TOWNSHIP OF LOWER MAKEFIELD

ZONING HEARING BOARD

MINUTES – NOVEMBER 1, 2005

 

 

The regular meeting of the Zoning Hearing Board of Lower Makefield Township was held in the Municipal Building on November 1, 2005.  Chairman Kirk called the meeting to order at 7:35 p.m.  Ms. Kirk noted that the Board will adjourn at 11:00 p.m. 

 

Those present:

 

Zoning Hearing Board:  Barbara Kirk, Chairman

                                                David Malinowski, Secretary

                                                Paul Bamburak, Member

                                                Greg Caiola, Alternate

 

Others:                                     Robert Habgood, Code Enforcement Officer

                                                Jennifer McGrath, Township Solicitor

                                                Allen Toadvine, Zoning Hearing Board Solicitor

                                                Steve Santarsiero, Supervisor Liaison

 

Absent:                         Rudolph Mayrhofer, Zoning Hearing Board Vice Chair

                                                Darwin Dobson, Member

 

 

APPEAL #05-1311, #05-1312, #05-1313 – ALLEGHENY VALLEY SCHOOL

 

Mr. Bernard Schneider called Leonard Gabriel who was sworn in.  Mr. Gabriel stated

he is a Licensed Real Estate Appraiser licensed in the Commonwealth of Pennsylvania.

He also has a Real Estate Broker’s License.  Mr. Schneider showed what was marked as

Exhibit A-39, and Mr. Gabriel stated this is his resume which states his experience and

education.  Exhibit A-40 was marked, and Mr. Gabriel stated this is his Appraiser

Certification.  Exhibit A-41 was marked, and Mr. Gabriel stated this is his Corporate

License.  Exhibit A-42 was marked, and Mr. Gabriel stated this is his Broker’s License. 

 

Mr. Toadvine asked if there was any objection to Mr. Gabriel being qualified as a Real

Estate expert, and Ms. McGrath Mr. Pastor had no objection.

 

Mr. Gabriel was asked what an Appraiser does, and Mr. Gabriel stated they evaluate real

property for the purpose of estimating market value.  He stated this entails inspection of

the property, researching recent sales in the area, and making a final reconciliation.  He

stated there are times when he must determine past sales.  Mr. Schneider asked what

information he relies on to determine past sales, and Mr. Gabriel stated he uses the MLS

service which is the Multiple Listing Service.  Mr. Schneider asked if Agents and Brokers

also rely on the MLS to determine what properties are available for sale, and

Mr. Gabriel stated they do.

November 1, 2005                                                      Zoning Hearing Board – page 2 of 37

 

Mr. Schneider asked if Mr. Gabriel has performed appraisals in Lower Makefield

Township, and Mr. Gabriel stated he has performed approximately 640 to 700 appraisals

in Lower Makefield Township over the past five years. 

 

Mr. Schneider stated he asked Mr. Gabriel to determine the availability of properties of at

least five acres in Residential Districts in Lower Makefield Township between

11/22/04 and 5/5/05.  He noted Exhibit A-43 and Mr. Gabriel stated this is the Search

Screen that come up on the MLS asking for various input including whether the property

is active, pending, or has closed, as well as acreage, dates, and price.  He stated he

checked off all categories and did not limit it to Residential.  He noted Exhibit A-43

shows the properties, but noted they are no longer available today as they were

withdrawn or expired.  Mr. Gabriel noted there were three available during the time

period noted by Mr. Schneider for which they have MLS information.

 

Exhibit A-44 was marked which is the listing for the property at 1667 Dorby Road in

Yardley which was listed 2/16/05 with an asking price of $1,200,000.  Exhibit A-45 was

marked which is the listing for the property at 500 Stony Hill Road in Yardley listed

4/26/05 with an asking price of $869,900. 

 

Ms. Kirk asked about the Notation in the upper right hand corner “RESX/R $789,900. 

Mr. Gabriel stated RES indicates that it is Residential, X/R means that it has expired, and

$789,900 is the price at which it expired.  Mr. Gabriel stated the listing expired 98 days

later or 8/1/05.  Ms. Kirk asked where the listing price is shown on Exhibit A-45, and

Mr. Gabriel stated on that copy, the listing price has been cut off.  Mr. Schneider agreed

to substitute copies with the prices shown.

 

Exhibit A-46 was marked, and Mr. Gabriel stated this is for the property at 583

Washington-Crossing Road in Lower Makefield Township. This was put up for sale on

3/23/05 with an asking price of $799,000.  This is an expired listing.  The price at the

time it expired was $799,000. 

 

Mr. Schneider provided tonight to Mr. Toadvine Exhibit A-44A (Dorby Road), Exhibit

A-45-A (Stony Hill Road), and Exhibit A-46A (Washington Crossing Road) which have

the listing prices shown.

 

Exhibit A-47 was marked, and Mr. Gabriel stated this is a print-out from the Real Estate

Directory for the property at 777 Township Line Road.  He stated the Real Estate

Directory is a computer data base taken from Doylestown showing all the Deeds as they

are recorded, and Appraisers also rely on these.  Mr. Gabriel stated he went to the Real

Estate Directory as not many properties came up on the MLS.  He stated this Directory

shows sales and not active listings.  He stated the 777 Township Line Road property had

a settlement date of 3/2/9/05 and was for a developed property with a building on it.  He

stated it is a warehouse property on ten acres on Township Line Road.  The Zoning was

shown as R-4, but is it a warehouse property.  The sale price was $3,036,992.

November 1, 2005                                                      Zoning Hearing Board – page 3 of 37

 

 

Exhibit A-48 was marked, and Mr. Gabriel stated this was the only other large acreage

parcel that he found in the Real Estate Directory for the period noted and is for 1347

Woodside Road. This is vacant land, zoned R-2.   This settled 3/31/05 with a sale price of

$650,000 for 9+ acres. 

 

Exhibits A-39 through A-48, including A-44A, A-45A,and A-46A were moved for

admission and were admitted.

 

Ms. McGrath asked Mr. Gabriel if these were the only properties he found during the

timeframe, and Mr. Gabriel stated these were the only ones of five acres or more. 

Ms. McGrath noted Exhibits A-44, A-45, and A-46 and noted the top left corner where it

states “5 Total Properties” and asked if there were two others that came up in his search.

Mr. Gabriel stated there were two other properties they did not use.  Mr. Gabriel stated

they were from a different search.  He noted a parcel that was listed in June 2005 so it

was out of the timeframe he was given.  He stated it was a five acre parcel with a large

residential home located at 1511 Lindenhurst Road with an asking price of $999,900. 

He stated this is an active listing.  He stated the other parcel was 1600 Thistlewood Drive,

but it was also out of the time period.  The asking price for this property was $869,900. 

 

Ms. McGrath noted the properties on A-44, A-45, A-46, A-47, and A-48, and asked if

Mr. Gabriel had ever gone out to the properties, and Mr. Gabriel stated he did drive past

the Woodside Road property but has not seen the other properties.  He has never prepared

any Appraisal Reports for these properties.

 

Mr. Pastor asked if Allegheny Valley School asked him to research market values of

three to four bedrooms homes of approximately ˝ acre in Lower Makefield Township.

 

Mr. Schneider objected due to relevancy.  Ms. Kirk asked for an offer of proof.

Mr. Pastor stated the testimony they offered was that the homes they purchased were less

expensive than five acre properties in Lower Makefield, and he stated the other aspect is

whether there are other homes in the Township or elsewhere that are less expensive than

the homes they actually purchased.  Ms. Kirk overruled.

 

Mr. Gabriel stated Allegheny Valley School did not ask him to research market values of

three to four bedroom homes of approximately ˝ acre in Lower Makefield Township.

 

Ms. Kirk asked for redirect.

 

Mr. Schneider noted another document that Mr. Gabriel had e-mailed to him, and

Mr. Gabriel stated this was part of the five properties referred to by Ms. McGrath.  He

noted this is the Lindenhurst Road property.  Mr. Schneider showed another document

and Mr. Gabriel stated the Thistlewood and Lindenhurst Road properties were part of his

search, but they did not meet the timeframe he was given. 

November 1, 2005                                                      Zoning Hearing Board – page 4 of 37

 

 

There were no questions of this witness from those who had requested Party Status.

 

Mr. Anthony DiRienzo was called and sworn in.  Mr. DiRienzo stated he was a resident

of Lower Makefield for approximately twenty-two years.  He currently lives in

Southampton Township but visits Lower Makefield approximately three to four times a

week, and is familiar with the neighborhoods of Lower Makefield Township. 

Mr. Schneider asked if he has had the opportunity to observe the number of automobiles

in driveways in Lower Makefield Township, and Mr. DiRienzo stated he has and has

frequently seen four automobiles in driveways in Lower Makefield Township. 

Mr. Schneider asked if he has ever seen more than four vehicles in driveways in Lower

Makefield Township.

 

Ms. McGrath objected due to relevance.

 

Mr. Schneider stated Mr. Koopman raised this issue in his questioning of Mr. Champ.

 

Ms. Kirk overruled. 

 

Mr. DiRienzo stated he occasionally sees more than five automobiles in Lower Makefield Township.

 

Mr. Pastor objected and asked what expertise does he have to give testimony.

Mr. Schneider stated Mr. DiRienzo is not an expert witness – he is a fact witness.

 

Ms. Kirk overruled.

 

Mr. Schneider asked when he last lived in Lower Makefield Township, and

Mr. DiRienzo stated he lived in the Township until 1996.  He noted at that time there

were six to seven automobiles in his family.  Mr. Schneider asked if they drove those cars

at all times of the day and night, and Mr. DiRienzo stated they did.  Mr. Schneider asked

if there were ever any complaints from neighbors about driving the cars at all different

times of the day and night, and Mr. DiRienzo stated there were not.  Mr. Schneider asked

if there were visits from the Police about the number of cars, and Mr. DiRienzo stated

there were not.

 

Ms. Kirk asked where he lived, and Mr. DiRienzo stated he lived at 930 Gainsway Road.

Ms. Kirk asked where this is in proximity to the three homes involved in these Appeals,

and Mr. DiRienzo stated it is approximately one half mile from the N. Crescent Blvd.

property.  Ms. Kirk asked if he was the owner, and Mr. DiRienzo stated his parents were

the owners.  Ms. Kirk asked if he was always present at the home all the time to know if

the Police came due to complaints about vehicles in the driveway, and Mr. DiRienzo

stated he was not.

