ZONING HEARING BOARD
MINUTES – OCTOBER 18, 2005
The regular meeting of the Zoning Hearing Board of the
Zoning Hearing Board: Barbara Kirk, Chairman
Rudolph Mayrhofer, Vice Chairman (left meeting
David Malinowski, Secretary
Paul Bamburak, Member
Greg Caiola, Alternate Member
Others: Nancy Frick, Director Zoning, Inspection & Planning
Robert Habgood, Code Enforcement Officer
John Koopman, Township Solicitor
James Majewski, Township Engineer (left meeting
Allen Toadvine, Zoning Hearing Board Solicitor
Steve Santarsiero, Supervisor Liaison (joined meeting
APPEAL #05-1329 – RICHARD GEERS
Mr. Richard Geers and Ms. Louise Geers were sworn in. Ms. Kirk stated this matter was
continued from the 9/20/05 Hearing and there were some questions dealing with the
impervious surface coverage they were proposing along with the height of the proposed
garage. They were going to meet with Township staff to try to modify the Plans.
Mr. Geers stated he did submit an alternate Plan. He stated the paving system is called
Turf Pavers by EP Henry which is more ecologically-sensitive to impervious surface.
He proposed that for all the new driveway area which would be in the back of the house,
they would use the turf pavers which would have a zero impact on the impervious
surface. This is based on EP Henry’s interpretation of the Ordinance and not the
Township’s interpretation. Mr. Geers stated he asked for a change from the original
Appeal which required that they use blacktop surface for driveways and they would like
to change the Variance request in order to be permitted to use these pavers.
October 18, 2005 Zoning Hearing Board – page 2 of 30
Ms. Kirk asked if this additional Variance to allow the use of the turf pavers would be in
addition to the Township’s position that any pavers would increase impervious surface so
they would need a Variance for impervious surface, and a Variance to permit the use of
the pavers in lieu of asphalt; and Ms. Frick agreed. Mr. Toadvine stated they also
requested a Variance for the height of the garage.
Mr. Toadvine asked if the Applicant has a copy of the memorandum from the Township
engineer, and Ms. Frick stated they do not. This was provided to them this evening.
The letter from the Township engineer regarding the pavers was marked as Exhibit T-1.
T-1 includes the letter from Mr. Geers to Mr. Habgood dated 10/10/05 which includes
information about the pavers. Ms. Kirk stated the packet noted as T-1 includes the
memorandum from the Township engineer to Mr. Habgood dated 10/18/05, a letter from
Mr. Habgood to the Township engineer dated 10/12/05, and a letter with four pages of
specs from the Applicant to Mr. Habgood dated 10/10/05.
Mr. Mayrhofer asked what would have to be done to keep this type of paver such that it
remains pervious to the 40% basis the Township engineer has suggested in his letter; and
Mr. Majewski stated as long as a permeable material such as sand or grass was interlaid
between the blocks, it would remain pervious provided they did not overlay it with
blacktop or put in crushed stone that would compact. Mr. Mayrhofer stated they should
make this a Condition of any Approval. Mr. Mayrhofer asked if the Township has
calculated what the impervious surface would be if they had a 60% impervious surface.
Mr. Majewski stated it would be 34.8%, and they are permitted to have 29%.
Mr. Geers noted the third paragraph in the information from the manufacturer, where it
recommends that it go on a stone base. He stated the information he was given was that
for the pavers he was going to use, all they have to do is prepare the top soil and take 3”
out and place them directly on the soil eliminating the need for cut stone. He stated the
paver next to it would need to be on a sub base. He stated he specifically marked out the
turf pavers so that it would not be necessary to have a sub base and the impervious
surface would not be affected at all.
Ms. Kirk asked if the turf paver is more like a perimeter of paving which would allow the
grass to grow though, and Mr. Geers stated it is similar to a honeycomb. Mr. Majewski
stated the information supplied from the manufacturer indicates that for the turf paver it
should be set on top of compacted crushed stone and when this compacted crushed stone
locks together, it stops water from going through. This is why they credited it at 60%.
Mr. Geers stated this was not his understanding. He stated the spec sheet is general
information for all of the pavers; but when he got information specifically on the turf
paver, the instructions were not to put it on a stone base. Mr. Bamburak asked where
those instructions are spelled out since the drawing they have shows them on top of a
stone base. Mr. Mayrhofer stated he would not just want dirt beneath this, and would
prefer a more substantial base. Mr. Geers stated he is not opposed to putting the stone
October 18, 2005 Zoning Hearing Board – page 3 of 30
down; but in his research he was instructed by installers that the stone was not a
necessity. He felt that not putting the stone base down, as long the sub base was solid
and supported the pavers, it would help the situation. Mr. Toadvine stated the Township
engineer, based on the information supplied by Mr. Geers, is indicating to the Board that
the pavers are still 60% impervious and as a result, they are still 5.8% over the maximum
permitted impervious surface.
Ms. Kirk stated she felt they were going to move the proposed garage forward to the
house to reduce some of the square footage. Mr. Geers stated they did talk about this at
the meeting; but if the moved it closer to the house, it makes it extremely difficult to back
out of the garage at that angle. Mrs. Geers stated there is a tree; and if there is a large
vehicle that has to swing into the garage, it is difficult. Ms. Kirk asked if they discussed
the proposed plans with the next door neighbor, and Mr. Geers stated they have and they
are accepting of it. He stated no one has had any negative comments.
There was no public comment.
Mr. Mayrhofer moved and Mr. Malinowski seconded to approve the request to have,
based upon the Township engineer’s calculations, 34.8% impervious surface by using
turf pavers having a base as shown in the schematics on the page of manufacturer’s
specifications which has sand and modified stone. The current owner and any future
owners of the property must maintain the turf pavers so as to allow and permit grass to
grow between the pavers and that there be a restriction that the turf pavers never be paved
over with any form of impervious surface. The height of the garage is permitted to be
16’. Motion carried with Mr. Bamburak and Mr. Dobson opposed.
APPEAL #05-1337 – EUGENE AND SOPHIA YOUNG
Eugene and Sophia Young were sworn in. Ms. Kirk stated she has been informed by the
Township Code Enforcement Officer that they did not pick up the placards from the
Township to have the property posted to notify people of this evening’s Hearing.
Ms. Young stated they did receive them in the mail and they were posted. Mr. Habgood
asked where they were posted since he was at the property today and did not see them
from the street. Ms. Young stated they were on the edges of the house attached to the
siding. Pictures of the home were shown. Ms. Frick stated they also did not receive back
the Return Receipt indicating that the placards had been received. Ms. Young showed
the envelope, and it was still attached to the envelope. Mr. Toadvine showed the picture
of the home, and asked Ms. Young to show where the placards were attached.
Ms. Young noted the location of one which was facing the drive and the other facing the
street. Mr. Toadvine stated he is satisfied that the appropriate posting was done.
October 18, 2005 Zoning Hearing Board – page 4 of 30
The Application submitted was marked as Exhibit A-1. Attached to the Application is an 8 ½” by 14” As-Built Plan of Lot 18 showing the house location last dated 8/6/02. This
was marked as Exhibit A-2.
Ms. Young stated they would like to build a patio in the back of the house with a walk
leading from the driveway to the patio.
Ms. Kirk noted A-2 and asked if the patio is the semi-circular area behind the dwelling,
and Ms. Young stated it is. The brick walkway is the 65’ long curved area going from
the patio to the opposite side of the house. Ms. Kirk stated it appears they are asking for
an increase in impervious surface of 1.8%, and Ms. Young agreed.
Ms. Kirk asked when the home was built, and Ms. Young stated she feels it was built in
12/02. She stated they will use EP Henry pavers. Ms. Young was asked how water runs
off from her property, and Ms. Young stated they are next to an easement. On the
As-Built Plan, this is shown to the left of their home and water runs down this way.
There is a swale in this area and it leads to the street. There is an inlet in the street.
No water flows from her property to the next-door neighbors and it goes down the
easement in between the two houses.
Mr. Majewski was asked if he agree with the impervious surface calculations.
Mr. Majewski stated he did not receive any existing calculations; but feels the existing is
at 20.9% which is what was allowed by the builder, and the homeowners are allowed an
additional 3%. He stated it appears that there are two patios – one behind the garage and
another behind the house. Mr. Young stated there is just one patio proposed which is
behind the house. Mr. Majewski noted the additional piece of concrete behind the
driveway of 16’ by 23’, and Ms. Young stated this is part of the drive. Mr. Majewski
stated this was not on the Plan that was submitted for the Final Certificate of Occupancy.
