Filing to Zoning Board following remand by judiciary.
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ROBERT B. SKLAROFF, M.D. * IN THE COURT OF COMMON PLEAS 1219 Fairacres Road * OF MONTGOMERY COUNTY, Rydal, Pennsylvania 19046-2911 * PENNSYLVANIA * Petitioner, * * v. * * TOWNSHIP OF ABINGTON * NO. 2011-02540 1176 Old York Road * CIVIL DIVISION Abington, Pennsylvania 19001 * * Respondent, * * BAEDERWOOD LIMITED PARTNERSHIP * JURY-TRIAL REQUESTED 1301 Lancaster Avenue * Berwyn, PA 19312 * * Intervenor * * * * * * * * * * * * * * Robert B. Sklaroff, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046- 2911 [215=333-4900] —pro se— SUBSTANTIVE PETITION FOR REVIEW OF TOWNSHIP ORDINANCES ADJUCIATION I, Robert B. Sklaroff, M.D., certify that the following statements are true and accurate. This Petition is provided
Transcript
ROBERT B. SKLAROFF, M.D. * IN THE COURT OF COMMON PLEAS1219 Fairacres Road * OF MONTGOMERY COUNTY,Rydal, Pennsylvania 19046-2911 * PENNSYLVANIA
*Petitioner, *
*v. *
*TOWNSHIP OF ABINGTON * NO. 2011-025401176 Old York Road * CIVIL DIVISIONAbington, Pennsylvania 19001 *
Public Hearing [Commissioner Comment] {¶¶ 72-80}, and Right-to-Know Requests {¶¶ 81}.
19. Thus, the “Selected Narrative” composed herein {¶¶ 10-83} has been composed to prophylax
against Intervenor’s 6/27/2011 “Motion for More Specific Pleading”; it includes refutation of
misrepresentations both obvious [such as the characterization of this filing as devoid of specifics]
and assumed [such as the view that undue reliance was placed on advisory documents].
Selected Narrative
20. In 2007, Abington adopted two planning-oriented documents that were cited as a precursor to the
challenged Ordinances that created the Fairway Transit-District {“FTD”} located in Abington’s heart:
Old York Road Corridor Improvement Study {“Study”} and Abington Comprehensive Plan {“Plan”}.
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21. Petitioner has never argued that these documents should be viewed as controlling regarding the
crafting of an applicable Ordinances; rather, claimed as a component of the faulty due-process
narrative has been recognition that no effort was made (a)—to rationalize the components of these
documents with specifications in the Ordinances, and (b)—to ensure basic public input had been
sufficiently entertained [including an effort to address—let alone answer—questions raised during
Public Hearings] during the adoption-process (between 11/2010 - 1/2011).
22. The Study noted “the public’s reaction to redevelopment of Baederwood [reflected] strong
community opposition to this FTD-linked proposal”; development in this cluster was thus felt to
“require reconfiguration of existing auto dealerships or shopping centers, an action that is possible
but not imminent [unless] market forces (i.e., supply and demand) [ultimately] win the day.”
23. The Study advised further scrutiny of the impact of the FTD on current levels of traffic congestion,
congruent with statutory mandates [vide infra] and traffic studies in Abington [that were conducted
episodically during decades, to varying stated-levels of comprehensiveness and conclusiveness,
the results of which were internally/externally consistent/validated]: “Off-peak vehicular congestion
along Old York Road also needs to be evaluated when considering the corridor. Significant
contributors include traffic traveling to major destination shopping centers such as the Willow
Grove Mall, The Fairway and Baederwood Shopping District and Abington Shopping Center.”
24. The Plan stated goals to create “Town Centers” to control and direct future growth [entailing
integration of integration of commercial and residential uses, rather than “fixed, static boundaries”]
included more frequent and coherent updates of the current Zoning Ordinances, clustered rental
properties, and use of Overlays [as per the intent of the instant-Ordinances].
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25. The Plan cited Goals/Objectives related to myriad concerns, including: Land Use & Zoning
[revise zoning map to comport with comprehensive plan, encourage mixed-use, create a seamless
transition between commercial corridors and residential neighborhoods], Transportation [relieve
traffic congestion and provide for the safe and efficient access to commercial, recreational, and
institutional centers; encourage mass-transit and non-vehicular movement; update McMahon
Study; encourage Transit-Oriented-Development and the development of medium-/high-density
residential uses at transportation nodes and in commercial districts]; Natural Resources/Green
Spaces [preserve/protect]; Housing [enhance diversity, but conserve the character and encourage
maintenance of existing housing]; Community Identity/Pride [encourage open access to all of
Abington’s governing bodies]; Township/Community Facilities and Services [identify/fulfill,
maintaining awareness of realistic fiscal constraints]; and Township Finance [stability].
26. The Plan advised promoting Baederwood in a fashion that, at a minimum, would entail entertaining
the type of public input [”with care and sensitivity”] that the Study had also explicitly envisioned:
A mixed-use development, if done with care and sensitivity, could enable the developer and the Township to produce a product on a property in an area already populated with higher-density development. This type of mixed-use redevelopment could provide the age-restricted housing discussed early in this section with retail and access to public transportation and a major thoroughfare (Old York Road) through the Township. The potential of this type of development could be the infusion of pedestrian traffic, destination mode and retail revitalization needed within the Township.
27. The Plan advised creation of mixed-use business districts along main arteries (residential, retail,
office) and development of “methods to aesthetically improve [sic] commercial corridors with
surrounding neighborhoods to create a supporting climate”; also, the Plan advised that
collaboration occur among multiple entities [Administration, Code Enforcement, Community
Development, Economic Development Commission and Planning Commission] and, specifically,
that they “meet periodically to share information, vision, and policies in an effort to maximize
departmental resources of the Township in achieving the economic development mission.”
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28. The Plan included a Transportation Plan that encouraged mass-transit [but did not rely upon this
concept to suggest that increased residential-density would somehow decrease vehicular-use,
assertions unambiguously made by land-planning consultant Kennedy without any documentation,
vide infra] and that recognized inherent limits when implementing such plans [absent both a grid
and a set of feeder-methodologies of public-transportation, as would exist in urban regions]:
Recent observations of the Meadowbrook, Rydal, Roslyn and Ardsley train stops have shown that parking space capacity is virtually at one hundred percent occupancy during weekdays, which suggests that a limiting factor of the current rider counts is the amount of available parking.
29. The Plan recognized existing regional congestion and included an analysis of vehicular data,
recognizing the necessity to encompass emergency services, citing inter alia decades-old data:
A transportation system should be designed to meet the differing mobility needs of residents, businesses, emergency services (police, fire, medical services), and commuters alike. The system needs to consider individual automobile/truck transportation and public transit, as well as pedestrian travel…. Abington Township has had to struggle with increasing traffic congestion and time delays, road hazards, and inadequate off-street parking. Moreover, the shift to inter-suburban travel (as described in Section B of the 1992 Comprehensive Plan) has dramatically increased usage of major Township thoroughfares such as [Old] York, Easton, and Moreland Roads….
An important part of the overall comprehensive plan for Abington included this study of the Township’s transportation facilities and thoroughfare system. While not a comprehensive “traffic study or plan,” the report included herein serves as the initial step in arriving at an overall plan. This section will: 1) assess the adequacy of the current transportation system, and 2) determine the capability of the system to meet future needs. Information for this section was compiled from the 1964 and 1977 Comprehensive Plans for Abington Township.
More importantly, the Township retained the engineering/transportation planning firm of McMahon and Associates (of Willow Grove, Pennsylvania) to assist in this effort. A detailed report including maps, traffic counts and other supportive data, analysis of hazardous intersections, general discussions, traffic projections, recommended improvements, and summary is an addendum to the 1992 Comprehensive Plan. Please refer to the report for a more thorough discussion concerning transportation and thoroughfares.
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Previously, the Township’s 1964 and 1977 Comprehensive Plans set forth a functionally differentiated system of highways and roadways.
The major arterial system of Abington Township connects the major centers in the area, transports the highest traffic volumes, accommodates the longest trip desires and carries a high proportion of the total vehicle miles traveled in the area. Earlier Township plans called for rights-of-way in accordance with State Highway Standards of 80 to 100 feet for major arterials.
Often the recommended rights-of-way cannot be realized in every case; however, these standards are to be applied through the subdivision/land development regulations whenever new development is proposed along major arterials. Several of the major arterials in the Township are urgently in need of highway improvements as they currently handle traffic volumes in excess of what the roads were originally designed to handle. State Highway Department standard for traffic capacity of major arterials are approximately 37,100 vehicles per day for four-lane arterials at a Level of Service E. Yet, the study by McMahon demonstrated volumes in excess of 15,000 vehicles/day on some of these arterials including Huntingdon Pike at 23,200 ADT; Moreland Road (Rt. 63) at 18,000 ADT and Old York Road (Rt. 611) at 35,000 ADT.
Primary Streets
Rights-of-way of between 50 to 80 feet are recommended for primary streets to handle the State Standard capacities of 16,200 vehicles per day at a generalized level of Service E. Many of the Township’s primary streets only have rights-of-way of 33 feet, yet carry from over 8,000 vehicles per day to 14,650 per day. Of the 15 roadways studied by McMahon, these are a few of counts found: Susquehanna Road at 12,900 to 14,650; Jenkintown Road at 14,650 and The Fairway at 11,800. Intersections
The transportation study by McMahon and Associates stated that, while roadways throughout the Township “are important in providing carrying capacity to accommodate travel demands, it is generally at the intersections of the various roadways where conflict and congestion develops.” The Transportation Study performed by McMahon & Associates studied 13 intersections identified by Abington Township as being the most critical. They compared movement at the intersections with standards of the “Highway Capacity Manual” which rates the “Level of Service” for intersections and assigns them a grade ranging from A to F (A being the least delay and congestion, F being the very worst).
The study performed by McMahon and Associates showed 9 of the 13 intersections functioning at a ‘Level of Service F’ during one or more hours during peak travel including the intersections of: Susquehanna Road/York Road, Susquehanna Road/Highland Avenue, Susquehanna Road/Washington Lane, Susquehanna Road/Maple Avenue, Moreland Road/York Road, Moreland Road/Fitzwatertown Road, Fox Chase Road/Cedar Road, Edge Hill Road/Jenkintown Road and Edge Hill Road/Limekiln Pike.
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Moreover, the study showed trouble at other intersections (Jenkintown Road/Meetinghouse Road, Jenkintown Road/Washington Lane, Township Line Road/Meetinghouse Road, Township Line Road/Church Road, Easton Road/Woodland Road, and Fitzwatertown Road/North Hills/Woodland Road) which warrant future study. {Improvement was recommended for remaining intersections described in the report.}
30. The Plan found that intersections having more than 10 accidents over three years (1988-1990)
included the Washington Lane/Susquehanna Road “T-Intersection” at the Railroad-Bridge and
the Old York Road/Susquehanna intersection (which is both high-volume/high-accident).
31. The Plan included a “land-use” section that provided generic and specific suggestions; the former
reflected the overall approach to zoning that includes recognition that “transition zones” should be
created between residential neighborhoods and commercial districts [as residents have advised],
and the latter was consonant with input subsequently provided [and independently conjured]
inter alia by both the Petitioner and the MontCo Planning Commission [vide infra].
32. Opposition to Brandolini’s proposed curative amendment to Abington’s Baederwood ordinance was
nearly unanimous among the ~100+ people who attended two Public Hearings held in 2009;
indeed, that Brandolini is now unambiguously supporting the instant-ordinances is reflected in how
closely its density “limits” [~300 units] meshes with prior proposals promulgated by Brandolini.
33. Among the opponents was a presenter who had circulated a petition signed by 300 people and a
representative of the Rydal-Meadowbrook Civic Association; most queries and comments focused
on traffic-congestion, with replies suggesting procrastination due to an incomplete application.
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34. A preliminary version of the proposed Ordinances was posted on Abington’s website by September
29, 2010; Commissioner Kline wrote: “Although this Ordinance is only a ‘Draft’ and although the
process may not be presented, it is available for review on the Township’s Website.”
35. The finalized version of Ordinances 2000 & 2006 was discussed at two Planning Commission
meetings (November 17, 2010 and December 15, 2010); no other Township entity reviewed either
of them (noting, also, cancellation of a November 3, 2010 meeting) and, further, Commissioner
Peacock wrote that assessment of the FTD by the Code Committee (via a Public Hearing) was
“deleted at my request” (absent a contemporaneous explanation and/or a rescheduling effort).
36. Prior to the Planning Commission meetings, Petitioner generated a series of questions tethered to
each-and-every section of the proposed Ordinances; Commissioner Kline’s input prompted their
redrafting (from queries to simple-declarative-sentences), yielding a handout which was given to
the Planning Commission members on 12/15/2010 (and orally summarized during the meeting),
but which prompted no response (orally/in-writing) from any governmental entity or individual.
37. The Planning Commission overtly recognized time-pressures that had been imposed thereupon
[predicated on the incomplete, albeit repeatedly-cited assertion that inaction would render the
Township to be vulnerable to legal challenge by the end of January, 2011]; and “approved” the
proposed Ordinances[s] provisionally, without specifying either how or when the issue would be
revisited [and noting it never was reassessed]: “…[Having received] legal advice that not resolving
this through negotiation may result in an untenable and detrimental condition…[,] the proposed
Ordinances is approved…with any comments or conditions we may have agreed upon” [sic].
38. Thereafter, Commissioner Peacock claimed that the Planning Commission had “unanimously
approved the draft Fairway Transit District (FTD) ordinances that the Township is presenting as its
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cure to the validity challenge filed by Brandolini”; this assertion did not include qualifying language
and it reflected a pattern of public misrepresentations of information to which few were then privy.
39. On 12/16/2010, a Community Meeting—hosted by the Ward #1/#7 Commissioners—was held at
the Abington/Ogontz Campus of Penn State University; Commissioner Kline stated (after rhetorical
back-and-forth) that traffic/safety assessment is mandated by the Realen case due to the mandate
that Abington employ its police power to protect the health/safety of the citizenry [vide infra].
40. During the 2010 Holiday Season, civic leaders [Township-wide] did not provide the public a venue
for discussion of this issue during the fortnight before the scheduled 1/6/2011 vote; as a result,
Abingtonians were denied the opportunity to provide timely input regarding this initial statutory
manifestation of the two 2007 Plans, which was a template for other loco-regional communities
(as was depicted in both a grid-summary of key-concerns and testimony submitted by Petitioner).
41. The Montgomery County Planning Commission, following focused review of this project, issued a
letter (November 17, 2010) that cited numerous conditions which were not met and, indeed,
dovetailed with concerns herein; approval was not granted, pending resolution of these issues and,
thus, its action was falsely touted by advocates for this Ordinances as having constituted approval.
42. This letter was authored by Mr. Narcowich [MontCo Senior Community Planner], who remained
silent during meetings of the Abington Planning Commission and the Board of Commissioners;
his “Recommendation” had been: “The MontCo Planning Commission recommends approval of
the proposed zoning map and text amendments, provided the changes suggested are made.”
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43. Prominent and unambiguous among the recommendations [F.1.] was: “The Township should
consider requiring that the traffic study examine potential impacts on designated intersections”;
nevertheless, there is no evidence that any Township Official or Commissioner raised this concern
for discussion/analysis, despite the fact that it was repeatedly emphasized by multiple speakers
(including, in particular, this Petitioner) and merely “acknowledged” by myriad authority-figures.
44. Other consequential considerations therein were meritorious of due-diligence consideration (and
were often cited empirically by speakers) but also prompted no response (orally/in-writing) from
any governmental entity or individual prior to the Public Hearing: Lot-Size [one-acre threshold];
Density [net/gross land area]; Use Regulations [C-34]; Design [Fenestration, Renderings, Building-
Design, Open-Space]; Automobiles [Parking, Vehicular Circulation and Street-Width]; Transit-
Trees, Other-Amenities]; Regulations [Intent/Required]; and Grammar [Typographical-Errors].
45. On January 6, 2011, a Public Hearing was held regarding the proposed Ordinances “to afford an
opportunity to all concerned citizens to comment on an ordinances of the Township of Abington
amending the Abington Township Zoning Ordinances and Zoning Map pursuant to Article VI of the
Township Municipalities Planning Code”; the two Ordinances were approved (12-2), with one
excused-absence (Commissioner Ring) and two “anti” (Commissioners Zappone/Carlin).
46. No one noted the absence of a mandate that the Hearing-process be completed in one day, for
almost an entire month existed before the alleged 1/31/2011 deadline would arise; furthermore,
it was argued that delay would risk the rapid escalation of legal costs to the six-digit level (absent
recognition that such a commitment could be interrupted without prejudice on any occasion and
that the Township Solicitor was “salaried” at $105,000 annually, regardless of time-expended).
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47. Even arguendo were Brandolini to refuse to grant sufficient time for due diligence study of the
potentially-curative FTD-proposal, no suggestion was proffered that Abington could anticipate that
a reasonable judge would have granted a request by the Township to study a remedy that had first
been submitted for scrutiny only ten weeks earlier, recognizing that the judiciary consistently
encourages parties to settle/arbitrate matters before entering the Courts.
48. The Commissioner-Chair recognized (albeit in a different context, were Brandolini to sell the tracts
as opposed to the prospect that Brandolini would develop the tracts itself) that a property-
purchaser knowingly assumes per-force its zoning-status extant at the time of purchase
[“PRESIDENT DiJOSEPH: It would be what they’re purchasing. The way it’s zoned
when they purchase it.”]; this demonstrates that Brandolini cannot claim Abington renders it
unable to develop the parallelogram-tract (assuming a new Ordinances has not been adopted).
49. The land-planner/consultant, John H. Kennedy, provided an oral-summary of his analysis (which
was not critiqued assertively by the Commissioners and was not allowed to be critiqued at all by
the public) {with instant-commentary that could have been raised for cogent discussion}:
The R-1 portion, this eight acres, is a remnant that is left over from previous zoning changes that have taken place in the past and, in my opinion, it is no longer an appropriate location for the least dense district in the township. {This does not mean that it should be escalated to the commercial-level zoning, particularly recognizing the facts that half of the border is zoned-residential and that a transition-zone could be created.}
Looking at the surrounding zoning we see two possibilities for potential replacement zoning. One possibility would be to the north and to the west, we have a district called SNRD, which is Senior Neighborhood Residential. {This is an example of what could be adopted, consonant with the Rydal Waters designation, liberalizing potential usage.} In my opinion, after reviewing the standards for this district, it is not an appropriate or logical choice for replacement zoning for several reasons.
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{This opinion, it may be noted, did not include consideration of criteria related to safety/traffic/density, as is superficially elucidated infra.} To begin with, the SNRD District has a 25-acre minimum site area requirement. {This was created for this site and could be modified.}
In addition, the eight acres does not have any connectivity to the existing SNR District. In other words, there are no right-of-ways or vehicular access points that would connect this to the balance of the district. {There is no necessity for such linkage to occur with properties owned by others.}
And then, furthermore, the eight acres also lacks direct access to an arterial highway. And that is one of the stated purposes in Section 305.1, which is the SNR purpose statement. {The “current searchable PDF” available on-line [Version 6.0, Adopted 5/9/1996] does not include this designation, as is not surprising, noting it is 15-years ancient; thus, it can only be surmised that this “stated-purpose” must be perceived as controlling, rather than being subject to the granting of a variance by the Zoning Board and Board of Commissioners, particularly when it is recognized that arbitration-mechanisms exist and that Brandolini knew this designation prior to its decision to purchase the tract [http://www.e-codes.generalcode.com/codes/0569_A/Zoning.pdf#xml=http://www.e-codes.generalcode.com/searchresults.asp?cmd=pdfhits&index=0569_A&filename=zoning.pdf&fn=C:/siteinfo/ecodes/codebooks/0569_A/Zoning.pdf].} Now, of course, we do have direct access, roadway access, down to The Fairway, through land ownership patterns; however, The Fairway is a primer street and it is not an arterial highway. {Whether this constitutes “a distinction with a difference” would be arguable, for the access would be attained through the existing Baederwood Shopping Center tracts.}
Looking then to PB, to the south, as a possibility for replacement zoning, we do find that it does make some logical sense. The landowners’ other holdings are zoned PB, previously the landowner had requested a zoning change to PB, and therefore we thought it was worthwhile to examine in greater detail the impact of PB zoning on the entire tract….PB is one of the most liberal districts that I have ever seen….As many of you are aware, there is a band in here which is quite steep. However, you could make a road up there. You could build a road up there and in the business it’s what we would call an unloaded road, because there is nothing on either side of it. {He then segued into advising adoption of the FTD-approach, notwithstanding the existence of the excerpts supra, thereby failing to address such issues as public-input and traffic-congestion.}
are going to walk over here and catch a train and go to Philadelphia….So, from a traffic
standpoint, this actually would generate less traffic on the local roads than development
that were spread out through the entire site.”}.
55. The Commissioner-Chair introduced the public-comment section [“If you have questions they
will be noted and answered as we can.”] and reinforced this introduction [“I’m just trying to
get comments and then we’ll go back and try to answer those questions.”] by articulating a
plan whereby queries would be aggregated rather than addressed individually; yet, she never
requested clarifications requested by this Petitioner (and others) after the public-comment period.
56. The Chair arbitrarily imposed a five-minute cap on each public speaker [which she selectively
enforced] and discouraged potentially-redundant input [suppressing free-speech].
57. The Chair refused to re-show slides as requested by two citizens to illustrate their comments
(Ms. Lora Lehmann and Mr. Eric Gauche), impeding their ability to convey their views.
58. This Petitioner posed simple-queries [“If Mr. Jonas would please state affirmatively that the
Supreme Court, an Upper Merion case, is the one that he primarily relies upon?...I would
like to ask Mr. Kennedy if he knows the gradation, the height, between the two
properties. Namely, what is the level of Rydal Waters and the one down below….”];
reflecting the fate of the questions posed by all other speakers, these questions were not asked of
either consultant [legal or land-use] prior to the decision of the chair to call the question.
59. Commissioner Wachter’s praise for Legal-Consultant Jonas was so absolute that it prompted him
to interrupt his personal analysis [“I could not find any cases that would change that Supreme
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Court decision, and the reason I couldn’t find any because, frankly, I didn’t look. ”];
because he is the only practicing attorney serving as an Abington Commissioner, such inaction
served to diminish the capacity of the ultimate decision-makers to oversee consultant-input.
60. This Petitioner was interrupted after he had attempted to discuss due-process deficiencies inherent
in the approval process by referencing Commissioner Wachter’s confession [see ¶ 59, supra]:
MR. SKLAROFF: In short, I would like to suggest that you feel that you do not have this mandate that you have to act immediately; that even if they threatened 400-some odd units, they still have to deal with parking- related issues, and that this is a problem that affects the health and safety of people in the area and therefore you should do your due diligence, have multiple meetings just like they did in Upper Merion, and in the process do your job, as opposed to the way Mr. Wachter said; well, I didn’t really read this stuff but I believe and I adopt by reference what I was told by people I respect. That’s not your responsibility. Your responsibility is –
COMMISSIONER WACHTER: That’s certainly -- point of personal privilege?
MR. SKLAROFF: Yes?
COMMISSIONER WACHTER: I know you arrived late but that was nothing what I said.
MR. SKLAROFF: Well, you said you didn’t read the –
PRESIDENT DiJOSEPH: All right. Thank you. That’s fine.
MR. SKLAROFF: No, wait a minute. You said you did not read, you did not study –
PRESIDENT DiJOSEPH: Sir?
MR. SKLAROFF: -- and therefore you made a mistake.
PRESIDENT DiJOSEPH: You’re out of order.
MR. SKLAROFF: I understand.
PRESIDENT DiJOSEPH: All right. The next person who would like to speak?
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MR. KANE: Larry Kane, 1043 Pheasant.
61. The Petitioner was prospectively limited to 300 seconds (viewed as “ridiculous”), so he dispensed
with both his 73-page memo and his testimony, and focused on content and process:
This is a project that affects the entire township, as evidenced by discussion of the issue of the problem with one acre or less, and so therefore the false argument that this would only be affecting ward seven is punctured.
The next point that has to be punctured is this lack of discussion of traffic. As I extensively documented, there has never been a comprehensive review of traffic, despite the fact that both the Old York Road Corridor and the Abington Plan report explicitly states that deficiency continues and that currently, for example, something like 9 of the 13 intersections evaluated were F, which is the most congested already. And these are numbers that go way back even before the modern era.So, the priority in the primum non nocere, you’ve heard that line before, the first is causing no harm; you have police powers that you are obligated, as a township, to maintain, and that includes safety. And that’s also in the Supreme Court decision.
And so therefore not dealing with traffic, and therefore not dealing with the capacity for emergency vehicles to traverse the area, particularly the key intersection, is a major fault in the presentation of the data here.
And in particular that was affirmed after a little bit of scuffle at the Penn State town hall meeting when Mr. Kline admitted that indeed safety considerations were germane to the discussion. And so therefore, for these reasons, and others that you’ve had a chance to review, even though I have not had a chance to review a lot of the other data, because of various delays in the discovery process, there are major problems with credibility.
When I get a letter saying explicitly there has been no communication, no meetings, between or among the Commissioners or the Township personnel regarding these issues, and I know otherwise -- for example, I know that information that I gave to the local state rep made its way to two of the Commissioners, and again that’s in the memos, or in the handout you received, that means that there were meetings, communications occurring. And so therefore when I get a letter saying there haven’t been any, that’s a misrepresentation.
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And there are many, many other issues that are sprinkled through my report and my testimony which damage the credibility of the people involved here.
62. Mr. Larry Kane placed this filing into multiple (historical, legal, operational) contexts; among other
highly-critical comments regarding the proposed Ordinances, it was interrupted by applause:
I think this is a very sad day for Abington Township because a company is getting rewarded for an absolute distaste and repugnant behavior toward this community.
This Township has watched this shopping center in limbo for five or six years now. The property values have been devalued. Other vacant properties stand vacant on Old York Road. The town is one of the greatest places to live in America; we love the schools, we love the police, we love the diversity, but what we don’t like here is somebody coming in and degrading a shopping center. We don’t like the shoddy construction. And the Carpenters’ Union is right about that. There is dangerous construction that occurred, and I was right in the middle of it.
We don’t like the people who were assigned to this who conducted their construction in very unsafe ways, and I find it absolutely repugnant, as a citizen, that a company that cares nothing about this town is being rewarded in the end with a green light to go ahead.
And, Mr. Kennedy, I think your report is fascinating, it’s interesting, but I don’t think it really warrants our attention in one respect. We are a township that has [56,000] people?
We are a very proud township with a lot of moxie and a lot of courage, we’ve done things well, we’ve had pretty good leadership over the years, and I don’t think we should apologize or fail to go to court against anybody who treated us this way.
Brandolini has the same problem in Upper Dublin Township, I hope you’ve examined that, and the problem is existing in urban blight there. If this happened on the edge of Willow Grove Park, or on the edge of Cheltenham, or on the edge of…excuse me. I speak for a living. I’m having trouble tonight. -- if you found this on the edge of Jenkintown, or any other place, you would also find this repugnant and horrible.
This should not happen. And I know this ordinances -- I understand -- Steve and Ernie, I understand the purpose of the ordinances is to protect
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the township, I understand that, but in the process you are going to set a precedent that is unprecedented, and you will open other builders to allow themselves to hold this township hostage, which this builder has for the last four or five years.
63. Other citizens raised queries which were not addressed [even after they had been acknowledged];
Mr. Kane queried consultant-Kennedy as to whether he had worked for developers who had done
work in Abington and he asked whether any private meetings had been held with Brandolini.
64. Ms. Lora Lehmann rebutted assertions by consultant-Kennedy as to his zoning recommendation,
green-space, incentives, and the financing system (regarding transfer of property tracts).
65. Mr. Carson Adcock discussed the environment, green-space, property rights, flood control, the
school system, lower traffic and, overall, the suburban way-of-life; he then advocated for an
alternative zoning solution that would yield less residential density and he opposed any perception
that the legal situation was akin to “reverse spot-zoning,” adding this heartfelt conclusion:
MR. ADCOCK: Many are growing understandably frustrated, feeling that our representative is interested in doing the easy work of hearing our ideas, concerns and solutions, but not interested in actually doing the hard work of fighting for and implementing these ideas and solutions. I would just ask you tonight, a final word for the Commissioners; you know, did you run for commissioner to take the path of least resistance or to fight for and defend the Abington that we love? My goodness, Mr. Peacock obviously ran explicitly standing on the Rydal Waters’ property clear cut and described it as a failure of local government. Mr. Peacock, do you want to stand on the -- PRESIDENT DiJOSEPH: Thank you. Thank you, Mr. Adcock. MR. ADCOCK: -- the new clear cut piece of land? Of course not. PRESIDENT DiJOSEPH: Mr. Adcock, please.
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MR. ADCOCK: We want to fight -- fight with you, not against you.