 

November 1, 2005                                                      Zoning Hearing Board – page 5 of 37

 

 

Ms. McGrath asked for what purpose he comes to Lower Makefield Township three to

four times a week, and Mr. DiRienzo stated his mother is still a resident of Lower

Makefield and he is there at least two to three times a week.  He added he also has a

personal friend that lives approximately Ľ mile from one of the subject properties, and he

is there at least twice a week.  Ms. McGrath asked if he purposely looks in the driveways

when he is driving through the Township, and Mr. DiRienzo stated he does not, but he

does notice cars in driveways.  He stated from living in the Township he was also aware

of how many cars his neighbors had.  He stated the friend he visits in the Township has

five cars at his residence as do the people who live next door.  Ms. McGrath asked if

there was one biological family living at the home when he lived with his parents, and

Mr. DiRienzo agreed.

 

Mr. Pastor asked the size of the lot when he lived in Lower Makefield Township, and

Mr. DiRienzo stated it was approximately one half acre with a two-car garage and a large

driveway.  Mr. Pastor asked about the size of the lots and driveways where he has viewed

cars in the driveway. Mr. DiRienzo stated most of the lots in the area are from one half to

one acre in size. 

 

Ms. Kirk asked for re-direct.


Mr. Schneider stated he has no more witnesses tonight, but reserves the right to re-but. 

He stated he may need to call Ms. Frick when she is available.  Ms. Kirk noted at the last

meeting they agreed that Ms. Frick was not available for this evening, and that they

would proceed with other witnesses presented by other Parties in the matter.  Ms. Kirk

noted that Mr. Pastor had indicated he would like to present testimony of a Land Use

Planner.  Ms. McGrath had no problem with proceeding with this witness.

 

A short recess was taken.  The meeting was reconvened at 8:15 p.m.  Mr. Schneider

moved all his Exhibits.  Ms. Kirk stated based on her notes it does not appear that Exhibit

A-34 through A-38 were moved into Evidence.  There was no objection and the Exhibits

were moved into Evidence. 

 

Ms. Kirk noted that the residents who retained Counsel and appeared at the first Hearing

were represented by Mr. DiGrezia, and she asked if he is with Mr. Pastor’s firm.

Mr. Pastor stated they are different firms, but they are acting as Co-Counsel. 

Mr. Pastor’s Appearance as Co-Counsel was entered.

 

Mr. Larry Waetzman was called and sworn in.  Mr. Waetzman stated he is President of

The Waetzman Planning Group which is a firm of land planners and landscape architects

located at 1240 County Line Road in Bryn Mawr.  He stated they provide professional

planning services to Municipalities and private clients throughout the eastern U.S. but

primarily in Southeastern Pennsylvania and Southern New Jersey. 

 

November 1, 2005                                                      Zoning Hearing Board – page 6 of 37

 

 

Exhibit P-1 was marked, and Mr. Waetzman stated this is a copy of his resume.  He

stated he has had thirty-three years of professional experiences beginning as a Municipal

Planning Director and continuing in the private sector as a consultant.  He is a Charter

Member of the American Institute of Certified Planners, and licensed as a Professional

Planner by the State of New Jersey.  He stated Pennsylvania does not license planners. 

He stated he is a Past President of the American Society of Consulting Planners and a

former President of the local chapter of the American Planning Association.  He is a

former Director of the Pennsylvania Planning Association.  He stated he is also a member

of the Urban Land Institute.  He is also listed in a number of biographical references

including Who’s Who in American, and Who’s Who in the World, and has spoken at

numerous National and Regional Conferences on subjects related to Planning.  He stated

he conducts a series of seminars on Planning and Land Use Law in New Jersey and has

conducted seminars on behalf of the International Council of Shopping Centers.  He has

prepared Zoning Ordinances and Zoning Amendment sand approximately half of his

practice is devoted to assisting Municipalities.  He stated they have a number of client

communities in New Jersey and Pennsylvania where they serve as consulting staff.  He

stated in other instances they perform specialized tasks such as being hired to draft

Comprehensive Plans and Zoning Ordinances including some in Lower Makefield

Township. 

 

Mr. Waetzman was offered as an expert in Planning.  Ms. McGrath had no objection. 

Mr. Schneider stated he had no objection as to his qualifications as an expert witness but

would like to qualify what he is being offered for.  Mr. Kirk stated Mr. Waetzman will be

accepted as an expert witness in Land Use Planning and asked the offer of proof.

Mr. Pastor stated Mr. Waetzman will testify about the Ordinances in Lower Makefield

Township and the effect of those Ordinances on properties and the Application being

offered by AVS for the use of those properties.  Mr. Schneider stated he feels this sounds

like a legal opinion, and he would object to his testimony.  Mr. Pastor stated as a Planner

he is entitled to offer opinion as to the applicability of the local Zoning to the actual uses

noting this is not necessarily legal opinion but is something that is done ordinarily by

Planners.  Mr. Schneider stated Mr. Pastor has indicated that he will offer testimony on

the application of the Township’s Code which is legal opinion and is what the Zoning

Hearing Board is to do.  He stated he objects. 

 

Ms. Kirk overruled and allowed the testimony noting that the Board will make their

decision as to the applicability of his testimony to their ultimate Decision.

 

Mr. Pastor stated Mr. Waetzman indicated that he assisted Lower Makefield Township

with Planning and asked for a description.

 

Mr. Schneider objected due to conflict of interest.  Mr. Schneider added he did not hear

testimony that he had assisted Lower Makefield; and since Lower Makefield Township at

this point is a Party to this case, he feels this is a conflict of interest in his being a Witness

November 1, 2005                                                      Zoning Hearing Board – page 7 of 37

 

 

for the residents since he has been a consultant to Lower Makefield Township.  Ms. Kirk

stated she understood Mr. Waetzman’s testimony was that he had prepared Zoning

Ordinances for the Township, but this was some time ago.  Mr. Waetzman stated it was

fifteen to twenty years ago.  Ms. McGrath stated Lower Makefield Township has not

taken a position at this point.  Mr. Toadvine stated they do have Party status.

Ms. McGrath but stated they have not taken a formal position..

 

Ms. Kirk asked for a clarification of the question posed by Mr. Pastor, and he stated he

wanted Mr. Waetzman to provide information so that the Board is aware that fifteen to

twenty years ago, he assisted the Township by performing some Planning Services. 

Mr. Waetzman stated this included drafting a portion of the Ordinance which is under

consideration.  He noted he has not done any recent work for the Township.  Ms. Kirk

asked if he was involved in the revisions to the Zoning Ordinance since that time, and

Mr. Waetzman stated he was not.  He has not done any further work for the Township

within the last fifteen years and was not consulted by the Township as a Planner for their

Comprehensive Plan or as to any developments or preservation of Open Space within the

last fifteen to twenty years.  Mr. Schneider stated he has just testified that he drafted a

portion of the Code that is applicable this evening.  Mr. Waetzman stated he did not

indicate that he drafted  all of the Ordinance, but was involved in a major updating of the

Ordinance fifteen to twenty years ago.  He stated his comments are not related

specifically to his work in the Township.  He stated his comments are related to the fact

that he has personal experience of the impact of group homes on the community as he

resides across the street from one, and secondly because he does have thirty-three years

of experience in writing and helping Municipalities better understand the Ordinances. 

 

Mr. Schneider stated he is testifying without a questioned being posed before him.

 

A brief recess was taken at this time.

 

The meeting was reconvened at 8:25 p.m.

 

Ms. Kirk stated after the Board consulted with their Solicitor concerning the objections

raised as to Mr. Waetzman’s testimony, she will allow the testimony but cautioned

Mr. Pastor that Mr. Waetzman is not present to provide a legal opinion or basis, so the

questions must be framed in such a way that he is providing testimony as to his expertise

but not as to the ultimate legal question being decided by the Zoning Hearing Board.

 

Mr. Pastor asked Mr. Waetzman if he is aware that AVS’s proposed use of the three

single-family homes as group homes is covered by the Federal Fair Housing Act, and

Mr. Waetzman stated yes.  He stated it is unlawful to discriminate in housing

opportunities against persons …

 

 

November 1, 2005                                                      Zoning Hearing Board – page 8 of 37

 

 

Mr. Schneider objected since this is a legal opinion, even though it is favorable.

 

Mr. Pastor asked if Group Homes are covered by the Federal Fair Housing Act.

 

Mr. Schneider objected citing legal opinion.

 

Mr. Pastor stated to determine whether a group home is covered under the Federal Fair

Housing Act is not legal opinion, and a lay person can make that assessment.  He stated

they have a person who has been accepted as an expert planner with experience in these

types of issues, and he can testify based upon his background and expertise as to what is

and is not covered by the Federal Fair Housing Act.

 

Mr. Schneider objected.

 

Ms. Kirk stated the Objection is noted.  Ms. Kirk asked Mr. Waetzman,  in his profession

as a Land Use Planner, how does the Federal Fair Housing Act apply to group homes.

 

Mr. Schneider objected citing legal opinion.

 

Ms. Kirk overruled. 

 

Mr. Waetzman stated he deals with both Federal and State Fair Housing Acts as a

continuous part of his planning practice.  He stated he is currently engaged in preparing

seven affordable housing plans for Municipalities, and he has testified in matters

involving assisted-living facilities where Fair Housing claims were brought.   He stated

he has read the Act and knows its general applicability.  He is also familiar with the fact

that reasonable accommodations must be made for group homes.

 

Ms. Kirk asked about the affordable housing plan Mr. Waetzman referred to.

Mr. Waetzman stated this is in New Jersey where there is a doctrine called Mount Laurel

which required that each Municipality periodically prepare a housing plan that provides

opportunity for housing for persons of low and moderate income. He stated there are a

number of ways that properties can qualify for inclusion in those Plans, and one of those

ways is what the State refers to as an alternative living arrangement which could include

a group home.

 

Mr. Schneider objected noting beyond being a legal opinion, this is irrelevant as it relates

to New Jersey law.

 

Ms. Kirk overruled. 

 

Mr. Toadvine stated this is a question being asked by the Chairman of the Board.

 

November 1, 2005                                                      Zoning Hearing Board – page 9 of 37

 

 

Mr. Schneider stated with due respect to the Chairman, this does not make it not

objectionable, and he needs to protect his rights.

 

Mr. Toadvine stated he feels it would be in everyone’s interest if they allowed some

latitude noting they are not governed by the rules of evidence and they do allow hearsay

and other objectionable forms of evidence.

 

Mr. Waetzman stated he has also testified in Pennsylvania on behalf of Springfield

Township in Delaware County in a matter that involved the construction of an assisted-

living facility in a Residential Zone where it was not permitted and that case also had

implications with the Federal Fair Housing Act.

 

Ms. Kirk asked how the Mount Laurel Doctrine is applicable to Pennsylvania, and

Mr. Waetzman stated it is not.  He stated the question he was asked was related to the

seven housing plans he has been involved with and these happened to be in New Jersey

which has the requirement to provide for affordable housing.  He stated in order to do

that, they have to look at a variety of opportunities and some of those included providing

group homes.