Ms. Frick stated this was an add-on according to their records. It was noted Mr. and
Ms. Young are not the original owners of the house, and they purchased it the beginning
of 2005. Mr. Majewski stated his calculations show that with the proposed patio, they
would be at 26%.
Ms. Kirk asked about the section of 16’ by 23’ and asked if a Permit was obtained for
this. Mr. Habgood stated the permit for the expansion of the driveway would come
through Public Works and his office would get a copy of it; however, he does not know if
one is on file.
Mr. Koopman stated the Township has no formal position in this matter.
There was no public comment.
October 18, 2005 Zoning Hearing Board – page 5 of 30
Mr. Bamburak moved, Mr. Mayrhofer seconded and it was unanimously carried to
approve the Variance to allow the impervious surface to be increased to 26%.
APPEAL #05-1338 – JOSEPH ROBINSON
Mr. Joseph Robinson and Mr. Patrick J. Healey, architect, were sworn in.
The Application submitted was marked as Exhibit A-1. Attached to the Application is an
8 ½” by 11” Site Plan for the new shed addition, which was marked as Exhibit A-2.
Mr. Healey noted the Plan is for a garage addition, kitchen addition, and train room.
Mr. Healey stated they need a Variance from the 18% requirement. They would like to
go to 22%. He stated Mr. Robinson is a collector and needs additional room. They also
want to extend the kitchen. He stated the existing garage is full as well. He would like to
construct an additional three-car garage which will encroach into the setback. He stated
they are also looking for approval for a storage shed.
Ms. Kirk asked if there is a garage at this time, and Mr. Healey stated there is a garage
attached to the house. The existing garage will remain as a garage as well. The new
garage will be 1,200 square feet. He stated he has three cars and a pick-up truck.
Ms. Kirk asked if this will be large enough to store three cars, and Mr. Healey stated it
Ms. Kirk stated the Plan also has a notation showing “new stone pavers” and asked if this
is something additional to be installed. Mr. Healey stated they are taking away some of
the 20’ blacktop and will install some accent pavers. The driveway will remain paved.
Mr. Healey stated at the half moon driveway they will take away a few feet and make it
16’ and accent it with the pavers. Currently the half moon driveway is 20’ wide and
they will remove 4’ of this.
Ms. Kirk asked what the new shed will be used for, and Mr. Healey stated it is for
gardening equipment, etc.
Mr. Bamburak noted the impervious surface calculations with regard to the driveway, and
Mr. Healey stated the current size of the driveway is 3,000 and they will reduce it to
Ms. Kirk asked if the kitchen addition is going over a portion of the concrete patio, and
Mr. Healey stated this is correct. They will only have a small patio left.
Mr. Mayrhofer asked if there are calculations for the existing impervious surface, and
Mr. Healey stated it is 19 3/4%. He stated this includes the shed of 476 square feet which
they will install. Mr. Mayrhofer asked the age of the house, and Mr. Robinson stated it
October 18, 2005 Zoning Hearing Board – page 6 of 30
was built in 1985. Mr. Mayrhofer asked if permits have been obtained for everything on
the property, and Mr. Habgood stated there were no permits for the existing patio and the
arched driveway in the front. Mr. Robinson stated he is the original owners. He stated
the builder built it and they put the driveway in six months later.
Mr. Bamburak noted the chart on the right hand side of the drawing and asked if this is
existing or what is being added. Mr. Healey stated the house is currently 2800 square
feet, the proposed shed is 476 square feet and is not currently existing. The rest of the
items are all proposed to be constructed. Mr. Bamburak noted at the bottom they are
showing 11.66% and asked what this calculation is from. Mr. Healey stated this is the
area of the land they are covering of the property with structures. He stated some
Townships want to see the building coverage and sometimes they want the impervious.
The request is to go from 19.75% to 22 3/8%. The 19.75% includes the new shed.
Ms. Kirk noted the area where the proposed garage is to be located and asked the side
yard setback they are proposing. Mr. Healey stated it will be 3.2’. He stated the
Applicant has discussed this with the neighbors. Mr. Toadvine asked if the garage will
be attached to the house, and Mr. Healey stated it will be attached at the corner.
Ms. Frick stated they are supposed to have a 25’ setback, and they are requesting 3.2’.
Mr. Bamburak asked the hardship, and Mr. Healey stated Mr. Robinson is a collector of
“stuff” and needs a place to put it.
Mr. Toadvine asked if they could flip the garage behind the house, and Mr. Healey stated
they would then have to increase the impervious surface because they would need to
extend the driveway.
Mr. Bamburak asked about a smaller shed noting the shed they are requesting is 34’
Mr. Koopman stated the Township is opposed to the Application since they are
requesting 4.37% over what is permitted and there does not appear to be a hardship. The
Township is also concerned about the side yard setback. He stated this would be a
permanent addition and since people move in and out, a new owner next door would not
have any side yard. He stated the required side yard is 25’ in the R-1 District.
Mr. Jeff Evans,
other side from where the proposed garage would be constructed. Mr. Evans asked if
granting this Variance will impact on anything he may want to do in the future with his
own property. Ms. Kirk stated requests for Variances are on a case-by-case basis. He
would have to present his testimony and prove a hardship if a Variance were to be
granted. Mr. Evans asked if granting a Variance for one property impacts the ability of
someone contiguous to that property to obtain a Variance in the future, and it was noted it does not.
October 18, 2005 Zoning Hearing Board – page 7 of 30
Mr. Mayrhofer moved and Mr. Bamburak seconded to deny the request.
Ms. Kirk asked if Mr. Robinson would like to modify the Plan, and Mr. Robinson stated
this is possible. He stated they wanted to see what they could get. Ms. Kirk stated the
more they take away, the more inclined the Zoning Hearing Board may be inclined to
grant the request. She added it needs to be the least amount necessary. She stated this
includes the amount of impervious surface and the setback for the garage. Mr. Healey
asked if the 4% increase in impervious surface is a problem, and it was noted that both
the impervious surface and the setback are a problem.
Mr. Koopman asked if the property owner to the left who will have the garage 3 ½’ away
from his property is aware of the request, and Mr. Robinson stated they are, and they had
no problem with it. Mr. Healey asked if they would like to have this in writing, and
Ms. Kirk stated she assumes that the neighbor would have presented something to the
Board either in person or in writing.
Mr. Robinson asked if they would have a problem if they eliminated the three-car garage.
Mr. Toadvine stated he feels this would eliminate the problem with the impervious
surface since this would eliminate 1200 square feet. Mr. Toadvine stated this would also
solve the problem of the side yard.
Mr. Robinson stated he would like to amend his Application to remove the request for the
garage. If this is done, they would then be at 19.7% impervious surface.
Mr. Mayrhofer withdrew his Motion for denial.
Mr. Bamburak moved, Mr. Mayrhofer seconded and it was unanimously carried to
approve impervious surface of 19.7%.
Mr. Santarsiero joined the meeting at this time.
Mr. Mayrhofer left the meeting at this time.
APPEAL #05-1311, #05-1312, #05-1313 –
Ms. Kirk noted that Mr. Mayrhofer has left the meeting, and Mr. Greg Caiola will be
sitting in for the rest of the proceedings.
It was noted that Stephen Pastor was present this evening rather than Mr. DeGrazia.
Mr. Bernard Schneider was present and stated they had previously qualified
Dr. Morrow as an expert. Dr. Morrow was reminded that she was still under oath.
October 18, 2005 Zoning Hearing Board – page 8 of 30
Mr. Schneider asked that Dr. Morrow tell the Board what is mental retardation.
Dr. Morrow stated mental retardation is a disorder of cognition or learning that effects
how people think as well as how they are able to do things in everyday life. She stated
there are four levels – mild mental retardation describes individuals who are the highest
functioning, the other levels are moderate, severe, and profound and those individuals are
the lowest functioning in terms of cognitive functioning. She stated severe and profound
are sometimes grouped together.
Mr. Schneider asked the IQ of the various levels. Dr. Morrow stated a person with mild
mental retardation usually has an IQ between 50 and 70 and they would function the
same as a child of eight years old. A person with moderate mental retardation would
have an IQ of 35 to 49 and the age level equivalency would be approximately six years
old. A person with severe mental retardation would have an IQ of 25 to 34 and would be
similar to a child five years old. An individual with profound mental retardation would
have an IQ under 25 and is usually equivalent to a child four years old or below.
