings she
visited. Ms. Deans stated they were in excellent condition – well maintained, clean, and
orderly. The lawns and shrubbery were well trimmed and well maintained. Walks and
driveways were fine, and the exteriors of the buildings were painted and in good
condition. Ms. Deans stated the Department of Health surveys this annually.
Mr. Schneider asked if Ms. Deans is familiar with
in her office and in the Department of Public Welfare concerning the maintenance of its
facilities and she stated they have never had any problems with maintenance at the AVS
facilities. Mr. Schneider asked if she would receive complaints about providers’
maintenance of group homes; and Ms. Deans stated she could receive them from
consumers, neighbors, County personnel, other State agencies, and licensing personnel.
Mr. Schneider asked if she has ever received complaints about the maintenance of
facilities in any of the facilities she licenses, and she stated she has, but has never
received a complaint about the maintenance of AVS facilities.
Mr. Schneider asked if Ms. Deans is familiar with
in the Office of Mental Retardation as it relates to client care, and Ms. Deans stated they
have an excellent reputation and do very well with program services. Mr. Schneider
asked if she would receive complaints regarding providers’ care of the people with
mental retardation in their care, and Ms. Deans stated she would. She stated she has
never received a complaint about
Mr. Schneider asked if Ms. Deans is familiar with
in the Department of Public Welfare as it relates to the management of its programs; and
Ms. Deans stated they are considered to be well managed, and the Department has gone
to AVS on more than one occasion to take over programs that are in trouble. She stated
AVS has done this in at least four cases and were able to downsize the programs within
the timeframe the Department established and within the financing that was available.
Mr. Schneider noted the policy of the Officer of Mental Retardation and their desire to
have four-bed facilities, and asked if there is a minimum number the State requires for
group home. Ms. Deans stated for various group homes there are different requirements.
She stated for the ICF MR program, a group home must have a minimum of four people
with mental retardation.
Mr. Schneider asked if Ms. Deans ever received any
School’s program management, and Ms. Deans stated she has not.
Ms. McGrath stated Ms. Deans testified that the State prefers four-person homes and
asked what this is based on. Ms. Deans stated the Office of Mental Retardation and
experts in the field believe that people are best served in the smallest, least-restrictive
setting possible; but the ICF MR requires four people with mental retardation so since
they cannot have any less than four people, they prefer to have four people whenever
July 19, 2005 Zoning Hearing Board – page 31 of 35
Ms. McGrath stated that Ms. Deans testified that AVS operates 63 programs, and asked
the average number of residents in those facilities. Ms. Dean stated they have 53 small
homes and four large programs. She stated within the 53 programs, 19 of the homes have
4 people, 5 homes have 5 people, 23 have 6 people, 5 have 7 people, and 5 that have 8
people. Ms. McGrath asked why it is better to have four-person homes. Ms. Deans
stated she is a financial person and not a program expert but they do have an expert
witness who can provide the technical reasons for this. She stated their Office
philosophy is that experts in the field have determined that people respond better in a
more home-like setting, and this is why they were moved out of large institutions into
small group homes. Ms. McGrath asked if she is indicating that having four residents is
more home-like than having six residents; and Ms. Deans stated this is the preference, but
they do consider anywhere from four to eight as a small group home; although they
would prefer to have four-person homes when they can afford to do it that way.
Ms. McGrath asked if it is not true that had AVS submitted a Budget based on buying
less expensive homes, that it is possible that they could have afforded to have four-person
homes, and Ms. Deans stated this is not necessarily true because it would depend on the
renovations needed and the amount of services the people need.
Ms. McGrath noted the renovations previously discussed and asked why more
renovations would have been needed in a $200,000 home as opposed to a $600,000
home. Ms. Deans stated she previously indicated that they have found that larger homes
are more accessible and it is easier to make renovations. She stated they have certain C-1
occupancy requirements that have to be met that have to go to Life Safety Code.
Ms. McGrath asked for an explanation on C-1 requirements, and Ms. Deans stated she
cannot testify to this and they would have to have someone from Life Safety Code
explain this. Ms. McGrath stated she has testified that there are C-1 requirements and she
is trying to determine what they are. Ms. Deans stated the doorways have to be a certain
width to allow them to be handicap accessible, they must have sprinklers, ramps,
bedrooms need to be a certain square footage, and the hallways a certain width. She is
not familiar with the specific regulations. Ms. McGrath asked in what ways would a
larger house fit that criteria. Ms. Deans stated a larger house usually has more square
footage. Ms. McGrath asked if a larger house necessarily has a wider width on
doorways, and Ms. Deans stated she would not know. Ms. McGrath asked if a larger
house would have sprinklers, and Ms. Deans stated it would probably not. Ms. McGrath
asked if the bedrooms are always larger in a larger house, and Ms. Deans stated she feels
most of the time this would be true.