 

Mr. Pastor asked Mr. Waetzman if he has any personal knowledge about the impact of

any group homes,  such as those proposed by Allegheny Valley School, has on a

residential neighborhood.  Mr. Waetzman stated he does, noting he lives at 2725 Pine

Valley Lane which is a corner lot.

 

Mr. Schneider objected to the relevancy as what affect other providers of group homes

have on the neighborhood is irrelevant.  He stated in this instance they are dealing with

Allegheny Valley School group homes specifically for people with moderate, severe, and

profound mental retardation.  He stated there is no foundation that the group home

Mr. Waetzman is referring to is an Allegheny Valley School group home or that it is for

people with moderate, severe or profound mental retardation. 

 

The objection was sustained.  Ms. Kirk asked that Mr. Pastor rephrase the question.

 

Mr. Pastor asked to come back to the issue.

 

Mr. Pastor asked Mr. Waetzman if he is aware whether the Federal Fair Housing Act

preempts local Municipal Zoning Ordinances.

 

Mr. Schneider objected based on legal opinion.

 

Mr. Pastor disagreed and stated as Planner, this is in the purview of a Planner.

 

 

November 1, 2005                                                    Zoning Hearing Board – page 10 of 37

 

 

Mr. Schneider stated whether or not the Federal Act preempts local Ordinances is a legal

question.  He stated even an attorney being asked that question under Pennsylvania law,

cannot answer it as it is not the subject of an expert opinion under Pennsylvania law.

 

Mr. Pastor stated it is up to the Board to determine the weight to be given to the

testimony, and the Board can make its own determination as to the legality of the issue

presented.  He stated they are providing the testimony to provide the factual basis and

analysis of land use planning for the Board to make that determination.

 

Mr. Schneider stated this is done by oral argument or brief at the end of the Hearing.

 

Ms. Kirk asked that Mr. Pastor rephrase.

 

Mr. Pastor asked Mr. Waetzman if he can testify as to the impact group homes will have

on a neighborhood.

 

Mr. Schneider objected.  He stated he has not indicated that these are Allegheny Valley

School group homes or homes for those with moderate, severe, and profound mental

retardation.    He stated group homes could include homes for other sorts of disabilities

and could include homes for people with no disabilities at all.

 

Mr. Pastor stated they acknowledge that AVS does not currently have any homes in

Lower Makefield Township that they can address specifically, but they are attempting to

provide testimony to show the types of issues that the Board may wish to consider in

making a determination as to the Appeal.  He stated without a basis of that testimony, the

Board is lacking in ability to look at all the issues.

 

Ms. Kirk overruled but directed Mr. Waetzman to answer in terms of specific types of

group homes that he has come across during his expertise as a land use planner.

Mr. Waetzman asked if he can also share with the Board his personal experience with

living across the street from such a home.  Ms. Kirk recommended that at this time, since

he has been offered as an expert witness, he proceed with his expert testimony; and he

could then be called as a Fact Witness.  She stated she would prefer not to mix the two at

this point.

 

Ms. Kirk stated the question that was presented was the impact of group homes within

Residential areas, and she asked that he clarify the types of group homes to which he is

referring in his answer.  Mr. Waetzman stated his answer refers to group homes for

individuals suffering from mental retardation, from developmental disabilities, and from

other chronic illnesses.  He stated he will not testify as to halfway houses or other types

of group homes.

 

 

November 1, 2005                                                    Zoning Hearing Board – page 11 of 37

 

 

Mr. Schneider asked that the testimony be limited to mental retardation.  He stated there

has been testimony that mental retardation is not an illness or disease, so that chronic

illness is not an issue.

 

Mr. Pastor stated they would need to provide definitions as to what that is, and they will

get to this in their testimony.  He stated in addition, the issues associated with parking

would be across-the-board regardless of the nature of the group home, as would other

similar issues.  He stated these are issues that the Board should consider in rendering their

decision.

 

Ms. Kirk overruled the objection allowing Mr. Waetzman to testify.

 

Mr. Pastor asked Mr. Waetzman if he attended prior Hearings with regard to the AVS

Appeal, and Mr. Waetzman stated he did.  Mr. Pastor asked if he is aware that the Zoning

Officer for Lower Makefield Township has interpreted AVS’s proposed use as a Nursing

Home, and Mr. Waetzman stated he is so aware.  Mr. Pastor asked if he is aware of the

Ordinance which addresses Nursing Homes, and Mr. Waetzman stated he is.

Mr. Pastor asked that he describe the Ordinance.

 

Mr. Schneider objected as it is a legal opinion.  Mr. Toadvine stated he is describing the

Ordinance and is not rendering a legal opinion.  Ms. Kirk overruled.

 

Mr. Waetzman noted Section 200-68A27 of the Lower Makefield Township Zoning

Ordinance defines a Nursing Home as a “skilled or intermediate care facility licensed by

the Commonwealth of Pennsylvania to provide full-time, convalescent, or chronic care to

individuals who by reason of advanced age, chronic illness, or infirmity, are unable to

care for themselves.”  He stated it also classifies Personal Care Homes as Nursing

Homes.  Mr. Waetzman stated he was present when Ms. Dean, the State Budget Analyst,

was called as a Witness by AVS, and spoke of the three proposed facilities as

Intermediate Care Facilities.  He stated this is also listed in AVS’s Application. 

 

Mr. Schneider objected noting this misstates the record as Ms. Dean referred to

Intermediate Care Facilities for the Mentally Retarded and also explained that there is a

difference between an Intermediate Care Facility and Intermediate Care Facilities for the

Mentally Retarded.

 

Ms. Kirk overruled and stated the testimony as provided to the Board from Transcripts of

the Court Reporter will speak for themselves.

 

Mr. Waetzman stated if he had been allowed to continue, he was going to inform the

Board that Ms. Dean testified that there was a difference under State and Federal

Regulations between this type of Intermediate Care and other types of Intermediate Care. 

 

November 1, 2005                                                    Zoning Hearing Board – page 12 of 37

 

 

He stated the issue here is not what State and Federal regulations state, rather the issue is

what the Township…

 

Mr. Schneider objected.  Mr. Toadvine stated it does not appear that he is answering a

question at this point.  He stated he feels the question was to describe the provision of the

Zoning Ordinance, and he feels this was answered. 

 

Mr. Waetzman stated he is trying to demonstrate how this particular Application very

specifically fits the Township’s Ordinance definition.

 

Mr. Schneider stated this is clearly a legal question and he objects.

 

Ms. Kirk sustained..

 

Ms. Kirk stated it is the Board’s determination to ascertain whether or not that provision

of the Code is applicable to the Application by Allegheny Valley School.

 

Mr. Pastor asked if Mr. Waetzman listened to prior testimony from witnesses for AVS at

prior Hearings regarding use of the homes as Intermediate Care Facilities, and

Mr. Waetzman stated he did.  Mr. Pastor asked Mr. Waetzman if he has looked at the

Ordinance and determined whether or not these facilities qualify as Intermediate Care

Facilities.

 

Mr. Schneider objected as this is a legal opinion.

 

Ms. Kirk sustained. 

 

Mr. Pastor asked that Mr. Waetzman define the different between an Intermediate Care

Facility and an Intermediate Care Facility for the Mentally Retarded.

 

Mr. Schneider objected, noting Mr. Waetzman has not been qualified in this area and has

been qualified as a Planner and not a Regulatory Agent for the State.

 

Mr. Pastor was asked to rephrase.  Mr. Pastor asked Mr. Waetzman if he heard the prior

testimony offered by the expert for AVS as to the difference between an Intermediate

Care Facility and an Intermediate Care Facility for the mentally retarded, and

Mr. Waetzman stated he did.  He stated the basis for the difference was State and Federal

Regulations.  Mr. Pastor asked Mr. Waetzman if he was aware of these Regulations, and

Mr. Waetzman stated he is not as intimately as the Witness was.   Mr. Pastor asked if that

Witness refer to any instances of chronic care.

 

Mr. Schneider objected noting that he is asking this Witness to repeat for the Board the

testimony of a prior Witness which is already part of the record.

November 1, 2005                                                    Zoning Hearing Board – page 13 of 37

 

 

Mr. Pastor stated he is trying to lay a foundation.

 

Ms. Kirk allowed this to give Mr. Pastor latitude, but asked that they bring this matter

forward.

 

Mr. Waetzman stated there are two critical elements in the Township’s definition.

 

Ms. Kirk stated the question was did he hear the prior testimony, and Mr. Waetzman

stated he did. 

 

Mr. Pastor asked if that testimony concerned chronic care, and Mr. Waetzman stated it

did.  Mr. Pastor asked if the local Ordinance addresses chronic care, and Mr. Waetzman

stated it does not.  He stated it is not defined in the local Ordinance.  He stated the

Ordinance states that when a term is undefined …

 

Mr. Schneider objected as this is a legal opinion.

 

Ms. Kirk overruled.

 

Mr.  Waetzman stated the Ordinance states in Section 12.008 that “words not specifically

defined by this Ordinance, shall be interpreted to have a standard dictionary meaning.”

Mr. Waetzman stated among the definitions of “chronic” found in Webster’s …

 

Mr. Schneider objected as this is a legal opinion.

 

Ms. Kirk overruled.

 

Mr. Waetzman stated among the definitions of “chronic” found in Webster’s Unabridged

Dictionary Second Edition are “having long had a disease, habit, weakness, or the like;

and of a disease having a long duration.”  He stated the same Dictionary goes on to define

a “disease” as …

 

Mr. Schneider objected as this is a legal opinion.

 

Ms. Kirk overruled.

 

Mr. Waetzman stated a “disease” is “a disorder or incorrectly functioning organ, part,

structure, or system of the body resulting from the effect of genetic or developmental

errors, infection, poisons, nutritional deficiency or imbalance, toxicity, or unfavorable

environmental factors, illness, sickness, or ailment.”  Mr. Waetzman stated clearly mental

retardation falls …

 

 

November 1, 2005                                                    Zoning Hearing Board – page 14 of 37

 

 

Mr. Schneider objected as this is legal opinion as he is going to testify whether or not

mental retardation meets that definition and this is a legal opinion.

 

Ms. Kirk sustained.

 

Mr. Pastor asked Mr. Waetzman as an expert planner, has he formed an opinion as to

whether a Nursing Home as defined in the Lower Makefield Township Ordinance is an

Intermediate Care Facility.

 

Mr. Schneider objected as this is a legal opinion.

 

Ms. Kirk overruled.

 

Mr. Waetzman stated he has formed an opinion.  Mr. Pastor asked the opinion.

 

Mr. Schneider objected as this is a legal opinion.

 

Ms. Kirk overruled.