Mr. Schneider asked if having severe mental retardation would substantially limit one or
more of the major life activities of the person with mental retardation, and Dr. Morrow
stated it does. She noted a person with severe mental retardation does not use language
as an adult would, does not understand the consequences of activities, and does not do
abstract thinking the way an adult would. Their ability to learn is significantly impaired.
There would also be a significant difference in verbal skills. With regard to being able to
care for themselves, they can learn to do some activities such as dressing, teeth brushing,
etc. but things that would require judgment such as budgeting, going shopping, etc. could
not be done by those individuals independently. Mr. Schneider asked about their ability
to work, and Dr. Morrow stated they would need to work in a supported environment
where their difficulties would be supported. They could not work at a job where they
would be expected to read or write a significant amount. She stated they could bag
groceries. She stated sometimes they have a job coach who works with them. She stated
a lot of these people also do “kitting” for industry which involved putting together a
number of pieces that go together. They can also do deliveries of “Meals on Wheels”
working with a driver.
Mr. Schneider asked if having profound mental retardation would substantially limit one
or more of the major life activities of the person with mental retardation, and Dr. Morrow
stated it would. She stated that it is possible that many of these individuals have no
language at all or have very little ability to understand complex language depending on
how they test cognitively. Having profound mental retardation significantly impacts their
ability to learn, and they would be significantly slower than the average person. She
stated some people who have profound mental retardation may not even learn letters.
She stated there is a wide range at this level as there are some who function at a six-
month old who would not be able to learn to dress themselves while people at the higher
range of this level would be able to learn this. Dr. Morrow stated they would need
October 18, 2005 Zoning Hearing Board – page 9 of 30
someone supervising them to support them in terms of caring for themselves. They do
encourage them to do as much as they can independently. She stated they might be able
to assist with cooking, but they could not cook independently. With regard to personal
hygiene, she stated this would depend on their abilities. She stated they would encourage
them to do as much as they could in terms of bathing, etc. but they would need
supervision. At the lower end of profound mental retardation, they would probably not
be able to bathe or dress themselves, although some may be able to feed themselves if
they had the motor ability to do so. She stated feeding is an earlier skill than dressing.
With regard to their ability to work, Dr. Morrow stated their ability to work would be
significantly limited. She stated many of them do “kitting” and she knows some who aid
in delivering Meals on Wheels. She does not know of any who do packing or shelving at
a grocery store. Mr. Schneider asked about their ability to socialize. Dr. Morrow stated
they do have the ability to connect with people using body language if they have no
verbal language, and facial expressions, etc. She stated they would not have a
conversation at an abstract level.
Mr. Schneider asked if those with moderate mental retardation would have substantial
limitations with regard to their major life activities, and Dr. Morrow stated they would.
She stated those with moderate mental retardation would have limitations in terms of
judgment, ability to do abstract thinking, problem solving around complex problems
although they would have more ability than someone with profound mental retardation.
With regard to learning, they would be significantly slower than someone without
moderate mental retardation but faster than those with profound mental retardation. With
regard to the ability to speak they would be significantly slower than someone without
moderate mental retardation but faster than those with profound mental retardation. She
stated people with moderate retardation are often fairly independent with regard to self
care and can usually bathe and dress themselves as well as do some simple food
preparation independently. They also have more ability to work in terms of using
language and problem solving. She stated they would not read more than at a first or
second grade level. She stated she does know of people who do things like creating pizza
boxes for a pizza parlor. They could not be a cashier, etc. With regard to social
interactions, they are better than someone with profound mental retardation because their
language is better.
Ms. Kirk asked Mr. Schneider where he was going with this line of questioning.
Mr. Schneider stated they have a burden to show that these are handicapped people
within the meaning of the Fair Housing Act. Ms. Kirk stated she felt that these homes
were not going to be geared for those with severe or profound mental retardation;
however, Mr. Schneider stated this is incorrect as most of their clients are severe or
profoundly mentally retarded. Mr. Koopman stated he recalled that Mr. Champ testified
that most if not all the residents in the
profoundly or severely mentally retarded, and Mr. Schneider agreed. Mr. Toadvine asked
if this is not an issue they could have stipulated; and Mr. Koopman stated he would agree
October 18, 2005 Zoning Hearing Board – page 10 of 30
to stipulate that the residents are severely or profoundly mentally-retarded as this was the
testimony. Mr. Schneider stated he would need it stipulated that all of the residents are
mentally retarded and most are severely and profoundly mentally retarded and all the
residents are handicapped under the meaning of the Fair Housing Act. Mr. Koopman
stated he would not agree to stipulate as to whether they are disabled under the Act as this
is a legal conclusion. Mr. Koopman stated he recalls that Mr. Champ’s testimony was
that most of the residents were severely or profoundly mentally retarded but asked if
there were some in any of the three homes that are not only moderately retarded.
Mr. Schneider stated he could re-call Mr. Champ to establish this as he feels that in
several of the houses there is at least one client who is moderately mentally retarded.
Mr. Koopman asked if they have a list by house, they could stipulate to that.
Mr. Pastor stated he has no objection to stipulating that the persons in the homes would
be mentally retarded, but would not agree to stipulate to the people being handicapped
under the Fair Housing Act. Mr. Toadvine asked what more information he would need.
Mr. Pastor stated they need a determination of what the definition is of handicapped
under the Fair Housing Act. Mr. Toadvine stated if it is an issue as to whether they are
handicapped by definition of the Fair Housing act, he does not feel Mr. Schneider is
going to be able to introduce evidence to that effect other than the evidence that they are
severely or profoundly mentally retarded. Mr. Schneider stated the definition of handicap
is a substantial limitation on one or more of the major life activities and the questions he
has been asking Dr. Morrow go to how it limits their life activities so that each one of the
factual questions on limitation goes to support his argument that they are in fact
handicapped. Mr. Toadvine stated the ultimate conclusion as to whether they are
handicapped under the Fair Housing Act is a legal question so if they stipulate to the
facts, then the Board is left with the facts to make the determination. Mr. Pastor stated he
would have no objection.
Ms. Kirk stated it is therefore agreed that the testimony that has already been offered by
Mr. Champ is that the residents for AVS other than the house parents are going to be
those that suffer from severe or profound mental retardation. Mr. Schneider stated it is
also possible that in each house there could someone with moderate mental retardation.
Mr. Schneider stated the disability under the Act has to have an affect of substantially
limiting one or more major life activities, and this is why he has been going through this
line of questioning. Mr. Toadvine asked if they will stipulate that the residents suffer
from an impairment of one or more life activities. Mr. Koopman stated Dr. Morrow has
testified to this, and he does not need to stipulate to this.
Mr. Schneider stated he has gone through everything with regard to moderate, severe, and
profound but he does have some follow-up questions for some other related conditions
that go to handicap as well. Mr. Schneider asked if there are related disabilities that occur
frequently in people who have mental retardation, and Dr. Morrow stated some people
October 18, 2005 Zoning Hearing Board – page 11 of 30
with mental retardation also have cerebral palsy which impacts on their motor ability.
She stated autism is also a developmental disability associated with mental retardation.
Mr. Schneider stated Mr. Champ had testified that in two of the houses, at least five of
the people will be in wheelchairs, and Dr. Morrow stated this is likely due to these related
disabilities. Mr. Schneider asked if these developmental disabilities have any limitation
on those persons’ major life activities, and Dr. Morrow stated they do. She stated the
motor disabilities in cerebral palsy impact on people’s abilities to do adaptive kinds of
things since they are not able to move as well.
Mr. Schneider asked if the Department of Public Welfare has a policy concerning living
arrangements for people with mental retardation, and Dr. Morrow stated they encourage
people to live in community settings as opposed to institutional settings because their
experience in the field over the last thirty years has shown that as people get out of the
institutions and into smaller living arrangements with more individualized attention and
more connection with the community and people without mental retardation, that they are
able to function better and interact better. She stated it does not change their IQ, but it
does increase their ability to interact with their environment. Dr. Morrow stated the State
does operate some facilities with people severe and profound mental retardation. She
stated there are six locations, and some of them are very large. They are not admitting
people to the State institutions any longer and are moving them out into the community.
Mr. Schneider asked if people with mental retardation tend to live with non-family
members more than people without mental retardation, and Dr. Morrow stated people
with mental retardation live in a number of different places as some do live with their
families, while others live in group homes and places with other people who need
support. She stated some are able to live in the community by themselves. She stated
people who live in a group home do not have a family environment as much as someone
without mental retardation as they tend to live with other adults and have staff that come
in and out. They do not have the opportunity to interact with children although they do
try to make a family environment.