PRESIDENT DiJOSEPH: Complete your thought. MR. ADCOCK: If I could just make one more sentence here? PRESIDENT DiJOSEPH: Well, you’ve gone way over your time. I think we got the -- MR. D. ADCOCK: You can have a minute of my time. I’ll be up next. PRESIDENT DiJOSEPH: We have I believe heard all of your salient points. You have repeated yourself more than once. MR. ADCOCK: Okay. Could I just have one sentence? Would that be fair? PRESIDENT DiJOSEPH: One sentence. MR. ADCOCK: I would just say to my fellow residents that, you know, we’ve been fighting this for several years and I would just make the comment that it’s been nice plugging for this with you. It looks like this will be our last stand here tonight and -- PRESIDENT DiJOSEPH: Do you want to face the Chair, please? MR. ADCOCK: You’ve been thoughtful, resilient, courageous and eccentric at times, no more than myself, and I’m proud and grateful to have you as my neighbors and friends. (Applause.)
66. The next speaker, Mr. Dee Adcock, noted his long-term experience and reinforced the potential for
compromise, invoking the precedent that had occurred with regard to the contiguous-plot:
Over the course of time you all, and those who preceded you, have undermined me, undermined my property, undermined the value of my home, and my property, by continuing concessions to builders and developers over the course of the [past] 20 plus years. I probably haven’t been as aggressive as I should have been. I probably haven’t sued as I probably could have or should have, either this Board or the builders myself. I have done one thing. The last time some area was developed, or going to be developed, I ended up buying the property myself so that we could maintain some green space.
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Now, I don’t think that I probably have the money at this moment to buy the rest of that property, as was suggested by someone here, but I do find it offensive that this Board of Commissioners will not stand up for the zoning that has been there and has been there. I mean, you’ve got R 3 up here, my house is right there, and it’s R 1. What do you do with me as R 1 in all of this commercial area? I don’t get it. I don’t understand it. In fact, you know, you, Mrs. DiJoseph, the President, said when a -- you know, when you buy a property you get the zoning that goes with it. What was the zoning that went with this when it was bought? I know we’re not answering questions but it’s rhetorical, I guess. It was what? R 1? That’s the zoning they bought. Keep it. That’s exactly what you said not more than ten minutes ago. So, fight for that. You know, I’ve been sold out over the course of time, and I don’t like it. I don’t appreciate it. I pay my taxes.
I want to know ultimately what is going to be done to take care of me, and perhaps the other residents that are left in this newly-developed commercial area. Are you going to decide, oh, Mr. Adcock, you won’t have to pay taxes because the Township has agreed to concede to every builder, every developer that comes down the street. I was here and I had my discussions regarding the Rydal Waters project and, you know, that failed. Because we needed to negotiate, not stand our ground, and that’s what occurred. You’ve got, quote, urban blight. Now it’s grown actually back into more green space again, which I guess will be turned back into who knows what. But, these are just some of my concerns and some of my thoughts of how I, Dee Adcock, have been sold by the river, or up the river, whatever it is, and done harm by you and your predecessors. I am asking you to take a stand. And certainly this much of the property does not is not commercial and it doesn’t border commercial. You’ve got commercial area here and here. That’s what’s commercial.
You’ve got the whole -- let’s see, up until -- you’ve got Susquehanna coming up here, and once you get past the corner property it’s not commercial. So, that’s the basis that I want you to consider.
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And I want you to consider if you owned a property in there that was R 1. How you would you feel about it? And would you want your Commissioners to stand up for you? Or would you want them to capitulate, because it’s the easy course of action? I would suggest you not take the path of least resistance and less risk and ultimately it is up to you all. But, I think I’ve said my piece and I think you’ve got significant decisions to make. I’ll be very upset if you continue to sell out the residents of the Township.
{The bottom of this page has intentionally been left blank.}67. Mr. Ethan Simon’s testimony reflected many forces-at-play that have been articulated herein,
including the “continual-learning” process, the steep-slope factor, and creeping-urbanization; again,
however, the Commissioner-Chair failed to request that anyone clarify any of the highly-specific
points he raised in these regards (with cogent explanations derived from personal experience):
A year ago, with a neighbor, I gathered 300 signatures of people, handwritten signatures, door to door, who were opposed to the change in zoning, primarily because of increased density that would result from it. I am concerned that the Commissioners are actively promoting a policy to increase urbanization in Abington Township.
And I say that for two reasons. The first reason is that changing the residential zoning to FTD would simply make it much easier for the developer to put in a development. Over the last year, really, there have been only two sources of expert opinion that have been sought, and it I think there may have been intermediate options that simply haven’t come to the forefront. And there could be many within the Township who have the expertise to provide that. I simply do not. Secondly, typically, transit oriented development is designed to promote high-density urban development around a train station with a radius of about a quarter to a half a mile. A typical walking distance. Successful examples are in Alexandria, Virginia, for example, the two metro stations with the development here, and here is the large 20-story building to the front, and they basically taper off as you go -- as you go down. So, transit-oriented development, by its nature, really does promote
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heavy urbanization. So, I’m concerned about the use of the term in our planning and in this particular situation. There are some flaws with a transit oriented development in this location. So, even if we wanted to have transit-oriented development, it would not result in a successful development that would thrive. We lack the required density of a collector support transit system, such as subways, trolleys, buses, shuttle buses, needed to feed a transit hub, we lack the grid streets favored in a transit oriented district area. It’s ironic that TODs are intended to reduce traffic congestion, and reduce environmental destruction, but I think in this case it’s my opinion that the opposite would happen.
The other point is I just think the geography does not work for transit oriented development. These are the two train stations that -- and in this case I’ve been a little conservative in that these are quarter -- for some reason I drew a quarter-mile radius, not a half mile, but you get the point. If you put this red construction paper over areas that are already residential or if you block up the whole bottom section of the tract, you no longer are left with the ideal circle needed for transit oriented development but you’re left with a very small piece of the pie. The concern I have here is that without proper space for an adequate transit-oriented development, what we’ll wind up with is something that bears no resemblance to what we expect we would find simply by reading what people write about the benefits of transit oriented development. So, I probably have little time left so I do want to make a few more points.
So, the first point, just to summarize, is that I’m concerned about the movement towards high density housing that this proposal seems to signal.
To me it’s putting up, in a sense, a neon billboard to other developers saying, please come to Abington, buy a car dealership lot along the train tracks, because the township is promoting development. I realize that the Ordinance is designed to limit that development, but at the same time, by limiting it, trying to limit it, I think we are doing the opposite thing. We are greasing the skid for further development and we’re going to encourage further density in a place where residents simply don’t want that density. That’s one of my key points.
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To close, the other question I have is have we calculated the cost to the Township by having increased residential density? The cost of schools, fire and so forth? That’s certainly mentioned. That density will come, if we follow the course that we’re on. So, the arguments for the FTD have vacillated between ones which have said this is really the best outcome for the township of a bad set of options to ones which say, no, this is the way we want to go because this is the right option for the township. If it’s the latter, I’m very concerned and ask each commissioner to look within and ask, do you want to be the ones to promote urbanization of the Township? I do not wish that to happen, I know at least 300 other residents do not wish that to happen, so even if you pass this legislation please be very cautious and very thoughtful as you move forward with this implementation and with the cascading effect that will follow. Because had the Rydal Waters property not been rezoned -- I believe Mr. Kennedy, in response to a question at the meeting in November, seemed to indicate -- I won’t say he did, because I’m not sure he did or not -- but, my interpretation of his response was that had the Rydal Waters property not been rezoned, we might not be having the discussion about the particular property now. So, I’m worried that we’re going to continue this cascading into the future. So, please be cautious and keep the residential character of Abington intact. Thank you.
(Applause.)
68. Ms. Susan Odhner, a long-time resident, speaking “from the heart” on behalf of her neighbors,
focused on green-space, the need to preserve a 60-foot setback from tall buildings, the desirability
of a theater instead of a garage, and urbanization/density; her questions were not addressed.
69. The next speaker, Mr. Walter Draving, tersely reflected the posture of the (applauding) residents:
I just would reiterate that we all want our rights maintained and that that maintenance of those rights is what we expect you to fight for.
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When you consider the cost of going up against this character Brandolini, that you should also consider the cost of yielding to him, which means building more schools, having more traffic and having more -- possibly, you know, more crime and more police work that has to be done. And also we’d like you to have a roll call vote so we can see which of the Commissioners actually vote for this, quote, ordinances.
So, thank you very much. (Applause.)
70. The next speaker, former-Congressman Jon David Fox, Esquire (13 th District, 1994-1998)
emphasized the absence of urgency, counseled for due-process considerations, warned of traffic,
and reminisced about the [not-so-distant] time when Baederwood was filled with flourishing stores;
again, the Commissioner-Chair acknowledged but failed to address these issues.
71. Mr. Gutche, as a lifelong Abingtonian, provided a unique perspective:
My fundamental question is, what are you going to say to the next developer that comes in where the old Wanamaker store was who wants to be zoned Fairway Transit District? They are next door to it and adjacent to this property. How do you keep them from demanding to be Fairway Transit District? How do you keep the automobile dealers across the way from selling to a property owner who will demand to be Fairway Transit District? How do you keep the office buildings at the corner of York Road from being -- demanding to be Fairway Transit District? This is something you all may have discussed already, but we would generally like to know [is] what is the total scope of the expansion of Fairway Transit District? Now, I will tell you that I’ve been away for a quite a long awhile, I’ve been living in the Washington, DC area, I’ve been in Fairfax, I’ve been Alexandria, and I have seen what happens when the subway comes in, I have seen what happens to the automobile dealerships which are removed and there are now 20-story office buildings there. So, you can anticipate in the long term, rather than just looking at this one property, you can anticipate that you are going to see a far larger
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displacement than you can imagine in the vicinity all along from Noble Station to Rydal Station along The Fairway. Tom Harbison was rather appalled at what transpired with that property that his parents had bought years ago, 18 acres for $21,000. Okay? But, over all the scope of it is how large a district are you all going to allow to be the Fairway Transit District? When all is said and done, ten years from now, 15 years from now, what’s it going to look like? Thank you. (Applause.)
72. The next questioner (Mr. Paul E. “Pete” Morse, Jr.) reiterated and, thus, re-emphasized questions
raised by others; the Commissioner-Chair requested redundancy be avoided, but she failed to
honor repeated articulations of comparable queries (as, perhaps, was anticipated by the public):
One of the questions is Mr. Kennedy said he had been working with developers for 30 years and I’m curious who those developers were and I would also like to know whether Brandolini, or any of the Brandolini’s associates, were part of them. And I would also like to know from Mr. Kennedy what government agencies, like Abington Township, or Jenkintown or what other development agencies Mr. Kennedy may have done work for. I would also like to know whether with this ordinance, if it does go through, and I strongly encourage it not to, I encourage each and every one of you to note no; if it does go through, would they be able to sell off the upper half? Assuming they do not develop it? Because it’s my understanding they could cut into the steep slope and they could put in a lot of apartments there and leave that area open. So, my question is could they, under this, be able to cut that off and sell it to someone else adjacent, for example? Another question, and it’s kind of been hinted at with some of the other people, and is this ordinance only for Baederwood? And the Baederwood Shopping Center? It’s my understanding that it is not. And while it’s Mr. Peacock’s and Mr. Kline’s areas, and they’re very concerned, I would ask each and every other Commissioner to take a very close look at areas that could be developed in your area and the residents would be equally upset if something like this was put forward.
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If you see buildings right on the street, I don’t think that’s a good development and certainly not what Abington grew up under. I would also like to point out, and one of the other speakers mentioned it, Mr. -- or, the Brandolini’s bought this shopping center knowing full well what the zoning was. Just because they haven’t been able to make a success of it should not be an Abington Township problem. And we do not need to respond to that. It’s their problem. Let them deal with it. We don’t need to solve their problem. Now, I haven’t gone through a lot of the ordinances, and that’s my fault, but I would like to point out some minor discrepancies, if I could, if I look at No. 9. And these are the bonus points. And that’s extremely important, because that gives the developer the opportunity to go and raise the level or the density and everything else. For example, it talks about off-site bus shelters and amenities. And I guess that means that we could have a lot of ads. And I know everybody’s complained as we go up and down Old York Road we see the ads and everybody says, oh, that’s not good. It doesn’t address that. It talks about public commuter parking quality, and you get -- it qualifies and you get a point for that, but I believe that most public parking people can park there and walk to wherever they want. There isn’t anybody protesting it. So, I could see them getting this one, a bonus point right away for this, because it’s so nebulous. I look at the preserving woodlands and it talks about mature trees. That’s not objective, that’s subjective. Mature tree. What’s mature to you may not be mature to me. I think that needs to be dealt with. Road connection right of way. It talks about allowing future connections between The Fairway and Old York Road. It doesn’t talk about how wide, it doesn’t talk anything about it, it just says provided space. That’s a concern. It talks about building materials. Decorative masonry. Well, again subjective. Not objective. It talks about wind turbines and geothermal power and things like that, and what it says is expected energy use. So, when I calculate that, as a developer, my expected energy use is, in all likelihood, going to be a lot less than what it is.
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I’ve been very active in the Drexel communities, and graduated from there quite a few years ago, as many of you know, and we’ve rehabilitated some old fraternity houses down there. And it’s really funny because, when I was there we didn’t have half the technology and, as a result, the fraternity houses had to be rewired, and rewired, and rewired. And I guess I want to point out that expected energy use initially is a lot, lot less than what it always ends up, in my opinion. And then it goes on, on the green roofs, and it talks about maintaining the green roofs for the life of the building. Well, that’s certainly a good objective, but what if it isn’t? What if it isn’t maintained? Who’s going to maintain it? I guess Abington Township and the taxpayers. Bottom line. I’ve talked to a lot of residents, I’ve been in Abington, I’ve been active in Abington, in the Township and in the School District. The community doesn’t want this, the community opposes it, the community has been to a lot of meetings and the community is tired of it. We would like you to hear us, we would like you to vote no, and we’re willing to spend the money to fight it. We are willing to spend the money to fight it, if Brandolini wants to. Thank you. (Applause.)
73. The final questioner (Mr. Tom Ferrant) provided sociological input that informed perspectives that
were contrary to those of Consultant-Kennedy, with particular regard to the cultural impact of this
project; again, this constituted a “from my heart” sincere set of experiential observations:
When all this kicked-off I was in Iraq, so I missed a lot of it, but coming back here, what I just was hearing was that the, you know, litigation-wise it was, you know, sort of not a defined, like, end. Like, you know, we’re going to win this or whatever. But I heard that, you know, we should all come up with a million dollars to buy the, you know, the forested area there, and if everybody is going to put a billion dollars up to, you know, buy this forested area and basically let them hold the community hostage and say, you know, we’re going to destroy this area and basically tank the community by building all these urban -- you know, this urban blight, then why wouldn’t people put the same money that they were going to use to buy the forest, actually, to fight it, you know, legally?
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So, I think that, you know, the community is -- you know, if they’re willing to do that they would be willing to, you know, fight it legally. So, I don’t think anybody here wants it, or anybody in the area really does, and for that to be some sort of a pedestrian utopia where everybody is going to go back and forth; no, it’s not.
Nobody here walks anywhere. Nobody is going to walk. I mean, nobody walks. Jenkintown and areas like that, you know? The only place you get people walking is Keswick, around here, but that’s -- you know, you’re not sitting on 611 and The Fairway. You know, people are going to dodging cars running across the street to get to Noble. It’s not going to turn out to be, this big utopian project. So, I mean, I think the people here would be willing -- much more willing to put up money to fight it; to say that, you know, we’re not going to pay for it and let people walk all over us. Or have a precedent of people walking all over us. And, you know, put up a fight and, you know, show them that we won’t be pushed around. So that’s all. Thank you.
74. After having heard a dozen unambiguously-”anti” comments, Commissioner Peacock recognized
the “passion” with which the citizenry had spoken and then condemned Brandolini for inter alia (a)
—having presented a wide-ranging, mind-boggling number of proposals over the years [“they
could build 700, then they said, well, we’ll just build 500, then they said they would build 180, then
they said they would build 400. There was never any clear sense in any of our minds what it is that
Brandolini really wanted to do”]; and (b)—having been a bad owner [“Brandolini ruined the
shopping center, and Brandolini took away the movie theater…and Murray’s Delicatessen”].
75. After having painstakingly acknowledging these concerns, Commissioner Peacock then advised
that they be “put aside” while “leading” the listener to a preordained conclusion (which he refused
to characterize as “capitulation”); , based upon conjecture superimposed upon supposition,
reinforced by fear, and seasoned by a climactic specter of a court-ordered “PB” designation;
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throughout, he mischaracterized history (supra, “we have gone through, many hearings regarding
the many, many different proposals that Brandolini brought before this Township over the last five
years”) and conveniently forgot to weigh how the concept of “transition zones” might be applied
(even claiming that a court-victory, maintaining the status-quo-ante would somehow be “Pyrrhic”).
76. Commissioner Wachter emphasized the need to assume “control” over the parallelogram (ignoring
its current status); Commissioner Kline asked three rhetorical questions (using the R3 designation,
the applicability of a traffic study, and the capacity for Brandolini to sell-off this one tract) and
proffered three observations (urbanization, ability to fight in the courtroom, and the need for
separate legislation); Commissioner Gillespie expressed support for the two consultants;
and Commissioner Myers requested recapitulation of the Township’s greenspace acquisitions.
77. Commissioner Lynott provided an extended exposition regarding his “bottom-line” logic, incorrectly
characterizing potential solutions articulated by the citizenry as “directly opposed” (to each other),
rather than simple, individual reflections of aggregate opposition to the proposed Ordinances
(a concept to which he seemed to have blinded himself prospectively); he restated false canards
without qualification, claiming the MontCo Planning Commission had “lent their endorsement to the
Ordinances” and the Abington Planning Commission had “approved this ordinances unanimously”]
and acknowledged (prior to dismissing the importance of) NIMBY-bias (“Not In My Back-Yard”)
among people living proximate to a particular project, despite their obvious “standing” in such
regard [“Perhaps if my home was adjacent to this property, or nearby, I might share those feelings
and have the same emotions”] without, also, acknowledging utility of the “transition-zone” concept.
78. Commissioner Lynott claimed, according to his notes, that the Ordinances had been composed by
the Abington Planning Commission [not by any Commissioner, Brandolini, or the land-consultant],
a view that had not been conveyed previously by any speaker and that had not been voiced during
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the two meetings of the Abington Planning Commission (whose members only asked questions);
he concluded that all involved people had a collective-wisdom that was praiseworthy, intended only
to advantage the citizenry (rather than to accrue, somehow to any individual’s benefit).
79. When Mr. Carson Adcock claimed “There’s collective wisdom out here, too,” Commissioner
Peacock replied by emphasizing his self-image of having invited public input, despite his not having
called any community meetings in 2010 prior to submission of the proposed Ordinances:
I have been directly involved in working with you, if you are in Ward 7, and even those of you are in Ward 1, I have been directly involved; I have communicated with you, I have listened to the things that you’ve had to say, and it was my responsibility to sort through all of that input, and when this ordinances was being put together. Given the parameters that I’ve already laid out for you, that we were working within, knowing that there was going to be development there one way or the other, what we did achieve, I believe this firmly, is the lowest possible density and the ability to control other elements that will happen on this property, including traffic, including design standards, and basically creating a development that, given the other alternatives, is far superior in comparison. So, your wisdom was part of this process, absolutely.
80. Commissioner Peacock then asked what would happen “if we decide to not vote on this tonight and
take more time to think it through”; the Solicitor replied (ignoring myriad possibilities, such simply
recessing the Public Hearing until another day in January) by citing the phantom-litigation:
At present we have until the 31st of this month in which to reach a decision. If a decision is not reached, that puts us directly into court. At that point it is a deemed “denial” and then we are in court and we are on the defensive and it will be completely out of the Commissioners’ hands as to what ultimately happens with these processes.
81. Noting that all public record discovery requests had to be honored within ten (10) business-days,
Petitioner was unable to complete this focused process prior to the Public Hearing; they started on
12/16/2010 and prompted a response-letter on 12/28/2010 (that failed to state that any—even
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those recognized as cognizable—would be honored), were refined in January and were ongoing as
of 2/2/2011), thereby denying him [despite expeditious efforts] timely review of key-documents.
82. In particular, one requested document was based on a 11/16/2009 letter from John H. Kennedy,
the land-use consultant which stated inter alia that “a written review of the zoning amendment
proposed by the applicant” would be provided; he has been paid $19,557.87 (as of 9/10/2010)
[and Mr. Jonas had been paid $13,210.80 as of 9/30/2010], but no report was in-file from either.
83. Although complete discovery pended at the time of the submission of the Amended Complaint,
noted were numerous staff-level memos that reveal considerable doubt regarding Brandolini’s
series of proposals, from the perspective of land-use and zoning statutes that currently exist;
their existence serves to reinforce the rush-to-judgment that occurred, inasmuch as these issues
were raised at neither the Planning Commission nor the Commissioner meetings.
Analysis of Narrative
84. Although Abington adopted two planning-oriented documents that were cited as a precursor to the
challenged Ordinances that created the FTD—the Study and the Plan—no effort was made to
rationalize omission of key-components of these documents with specifications in the Ordinances.
85. Although Petitioner and other citizens provided extensive, documented critique of the Ordinances
[both oral and in-writing] during the adoption-process (between 11/2010 - 1/2011), no effort was
made to address—let alone answer—cogent details of this basic public input [including, particularly
during the lone Public Hearing, the unanimity of thoughtful opposition to adoption thereof].
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86. Both the Study and the Plan noted that strong community opposition constituted a “constraint”
to new development (as might become manifest regarding emergence of this FTD-linked proposal)
that would have to be consciously overcome by “sensitive” creation of a “supportive climate.”
87. That the overlay-style Ordinances (portending radical change to the region) were adopted following
an admittedly-accelerated process was antithetical to this observation and recommendation.
88. Both the Study and the Plan advised further scrutiny of the impact of the FTD on current levels of
traffic congestion, as a manifestation of enhanced density, an action which has never transpired.
89. The due-process/due-diligence efforts contained in the Plan could not reasonably have become
manifest if specified committees/entities that were advised to engage in collaborative activities
[Administration, Code Enforcement, Community Development, Economic Development
Commission and Planning Commission] were not provided an opportunity to review (if not approve)
proposed Ordinances [such as the FTD-proposal] that would portend radical change to the region;
components of the Ordinances pertaining to the specific “charge” of each committee/entity were
consciously not provided for reasonable scrutiny that would yield measured critique.
90. The aforementioned committees/entities failed “to share information, vision, and policies in an effort
to maximize departmental resources of the Township in achieving the economic development
mission” as would have been manifest through review of the FTD-proposals; although such a
procedure was not mandated, the result was failure to invoke all available in-house expertise.
91. The Plan included a “land-use” section that provided generic and specific suggestions; the former
reflected the overall approach to zoning that includes recognition that “transition zones” should be
created between residential neighborhoods and commercial districts [as residents have advised],
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and the latter was consonant with input subsequently provided [and independently conjured]
inter alia by both the Petitioner and the MontCo Planning Commission [vide infra].
92. The Plan included a Transportation Plan that encouraged mass-transit and that recognized
inherent limits when implementing such plans; this suggested that available parking at regional RR-
stations should be increased before attracting hoards of all-day congestion to the regional roads.
93. The Plan included recognition that the Abington transportation system has had to struggle with
increasing traffic congestion and time delays, road hazards, and inadequate off-street parking;
this had been ascribable, in part, to the need to accommodate increased usage of major Township
thoroughfares including Old York Road; it advised that this transportation system be designed to
a. The Purpose of the Act [§ 105] – {The FTD’s impact threads through this recitation.}
To empower cities of the second class A, and third class, boroughs, incorporated towns, townships of the first and second classes including those within a county of the second class and counties of the second class through eighth classes, individually or jointly, to plan their development and to govern the same by zoning, subdivision and land development ordinances, planned residential development and other ordinances, by official maps, by the reservation of certain land for future public purpose and by the acquisition of such land; to promote the conservation of energy through the use of planning practices and to promote the effective utilization of renewable energy sources; providing for the establishment of planning commissions, planning departments, planning committees and zoning hearing boards, authorizing them to charge fees, make inspections and hold public hearings; providing for mediation; providing for transferable development rights; providing for appropriations, appeals to courts and penalties for violations; and repealing acts and parts of acts, adding definitions; providing for intergovernmental cooperative planning and implementation agreements; further providing for repeals; and making an editorial change, further providing for the purpose of the act; adding certain definitions; further providing for various matters relating to the comprehensive plan and for compliance by counties; providing for funding for municipal planning and for neighboring municipalities; further providing certain ordinances; adding provisions relating to projects of regional impact, providing for traditional neighborhood development; further providing for grant of power, for contents of subdivision and land development ordinances, for approval of plats and for recording of plats and deeds; and providing for municipal authorities and water companies and for transferable development rights, further providing for recording plats and deeds, for applicability of ordinances amendments and for validity of ordinances amendments and for validity of ordinances and substantive questions, further providing for planning commission, for zoning ordinances amendment, for procedure for landowner curative amendments, for certain findings, for hearings and for governing body’s functions, further providing for purpose of act; defining “no-impact home-based business” and further providing for ordinances provisions, for procedure for landowner curative amendments, for hearing and for governing body’s functions.
b. The Planning Commission [§ 209.1] – {Its Powers/Duties were not fulfilled.}
i. The planning agency shall at the request of the governing body have the power and shall be required to:
(1) Prepare the comprehensive plan for the development of the municipality as set forth in this act, and present it for the consideration of the governing body….
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ii. The planning agency shall at the request of the governing body have the power and shall be required to:
(1) Make recommendations to the governing body concerning the adoption or amendment of an official map.
(2) Prepare and present to the governing body of the municipality a zoning ordinance, and make recommendations to the governing body on proposed amendments to it as set forth in this act.
(3) Prepare, recommend and administer subdivision and land development and planned residential development regulations, as set forth in this act.
(4) Prepare and present to the governing body of the municipality a building code and a housing code and make recommendations concerning proposed amendments thereto.
(5) Do such other acts or make such studies as may be necessary to fulfill the duties and obligations imposed by this act.
(6) Prepare and present to the governing body of the municipality an environmental study.
(7) Submit to the governing body of a municipality a recommended capital improvements program….(7.1) Prepare and present to the governing body of the municipality a water survey, which shall consistent with the State Water Plan and any applicable water resources plan adopted by a river basin commission. The water survey shall be conducted in consul-tation with any public water supplier in the area to be surveyed.
(8) Promote public interest in, and understanding of, the comprehensive plan and planning.
(9) Make recommendations to governmental, civic and private agencies and individuals as to the effectiveness of the proposals of such agencies and individuals.
(10) Hold public hearings and meetings….(10.1) Present testimony before any board.(11) Require from other departments and agencies of the municipality, such available information as relates to the work of the planning agency.
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(12) In the performance of its functions, enter upon any land to make examinations and surveys with the consent of the owner.
(13) Prepare and present to the governing body of the municipality a study regarding the feasibility and practicability of using renewable energy sources in specific areas within the municipality.
(14) Review the zoning ordinances, subdivision and land development ordinances, official map, provisions for planned residential development, and such other ordinances and regulations governing the development of land no less frequently than it reviews the comprehensive plan.
c. Preparation of the Comprehensive Plan [§ 301] – {Its tenets were not honored.}
(a) The municipal, multi-municipal or county comprehensive plan, consisting of maps, charts and textual matter, shall include, but need not be limited to, the following related basic elements:
(1) A statement of objectives of the municipality concerning its future development, including, but not limited to, the location, character and timing of future development, that may also serve as a statement of community development objectives as provided in § 606.
(2) A plan for land use, which may include provisions for the amount, intensity, character and timing of land use proposed for residence, industry, business, agriculture, major traffic and transit facilities, utilities, community facilities, public grounds, parks and recreation, preservation of prime agricultural lands, flood plains and other areas of special hazards and other similar uses.
(2.1) A plan to meet the housing needs of present residents and of those individuals and families anticipated to reside in the municipality, which may include conservation of presently sound housing, rehabilitation of housing in declining neighbor-hoods and the accommodation of expected new housing in different dwelling types and at appropriate densities for households of all income levels.
(3) A plan for movement of people and goods, which may include expressways, highways, local street systems, parking facilities,
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pedestrian and bikeway systems, public transit routes, terminals, airfields, port facilities, railroad facilities and other similar facilities or uses.
(4) A plan for community facilities and utilities, which may include … flood plain management …. (4.1) A statement of the interrelationships among the various plan components, which may include an estimate of the environmental, energy conservation, fiscal, economic development and social conse-quences on the municipality. (4.2) A discussion of short-and long-range plan implementation strategies, which may include implications for capital improvements programming, new or updated development regulations, and identification of public funds potentially available.
(5) A statement indicating that the existing and proposed development of the municipality is compatible with the existing and proposed development and plans in contiguous portions of neighboring municipalities, or a statement indicating measures which have been taken to provide buffers or other transitional devices between disparate uses, and a statement indicating that the existing and proposed development of the municipality is generally consistent with the objectives and plans of the county comprehensive plan.