 

Mr. Waetzman stated that it is his opinion as a professional Planner with over thirty-three

years of experience that AVS’s three proposed facilities in Lower Makefield Township

meet the statutory definition in the Zoning Ordinance.

 

Mr. Schneider objected stated this is a legal opinion.

 

Ms. Kirk overruled.

 

Mr. Waetzman stated they meet the statutory definition of the Nursing Home in that they

are licensed by the Commonwealth of Pennsylvania and they provide full-time care to

individuals who by reason of chronic illness or infirmity are not able to care for

themselves.

 

Mr. Schneider moved that this be stricken for lack of expertise and lack of foundation

because he has not shown himself to be an expert of chronic illness or infirmity.

 

Ms. Kirk overruled and it will remain in the record.  She stated it is the Board’s decision

to place the appropriate weight on his testimony in his position as an expert Land Use

Planner in deciding the ultimate legal question before the Board. 

 

Mr. Pastor asked if it is his expert opinion as a Planner, that the use of these homes would

qualify as Nursing Homes under the local Ordinances.

 

 

November 1, 2005                                                    Zoning Hearing Board – page 15 of 37

 

Mr. Schneider objected stating this was asked and answered and objected stating this is a

legal opinion.

 

Ms. Kirk overruled. 

 

Mr. Waeztman stated this is his opinion.

 

Mr. Pastor asked Mr. Waetzman to explain the difference, based on his expertise, of the

definition of Nursing Home and that of a single-family home based upon the local

Ordinance.

 

Mr. Schneider objected as this is a legal opinion.

 

Ms. Kirk overruled.

 

Mr. Waetzman asked that he answer in his position as a Land Use Planner. 

Mr. Waetzman stated as a Planner everyday he reads, writes, and interprets Zoning

Ordinances.  He stated AVS has claimed that the Township permits single-family

dwellings in the Zoning Districts, and that a “family” is defined to include up to six

individuals plus servants who are without number.  He stated they have argued that the

house family and the individuals who are additional caregivers to the six client

residents

 

Mr. Schneider objected noting this is going beyond the scope of the question which was,

"Is there a difference between a Nursing Home and a single-family residence." 

 

Mr. Waetzman was asked to limit his response to the question.  Mr. Waetzman stated

they have heard testimony that AVS intends to provide care for six unrelated individuals

and that care would be provided …

 

Mr. Schneider objected noting he is not responding to the question.

 

Ms. Kirk asked Mr. Pastor to direct his witness to answer the question as presented. 

 

Mr. Pastor asked Mr. Waetzman if he is aware of the position taken by AVS with regard

to how to consider servants.

 

Mr. Schneider objected adding that he has stated his own position and will re-state it in

closing argument or brief as the Board desires and does not feel Mr. Waetzman is in a

position to state AVS’s position.

 

Mr. Pastor stated he is asking him based on his personal experience having been present

at several Hearings and reviewing the Application whether he is familiar with AVS’s

position as to the status of servants.  Mr. Waetzman stated he is.

November 1, 2005                                                    Zoning Hearing Board – page 16 of 37

 

Ms. Kirk overruled Mr. Schneider’s objection.

 

Mr. Waetzman stated he is familiar with AVS’s position.  Mr. Pastor asked him the

position, and Mr. Waetzman stated the position is that the caregivers and the house

family constitute servants who are allowed without enumeration under the Township’s

definition of “family.”  Mr. Pastor asked if he agrees with this opinion as an expert

Planner.

 

Mr. Schneider objected as this is legal opinion.

 

Ms. Kirk overruled.

 

Mr. Waetzman stated he does not.  Mr. Pastor asked for an explanation as to why he

disagrees, and Mr. Waetzman stated the intent …

 

Mr. Schneider objected as this is legal opinion.

 

Ms. Kirk overruled.

 

Mr. Waetzman stated the intent of the Zoning Ordinance as enumerated in the

Community Development Objectives is to control intensity of use, to insure that there is

not over-crowing of the community, and to provide for appropriate regulations to insure

that residential neighborhoods are not overburdened unduly.

 

Mr. Pastor asked what AVS has applied for in their Application with regard to the

number of people in the home.  Mr. Waetzman stated they seek accommodation for six

mentally-retarded individuals.  He stated they seek to have the house further occupied by

a house family which may include a husband, wife, and up to two children and the duties

of the house parent were testified to also include supervision of other caregivers so it is a

situation where there will be six mentally-retarded individuals living in the house,  a

house family that could contain four individuals, but clearly if they hire a house family

that has two children and the wife becomes pregnant, it would be discriminatory to

dismiss that person; and they could have a higher number.  He stated there has also been

testimony that there will be an additional one to two caregivers per shift so potentially

they could have eleven to twelve persons occupying the house on a 24-hour a day basis. 

 

Mr. Pastor asked if he has reviewed any Census Information for Lower Makefield, and

Mr. Waetzman stated he has.  He stated in 2000 the U.S. Census found that the average…

 

Mr. Schneider objected since averages are irrelevant as to this case.

 

Mr. Pastor stated absent testimony as to each individual home in the Township, he feels

an average is a reasonable basis for the Board to consider when looking at this

Application.

November 1, 2005                                                    Zoning Hearing Board – page 17 of 37

 

 

Mr. Schneider stated an average is not a reasonable basis and a natural family in the

Township could have one person to sixteen people or more living in a house depending

on how fertile the couple was.  He stated as to unrelated people, the limitation is to a

specific number of five people and it is their burden to prove their case; and if they wish

to prove their case adequately, they should bring a census tract to show what the number

of people in the houses are and not look at averages which are irrelevant.

 

Mr. Pastor stated the Board has indicated on many occasions that they will give due

weight to the testimony. 

 

Ms. Kirk overruled the objection.

 

Mr. Waetzman stated the reason Planners use Census Data is that it provides a …

 

Mr. Schneider objected noting he has not been asked this and was asked whether he has

been shown an average on the Census and he is answering questions he has not been

asked. 

 

Ms. Kirk stated the question is what information the Census provided to

Mr. Waetzman.  Mr. Waetzman stated the Census found that there was an average

household size of 2.77 persons per household in the Township and 3.13 persons per

family. 

 

Mr. Pastor asked if AVS’s proposal exceeds the average for Lower Makefield.

 

Mr. Schneider objected since it is irrelevant.  He stated it does not matter whether it

exceeds the average for Lower Makefield Township as the only issue before the Board is

whether it exceeds five and whether or not there should be a reasonable accommodation.

 

Mr. Pastor asked why the averages are important, and Mr. Waetzman stated the averages

provide an indication of the typical situation which the Zoning Ordinance is designed to

regulate.  He stated whether it is 2.77 or 3.07, is immaterial; but whether it is 3 or 12 is

extremely significant because that is an indication of demand on the neighborhood that

the Zoning Ordinance is designed to protect and regulate. 

 

Mr. Pastor asked if Mr. Waetzman is familiar with any testimony offered by AVS

regarding the living quarters for the mentally-retarded persons and for the families that

will be living in the homes.  Mr. Waetzman stated he believes that the testimony was that

separate living quarters will be provided for the house family, that bedrooms would be

provide for the residents, and the caregivers would commute to the site.  Mr. Pastor asked

if he would consider this to be creation of two dwelling units per home, as a Planner.

 

Mr. Schneider objected noting this is a legal opinion.

November 1, 2005                                                    Zoning Hearing Board – page 18 of 37

 

 

Ms. Kirk overruled.

 

Mr. Waetzman stated he would.

 

Mr. Pastor asked if Mr. Waetzman if he is familiar with the local Zoning Ordinance

defining a dwelling, and Mr. Waetzman stated he is.  Mr. Pastor asked how the local

Zoning Ordinance defines “dwelling.”  Mr. Waetzman stated “dwelling” is defined as a

building containing one or more dwelling units designed or used exclusively as living

quarters.  Mr. Pastor asked if, based upon that definition, in Mr. Waetzman’s opinion as a

planner, would the individual buildings remain dwellings; and Mr. Waetzman stated yes.

 

Mr. Schneider objected as this is a legal opinion.

 

Ms. Kirk overruled.

 

Mr. Waetzman stated they would remain dwellings.

 

Mr. Pastor asked if there is a definition of “dwelling” in the Zoning Ordinance relevant to

this matter regarding the use of the rooms; and Mr. Waetzman stated according to the

Ordinance, a “dwelling unit” is “any room or group of rooms located within a dwelling

and forming a single habitable unit with facilities which are used or intended to be used

for living, sleeping, cooking, bathing, and eating by one family.”  He added the definition

does not prohibit shared cooking, bathing, and eating facilities by each of two families. 

He stated in his opinion…

 

Mr. Schneider objected as this is a legal opinion.

 

Ms. Kirk allowed Mr. Waetzman to finish, and he stated this is a situation where this is a

two-family dwelling. He stated there is one family consisting of the client/residents and

their caregivers and a second family, or dwelling unit, which is occupied by the host

family, or house family, which may or may not be employed in the care of the residents. 

He stated there has been testimony that one of the spouses would be involved and

possibly both, but he stated a case could not be made that the children are caregivers or

servants to the family; therefore, they constitute a second living unit, a second dwelling

unit, in a Zoning District that only permits one dwelling unit per lot.

 

Mr. Pastor asked the Zoning classification for the area where the homes are located, and

Mr. Waetzman stated they are in the R-2 Residential District.  Mr. Pastor asked if the R-2

allows for more than one dwelling unit per lot, and Mr. Waetzman stated it does not.

 

Mr. Pastor asked if the conditions described by AVS in their Application lead to a higher

level of activity and impact on the surrounding properties than would be deemed to be

one dwelling unit.  Mr. Waetzman stated it would compared to a typical one-dwelling

November 1, 2005                                                    Zoning Hearing Board – page 19 of 37

 

 

unit.  Mr. Pastor asked him to describe the impact based on his experience.

Mr. Waetzman stated there would be approximately four times the individuals living in

the dwelling as compared to a typical single-family situation.  He stated there would be

more parking and additional amounts of solid waste produced.  He stated the issue is not

reasonable accommodation – it is impact on the neighborhood.  He stated there will be

noises associated with shift workers coming and leaving which would not be in a typical

single-family environment.

 

Ms. Kirk asked in his expertise as a professional planner, what he would define as a

typical family.  Mr. Waetzman noted the Census definition for Lower Makefield which

he already testified to.  He stated the definition for a nuclear family was a husband and

wife and a number of children but now there can be unrelated partners living together,

and unrelated individuals.  He added typically the numbers of those living in dwellings

the size of the three properties in question tonight would be less than the numbers you

would expect to find under the conditions proposed by AVS.

 

Mr. Schneider moved to strike as this was unresponsive as the question was “what is a

typical family.”

 

Ms. Kirk overruled. 