Mr. Schneider asked that Dr. Morrow consider an individual that is severely, profoundly,
or moderately mentally retarded but has no propensity for violence and no family or
friends for life-sharing arrangements, and asked if she feels living in a single family
house in a residential neighborhood in a group home setting would be beneficial, and
Dr. Morrow stated it would.
Mr. Koopman objected asking “beneficial as compared to what?”
Mr. Schneider asked as opposed to living in an institutional setting, would it be more
beneficial. Dr. Morrow agreed and stated living in a smaller environment in a
neighborhood among a community, there are people to interact with and role models in
October 18, 2005 Zoning Hearing Board – page 12 of 30
terms of people doing typical things in the neighborhood as opposed to an institution
where there would be one staff person and four to six residents. They would be on a
campus that is isolated where they could not walk down the street and go to the store or
visit with neighbors.
Mr. Schneider asked if there is more opportunity for individualized attention at the group
home level, and Dr. Morrow stated there is. She stated when you have fewer distractions
and less people to work with, you are better able to watch people’s progress and you are
more comfortable letting them try something they have not done before. She stated
people therefore get more attention and are able to function at a higher level because they
are allowed to do more things.
Mr. Schneider asked in the care of people with mental retardation, what is the importance
of behavior plans and how does individual attention help the individual. Dr. Morrow
stated everyone in a residential program has an individual support plan that looks at what
their level is and what they are interested in as well as how they can build in support to
help them do this. She stated it allows people to look at them individually as opposed to
what a textbook might say. She stated they are also able to follow through with these
plans because the same person is working with that individual. Mr. Schneider asked what
things can a person with mental retardation model from that they could not get in an
institutional setting. Dr. Morrow stated they could model social behaviors such as
greeting people at a store, etc. They would also have more ability to plan something for
the day as opposed to having to plan events months in advance as required in the State
Centers. Dr. Schneider asked if the ability to belong to a community has a positive effect
on the person with mental retardation, and Dr. Morrow stated they are people like the rest
of us and enjoy being part of the community, and having a relationship with other people
in the community. She stated it also makes them feel good if they are doing something as
part of the community as it makes them feel that they are contributing.
Mr. Schneider asked the effect of the ability to have choice on the maturation process.
Dr. Morrow stated choosing is one of the things that requires thinking ability and
building on skills. Mr. Schneider asked if people with mental retardation have more
choices in a group home than in a large institution, and Dr. Morrow stated they do even if
it is something as simple as choosing the cereal at the grocery store. Dr. Morrow stated
giving people choice, teaching them skills, allowing them independence and letting them
use the skills you have been teaching them helps them function at a higher level than if
you did not allow them to use those skills.
Mr. Schneider asked if having a live-in house parent benefits the mentally retarded
person living in a group home as opposed to an institutional setting. Dr. Morrow stated it
does as it provides them with continuity and with someone who is there all the time. It
also provides structure so that they can have a family environment. Mr. Schneider asked
if having a person there leads to consistency, and Dr. Morrow stated it does. She stated if
October 18, 2005 Zoning Hearing Board – page 13 of 30
they have the same person there who they see every day, that person will know how they
are feeling, know their likes and dislikes, and they can see progress they are making. For
the individual with mental retardation, it would provide structure as they would know
what to expect as there is someone there who they know who they can go to. It also
creates an environment where they can have someone who is a social model who lives in
the house and does the kinds of things that everyone would do in their home. Having the
house parent’s family living in the home will also benefit the mentally retarded people as
they usually like children and it is nice for them to have interaction with children. She
stated it is also good for the children as the children learn to experience diversity. She
stated for the mentally retarded person it also gives them a different way to interact with
people when there are children in the home.
Mr. Schneider asked if people with moderate, severe, or profound mental retardation
have the same opportunities for marriage as people without mental retardation, and
Dr. Morrow stated typically they do not. Mr. Schneider asked if have the same
opportunities to live in a family setting, and Dr. Morrow stated they do not have the same
opportunity to live in the husband/wife/children type of family.
Mr. Schneider asked the definition of convalescent care. Dr. Morrow stated it is care for
people who are getting better from an illness or injury. Mr. Schneider asked if the
residents of the three
Dr. Morrow stated they will not since they are not sick. This will be their home.
Mr. Schneider asked if mental retardation is an illness, and Dr. Morrow stated it is not – it
is a cognitive disorder. She stated it is not an infirmity.
Mr. Koopman asked if Dr. Morrow has any personal information or knowledge about the
individuals who will be residing in the
had read brief summaries about them provided by
School. She was provided only a few sentences about the individuals. The summary did
not include a name, but provided ages, levels of mental retardation, ability to walk, and
brief information about medical conditions. She feels she read a summary about each
individual involved. She stated the information came to her office from Kathy Deans.
She does not know who provided it to Kathy Deans. She has not reviewed the records of
Mr. Koopman asked if, other than the brief paragraph provided, did she have any
personal information about the individuals proposed to live
Dr. Morrow stated she does not believe that she does. Mr. Koopman asked if she ever
met any of them. Ms. Morrow stated she could not say this since she only had initials
and did not have names.
Mr. Koopman stated Dr. Morrow testified that some mentally retarded people may have
cerebral palsy and autism. Mr. Koopman asked if people with mental retardation suffer
October 18, 2005 Zoning Hearing Board – page 14 of 30
with cerebral palsy and autism more frequently than the general population, and
Dr. Morrow stated this is correct. Mr. Koopman stated cerebral palsy limits someone’s
ability to ambulate, and Dr. Morrow agreed. He asked if autism can limit someone’s
ability to ambulate, and Dr. Morrow stated some people with autism do have difficulty
with ambulation, but usually autism limited their ability to interact socially.
Mr. Koopman asked if there are other developmental disabilities associated with people
with mental retardation, and Dr. Morrow stated there are visual and hearing impairments
which are found more frequently than in the general population. She stated there are also
learning patterns that are present which are also in the general population such as
Mr. Koopman stated an individual asked some questions during Dr. Morrow’s
qualifications and indicated he felt there were certain mental disorders and disabilities
that are more frequent in the mentally retarded population. Dr. Morrow stated the
research about mental illness and frequency in the population of people with mental
retardation is not very well described partly because many of the studies deal with small
populations from institutions. She stated the population of people in institutions are very
different from the more general population. She stated the general population numbers
are not good either, and sometimes they overlap. She feels that individual Mr. Koopman
is referring to was indicating that 50% of the people with mental retardation also have
schizophrenia and she stated thirty to forty years ago people did diagnose this; but now
that they have learned more about what schizophrenia, mental retardation, and autism are,
they have found that there are really not very many people with schizophrenia in the
general population or in the population of those with mental retardation. She stated there
is much higher incidence of affective disorders just like in the general population such as
depression, bi-polar disorders, etc.
Mr. Koopman stated he is not talking about 50%, but asked if it is more likely you will
find someone with some mental disabilities who is mentally retarded than in the general
population. Dr. Morrow stated the term “mental disability” is “mental retardation.”
Mr. Koopman asked about mental illness – psychotic behavior, etc. Dr. Morrow stated
the very old studies did indicate this. She stated schizophrenia should be separated out
since it is very rare in any population. She stated when you look at affective disorders,
the ranges she has seen overlap with a little bit higher with people with mental
retardation, but she is not sure that they have real good numbers to compare. She stated
the perception is that there is a higher number, but she is not certain they know this for
sure as there are lot of people in the general population that do not get identified as
having affective disorders as they just live with it.
Ms. Kirk asked if it is more difficult to diagnose someone with a mental illness who is
also mentally retarded, and Dr. Morrow stated it is more difficult for people with lower
IQs because they are not able to give the history that they would use to identify the
mental illness. She stated at this point they do it by history, etc. since there no blood
October 18, 2005 Zoning Hearing Board – page 15 of 30
tests, or x-rays to identify this. Ms. Kirk asked if those with mild or moderate mental
retardation could be more easily diagnosed with a mental illness than someone who is
severe or profoundly mentally retarded, and Dr. Morrow agreed.
Mr. Koopman asked for an explanation of the term “affective disorder.” Dr. Morrow
stated this is a mood disorder such as depression, bi-polar disorder. Schizophrenia would
not be included in this as it is a psychotic disorder although sometimes the symptoms
Mr. Koopman stated Mr. Champ testified that in terms of the people that are being placed
in the group homes that Allegheny reviews their charts and makes a determination as to
whether it would be appropriate for the individual residents to be placed in a group home
as opposed to an institutional setting, and he asked if her Department gets involved in this
process. Dr. Morrow stated typically they do not. She stated the Department of Health
survey does come back and looks at the environment and whether people qualify for
diagnosis of mental retardation.