(6) A plan for the protection of natural and historic resources to the extent not preempted by federal or state law. This clause includes, but is not limited to, wetlands and aquifer recharge zones, woodlands, steep slopes, prime agricultural land, flood plains, unique natural areas and historic sites. The plan shall be consistent with and may not exceed those requirements imposed under the following [acts]….
(b) The comprehensive plan shall include a plan for the reliable supply of water, considering current and future water resources availability, uses and limitations, including provisions adequate to protect water supply sources. Any such plan shall be generally consistent with the State Water Plan and any applicable water resources plan adopted by a river basin commission….
(d) The municipal, multi-municipal or county comprehensive plan may identify those areas where growth and development will occur so that a full range of public infrastructure services, including sewer, water, highways, police and fire protection, public schools, parks, open space and other services can be adequately planned and provided as needed to accommodate growth….
[§ 301.2] Surveys by Planning Agency. In preparing the comprehensive plan, the planning agency shall make careful
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surveys, studies and analyses of housing, demographic, and economic characteristics and trends; amount, type and general location and interrelationships of different categories of land use; general location and extent of transportation and community facilities; natural features affecting development; natural, historic and cultural resources; and the prospects for future growth in the municipality….
d. Legal Status of Comprehensive Plan Within Abington [§ 303(a)] – {It is usually controlling.}
…(d) Municipal zoning, subdivision and land development regulations and capital improvement programs shall generally implement the municipal and multi-municipal comprehensive plan….
e. Design of Zoning Ordinances [§ 604] – {Transportation protects public health and safety.}
The provisions of zoning ordinances shall be designed:
(1) To promote, protect and facilitate any or all of the following: the public health, safety, morals, and the general welfare; coordinated and practical community development and proper density of population; emergency management preparedness and operations, airports, and national defense facilities, the provisions of adequate light and air, access to incident solar energy, police protection, vehicle parking and loading space, transportation, water, sewerage, schools, recreational facilities, public grounds, the provision of a safe, reliable and adequate water supply for domestic, commercial, agricultural or industrial use, and other public requirements; as well as preservation of the natural, scenic and historic values in the environment and preservation of forests, wetlands, aquifers and floodplains.
(2) To prevent one or more of the following: overcrowding of land, blight, danger and congestion in travel and transportation, loss of health, life or property from fire, flood, panic or other dangers….
(4) To provide for the use of land within the municipality for residential housing of various dwelling types encompassing all basic forms of housing, including single-family and two-family dwellings, and a reasonable range of multifamily dwellings in various arrangements, mobile homes and mobile home parks, provided, however, that no zoning ordinances shall be deemed invalid for the failure to provide for any other specific dwelling type.(5) To accommodate reasonable overall community growth, including population and employment growth, and opportunities
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for development of a variety of residential dwelling types and nonresidential uses.
f. Impact of Zoning Ordinances [§ 605] – {Key-concerns are not discretionary}.
Where zoning districts are created, all provisions shall be uniform for each class of uses or structures, within each district, except that additional classifications may be made within any district:
(1) For the purpose of making transitional provisions at and near the boundaries of districts. (1.1) For the purpose of regulating nonconforming uses and structures.
(2) For the regulation, restriction or prohibition of uses and structures at, along or near:
(i) major thoroughfares, their intersections and interchanges, transportation arteries and rail or transit terminals….
(iii) places of relatively steep slope or grade, or other areas of hazardous geological or topographic features….
(vii) flood plain areas, agricultural areas, sanitary landfills, and other places having a special character or use affecting and affected by their surroundings.
As among several classes of zoning districts, the provisions for permitted uses may be mutually exclusive, in whole or in part.
(3) For the purpose of encouraging innovation and the promotion of flexibility, economy and ingenuity in development, including subdivisions and land developments as defined in this act, and for the purpose of authorizing increases in the permissible density of population or intensity of a particular use based upon expressed standards and criteria set forth in the zoning ordinances.
(4) For the purpose of regulating transferable development rights on a voluntary basis.
g. Enactment of Zoning Ordinances Amendments [§ 609] – {Procedure was short-circuited.}
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(c) In the case of an amendment other than that prepared by the planning agency, the governing body shall submit each such amendment to the planning agency at least 30 days prior to the hearing on such proposed amendment to provide the planning agency an opportunity to submit recommendations.
(d) If, after any public hearing held upon an amendment, the proposed amendment is changed substantially, or is revised, to include land previously not affected by it, the governing body shall hold another public hearing, pursuant to public notice, before proceeding to vote on the amendment….
(f) The municipality may offer a mediation option as an aid in completing proceedings authorized by this section [per Article IX].
h. Procedure for Landowner Curative Amendments [§ 609.1] – {This is applicable.}
(a) A landowner who desires to challenge on substantive grounds the validity of a zoning ordinances or map or any provision thereof, which prohibits or restricts the use or development of land in which he has an interest may submit a curative amendment to the governing body with a written request that his challenge and proposed amendment be heard and decided as provided in § 916.1. The governing body shall commence a hearing thereon within 60 days of the request as provided in § 916.1. The curative amendment and challenge shall be referred to the planning agency or agencies as provided in § 609 and notice of the hearing thereon shall be given as provided in § 610 and in § 916.1.
(b) The hearing shall be conducted in accordance with § 908 and all references therein to the zoning hearing board shall, for purposes of this section be references to the governing body: provided, however, that the provisions of § 908 (1.2) and (9) shall not apply and the provisions of § 916.1 shall control. If a municipality does not accept a landowner’s curative amendment brought in accordance with this subsection and a court subsequently rules that the challenge has merit, the court’s decision shall not result in a declaration of invalidity for the entire zoning ordinances and map, but only for those provisions which specifically relate to the landowner’s curative amendment and challenge.
(c) The governing body of a municipality which has determined that a validity challenge has merit may accept a landowner’s curative amendment, with or without revision, or may adopt an alternative amendment which will cure the challenged defects. The governing body shall consider the curative amendments, plans and explanatory material submitted by the landowner and shall also consider:
(1) the impact of the proposal upon roads, sewer facilities, water supplies, schools and other public service facilities;(2) if the proposal is for a residential use, the impact of the proposal upon regional housing needs and the effectiveness of the
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proposal in providing housing units of a type actually available to and affordable by classes of persons otherwise unlawfully excluded by the challenged provisions of the ordinances or map;
(3) the suitability of the site for the intensity of use proposed by the site’s soils, slopes, woodlands, wetlands, flood plains, aquifers, natural resources and other natural features;
(4) the impact of the proposed use on the site’s soils, slopes, woodlands, wetlands, flood plains, natural resources and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development and any adverse environmental impacts; and
(5) the impact of the proposal on the preservation of agriculture and other land uses which are essential to public health & welfare.
i. Procedure for Municipal Curative Amendments [§ 609.2] – {This is could be invoked.}
If a municipality determines that its zoning ordinance or any portion thereof is substantially invalid, it shall take the following actions:
(1) A municipality shall declare by formal action, its zoning ordinance or portions thereof substantively invalid and propose to prepare a curative amendment to overcome such invalidity. Within 30 days following such declaration and proposal the governing body of the municipality shall:
(i) By resolution make specific findings setting forth the declared invalidity of the zoning ordinances which may include:
(A) reference to specific uses which are either not permitted or not permitted in sufficient quantity;
(B) reference to a class of use or uses which require revision; or
(C) reference to the entire ordinances which requires revisions.
(ii) Begin to prepare and consider a curative amendment to the zoning ordinances to correct the declared invalidity.
(2) Within 180 days from the date of the declaration and proposal, the municipality shall enact a curative amendment to validate, or
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reaffirm the validity of its zoning ordinances pursuant to the provisions required by § 609 in order to cure the declared invalidity of the zoning ordinances.
(3) Upon the initiation of the procedures, as set forth in clause (1), the governing body shall not be required to entertain or consider any landowner’s curative amendment filed under § 609.1 nor shall the zoning hearing board be required to give a report requested under § 909.1 or § 916.1 subsequent to the declaration and proposal based upon the grounds identical to or substantially similar to those specified in the resolution required by clause (1)(a). Upon completion of the procedures as set forth in clauses (1) and (2), no rights to a cure pursuant to the provisions of §§ 609.1 and 916.1 shall, from the date of the declaration and proposal, accrue to any landowner on the basis of the substantive invalidity of the unamended zoning ordinances for which there has been a curative amendment pursuant to this section….
j. Planned-Residential/Traditional-Neighborhood Development [Article VII] – {These inform}.
[§ 701] In order that the purposes of this act be furthered in an era of increasing urbanization and of growing demand for housing of all types and design; to insure that the provisions of Article VI which are concerned in part with the uniform treatment of dwelling type, bulk, density, intensity and open space within each zoning district, shall not be applied to the improvement of land by other than lot by lot development in a manner that would distort the objectives of that Article VI; to encourage innovations in residential and nonresidential development and renewal so that the growing demand for housing and other development may be met by greater variety in type, design and layout of dwellings and other buildings and structures and by the conservation and more efficient use of open space ancillary to said dwellings and uses; so that greater opportunities for better housing and recreation may extend to all citizens and residents of this Commonwealth; and in order to encourage a more efficient use of land and of public services and to reflect changes in the technology of land development so that economies secured may enure to the benefit of those who need homes and for other uses; and, in aid of these purposes, to provide a procedure which can relate the type, design and layout of residential and nonresidential development to the particular site and the particular demand for housing existing at the time of development in a manner consistent with the preservation of the property values within existing residential and nonresidential areas, and to insure that the increased flexibility of regulations over land development authorized herein is carried out under such administrative standards and procedures as shall encourage the disposition of proposals for land development without undue delay, the following powers are granted to all municipalities.Section 701-A. Purposes and Objectives.
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[§ 701-A] (a) This article grants powers to municipalities for the following purposes:
(1) to insure that the provisions of Article VI which are concerned in part with the uniform treatment of dwelling type, bulk, density, intensity and open space within each zoning district, shall not be applied to the improvement of land by other than lot by lot development in a manner that would distort the objectives of Article VI;
(2) to encourage innovations in residential and nonresidential development and renewal which makes use of a mixed use form of development so that the growing demand for housing and other development may be met by greater variety in type, design and layout of dwellings and other buildings and structures and by the conservation and more efficient use of open space ancillary to said dwellings and uses;
(3) to extend greater opportunities for better housing, recreation and access to goods, services and employment opportunities to all citizens and residents of this Commonwealth;
(4) to encourage a more efficient use of land and of public services to reflect changes in the technology of land development so that economies secured may benefit those who need homes and for other uses;
(5) to allow for the development of fully integrated, mixed-use pedestrian-oriented neighborhoods;
(6) to minimize traffic congestion, infrastructure costs and environmental degradation;
(7) to promote the implementation of the objectives of the municipal or multi-municipal comprehensive plan for guiding the location for growth;
(8) to provide a procedure, in aid of these purposes, which can relate the type, design and layout of residential and nonresidential development to the particular site and the particular demand for housing existing at the time of development in a manner consistent with the preservation of the property values within existing residential and nonresidential areas; and
(9) to insure that the increased flexibility of regulations over land development authorized herein is carried out under such
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administrative standards and procedure as shall encourage the disposition of proposals for land development without undue delay.
(b) The objectives of a traditional neighborhood development are:
(1) to establish a community which is pedestrian-oriented with a number of parks, a centrally located public commons, square, plaza, park or prominent intersection of two or more major streets, commercial enterprises and civic and other public buildings and facilities for social activity, recreation and community functions;
(2) to minimize traffic congestion and reduce the need for extensive road construction by reducing the number and length of automobile trips required to access everyday needs;
(3) to make public transit a viable alternative to the automobile by organizing appropriate building densities;
(4) to provide the elderly and the young with independence of movement by locating most daily activities within walking distance;
(5) to foster the ability of citizens to come to know each other and to watch over their mutual security by providing public spaces such as streets, parks and squares and mixed use which maximizes the proximity to neighbors at almost all times of the day;
(6) to foster a sense of place and community by providing a setting that encourages the natural intermingling of everyday uses and activities within a recognizable neighborhood;
(7) to integrate age and income groups and foster the bonds of an authentic community by providing a range of housing types, shops and workplaces; and
(8) to encourage community oriented initiatives and to support the balanced development of society by providing suitable civic and public buildings and facilities.
k. Zoning Hearing Board & Judicial Proceedings [§ 909.1(a) et seq.] – {These guide}.
The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1) Substantive challenges to the validity of any land use ordinances, except those brought before the governing body
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pursuant to §§ 609.1 and 916.1(a)(2). {Both of these exceptions relate to filings by landowners.}
(2) Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption which challenges shall be raised by an appeal taken within 30 days after the effective date of said ordinances. Where the ordinances appealed from is the initial zoning ordinances of the municipality and a zoning hearing board has not been previously established, the appeal raising procedural questions shall be taken directly to court.…
[§ 910.1] Applicability of Judicial Remedies. Nothing contained in this article shall be construed to deny the appellant the right to proceed directly to court where appropriate, pursuant to the Pennsylvania Rules of Civil Procedure No. 1091 (relating to action in mandamus).
Discussion of Legal Concerns
145. A 2003 Pennsylvania Supreme Court Opinion [Realen v. Upper Merion] states, in pertinent part:
“[T]he term ‘reverse spot zoning’ [describes] the circumstances where the unjustified difference in
treatment arises from the rezoning of lands surrounding the tract at-issue, and this term
appropriately underscores the distinction between cases like that here presented where an island
is created by the rezoning of other land from the more common situation where the challenged
legislation is that creating the island tract.”
146. By information and belief, based primarily by terse comments by Mr. Marc Jonas, Esq., it is averred
that this Realen Opinion has served as the basis for assertions by the Township’s representatives
that the “substantive validity challenge” would prevail because Brandolini could justifiably claim
“reverse spot-zoning” disadvantages full/justified property/land use/enjoyment, and then prevail;
ignored in this process have been other facets of this Opinion related to “health and safety.”
147. Brandolini has allegedly “threatened” to construct 738 units in compliance with current zoning law,
exemplified by the land-planning consultant, despite the absence of any submitted plan that
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accommodates necessary trade-offs between construction and parking-space requirements;
this gambit illustrates also the fact that Brandolini cannot claim that it cannot “enjoy” its property.
148. The Realen case reflected specific efforts by Upper Merion to maintain an island of land as
“agricultural” for a golf course, despite the fact that multiple characteristics thereof are inapposite to
the instant case, including: size (135-acres), confluence of major arteries, completely surrounded
by highways, proximity to largest-in-the-region mall, a total of 37 (14 + 23) public hearings before
empowered entities, and revision of applicable zoning ordinances after purchase by current owner.
149. The “precedent” [“Upper Merion has developed into one of the most important ‘activity centers’ of
the region”] contrasts dramatically with fundamental characteristics of the Brandolini property:
small size (8-acres), near one major artery, ~50% contiguous with land zoned as residential,
proximity to a strip-mall [which, under Brandolini’s ownership during the past half-decade, has lost
all but four (4) tenants…as of January 5, 2011], “0” (zero) public hearings before empowered
committees, and no revision of applicable zoning ordinances after purchase by current owner.
150. The Realen case notes parameters of any decision to uphold an existing zoning statute, criteria
that are met in the instant case; The American Way, as the Court describes it, is to treat the bulk of
events as “belonging to the normal give-and-take of a progressive and democratic society, for
regulation is to be treated as an ordinary part of background risk and opportunity, against which we
all take our chances in our roles as investors in property,” continuing: “…the kind of public injury
which will justify denial of an otherwise conforming plan must be specific, and substantial.”
151. The key tenet here is “sic utere tuo ut alienum non laedas” namely, “persons must use their
property so as not to harm that of others”; this is akin to the medical-precept [from the Hippocratic
Oath] that doctors recognize “Primum non nocere” namely, “the first priority is to do no harm.”
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152. Therefore, the instant case does not comport with “reverse spot-zoning” because of the starkly
different characteristics of the land-masses in-question (including, in particular, the fact that the
Abington property is a “peninsula” rather than an “island”) and, thus, the police powers of Abington
must be devoted to upholding a specific and substantive ordinance that honors (as a priority) the
health and safety of the citizenry (with particular regard to the circulation of emergency vehicles).
153. Furthermore, the exigencies of the Realen case comport with Abington’s previously-approved
(2007) land-planning documents (which, themselves, are consistent with statutory mandates as
memorialized in Abington law) and, thus, contrast with the Ordinances being subject to challenge.
Discussion of Procedural Objections
154. Plaintiff submitted extensive point-by-point critique of the proposed Ordinances, but no one has
deigned to clarify these concerns (privately, during Planning Commission or at Board meetings).
155. Because “the devil is in the details,” the very concern raised by proponents of the new Ordinances
—that the current one is flawed—is actually emblematic of their enhancement of legal ambiguity
through composition of [and approval of] Ordinances that have so many ambiguities/defects;
this ignores the overall concerns (that have been totally ignored in the Ordinances) related to
traffic/density (mandated to be maintained by the township’s “police power”) as long as the criterion
to be enforced is [vide supra] “specific and substantial”…as is emergency vehicle movement.
156. The Petitioner alleged that the proposed Ordinances harbors these characteristics [characteristics
of what was filed, rather than—at this juncture—detailing specific criteria-of-interest]: ceding-rights
to Brandolini, using terms that are clearly discretionary and phraseology that is not tethered to
authorized sources, adopting-by-reference (internally/externally) in a “circular” fashion; failing to
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cite authorities as sources for what appear to be arbitrary designations; and omitting
complete/accurate “cross-walks” that would allow clear identification of “before/after” specifics.
157. Illustrative of the absence of due-diligence by the Board was Commissioner Wachter’s confession
that he chose to adopt-by-reference the input of the attorney hired by Abington, deigning not even
to spend time to read cited cases (noting his recognized status as a practicing-attorney).
158. Illustrative of the gross misapplication of cited-law (recognizing that this rarely occurred) was
Commissioner Kline’s having quoted a text [Ryan on Pennsylvania Zoning (1977)] which contains a
key disclaimer that supports Abington’s existing ordinances (noting aforementioned public health
and safety concerns, as explored also in the Realen case, vide supra):
[A] subdivision application may not be denied on the grounds that the use is inappropriate, or that the plan shows “poor planning” and “over-development” or does not make adequate provisions for traffic flow, or for other similar or “policy” reasons unless those policies are referenced in the specific requirements of the ordinances itself [Scluffer v. Plymouth Township, 379 A.2d 1060 (Pa.Cmwlth. 1977)]. {Emphasis added.}
159. This precedent-setting overlay-rezoning would predictably affect all future [re]zoning requests, but
it was not submitted for approval and/or input by any vitally-interested Abington committee [e.g.,
Zoning, Economic/Community Development] per the Plan; instead, it received fast-track treatment,
particularly by the Planning Commission, as per quotations from the transcript of its meetings.
160. Abington officials and Commissioners subsequently failed to cite the “conditional” nature of the
acceptance of the Ordinances by the Abington and MontCo Planning Commissions, noting that any
retroactive effort to clarify any “comments/conditions” was mooted by the Board’s approval thereof.
161. Regarding this particular project, the Plan specifically advised that “A mixed-use development,
if done with care and sensitivity, could enable the developer and the Township to produce a
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product on a property in an area already populated with higher-density development,” but Abington
acted with lightning-speed rather than holding full hearings devoted to this specific proposal.
162. These actions contravened reassurances by Commissioners that “ample” time would be provided
to allow the public—at this pivotal moment in Abington’s history—to clarify key-concerns (regarding
this and all other zoning matters), inasmuch as these Ordinances would yield irreversible change
(with ripple-effects that cannot totally be anticipated, except to anticipate they would be huge).
163. Advocates of these Ordinances have avoided provision of written answers to fundamental zoning
and legal queries that could serve subsequently to reflect the legislative-intent to which future
developers (including Brandolini) would be compelled to abide; for this reason, in particular,
provision of the 6/20/2011 filing to Abington’s Solicitor and provision of this document to Brandolini
are anticipated to provoke provision of paragraph-by-paragraph replies to fundamental assertions.
164. Because sufficient due-diligence study of this document and requisite discovery—requested via the
“Right-to-Know” Statute—was not completed before the Ordinances were presented for official
approval on 1/6/2011, there was no compelling reason why any action was mandated at that time;
further discovery requests [now] would primarily be focused on “process” rather than “content.”
165. Two components of the Plan have been ignored: (1)—regarding traffic-congestion, it advised that
a 1992 report [that showed, per state-standards, that Susquehanna Road and The Fairway were
already accommodating near-capacity volumes] be updated; and (2)—regarding police-power,
it advised that a controlling, clearly-articulated public health and safety criterion be honored, to wit:
“A transportation system should be designed to meet the differing mobility needs of residents,
businesses, emergency services (police, fire, medical services), and commuters alike.”
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166. The existence of two offsetting concerns mandates debate regarding how Abington’s goals are
best to be achieved, involving the community stakeholders (prominently, its current residents);
this entails balancing benefits (maximizing the taxation-base by enhancing population and grant-
attraction) and costs (providing more government services, both municipal and educational)
by inter alia recalling the mandate (in the Plan) to retain transition-zones (as per public testimony).
167. In short, the focus herein is upon the need to direct due-diligence attention to four defined-sources
[The Study , the Plan , the input from the Abington Planning Commission, and the input from the
MontCo Planning Commission], plus submissions and testimony provided by the loyal citizenry
[including, in particular, the distillation of details concerns as had been provided by Petitioner].
168. Although Petitioner has made no secret of his distaste for the actions of Herder/Kline/Peacock,
appreciated throughout these legally-mandated proceedings must be maintenance of a clear
distinction between political forces [such as the re-election campaign being conducted by Kline]
and substantive issues that must be addressed by the AZB; Petitioner is quite-aware that the
Solicitor’s contract is scheduled for renewal [in 1/2012] and that Peacock [wisely, noting admittedly
“over the line” behavior, with specific regard to Petitioner] decided not to seek re-election.
Discussion of Overall Process
169. Review of the database prior to the provision of testimony at the 1/6/2011 Public Hearing yielded
composition of the following concise summary of the issues facing the Board of Commissioners:
The proposed Kline/Peacock/Brandolini Ordinances would urbanize Abington’s culture…forever. Fundamentally altering Abington’s geogra-phic heart presages township-wide destruction of suburban life as we know it. Yet, despite profound flaws that overtly favor developers, no public discourse regarding this revolutionary Ordinances—affecting every-thing from property-values to the tax-base—has been held or scheduled during the fortnight prior to the contemplated 1/6/2011 Commissioner-Vote. Mega-rezoning must not be rubber-stamped due to undue legal pressure that has bogus underpinnings; near-unanimous
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opposition by Abingtonians has been expressed at multiple hearings. The Old York Road Corridor Improvement Study and the Abington Comprehensive Plan would be violated were this proposed Ordinances approved. These Municipal Magicians, Kline/Peacock/Brandolini, manipulated the cumbersome and complex zoning process by awesome secrecy and a breathless pace of bureaucratic sleight-of-hand. They must be stopped by scrutiny based on statutorily-mandated due diligence…and sunshine.
170. Review of the entire database was deemed necessary; staff-members [noting constraints] kindly
helped provide a crash-course in this effort, particularly with regard to confirming proper process.
171. Necessary to probe was the paper-tiger deadline of 1/30/2011 that would immediately trigger
“hundreds of thousands of dollars of legal fees,” despite the fact that this date would constitute only
a deadline that Brandolini could choose to initiate pressure on Abington (were it to choose not to
allow full analysis of the new FTD-proposal); this chronology would, of course, be tolled were
Abington to invalidate the current Ordinances and initiate a “clean” process to accommodate all
reasonable input—notwithstanding the chronological “box” into which Abington placed itself while
delaying release of the proposed Ordinances until mid-November—failing to eschew secrecy.
172. It is recognized that data are available on the Abington website, such as the zoning laws that would
permit the generation of a cross-walk between the current and the proposed Ordinances.
173. Illustrative of how layers of obfuscation need to be traversed are quotations from Commissioners
(such as the claim that communication existed with Brandolini) which contradict the Herder-memo
(which averred no such event transpired, for memos related thereto would have been discoverable
under the Commonwealth’s Sunshine Law); in addition, when confronted with the fact that the
MontCo Planning Commission had not endorsed this Ordinances (pending modifications thereof),
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Commissioner Kline (on 1/25/2011) stated falsely that this had not been a conditional approval
(while confirming that no change had been made in the proposed Ordinances, based on this input).
174. What was not studied [analyzed/synthesized] prior to the 1/6/2011 Public Hearing were additional
data to be provided by the Township, such as prior incarnations of what had been submitted by
Brandolini; these would have informed conclusions regarding the defective processes that had
been promulgated by the Commissioners and, in particular, those representing Wards #1/#7
[noting, with dismay, the inexplicable transformation of their attitudes during the year between the
2009 (October/November) generic Hearings and the 2010 (November-January) specific Hearings].
175. As an example of a question raised by Petitioner and ignored by Ms. DiJoseph, the dramatic
grading between the lower-trapezoid and the upper-parallelogram (estimated to be as much as a
three-story building) was probed; the only prior discussion of this geologic concern had transpired
on 10/14/2009 (page 33, line 10), at which time the stated-plan was to pave-over the entire slope
with a vertical parking-deck and discussion of the fire-vehicle access-plan was to be deferred to
subsequent land-use proposal (averring many fire-prevention measures were contemplated).
176. Petitioner noted the absence of any recognition of this issue (even as subsequent review of all
graphic renditions of the plans confirmed the absence of any measurements of this parameter)
and, thus, inquiry was focused on ensuring proposed Ordinances comported with existing statute
[“Section 602: Steep Slope Conservation Overlay District”]; the lack of attention to this particular
criterion as a zoning-concept—despite its having been raised with specificity—was emblematic of
how the Commissioners had acted throughout as if they were “tone-deaf” to any amendment.
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177. The Brandolini 1/2009 filing was fraught with artful phrases that must be parsed to be appreciated;
for example, a compound description of the Plan must be “divided” so that the factual component
thereof can be differentiated from its editorialization [see 10/14/2009 Hearing, p. 20].
178. Another example of due-process violation is Mr. Herder’s having composed a plan on 1/29/2009
that was, under his auspices, later violated: “Following the hearing in this matter, the Board will be
required to make findings of fact, conclusions of law, and issue a decision. These findings and the
decision must be based upon the record of the hearing, which will be recorded by a stenographer. “
179. An example of how recognized mandates were met with a “shrug of the shoulder” was how the
multitude of complaints about the T-Intersection was met with either a stony-silence or a wistful
assertion that the problem (which, alas, was excluded from the limited traffic study) was insoluble.
180. No cross-walk was generated [yielding generation of a “grid”] by any Abington official, including
Mr. Kennedy (who never issued his contractually-promised report); although not mandated,
absence thereof impeded the capacity to understand the details of these overall ordinances.
181. Considerable energies—and expense—have been directed at excavating these many errors,
both regarding [generic] due-process and [specific] data-analysis; the wanton disregard for the
public-interest is so pervasive that reimbursement of the Petitioner’s filing-costs [plus “punitive”
damages] should be provided, if for no other reason than to reinforce the capacity/desire for future
citizen-oversight to be provided (indeed, encouraged) when blatant errors are promulgated—
for whatever reason(s)—as proposed Ordinances that are not in the public interest are adopted.
182. It is implicit that such fundamental transformations in Abington require extensive debates over
extended time-periods, but this clearly did not transpire [prompting one frustrated citizen to claim
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that multiple untruths had been left unchallenged during the 1/6/2011 Public Hearing]; indeed, it is
deemed advisable that consideration be given to mandating any future Ordinances of this type
be routinely referred to myriad committees [to acquire their pivotal input] before being presented
to the Board of Commissioners (and that all such nonbinding advice not be acquired hastily,
recognizing that ignoring such internal expertise would explicitly undermine inter alia the Plan).
Proposed Findings of Fact - Overview
183. The AZB has a critical overview duty [the pathway to which now exists] when such a massive
alteration in Abington’s complexion is contemplated, as manifest in Ordinances 2000/2006.
184. Each point in the Petitioner’s submissions (e.g., Testimony) must be confirmed to be on-point, and
each category of concerns distilled in the ancillary documents must be confirmed to be relevant to
the cogent review of the proposed Ordinances; excerpts therefrom may easily be co-adopted, as
deemed desirable depending upon the structural approach to be employed when the AZB files its
official report on this matter, but no major criterion can justifiably be ignored belatedly.
185. Although such intent did not exist at the initiation of this exploratory process, it is clear that this
probe regarding the proposed Ordinances exposed alleged-deficiencies in the review process
pursued by the Abington Commissioners (publicly characterized, charitably, as “corrupt”); thus,
perhaps without co-adopting a somewhat pejorative conclusion, it would be advised that the myriad
misrepresentations promulgated by the leading-Commissioners [Kline/Peacock] be refuted.
186. Noting that there was a strong public reaction against “Town Center”-type development recognized
in the 2007 “Old York Road Corridor” study and evinced during the 2009 Public Hearing, it was
incumbent to recognize the need to ensure fundamental queries raised by the public were BOTH
“noted” and ANSWERED during the Public Hearing process regarding Ordinances 2000/2006.