 

Ms. Kirk stated it is not unusual to find single-family units with the number of persons

similar to that proposed by AVS.  Mr. Waetzman stated he would find it highly unusual

in a single-family neighborhood with relatively small houses of 2,000 to 2,500 square

feet to have up to twelve people in the building on a continual basis.  He stated there are

families that have a lot of children, but these are extremely rarer and they would typically

seek larger quarters.

 

Mr. Pastor asked if Mr. Waetzman is familiar with the Bulk Standards for Nursing

Homes as set forth in the Lower Makefield Township Ordinance, and Mr. Waetzman

stated he is.  He stated it requires a minimum lot area of half acre.  In addition there is a

requirement for 300’ lot width, front yards and rear yards should be 100’ deep with two

50’ side yards.  He stated the impervious coverage ratio must be complied with.

Mr. Pastor asked if Mr. Waetzman has investigated the three homes involved and do the

three properties comply with the Bulk Standards for Nursing Homes.  Mr. Waetzman

stated he has investigated them and they would require a significant number of Variances

at each of the three properties.

 

Mr. Pastor asked if AVS could qualify for Variances from either the standards required

for Nursing Homes or from the definition of family.

 

Mr. Schneider objected as this is a legal opinion.

 

November 1, 2005                                                    Zoning Hearing Board – page 20 of 37

 

 

Ms. Kirk sustained.

 

Mr. Pastor asked Mr. Waetzman if he has formed an opinion as to why the Ordinances

require greater area and Bulk Standards for Nursing Homes.  Mr. Waetzman stated this is

because Nursing Homes tend to have larger and more intense impact on the surrounding

area than do single-family homes.  He stated even though there is less traffic in a Nursing

Home than in a Commercial establishment of comparable floor area, you tend to have

deliveries, medical personnel coming in and out,  therapists, and a number of visitors to

the home visiting the residents. He stated the home may also host Holiday parties or

functions at which other members of the community are invited to attend or at least a

larger number of the families of the residents.  He stated all of these provide impact on

the communities which are greater than are found in a single-family home.  He stated

there are also added demands on solid waste collection. 

 

Mr. Pastor noted the N. Crescent Boulevard property and asked Mr. Waetzman’s opinion

as to whether that site conforms to the Ordinance standards for a single-family dwelling.

 

Mr. Schneider objected.

 

Ms. Kirk overruled.

 

Mr. Toadvine asked if the question pertains to the property in its present condition, and

Mr. Pastor stated it does and they will move on from there.  Mr. Schneider stated the

property in its present condition irrelevant, and Mr. Toadvine agreed.

 

Mr. Pastor asked if the proposed use for the property at N. Crescent Boulevard will

comply with the standards for a single-family dwelling unit in the R-2 District.

 

Mr. Schneider objected noting it is a legal opinion.

 

Ms. Kirk sustained.

 

Mr. Pastor noted the Ordinance standards in the R-2 District and asked for an explanation

of the differences for the property as proposed by AVS. 

 

Mr. Schneider objected noting this is a legal opinion.

 

Ms. Kirk sustained.  She stated it is the Board’s function to determine whether or not the

Application either complies with the standards set forth under the Zoning Ordinance or

qualifies under a different aspect of the Ordinance. 

 

Mr. Pastor asked if there are any factual differences between the existing use of the

property on N. Crescent Boulevard and the proposed use of that property by AVS.

November 1, 2005                                                    Zoning Hearing Board – page 21 of 37

 

Mr. Schneider objected stated this is a legal opinion since he would have to apply the

Ordinance in order to determine whether or not the facts are relevant.

 

Mr. Pastor stated he has been qualified as an expert planner and is qualified to review the

Zoning Ordinance as to differences in the application of that Ordinance.

 

 

Ms.  Kirk stated she will allow the testimony in his capacity as an expert Witness, and

the objection is overruled.

 

Mr. Waetzman stated they will have two dwelling units in a single-family home in a

Residential District.  The permitted density will be exceeded in every case by a

significant amount.         The impacts on the community created by inadequate parking will

have an impact on surrounding on-street parking.  The additional increase in trash

collection has been testified to previously.  He stated the setbacks for a single-family

home are not designed for the kind of impact that will be presented by these Applications. 

He stated in his opinion a smaller number of residents could be accommodated, but what

is being proposed today is beyond the scope anticipated by the Lower Makefield

Township Zoning Ordinance.

 

Mr. Pastor asked the same question with regard to the Big Oak Road and the Yardley-

Morrisville Road property, and Mr. Waetzman stated his answer would be the same.

 

Mr. Schneider stated he has just noticed that Mr. Waetzman is reading from a piece of

paper rather than giving testimony.  Mr. Waetzman stated he wrote the paper. 

Ms. Kirk stated the Board does have the ability to determine credibility.  Mr. Schneider

stated his objection is on the record.  Mr. Waetzman stated he wrote the outline which

allows him to cite specific definitions and references rather than having to memorize

them or take the Board’s time to look them up in the Ordinance. 

 

Mr. Pastor asked if Mr. Waetzman is familiar with the Lower Makefield Township off-

street parking requirements for the use of a Nursing Home, and Mr. Waetzman stated he

is.  He stated the Ordinance requires one off-street parking space for every three beds

plus one off-street parking space for each staff doctor.  He stated AVS is proposing that

there will be six resident beds which would require two parking spaces plus beds for the

house family.  He stated while there will be no staff doctors, there will be caregivers who

will be required to commute to their jobs.  He stated there will also be occasions when

family members of the residents will visit.  He stated he did read testimony that a

relatively small percentage of family members come to visit; but there will be some and

there will be Holiday parties when a larger number may come to visit.  He stated there

may also be specialists who come to the house to provide care and this is a situation

where there will be impacts.  He stated there will also be a house van in addition to the

vehicles of the caregivers and other members of the house family which will be parking

on site to take the residents to medical appointments and other events.

November 1, 2005                                                    Zoning Hearing Board – page 22 of 37

 

 

Mr. Pastor asked Mr. Waetzman, based on his review of the Applications and the

testimony he has heard, has he formed an opinion as to how many parking spaces would

be required.  Mr. Waetzman stated the Ordinance provides several applicable definitions. 

He noted the definition for Nursing Home previously.  He stated the Township’s

Ordinance also has a standard of two off-street parking spaces for individual dwelling

units; but requires that when there are joint uses on a property, both uses must provide

parking.  This would therefore require at least four parking spaces.  He stated there is

another standard in the Ordinance which may be applicable which is a standard for

“Other Permitted Uses” in the R-2 District.   He stated there is a standard for permitted

uses that are not otherwise enumerated under the Section for Special Exceptions and

Conditional Uses.  He stated that standard requires a minimum lot area of one acre and a

minimum number of parking spaces of 2.5 spaces per unit; and if you add this for the

residential care facility to the two spaces required for the house family, this would be 4.5

spaces which would be rounded to five spaces.

 

Mr. Pastor asked if Mr. Waetzman is familiar with the parking requirements for

Edgewood Road.  Mr. Waetzman stated he has reviewed the site plan for the house at the

corner of N. Crescent and Edgewood Roads.  He stated he has also measured the site plan

and applied the Township’s Zoning standards, and in his opinion…

 

Mr. Schneider objected.

 

Mr. Toadvine asked that Mr. Pastor ask Mr. Waetzman how many off-street parking

spaces are provided at that location.  Mr. Pastor asked how many off-street parking

spaces are provided on Edgewood Road. 

 

Mr. Schneider objected noting there is no Edgewood Road property.  Mr. Pastor stated

there is a reason why he is getting to Edgewood Road.  He stated he will also get to Big

Oak and Yardley-Makefield as well.  Mr. Toadvine stated he feels he is mis-identifying

the property.  Mr. Waetzman stated it is N. Crescent.  Mr. Pastor stated he recognizes this

but noted that N. Crescent borders Edgewood Road.  Ms. Kirk sustained the objection.

 

Mr. Pastor asked if there is off-street parking available on N. Crescent Boulevard.

Mr. Waetzman stated N. Crescent Boulevard is an extremely narrow street and any on-

street parking would interfere with …  Mr. Toadvine stated he asked if there is any off-

street parking.  Mr. Waetzman stated he feels the property could accommodate two

standard off-street parking spaces and one handicapped space.  Mr. Toadvine asked if the

property has a garage, and Mr. Waetzman stated while it does, he does not know whether

or not the Applicant plans to convert that garage to living space as that testimony has not

been permitted.  Ms. Kirk asked that he assume that it will not be so converted. 

 

Mr. Waetzman stated the Township Ordinance prohibits stacking of spaces.

 

November 1, 2005                                                    Zoning Hearing Board – page 23 of 37

 

 

Mr. Schneider objected noting he is not responding to the question which was how many

spaces are available.

 

Ms. Kirk overruled.

 

Mr. Waetzman stated there is a two-car garage.  He stated if those two parking spaces in

the garage are utilized, it would be impossible to provide any other parking in the

driveway without blocking the garage space.  Mr. Toadvine stated if this is the case then

every home in Lower Makefield Township with a one-car garage and a driveway would

be in violation of the Ordinance.  Mr. Waetzman stated this would be an interpretation for

the Board to make.  Mr. Toadvine asked the question again, and Mr. Waetzman stated the

issue is if you have a family…

 

Mr. Schneider objected as he is not responding to the question.

 

Ms. Kirk sustained and asked Mr. Waetzman to answer the question as presented which

was whether every house in Lower Makefield Township with a one-car garage would be

in violation of the Ordinance, and Mr. Waetzman stated yes if the question is “a house”

as he could not testify to every house in the Township.

 

Mr. Pastor asked if there is any off-street parking permitted on Big Oak Road between

Big Oak Road and Esther Lane, and Mr. Waetzman stated there is. 

 

Mr. Pastor asked if Mr. Waetzman is aware whether on-street parking is allowed in front

of 1203 Yardley Road.  Mr. Waetzman stated it is not posted, but in his opinion, it would

be a highly hazardous situation.

 

Mr. Schneider objected as he is not responsive.

 

Ms. Kirk stated he did answer that it is not posted and he is offering his opinion.

 

The Objection was overruled.

 

Mr. Waetzman stated there is no sign that states that no parking is permitted but there is

also no shoulder on this extremely busy arterial highway.  He stated if the Board chooses

to grant this Application, he would recommend that they request that PennDOT prohibit

parking on street.

 

Mr. Pastor asked if he has ever had need to investigate safety issues in his experience as a

Planner, regarding use of attics and basements as living space.  Mr. Waetzman stated this

is a Code issue.  Ms. Kirk stated they are not dealing with Code issues.

 

 

November 1, 2005                                           Zoning Hearing Board – page 24 of 37

 

 

Mr. Pastor stated the following questions being directed to Mr. Waetzman are in his

capacity as a fact witness regarding the group home in close proximity to his own home.