Ms. McGrath noted Exhibit A-29 and asked if AVS submitted financial documentation to
back up the Budget, and Ms. Deans stated they did not. Ms. McGrath asked if this
information was requested by her office; and Ms. Deans stated they based their decision
on taking this proposal and going back and looking at existing six-person homes to see if
the cost was comparable, and they found that it was. She stated AVS does have the
July 19, 2005 Zoning Hearing Board – page 32 of 35
documentation available, but they did not ask for it. She stated they relied on them to
keep their word. She stated AVS has never submitted Budgets to them and then not been
able to stay at those funding levels. Ms. Deans stated they did not feel they needed
financial documentation for back up. Ms. Deans stated they did not have the costs of the
homes but they compared the variable costs they would associate with a six-person home
and looked at utilities and services for people with similar needs and it came out to be
approximately what AVS was proposing.
Ms. McGrath asked if the Budget submitted to the State had shown that they could
provide for five people in each home for the same cost that had been budgeted for six
people, would the State have approved that Contract. Ms. Dean stated they would have
considered since the idea was to be able to serve all the people within the funding
available; however, if they had only served five people in a home, that would have meant
that they would have to open more homes and the major cost is the actual cost of the
home itself. They therefore tried to limit the number of homes. She stated if they had all
four-person homes, they would have had to buy twenty-one homes and with six-person
homes, they only had to buy fourteen homes. She stated this was the major difference in
Ms. McGrath stated if the homes had been less expensive, the proposed Budget would
have been less. Mr. Schneider stated he objects as this is irrelevant. He stated mentally-
retarded people have a right under the Fair Housing Act to live in any residential
neighborhood that they care to. If the State makes the determination to select a price for
a house in order that it goes in a certain neighborhood where they want mentally-retarded
people in, this is the State’s choice and is the right of the residents under the Fair Housing
Act. He stated
therefore they have to come up to the State standards so whether AVS could have done
better with cheaper houses is essentially asking could they have lived in less affluent
neighborhoods and it is an irrelevant and illegal question.
Ms. Kirk stated she will allow the testimony in that AVS is the one that purchased the
homes and with the purchase of those homes it was submitted to the State for approval to
see if it met the Budget allocated to the
State itself that chose the homes, but AVS. Ms. Deans stated their only requirement was
that they stay within the total funding level. She stated if they chose to spend $450,000
on one home and $200,000 on another as long as it met the requirements, it was of no
consequence to the State as long as they stayed within the total funding level. Ms. Kirk
stated based on that it did not matter if AVS bought ten homes at a certain price or five
homes at twice as much per home. Ms. Deans stated putting only five people in a home
would not have allowed sufficient funding to serve all eighty-four people that needed to
be placed. She stated if they only placed five people in a home, they would have
increased the number of homes they needed to buy and this would have put them over the
total limit of available funding so they would not have approved a five person home.
July 19, 2005 Zoning Hearing Board – page 33 of 35
Ms. Kirk stated AVS purchased a certain number of homes for a certain amount of
money. She stated had they been able to locate a similar type home that met the square
footage requirement for lesser money and had been able to accommodate five residents
instead of six, is it not the State’s position that as long as they met the Budget
requirements of funding allocated to
Ms. Dean agreed. She stated all they asked was that they stay within the total funding for
that project so it did not make any difference to them what they paid for the houses as
long as they did not exceed the total amount of money available.
The late hour was noted, and Ms. McGrath stated she did not feel she would be able to
complete her questioning of this witness this evening.
Ms. McGrath stated Ms. Dean testified that there are certain square footage requirements
and asked where these are referenced. Ms. Deans stated these are in the Federal
regulations and these could be provided. Ms. McGrath asked if the square footage
requirements are based on number of residents per house, and Ms. Dean stated the square
footage requirements deal mainly with the bedrooms as there are certain square footage
requirements for the number of people that you have in each bedroom. Ms. McGrath
asked if more than one person will be in one bedroom, and Ms. Dean stated normally
there are two people in a bedroom.
Ms. McGrath stated Ms. Dean testified that there was a preference to place the people
asked how she defines the
handicap accessible homes inside the city of
suburbs when they look for additional homes. She stated they have ICF MRs in Bucks,
indicated it was difficult to find a handicap-accessible
Ms. Deans stated it is difficult to find one that is handicap-accessible for a reasonable
price. Ms. McGrath asked what would make a home handicap-accessible; and Ms. Deans
stated it should be all on one floor. Ms. McGrath asked if all the homes purchased in
will live they are on one floor. She stated they do have a basement but that area is
reserved for the house parents. Ms. McGrath asked if any residents will reside in the
basement, and Ms. Dean stated they will not. Ms. Kirk asked if all the house parents are
going to reside in the basement level, are all the homes up to Code standards so that there
will be an additional access from the basement level other than the stairwell downstairs.