Mr. Koopman asked if the State becomes aware of incidences of violent behavior or if
someone wanders off from a home. Dr. Morrow stated they are usually reported to the
regional office. She stated she works in the central office, and she would not be the
person seeing all of these. Mr. Koopman asked if there is a procedure in place that
requires the operator of a group home to report these incidences to the State, and
Dr. Morrow stated there is. She stated it is called an Incident Management Report.
There is a bulletin that describes what is reported. It is now done electronically.
Mr. Koopman asked what is required to be reported, and Dr. Morrow stated the broad
categories are death, hospitalization, ER visits, fires, and law enforcement involvement
Mr. Koopman asked if there was a violent act committed by one of the residents, would it
be reported, and Dr. Morrow stated this would depend. She stated an assault by one
resident on another resident would be reported. Mr. Koopman asked if a resident
wandered away would this be reported, and Dr. Morrow stated it would, and there is a
definition for this. Mr. Koopman asked if the State maintains records of these, and
Dr. Morrow stated they do.
Mr. Koopman stated Mr. Champ had testified that
incidences of those things occurring, and he asked Dr. Morrow if this is accurate.
Dr. Morrow stated she would not know as she does not review all of those incidents.
Mr. Koopman stated he assumes that they would have to get the records to determine if
Mr. Champ’s testimony was accurate.
Mr. Schneider objected due to lack of foundation as he does not feel that this was
Mr. Champ’s representation.
Ms. Kirk sustained.
October 18, 2005 Zoning Hearing Board – page 16 of 30
Mr. Koopman asked if the State has guidelines to be used by the provider to determine
who should go into a group home, and Dr. Morrow stated there are guidelines about what
the support plan should have in it, the kind of supervision someone needs, and the kind of
things they can do independently. However, in terms of whether people are following the
plan, this is a survey function from the Department of Health though the ICFMR
Mr. Koopman stated Dr. Morrow indicated that mentally retarded individuals have less of
an opportunity to live in a family environment, and Dr. Morrow stated they would have
less of an opportunity to live in their own family – not their biological family as there are
lots of people who do live with their natural families as they live with their parents as
adults, but they have people who require a lot of lifting and those kinds of things which
make living with their family as their parents get older, more difficult. She stated people
who do not function well independently would have a great deal of difficulty living with
someone else who might have similar difficulties without support around them.
Mr. Koopman stated it appears that they may also need physical assistance by someone
who has strength in order to lift them, and Dr. Morrow agreed. She stated they may also
use some kind of lift.
Mr. Pastor stated Dr. Morrow testified that the State encourages community living so that
they can get more individualized attention; and Dr. Morrow stated they encourage
community living so that people can have more independence and more choice in their
lives. She stated part of that is also to get more attention and more ability to make
decisions. Mr. Pastor asked the Department’s opinion on ratio, and Dr. Morrow stated
there are some required ratios of staff to person in the ICFMR regulations. She stated she
believes those are one to eight for the day, one to eight in the evening, and one to sixteen
in the night. She does not know anyone who uses that ratio. She stated most people are
in an environment where they have a much lower ratio in terms of staff to the people they
are working with. Mr. Pastor asked if the ratio changes based on the level of mental
retardation, and Dr. Morrow stated what the Plan requires is that you define and create an
environment that adequately supports the person. This may mean that some people
require one to one and some are more independent or are less likely to get into trouble in
terms of doing something that might be dangerous. She stated it is defined in the Plan
what the staff to person ratio is. Mr. Pastor asked what would come into play that would
require one to one, and Dr. Morrow stated here are very few people who require one to
one. She stated the people primarily who have a one-to-one ratio, who are not people
who are living by themselves out of choice, are people who have very significant
behavioral problems. Mr. Pastor asked if this would fall under the category of profound
or severe mental retardation, and Dr. Morrow stated it would not. It would be something
different like autism or other mental illness.
October 18, 2005 Zoning Hearing Board – page 17 of 30
Mr. Pastor stated Dr. Morrow testified that she received a brief synopsis of patients for
the homes in
ratio should be; and Dr. Morrow stated the information gave her a sense of how few
medical problems the people who are going to be living in the homes have. She stated
there were no people with significant behavior problems that would indicate that they
needed a one-to-one setting. She stated people who have physical disabilities alone do
not need a one-to-one setting.
Mr. Pastor asked if it is customary to make a determination based on such a brief
synopsis, and Dr. Morrow stated it is not. She stated the people who do the individual
support Plans would know the individuals, and have a team that includes the family, staff
who directly works with them, and a psychologist. She stated the physician is a part of
the team for the health care piece, but may not sit with them.
Mr. Pastor stated there was prior testimony from Mr. Champ that the patients in these
homes would be leaving the home to have services provided to them, and he asked what
those services would be. Dr. Morrow stated usually the people participate in some kind
of a day program which is geared to what their abilities and interests are. Mr. Pastor
asked how long they would be at the day program. Dr. Morrow stated they vary in length
but most of the people are gone a good part of the day similar to others in the general
population who go to work. Mr. Pastor asked if this would not reduce the individual’s
attention they receive in the home if they are going away from the home most of the day.
Dr. Morrow stated the ”day” is significantly longer than the time they are at work, and
there are also weekends and evenings in the home.
Mr. Pastor stated Dr. Morrow indicated that the children of the house parents benefit
from living in a home such as this, and he asked her expertise in this area and if she has
performed any studies to prove this. Dr. Morrow stated she is a developmental
pediatrician and works with children with disabilities as well as typical children in
schools and has spent time in Elementary Schools. From those observations she senses
how people benefit from this. She stated from talking to children who had experience
working with people who had disabilities, it is clear that they gained form those
opportunities. She has not done any long-term studies in this.
Mr. Pastor asked in a perfect setting, what would be the optimum ratio. Dr. Morrow
stated the perfect setting would be dependent on who the person is. It would need to be
what people need in terms of supporting their development and their functioning on a
Mr. Pastor stated she testified that when there are fewer distractions, the caregivers are
better able to watch them. He asked if caregivers have their children in this home would
this not provide an opportunity to distract them. Dr. Morrow stated it might, but she does
not feel it would be more distracting than walking into a day room in an institution where
October 18, 2005 Zoning Hearing Board – page 18 of 30
there are sixteen people. Mr. Pastor asked if it would be less distracting to have a home
without children, and Dr. Morrow stated there would always be another staff person
there. She stated even when there are only two to three people, someone could fall and
you would have to pay attention to that person, and then something may happen to
someone else. She stated it is similar to the situation of having more than one child.
Mr. Pastor stated Dr. Morrow testified that people with severe or profound mental
retardation have issues with judgment including safety issues, and he asked if they could
understand the concept of not going into the road, into the pool etc. Dr. Morrow stated
this would be part of their Plan in terms of identifying what are situations where they can
make decisions, what are situations where they may need help, and what are situations
where they would need to bring in special things to keep them safe. She stated if there
was someone who was not able to identify what is edible, you would then put a lock on a
cabinet with cleaning supplies.
Mr. Pastor noted that each of the three homes borders a major road in the Township, and
asked what steps would need to be taken to keep the residents safe. Dr. Morrow stated
many of the residents do not have the ability to walk. She stated even some of the people
who may be able to walk inside the home may not have the ability to walk well out in the
community. She stated they would build this into the Plan. She stated many group homes
and homes where people who have mental retardation live are on these kinds of places,
and you build this in as part of your safety plan.
Mr. Pastor stated Dr. Morrow testified that she has seen incident reports for AVS group
homes, and Dr. Morrow stated she testified that she does not look at all of the incident
reports. She stated she has seen some. Mr. Pastor asked if she has ever seen any where
there was a case of people leaving the homes, and Dr. Morrow stated there were not in
the ones she has read.
Mr. Pastor asked if the Department has a preferential number for number of persons in a
group home, and Dr. Morrow stated the ICFMR regulations say no fewer than four. She
stated when you look at waiver homes, these are more typically two to three people. This
depends on how people work it as there are a lot of different ways things happen in terms
Ms. Judith Kaufman,
Road home. Ms. Kaufman stated Dr. Morrow has indicated that it is better for the
residents to be involved in the community. She stated if the family that is living with
them is going to be separated, would that be good. She stated if they are not going to eat
their meals with the residents how would this be inclusive.