 

Mr. Schneider objected as irrelevant unless it deals with group homes for the mentally-

retarded.

 

Ms. Kirk overruled.

 

Mr. Pastor asked Mr. Waetzman his address, and he stated he lives at 2725 Pine Valley

Lane in Haverford Township.  Mr. Pastor asked if there is a group home in close

proximity to his residence.  Mr. Waetzman stated his home is located on a corner fronting

on Sunnybrook Lane, and there is a group home at 2725 Sunnybrook Lane which is

operated as a group home for developmentally-disabled individuals under License from

the Commonwealth of Pennsylvania.  He stated it has three developmentally-disabled

residents living there who are served by a staff of caregivers who are on two shifts.

 

Mr. Schneider objected noting this is going beyond the scope of the question.

 

Ms. Kirk sustained. 

 

Mr. Pastor asked if he is familiar with the number of shifts of workers at the group home,

and Mr. Waetzman stated he is.

 

Mr. Schneider objected as irrelevant unless this is a group home run by Allegheny Valley

School as what other providers do is not relevant to this proceeding.

 

Ms. Kirk overruled the objection and indicated that the Board has the ability to assess the

credibility of a Witness and the applicability of their testimony to the proceedings.

 

Mr. Pastor asked how many shifts of workers are there in a typical day.

 

Mr. Schneider objected due to lack of foundation.

 

Ms. Kirk overruled as this is based on his personal observation.

 

Mr. Waetzman stated he has confirmed this with the Director of the Divine Providence

Village which operates the group home.

 

Mr. Schneider objected due to hearsay.

 

Ms. Kirk overruled.

 

 

November 1, 2005                                                    Zoning Hearing Board – page 25 of 37

 

 

Mr. Waetzman stated there are three shifts.  He stated the shifts operate between the

hours of 7 a.m. and 3 p.m. with three caregivers, a second shift from 3 p.m. and 11 p.m.

with three caregivers, and an overnight shift from 11 p.m. to 7 a.m. with two caregivers. 

There is no house family. 

 

Mr. Pastor asked Mr. Waetzman if he has personally observed the number of vehicles

that come and go from the group home.

 

Mr. Schneider objected as irrelevant as based on his description it does not fit the

description before the Board as they are talking about a home with caregivers and two

employees per shift so it is not comparable.

 

Ms. Kirk sustained.

 

Mr. Pastor asked if Mr. Waetzman has any personal observations regarding adverse

impact of the group home on his particular property.

 

Mr. Schneider objected as irrelevant as it is not comparable.  Mr. Pastor stated the reason

for the question is that the Board is being asked to determine the potential impact of a

group home on the residences in Lower Makefield Township.  He stated they have a fact

witness who lives in close proximity to a group home and there may be some issues that

the Board can consider.

 

Ms. Kirk overruled based on his personal observation.

 

Mr. Waetzman stated he observes this on a daily basis.  He stated the home has half the

number of patents proposed by AVS.  It has fewer total people living there because even

though there is no house family, there are three caregivers per shift and only three

patients and the impact in terms of on-street parking are significant.  Mr. Pastor asked the

type of impact the home has.  Mr. Waetzman stated the group home, when it received

permission to operate, converted a two-care garage into additional living space as a

family room.  He stated this left only a driveway which was wide enough to

accommodate two cars.  However, the van that is assigned on a twenty-four hour basis to

this house typically parks in the center of the driveway and all of the caregivers park on

street.  In addition, it is particularly a problem on weekends at the 7 a.m. shift change and

every evening at 11 p.m., when the caregivers are less than considerate that people in the

neighborhood are trying to sleep. 

 

Mr. Pastor asked if he has personal observations regarding activities at the change in

shifts at that home which affect his use and enjoyment of his property.

 

Mr. Schneider objected as there are differences between this home and what has been

described for AVS particularly due to the fact that there is no garage and that there is on

November 1, 2005                                                    Zoning Hearing Board – page 26 of 37

 

 

the street parking.  He stated the testimony has been that there will be off-street parking

for AVS. 

 

Mr. Pastor stated they are discussing a home that by testimony will have fewer residents

and fewer traffic than the proposed homes by AVS and they are establishing something

the Board may want to consider.

 

Ms. Kirk sustained.  She stated she feels Mr. Waetzman’s previous answer sufficiently

addressed this.

 

Mr. Pastor asked if Mr. Waetzman has had any personal observations regarding refuse or

trash at the group home across the street from where he resides, and asked if it is more or

less than his own home.  Mr. Waetzman stated it is substantially more at the group home.

 

Mr. Schneider objected due to relevance.

 

Ms. Kirk overruled.

 

Mr. Pastor asked that Mr. Waetzman provided further details on this.

 

Mr. Schneider objected due to relevance as he has not shown that his home is comparable

to any of the neighborhood homes.

 

Mr. Pastor asked how many residents live in his own, and Mr. Waetzman stated there are

two.

 

Ms. Kirk asked how often trash is collected from the group home across the street from 

his home.  Mr. Waetzman stated it is collected twice a week.  Ms. Kirk asked how many

bags they put out, and Mr. Waetzman stated yesterday there were three trash cans filled

to the top with plastic bags.  He stated there have been occasions in the past when the

plastic bags have overflowed the trash cans; and on rare occasions, the contents have

spilled onto the street and been ripped open by dogs.  He stated there are diapers as many

of the patients are incontinent.  There are also rubber gloves that handle bodily fluids, and

they are exposed to the neighborhood children.  Ms. Kirk asked how often they put out

three cans, and Mr. Waetzman stated this is a typical day and sometimes they exceed this.

 

Mr. Caiola asked if there have ever been health-related issues with the Health Department

coming out or complaints about overflowing trash.  He asked if the trash is picked up by

the Municipality or a private hauler.  Mr. Waetzman stated it is picked up by the

Municipality, but he has not contacted the Board of Health to see if they have had

specific complaints.

 

 

 

 

November 1, 2005                                                    Zoning Hearing Board – page 27 of 37

 

 

Mr. Pastor had no further questions.  Mr. Schneider indicated that he does have cross-

examination.  A short recess was taken at this time. 

 

The meeting was reconvened at 9:45 p.m.

 

Mr. Schneider stated Mr. Waetzman is present because he has a personal animus against

the group home across the street from his home.  Mr. Waetzman stated this is incorrect.

Mr. Schneider asked if he opposed the group home, and Mr. Waetzman stated he did

not.  He stated he consciously did not because he felt there was a moral and professional

obligation to permit this use with reasonable restrictions in a Residential neighborhood. 

He added it is when the impacts exceed the limit permitted by the Zoning Ordinance that

he feels the reasonable accommodation standard is not met.  He stated he did not attend

the Hearing on the matter and trusted the Township to impose adequate safeguards.

 

Mr. Schneider asked Mr. Waetzman if he has complained to anyone about the problems,

and Mr. Waetzman stated he has not.  Mr. Schneider asked if he would like to have

someone on site so that he could complain to about the parking so that the problem could

be taken care of.  Mr. Waetzman stated the reason he has not complained is because as a

professional Planner, he feels there is an obligation to provide housing for people with

disabilities.  He stated there was one occasion when he had a serious problem because

there was one caregiver who was constantly speaking loudly and playing a radio loudly at

times when people were trying to sleep; and he did call the Director of the operating

agency, and she was responsive and that situation stopped.  Mr. Schneider asked if he

would agree that it would be good to have a Supervisor on the scene who could be just as

responsive to discuss problems with.  Mr. Waetzman agreed with regard to a House

Manager, but stated a House Family creates a …

 

Mr. Schneider asked that this be stricken as he only asked about a House Manager.

 

Ms. Kirk advised Mr. Waetzman to just answer the questions.

 

Mr. Schneider asked if Mr. Waetzman heard Mr. Champ’s testimony that one of the

purposes of the House Manager is to be able to deal with problems with neighbors, and

Mr. Waetzman agreed.  Mr. Schneider asked Mr. Waetzman if he feels this is a good

idea; and Mr. Waetzman stated Mr. Schneider is putting words in his mouth.

Mr. Toadvine stated this is cross-examination.  Mr. Schneider again asked if

Mr. Waetzman thinks this is a good idea, noting he could explain his answer after he

answers.  Mr. Waetzman stated the answer is yes, but only when the impacts are in

accordance with Zoning and do not overburden the neighborhood.

 

 

November 1, 2005                                                    Zoning Hearing Board – page 28 of 37

 

Mr. Schneider noted the testimony regarding the dog going through the garbage across

the street from Mr. Waetzman’s home, and asked if this dog was living in that residence.

Mr. Waetzman stated there are no dogs in that residence to his knowledge. 

 

Mr. Schneider asked if he called anyone to complain about the dog, and Mr. Waetzman

stated he did not call about the dog as it is not something that happens on a daily basis

and happens occasionally.  He stated when there are impacts on his community whether

they are from the group home or other inappropriate uses on the block, he has complained

to the Township Commissioner.    Mr. Schneider stated the group home is not the only

one on the block which has impacts about which he has complained, and

Mr. Waetzman stated there was a neighbor at the end of the block who was operating a

used car agency from his property, and he did complain about this to the Township

Commissioner and that use ceased immediately. 

 

Mr. Schneider asked if Mr. Waetzman has ever observed any AVS group homes, and

Mr. Waetzman stated he has not. 

 

Mr. Schneider asked Mr. Waetzman if he is being paid to be present this evening, and

Mr. Waetzman stated he is at a reduced rate.  Mr. Schneider asked the rate he is being

paid.

 

Mr. Pastor stated this is irrelevant.

 

Mr. Schneider stated it goes to credibility.  Mr. Pastor stated the fact that he is being paid

has been asked and answered and the rate is an irrelevant issue for the Board. 

Mr. Schneider stated the rate goes to credibility.

 

Ms. Kirk allowed the question, and the objection was overruled.  

 

Mr. Waetzman stated when he was originally contacted by the group of neighbors who

retained him, he gave them his standard rate which is $175 an hour.   They began to have

financial problems due to the extraordinary length of the proceedings, and he reduced it

to $160 an hour and finally was asked to stop attending the meetings because the costs

were becoming prohibitive.  He was asked to consider attending this evening’s meeting at

a flat rate of $600, which he agreed to do because he felt it was an unfair burden on the

community.  Mr. Schneider asked how much he has charged to date beyond the $600, and

Mr. Waetzman stated he would be unable to provide an exact figure.  He stated it was a

substantial amount.  Mr. Schneider asked how many hours he has put in, and

Mr. Waetzman stated it was a substantial amount as he was retained in May and attended

Hearings through the end of July, and put in a lot of time preparing his outline,

researching the matter, investigating various aspects.  In that period he put in a significant

amount of hours although he cannot provide an exact figure under oath.  He stated since

the Hearings have progressed, at the request of his client, he has dramatically scaled back

his involvement until tonight’s Hearing.