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187. As listed in this filing, many fundamental queries raised by the public were left “hanging”
[both “zoning”-oriented and legalistic] regarding the process of adopting Ordinances 2000/2006;
this deficiency marred the capacity to ensure the “public health/safety” criterion was weighed.
Proposed Findings of Fact – Specifics
188. The AZB must uphold the tenet that “sic utere tuo ut alienum non laedas” namely, that
“persons must use their property so as not to harm that of others”; accepting this responsibility
(for inter alia reaffirming that the Township retains its mandated “police power” to ensure the health
and welfare of the citizenry is maintained) includes the need to safeguard the ability to respond
189. The AZB was not afforded an opportunity to review Ordinances 2000/2006 prior to adoption by the
Board of Commissioners, despite the fact that they constitute a precedent-setting “overlay.”
190. The Ordinances carry definable, long-term import/implications throughout Abington (inclusive of
preserving the necessary/sufficient ability to exert its specific/substantial “police power”).
191. The Zoning Board must ensure economic development is facilitated, safe, legal and systematic;
the Study and the Plan both articulate the need to implement FTD-like efforts, but details contained
in both reports must be entertained when assessing individual Ordinances AND due-diligence
study must be directed at such details (not reflexly deferred to a subsequent land-use application).
192. No plan presented to the Board of Commissioners or to any governmental entity by any party
(Brandolini and/or consultant-Kennedy) accommodated the specific “Steep Slope” consideration
(reflected in Township statute) inherent in this tri-parcel; noting the need to recognize inter alia
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environmental concerns (and “transition zones”), this particular land-use parameter must be
weighed when deciding whether this particular FTD/TOD proposal is appropriate for this particular
“parallelogram” property, recognizing its current allegedly/admittedly-”land-locked” character.
193. A comprehensive Traffic Study must be performed before adoption of any FTD/TOD-like proposal
[as per the aforementioned “police power” considerations and the two regional planning reports]
that encompasses key-sites along surrounding streets (Old York Road, Susquehanna Road, and
Rydal Road)—rather than only sites along the Fairway (as per the proffered 2009 report)—and that
focuses on Susquehanna Road, from Old York Road to the “T”-Intersection (at the Rydal SEPTA
Commuter-Rail station) situated at its confluence with Washington Lane; furthermore, it must
recognize the fact that vehicles routinely are backed-up along Susquehanna Road on both sides of
all three intersections (Old York Road, Valley Road and Washington Lane) during non-”rush-hour”
workdays, predictably impeding potential movement of emergency vehicles through choke-points.
194. This Traffic Study must also take into account the anticipated increased-volume from the “density”
both of commerce (additional Baederwood stores, noting the current decimation of leasers) and
of residence (Rydal Park expansion, under-construction, abutting “trapezoid” double-parcel); also,
the “6%”-adjustment must itself be adjusted (noting, for example, the absence of the bus-loop).
195. All Township-level entities explicitly identified within its Comprehensive Plan as harboring essential
“interests” regarding proposed “overlay”-type Zoning Ordinances [Code Enforcement, Community
Development, & Economic Development Committees, along with the Planning Commission] must
be given the opportunity to provide specific input that is not artificially delimited by legal pressure.
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196. All county-level input (promoting MontCo Economic Development) must specifically be addressed;
certainly, specific conditions unambiguously appended to solicited approval-letters must be cited
whenever Township officials (and Commissioners) have been made aware of their existence.
197. The Board of Commissioners must comply with statute that mandates specification of “Findings of
Fact” and “Conclusions of Law”; also, all Township entities must try to seek answers to constituent-
queries raised during Public Hearings, rather than merely noting them and then ignoring them.
198. The “parallelogram”-parcel harbors myriad characteristics that render applying the legal phrase
“reverse spot-zoning” to be inapposite to what may be construed as a “peninsula” [not “island”];
in contrast to Realen, it has a 50-50 border of Business/Residential, it is not delineated (100%) by
highways, it is not zoned agricultural, it is much smaller (8 vs. 135 acres), it does not abut the
confluence of major tertiary-highways (including the Turnpike), it is not proximate to multiple
regional malls, and no potentially-perceived-to-be-adverse zoning ordinances has been adopted.
199. Indeed, relevant in the narrative-history of the aforementioned controversy in King of Prussia was
the extensive set of hearings conducted by the Township prior to its having rendered an action;
this contrasts with the paucity of scrutiny provided in Abington to the proposed Ordinances before
they were submitted to the Board of Commissioners for its hasty approval (alas, without having
entertained comprehensive public input, even noting that it could have conducted an additional
session prior to its self-imposed 1/30/2011 deadline, complying with the “threat of litigation” which,
per both oral/written output, related to the substantive validity challenge filed by Brandolini).
200. Fundamental questions related to Ordinances 2000/2006—as detailed herein—were raised by
members of the public but received insufficient responses (if, indeed, any was ever provided);
thus, “care and sensitivity” was not demonstrated when they were hastily presented/approved.
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201. Brandolini would not be deprived of the full use of its property were these Ordinances modified;
Brandolini knew the zoning-status of each component of the tri-parcel when it was purchased,
nothing has been altered in the interim, and numerous methods to accommodate direct roadway
access-needs to the inner-parallelogram (such as, perhaps, via Rydal Waters) are available
(plus, of course, from the outer-trapezoid, to the south, which Brandolini already owns/controls).
202. The appended “Grid” constitutes a reasonable summary of the comparison/contrast issues
regarding the overall specifics of the old/new Ordinances; indeed, as part of the study-process,
Township officials should have prepared a cross-walk of this type, criterion-for criterion.
203. As an example of definable-tasks that remain unaddressed, the Plan noted parking-lot congestion
at multiple RR-stations; alleviating this problem could be a win/win regardless of any other action.
204. Additional details regarding the import of the new Ordinances (per the comprehensive “Summary”
memo, pages 9-23) constitute reasonable queries presented to the Planning Commission and
to the Board of Commissioners, but which neither entity chose to address; indeed, neither entity
even invited Planner-Kennedy (or Brandolini) to discuss/clarify these multiple-concerns, most of
which carried Township-wide implications because of the “template” nature of these Ordinances.
205. Notwithstanding Brandolini’s offer to devote monies to alleviate non-descript traffic-congestion,
efforts to pursue the potential structural problems at the T-Intersection (initiated one year ago) were
reported to Township officials (and, specifically, to the Ward 1/7 Commissioners), but were never
pursued by anyone in Abington Officialdom; this remains problematic, for the Petitioner’s study
of the problem revealed that adjacent land remains for-sale (as per Long & Foster’s posted sign).
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Proposed Conclusions of Law
206. Brandolini’s 8-acre parallelogram-tract has not been victimized by “reverse spot-zoning.”
207. It is necessary to ensure the Township retains adequate Police Power to maintain inter alia the
health and welfare of Abingtonians; this includes ensuring emergency vehicles will not be unduly
impeded by traffic-congestion, and this may also include ensuring the capacity of fire engines
to access all buildings (rather than relying totally on retardants, sprinklers, foot-access, etc.).
208. A comprehensive traffic study is needed (focusing on Susquehanna Road and its multiple
intersections, from Old York Road to Susquehanna Road) before any consideration can be given
to approving Ordinances 2000/2006 (that would create any type of FTD-entity within Abington) or
any ordinances akin to these ordinances (that would enhance density/traffic along the Fairway).
209. The Zoning Board harbors a critical overview responsibility when a massive alteration in the
complexion of Abington Township is contemplated, as is manifest in Ordinances 2000/2006;
indeed, in the future, the Code should be altered to ensure that input from the Zoning Board should
be entertained before any such “overlay” proposal is presented to the Board of Commissioners.
210. Whenever adoption of an “overlay”-type Ordinances is being entertained, it is advised that the
“before/after” effects thereof be compiled in a concise format, to facilitate expeditious review; such
processes would be anticipated to minimize uncertainty/anxiety regarding any such proposal.
211. Due-diligence should be directed at rectifying all input from the MontCo Planning Commission;
indeed, input should be invited from the Abington Planning Commission, were it to deign to revisit
this transcendent issue [noting its overtly-ambiguous resolution, in response to external pressure].
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Discussion of Legal Status and Conclusions Herein
212. The “Proposed Findings of Fact [Overview and Specifics] and “Conclusions of Law” {¶¶ 183-211}
have been included herein to depict what is probably NOT primarily a set of “procedural” issues;
noted also is the Board’s failure to follow the Solicitor’s specific mandate in this matter on 1/6/2011
{“The Board will be required to make findings of fact, conclusions of law, and issue a decision….”]
and, thus, Abington will now be compelled to create a judiciable record via its Zoning Board.
213. The closest the Board of Commissioners got to specifying its legal rationale was its lack of
challenge to the assertion of the legal consultant regarding the fundamental geography extant:
So, the R-3, at least at first glance, suggests to me that it’s just another peninsula or island that is unjustifiably different from the surrounding properties and I would be concerned about that as a so-called cure.
214. It was noted that the Ordinances were adopted de novo because it was felt the Brandolini validity
challenge “had merit,” not because the currently-applicable zoning was “substantially invalid.”
215. It would appear, therefore, that recognition that the parallelogram-tract may be perceived as a
“peninsula” appropriately abandons its perception of being an “island” and, thus, further distances
this situation from that invoked in the Realen case, said to be a key/most-recent precedent.
216. Although there appeared to be no time-urgency regarding the development of this tri-parcel
[per Commissioner Peacock: “In a conversation after the FTD hearing, Brandolini indicated that
they have no immediate or foreseeable plans to re-develop the property. They have been directed
by their investment partner, INVESCO, to ‘get tenants into the site’….”], the legal filing had to be
submitted within 30 days because, otherwise, the opportunity to do so would have been ceded.
217. Yet, there appears to be time-urgency regarding the approval of these Ordinances because
Abington approved a Noble Transit-Oriented District on June 12, 2011; to whatever degree it may
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be based on the instant overlay Ordinances, the status of the former may be affected if the status
of the latter is subsequently modified (either by the AZB or via the Judicial System).
218. This filing contains allegations related both to substantive invalidity [citing Realen v. Upper Merion]
and procedural defects in the method of adoption [including inter alia the absence of substantive
due process, the inclusion of gross misrepresentations of material facts to the public by both
commissioners and consultants, the inability of the public to have fundamental queries answered
(due to alleged time-frame pressures which could not be validated after due-diligence research),
and the inability of the public to present cogent safety-related concerns as key-considerations].
219. This filing contains specific facts upon which a finding of substantive invalidity could be based ,
noting both the “smoking-gun” letter from the MontCo Planning Commission (which had been
misrepresented as having conveyed approval, but with which there was absolutely no compliance)
and the absence of attention to the health and safety of the citizenry (as manifest in the duty of
Abington’s “police power” to ensure the highways can accommodate emergency vehicles);
emphasized is the fact that, although it has not been alleged that the Township was required to
pass ordinances that comport with either of the 2007 master-plans [“Old York Road Corridor” and
“Abington Comprehensive”], it was falsely averred that such compliance had been overtly touted
[absent, for example, mandated traffic-studies and cogent/meaningful community/public input].
220. The Judicial System does not preclude awarding the Plaintiff whatever relief that a judge considers
justified and relevant to the issues involved in a given case (including, for example, court-costs).
221. Indeed, in this matter, it may be necessary for the AZB to ask Abington to adopt procedures that
would decrease the capacity of an “overlay ordinances” to bypass sufficient [indeed, “minimal”]
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due-process scrutiny by all Township entities that would reasonably be expected to be sufficiently
expert in providing cogent input on legislation carrying significant long-term import.
222. It is recognized that a land-use regulation would be needed prior to the provision of full-approval by
the Township for any expansion of Baederwood, but it is also recognized that the approval of these
index-ordinances would facilitate the subsequent approval of interventions that would otherwise be
recognized as detrimental to the safety/health of Abington’s residents; in contravention of the two
2007 planning-documents, the absence of both meaningful public study/input and a true traffic
study could again be invoked as insufficiently controlling in a future decision-making process.
223. Plaintiff has a direct, substantial and immediate interest in the fate of these ordinances (for reasons
aforementioned, primarily health/safety-related) and Plaintiff’s Township-level filing has now been
accepted (as per judicial mandate) without the necessity for the filing of a $1500 application fee.
224. It is also recognized that Pennsylvania’s Unified Judicial System allows for the transfer of cases
if/when it is deemed appropriate for the use of such resources with maximal efficiency and fairness;
that this, indeed, is what transpired provides an opportunity that Plaintiff will not squander.
225. Pivotal, here, is the mandate—issued at the level of the Pennsylvania Supreme Court—that
Abington’s primary responsibility is to ensure it exerts its police-power to maintain the health/safety
of its citizenry, honoring inter alia unambiguous input from the MontCo Planning Commission .
Specific Procedural Violations – Analytic Approach
226. The key-components of a Petition that have necessarily been included herein (Parties, Standing,
Jurisdiction, Relief Sought) have been supplemented by a structured presentation of the Narrative
(at each stage of the proceedings) and the Procedural Violations that are derivative thereof.
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227. This Common-Pleas Petition was cross-filed with the AZB to convey a clear appreciation of the
procedural concerns that have arisen during the past year; in this fashion, the AZB will be better
able to focus on the substantive concerns within the record (which heretofore has been absent).
228. Contrariwise, the substantive concerns which preceded the procedural concerns have been stated;
in this fashion, the Court will be better able to focus on the procedural issues that had arisen.
229. The “Analysis of the Narrative” is directly derivative of the Narrative (within the 6/202011 filing);
thus, whether the Statutory Rules [also clearly articulated] were properly applied can be discerned
simply by determining whether the “substrate” (candidly composed) comports with due-process.
230. The Discussions of Legal Concerns and of the Overall Process were provided so that all parties
can appreciate how Plaintiff has drawn conclusions from this database; the former relates directly
to what was induced (rather than “deduced”) from comments made during the Public Hearing, and
the latter relates directly to why Plaintiff filed this challenge to the approval of the Ordinances.
231. The Discussion of Legal Status and Conclusions Herein was provided to ensure all parties share
an understanding of what is sought seriatim at the Zoning Board and through the Judiciary;
indeed, the constraint that less than ten “sentences” be generated has been honored (generically).
232. By invoking the Discussion of Procedural Objections, it was possible to articulate (and reference)
the Specific Procedural Violations (by categorizing and detailing what transpired); the Relief that is
Sought is derivative from an appreciation of the painstaking-analysis that was directed at this task
{with particular reference to overt efforts to identify and to preserve all potential criteria}.
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233. The Judge has categorized himself as a stickler for Rules, and has envisioned that the Plaintiff
should have the capacity to articulate “in ten sentences as opposed to ten pages” (or more) “each
and every procedural deficiency complained of” in this revised-filing; thus, to ensure that nothing
has been missed (and that the concerns can be distilled), the specific sources of concern have
been categorized prior to detailing each sub-point that illustrates the aloofness and dismissiveness
that the Commissioners (and, particularly, the Chair thereof) have directed towards the Public.
234. A caveat contained in a filing from the Abington Solicitor must be scrutinized prospectively, namely,
that Abington may not be obligated to follow either the Study or the Plan; in this regard, however,
because both had been adopted by the Board in 2007, violations thereof are included because
rationale for selectively ignoring them has not been elucidated and because they allegedly served
as the key substrate for the creation of the FTD (with the attendant enhanced Abington density).
235. In general, violations of internal rules—particularly those that are articulated prior to a Hearing—
are viewed as particularly offensive; this observation has also prompted filing of separate litigation
for violation of freedom-of-speech rights [pending before Judge Kent Albright] and it is particularly
onerous when time-limits are selectively applied [particularly, all of the time, against Petitioner].
236. In general, although tempting, violations of Rules-of-Order are not included in the “rules” that are
subject to being violated; rather, the focus is on Pennsylvania Statute and Abington’s own Rules.
237. Thus, the “reasonableness” of the conduct of the Commissioner-Chair will be subject to scrutiny
throughout this discussion, recognizing that invoking “discretion” is often the key rationalization
when defending against accusations of prejudicial conduct; here, the absence of both due-process
and due-diligence is to be the focus-of-attention when noting the railroad-job that has ensued.
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238. The Pennsylvania Municipalities Planning Code provides guidance regarding the specific criteria
that had to be weighed when this Ordinances was subject to scrutiny both at the level of the
Planning Commission and by the Board of Commissioners; inasmuch as the MontCo Planning
Commission had generated specific suggestions, these Abington-based entities were obligated
either to adopt them or to state why they had been rejected, on behalf of the citizenry.
Specific Procedural Violations – Categorized and Detailed
239. Category #1 – The specific concerns contained on documents generated both by the MontCo
Planning Commission and Petitioner [which, themselves, reference other sources] were ignored.
Therefore, the dereliction-of-duty entailed rejecting potentially-cogent insights and suggestions
without having specified why adoption thereof would harm the interests of the public/taxpayers;
Abington officials were obligated to assess these data, but there is no evidence this occurred.
a. Petitioner generated a handout comprised of simple-declarative-sentences related to each-and-every section of the proposed Ordinances; it was given to the Planning Commission members on 12/15/2010 (and orally summarized during the meeting), but no response thereto (orally/in-writing) regarding these specifics was ever received, from the Planning Commission or from anyone else.
b. Petitioner generated additional documents [testimony, grids, talking-points] that have conveyed profound concerns via multiple formats; again, to-date, they have not been addressed by Abington officials and/or entities.
240. Category #2 – The specific recommendations generated by the MontCo Planning Commission
were not addressed adequately, processed reasonably or portrayed accurately; misrepresentation,
alone, constituted a “smoking-gun”-level of misconduct, denying the public any opportunity to study
related issues and to provide meaningful input regarding myriad implications thereof. Therefore,
the dereliction-of-duty entailed rejecting potentially-cogent insights and suggestions without having
specified why adoption thereof would harm (and not help) the interests of the public/taxpayers;
Abington officials were obligated to assess these data, but there is no evidence this occurred.
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a. Multiple Commissioners incorrectly asserted (during public meetings and privately) that this project had been approved by both Planning Commissions.
b. Land-planner Kennedy stated [without qualifiers] incorrectly that the two planning commissions had issued positive recommendations regarding the Ordinances.
c. Land-planner Kennedy failed to file a report—violating his self-written “contract,” despite his having received handsome remuneration—and, thus, it is not possible inter alia to discern why multiple due-process and due-diligence errors occurred.
241. Category #3 – The specific recommendations generated by the Abington Planning Commission
were not addressed adequately, processed reasonably or portrayed accurately; vagueness, alone,
constituted a “smoking-gun”-level of misconduct, denying the public any opportunity to study
related issues and to provide meaningful input regarding myriad implications thereof. Therefore,
the dereliction-of-duty entailed rejecting potentially-cogent insights and suggestions without having
specified why adoption thereof would harm (and not help) the interests of the public/taxpayers;
Abington officials were obligated to assess these data, but there is no evidence this occurred.
a. The Abington Planning Commission passed a resolution stating: “…[Having received] legal advice that not resolving this through negotiation may result in an untenable and detrimental condition…[,] the proposed Ordinance is approved …with any comments or conditions we may have agreed upon.”
b. The Abington Planning Commission resolution represented an incomplete assessment of the ordinances due to acquiescence to perceived time-pressures; it failed to specify either comments/conditions that had forestalled unambiguous concurrence or how/when the issue would be revisited [if ever].
c. The Abington Planning Commission resolution vaguely “adopted by reference” without specifying what constituted “any comments or conditions we may have agreed upon” and failed to revisit or clarify the issue during a subsequent meeting.
d. Multiple Commissioners asserted (during public meetings and privately) that this project had been approved by both Planning Commissions.
e. Land-planner Kennedy stated [without qualifiers] incorrectly that the two planning commissions had issued positive recommendations regarding the Ordinances.
f. The Abington Planning Commission failed to address the specific questions raised by Petitioner [both orally and via a handout].
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242. Category #4 – The specific questions raised by the citizenry at the Public Hearing [and one raised
by a Commissioner] were not posed to the land-planner Kennedy or addressed by any Abington
official. This inaction explicitly violated the opening statement of the Commissioner-Chair,
who failed to implement self-generated rules and failed to afford citizens the ability to testify fully.
a. The Commissioner Chair abrogated her stated-plan [“If you have questions they will be noted and answered as we can….I’m just trying to get comments and then we’ll go back and try to answer those questions.”] when she failed to attempt to acquire answers (let alone simple responses) to the citizens’ aggregated queries.
b. The Commissioner-Chair selectively enforced a five-minute time-limit upon members of the public (“or we will be here all night”), and she discouraged the citizenry to provide maximal input (“we’re going to try to also avoid redundancy”).
c. After comments had been delivered by the Commissioners, the citizenry was not permitted to respond thereto or to remind them that multiple questions had been raised but left unresolved (by the Commissioners) and unaddressed (by the land-use and legal consultants).
d. Commissioner Myers requested recapitulation of the Township’s greenspace acquisitions (but was not provided this information).
e. The Commissioner-Chair refused to re-show slides that had been requested by the citizenry as they tried to illustrate their comments (Ms. Lora Lehmann and Mr. Eric Gutche).
f. The Petitioner’s two questions (related to controlling legal precedent and basic steep-slope law) were never answered by Messrs. Jonas or Kennedy [or by anyone else, for that matter]; the Petitioner was not allowed to complete his testimony, despite his having provided both an extended handout citing what had been given to the Planning Commission) and a terse summary thereof.
g. Mr. Larry Kane stated that the Carpenters’ Union had concluded that the current construction at Baederwood was “dangerous” and that Brandolini had encountered difficulties in Upper Dublin, but neither concern (regarding functional safety and operational legality) prompted follow-up.
h. Mr. Kane posed two questions [“I think they are important questions that have to be answered”] regarding whether consultant-Kennedy had done work for any developers who had done work in Abington [a question which the Commissioner-Chair acknowledged when she said, “Okay. And I will note that question.”] and whether any private meetings had been held with Brandolini away from the Sunshine Laws [a question which the Commissioner-Chair acknowledged when
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she said, “All right.”]; neither question was answered subsequently. {This point also appears infra as 231(a).}
i. Mr. Carson Adcock recommended that a rezoning of “R 3” be considered, but this specific suggestion was not discussed subsequently (along with other issues he raised related principally to the environment, noting that his father’s land abuts the Rydal Waters development site). {This point also appears infra as 232(c).}
j. Mr. Dee Adcock recommended that no rezoning was necessary, recognizing that a prior decision to compromise had led to the clear-cut of Rydal Waters, which now is a blighted-site; again, the specific environmental concern he raised did not provoke a response from the Commissioners.
k. Ms. Lehmann raised questions (related to green-space, incentivizing and financing) which were not answered.
l. Mr. Ethan Simon presented the aforementioned petition, expressed concerns regarding the impact of an urbanized-Abington, challenged land-planner Kennedy’s assumptions regarding the impact of a transit-oriented district on traffic [noting the absence of a collector-support transit system and grid-streets], reinforced the sleep-slope concern, and inquired as to the potential impact of this proposal on the school system; again, responses were engendered to none of these issues.
m. Mr. Walter Draving reinforced queries related to the impact of increased density on the public services (schools, traffic, police), but these issues were not subsequently discussed.
n. Mr. Jon David Fox [former Congressman] reinforced the lack of time-urgency and advocated for planned-development rather than over-development; again, his assertions provoked no response.
o. Mr. Eric Gutche raised concerns related to incrementalism that could be reasonably projected were a precedent to be established that would endorse increased density; still again, his expressed-worriment did not provoke an official response.
p. Mr. Paul E. “Pete” Morse, Jr. reinforced queries (that, again, provoked no subsequent comment) regarding potential conflict-of-interest concerns (reminiscent of what had been said by Mr. Kane); the potential for the upper-tract to be sold-off, the potential for negative environmental impact [due to insufficient assessment of inter alia the steep-slope], and the impact of buildings abutting streets (reminiscent of what had been said by Ms. Lehmann); the precedent-setting nature of this overlay-ordinances, the potential to allow ads on bus-stop shelters; the quality of commuter public-parking; the unspecified location and character of redesigned roadways that are envisioned; the character of building materials (“decorative masonry”); energy use (including the need to specify the party who would be responsible for maintaining green-roofs); and the projected impact of increased density on the school system (noting that he had served as President of the School Board).
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q. Mr. Tom Ferrant queried if any assessment of the projection that this project would significantly enhance pedestrian traffic had been performed; no response was subsequently forthcoming.
243. Category 5 – The specific concerns regarding traffic congestion and vehicular density were merely
acknowledged [particularly by the Abington Planning Commission], despite the fact that they were
specifically cited in both the Study and Plan (plus in other PennDOT documents accrued during
multiple decades) and that this health/safety concern knowingly constitutes an operational priority.
Related issues (such as parking at other nearby SEPTA-stations and vehicular bottlenecks along
Susquehanna Road, the Fairway, and Old York Road) were not addressed, despite their having
been cited in recommendations both of these 2007 documents as having an impact on the area
around Baederwood and, thus, having the potential to influence the overarching zoning decision.
Because the movement of emergency vehicles is both vital and specific [as cited in both state-law
and township-statute] in an unambiguous fashion that is consistent with a controlling decision
issued by the Pennsylvania Supreme Court [ Realen v. Upper Moreland ], ignoring the necessity to
alleviate documented [per PennDOT] maximal congestion BEFORE unavoidably exacerbating it
constitutes a foremost dereliction-of-duty by Abington Commissioners and governmental entities.
a. The Plan included an analysis of vehicular data—citing reports dating back to 1964—that were recognized as incomplete; it was advised that, although information from McMahan was invoked as an initial step, the entire database should be updated to yield a comprehensive traffic study or plan to: 1) assess the adequacy of the current transportation system, and 2) determine the capability of the system to meet future needs.
b. The Plan included recognition that the Abington transportation system has had to struggle with increasing traffic congestion and time delays, road hazards, and inadequate off-street parking; this has been ascribable, in part, to the need to accommodate increased usage of major Township thoroughfares including Old York Road.
c. The Plan included the mandate that the Abington transportation system be designed to meet differing mobility needs inclusive of emergency (police, fire, medical) services.
d. The Plan noted that the intersections of Susquehanna Road with York Road and Washington Lane were among the 9 of 13 ‘Level of Service F’ intersections during
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one or more hours during peak travel, reflecting the tendency for conflict and congestion to develop preferentially at intersections.
e. The Plan noted that the intersections of Susquehanna Road with York Road and Washington Lane were among those 38 intersections that had had more than 10 accidents between 1988-1990.
f. The Plan included mandated application of specified standards through the subdivision/land development regulations (such as ensuring primary streets have rights-of-way of 50-80 feet) whenever new development is proposed along major arterials, recognizing that Abington has major arterials (including Old York Road, Susquehanna Road and the Fairway) that are urgently in need of highway improvements (as they currently handle traffic volumes in excess of what the roads were originally designed to handle).
g. Planner-Kennedy’s fundamental arguments regarding traffic-density were flawed; the first ignored safety concerns (when he asserted a traffic study was not yet required), and the second was undocumented and counterintuitive (when he asserted that transit-oriented development generates less traffic than the development site would generate because of the nearby SEPTA station).
h. Commissioner Wachter mistakenly claimed that consideration of the two ordinances did not entail weighing the impact of enhanced density on traffic [as a subset of transportation concerns].
i. During a 12/16/2010 Community Meeting at Penn State hosted by the Ward #1/#7 Commissioners, Commissioner Kline admitted that traffic/safety assessment is mandated by the Realen case.
244. Category 6 – No attention whatsoever was paid to the explicit provision of pivotal concerns by
Abington officials because of the alleged-threat of imminent litigation that would supposedly be filed
on 1/31/2011 and which was portrayed as having the potential to force Abington to pay exorbitant
litigation-fees promptly and over time; this misrepresentation both stifled the capacity to satisfy
rudimentary due-process responsibilities and suppressed citizen involvement in discussion/debate
of highly-relevant issues related to the Ordinances. Therefore, the dereliction-of-duty entailed
rejecting any effort to assess potentially-cogent insights and suggestions from the public due to
stated time-pressure (a phenomenon that also haunted the proceedings of the Abington Planning
Commission, as per specific reference thereto in the resolution that later emerged therefrom);
Abington officials were obligated to assess these data, but there is no evidence this occurred.