Mr. Schneider stated this seems to be a Building Code question which the Board refused
to take jurisdiction over. Ms. Kirk stated this may be but she is asking the question.
Mr. Schneider objected to the relevance.
July 19, 2005 Zoning Hearing Board – page 34 of 35
Mr. Marte asked if all the homes are ranchers, but Ms. Deans did not know. She stated
she feels they should be one-story homes. Ms. Kirk asked Mr. Schneider if they are one-
story homes; and he stated he does not know, but Mr. Champ can address that on cross.
Mr. Schneider stated the one home he saw was. Mr. Marte stated Mr. Schneider’s
witness raised the issue. Ms. Deans stated she has not seen all of the homes in Lower
Makefield yet; but the ones she has seen have all been on one floor with a lower level for
the house parents. Mr. Marte asked if they were bi-levels, and Ms. Deans stated she does
not recall seeing any that were bi-levels.
Mr. Bamburak asked if house parents typically reside in the basement, and Ms. Deans
stated there is usually an apartment for house parents and whether it is in the basement or
not depends on the lay-out of the house. She stated in some of the homes there is a
mother-in-law type apartment, but frequently the basement is renovated for living
quarters for the house parents. Mr. Marte asked if the renovated portion where the house
parents reside has a separate kitchen apart from the kitchen facility for the other residents
of the house, and Ms. Deans stated she believes that it does since they are regular living
quarters. Mr. Marte stated it would then be two separate living facilities. Mr. Schneider
stated Mr. Champ will answer those questions. He stated the answer to that question is
that one of the houses had a second kitchen when they purchased it and the others do not.
Mr. Marte asked if a second kitchen is being put in the homes that do not have a second
kitchen, and Mr. Schneider stated it is not and in the one with two kitchens, the second
kitchen has been disconnected; and if they do not get approval to use the second kitchen,
they will not use it. Ms. Deans stated normally the house parents are the ones who do the
cooking and they model as parents for the families so normally when dinner is served
they eat with the people who live in the home as a family. She stated a second kitchen
may not be necessary. Mr. Marte stated this is why he asked the question and was
surprised when Ms. Deans answered that the house parents have a separate kitchen.
Ms. Deans stated it is not entirely a separate kitchen but they do have microwaves and
similar things so they can have their privacy. She is not sure that they have a full kitchen.
Ms. Kirk noted the next Hearing is scheduled for August 2 and two items are currently
scheduled for that evening. She asked if Mr. Schneider anticipates he will be able to
complete testimony at the meeting on August 2. Mr. Schneider stated he has two more
witnesses. One he estimates will be short which is testimony from the real estate agent,
and the other is expert testimony on mental retardation from a physician who is in charge
of the medical program at the Officer of Mental Retardation. He anticipates it will take
approximately one and a half to two hours for direct examination of his two witnesses,
but there is still cross. Mr. Schneider asked about the possibility of another special
meeting. Ms. Kirk noted she will not be available for the regular meeting scheduled for
August 16. Ms. McGrath noted Mr. Koopman will be on vacation for the next meeting
scheduled for August 2. After discussion it was suggested schedule a special meeting for
Tuesday, August 9 starting at 7:00 p.m. and Allegheny would be continued until that
time and not attend the August 2, 2005 meeting. Mr. Caiola noted he would not be
July 19, 2005 Zoning Hearing Board – page 35 of 35
available on August 9, but Mr. Schneider and Mr. DeGrezia stated they would have no
objection to Mr. Caiola reviewing the transcript of that meeting.
Ms. Kirk moved, Mr. Bamburak seconded and it was unanimously carried to continue the
matter to August 9 at 7:00 p.m.
Ms. Kirk suggested that Mr. Schneider and Mr. DeGrezia contact Mr. Koopman to see
how to coordinate the witnesses and cross examinations.
Mr. Schneider stated that he does have two witnesses who were not present tonight and is
not able to check their schedule for their availability for August 9 although he feels there
will be several hours of cross-examination for Mr. Champ so there may have to be
another Hearing after the August 9 meeting. Ms. Kirk suggested that he bring those
witnesses schedules so if they have to have another special date, he would have this
There being no further business, Mr. Caiola moved, Mr. Bamburak seconded and it was unanimously carried to adjourn the meeting at 11:15 p.m.
David Malinowski, Secretary