November 1, 2005                                                    Zoning Hearing Board – page 29 of 37

 

 

Mr. Schneider noted the N. Crescent property and Mr. Waetzman’s comments about

parking.  He asked if he observed anyone parking on N. Crescent, and Mr. Waetzman

stated he visited N. Crescent on two separate occasions on those two occasions there was

no on-street parking other than himself.  He stated he did take a wheel with him and

measured the cartway, and he believes it was 18’ to 20’ wide and cars had to go around

his parked vehicle into the oncoming lane in order to pass.  

 

Mr. Schneider asked if five college students lived in any of these three properties, based

on Mr. Waetzman’s expertise, would he agree that they would constitute a family under

the Ordinance, and Mr. Waetzman agreed.  Mr. Schneider asked if they could each have

a vehicle and still be in compliance with the Ordinance based on his expertise.

 

Mr. Pastor asked if he means living arrangements or some other aspect when he refers to

compliance with the Ordinance. 

 

Mr. Schneider stated this is based on his testimony with regard to parking. 

 

Mr. Waetzman stated he does not feel they would be in compliance.  He added his

expertise is the parking standard in the Ordinance.  He stated if there are an adequate

parking spaces to meet the Ordinance, then it would be in compliance.  He stated he

could not testify that five college students would have five vehicles.  Mr. Schneider stated

he did not ask this, and asked that the answer be stricken from the record.  Mr. Schneider

stated he wants Mr. Waetzman to assume that each of the five students has a vehicle, and

if they have a vehicle, under the Ordinance, can they park there.  Mr. Waetzman stated

under the Ordinance unless there are five parking spaces, they would be exceeding the

number of  permitted spaces required by the Ordinance.

 

Ms. Kirk asked Mr. Waetzman under the Ordinance for a property being used as a single-

family dwelling, what is his opinion as to the number of parking spaces.  Mr. Waetzman

stated there are two off-street parking spaces required for a single-family dwelling.

 

Mr. Schneider stated those are required.  He stated the question is would more spaces be

permitted.  He noted there is a difference between required and permitted, and asked

Mr. Waetzman if this is correct.

 

Mr. Pastor stated this has been asked and answered.  Mr. Schneider stated he has not

answered this.  He stated the question is whether there is a difference between required

and permitted.  Mr. Waetzman stated there is a difference, and the problem arises when

the parking is provided in such a way that you may physically be able to park five

vehicles in a driveway, but if you are forced to back out onto Yardley-Morrisville Road

which is a busy arterial highway with no shoulder, in his opinion as a professional

planner, you have created a problem.  He stated if you can provide additional stacking for

vehicles in a driveway, in his opinion when he is reviewing a Plan for a client

November 1, 2005                                                    Zoning Hearing Board – page 30 of 37

 

 

Municipality, he always tries to make sure that there is a place to turn the car around so

you do not have to back out onto a busy street.    He stated he also has observed

significant problems created by unnecessary on-street parking where there is inadequate

spaces.  He stated the problem with the hypothetical question is that it does not provide

him with any guidance as to the physical parameters of the property they are discussing.

 

Mr. Schneider stated other than the “yes”, he wants the rest stricken as non-responsive. 

Mr. Schneider stated under the Ordinance can the five college students with their five

hypothetical cars, park on the property.

 

Mr. Pastor objected.  He stated they have not put into the record as part of the question,

the size of the home, the size of the lot.

 

Mr. Toadvine stated this does not matter as there are two off-street parking spaces

required under the Ordinance.   He stated the question is can they have more than two and

not be in violation.  Mr. Waetzman stated the answer is yes, but perhaps not safely.

 

Mr. Schneider asked if Mr. Waetzman was present this evening when Mr. DiRienzo

testified, and Mr. Waetzman stated he was.  Mr. Schneider asked if he has any reason to

disbelieve Mr. DiRienzo’s testimony, and Mr. Waetzman stated he has no reason to

believe or disbelieve it.  Mr. Schneider asked Mr. Waetzman in his everyday experience,

has he observed what Mr. DiRienzo testified to with four to five cars parked in the

driveway in Suburban neighborhoods, and Mr. Waetzman stated he has not.

 

Mr. Schneider stated Mr. Waetzman testified about servants and House Managers and

Mr. Waetzman agreed.  Mr. Schneider stated Mr. Waetzman also testified that he had

read the job description of a House Manager, and Mr. Waetzman stated he listened to it. 

Mr. Schneider asked if there is any difference between what a servant does and what a

House Manager does, and Mr. Waetzman stated there is.  Mr. Waetzman stated he heard

Mr. Champ testify that the House Manager is encouraged to have a family and that family

may include a spouse and up to two children and this is a separate dwelling unit.

Mr. Schneider asked that this be stricken as non-responsive.  Mr. Schneider asked if he

just considers the House Manager, and if Allegheny Valley School took away the policy

of encouraging families and provided only a House Manager, is there a difference

between what the House Manager does and what a servant does. 

 

Mr. Pastor objected.  He asked if Allegheny Valley School is amending their Application

to now say that the House Manager may not have a family.  Mr. Schneider stated he does

not have to…

 

Mr. Toadvine stated this is a hypothetical question and asked that he answer the question.

Mr. Waetzman asked if he is being asked to make a distinction between a single

individual living 24 hours a day and supervising the care of the residents and a household

November 1, 2005                                                    Zoning Hearing Board – page 31 of 37

 

 

servant.  He stated he feels that in this day and age the term “household servant” is

typically intended to refer to a housekeeper, nanny, etc. – someone who lives as an

integral part of the family.  He stated the House Manager may serve a care giving

function and may provide some supervisory support but he feels there is a difference.

 

Mr. Schneider referred back to his five college students and turned them into five retired

women and stated each of them could have a servant in the house under the Ordinance.

Mr. Waetzman stated while they could,  he does not feel they would be likely to.

Mr. Schneider stated this was not the question.  Ms. Kirk stated he has answered the

question and asked that Mr. Schneider proceed.  Mr. Schneider asked if they could each

have two servants in the house, and Mr. Waetzman stated this is not likely. 

Mr. Schneider stated the question is could they under the Ordinance, and Mr. Waetzman

stated the Ordinance does not prohibit this, but practically he does not feel it is reasonable

to expect that.

 

Mr. Schneider stated Mr. Waetzman discussed the impact of Nursing Homes and their

floor area and made a distinction between Nursing Homes and retail saying that while

they would have similar floor area, they are not providing the same function.

Mr. Waetzman stated he does not feel this is what he stated.  He stated he had indicated

that a comparable floor for a Nursing Home and an office or retail use, there would be

more intensity.  He stated he did not say that a Nursing Home and specifically the use

proposed by AVS would be the same size as a shopping center.    Mr. Schneider stated

typically Nursing Homes are much larger than these homes, and Mr. Waetzman agreed. 

Mr. Schneider stated the idea behind planning around Nursing Homes is to avoid the kind

of density problems that arise because of such a large facility and use of the facility.

Mr. Waetzman stated it is similar to the problems that arise from have two dwelling units

in a single-family District. 

 

Mr. Schneider stated Mr. Waetzman referred to the definition of a dwelling as being

different from the definition of dwelling unit, and Mr. Waetzman stated this is the way

the Ordinance is written.  Mr. Schneider stated the Ordinance allows a dwelling on a lot,

and Mr. Waetzman stated it allows one dwelling unit per lot in the R-2 District.

Mr. Schneider stated he testified that the key distinction between one and two dwellings

was cooking facilities, and Mr. Waetzman stated it is one of several.  Mr. Schneider

stated in these houses at this point, the testimony is there is only one cooking facility and

the house parents would cook and eat with the residents.  Mr. Waetzman stated he did not

attend every Hearing, but has read notes as to what was testified.  He stated he

understood that there was testimony that at least one of the homes had a separate kitchen

that would be used by the house family and that AVS contended that it existed prior to

their acquisition of the property.    He stated the definition does not prohibit the common

use of cooking and eating facilities by two families or households.  He stated it is one of

the characteristics.  He stated in his opinion the family of the House Manager constitutes

a separate household from the household of the clients and their care givers.

November 1, 2005                                                    Zoning Hearing Board – page 32 of 37

 

 

Mr. Schneider stated he is only discussing dwelling units and not households.  He asked

without two kitchens, how can there be two dwelling units.

 

Mr. Toadvine stated the definition of a dwelling unit is as follows “any room or group of

rooms located within a dwelling and forming a single, habitable unit with facilities which

are used or intended to be used for living, sleeping, cooking, bathing, and eating by one

family.” 

 

Mr. Waetzman stated that definition does not prohibit the shared use of any of those

facilities by more than one family.  He stated it is common to have a situation,

particularly with the elderly, where there are shared living arrangements, where the

individuals would maintain separate residences within a larger dwelling and share

common cooking facilities. 

 

Mr. Schneider stated older parents could then reside with their children, and

Mr. Waetzman stated there would be a distinction as to whether or not there are separate

facilities provided for those parents.  He stated his understanding of the one Hearing he

did attend was that Mr. Champ indicated that here would be a separate area of the home

reserved exclusively for the House Parents and he recalls him testifying that they needed

some private space in which to be by themselves.  That private space would be a separate

dwelling unit.

 

Mr. Schneider stated his question is going back to the example given by Mr. Waetzman

and if two parents retire and decide to move in with their children and the parents live

upstairs and the children live downstairs, would these be two separate dwelling units, and

Mr. Waetzman stated it would depend entirely as to whether they function as separate

living units.  He stated if they operate and function as a single household, then it is a

single dwelling unit. If you  have two separate and distinct areas, then you have two

dwelling units.  Mr. Schneider asked that he assume that there are parents in one area of

the house and one area for the children, and asked if this would be two separate dwelling

units, and Mr. Waetzman stated in the instances that he is aware of, they continue to

function as a household unit.  Mr. Schneider stated his question is if they did not continue

to function as a household unit and were two separate living areas in the house, are they

two separate dwelling units.  Mr. Waetzman stated it would depend on how many of

those separate areas meet the definition of a dwelling unit and how separate they are.  He

stated he knows of many instances where parents or in-laws move in with their married

children but they continue to function as part of the household. 

 

Mr. Pastor stated there are three homes that are the subject of the Appeal and they should

deal with the facts of the three homes as opposed to dealing with hypotheticals.