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a. The Study identified strong community opposition as a “constraint” to new development as being manifest as to this FTD-linked proposal had emerged; the Plan advised creation of a “supportive climate,” an approach that is antithetical to accelerating approval of proposed Ordinances that would portend radical change to the region.
b. The due-process/due-diligence efforts contained in the Plan could not reasonably have become manifest if specified committees/entities that were advised to engage in collaborative activities [Administration, Code Enforcement, Community Development, Economic Development Commission and Planning Commission] were not provided an opportunity to review (if not approve) proposed Ordinances [such as the FTD-proposal] that would portend radical change to the region and that pertained to the specific “charge” of each committee/entity.
c. The aforementioned committees/entities failed “to share information, vision, and policies in an effort to maximize departmental resources of the Township in achieving the economic development mission” as would have been manifest through review of the FTD-proposals.
d. The finalized version of Ordinances 2000 & 2006 received scant and hasty scrutiny during the six weeks between their being released for discussion at two meetings of the Planning Commission (November 17, 2010 and December 15, 2010) and their being approved by the Board (at its January 6, 2011 meeting); no other Township entity reviewed them and Commissioner Peacock inexplicably deleted assessment thereof by the Code Committee (via a Public Hearing).
e. During the 2010 Holiday Season, because civic leaders [Township-wide] did not provide the public a venue for discussion of this issue during the fortnight before the scheduled 1/6/2011 vote, Abingtonians were denied the opportunity to provide timely input regarding this initial statutory manifestation of the two 2007 Plans, which was a template for other communities [as well as the Noble Plan which was approved on 6/9/2011, funded by both grant-monies and local tax revenue].
f. It was incorrectly alleged by Abington officials to the public that litigation [pending in the courts of Montgomery County] would be activated on 1/31/2011, despite the absence thereof [in the dockets] and, thus, the absence of an immediate risk that delay would subject Abington to large legal fees.
g. It was not acknowledged by Abington officials that Brandolini would become empowered by passage of an ordinance (through creation of a precedent which it had been involved in shaping).
h. There was no mandate that the Hearing-process be completed in one day (on 1/6/2011), for an entire month existed before the alleged 1/31/2011 deadline; furthermore, the alleged risk that legal costs would immediately/inevitably rise to the six-digit level was undermined by the fact that the identical process adopted in 2009 (holding two Public Hearings) could have been mirrored in 2011.
i. When “Town Hall” Public Hearings were held regarding Baederwood development, the Brandolini plan was opposed by 10 of 13 speakers [focusing on traffic-
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congestion]; one opponent presented a petition signed by 300 people and another represented the Rydal-Meadowbrook Civic Association.
j. Even arguendo Brandolini would refuse to grant sufficient time for due diligence study of the potentially-curative FTD-proposal, a reasonable judge could have been asked to grant a request by the Township to study a remedy that had first been submitted for scrutiny only ten weeks earlier, for judges consistently encourage parties to settle/arbitrate matters before entering the Courts.
k. Commissioner Wachter invoked a non-sequitur when he misportrayed prior events as not having been “rushed through” because a lawsuit had been “going on” for two years; he failed to note that—having “watched the Planning Commission meetings” on cable-TV—the Planning Commission’s “qualified” resolution included a “whereas” section that had unambiguously noted that this entity had indeed felt “rushed” and that the necessity to scrutinize an extensive proposed Ordinances that had been officially released less than two months prior was mutually exclusive of whatever history may have existed regarding prior filing of a “curative amendment” less than two years prior.
l. Commissioner Wachter mischaracterized alleged threats facing the Township, for there was no pending litigation, any commitment to proceed through the judiciary would not necessarily yield excessive legal costs, and any potential adverse-outcome would have been limited to altering the zoning of this particular tract (rather than imposition of a major Zoning Code alteration).
m. Despite optimal efforts exerted within a brief time-frame, an initial round of document discovery (by this Petitioner and Ms. Lora Lehmann)—requested under the Right-to-Know Act (recognizing reasonable time-frames for its production)—was incomplete as of the date of the Public Hearing.
n. Mr. Herder raised the specter of inevitable litigation were inaction to transpire by month’s end (without disclosing the absence of any filing).
245. Category 7 – Abington officials have consistently failed to respond to reasonable queries as to the
potential for the land-use consultant [and, perhaps, others] to have harbored a conflict-of-interest.
This is a fundamental level of inquiry which is easily dispelled (both orally and in-writing) and it is
felt to be necessary when credibility issues arise regarding misrepresentations that are provided.
Therefore, the dereliction-of-duty entailed rejecting any effort to assess potential conflict-of-interest;
Abington officials were obligated to assess these data, but there is no evidence this occurred.
a. Land-planner Kennedy asserted he had helped Lansdale institute a bonus-point system, despite the fact that, as of when this Petition was filed on 3/31/2011, Lansdale had no bonus-point system.
b. Mr. Kane posed two questions [“I think they are important questions that have to be answered”] regarding whether consultant-Kennedy had done work for any developers who had done work in Abington [a question which the Commissioner-Chair acknowledged when she said, “Okay. And I will note that question.”] and whether any private meetings had been held with Brandolini away from the Sunshine Laws [a question which the Commissioner-Chair acknowledged when she said, “All right.”]; neither question was answered subsequently. {This point also appears supra as 228(h).}
246. Category 8 – Abington officials failed to posit advocating for a potential-compromise position that
was consistent with both its Plan and the need to promote a reasonable legal posture that would be
consistent with controlling Pennsylvania [statutory/common] law; adopting an ordinances that
would designate the upper-trapezoid as “R 3” would have yielded a less congested outcome,
particularly if roadway configuration [contemplated in the Study] were to be redesigned to allow for
access thereto via Old York Road [n.b., invoking the as-yet undeveloped “Rydal Waters” tract].
Therefore, the dereliction-of-duty entailed rejecting any effort to propose (or to effect) a
compromise solution; Abington officials were obligated to assess this approach, but there is no
evidence this occurred.
a. The Plan advised, regarding “land-use,” use of “transition zones” between housing and businesses, and Land-planner Kennedy accurately detailed the land-locked nature of the 8-acre parallelogram-tract.
b. The Commissioner-Chair recognized that property-purchasers knowingly assume its zoning-status extant at the time of purchase, undermining any claim that Brandolini would be unable to develop the parallelogram-tract (assuming failure to adopt any new overlay Ordinances).
c. Mr. Carson Adcock recommended that a rezoning of “R 3” be considered, but this specific suggestion was not discussed subsequently (along with other issues he raised related principally to the environment, noting that his father’s land abuts the Rydal Waters development site). {This point also appears supra as 228(i).}
d. Commissioner Lynott asserted falsely that the opponents of this project had failed to identify a reasonable alternative-approach.
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247. To summarize , these eight categories of considerations fall under two general rubrics; one focused
on due-process [per statute] and the other trained on the need to abide by self-generated mandate;
in both instances, definable “damages” from “causation” ensued, for any effort to weigh the import
of any one of these categories [or even a subset-point thereof] would have promptly and definitively
thwarted passage of the Ordinances, thereby protecting the citizens from gross-error that would
predictably decrement its health/safety [if nothing else] due to enhanced traffic-congestion.
Appended Documents
248. As aforementioned, an effort has been made to produce filings that maintain a stand-alone quality
to maximize the capacity of the community to learn baseline information…to whatever degree each
individual desires…regarding the accumulated record of what has transpired over the years.
249. In an effort to “save a tree,” some of the documents cited in earlier filings [such as that with the
Court of Common Pleas, which was ~1100 pages in length] have not been provided within this one;
these can provided upon-request [and have all been remitted to the Abington Solicitor].
250. On the other hand, it is necessary for the AZB to have a database encompassing all topics that
have been accrued from myriad sources, as was captured when testimony was truncated supra;
the oral commentary [from Petitioner and others] will presumably encompass necessary details.
251. APPENDIX ”A” includes, starting on page-six, a line-by-line {excerpted} analysis of the Ordinance.
252. APPENDIX “B” conveys categories of concerns in a “grid” format.
253. APPENDIX ”C” is the complete MontCo Planning Commission Report.
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254. APPENDIX “D” is the complete Memo to the Board of Commissioners. This not only includes the
Realen v. Upper Merion Opinion, but it also documents the fact that there was, indeed, direct
communication between the Township and Brandolini [n.b., the memo cancelling the November
Public Hearing], notwithstanding the fact that the existence of any such meeting was denied in a
memo sent to Petitioner by the Solicitor [in conjunction with a Right-to-Know request].
255. APPENDIX ”E” is the written Testimony submitted to the Board of Commissioners.
256. Provision of two sets of raw-data—Staff Memos [11/3/2005, 12/14/2005 & 12/16/2005, 1/7/2009]
and the Updated “T-Intersection” Traffic Study Database—has been deferred [because of the
inability to scan documents from Petitioner’s (ancient) fax-machine]; these documents are readily
available from Abington and have been included in prior filings to the Common Pleas Court.
Relief Sought – Post-Hearing
257. Paragraphs #1-#257 are invoked here, as aforementioned.
258. Ultimately, three categories of relief are requested, to be articulated herein [with rationale].
259. [1] It is respectfully requested that the AZB modify the two Ordinances [2000 & 2006]
approved on January 6, 2011 by the Abington Board of Commissioners.
260. If nothing else, the MontCo report can provide a foundation for initial corrections, after which time it
will be necessary to include [as the highest priority] explicit need to acquire a complete traffic study
and then to aver that Abington should abide by the results thereof [or justify not doing so].
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261. [2] It is respectfully requested that the AZB award Petitioner a monetary penalty of
$39,964.62 to compensate for the exhaustive effort [fiscal and resource] that led to preparation of
this filing; this is justified due to the pattern of egregious actions of the Township (n.b., due-process
errors) and its Commissioners (n.b., misrepresentations) promulgated during 2010-2011.
262. This penalty constitutes the sum of the monies paid to the two Abington consultants [disregarding
the annual stipend of $105,000 that is provided to Solicitor Robert Rex Herder, Jr.], inasmuch as
the land-use consultant, Mr. John H. Kennedy, received $25,537.12 [but never provided a report
that he had been pledged to provide and inter alia misrepresented the action of the MontCo
Planning Commission] and the legal consultant, Mr. Marc Jonas, Esquire, received $14,427.50.
[but failed to educate the Commissioners regarding the inappropriateness of relying upon Realen].
263. [3] It is respectfully requested that the AZB consider recommending adoption of procedural
safeguards to preclude recurrence of this abrogation of the recognized fundamental-interests of
Abingtonians [citizens, taxpayers and visiting public] regarding the public health and safety.
264. Recalling that unanimity was expressed by the public against the proposed Ordinances at the
1/6/2011 Public Hearing—and near-unanimity had been conveyed against this development plan
during prior (10/14/2009 & 11/18/2009) Public Hearings, it must be recognized that internal study of
any such proposal should ensure that sufficient attention is paid to identifying, addressing, and
proposing how to resolve universally-recognized density-concerns directly affect the Commonweal.
Relief Sought – Pre-Hearing
265. Paragraphs #1-#265 are invoked here, as aforementioned.
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266. Initially, Petitioner requests that, to expedite the process of completing AZB Public Hearings,
Brandolini [after it has been granted “Intervenor” status] be requested to provide a line-by-line
response to this 6/30/2011 filing [in a format that mirrors a response to a Civil Court filing].
267. The Motion filed by Brandolini should be perceived as mooted by this filing, inasmuch as any
grounds for challenging Petitioner’s standing has been precluded by the explicit Judicial Order and
this filing includes documentation specificity [all of which had previously been filed, not incidentally]
sufficient to permit the AZB a database upon which due-diligence scrutiny can be completed.
WHEREFORE, Petitioner respectfully requests that Brandolini provide a line-by-line response to this
6/30/2011 filing.
Respectfully Submitted:_______________
Robert B. Sklaroff, M.D.1219 Fairacres RoadRydal, Pennsylvania 19046-2911June 30, 2011--pro se—
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ROBERT B. SKLAROFF, M.D. * IN THE COURT OF COMMON PLEAS1219 Fairacres Road * OF MONTGOMERY COUNTY,Rydal, Pennsylvania 19046-2911 * PENNSYLVANIA
*Petitioner, *
*v. *
*TOWNSHIP OF ABINGTON * NO. 2011-025401176 Old York Road * CIVIL DIVISIONAbington, Pennsylvania 19001 *
To: AbingtoniansRe: Baederwood Shopping Center Proposal
This includes a critique of the proposed-Ordinance, which had been uploaded onto the website of the Rydal-Meadowbrook Civic Association [until it had been suddenly expunged]. This proposed Ordinance is riddled with omissions/commissions that harm the citizenry; while the RMCA has been AWOL, efforts have been made to import Philly-urbanization.
There is nothing good about this capitulation to Brandolini due to presumed, unspecified legal concerns; indeed, it seems that Brandolini wrote this document, after which it was channeled via Messrs. Kline/Peacock for rubber-stamping by the Township. When this was given to the Commissioners on 12/9/2010, they were formally requested:
TO UPLOAD THE LEGAL ANALYSIS OF MR. JONAS—ASAP—TO ALLOW ITS CITATIONS OF RELEVANT PRECEDENT TO BE SCRUTINIZED BY THE COMMUNITY.
TO SEEK A CONTINUANCE REGARDING THE LEGAL COMPONENT OF THIS ISSUE, RECOGNIZING THAT THERE IS INSUFFICIENT TIME TO SCRUTINIZE THIS PROPOSAL —FAR MORE PROFOUND THAN MERELY A ZONING-ISSUE—NOTING THE GIGANTIC REGIONAL IMPACT OF CREATING A PRECEDENT-SETTING “FAIRWAY TRANSIT ZONE.”
TO UPLOAD THE OVERALL ANALYSIS OF MR. KENNEDY—ASAP—TO ALLOW ITS TENETS TO BE COMPARED/ CONTRASTED WITH THE PROPOSED ORDINANCE.
Recognized, sadly, is the inability to trust the RMCA leadership; in lieu of calling an emergency membership meeting, it has structured a two-option poll (Accept/Modify the Ordinance) rather than allowing people to vote to maintain the status quo. Regarding the other issues—Hearings, Ordinance, Precedent, Traffic—extensive input was provided for public
consumption/scrutiny. The homepage contains extensive background information.
I have expressed anguish over the warp-speed plan of Kline/Peacock to achieve approval of this document within less than a month, absent a cogent approval process that reflects the capacity of Abington to complete its due-diligence responsibilities, on behalf of its citizenry.
Precedent
The cases detailed on the RMCA-website do not puncture the simple narrative that Brandolini cannot demand the back-property be rezoned to its desires; there is no need yet established that the current zoning is problematic. The Upper-Merion case is not applicable. Maintaining the status-quo zoning status accommodates the reasonable development of this property. Abington should follow its rules—seeking a continuance because this process can reasonably be shown to have JUST BEGUN—and complete the due-diligence mandated-study with community-input. Brandolini knew this zoning status when it [voluntarily] purchased Baederwood. The all-day traffic bottle-neck @ the RR-bridge T-Intersection is intuitive/determinative; predictably, it would be greatly exacerbated were hundreds of people (owning cars) to be added to those who are already living in this concentrated region.
These are the key-quotes from the RMCA-essay that require documentation:
1. an agreement acceptable to Brandolini avoids litigation (that is very likely to fail)
2. The PB zoning is poorly written...and it fails in several ways
3. The PB zoning and existing R-1 zoning cannot realistically be the basis for a defense
4. a zoning plan designed to limit Brandolini rights is unlikely to be accepted by courts...[inasmuch as] a zoning ordinance must be presumed constitutionally valid unless a challenging party shows that it is unreasonable, arbitrary, or not substantially related to the police power interest that the ordinance purports to serve
5. an ordinance will be found to be unreasonable and not substantially related to a police power purpose if it is shown to be unduly restrictive or exclusionary....Similarly, an ordinance will be deemed to be arbitrary where it is shown that it results in disparate treatment of similar landowners without a reasonable basis for such disparate treatment
6. details of Realen v. Upper Merion case differ dramatically from Baederwood [zoned agricultural abutting confluence of highways leading to multiple regional malls]
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7. at Baederwood, the capacity for traffic is much more limited and many residents argue that it is already at capacity at rush hour [AND throughout the day]
8. Brandolini argues that there would be little to no measurable impact on traffic. Abington Township has a responsibility to test this premise [particularly with regard to the ability of emergency vehicles to arrive and to function effectively], which does fall within its Police Power
9. “spot zoning” [rezoning a tract from commercial to residential designation to prevent a shopping center development for which the landowner had conditionally agreed to sell the property is problematic, but “reverse spot-zoning” [the allegation from Brandolini] is unprecedented [particularly because no such action has transpired].
10. a zoning hearing board’s performance of its fact-finding function deprived the applicant of a fundamentally fair proceeding and whether particular necessary findings of the board, although minimally supported by record evidence, capriciously and without reasonable explanation disregard overwhelming evidence having a contrary import.
Traffic
To alleviate the T-intersection bottleneck, I advised buying a for-sale land-crescent via Long & Foster [the sign is visible as one drives under the RR-bridge]. Tree/ground removal could precede embedding a retaining wall, perhaps encompassing 15’ of territory which would be paved-over, allowing cars traveling from Washington Lane to Susquehanna Road to drive around the intersection without being blocked by those turning to go under the RR-bridge. I met in late-January with Josh Shapiro, sought input from Penn-DOT and shared awareness thereof with Messrs. Peacock/Kline. [This 10/14/2009 memo provides a foundation for what has occurred during 2010; it was addressed/e-mailed to the Commissioners.]
I will be out-of-town at the time of the hearing, so I request that this input be placed into the record; I will try to arrange for it to be read publicly, as well.
1. This resident/taxpayer was one of the multitude of vocal opponents to this project, focusing on the traffic congestion it would undoubtedly cause.
2. The “Traffic Planning and Design, Inc.” Report [7/13/2009] purports to reassure the reader that traffic volumes would not be greatly affected by the plan to construct inter alia hundreds of residences and expanded businesses in a region that already routinely
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sports bottle-necked traffic on Susquehanna Avenue between the Fairway and the RR-bridge during weekdays.
3. This Report studied four sites: Route 611 and the Fairway/Harte Road; The Fairway and the four (4) intersecting driveways; The Fairway and Rydal Road; and Susquehanna Road and Rydal Road/Valley Road.
4. This Report advises a redesigned intersection at The Fairway and Rydal Road, but it fails to take into account the potential impact of construction of a new road from 611 at the Noble SEPTA RR-station that would intersect with Rydal Road (at a site unspecified in a new “Old York Road Corridor” Report).
5. Because the developers budgeted for the aforementioned highway improvements, they recognized the applicability of the Latin adage ascribed to Galen of Pergamum: “Primum Non Nocere” [The first priority is do no harm].
6. The counterintuitive conclusions in the TPD-Report are invalidated also (specifically) by the absence of any study of both the bottle-neck that routinely develops at the RR-bridge and the potential impact of planned reconstruction of a road leading to one of the studied-intersections.
7. Thus, this project should not be approved until the traffic-impact thereof can be studied cogently, after which time rectification thereof would need to be planned before any construction could be approved at Baederwood.
The following two e-mails highlight what transpired this past year regarding my efforts to effect a settlement of this bottleneck concern; I advised adopting a problem-solving mindset.This letter by Steve Kline was pejorative/problematic, reflecting the need for an attitudinal-readjustment during future interactions; I provide “informed consent” regarding prior interpersonal conflict that HE created, to ensure that all other information can be appreciated WITHOUT entertaining such tangential/distracting notions/concerns.
Do not continue to indulge this idea by Mr. Sklaroff. Yes this intersection has problems, problems that have existed for years and his idea in theory causes more than it solves.
Left turns across merging traffic on blind inclines, purchasing or taking property from no fewer than two property owners (you will need to take a portion of the property on Barrowdale & Washington), coordination with PennDOT who in the past has had no interest in working on this intersection and millions of dollars to implementing a plan that avoids solving the main issue - traveling west bound on Susquehanna Rd under bridge to The Fairway & Valley Road & OYR as well as traffic traveling East under the bridge to either Washington Ln or continuing on Susquehanna.
There have been many people who have ponder[ed] solutions to this intersections but none that have avoided the main issue and certainly none that considered the possibility of taking private property as Mr. Sklaroff has discussed with me in a past encounter.
We should leave Mr. Sklaroff to the thing he knows best, filing lawsuits against synagogues, municipalities/governmental entities, political parties and who knows who else.
Hope you had a good weekend and take care.
*
He alludes inter-alia to my “sunshine law” litigation, intended to ensure the Commissioners expose their thinking to public scrutiny, a copy of which is available upon request. Otherwise, as documented infra, his assertions are false/misleading, for there is no effort here to exert Eminent Domain efforts as he supported regarding the Roslyn Branch Library [which, I understand, is now mooted because state/county-$$$ is no longer available].
Anyway, as a result of this effort, I acquired a letter from Penn-DOT which reflected [perhaps because it resulted solely from a chat with Josh Shapiro prior to its preparation] lack of awareness of what had been envisioned; he thought I wanted a bridge constructed.
Your suggestion to improve the intersection at the above location was sent to my attention for a response by Representative Shapiro’s Office.
Please be advised that PENNDOT can only acquire right of way for approved transportation projects. At this time we are not aware of any proposed work or approved project at this site, either public or private, that would upgrade the signals or turning movements at this intersection. Because there is no approved project your proposal should be brought before Abington Township and the Montgomery County Planning Commission for their consideration to be included on this region’s Transportation Improvement Program (TIP).
We did make a cursory review of the site and your suggestions. The cost to make the improvements would be considerable. A complete replacement of the SEPTA bridge would be required. This bridge replacement would involve a lengthy and complicated process to deliver the project. More right of way would have to be required than the amount you suggested in your discussion and we believe we would have to contend with environmental and utility issues for a project at this location.
Due to the constrained federal and state funds available for highway and bridge projects, each proposed project must be cost effective and meet the transportation needs of the region. PENNDOT must focus on projects we can afford to construct and these projects must be prioritized based on regional needs.
We thank you for your interest in the transportation needs of your community. We encourage you to discuss your suggestions with Abington Township for consideration as a transportation project for the region.
Sincerely,
Les Toaso
*
Oral communication revealed--believe it or not--that the project would cost upwards of $1 if done by Penn-DOT...but 10% thereof if done privately [because of the lack of automatic approvals that would be required, based on automatic %-age enhancements]. Illustrating the aloofness of Kline/Peacock is their rejection of the do-able idea of rehabbing/widening this T-intersection. Therefore, in the spirit of cooperation—because I’m told the 2007 Traffic Study corroborates the “failure” of both this intersection
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and that @ the traffic-light a few yards distant—it is suggested that it is this type of CONCRETE resolution of what is transpiring that OTHERS should consider adopting.
Ordinance
I am neither a lawyer nor a city planner, so this cursory review of the capitulation-proposal [noting that it was composed secretly, in collaboration with Brandolini during closed-meetings held throughout 2010...and perhaps earlier?] is itself subject to refinement by those who have a better grasp of current zoning law. The goal is to provide an initial elucidation of what initially strikes the reader; prior study of this dense legalese yielded identification of glaring “black hole” concessions and, thus, a more detailed discussion had been deferred.
Now, however, in preparation for this week’s double-meetings, it is necessary to articulate specifics that poison the atmosphere, indeed, that strongly suggest that a major effort is being made to effect FUNDAMENTAL CHANGE in our Township [not dissimilar to the orientation of the Democrats on a national level] by importing an urban Philadelphia and injecting a “Town Center” within an already-congested region. I do not believe in extortion, so any suggestion that Brandolini could already invoke current zoning law to effect its goals FALLS FLAT; Kline/Peacock should have demanded that Brandolini release a plan that would comply with what already is extant...so that this could be scrutinized by the public.
With these thoughts in-mind [and knowing that this set of memos is being composed without the luxury of being able to cross-ruff with current zoning law], it is necessary to embark on an effort to help others structure the discussion...and to encourage these two sitting Commissioners to REPLY point-by-point to the concerns raised herein.
{It is CURIOUS the Penn State meeting was scheduled for one day AFTER the Planning Commission meeting, particularly anticipating that the latter half of December constitutes down-time for most people (vacations, celebrations, reunions, etc.). One would have thought Kline/Peacock—engaged in a self-styled “listening tour”—would have hosted a series of Town Hall discussions of all facets of this issue, already, during recent weeks.}
Kline/Peacock appear poised to seek rubber-stamp endorsement of this flawed/faulty/foul creation during the first week of the new year; this level of elitism...when one allows one’s self to experience the feeling of being snookered...is the underlying reason why the arrogance of the national-Democrats was soundly rejected by the voters, last month, in my opinion.
Finally, threaded throughout both the proposed Ordinance and superficial analysis thereof [performed in conjunction with having reviewed the Old York Road
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Corridor Master-Plan] is the concept that proximity of two RR-stations affords a unique opportunity to perceive this plan in the heart of the Township within a regional context; yet, Kline/Peacock have not called any community-meeting to entertain in-depth discussion of this concern. Therefore, this proposed Ordinance represents a grab-bag for Brandolini, impugning the integrity of its authors; one outcome that cannot be tolerated would be demonstrating any degree of deference to these two sell-outs. If they were sensitive/respectful representatives—truly concerned with the Commonweal., they would have conveyed a desire to entertain public-input by providing a parallel-memo that detailed the proposed CHANGES, so that a typical reader could rapidly appreciate the “before/after” effects thereof. They didn’t do it, so I did. This proposed Ordinance is portrayed as derivative of prior strategic-plans, so it is unclear whether any interim “modification” has transpired. This is why “the devil is in the details.”
The introductory phraseology of this proposed Ordinance did not allow for an appreciation of what was, specifically, to be achieved; a stand-alone elucidation-document is usually generated for Congress by staff to accomplish such information-sharing, often containing a cross-walk between existing and proposed specifications. In lieu of wading-into-the-weeds, certain issues illustrate the fundamentals of this nefarious gambit, and glaring is the lack of transparency that creates the very loop-holes that Kline/Peacock claim currently exist. When cases arise on the basis of litigation, a key-concept is to divine “legislative intent”; a key component thereof is an exclusion that otherwise might have been specifically cited.
“34”--Listing what is included is noted, but what is NOT included (for whatever reason) represents a glaring omission.
“35”--The creation of a car-share facility would undoubtedly cause a rapid-increase in auto-volume in the immediate-area; this one factor must be taken into account when a proper traffic-study is conducted.
“504.1”--Does the Township’s Comprehensive Plan call for each of the listed-purposes of the FTD? For example, stripping-away the “gimmes,” does it call for a Town Center that causes enhanced density and residential diversity?
“504.2”—These definitions have no durable reference, prompting the curious-mind to wonder if subtle methods of expanding the flexibility of these terms have been mainstreamed.
“504.3(A)”--Reference to “C-34” seems ambiguous, for the “community-use” citation [supra] does not comport with the “transit-oriented” appellation [in this section].
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“504.3(B)”--NOTHING should be allowed “by right.” That’s why a zoning code exists; everything should be subject to automatic scrutiny.
“504.3(C)”--NOTHING should be allowed “conditionally.” That’s a major source of dismay when the citizens are attempting to scrutinize “a pig in a poke.” A developer should be forced to provide AT LEAST ONE MODEL PLAN of how a proposal will “translate into action,” even if it’s not finalized; this would then be subject to reasonable analysis, so that one can visualize/conceptualize what is envisioned/proposed.
“504.3(D)”--NOTHING should be allowed “conditionally.” Noting that one of the components thereof is a “drive-in facility” [for banks and retail establishments, vide supra], the potential for enhanced traffic is undeniable...and thus should be subject to traffic-study projections generated initially...rather than allowing for a “bait and switch” to transpire.
“504.3(E)”--These exclusions are enlightening; if restaurants/take-outs are excluded, what sort of “drive-in facility” is included in (D)?
“504.4(A)”--Lots less than an acre in size are not “required” to encompass mixed-uses, but that allows for them to “choose” to have them; why legislate this level of permissiveness?
“504.4(B)”--This 80/20-split is precisely mandated; nothing can be 79/21 or 81/19. Also, this yields a five-story building as a dominant model, yielding a specific mandated-height that would “trump” any “generic” height-limitation elsewhere...to the so-called “reasonable man” [or woman] deigning to interpret the overall impact of this blueprint.
“504.5(A)”--If the minimum-size is an acre, then it’s unclear why the subsequent grid [(D)] accounts for building-heights tethered to a lot-size that is less than an acre.
“504.5(B)”--And what is to apply if an otherwise compliant lot doesn’t have at least 100’ of frontage? This is another built-in ambiguity that must be clarified, lest an unscrupulous developer try to capitalize [no pun intended] on a knowingly-created “black hole.”
“504.5(C)”--These appear “reasonable,” but there is no citation of a standard reference that would justify the initial description of this being a “district standard” [thereby applicable throughout the Township] setting-up comparable development elsewhere.
“504.5(D)”--It is unclear why 75% of the buildings would have to be at least 20’ in height.
“504.5(E)”--It is desirable to note how this “impervious paving” section comports with EPA-criteria (and how semi-pervious paving might be invoked to evade this requirement). This is why a “footprint” proposal should be provided prospectively,
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for only they know what they envision; even if it is only a model, to which final compliance wouldn’t be mandated, it should be provided to “share” intent with the unknowing, unsuspecting public. Any deviation therefrom occurring later would subsequently require explanation.
“504.5(F)”--This hearkens back to the “80/20” criterion [supra], although it uses the term “maximum”...thereby suggesting that some variation would constitute a “minimum” and, thus, conflict with the stringent aforementioned “80/20” mandate.
“504.5(G)”--Since buildings can be either attached or detached [see 504.3], it is unclear whether this “maximum” number of dwelling “units” on a given acre would be satisfied if only ONE “unit” densely dominated the entire site.