Mr. Schneider objected to lack of foundation since the record clearly shows that the
family will be eating meals with the residents. Ms. Kirk stated prior testimony indicated that they would be operating as a family unit.
October 18, 2005 Zoning Hearing Board – page 19 of 30
Ms. Kaufman stated Dr. Morrow indicated that it is good for those with profound mental
retardation to see what other people do and how they react, and she asked how someone
with profound mental retardation can understand that if they are not able to speak and are
similar to a six-month old. She asked if they are learning from being with a family; and
Dr. Morrow stated they are. She stated they react at the level at which they can react.
She stated when they looked at the studies of people receiving no stimulation, since for a
long time people went into institutions when they were very young and had no
stimulation but were simply housed there, fed, changed, and put to bed, they found that
people had a lot of bad behaviors and did not know how to interact with people. She
stated even someone at a six-month level can make eye contact, and respond to a smile or
frown. She stated in people with mental retardation, their highest functioning skills are
often their social skills,
Ms. Kaufman asked if they are able to know if the residents
profoundly retarded, and Mr. Toadvine stated this was not what was testified to.
Ms. Kaufman asked if she can ask who will be at that home. Mr. Toadvine stated he
does not feel this witness has knowledge as to that. Ms. Kaufman stated she testified that
she read about each of them. Mr. Toadvine stated it was not testified as to each house as
to what the level of retardation was for the residents.
Mr. Schneider asked Dr. Morrow about the summaries she read regarding the residents,
based on those summaries was she able to reach an opinion as to whether or not their
mental retardation substantially limited their major life activities in the ways she had
described; and Dr. Morrow stated she had. She stated the descriptions included not only
their levels of mental retardation but also a brief description of what they were able and
not able to do and they will be substantially limited in the major life activities about
which she has testified.
Mr. Schneider stated Dr. Morrow testified that there is a much lower ratio of staff to
person in practice as opposed to what is required, and Dr. Morrow stated typically this is
correct. Mr. Schneider stated he feels she means there are fewer residents per staff
person and Dr. Morrow agreed. Mr. Schneider stated she indicated that they need to step
away from ratios and he asked why. Dr. Morrow stated the regulations list ratios
because they want to make sure that you have at least some supervision. She stated the
regulation is the minimal that you need to do. What you really do is look at what people
need. She stated the survey that comes back to look at with regard to staff ratios, you
could meet the regulation and they could still cite you because you did not have adequate
supervision for that individual person. Mr. Schneider asked if adequate staffing is one of
the things that gets considered in the process that she described that providers go through
in determining who is appropriate for community living and who is not, and Dr. Morrow
stated it is.
October 18, 2005 Zoning Hearing Board – page 20 of 30
Mr. Schneider asked if there are other types of disorders that would fall into the category
of mental illness other than those which she has already indicated, and Dr. Morrow stated
there are also anxiety disorders including generalized anxiety, phobias, panic attacks, and
obsessive/compulsive disorders. Mr. Schneider asked if affective disorders are the types
of disorders that would present danger to others as opposed to the person who is the
subject of the disorder, and Dr. Morrow stated this is not true typically. Mr. Schneider
asked if would anxiety disorders be the type of disorders that would present danger to
others as opposed to the person suffering from the disorder; and Dr. Morrow stated they
would more typically impair the person suffering from the disorder.
Mr. Schneider asked other than schizophrenia, what other psychotic disorders are there
that would be recognized. Dr. Morrow stated there are a number of different kinds of
schizophrenia and there are some psychotic disorders not otherwise specified. She stated
she is not an adult psychiatrist. She stated other than seeing some people in
School, she has seen very few presentations of schizophrenia. Mr. Schneider stated as to
psychotic disorders, Dr. Morrow’s knowledge is that they are rare whether or not they are
in the non-mentally retarded and the mentally-retarded population, and Dr. Morrow
stated they are much more rare than affective disorders or anxiety disorders.
Mr. Schneider asked if she knows whether or not psychotic disorders are higher in the
population of people with mental retardation, and Dr. Morrow stated this is difficult to
state since the diagnostic criteria are sometimes hard to apply. She stated in the past
people have applied them and treated people with anti-psychotics which had some impact
on behavior and they indicated that it had a positive impact. However, she is not sure
that the data shows the real picture. Mr. Schneider stated she indicated that there is a
slightly higher level of affective disorders among people with mental retardation, and
Dr. Morrow stated she would agree. She is not certain that this would also be correct as
to anxiety disorders.
Mr. Schneider stated part of the planning process to determine whether someone is
appropriate for community living, would be determining whether they had a history of
Mr. Koopman objected noting this is a leading question.
Mr. Toadvine stated it does not appear that they are on re-direct as this was not raised on
cross-examination and it seems like they are covering new ground.
Mr. Koopman stated he has further questions based on Mr. Schneider’s re-cross.
Mr. Toadvine stated he does not feel this is permitted. Mr. Koopman disagreed.
Mr. Koopman stated Mr. Schneider examined the witness and raised some additional
issues with respect to which he has questions. Mr. Toadvine stated he should have
October 18, 2005 Zoning Hearing Board – page 21 of 30
Ms. Kirk asked that Mr. Koopman proceed.
Mr. Koopman stated Dr. Morrow discussed affective disorders, anxiety disorders, and
psychotic disorders but in answer to one of Mr. Pastor’s questions she referred to a term
“behavior problems” and asked if this is something different from the other terms.
Dr. Morrow stated it is. Mr. Koopman asked what she means by the term “behavior
problems.” Dr. Morrow stated there are symptoms which people sometime have such as
ADD, intermittence explosion disorder, and those kinds of things which are in the DSM
so they are in the manual with all the mental illnesses, but they are not the group that the
psychiatrists use as significant mental illnesses. Mr. Koopman stated it does not appear
to be as much as a scientific term, and Dr. Morrow agreed that it would be more of a lay
term. Mr. Koopman asked if an anti-social behavior could be considered a behavior
problem, and Dr. Morrow agreed – she stated it could be autism or a number of other
Mr. Koopman asked if the summaries she saw told her whether or not any of the
individual had behavior problems, and Dr. Morrow stated she does not recall seeing any
descriptions of abnormal behaviors. Mr. Koopman asked if she saw anything that said
the individuals did not have any behavior problems, and Dr. Morrow stated she did not.
She stated there were typically positive descriptions.
Ms. Heather Serianni was called and sworn in. She stated she is a Realtor and has
employed by Prudential-Fox and Roach Realtors and has worked for them for two years.
She stated she performed services for
She was engaged in fall, 2004 for the purpose of finding single-family homes for them in
the Bucks and
School gave them any particular criteria as to what they were looking for, and
Ms. Serianni stated they were looking for ranchers if possible or homes that would be
handicapped accessible. They did not limit her to any particular Municipality. She stated
her agency located approximately one hundred homes and in the first three days they
looked at fifty-two houses.
Mr. Schneider asked of those one hundred, did
Mr. Schneider asked after she located the properties, did
her agency to locate single-family residences with five acres of land in Residential
they found a very limited number but she could not recall how many specifically.
Mr. Schneider marked as Exhibit A-35 a paper showing a house, and Ms. Serianni stated
this is one of the houses they located with five acres in
The price of this property was $869,900 and it was located
Washington Crossing, PA.
October 18, 2005 Zoning Hearing Board – page 22 of 30
Exhibit A-36 was marked and Ms. Serianni stated this was one of the properties they
located with five acres in
$999,099 and it was located at
Exhibit A-37 was marked which is a listing for
was one of the properties Ms. Serianni stated they found in their search. It is a five acre
Residential property and the cost of this property is $799,000.
Exhibit A-38 was marked which is a listing for
Ms. Serianni stated she located which shows a cost of $869,900.
Mr. Schneider asked if, at the time her Agency did the search, were these the only
properties that came up that were at least five acres in Residential communities in Lower
Exhibits A-35 through A-38 were offered and there were no objections.
Mr. Koopman asked if Ms. Serianni is a Real Estate Agent, and she stated she is. She
stated this is different from a Broker. Ms. Serianni stated she is not a licensed Broker in
the State of
on behalf of Prudential-Fox Roach and works out of the Blue Bell Office.