 

 

 

November 1, 2005                                                    Zoning Hearing Board – page 33 of 37

 

 

Ms. Kirk overruled and stated a hypothetical has been presented which requires a yes or

no answer.  She asked if he would consider those two separate dwelling units, and

Mr. Waetzman stated it would depend on the specific criteria.  He stated there are a

number of criteria laid out in the Township Ordinance for defining a dwelling unit.  He

stated if the majority of those functions occur independently, then they are two separate

dwelling units.  If they do not occur independently and everyone lives together as a

family, even if they retire to their own bedrooms at night, then he would agree it was a

single family.  He noted this was not the testimony he heard.

 

Mr. Schneider stated Mr. Waetzman statistics from the Census indicated it was 2.77

people per household in Lower Makefield and 3.13 people per family, and

Mr. Waetzman agreed.   Mr. Schneider noted the definition of family  under the Census is

not the same as that of the Ordinance, and Mr. Waetzman agreed.  Mr. Schneider asked if

Mr. Waetzman ever met a family made up of 3.13 people.  There was no response.

Mr. Schneider stated in order to get to 3.13 people, they took an average, and

Mr. Waetzman stated this was his testimony.  Mr. Schneider stated under the Ordinance,

the definition of family could consist of one person, and Mr. Waetzman agreed that most

Planners and Census officials would agree that is a single-person household.

Mr. Schneider asked if under the Ordinance, a family could consist of one person, and

Mr. Waetzman agreed.  Mr. Schneider stated in order to get to 3.13, there would have to

be some families that there are at least more than five people, and Mr. Waetzman agreed.

 

Mr. Schneider asked if there is anything in the Ordinance that prohibits a family being

larger than five provided they are biologically related, and Mr. Waetzman stated there is

not.  Mr. Schneider asked if there could be families in the area with ten or more people,

and Mr. Waetzman agreed.  Mr. Schneider asked if he has looked to see if there are

families of this size in these neighborhoods, and Mr. Waetzman stated he did not. 

 

Mr. Schneider stated Mr. Waetzman testified that the density problems, traffic problem,

and parking problems could be caused by therapists coming to the homes, and

Mr. Waetzman stated he had said visitors of various types as there may be therapists,

family visitors, deliveries, etc.  Mr. Schneider asked if Mr. Waetzman was present when

Mr. Champ testified that there would be no deliveries, and Mr. Waetzman stated he did

not hear the testimony although he knows that at the group home across from his home,

the caregivers go to the…

 

Mr. Schneider moved to strike as it is not responsive.

 

Mr. Toadvine asked that he respond to the question, and Mr. Waetzman stated he did not

hear that testimony.

 

 

 

November 1, 2005                                                    Zoning Hearing Board – page 34 of 37

 

 

Mr. Schneider asked if he heard Mr. Champ’s testimony that there would not be

therapists coming to the homes, and Mr. Waetzman stated he did not hear that testimony. 

Mr. Schneider asked if he heard Mr. Champ’s testimony that there would not be doctors

coming to the homes, and Mr. Waetzman stated he did not hear that testimony.

Mr. Schneider asked if he heard Mr. Champ’s testimony that there will be few visitors

because of the nature of the family relationships, and Mr. Waetzman stated he read a

summary of the meeting at which he made that comment and he generally agrees with

that; however, he also knows from his fact witness basis that there are parties at which

there are a number of visitors.  Mr. Schneider asked if there are parties at

Mr. Waetzman’s home where there are a number of visitors, and Mr. Waetzman agreed

that there are. 

 

Mr. Schneider stated he had no further questions.

 

Ms. McGrath stated Mr. Waetzman testified as a fact witness that there were problems

with shift changes at the home across the street from his home and she asked for further

explanation. Mr. Waetzman stated there are a number of instances where shift workers

are speaking loudly in the street; and sometimes rather than driving to the home, they will

be dropped off and picked up and the person picking them up will sound the horn rather

than go into the house.  He stated there have also been instances where alarms have been

set off by the individuals because they have miswired their car.  He stated there are also

instances where people have caused congestion in the neighborhood by excessive on-

street parking on a relatively narrow residential street.

 

Mr. Pastor asked if Mr. Waetzman is normally paid for his testimony, and Mr. Waetzman

stated he is.  Mr. Pastor asked if it is common practice for professional Planners to be

paid for their testimony, and Mr. Waetzman stated it is.  Mr. Pastor asked if the rate he

normally charged comparable to that charged by others with his experience, and

Mr. Waetzman stated it is. 

 

Ms. Kirk asked if there were any questions by those having Party Status with questions

limited to that which has been testified to.

 

Mr. F. William Natale, 1102 Irving Road, stated he is near the Big Oak Road property.

It was noted he does have Party Status.  Mr. Natale asked Mr. Waetzman if he had to

agree when he became a Planner that all of his testimony would be ethical. 

Mr. Waetzman stated he did not specifically when he became a Planner, but when he was

a member of the American Institute of Certified Planners he agreed to abide by the Code

of Ethics of that organization which requires that his testimony shall always place the

public interest first. 

 

 

 

November 1, 2005                                                    Zoning Hearing Board – page 35 of 37

 

 

Mr. Natale asked if he only received $1 for his testimony, would it be legal for him to do

so, and Mr. Waetzman agreed.  Mr. Natale asked the responsibility of a Planner before

Zoning and Planning Boards when he represents them.  Ms. Kirk stated he testified as an

expert for Land Use Planning.  Mr. Natale asked Mr. Waetzman if he prepares the

documentation and items for Planning Boards that they put into legal terminology and

then vote on.  Mr. Waetzman stated he does and often represents Municipal Planning

Commissions and Zoning Board and writes Ordinances and Comprehensive Plans and

reviews Development Applications.  Mr. Natale asked Mr. Waetzman if when he writes

Ordinances, does the Solicitor require that he state that what he has prepared is not

arbitrary or capricious, and Mr. Waetzman stated this is assumed.  Mr. Natale asked if it

is required that he do this, and Mr. Waetzman stated it is part of his mandate as a Planner

but usually he is not challenged on that issue.  He stated he takes an Oath as a member of

the American Institute of Certified Planners and many of the Municipalities require him

to take an Oath that requires that he not operate in an arbitrary or capricious manner.

 

Mr. Natale asked when he sets out the Zoning and Planning issues before the Boards he

represents, would he not try to phase out someone from an area because he did not want

them there, and Mr. Waetzman stated he would not.  He stated he felt that he clearly

stated that he believes there is a legitimate right, within reason, to provide for this use in a

Residential neighborhood.  He stated his concern is that the impacts of this particular

Application may exceed the guidelines envisioned by the Zoning Ordinance

 

Mr. Natale asked if a “Mother/Daughter” requires a Use Variance and must go before a

Planning and Zoning Board.   Mr. Natale stated a “Mother/Daughter” would be a mother

and father moving into a home and set up an apartment for them, and this would require

that they come before the Board for a Use Variance.  Mr. Waetzman asked if that

apartment would require separate facilities.  Mr. Natale stated it would be a

“Mother/Daughter.”  Ms. Kirk stated this is outside of the scope of what Mr. Waetzman

has testified to.  Mr. Natale stated this understanding is that the “Mother/Daughter”

residence requires that in a Residential Zone, they would need to have a Variance.

Mr. Toadvine stated it does not unless there are separate cooking facilities.

 

Mr. Pastor stated he would like to call his next witness who lives next to the property on

the corner of Esther and Big Oak and he will provide testimony on his own observations

as to the size of households in the immediate area.  He stated this has been an issue

tonight presented by both sides.

 

Mr. Schneider objected due to relevance.

 

Mr. Pastor stated there was testimony from the Planner as to the average size of the

households in this Township.  There were objections raised and questions asked that the

households could be much larger in size.  Mr. Pastor stated he feels the size of the

 

November 1, 2005                                                    Zoning Hearing Board – page 36 of 37

 

 

households in the immediate area of the property is a fact that the Board should consider

in looking at this Application.

 

Mr. Schneider objected due to relevance.

 

Ms. Kirk sustained.

 

Mr. Pastor stated he has a request to recall a Witness put on by AVS, Mr. DiRienzo, for

the purpose of asking cross-examination questions.  Ms. Kirk stated these should have

been asked during cross-examination. 

 

Mr. Pastor called Mrs. DiRienzo as a witness.  Ms. Kirk asked for basis.

 

Mr. Pastor stated she is the mother of one of the Plaintiffs in the lawsuit, and he would

like to ask if she has any relationship to Mr. DiRienzo who testified this evening

regarding his observations of driving in the Township.

 

Mr. Schneider stated the lawsuit is irrelevant and he could ask these questions of

Mr. DiRienzo.  Mr. Pastor stated he would then like to put Mr. DiRienzo on the stand if

Mr. Schneider is offering.

 

Ms. Kirk asked why Mr. Pastor wants Mrs. DiRienzo on the stand, and Mr. Pastor stated

he asked to question Mr. DiRienzo and they refused.  Ms. Kirk advised Mr. Pastor he had

an opportunity to cross-examine him when he was offered as a Witness by Mr. Schneider.

Mr. Pastor stated he has been denied the right to have Mr. DiRienzo back on the stand in

order to ask cross-examination questions based upon Mr. Schneider’s cross-examination

of Mr. Waetzman.  He has two questions of Mr. DiRienzo and if he is denied, he would

like to put Mrs. DiRienzo on to ask her few questions.  Ms. Kirk asked what her

testimony would consist of, and Mr. Pastor stated there was a question earlier regarding

potential conflict of interest by the Planner being paid for his testimony, and he would

like the Board to understand that the testimony of Mr. DiRienzo may be tainted because

he is a relation to one of the plaintiffs in the lawsuit.

 

Mr. Toadvine stated the Zoning Hearing Board understands that all professionals are

paid.

 

Mr. Pastor indicated he had no further Witnesses this evening.  Ms. McGrath stated they

do not have any Witnesses this evening.  Ms. Kirk stated Mr. Schneider is reserving the

ability to call Ms. Frick at a later meeting as she was not available this evening.

 

 

 

 

November 1, 2005                                                    Zoning Hearing Board – page 37 of 37

 

 

Ms. Kirk moved, Mr. Caiola seconded and it was unanimously carried to adjourn the

Hearing and that it next be scheduled for December 6, 2005 noting there are nine new

Applications for the next Board meeting scheduled for November 15, 2005.

 

Ms. Kirk asked that Mr. Schneider and Mr. Pastor have any other Witnesses available for

that evening.  She asked Ms. McGrath how many Witnesses the Township has, and she

stated she did not.  Ms. Kirk asked that Mr. Koopman be advised that he should have his

Witnesses available to testify so that hopefully they can conclude this matter on

December 6, 2005.

 

 

There being no further business, Mr. Malinowski moved, Mr. Bamburak seconded and it was unanimously carried to adjourn the meeting at 10:50 p.m.

 

                                                            Respectfully Submitted,

 

 

 

 

                                                            David Malinowski, Secretary