TOWNSHIP OF LOWER MAKEFIELD

ZONING HEARING BOARD

MINUTES – JULY 19, 2005

 

 

The regular meeting of the Zoning Hearing Board of the Township of Lower Makefield was held in the Municipal Building on July 19, 2005.  Chairman Kirk called the meeting to order at 7:35 p.m. noting that the Board will adjourn at 11:00 p.m. and those matters not completed by that time will be continued to the next scheduled meeting.

 

 

Those present:

 

Zoning Hearing Board:  Barbara Kirk, Chairman

                                                David Malinowski, Secretary

                                                Paul Bamburak, Member

                                                Darwin Dobson, 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

                                                 progress)

                                                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

discrepancies are. 

 

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

enforcement notice.

 

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 1472 Hidden Pond Drive  in

Lower Makefield Township.  He has resided there for three and a half years. 

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 Lower Makefield

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 532 Stony Hill Road.  Ms. Frick

stated she is, and according to her records the owner is Tristram Heinz and Alisandra

Cummings.

 

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

1355 Edgewood Road.  Ms. Frick stated she has seen this property at 532 Stony Hill

Road at least four to five times over the past two years.  She stated it is Lot #28 of the

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 Stony Hill Road.  It is in the R-2 Zoning District. 

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 1355 Edgewood Road, but also

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

mailed to 532 Stony Hill Road.  A copy of this green card was marked as Exhibit T-3.

 

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

over the Holiday and presented the pictures, the Township took the appropriate action. 

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

Judgment. 

 

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 Nancy

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

pages.

 

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

agreed.

 

Mr. Marte stated the records on Exhibit T-9 indicate Final Building failed on 11/27/02

and 12/2/02 Final Building failed – no entry.  Ms. Frick agreed and stated this is the last

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

identified.

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 this was Lot #28 of Hidden

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

reviewing agencies.

 

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 532 Stony Hill Road and includes with this

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 Holiday. 

 

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

her letter.

 

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.  Mt. Heinz stated it is E P

Henry Block and it is new.  He stated the material underlying this new block is clearly

very old.

 

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

it. 

 

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 County

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  at Temple University with a specialty in Colonial Pennsylvania. 

She has also been involved in writing the history of Lower Makefield and local

architecture since she moved to Lower Makefield in 1984.  Mr. Heinz asked about the

“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 Lower Makefield Township and possibly in the Southeast region of

Pennsylvania. 

 

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 – ALLEGHENY VALLEY SCHOOL

 

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 Commonwealth of Pennsylvania and is a Budget Analyst and

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 Pennsylvania.  She moved into the Central Office for the Office 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

Counties.

 

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 Commonwealth of Pennsylvania, and Ms. Deans

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

separate programs. 

 

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

appropriations. 

 

 

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 Allegheny Valley School is a non-State provider, and Ms. Deans

stated it is.  He asked for an explanation of State funding for providers like Allegheny

Valley School.  Ms. Deans stated for existing programs the standard methodology for rate

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 Greenwich is an eighty-four bed facility and

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 Allegheny Valley

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 Greenwich contacted AVS

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 Greenwich site and agreed with

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

the community.

 

Mr. Schneider asked if Ms. Deans was involved in reviewing Allegheny Valley School’s

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

Retardation asked Allegheny Valley School to submit proposals for group homes, and

Ms. Deans stated they did because the Office took a look at the Greenwich building and

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 Greenwich program, to move people into small community

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 Greenwich, they realized this was not sufficient to meet the

needs of everyone at the Greenwich program in a four-person home. She stated AVS has

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 Greenwich, could not Allegheny Valley School have

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 Lower Makefield are large enough that they require less money for

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

Pennsylvania.  Ms. Deans stated these individuals are from this area and so they maintain

them in this area. 

 

Mr. Schneider asked if Ms. Deans oversees Allegheny Valley School’s implementation

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 Dauphin, Allegheny, Butler,

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 Allegheny Valley School’s reputation

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 Allegheny Valley School’s reputation

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 Allegheny Valley School’s care of a resident. 

 

Mr. Schneider asked if Ms. Deans is familiar with Allegheny Valley School’s reputation

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 complaints about Allegheny Valley

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

possible. 

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

the cost. 

 

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 Allegheny Valley School’s limitations are established by the State and

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 Greenwich facility.  She stated it was not 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 Greenwich, it would have been approved, and

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

from the Greenwich facility which is in Philadelphia, in the Philadelphia area; and she

asked how she defines the Philadelphia area.  Ms. Dean stated it is very difficult to find

handicap accessible homes inside the city of Philadelphia so they frequently look in the

suburbs when they look for additional homes.  She stated they have ICF MRs in Bucks,

Montgomery, Delaware, Berks, and Chester Counties.  Ms. McGrath stated Ms. Deans

indicated it was difficult to find a handicap-accessible home in Philadelphia, and

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

Lower Makefield are one-floor homes, and Ms. Deans stated the area where the residents

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

information available.

 

 

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.

 

                                                                        Respectfully Submitted,

 

 

 

 

                                                                        David Malinowski, Secretary