Mr. Koopman asked if she was asked to search for residential
was. Mr. Koopman asked if there were any other restrictions placed on what she was
looking for in terms of it being a rancher, etc. Ms. Serianni stated she started out with a
broad search and then, looking at the limited inventory, there were no homes in that
search that would fall under the umbrella of a rancher. She stated those presented tonight
were the only properties that came up under that search. Mr. Koopman asked if she was
correct. She used a Multiple Listing System. Mr. Koopman asked if you can go in using
that system and input five acre residential properties or more and it will indicate what is
available, and Ms. Serianni agreed. Mr. Koopman asked if she had ever done a search
like this before, and Ms. Serianni stated she has. Mr. Koopman asked when this search
was done, and Ms. Serianni stated she does not recall specifically but feels it was several
months ago. Mr. Koopman asked if she did it all in one day, and Ms. Serianni stated she
did. Mr. Koopman asked for her best recollection as to when she did it, and Ms. Serianni
stated she would estimate that it was in August of 2005. Mr. Koopman asked when AVS
made the request and she stated it was within the same time frame when the search was
actually done. Mr. Koopman asked if she ever did a search for AVS of five acre
Residential lots in
she did subsequent searches after that within thirty days after that. Mr. Koopman asked if
she made any notes when she did the search and asked if she has a file on it.
October 18, 2005 Zoning Hearing Board – page 23 of 30
Ms. Serianni stated she does. Mr. Koopman asked if she brought the file with her, and
Ms. Serianni stated she did. He asked if this would tell the dates, and she stated it would.
Mr. Bamburak stated on the second sheets the dates are shown as to when they were
printed. Mr. Toadvine stated it appears that it was August 11, 2005 and Ms. Serianni
agreed. Mr. Koopman noted Exhibit A-38 shows June 9 and noted there is also another
one that is from June. He stated it appears that some say June and some say August.
Ms. Kirk asked if it says “printed” is this the date that it is printed, and Ms. Serianni
stated they can assume that the date that it was printed was the date that she did the
Mr. Koopman stated she testified that she did a search in August, but they now have two
that were printed in June. Ms. Serianni stated she can now see that the date that is printed
would be the day she conducted the search.
Mr. Koopman asked if it is her testimony now that she did a search on two different
occasions – one in June and one in August, and Ms. Serianni stated when she was first
asked the question she did indicate that she was not sure when she had done them; but
now looking at the dates, she can see that the date that is printed on the print-outs would
have been the date that she conducted the search. Mr. Koopman asked if she is testifying
that when she did the search on June 9 she came up with two properties, and Ms. Serianni
agreed. Mr. Koopman stated she also indicated that she did a search on August 11 and
came up with two properties, and Ms. Serianni agreed. Mr. Koopman asked if she did
searches on any other dates, and Ms. Serianni stated if she did, she would not have
printed the sheets as they would have been duplicates as those being looked at. She does
not recall if she did or did not do searches on any other dates.
Mr. Koopman asked what would have been available in January, February, or March of
2005 in terms of five acres lots when AVS purchased the
Ms. Serianni stated she did not know.
Mr. Koopman noted the Exhibits have prices and asked if these are listing prices, and
Ms. Serianni agreed. Mr. Koopman asked if she knows whether the properties were sold,
and Ms. Serianni stated where it says RESACT this means it is active, so at the time it
was printed it was not sold. She does not know if they were sold since then or what they
were sold for. Mr. Koopman asked if typically it is not unusual for a house to sell for
something less than what it is listed for. Ms. Serianni stated she could not say “typically”
but agreed it would not be unusual.
Mr. Pastor asked Ms. Serianni if she was told why she was to search for these properties
Lower Makefield Township for homes for
October 18, 2005 Zoning Hearing Board – page 24 of 30
search for homes throughout Bucks and
Mr. Pastor asked if she found homes at that time that were five acres in size, and
Ms. Serianni stated she did not run a search based on acreage at that time. Mr. Pastor
asked the location of the 100 homes she did find, and Ms. Serianni stated they were in
and other areas. Mr. Pastor asked if she was instructed to focus on homes in Lower
Makefield, and Ms. Serianni stated she was not. Mr. Pastor asked her why three homes
requirements and the needs of AVS. Mr. Pastor asked if any of the other 97 homes met
those needs and requirements, and Ms. Serianni stated she cannot attest to this as it was
ultimately their decision. Mr. Pastor asked if any of those homes met the criteria she was
given, and Ms. Serianni stated they did meet the criteria for them to go and look at them.
Mr. Pastor asked the relevancy of Ms. Serianni’s testimony since these three homes have
already been purchased. Mr. Toadvine stated they have already admitted the Exhibits
into testimony and no one had objected to the testimony. Mr. Pastor stated he felt the
testimony was to provide relevancy and now that he has heard it, he does not see the
Ms. Kirk stated Mr. Pastor’s objection is noted.
Mr. Harold Kramer,
Road. It was determined that Mr. Kramer had not previously requested Party Status.
Mr. Schneider objected to this individual asking questions at this time. Mr. Kramer
asked if he could sign up for Party Status at this time, and Mr. Toadvine stated since it is
now the seventh night of testimony it is too late to request at this time.
There was no further public comment.
Ms. Linda Donahue was called and sworn in. She stated she works for Prudential-Fox
and is a Vice President and Sales Manager. She stated she holds a Residential Sales
License and a Broker’s License. Her education took place at Schlickter-Kratz. She has
been working in the field for approximately twenty-one years, and is experienced in
selling single-family residences in
Ms. Serianni’s testimony and agrees that the prices noted for single-family residences of
five acres in
Mr. Pastor and Mr. Koopman objected. Mr. Koopman stated he assumes she is being
offered as an expert witness and there has been no evidence to establish her qualifications
other than she has sold homes in
he was not given the opportunity to cross examine on her credentials if she is being
offered as an expert witness. Mr. Schneider stated she is being offered as an expert
witness and the test for an expert witness in
October 18, 2005 Zoning Hearing Board – page 25 of 30
knowledge or experience such that they can be helpful as a finder of fact in making a
determination of fact. He apologized for not giving Mr. Koopman a chance to cross
examine and noted he is offering Ms. Donahue as an expert witness for the sale of realty
Mr. Pastor stated in addition to what Mr. Koopman has indicated, his objection is that
there are Exhibits which have been presented which are basically after the fact; and using
those to determine what the value of the homes would have been when AVS purchased
the homes, is no foundation. He stated they would need foundation for the value of the
homes when AVS purchased the homes. Mr. Toadvine stated he has not asked that
Ms. Kirk asked that they consider Mr. Koopman’s objection first. Mr. Schneider asked
Ms. Donahue how long she has been experienced selling
single-family homes in
one years which consisted of selling as well as managing the Sales Office. She has had
Mr. Koopman asked where her office is located, and Ms. Donahue stated it is located in
asked how long she has been at that office, and Ms. Donahue stated she has been there
seven years. Mr. Koopman asked where she was before this, and Ms. Donahue stated she
also has managed Yardley and Richboro Offices for Prudential-Fox Roach. She also sold
in Yardley and other parts of
approximately seventy agents in her office who work
was in Richboro but she also was managing the Yardley Office for a portion of that time
as well. She does not recall the exact time when she was managing the Yardley Office
but it was a two year period of time approximately nine years ago. For the first six years
of her career she was a Sales Agent in the Newtown Office, the Yardley Office, and then
the Richboro Office.
Mr. Koopman asked if she has been the Broker of Record in connection with sales in
company would be Chip Roach. She is the Associate Broker for the Newtown Office.
Mr. Koopman asked if she has been involved in the last two years directly in the sale of
residential real estate in
conveyance, and Ms. Donahue stated she has. Mr. Koopman asked how many homes
either she or those working under her sold in
two to three years, and Ms. Donahue stated she had no idea. She stated her office sells
sixty to eighty homes a month throughout Bucks and
October 18, 2005 Zoning Hearing Board – page 26 of 30
Mr. Koopman asked for an offer of proof as to what she is proposed to testify to.
Mr. Schneider stated this goes to the Reasonable Accommodation request. He stated the
Zoning Ordinance requires nursing homes to be built on five acres, and he wanted it put
out that the number and price of five acre properties in Residential Districts in Lower
Makefield are such that AVS could not afford them and they could not have gotten
funding from the State. He wanted to lay the foundation of the scarcity and the price so
he can ask for Reasonable Accommodation from the five acre requirement. Mr. Koopman
stated they already have the testimony of the prior witness. He stated there has been no
foundation laid and there has been no testimony that this witness is qualified to do this.
He agreed that she has sold a lot of homes, but he questions if she has information as to
what the average price of a five acre home is in
he does not feel he needs to cross-examine her as Mr. Schneider has not established that
she has expertise to answer that question.