“504.6” provides for concepts that appear to be reasonable, but that require clarification.
For example “A” recalls the artist’s conception of a central “street” that would arise from the Fairway, but no drawing shown a year ago depicted the back-area (the focus of the “landlocked” zoning) and how—for example—a fire engine might be able to enter/function. {If memory serves, the counterargument raised @ the meeting (@ the Abington Middle School) was that the buildings would be fireproof, but such a wild assertion would require explanation [no paper products employed?] prior to being [predictably] refuted.}
“B” recalls the Illegal/Undocumented Alien/Immigrant dispute, for simply “registering” connotes approval that otherwise would be subject to due-diligence scrutiny.
[Recall the argument @ the heart of Kol Ami synagogue’s legal effort a decade ago, namely, seeking approval of “expansion of an interrupted nonconforming use,” citing RLUIPA; it was overturned by the Third Circuit Court of Appeals (an event that was predicted by few others beyond myself, prompting claims that I was a Jewish anti-Semite). Thus, this lingo about projected/subsequent development should NOT entail giving a developer a “pass” from properly imposed Township oversight.]
“C” is “cute”; self-referential “approval” creates an operational/legal loop. Compliance must require a clear statement of reasonable requirements, not open-ended affirmations of intent.
“D” specifies walking should be “as easy as possible”; this creates an obvious “out” for a developer, who might simply claim compliance cognitively with this mind-reading mandate.
“E” again uses a judgmental word [“improves”] that allows for placing the legal burden on the Township if the interpretive power of the developer is to be overturned.
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“F” is truly dumb, for key transit sites [e.g., a bus stop] should accommodate 10+ bikes.
“G” cannot be interpreted based on reference to a section [706(H)] that is not quoted with precision; this is not inconsequential, recalling the “reverse spot-zoning” legal argument. Here, if a given “residential” definition is not applied appropriately to any one “adjacent” site, will not a crack be created for challenges to be predicated on specifications of another [otherwise meeting an unstated definition, “similarly situated”] “adjacent” site?
“H” refers to curb-cuts [http://www.nyc.gov/html/dob/downloads/pdf/curbcuts.pdf] a term that should be specified in formalistic and lay lingo before study of derivative numbers.
“I” again uses “whenever possible”; this renders any potential to invoke this phraseology TOTALLY moot. It is this attitude that is struck by the Gestalt of this piece-of-work, and it should therefore not be surprising to its proponents that critics characterize it as milquetoast.
“J” again “adopts by reference” without mandating, just for example, that any deviation of a submitted report from a Township report be rectified. The implications of the absence of such a mandate are immediately apparent, notwithstanding any sidebar commitment to devote a few bucks to remedying the cosmesis of a non-vital intersection.
“K” allows for street-blockage by a van [for an unspecified time-span]; one would think that these wonderful city-planners would design a layout that--just as in Disneyworld, decades ago--the supply-mechanisms can be made invisible to the circulating-public.
“L” defines public-space within buildings, but it doesn’t mandate the size of public-space [to be developed as in Society Hill, for example] outside of buildings.
“M” finally references a document, albeit in a limited fashion. All these number create a MEGO [“My Eyes Glaze Over”] response, otherwise, because they do NOT reference a document; the contrast constitutes an in-your-face insult to the critical reader, for undoubtedly such citations are known to exist to the Developer.
“N” fails to address potential conflict between parallel-parking and bicycling-lanes, as others have addressed [http://www.humantransport.org/bicycledriving/library/door_zone.pdf]; in light of the purported “green-ness” of this project, one wonders why.
“O” constitutes another self-referential “loop” that appears extraneous and, thus, would prod the curious to express wonderment (that could easily segue into dismay if not satisfied informationally).
“P” is the “Mother of All Black-Holes,” for it would allow for COMPLETE ESCAPE from compliance with this entire set of requirements by a simple business
transaction that creates some sort of a legal sub-entity. It is particularly reprehensible that the Solicitor would be empowered to act unilaterally; one would think that all decision-making authority should remain in the realm of the Commissioners.
“Q” creates an “almost-loop,” for left undefined is what would be “applicable.” If the lawyers are so potent as to be attempting to compose a document that couldn’t reasonably be challenged, one would think that such contingency-planning would be mainstreamed.
“R” allows for “phasing” which would seem apt [particularly in a crazy-economy] so, again, it’s unclear why this section is needed...unless it’s being inserted to allow somehow for NON-compliance under “phased” circumstances, notwithstanding what appears to be the intent of this sentence.
***
This point-system has been “gamed” to allow for the ability of the Developer to max-out on the actual provisions in this section [75’ tall = 5-stories, probably]. Thus, the counter-”game” is to document only {8} points necessary in this regard; this is all too simple, unfortunately.
1. Who could reasonably dispute a claim that “transit amenities” have been provided? {1}
2. Who could reasonably dispute a claim that “street/landscape amenities” have been constructed? {1}
3. Noting the seemingly-desirable facets to this grab-bag, one can easily view this Arborist’s Dream as a big “tease” of what a Developer might deign to give-back; all would be disappointed by the minimally-costly items actually integrated within the project. {0}
4.-6. Who could reasonably dispute a claim that all that stuff about a linkage with Old York Road is has not been satisfied, for the putative site thereof is obviously apocryphal, and might reasonably be perceived as remaining so for many years. {1 + 2 + 3 = 6}
7. Who could reasonably dispute a claim that non-cinderblock has been predominantly used on facades? {2}
We’re already @ {10} points, allowing for somewhat facetious observations about the remaining items....
8. Does this mean we are approving construction of a windmill farm?
9.-10. Does this mean that the Developer would not otherwise WANT to provide structured-parking to accommodate both the residents and the public? {3 + 2 = 5}
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11. Right, redesigning the intersection of the Fairway with Rydal/Valley Road could be claimed as an improvement...with an impact on traffic-flow that would be de-minimus. {3}
12. “Hear Ye, Year Ye. Slap on a green-roof for a few bucks and earn Development Points worth mega-bucks!” {3}
13. It is my understanding that storm-water management has been remiss throughout the Township and, thus, this type of criterion should be converted into a mandate. {3}
THERE YOU HAVE IT, enough additional points to explode the previously-specified limitations on height, impervious cover, non-residential floor area, and residential units.
***
“504.8” defines building-standards and [vide supra] this can only be analyzed cogently by cross-ruffing with existing standards; why would any repeat-specification be needed?
“Section 4” allows for liberalization of signage for unspecified reasons.
“Section 5” allows for “accessory uses” for unspecified reasons.
“Section 6” specifies one parking-place per 250 sq-ft leased; this would appear to be insufficient, for one could imagine a small shop which would need to accommodate a group of customers (some who had arrived in autos) simultaneously.
“Section 7” provides a catchall that invalidates any potential application of prior law to this project; again, composing a cross-walk (even if labor-intensive in its generation) is vital.
“Section 8” allows for severability, a sly way to undermine the allegedly-cohesive rationale for this effort. If each component is intended to interlock with all other components, then nothing should be allowed to become operational if any definable defect exists.
If anything vital has been overlooked [or if a cognizable defense can be generated to what has been composed], further comment will be provided.
Hearings – [from me]
Ambushed!
That was the tenor of the anger animating the public’s attitude expressed during the Abington Township Planning Commission Hearing on November 17th.
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Why?
Because the proposed ordinance regarding the Baederwood Shopping Center was so transparently faulty, sporting a “bonus-system” that had been admittedly conjured without citing precedent or authority.
Capitulation.
Indeed, the lawyers had been composing this ordinance secretly—working only with staff and commissioners, not the public—for upwards of nine months.
Railroad Job.
Repeatedly, it was advised that it must be approved by the end of January, lest costly court costs befall the township because the owner is placed at a “disadvantage” by the current zoning.
Why?
Because, although the official tri-parcel status was known by these purchasers when the land “passed” to Brandolini, it had the “right” to claim harm in the process.
Done-Deal.
This was the take-it-or-leave-it atmospheric that overtly pressured the Commission members whenever they raised potential defects in the Ordinance.
Density.
This was the theme of the Commission members and the residents, the response to which the presenter had no cogent reply—no metric for assessment—despite recognizing the concern.
Bottle-neck.
Although reminded that the traffic study failed to include the T-Intersection at the railroad bridge (Washington Lane and Susquehanna Avenue), and that there is already a back-up routinely extending to the Valley Road traffic light.
No remedy.
Despite recognizing this specific issue, the ordinance proponent admitted he had no specific relief to offer suburbanites who had chosen homes in a community without urban sprawl.
Primum non nocere.
“The first priority is to do no harm” was presented as both an aphorism for wise medical care and for public officials who feel threatened by a monied developer.
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Arrogance.
There is no other explanation for the aloofness exhibited on behalf of this boarded-up strip-mall, allowed to fester to leverage approval in a form of the game “Chicken.”
Behavioral extortion.
The Rydal-Meadowbrook Civic Association website traces the multi-year history of near-unanimous opposition by residents/taxpayers—expressed at multiple hearings—to this project.
http://www.rmcivic.com/brandolini
Smooth-talking Commissioners—Kline and Peacock, both of whom are standing for re-election in 2011—should deign to listen…and to fight to maintain the quality-of-life of their constituents.
Hope springs eternal.
From Kline:
The 10 acres where the current shopping center resides can be occupied by 260 units plus with an equal mix of 1 bedroom and 2 bedroom units along with the retail/commercial space as a by right use under PB (Planned Business) zoning district. If Brandolini succeeds in the validity challenge and gets the curative amendment they have requested which extends the PB onto the rear 8.32 acres then they will have the right to build few hundred units in addition to the amount they can build on the front 10 acres.
The FTD Ordinance, with all of the bonus computation met, would allow a maximum of 246 units on the entire Baederwood property of 18.8 acres.
Traffic cannot be regulated within a zoning ordinance and is part of the land development process. Regardless, potential traffic issues exist with or without this zoning change because of the allowable density under the current PB District on Brandolini’s property. The FTD Ordinance at least creates density incentives that include improvements to traffic patterns and/or intersections.
The time-frame is real and the township has continually asked for and received extensions from Brandolini for these hearings to begin, which allowed us to make progress on how we could deal with this issue.
Commissioner Peacock and I, along with many of our fellow Commissioners, have sat through many meetings over the last few years, where the public
was very clear in their concerns, criticisms and desires. WE GOT IT and we used that knowledge within the framework of developing this ordinance. Unfortunately ZERO density is and will not be an option because of the property’s existing rights.
Threats regarding my potential re-election will have no bearing on doing what I think is right and what I think is in the best interest of our neighborhood and township.
To Kline:
Please upload the legal analysis that supports your view that--absent the interim-adoption of a curative ordinance--common law precedent would favor Brandolini.
Please explain why--in light of the fact that the secret meetings you held all year, until November, led to the sudden release of a “take it or leave it” proposal--the Township cannot approach the Court and seek a continuance in January...permitting the citizenry to complete a due-diligence study of this gigantic proposal.
Please explain why the Ordinance has so many vagaries [such as empowering the solicitor instead of the Commissioners] that appear to provide carte-blanche to Brandolini to avoid compliance with fundamental zoning mandates.
Please explain why you have failed to address the discrepancies in the traffic reports [Township v. Brandolini] which, necessarily, must encompass the increased stress on the T-Intersection RR-bridge bottleneck (and the traffic-light downstream).
Rydal-Meadowbrook Civic Association – Smoked-Out!
After much of the information on pages 1-13 had been uploaded onto the RMCA-website, it was deleted and replaced by the following; as of Sunday-Midnight, no other submitted information appears on any of the pages.
Submitted by RMCA on Fri, 12/10/2010 - 1:40pm.
RMCA encourages each person to read the precedent and draw their own conclusions. Much of the text above is drawn from the actual case, which can be downloaded as a PDF. This ruling handed down from Supreme Court of Pennsylvania is one case, but includes many references to other cases that all lead the majority of the RMCA Board to conclude that Brandolini does have property rights that are constitutionally-protected.
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This basically has unmasked a lot of behavior, and it cries for analysis on a number of internal/external levels. Regarding the former, it explains why the ten specific challenges to the biased presentation of the law were ignored, supplanted by the above sweeping judgment-call; the organization’s Board [and its four attorney-members, specifically] has not issued an explanation, nor {of course} has the Township released Marc Jonas’ analysis. {I’m told that one potential reason why Township Employees would want to enhance development would be to maximize tax-income, but I would not want to be so cynical as to conclude that (a)—they would forsake the public in the process, and (b)—the local Commissioners [and the RMCA leadership] would deign to collude in any effort to injure the commonweal irreversibly.}
Regarding the latter, it explains why (a)—The RMCA has not called for an emergency membership meeting during the past month, nor has it announced any intention to do so, (b)—The RMCA has not adopted a public position regarding this issue, which would then subject it to overt/immediate critique, and (c)—The public-poll only offered TWO alternatives [capitulate by adopting the proposed Ordinance v. engage in extended litigation, themed on “Legislation v. Litigation”] without offering a third obvious choice [stand by the current law], skewing whatever response the knowingly incompletely-educated readership might generate.
What to do? First, inasmuch as my cursory review of the PA Supreme Court’s Opinion [http://rmcivic.com/sites/default/files/realen%20v%20upper%20merion%20PA%20supreme%20court%20decision.pdf] would not be expected to be uploaded prior to Monday’s meeting called by LEL [supra]…and there is no assurance that it would be disseminated via the RMCA site prior to events on Wednesday/Thursday, it is necessary to puncture it JUST a bit more….
The first 10 pages provide a fascinating historical narrative regarding what had transpired during prior decades in Upper Merion. Buried within are such nuggets as the fact that the Zoning Board had met FOURTEEN TIMES before rendering an opinion {page 6} and that the Trial Court used only two factors [size and being surrounded by highways] were used to justify a rejection of switching the zoning {page 9}. The concept of negative spot-zoning is then introduced (and thereby coadopted) by citing a Florida case: it “occurs when an ‘island’ develops as a result of a municipality’s failure to rezone a portion of land to bring it into conformance with similar surrounding parcels that are indistinguishable.”
As an example of the problem discussed by LEL regarding the input of the experts hired by the Township is the ability of undocumented quotations to be invoked subsequently: “The Township’s expert land
planner testified during the course of the board’s hearing just to the contrary [as to whether single-family dwellings could be constructed on the property], including the direct conclusion that none of the uses permitted by right on the tract are ‘practical’.” It is for this reason that the orchestrated-events already transpiring have been so problematic, even as the rest of the electorate is awakening to the choo-choo train that barrels towards a collision-course with the assumed-future of this community. It was therefore concluded that an ordinance enacted immediately prior to the onset of these proceedings was invalid.
The contrasts with the Brandolini effort are stark and, indeed, if ANY ordinance were to be adopted regarding ANY of these properties, the net-effect would be to supply Brandolini the opportunity to initiate like proceedings; it is for that reason ALONE that the ONLY DESIRABLE COURSE is to DO NOTHING.Second, even accepting arguendo that “Brandolini does have property rights that are constitutionally-protected” does not, in and of itself, necessarily yield the need for capitulation, as the proposed Ordinance would obviously produce. Therefore, it behooves the BOARD of the RMCA to reassess its viewpoints and TO UPLOAD ALL COGENT DISCUSSION OF THIS ISSUE IMMEDIATELY.
Third, the RMCA must ignore its flawed-survey, for it smacks of demagoguery. I quote my favorite 20th Century book [“I and Thou,” by Martin Buber] to note how devious it is for a “witness leading” effort to be sustained; THERE ARE ALWAYS A MULTIPLICITY OF WAYS TO PERCEIVE REALITY. Whenever only two alternatives are provided…and a third one [which is cogent and potentially desirable] is not proffered, there is a glitch in the machinery, eh?
*I do not engage in personality-conflict when focusing on the facts and the associated law; I am neither a land-planner nor an attorney. I am told that I am being portrayed by one of the two named-Commissioners as a “nut-job” to a number of individuals [who have dutifully reported-back this appellation]. There is a notable quotation that therefore comes to mind:
If you do not have the law, argue the case. If you do not have the case, argue the law. If you have neither, argue ad hominem.
It is always hoped that civil discourse will yield optimal conclusions, and the RMCA has a DUTY to uphold its charge to maximize this effort. Thus far, other than creating the website, it has not accomplished this end. The renditions [note the problematic quotations that were not specifically addressed, despite their having been sufficiently isolated/distilled to allow for cogent discussion] are skewed…and now we know why. The actions are
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biased [note the skewed polling, “wired” to preclude drawing a worthwhile conclusion]…and now we know why. The blogging [note the absence of input from LEL and myself] is suppressed…and now we know why.
In this regard, I point not to Mr. Turner, but to Ms. Rubin, as the Dybbuk in the piece. I do not know if she is a registered-Democrat [as are Peacock/Kline], adherent to the desire to urbanize Abington [dangling the prospect of federal grant-monies to convince the wayward]. I do not know if she would sustain her threat [“If it appears that the policies need to be modified in order for the site to live up to the vision and standards she sets, Linda has told me that she will ask the Board to modify those
policies.”], but she certainly has not ensured that the CURRENTLY-ACTIVE policies have been honored.
It is necessary to provide a key-disclaimer regarding my politics, in this regard. I have spoken at three (3) Tea Party events during 2009-2010 [Independence Hall on 7/4 of both years, plus Arcadia when Obama dropped-in]. I adhere to the principles of this movement [limited-government, free-enterprise, individual responsibility, and low taxation]. I have no “skin in the game,” other than the recognition of prior-advocacy for fixing the T-intersection @ the RR-bridge [which, to me, is a no-brainer that would necessitate no construction]. Further elaboration of this issue is apparently warranted, in light of what Mr. Kline wrote in one of his more aggressive e-mails, and in light of my current litigation [appended].
Regarding the Roslyn Branch Library, I did not support the use of Eminent Domain to waste-$$$, and I provided extensive testimony (and handouts) regarding this issue, starting [alone, I might add] on 3/2009; it seems, now, that state [and probably county] funding has dried-up, validating my effort to save the Township from suffering $$$-liability from this effort [re: Patane litigation]. Yet, regarding the RR-bridge idea, I consistently noted that the relevant property is for-sale; the Long & Foster sign is visible as one drives under the bridge; thus, I did NOT support the use of Eminent Domain to purchase an unused sliver of the index-property. To excavate [removing trees/dirt] and to pave-over what would be created by a reinforced dividing-wall, this would not hoe new ground [no pun intended] in the realm of architectural/structural brain-storms…nor would it cost “millions” [as misportrayed—without documentation—by the all-knowing Mr. Kline].
If anyone would like to read the extensive documentation of my 2009-experience with the Abington Board of Commissioners [and recognizing how close they came to ANOTHER sunshine-law filing, this past Thursday-p.m.], the elaborative “brief”-like text is available upon request.
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In any case, it’s over-time for the RMCA to get revved-up, for reasons aforementioned…and it’s about-time for the citizenry to get up-to-speed regarding the neutron-bomb [that kills without destroying property] that has been detonated.
*The RMCA must call an EMERGENCY MEMBERSHIP MEETING to discuss this entire matter; if it must occur when some people are departing for vacations, the rest of us merit this modicum of attention.
The RMCA must promptly upload all non-defamatory input/discussion onto its blog-site; recall “Sunshine is the best disinfectant!” [Brandeis].
The RMCA must not rubber-stamp what is portrayed as absolute-truth without completing independent study thereof…and weighing its profound import.
The RMCA must not behaviorally validate potential-extortion from Brandolini; if there is no legal problem that constitutes a smoking-gun, then it should do what is RIGHT.
[I would invite all recipients of these e-mails to circulate any critique thereof by hitting “reply all”; if no one can find anything problematic, then that fact will glisten.]
And anyone who disagrees with anything I have written/said is cordially invited to contact me ASAP, for I will dutifully circulate it [as I did when uploading the Kline-composed e-mail of last month] prior to responding thereto.
*Well, I suppose the labor associated with downloading/preserving my prior uploads [appended] proved worthwhile because, probably in response to what was circulated yesterday, not only were NONE of the comments subsequently submitted by myself [not preserved, unfortunately] and LEL [previously provided directly to yourselves in “RMCA & Brandolini: Co-option - I”, via moi] uploaded…but everything EXCEPT for the skewed/unrefuted OPINION/statement of the RMCA Board was DELETED!
Recalling the stated-goal of the RMCA in this instance [“RMCA strongly encourages you to tell officials what you want”] and its web-site [“The will of the membership is now able to be harnessed through this web site and communicated to those with influence and authority”], Julie would turn-in-her-grave if she knew how the “driving” tenets of her cherished organization had been so thoroughly trashed.
Denuded of any pretense of playing a constructive/educational role, the RMCA has now proven itself to have become a Kline/Peacock pawn, so sad.
I had spoken with Steve Turner [webmaster] a few days ago [646-509-8967], and I had gained a clear appreciation for the fact that he was functioning solely under the direction of Ms. Linda Rubin [215.884.3677]…as per the listing of the Board of Governors [which, assuredly, had had insufficient time to have met and to have approved this unprecedented decision]. It was my impression that she somehow felt that my counterpoint-analysis crowded-out anyone else’s submission, for nothing allegedly violated any of the uploading precepts [written and unwritten, such as to avoid defamation, etc.]. As noted earlier, it is ironic that freedom-of-speech rights/concerns [amplified on the RMCA Website, which invites reader-input] have fallen victim in the process.
It is noteworthy that the RMCA’s Mission [“…to promote the best interests and general welfare of Rydal-Meadowbrook and of Township of Abington”] has been hijacked in this process and, thus, it may be desirable for Ms. Rubin to be asked to justify why she should remain in-office; she has certainly abrogated her leadership responsibilities. Indeed, it is not surprising that only seven people have voted, thus far, for one is forced to conclude (a)—that the unjustified [by FACTS] absence of a “none of the above” alternative [“do nothing to change the currently in-force law”] fatally skews any ability to interpret the results, and (b)—the ability of open-minded people to review the [uncontrolled] pro/con arguments has now been rescinded.
This historical [albeit, not “hysterical”] event in the history of Abington raises the specter-of-concern that the entire sequence-of-events has been orchestrated by RMCA leadership—perhaps abetted by Kline/Peacock—to “run out the clock” in an effort to ambush the community with an absolutely revolutionary mandate to alter the heart of the community by encouraging its urbanization. With all due respect to concerns regarding the desirability of maximizing the taxation-base [by enhancing population and grant-attraction], this is a DEBATE that must be held with those with the most obvious INTEREST in its outcome…the CURRENT-RESIDENTS!
The customary counterargument in such settings is that the voters have the right to turn-out the incumbents if they are displeased with their performance. Realistically, however, the established time-frame would not seem to permit any sort of realistic canvassing of the voters, let alone a campaign to replace Kline/Peacock. Acutely aware of one alleged-reason [Rydal Waters] why Peacock was elected, for example, would only serve to illustrate why there was insufficient “informed consent” that he would pursue—unbridled—a programme more worthy of a sitting Philly City Council-Person.
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LEL is hostess-ing another get-together on Monday and, although the room in which last week’s event was held would not accommodate more than a few dozen people, it emerges as the only alternative for those wishing to discuss these issues cogently PRIOR to the Wednesday meeting of the Planning Commission. [I’m told that the RMCA and/or Peacock/Kline couldn’t find a room to schedule any event in this time-frame, one of the lamest excuses for procrastination one could conjure.] Meanwhile, the silence emanating from the RMCA has become deafening.
My ‘phone didn’t ring all-day yesterday, notwithstanding the content/stridency of my five-part “message” to you-all; nothing was contradicted…nothing even provoked commentary. But, as they say, “still waters run deep.” You may wish to express your wonderment to the RMCA leadership [and to me, if desired] regarding who/what/where/when/why/how the RMCA website was “cleansed,” but it is now increasingly mandatory that a significant turnout be generated during this week’s community meetings. I would, of course, invite the “To” recipient of this e-mail [Ms. Rubin] to hit the “reply-all” button and to deign to explain herself.
I wanted both of you to know that President Linda Rubin wants the RMCA site be a source of reliable information to its members and the community. We have released a mailer to 2,275 residents and want them to voice their opinions, so it is particularly important to let them speak in the next week.
The terms that are posted on the site are currently under review but could be enforced much more rigorously: <http://www.rydal-meadowbrook.org/terms>. If it appears that the policies need to be modified in order for the site to live up to the vision and standards she sets, Linda has told me that she will ask the Board to modify those policies.
In advance of any policy change, I would simply ask both of you to limit the number of posts to one per day, keep them short and if you want to write long commentaries, do so on your own web sites and provide a link on the RMCA site. I really want the site to be a public resource with different perspectives, but we all need to work on making that possible.
Regards,
Steve Turner
PS: Remember that I am busy running two businesses, raising a daughter, being there for my wife and caring for my
father with Alzheimer’s. I don’t have time check on the RMCA site more than once a day.
From: Robert B. Sklaroff, M.D. [mailto:[email protected]] Sent: Friday, December 10, 2010 4:04 PMTo: 'Steve Turner / TDN'; '[email protected]'
I believe both of us have provided lengthy expositions, and LEL wrote most of what I had envisioned as my third-installment…which now will be delayed until Monday.[I held-back posting what I’d written, awaiting the opportunity to integrate what others might have contributed…and I would hope my first two-installments will soon appear.]
I just read the web-site, and I clarified/commented on two subsequent postings; I would have no problem if you uploaded them each on successive days over the weekend.
I also have not seen LEL’s posting on the website yet; I hope it is not being withheld; I do appreciate the fact that Mr. Kline appreciates that I uploaded his viewpoint.
BUT, I am in a posture, now, to DEMAND a reply to one of them, namely, the primary legal-analysis that [it is now revealed] the RMCA has apparently generated.
If there is anything uploaded that is not “reliable information,” then it should be ID’ed; if nothing can be identified, then there should be NO reason to screen-out my postings.
One would think that you would want to generate a vibrant go-to website [for this and other issues] as occurs in Ardmore [http://www.saveardmorecoalition.org/].
[You all may recall that LEL and I are big on freedom-of-speech, and I daresay no harm is done when people provide rationale for how they express their views.]
I would be eager to chat with Prez-Rubin whenever/wherever, because I hope she has not been somehow diverted from the goal of the RMCA to maintain independence.
*The RMCA must call an EMERGENCY MEMBERSHIP MEETING to discuss this entire matter; if it must occur when some people are departing for vacations, the rest of us merit this modicum of attention.
The RMCA must promptly upload all non-defamatory input/discussion onto its blog-site; recall “Sunshine is the best disinfectant!” [Brandeis].
The RMCA must not rubber-stamp what is portrayed as absolute-truth without completing independent study thereof…and weighing its profound import.
The RMCA must not behaviorally validate potential-extortion from Brandolini; if there is no legal problem that constitutes a smoking-gun, then it should do what is RIGHT.
[I would invite all recipients of these e-mails to circulate any critique thereof by hitting “reply all”; if no one can find anything problematic, then that fact will glisten.]
And anyone who disagrees with anything I have written/said is cordially invited to contact me ASAP, for I will dutifully circulate it [as I did when uploading the Kline-composed e-mail of last month] prior to responding thereto.
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B Grid [Points-of-Contention]
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BAEDERWOOD and the Fairway Transit Ordinance
7 pm at the Township Building Jan 6th, 2011Ponder these facets of the proposed Ordinance. Citizens may be able to influence some (such as conveyancing, greenspace, bike-paths, transparency, and timely notification) more than others (such as heights and setbacks). Amendments may be possible, but you can surely let your Commissioners know how you feel about the overall plan to "urbanize" our Abington. Remember, MUCH MORE REZONING IS TO COME….
Take these pages with you for reference.
THE ISSUE BRIEF SUMMARY MY OPINIONCircle if you agree… or write your own
YOUR OPINION
Write-in your notes or ideas or preferences
↓↓↓
The two front parcels (totaling about 10 acres) are zoned R1 and the rear (8.32 acres) are zoned PB.
The validity challenge requests that all three lots be merged, so that the rear lot would no longer be restricted to 8 homes.
The result would be to allow far more density than the region can tolerate, making congestion unsafe for the public health and welfare.
From 8 to 300 units If entire site were ruled PB by the court, then about 300 units could be added to the back, while retaining 130,000 sq. ft. of shopping/office in front;if shopping were removed, 422 units could be built (comprised of 1, 2 & 3 bedroom-mix or 738 singles).
Many citizens feel this threat constitutes a scare-tactic, for it is unlikely they would want to replace the shopping and/or to build so many single units. Instead, we suspect they envision building something similar to the FTD, perhaps with deeper setbacks and more limited heights.
Number of units “FTD” = 246 units + 205,000 sq. ft. commercial.“PB” = 276 - 300 units plus 130,000 sq. ft. commercial. “PB with Commercial Removed” = 422 mixed-size units or 738 single units.
FTD is really not much better than either PB. FTD introduces definitions of some aspects of design, but has onerous features; for example, FTD allows buildings to be up to the sidewalk [removing the 60' setbacks in PB] and encourages garages.
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“PB now places virtually no limit on what they can build”
This is a misleading statement often made by advocates. PB is limited by height, by required parking, and by setbacks. To create more parking, they would have to give up sq. ft. of commercial. And they are limited to 50 ft. height.
It is unlikely they would want to rip down commercial and/or to build singles; therefore, they actually want to build something similar to the FTD. And, were they to lose in the court, they would be forced to comply with current density limits.
Pedestrian friendly? …Only to pedestrians who are "imported." For those in the community who live within driving distance, we would have to park further away in a garage (and then walk), losing the ability to park near to our preferred store (and to use our car’s trunks).
Many suburban shoppers prefer parking near their shops, not in garages; they enjoy being able to get in-and-out quickly. Small pockets of walkable areas with attractive shops and entertainment are very desirable, but only they are if easily accessible.
Forced mixed use - FTD requires 20% residential to 80% commercial
Commercial noise and activity are not compatible with residential use; forced mixed use is largely a tool to produce more shoppers for the commercial district… thus increasing density (and traffic, and crime, and…).
Suburban life is about green residential neighborhoods and seeing the sky. Those who prefer to live near shopping, buy homes near it. Increasing density offers few benefits to the residents (the taxpayers, the voters).
Building Heights PB allows 50 ft. high, while FTD allows 75 ft. without any justification to allowing mid-rise structures.
Residents have testified almost unanimously against tall buildings.
Parking Garages FTD gives incentives to build more, while residents have expressed a preference for fewer.
There is no reason to incentivize what everyone knows we don't like.
Other Parking Issues FTD allows for car-sharing, shared-parking, curbside parking along the Fairway, and narrow parking-spaces; to judge how well these concepts are working out, visit Center-City Philly.
Parking issues disappear when buildings maintain their required amounts of parking-space, which can be pervious hardscapes.
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Setbacks - Buildings erected right up to the sidewalk
Setbacks, if the PB were won, would remain a minimum of 60 ft. But the FTD allows 20 - 25 ft., again allowing them to maximize the total sq. ft.
Residents have requested more green and setbacks; the FTD gives far less of both.
Impervious Surface Maximum
Residents are limited to 55%; if Brandolini won PB, they would have 70%...while the FTD gives 80%. Also, pervious surfaces are not now required to be green, for gravel and some hardscapes are allowed.
Everyone must help prevent our Township from becoming fully concreted; all property owners should share in the burden of maintaining pervious surfaces to minimize storm water problems.
Greenspace Lacking This ordinance does not reasonably or directly mandate Greenspace; open space is not greenspace and neither is pervious surface.
For beauty, health, habitat, happiness…this ordinance should mandate devotion of a generous portion of every property to greenspace.
Traffic Study Overdue –TRAFFIC SAFETY IS A PIVOTAL ISSUE
Past traffic studies (up to 2007) are totally out-of-date and admittedly incomplete; Omissions in the 2009 study (provided by Brandolini) are laughable (e.g., RR-Bridge T-Intersection ).
It is mandatory that the Township acquire a contemporaneous and complete traffic study of the roads and intersections affected by congestion around Baederwood.
Emergency Services and Safety
Ambulances and emergency vehicles must be able to get through this region.
It must be impermissible to allow further congestion on roads and intersections that are now maximally-dense.
Hearing & Honoring Resident requests
Parking garages, reduced setbacks, and mixed use are rewarded…while no incentive is given to building movie theaters, indoor township pools, community rooms, etc.
Ordinances must afford incentives for community meeting rooms, activities for residents (such as movie theaters) and pools (that keep us healthy).
Bike Paths Lacking Bike paths (which promote health and the environment) are difficult to add.
If reducing traffic is truly a priority, biking (with safe paths) should be boosted.
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Conveyancing of small parcels to other owners[see P8, section P]
Conveyance is unregulated, creating unknown issues [e.g., resale, township duties to multiple owners].
Conveyance should not be allowed as a right; when requested conditionally, circumstances can be examined as they arise.
Cost of Litigation isn't the only cost-burden
Long-term costs must be weighed (building new schools, traffic remediation, increased crime, other Township services).
Residents should not allow themselves to be bullied by threats; this encourages more bullying (for a billboard validity challenge may be imminent) and costs may ultimately be equivalent.
Solutions Unexplored Allowing the rear 8 acres to be zoned as neighborhood residential (similar to the adjacent property) would reflect its surroundings more than would 300 units of PB.
Consider the option of rezoning the 8 acres to NR[Neighborhood Residential]similar to Rydal Waters, but not age-restricted.
Legal - Setting precedents for other properties
Allowing the rear 8 acres to become PB would allow other properties such as Rydal Waters to do the same thing.
This property is a perfect example of how actions in one property affect another; this case is all about what we allowed OTHERS to do.
Legal - Case law A list of case law that is in our interest has never been provided, despite over $30,000 so far in legal and land planning fees . And our attorney's "opinion " (that we would lose) has been freely offered everywhere including in the news - but we are not allowed to see any documentation.
We deserve to know what rights we have and what challenges the law might provide. Residents should be allowed to sign confidentiality agreements and see any part of a lawsuit that is paid for by them and used in their behalf.
Our comprehensive plan needs review by residents and adjustments by officials to reflect residents’ needs
Elements of this plan have inspired overdevelopment, contrary to resident wishes. Safeguards are needed to preserve and protect the health, safety & welfare of our residents and our quality-of-life.
Review and amend statements used by this developer to substantiate his plan to over-develop; then form a review group that would be required to conduct open-meetings.
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The Old York Road Corridor study needs further review by residents
Elements of this plan have inspired overdevelopment, contrary to resident wishes, just as has the aforementioned comprehensive plan.
Review and amend statements used by this developer to substantiate his plan to over-develop; then form a review group that would be required to conduct open-meetings.
Tools of Transparency
The most important request as it is for ALL issues!
You will need it again
Web page with full information and links.
Email lists by issue with meeting dates, times updates, video times - etc
Multiple Open session Meetings for residents.
Place for posted questions and answers prior to meetings.
These tools (requested for a half-decade) are long overdue.
They are crucial to resident participation in their government
Important issues like this should be brought to residents - not presented in a fashion that forces each resident to start the search anew.
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C MontCo Planning Commission Report [11/17/2010]
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D Memo to Board of Commissioners [1/6/2011] {Excerpts}
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Robert B. Sklaroff, M.D.Medical Oncology/Hematology Telephone: (215) 333-4900
To: Abington Board of CommissionersRe: Baederwood/Brandolini & [the proposed] Transit-Oriented District [“TOD”]
Executive Summary – “The Invasion of the Slick Developers”
The Kline/Peacock/Brandolini Axis of Mega-Rezoning
The proposed Kline/Peacock/Brandolini Ordinance would urbanize Abington’s culture… forever. Fundamentally altering Abington’s geographic heart presages township-wide destruction of suburban life as we know it. Yet, despite profound flaws that overtly favor developers, no public discourse regarding this revolutionary Ordinance—affecting everything from property-values to the tax-base—has been held or scheduled during the fortnight prior to the contemplated 1/6/2011 Commissioner-Vote. Mega-rezoning must not be rubber-stamped due to undue legal pressure that has bogus underpinnings; near-unanimous opposition by Abingtonians has been expressed at multiple hearings. The Old York Road Corridor Improvement Study and the Abington Comprehensive Plan would be violated were this proposed Ordinance approved. These Municipal Magicians, Kline/Peacock/Brandolini, manipulated the cumbersome and complex zoning process by awesome secrecy and a breathless pace of bureaucratic sleight-of-hand. They must be stopped by scrutiny based on statutorily-mandated due diligence…and sunshine.
At the risk of being accused of engaging in overkill, I am e-mailing this document to you-all, via the Administration, and I would invite you to call me ASAP if there is ANYTHING that you would find to be problematic in this scathing critique of what Kline/Peacock envision. This memo comprehensively presents/assesses all available data and all definable forces. Nevertheless, as is customary, please so-inform [and a reply will be written/circulated] if (1)—Anything vital was overlooked, (2)—If a cognizable defense can be conjured to what was written, or (3)—There is a desire to share critique/comment/thought/feeling/emotion.
A friend/colleague asked whether it is preferable to kill-the-deal rather than to delay it. I prefer the former, if only because tremendous $$$-forces are afoot. There is so much that is wrong with what is proposed here [regarding both what’s stated and what’s left unstated] that it would be
better [perhaps also sending a “disciplinary” message] to trash all traces of the proposed Ordinance and to initiate a fresh initiative…drawing from All Abingtonians.
My pal is a lawyer/real-estate-entrepreneur, and he has grown to admire [with a certain awe] how Brandolini acts through Kline/Peacock and the Rydal-Meadowbrook Civic Association. Recall the fireworks [@ the Abington Junior High School Auditorium, last year] directed @ Marc Kaplan, Esquire when he presented Brandolini’s plans. Currently, both he and Marc Jonas, Esquire [hired by Abington] remain “under wraps,” preferring to be quoted [and, thus, to retain a degree of “plausible deniability”] rather than to subject themselves to critique. BTW, more information regarding this entire issue is available on the Internet [http://www.abingtoncitizens.com/Issues/Development/Baederwood/Baederwood.htm]; note the upcoming/urgent 12/29/2011 meeting @ 7 p.m. @ the Brownstone Cottage. [Explore this website, for it is chuck-full of data regarding many issues facing Abingtonians.]
Efforts will be made to circulate this document broadly; those who are responsible for planning/perpetrating this outrage upon the public will be exposed for their [mis]conduct. That it was contemplated that few people [other than “the usual suspects” such as myself] would be anticipated actually to have read major documents regarding this despicable gambit [even those that are on-line, even by those who are presumed to be community leaders], this reflects the low regard harbored by elitist commissioners [and governmental enablers?] when they weigh the risks of implementing radical change under the cover of the Holidays. And that a mere overview of the two documents touting as justifying this effort revealed that they have been ignored, this only amplifies the need to comply with their mandates ASAP… and CERTAINLY prior to the approval of a document that would render them mooted.
Outline:
1. Executive Summary – “The Invasion of the Slick Developers” [pages 1-8]--Ten Introductory Questions – “Where is the Citizen-Advocate?--The Geography – Visualization Begets Actualization--The Legal Challenge – The Existing Tract is Not an “Island of Disparate Zoning”--Flagrantly Complicit Commissioners – Why Does the RMCA Provide “Cover”?--Implications – The Inherent Risks of Tolerating Governmental Elitism
--Conveying a Crash-Course – How This Memo Meshes Facts & Opinions
2. Ordinance-Based Queries – from Kline-Memo of 12/20/2010 [pages 9-23]
3. Kline-Exchange – Without Resolution [page 24]4. Right-to-Know Requests – “Waiting for Godot” [page 25]5. Legal Precedent – “Upper Merion v. Realen” Supports Abington!
[pages 26-33]6. Abington Planning Commission Meeting #2 – Wired [page 34]7. Traffic – Creating Multiple Gridlock Intersections [pages 35-37]8. Rydal-Meadowbrook Civic Association – Smoked-Out! [pages 38-42]9. Disclaimers – Personal [page 43]10. E-Mail Discourse – Limited, Albeit Revealing [pages 44-51]11. Hearings – Personal Essay [pages 52-53]12. Old York Road Corridor Improvement Study - 2007 [page 53-56]13. Abington Comprehensive Plan - 2007 [pages 56-62]
“The Public Safety Problem is Enormous!”--Former Congressman Jon David Fox, Esquire
Ten Introductory Questions – “Where is the Citizen-Advocate?
The natural result of this precedent-setting rezoning is to affect all future [re]zoning requests, so why has it received a fast-track treatment, not having been submitted for approval by any vitally-interested Township committee [Zoning, Economic/Community Development, etc.]?
The voters nationally have opted for governmental-transparency and not political-collusion, so why are Brandolini’s “Municipal Magicians” being permitted to bypass officialdom’s habitually cumbersome/complex administrative-friction and petty party-bickering?
Regarding this particular project, the Abington Comprehensive Plan specifically advised in 2007 that “A mixed-use development, if done with care and sensitivity, could enable the developer and the Township to produce a product on a property in an area already populated with higher-density development,” so why is the Township acting with lightning-speed rather than allowing a modicum of “sunshine” to be directed at this proposal by the citizenry?
Regarding traffic-congestion, the Abington Comprehensive Plan specifically advised in 2007 that a 1992 report [that showed, per state-standards, that Susquehanna Road and The Fairway were already accommodating near-capacity volumes] be updated, so why hasn’t it been?
Regarding police-power, the Abington Comprehensive Plan specifically advised in 2007 that “A transportation system should be designed to
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meet the differing mobility needs of residents, businesses, emergency services (police, fire, medical services), and commuters alike,” so why has no consideration been directed at this controlling public health issue?
Because this proposed Ordinance has received scant scrutiny during the past two months, why can’t Abington seek a continuance prior to Brandolini’s 1/31/2011 litigation deadline?
Because sufficient due-diligence study of this document and requisite discovery—requested via the “Right-to-Know” Statute—will not have been completed before it is presented for official approval on 1/6/2011, is there any compelling reason why any action is mandated?
Recognizing that it is desirable to maximize the taxation-base [by enhancing population and grant-attraction] but that “the devil is often in the details,” should not debate regarding how this is to be achieved involve the community stakeholders, prominently, its current residents?
During this Holiday Season, civic leaders [in Wards 1/7 and Township-wide] haven’t provided the public a venue for discussion of this issue during the fortnight before the vote, so is there not a desire to involve all Abingtonians in this initial manifestation of the Plan?
Because—during this pivotal Abington-Moment—adopting this proposed Ordinance will undeniably yield irreversible change [with ripple-effects that few can currently anticipate], cannot its advocates be compelled to provide specific written answers to fundamental queries to which all future developers (along with Brandolini) would be compelled to abide?
The Geography – Visualization Begets Actualization
A map [http://wholefoodsmarket.com/stores/store-locations/?storeabbr=JEN#map_top] provides four views—Map, Satellite, Hybrid, Terrain—that can be obtained simply by clicking in the upper-right-hand corner. Absent a formal presentation from Brandolini of its latest iteration of its intent, they provide insights as to what exists and what is envisioned.
The Map depicts its locale along a secondary-highway that is proximate (but not adjacent) to the Old York Road [“OYR”] Corridor, with the blue-shaded area comprising the eastern-half (where the Whole Foods market is located) and the total shopping-center footprint envisioned by noting a mirror-image thereof [flipping westward].
The Satellite depicts [after zooming-down a notch] the currently-approved development bordering on the Rydal Park retirement homes (to the east), the shopping-areas alongside OYR (to the west), and the Rydal Waters [undeveloped, for now, owned by Rydal Park] purely-residential land surrounding the “8”-shaped roadway (to the north).
The Hybrid depicts [after zooming-up a notch or shifting the visualized pane slightly to the east] the bottle-necked highway intersections [notably that which is @ the Rydal RR-Station, located in the lower-right-hand corner, where Susquehanna Road and Washington Lane intersect].
The Terrain depicts the upgrade that is located in the middle of the “landlocked” trapezoid. {This could be accessible either from the already-developed infrastructure in Rydal Waters or from the Shopping Center, with the latter predominating in artist-renderings being displayed; less likely would be entry from the already-congested parking region used by Trader Joe’s, despite the fact that it is located @ a grade-level that would otherwise make it an ideal access-way to the upper-property (which remains wooded).}
Proof that the implications of this effort necessarily affect the entire Township emerged during the second meeting of the Planning Commission. The proposed Ordinance refers to a lot-size of less than one acre on multiple occasions, despite the fact that all three lots owned by Brandolini—10-acre trapezoid comprising the Baederwood Shopping Center and 8-acre parallelogram comprising the R-1 lot to-the-rear thereof, slanting to the NW—are larger than an acre. The advocates for the proposed Ordinance stated that these were explicitly inserted to attain an explicit degree of universality, providing a Township-model.
{The discussion of the Upper Merion case includes a hyperlink to a map thereof, yielding the ability of the reader to corroborate conclusions drawn therein. Simply put, just about all of the legally-definable characteristics of these two entities are widely disparate, let alone the extensive litigation-narrative dominating the near-unanimous Opinion of the PA-Supremes.}
The Legal Challenge – The Existing Tract is Not an “Island of Disparate Zoning”
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Brandolini cannot claim to be disadvantaged, for it purchased the land with full-knowledge of the current zoning-law; indeed, without seeking a variance/easement, it can develop both the Baederwood-Trapezoid [mixed-use residence/business] and the Attached-Parallelogram [single-acre/upscale residence]. Indeed, any alteration of Township zoning policy could itself become a Brandolini-target, for it could argue [justifiably or not] that this change had constituted a brazen effort to spot-zone, to its irreparable economic detriment.
It has been suggested that the Township may be vulnerable due to a PA-Supremes case [Upper Merion v. Realen]; yet, this “controlling” case-law buttresses the Township’s ability to exert Police Powers to maintain Public Health/Safety/Welfare; most every criterion defining the two land-plots [King of Prussia and Baederwood] demonstrates defining differences/distinctions, both in their physical characteristics and in the litigation-history.
Meanwhile, advocates for the proposed Ordinance have advised capitulating to Brandolini without having specified any other justification for legal worriment. Furthermore, they have not defined alleged-defects in the current Ordinance [which seems to be working just fine], even as the proposed Ordinance is riddled with omissions/commissions that harm the citizenry. It seems Brandolini’s attorneys wrote the rule-book it would then be “forced” to follow, after which it was channeled via Messrs. Kline/Peacock for Township approval.
Indeed, to rezone the Brandolini tract to permit construction of a ~300-unit mid-rise would, itself, create an “island of disparate zoning,” constituting “illegal spot-zoning,” contrasting in character with the surrounding neighborhood. Contiguous are 50% stores [a light-retail strip-mall, and a shopping-multiplex] and 50% approved-but-unbuilt townhouses; nearby are one-acre, single-family homes and two low-impact “over 55” communities (low or mid-rises). There is not a high-impact, dense, age non-restricted apartment house in the area that contains units that could predictably house people owning one-or-more private vehicles.
{Personal experience suggests the Township has not shied away from engaging in litigation, both incorrect [Patane, as apparently has now been confirmed] and elitist [myself, as per the appended updated filings] pursuits. Thus, it would be anticipated that the Court would readily honor a simple request for a continuance, citing the highly-recent vintage of the proposed Ordinance, for opposing parties are always encouraged to work-out differences before expending any judicial resources (plus, of course, their personal fiscal-reserves).}
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[I was explicitly asked to state what would be preferable, rather than “Just saying ‘NO!’ ” to whatever Brandolini advises. Neither a land-planner nor an attorney, I would aver, first, that restoring the [purposefully?] gutted Shopping Center would be the community-ideal and, second, that any alterations thereof must comply with all safety-related statutes.]
Ultimately, just as it is inappropriate to be intimidated by threats [notably undocumented], it is discomfiting to feel manipulated by having been provided oral-reports that the attorney hired by Abington’s tax-$$$ [indirectly quoted through commissioners, a land-expert, even the local Civic Association] has—allegedly—decried the Township’s legal “weakness.” Thus, particularly noting the case-analysis [vide supra et infra], it is necessary to “call the bluff” of these blind acolytes simply by mandating that they defend their resolute postures.
Flagrantly Complicit Commissioners – Why Does the RMCA Provide “Cover”?
Kline/Peacock eschew communications to hide their proposal’s definable faults, abdicating their sworn-duties either to function as “representatives” or as “delegates” [Edmund Burke: http://press-pubs.uchicago.edu/founders/documents/v1ch13s7.html]. Demonstrating a lame excuse for procrastination, they reportedly could not find a site where they could hold their Town Hall until mid-December, yielding poor [~45] attendance (perhaps due to predictably-foul weather). The Rydal-Meadowbrook Civic Association [RMCA] has also been AWOL, having failed to call an emergency membership meeting; reportedly, Kline/Peacock have convinced its Board of Governors not to become active. No follow-up meeting/memo has been forthcoming from Kline/Peacock or the RMCA. And, despite having requested to do so, the RMCA has maintained secrecy regarding data provided by Kline/Peacock, rather than uploading it onto its website for member-scrutiny.
Ordinances should not be enacted precipitously; intimidating the Planning Commission [as per the preamble of its “qualified” endorsement] reflects the need to recoil when sensing such forces. This is particularly of-concern when citizen-input is ignored. Kline-memos have revealed a one-bite-at-the-apple approach to responding to comprehensive questions, absent any intent to provide follow-up replies [after reformulation of reasonable queries]; thus, these advocates of this proposed Ordinance need an attitudinal-readjustment ASAP.
At the 12/9/2010 Board of Commissioners meeting, I requested copies of both the legal analysis by Marc Jonas, Esquire and the land-planning analysis by Mr. John Kennedy, and advised that these reports be uploaded onto the Township website for everyone to read. The Planning Commission was asked to do likewise but, to-date, neither entity has acted. [Also, a
continuance was requested due to insufficient allotted-time to study the issue.] During both of these meetings, despite presentation of the bulk of the data in this memo, the Board members provided neither feedback/clarification nor acknowledgement.
This latter point is vital, inasmuch as there is no side-by-side “cross-walk” between the current and proposed specifics of the proposed Ordinance, nor have baseline data been provided [under the “Right to Know” Law] within a week of the issuance of a request. Even a copy of the current zoning-law [which, alas, is not on-line] was not proffered. Indeed, the response revealed that relevant-data would not be divulged until mid-January (long after projected approval of the proposed Ordinance), lending further credence to the courtroom argument that there is no urgency for this Ordinance to be approved,
{Note many Times Chronicle letters-to-the-editor by Lora E. Lehmann and, on 12/22/2010, by [former columnist] Ted Taylor; he openly laments having endorsed Peacock in 2007.}
I do not engage in personality-conflict when focusing on the facts and the associated law; I am told that I am being mocked by one of the two named-commissioners as a “nut-job” to people who dutifully reported-back this appellation. The perpetrator should note this adage:
If you do not have the law, argue the case. If you do not have the case, argue the law. If you have neither, argue ad hominem.
Implications – The Inherent Risks of Tolerating Governmental Elitism
This constitutes a textbook case of governmental elitism with unknown implications if permitted to be perpetuated. This memo cannot pretend to have answered all questions, for each simple-declarative-sentence [in the proposed Ordinance, within the Kline-memo, buried among PA-Supremes legalisms, raised during e-mails exchanges] engendered queries.
Reprinted are e-mails from people who “broadcast” their viewpoints, but one person asked that this information (albeit contemplated to be conveyed verbatim) not be recycled. Therefore, those facets thereof that serve to elaborate upon (and editorialize regarding) points that have been made herein (and by others who had composed personal e-mails) are “adopted by reference” by placement into the appropriate context. Most of them are intended to motivate/empower (concepts that are inherent in what has been typed herein), while others serve to unmask the stealth-quietude @ the Zoning Board via Kline-Peacock (which has been elucidated via the provision of a digest of the two selectively-quoted documents that are
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repeatedly invoked by Kline/Peacock when advocating their position). The goal is to help neophyte-readers become rapidly/comprehensively brought up-to-speed.
As has been repeatedly noted, Abingtonians have been ignored; the proposed Ordinance presages what is “planned” for unveiling seriatim throughout the Township. Even what should have been a sedate Town Meeting was punctured by exertion of control-tactics that included grappling with the microphone [as is detailed in my ten-point e-mail, infra] because [when this quashing-effort had proved unsuccessful and the basic-query was driven-home] it was admitted that the PA-Supremes indeed intended for safety-concerns [derivative of black-letter public-health priorities] to be viewed as germane when weighing the import of any proposed alteration in zoning law. Rather than detailing misinformation provided by Kline/Peacock, it is viewed as preferable to place a definitive knowledge-base onto “paper.” They cannot truly claim to have “heard” their constituents if they choose to remain mute. Thus, behavior born of the Tea Party Movement may need to be birthed within Abington! [Should not private citizens be able to organize a public meeting @ the Township Building?} One rhetorical-point that was achieved during mini-colloquy @ the Planning Commission meeting [#2] was that it was generally accepted that developers would be able to accumulate sufficient bonus-points to be able to max-out on the specifications within the zoning law; indeed, the term “mid-rise” [characterizing 75’-tall buildings] became the consensus-norm. We are to become inured of buildings that are only set-back from the street by 10’ sidewalks?
During the Town Hall, RMCA-President [Ms. Linda Rubin] remained mute, thus choosing not to clarify why she had cleansed her website of factual data duly submitted by a member. She also, therefore, did not rise to defend why her survey did not include the capacity for a member to vote in favor of not changing current law. And, along with Kline/Peacock, exploration was consistently absent regarding any alternative beyond changing R-1 to PB.
For more than a year, my focus has been on the T-Intersection @ the RR-Bridge; it seems, however, that this problem is recognized on the way to being ignored. “Relief” is not to be forthcoming, for congestion can only become enhanced by expanded use of tall-structures [for both businesses and residents] absent any mandatory green-space preservation.
Conveying a Crash-Course – How This Memo Meshes Facts & Opinions
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The database regarding this newly-sprouted controversy has become so extensive that it is desirable to generate a bullet-point summary of the key-points that must be appreciated; explanatory sentences supplement the concerns raised in each realm of inquiry. Some may find emphasized words to be distracting but [believe it or not] the goal has been brevity. The daunting [63-page] length of this memo allows for it to be appreciated at various levels, time-permitting and interest-tolerating. For example, this inquiry often hyperlinks directly to primary-sources that, themselves, may be worthy of more extensive analysis [nor or later].
Generically, the controversies relate to substance [the details in the Ordinance] and process [the absence of public-input, the hearsay attorney-input, the silence of the Civic Association]; other concerns relate to what transpired @ the Town Meeting hosted by the commissioners who are advocates for this project [having forsaken roles of “representative”/”delegate”…as per Burke [http://press-pubs.uchicago.edu/founders/documents/v1ch13s7.html].
Regarding substance, I generated a series of focused-questions regarding each clause in the Ordinance [http://www.abington.org/newspage/downloads/bsc%20redev%20litig.pdf]—which was said to be directly derivative of the Township’s 2007 Comprehensive Plan [http://abington.org/code/Comp%20Plan%202007_files/comp%20plan%20072707.pdf]; after assessing the prompt Kline-response thereto [which was gratifying in-and-of-itself], simple-declarative-sentences were reformulated, yielding enhanced concerns with both the local and Abington-wide import of what was to be adopted urgently, absent due process.
Regarding process, the only public-input that was entertained [during the past two months, after the document was released following closed-meetings with unknown individuals] was permitted during two meetings of the Planning Commission; all comments were both unambiguously critical and comprised of concerns [notably traffic-congestion related] that were confessed to have been persuasive by the panel-members [including the Chair].
This memo actually expands upon its predecessors while integrating key-components thereof [for example, supplanting the initial Kline-queries by an annotated presentation of his input] and the reader [advisedly] is referred to the Rydal-Meadowbrook Civic Association website [http://rmcivic.com/] for what must be read as a skewed presentation of this controversy. Of-interest are both the polling-data [1/11 responders endorsed the Ordinance, despite a mailer that had been sent to all members a fortnight prior] and the absence of blogging [perhaps because my input—on each relevant page—and that of at least one other person were not posted]; by information and
belief, this purging occurred following a directive from the RMCA’s President [Linda Rubin], who has failed even to call a membership-meeting. Otherwise, there has been absolutely no additional information provided by Abington.
The information that is to be provided has been reformatted to maximize its palatability, but no essential-points have been omitted in the process; if anyone finds something that was, this information will be highlighted promptly in any future distribution regarding this issue. Specifically, excerpts are provided to minimize redundancy, but every effort has been made to retain the “feel” of what had been distributed throughout the past few weeks.
Ordinance-Based Queries
Robert B. Sklaroff, M.D.Medical Oncology/Hematology Telephone: (215) 333-4900
To: Commissioner Steven Kline – Ward 1Re: Baederwood Shopping Center Proposal – Focused Queries - I
First, to recap, my initial response was corroborated after review of your prompt-efforts; problems persist, but the whole effort appears more resolvable, now, simply because of what you have accomplished this-a.m. I’ll still want to weigh what is to be provided by week’s end by the Township [plus the “Standards” that were initially felt to portend generation of a “II” memo] but, for now, I will try to consolidate the issues [again, inviting comments from all recipients of this e-mail “exchange”…a process that the RMCA SHOULD have facilitated].
This was what I reflexly circulated, if for no other reason than to respond in-kind to your overall approach to your “openness” responsibilities. You KNOW how much I relish the “freedom-of-speech” and “communication” concepts, wherever they may lead….
This is FANTASTIC! [Although I haven’t read it, yet, the speed/depth thereof is indicative of commitment/knowledge.] I daresay this information should be disseminated [a process that I may be facilitating, here], for it is far more useful [probably,
pending review, simply due to its length and—after skimming, a bit—noting that it’s well-written] than the outline-handout that was provided @ the Town Meeting. Without elaborating, the side-by-side comparisons [on the “Highlights” and “Comparison” pages] are dwarfed by the queries you have apparently addressed. Although I note you don’t want to get into a back-and-forth, I anticipate providing a consolidated approach [using the Greek approach of “analysis→synthesis”] ASAP.