Mr. Pastor stated Ms. Donahue has offered no testimony as to her direct knowledge of the
sale of five acre homes in
to be an expert witness.
Mr. Koopman stated she has not testified that she is familiar with any five acre sales. He
acknowledged that she is a Realtor but this does not qualify her to answer that specific
Ms. Kirk stated she will accept Ms. Donahue’s qualifications as a Realtor and Broker in
Mr. Schneider asked Ms. Donahue if she is familiar with the prices of residential
Ms. Donahue stated she is. Mr. Schneider asked if she is familiar with the prices as of
January and February of 2005. Ms. Donahue did not answer the question. Mr. Schneider
stated there has been testimony from Ms. Serianni that the range of prices is from
$799,000 to $999,000.
Mr. Koopman objected and stated this was not her testimony.
Ms. Kirk overruled.
Mr. Koopman stated there were four specific houses with prices and he does not feel this
makes a range.
Ms. Kirk stated she will allow the testimony.
Mr. Schneider asked if the prices of Residential properties
of five acres or more stayed consistent from January of 2005 through August of 2005.
October 18, 2005 Zoning Hearing Board – page 27 of 30
Mr. Pastor objected. He stated as a Real Estate Agent, she is not a licensed Appraiser of
Real Estate properties and is not in a position to answer this. He stated she has also not
offered any testimony about sales she actually conducted in January through now.
Ms. Kirk overruled and asked that she answer.
Mr. Schneider asked Ms. Donahue if there have been substantial changes in the prices of
property as has been described in
today. Ms. Donahue stated she is not comfortable answering from January, 2005 through
today because she did not do a search for those properties in January, 2005. She stated
she can attest …
Mr. Koopman objected noting she indicated she could not answer the question.
Ms. Kirk overruled and asked that Ms. Donahue finish her response.
Mr. Koopman asked Ms. Kirk if she is going to allow Ms. Donahue to give a speech
without answering a responsive question, and Ms. Kirk indicated she was. Mr. Koopman
objected. Mr. Koopman’s objection was noted and overruled.
Ms. Donahue stated since she has been coming to the meetings, each time she has come
she has gone onto the Multiple Listing Service and investigated for herself the properties
that would be available in
changed. Presently there are three active properties that are for sale which are five acres
Ms. Kirk asked what were the listings for Residential
Township of five acres or more in January of 2005, and Ms. Donahue stated she could
not answer this unless she did a search on the computer presently. Ms. Kirk asked what
properties were available in January, 2005. Ms. Donahue stated if she were able to look
at the MLS sheets which she has with her, she could look at the days on market that
would indicate for the three active listings she has how many days they have been on
market and if they were available in January.
Mr. Schneider stated he would like to have the opportunity to review those sheets.
Ms. Kirk noted Exhibit A-35 for the property at
stated this is shown as an inactive listing. Ms. Kirk asked if she can tell how long it had
been listed on the market, and Ms. Donahue stated she could not as she did not have that
Exhibit A-36 was noted for the home on
shows a listing date of June 1, 2005. Ms. Kirk asked how long it has been on the market,
and Ms. Donahue stated it was on the market for 140 days from June 1, 2005.
October 18, 2005 Zoning Hearing Board – page 28 of 30
Ms. Donahue noted it may not be totally accurate because a listing can be taken out of the
MLS and then re-inputted.
Mr. Koopman objected to it if she is indicating it is not necessarily accurate.
Ms. Kirk noted Exhibit A-37 for the property at
Ms. Donahue stated this is the one she does not have.
Ms. Kirk noted Exhibit A-38 for the property at
this was listed August 22, 2005. Ms. Kirk stated Exhibit A-38 shows that the print out
was printed June 9, and Ms. Donahue stated it may have been re-listed.
Mr. Schneider asked as of the date the sheets were printed out, are the prices typical of
properties that fit that description.
Mr. Koopman objected.
Ms. Donahue stated they were.
Mr. Koopman asked Ms. Donahue if she has any personal knowledge of any of the four
houses being offered other than what is on the Exhibit, and Ms. Donahue stated she does
not. Mr. Koopman asked if she has seen the Exhibit prior to this evening, and
Ms. Donahue stated she has never seen them. Mr. Koopman asked that the testimony be
stricken as she has testified that she has never seen the Exhibits and he questions how she
can testify that the prices as depicted on the Exhibits are the typical prices for these
Ms. Kirk stated she has allowed the testimony. She stated the Zoning Hearing Board has
the ability to determine how much weight to give to her testimony.
Mr. Koopman stated in light of the cross-examination and her admission that she has
never seen these documents, he feels it should be stricken.
Ms. Kirk stated the testimony has been allowed.
Mr. Koopman noted Exhibit A-35 and asked if she has seen this document prior to this
Mr. Schneider stated this question has been asked and answered.
Ms. Kirk asked Ms. Donahue if she has ever seen Exhibit A-35 before this evening, and
Ms. Donahue stated she has not. Ms. Kirk asked Ms. Donahue if she has ever seen
Exhibit A-36 before tonight, and Ms. Donahue stated she has not. Ms. Kirk asked
October 18, 2005 Zoning Hearing Board – page 29 of 30
Ms. Donahue if she had ever seen Exhibit A-37 before tonight, and Ms. Donahue stated
she has not. Ms. Kirk asked if she has ever seen Exhibit A-38 before tonight, and
Ms. Donahue stated she has not.
Mr. Koopman asked how she can give an opinion on the property shown on
Exhibit A-35 and asked Ms. Donahue how she give an opinion on a property when she
has never seen the listing before.
Mr. Schneider objected and stated she gave an opinion on the range of the prices and
whether or not they were typical for this described property. Mr. Koopman questioned
how she could do this if she has never seen the property. Ms. Donahue stated she has
never set foot on the property. Mr. Koopman stated she has indicated she has never even
seen the listing for Exhibit A-35 before tonight, and Ms. Donahue agreed she had never
seen the document that is Exhibit A-35.
Mr. Schneider stated that he has possibly two more witnesses which will be no more than
five minutes each.
Ms. Kirk moved, Mr. Caiola seconded and it was unanimously carried that the matter be
continued to the next Board meeting of November 1, 2005. Ms. Kirk noted that there
will be no other matters scheduled for that evening.
Ms. Frick stated she will not be available for the first meeting in November.
Mr. Schneider stated Ms. Frick has been subpoenaed. Ms. Frick stated she has been at all
other meetings, and has a prior long-time commitment for that evening. Mr. Koopman
asked the Board to excuse Ms. Frick, and they will arrange to present her at another
night. He noted the Township will be presenting a case as well as Mr. Pastor and they
could put Ms. Frick on during another portion of the case. Ms. Kirk stated part of the
reason Ms. Frick was subpoenaed was to produce certain documents, and
Mr. Schneider agreed. Ms. Kirk asked if those documents were produced, and
Mr. Schneider stated they are not here tonight. Ms. Frick disagreed and stated they are
here tonight. Mr. Schneider stated he was told there were not here and she did not have
them ready. Ms. Frick stated they were not in order for Mr. Schneider’s review but she
did not know that until he came to the meeting this evening. Mr. Koopman stated he has
offered Mr. Schneider the opportunity to look at the documents any time he wanted to
look at them, and they were going to have him look at them November 1 during the day
as he indicated he could be present earlier that day. Ms. Frick will have Mr. Habgood
make the documents available for him to look at them on November 1. Ms. Frick stated
they are also available for him to look at prior to that time, and he can come in any day
between 8:00 A.M. and 4:30 P.M. and review the documents.
October 18, 2005 Zoning Hearing Board – page 30 of 30
Mr. Toadvine asked if the purpose of Ms. Frick’s subpoena is so that Mr. Schneider can
review and introduce the documents into evidence, and Mr. Schneider stated that it is not.
He stated he may have questions of Ms. Frick on those documents.
Mr. Pastor stated their planner’s testimony plus cross-examination could possibly take the
entire evening, and he would be willing to have her present on November 1 and Ms. Frick
would not need to be present at that time and could be scheduled for another date and
Mr. Schneider would then have an opportunity to review the documents.
Ms. Kirk recommended that Mr. Schneider make arrangements to review the documents
November 1 since he will be present earlier, and they will allow Mr. Schneider’s other
witness to proceed along with Mr. Pastor’s planner; and while this will be out of turn, in
light of Ms. Frick’s prior plans, she will excuse her from being present on November 1.
There being no further business, Mr. Bamburak moved, Mr. Dobson seconded and it was unanimously carried to adjourn the meeting at 11:15 p.m.
David Malinowski, Secretary