I insert responses/plans @ each juncture, again lamenting the last-minute nature of these exchanges [as reflected in the fact that only eleven people responded to the RMCA polling]. {Minor formatting changes/edits have been made, as prompted by Microsoft Word.}
The Proposed Ordinance
Because “the devil is in the details,” the concern raised by proponents of the new Ordinance —that the current one is flawed—is emblematic of their enhancement of legal ambiguity. When it is not ceding-rights to Brandolini, it is using terms that are clearly discretionary and phraseology that is not tethered to authorized sources. Indeed, its introduction fails to recognize that there is a 10th goal of any development plan, namely, to recognize the need to retain the residential character of Abington; this omission discolors the rest of the effort. It also “adopts by reference” (internally/externally) in a “circular” fashion, and it fails to cite authorities as sources for what seem to be arbitrary designations; lacking are cross-walks that would allow the public to identify “before/after” specifics that would supervene. The above statement is your personal opinion [perhaps] and is not based in any factual conclusions [to be determined]. Your unfamiliarity, and most people’s, with zoning and the process is the basis for some of the confusion and uncertainty. You implied in one of your comments in the original e-mail (which I deleted for the simple reason to shorten the overall e-mail and not corroborate the information by replying to it intact) that this decision was being “Delegated”. This statement is completely false and without basis. The Board hired consultants to produce analysis of the situation for our evaluation and decision. [My concern was related to the dangers of “adoption by reference” as opposed to performing a due-diligence review of primary data/documentation] Most, if not all, of the Board was engaged in this process and has come to the conclusion, after careful consideration and sometimes second guessing and independent research on the conclusions, to determine that this course of action was the in the best interest of the township. [I have no reason to doubt the contents of these collegial interactions but, again, my focus is on the information provided…and where it leads.]
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Remember, as it was thoroughly explained to more than forty attendees at our Community Meeting on Thursday 12/16/10 of which most complimented us on the effort afterwards, that this solution to this legal challenge puts in-place an ordinance that caps residential density at a lower amount, on 18.9 acres, than that already afforded the developer on the just the front 10 acres currently zoned PB (Planned Business). Also being that there is little to no restraint on the maximum square footage of commercial space the mere fact that the new FTD Ordinance caps this square footage is a huge step in the right direction. These factors coupled with the Conditional Use process, giving the township a hammer to dictate the specifics of how the requirements of the FTD Ordinance is implemented, and avoiding litigation, which by many accounts is seen as having a very small change of success due to current legal precedent and conditions and saving the taxpayers hundreds of thousands of dollars in the process, is clearly (by my account) looking after the best interest of the township and our neighborhood. [These talking-points are noted, but require parsing. You propose—in-between the lines—the possibility that a win-win will emerge, but I’m concerned with whether the Township is adequately protected. An apt metaphor—from the perspective of the Conservatives—is whether the legislation perpetuating the “Bush/Obama Tax-Cuts” would have been more “favorable” had a “compromise” been delayed until 2011. Without offering an opinion regarding the metaphor, the key-question is whether the arguments you raise suffice when confronted with the wholesale conversion of Abington into a township that may invite mid-rise developments along the RR-trax that slice through these suburbs. Yes, it is true that Brandolini could build in the front already (a point you made when we chatted last year in the dental office and when you reiterated it @ Chili’s during {someone else}’s meeting). But one wonders why they are pushing for more (MUCH more) via this legal gambit…and whether the Township should allow itself to become complicit in the process. What you convey is that the Township has not been passive, and this is quite helpful when determining if this is the “right direction.”
Note that I adopt a dismissive attitude towards the threat of litigation because it is preferable to focus primarily on what is best for Abington…and then proceed accordingly. A key-concern is whether the residential/commercial “caps” constitute true “caps”…or whether they reflect what Brandolini would have done anyway to maximize-$$$.
Similarly, whether the newly-established standards constitute a “hammer” is unclear, inasmuch as they may actually include sufficiently ambiguous language to liberate any putative Developer to run rough-shot over any Township-generated critique/advice/input. The litigation should be handle-
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able by our salaried solicitor…and I’m awaiting cogent replies to my tentative assessment that the Upper Merion case SUPPORTS current law.]
*
“34(a)”—Is there any potential “office use” that has been excluded? Refer to section 706.F of the existing ordinance to see the Office Uses not included in this ordinance [Absent your providing the data, I’ll have to tap onto the shoulder of Township employees.]
“34(b)”—Is there any potential “commercial use” that has been excluded? Refer to section 706.C of the existing ordinance to see the Commercial Uses not included in this ordinance [Absent your providing the data, I’ll have to tap onto the shoulder of Township employees.]
“34(c)”—Is there any potential “residential use” [other than single-family or age-restricted] that has been excluded? Refer to section 706.H of the existing ordinance to see the Residential Uses not included in this ordinance [Absent your providing the data, I’ll have to tap onto the shoulder of Township employees.]
“34(d)”—Is there any potential “community use” that has been excluded? And is there any mandate that such potential use be provided? None mandated - Refer to section 706.E of the existing ordinance to see the Community Service Uses not included in this ordinance [Absent your providing the data, I’ll have to tap onto the shoulder of Township employees.]
“35”—Is there any information, in the realm of traffic volume analysis, that can calculate the effect of a car-share facility? There is a traffic engineer’s reference guide (ITI or ITE?) which contains standard traffic volume calculations. Uses are constantly added and/or updated by real data shared among the industry. I am not sure if car sharing facilities have been included since they are a relatively new use. [Absent your providing the data from ITI/ITE (and anyone’s analysis thereof), I’ll have to tap onto the shoulder of Township employees; I suspect that your uncertainty will serve as an endpoint for some people, but I worry that a rent-a-car “magnet” will attract additional/definable congestion/volume, enhancing the need for a proper/complete/contemporary traffic-study BEFORE OK’ing any such Ordinance.]
“504.1”—Does the Township’s Comprehensive Plan call for each of the listed-purposes of the FTD? Specifically, does it call for construction of a Town Center that creates enhanced density and residential diversity? And is there not a consideration that the residential character of the Township be maintained? Yes, there are references to all these items (character, town
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center & density) contained in the most recent Comp Plan and OYR Corridor Improvement Plan. One misleading fact is that any residential density is an increase in density. This is not true. Most of the areas, especially along OYR already have the right to similar density as we discussed in our Community Meeting on 12/16/10 within the PB (Planned Business) District. Most language contained in the Comp Plan and OYR Corridor Improvement Plan discusses this to be done responsibly which we believe the FTD is a huge step forward as compared to the lack of control that exists in the current ordinance adopted in 1996. [Again, it will be necessary to note how these documents presage the FTD.]
“504.2”—Is there a reference-citation for how each of these definitions were generated? Most are definition generated by commonly used terminology used in zoning ordinance writing. Others have been vetted by the township’s solicitor, land use attorney and Montgomery County Planning Commission. [As long as the citation has been given on at least one occasion, vide infra, and as long as you added another, vide supra, someone should be able to identify how these definitions were composed…for some may differ among those who are engaged in this profession—lawyers, developers, land-use experts—and studying such comparisons/contrasts may yield unexpected insights into what is being intended.]
“504.3(A)”—If the minimum lot area is one acre [§ 504.5(A.)], how can any site be used “by right” and/or how can a single-use building be permitted, simply by being located on a lot that is less than an acre in size? What is the purpose of referencing “C-34” (apartment Building/Multiplex Unit) as subsection #1? First, C-34 is the newly created Transit Oriented Development use not Apartment Building/Multiplex Unit use (which is H-1 under the existing ordinance). C-34 is created in the first part of the ordinance and, by virtue of the language in the first part, it is creating this use and is adding it to the existing ordinance under Section VII. Section 706. Second, the only allowable uses (other than accessory uses) under the FTD are C-34 TOD and C-9 Drive-in Facility for C-3 (Bank) and C-26 (Retail Store). C-9 is not allowed on properties under 1 acre. C-34 is allowed on properties under an acre, but the ordinance recognizes that, because sites smaller than that having a mixture of uses may be onerous (even though the C-34 use is designed to incorporate a mixture of uses), a single-use building is allowable. This could have been handled by listing another set of acceptable uses for properties under an acre, but that would have made the ordinance confusing. [Recalling discussion of this point during the Planning Commission hearing, it remains unclear how a lot that is less than an acre can be accommodated by this Ordinance.]
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“504.3(B)”—Why should anything be allowed “by right”? Should not the applicant provide at the very least a footprint as to what is intended to be constructed, so that decision-makers can visualize/conceptualize what is envisioned/proposed? This question shows a lack of understanding regarding zoning. Would you want your house and any changes to it to be subject to decisions made by a board of elected officials or planner? [Is not that the reason why people apply for building permits before the Zoning Commission, the decisions of which are ultimately sustained by the Commissioners?] There cannot be two standards, as everyone’s property rights are equal (commercial and residential). [understood] Municipalities use conditional use processes to control the development of a property in accordance with a specific vision plan and/or need. However we need, somewhere in the ordinance, to provide for a use by right; otherwise the ordinance would be determined to be too restrictive and in violation of one’s property rights. [Not understood; I guess what you are saying is that SOMETHNG must be stated, to corroborate awareness of basic-rights, but it is unclear why…absent an EXAMPLE of what may be averred to be “too restrictive.”] We did this in the least impacting way by allowing the C-34 use by right for properties under one acre. [Understood, from your perspective, although the existence of this entity remains unclear; is it in-any-way related to the “Section [P]” controversy regarding condos? I guess you consider this not to be a significant point, but I note that you finessed addressing the “footprint” issue supra, obviating the capacity to dissolve uncertainty, instantaneously.]
“504.3(C)”—Why should anything be allowed “conditionally”? Should not the applicant provide at the very least a footprint as to what is intended to be constructed, so that decision-makers can visualize/conceptualize what is envisioned/proposed? The very point of the Conditional Use process, as we explained over-and-over during our Community Meeting which you attended, was for the municipality to have a development plan presented and for staff, board and public to weigh-in on the development plan and potential imposed conditions, within the realm of the ordinance’s regulations, before the property owner/developer can proceed with any land development process. The Conditional Use process gives the township and public maximum control in land use without overstepping its bounds and infringing on someone’s property rights. Under the PB (Planned Business District) there is no Conditional Use process; therefore, there is very little control over a developer’s application other than the dimensional and special regulations contained in an ordinance which contains loopholes and contradictions. [As attractive as this procedural model is portrayed to be, the problem is that you have not specified the problems with the current ordinance that would preclude its being applied at the most effective levels of the approval process; appreciating these defects would go a long way towards convincing the baseline-skeptic that any alteration of current ordinances is needed, now or in the future. Finally, it is unclear what
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“maximal control” would be harbored by the Township and/or the public, when the details of the applied-regs are baseline-generous to the Developers.]
“504.3(D)”—Why should anything be allowed “conditionally”? Should not the applicant provide at the very least a footprint as to what is intended to be constructed, so that decision-makers can visualize/conceptualize what is envisioned/proposed? Noting that one of the components thereof is a “drive-in facility” [for banks and retail establishments, vide supra], should not the necessarily enhanced traffic be subject to traffic-study projections generated prior to approval, rather than allowing for a “bait and switch” to transpire? Asking for a traffic study prior to approval of a Conditional Use can be a condition imposed. See my answer above and understand that if the development plan includes a drive-in for a bank and/or retail store the municipality could impose conditions on this use. [If this be true, then why are you not recommending performance of a traffic study in this instance? Everyone agrees…and then adopts a dismissive posture akin to “tossing up one’s hands”…when the CURRENT congestion is noted, but no one wants to accept what YOU accepted—after focused/follow-up queries, over Peacock’s objections—namely, that the Upper Merion case allows for reasonable application of “police powers” and that these powers include “public safety” and that “public safety” entails being able to ensure that emergency vehicles can be dispatched to—and arrive at—any locale within a reasonable time-frame, certainly not to be enhanced by any avoidable impediments.]
“504.3(E)”—Why would restaurants/take-outs be excluded as “drive-in facilities”? Why would automotive sales and/or rental agencies be excluded (even if the cars might be located elsewhere)? Why would a small [enclosed] shopping mall be excluded? By excluding these types of uses we feel we are fostering a more upscale commercial development project.
We also want to promote the pedestrian in this ordinance and these uses are counterproductive to these idea. Car sales and rental agencies are also not desired because they promote the car as opposed to the pedestrian and we are trying to find a balance. The Shopping Mall use is not included because the use regulations dictate that the property has to be a minimum of 15 acres and cannot include more than 20% of gross floor area for office space, no residential space is allowed. [If this be the case, then why accommodate car-share facilities?]
“504.4(A)”— If the minimum lot area is one acre [§ 504.5(A.)], how can any site be less than an acre? If this FTD ordinance is expanded to other properties (no plan for this currently exists although the Planning Commission discussed it) that are less than acre this ordinance would still apply on these non-conforming (in lot area) properties. [This is what had
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been expected and, therefore, illustrates why the ENTIRE TOWNSHIP should be invited TO BECOME INVOLVED IN THIS DISCUSSION BEFORE THE FTD IS OK’ED!]
“504.4(B)”—Are there any other buildings in the region—other than those in Rydal Park—that befit this 80/20-split, predictably yielding a dominant model comprised of a five-story [mid-rise, 75’] building? No, the current zoning ordinance does not refer to a mixture of use in this way anywhere in the 1996 ordinance. This is a concept used in current zoning models recognizing the advantages to mixing uses as a way to reduce traffic flows (over the long term) and maximize tax revenues in a more compact area. [Therefore, notwithstanding what Mr. Kennedy said during the Planning Commission Hearing, the FTD introduces this height immediately to this area (and, by extension, vide supra) to the entire Township (potentially).]
“504.5(A)”—If the minimum-size is an acre, then why do the subsequent grid [(D)] and other clauses apply to building-heights tethered to a lot-size that is less than an acre? See comments associated with 504.4(A). [This again illustrates why the potential-impact of the FTD should be assessed by the ENTIRE Township citizenry, affording all of the voters to “weigh in” regarding how they would perceive the impact thereof within their communities.]
“504.5(B)”—What is to apply if an otherwise compliant lot doesn’t have at least 100’ of frontage? The property owner would need to apply for a zoning variance with the Zoning Hearing Board for lot frontage. [If this be the case, there appears to be no reason why any Developer would want to submit such an application and, per your perspective, subject his/her planning to the additional constraints mandated by the FTD-standards.]
“504.5(C)”—What is the citation of a standard reference that would justify the initial description of this being a “district standard” [thereby applicable throughout the Township] setting-up comparable development elsewhere? For increased building heights, why are there no enhanced setbacks for frontage (as well as for each side and rear yard)? Within the Conditional Use process the municipality could require a stepping back of the building height for building fronting on The Fairway (street) or new Main Access drives. As far as side and rear setback, the buildings are required to be set an additional 1 foot off of side and rear property lines for every foot higher a building is above the 55’. [You didn’t answer the specific question (“citation of a standard”) in the first question, noting that it was indeed prescient when predicting the potential for these criteria to be applied Township-wide. Furthermore, although you POSTULATE that Abington “could require a stepping back,” no such specification is explicitly in the Ordinance that would empower this move.
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And there is no cognizable “on the ground” [no pun intended] import of defining what would be within a “property line” when everything to be constructed (and to be contiguous) is internal (i.e., within the FTD) from the perspective of anyone assessing aesthetics.]
“504.5(D)”—Why would 75% of the buildings have to be at least 20’ in height? This is to ensure that the building facing The Fairway (street) and a Main Access Drive presents a certain scale which affords some architectural detailing. [This constitutes a non sequitur.]
“504.5(E)”—How does this “impervious paving” section comport with EPA-criteria, and how semi-pervious paving might be invoked to evade this requirement? The EPA has nothing to do with this requirement as far as I know. Under the PA DEP any redevelopment of this site will require the developer to conform with all storm water management standards. New DEP regulations will require them to design storm water management facilities as if the property was all pervious. No credits. [You didn’t answer the question which, according to what I have been told, is crucial to the “health and safety” within the area and (per the Upper Merion case) must be weighed before the FTD is OK’ed (recalling the storm-water drainage concerns that have been extensively documented).]
“504.5(F)”—Does this mean that a six (6)-story building would be OK if only the first floor were used for business-purposes? No, there is no correlation to your question and these regulations. This means that there can be a maximum commercial space square footage equal to 20% of the total lot area (18.9 acres equals 823,284 sq.ft. and 20% is 164,656 maximum commercial square footage allowable under the base density requirements). [You are failing to recognize that the total surface-area for both commercial/residential sites— in this mixed-use situation—would have to be added. Alternatively, he may be suggesting that each building must be one-or-the-other, thereby defeating the “Town Center” concept.]
“504.5(G)”—Is there any “norm” for the MRD in a mixed-use zoning region? Yes, most TOD and/or mixed-use zoning discuss densities greater than what has been included in this ordinance. Commissioner Peacock and I advocated for reducing the density to the lowest number possible. I cannot recall exact numbers since I do not have the text in front of me but most TOD and MU zoning have residential density at 15 DU/Ac as a minimum. [Assuming, therefore, that you have reviewed the document for which you do not “have the text in front of me,” it should not be difficult for you to unearth it (or ask others to help).].“504.6(A)”—Is “primary façade” defined by the location of the main entrance? No, primary facades are the facades, in commercial development, that present themselves to the public. [One would think that
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the way the “presentation” occurs is determined by the locale of the front-door, even when this entrance might be situated on the corner of a property; notably, this definition should be provided, for the “presentation” of the complex would be viewed differently, depending upon whether it is “inward” or “outward” in its architecture.]
“504.6(B)”—Is there any constraint placed upon a “registered” lot? Is there any “recycling” limit to the “15%-expansion” limit, whereby (for example) application can be requested for additional expansion? Sites that are re-zoned to the FTD ordinance that do not meet the requirements and standards of the FTD ordinance upon its enactment must register with the township.
Since this FTD ordinance will only apply to the Baederwood S.C. 18.9 acres, Brandolini would only be able to expand the square footage of the total gross floor area currently on site by approximately 19,500 sq.ft. (15% of 130,000 existing square footage). Anything above this would require the property owner to develop under all requirements under the FTD regardless of whether it is registered. [Therefore, in answer to the first question, there appears to be NO constraint upon a “registered” lot. And, regarding the second question, there appears to be the potential to “recycle” these stated-constraints.]
“504.6(C)”—Does this clause solely apply to “504.6(B)? Yes [This enhances concerns supra.]
“504.6(D)”—Is there any standard that would apply [beyond mindreading] when adjudging whether walking has been made “as easy as possible”? Conditional Use process. [There are no standards in this proposed Ordinance that could be applied within any such process.]
“504.6(E)”—How can anything forcibly “support” a [currently-unknown] “future” effort? Is there any standard that would apply [beyond mindreading] when adjudging whether anything has been “improved”? Yes, the Comp Plan and OYR Corridor Improvement plan reference these future goals. [Absent specification of the specific region that is to be “supported,” a Developer could define it in a self-reinforcing fashion and then challenge the Township to demonstrate otherwise. And the criteria that are to be applied herein should be specified from whatever documents are being adopted-by-reference.]
“504.6(F)”—Why would there be any desire to restrict the number of bicycles to “10” at a key transit site? There isn’t, it is a minimum. [This is an assertion that does not comport with the proposed Ordinance (“saying it
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so doesn’t make it so”), inasmuch as the bike-racks must be separated by 100’, and there is NO specification that this constitutes a “minimum.”]
“504.6(G)”—Why is there reference to a nonspecified ‘graph, [706(H)]? 706.H is a listing of all residential uses in the current ordinance that need to have the screening required under the FTD ordinance. [Again, adoption-by-reference to a document that is not excerpted raises unease that other information in this (absent) document may also be (silently) applied.]
“504.6(H)”—Why is this term used without having been specified either in formalistic and lay lingo, as is available [http://www.nyc.gov/html/dob/downloads/pdf/curbcuts-.pdf]? Curb Cuts is a standard definition recognized by planning and zoning as a driveway or other access point from a public street to a property. [If this be the case, it should be noted in the “definitions” section of the proposed Ordinance, to eliminate subsequent ambiguity.]
“504.6(I)”—Does not use of the phrase “whenever possible” render this section impotent? “Wherever Possible” (as the ordinance reads not “Whenever Possible”) gives the township a regulation that could be used during the conditional use process. [therefore, the applicability of the term “whenever possible” is subject to interpretation, not specification.]
“504.6(J)”—Should not any mandated traffic study [such as one that would be mandated to rectify conflicts between those of 2007 & 2009] have been completed prior to any final decision-making voting? Does not the alternative allow for a developer to devote a few bucks to remedying the cosmesis of a non-vital intersection, rather than rectifying known-problems (e.g., the T-Intersection @ the RR-Bridge, Susquehanna Road/Washington Lane)? As was explained during the Community Meeting, traffic concerns are not a means to deny a property of their use of their property especially if the subject property (as Baederwood S.C. does) has the rights to similar or more density than what is proposed. [This is a legal conclusion that is not supported either by the Upper Merion case nor by statute; traffic-concerns are germane currently, due to the inherent-restated “Police Power” that the Township is responsible for exercising. Indeed, it has been repeatedly been noted that the density-variable would supposedly be ameliorated by some unspecified intervention, and the public (and the Township) should want to know NOW what this proposed-remedy is to be. Ultimately, there is no denial of Brandolini’s “use of their property” when recognized issues are mandated to be remedied, based upon the Township’s exertion of citizens’ rights.] They will be required to produce a traffic study that will show the impact of their proposed development on the surrounding roadways and intersections which will be analyzed by the township. [If this is not to be done prior to the proposed approval of the Ordinance—thus, subject to
scrutiny—it would be useless from the perspective of maintaining public safety.] If there are degradations of a roadway or intersection service they will need to either rectify these problems or down-scale their development. [If this is not to be done prior to the proposed approval of the Ordinance—thus, subject to scrutiny—it would be useless from the perspective of maintaining public safety.] They will, however, not be required to fix intersection or be limited by intersections that currently provide a low level of service like the Rydal Train Bridge. [If this constraint were recognized as necessary to preserve the public’s health and safety, they could indeed be required to do so, particularly because approval of the overall project must accommodate these key-issues (realistically, as per universally-articulated comments…including from the Planning Commission and yourself).] This is not a decision the township has control over but rather precedent set by land development case after land development case. [The Township can indeed exert its rights and responsibilities on behalf of the citizenry, even if Brandolini were to challenge efforts to ensure “control” over this concern were not operationally/inappropriately ceded to it.]
“504.6(K)”—Why should it be permissible for street-blockage to be caused (by a van or by a single-unit truck), rather than mandating the creation of a layout that--just as in Disneyworld, decades ago--ensures supply-mechanisms are made invisible to the circulating-public? This refers to short-term deliveries such as UPS, FedEx and WB Mason type deliveries. [Yet, absent specification of what entails “short-term,” the planners could exceed expectations, thereby causing the street-blockage that most would want not to be viewed as permissible.]
“504.6(L)”—Why is not the content of public-space specified, such as the mandate that an “art” component be specified [as in Society Hill, for example]? The specific requirements of the Public Space are indicated in 504.8.D and there is a bonus item for Public Space amenities. [504.8.D.2 does NOT indeed specify the content of public-spaces, including art.]
“504.6(M)”—Inasmuch as a document is cited [Shared Parking Second Edition, https://netforum.uli.org/eweb/DynamicPage.aspx?site=ULIMC&Action=Add&ObjectKeyFrom=1A83491A-9853-4C87-86A4-F7D95601C2E2&WebCode=ProdDetailAdd&-DoNotSave=yes&ParentObject=CentralizedOrderEntry&ParentDataObject=Invoice%20Detail&ivd_formkey=69202792-63d7-4ba2-bf4e-a0da41270555&ivd_cst_key=00000000-0000-0000-0000-000000000000&ivd_prc_prd_key=965E99C4-5A60-441A-9DFE-78DEFBC0ABB3]—a phenomenon that does not, unfortunately, pervade this proposed Ordinance—
does the proposed Ordinance comply with all facets of the applicable models in this monograph [“the study now includes new parking ratios that
take into account trends in visits to restaurants and cineplexes, and shopping and office trips. A thorough discussion of the methodology, findings, and derivation of these values provides a solid foundation for the validity of shared parking and the number of spaces recommended for various land use mixes”]? In addition, does the proposed Ordinance comport with other on-point “Urban Land Institute” reports, such as that which focuses parking-places [Dimensions of Parking, Fifth Edition, https://netforum.uli.org/eWeb/DynamicPage.aspx?-Action=Add&ObjectKeyFrom=1A83491A-9853-4C87-86A4-F7D95601C2E2&WebCode-=ProdDetailAdd&DoNotSave=yes&ParentObject=CentralizedOrderEntry&ParentDataObject=Invoice Detail&ivd_formkey=69202792-63d7-4ba2-bf4e-a0da41270555&ivd_cst_key=-427d8494-4464-46fd-b334-398b82484b73&ivd_prc_prd_key=AC3B3FD5-31C2-4377-9E6B-D055B573BADA]? The standards of ULI have been vetted and if the true outcome of these types of mixed-use developments (as has been documented) is a reduction of vehicular traffic, then the reduction of parking would equate to a reduction (potentially) of impervious coverage. [Thus, “if the true outcome of these types of mixed-use developments…is NOT a reduction of vehicular traffic,” then it would be impossible to apply any such specific criteria in a retroactive fashion…for the complex would already have been built as had been OK’ed. Therefore, this proposed Ordinance creates the very type of ambiguity that it is purported to remedy, thereby affording Developers undeserved rights.]
“504.6(N)”—Why doesn’t the proposed Ordinance address [and attempt to rectify] potential conflict between new roadways, permissible parallel-parking and presumably-desirable bicycling-lanes, in light of the purported “green-ness” of this project, as others have done [http://www.humantransport.org/bicycledriving/library/door_zone.pdf]?. On-street parking has been shown to be an effective traffic calming measure and is the main reason this has been added. [A reference for what “has been shown” is needed, for this constitutes a counter-intuitive assertion…that fails to address each of the criteria in the question raised. Specifically, it is simply not believable that the provision of a few parallel-parking spots would alleviate these recognized/specific “potential conflicts” (including bicycling-lanes).]
“504.6(O)”—Why is there another apparently-extraneous self-referential “loop”? No loop, 504.8 deals with all of the design requirements for the specifically stated items. [As noted with regard to the open-space concern, 504.8 is demonstrably incomplete…even before its tenets have been compared/contrasted with existing standards in each of these realms. Therefore, this [“self-referential ‘loop’ “] is indeed a rhetorical problem with legal import.]
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“504.6(P)”—Are there any instances when this subdivision process [and the four consequent criteria, such as cross-easements] must be subject to Township approval? It is all subject to township approval through staff and the solicitor. Any zoning or land development affected by these subdivisions would require all of the normal public township approval processes. [The problem, here, is that “Township approval” can range from Commissioner-level to Solicitor-level to “registration,” and each should be specified with reference to precedent.]
“504.6(Q)”—Noting exemptions articulated elsewhere, which provisions of the Township’s previously-approved planning manuals are not “applicable”? Sure they do. These are ordinance enacted by the township and are the regulating laws of the township. We are not going to rewrite, verbatim, these ordinances and regulations for every governing zoning district. That would be ludicrous. [This query did not request a rewrite; rather it inquired as to which are/aren’t applicable. Thus, the specific question was side-stepped.]
“504.6(R)”—Why is this clause needed, unless it’s being inserted to allow somehow for NON-compliance under “phased” circumstances, notwithstanding what appears to be the intent of this clause? This allows the developer to phase the construction of a conditional use approved development plan as long as the phasing plan is submitted with the conditional use application. Any of the phases would need to comply with the conditions imposed during the conditional use approval and the zoning district regardless of the time it is constructed. There is no ability for “Non-Compliance”. [Does not “Rydal Waters” illustrate the inherent dangers of allowing for phasing…which risks later/sudden abandonment?]
“504.7”—Why has a point-system been composed that is so transparently “gamed” to allow the Developer EASILY to explode previously-specified limits [on height, impervious cover, non-residential floor area, and residential units], maxing-out, for example, the ability to construct mid-rises [75’ tall = 5+ stories, probably]? Can the following counter-”game”—which easily generates the required eight {8} points, and then some—be contravened realistically (allowing for some expressive-sarcasm to creep into the provided-rhetoric)? I disagree with your assessment of the Bonus Point system. I weigh the enhancements of the bonus items on the desired outcome generated by this ordinance and feel the items the developer gains are worth the enhancements. [You miss the point; these criteria are each easily achieved and, therefore, do not truly constitute what could benefit the citizenry. Thus, although you are undoubtedly correct—the enhancements (such as they are) are desirable, they do not measurably impact what would be accomplished WITHOUT this point-system.]
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1. Who could reasonably dispute a claim that “transit amenities” have been provided? {1} Conditional Use. [This is therefore a “judgment” call.]
2. Who could reasonably dispute a claim that “street/landscape amenities” have been constructed? {1} Conditional Use. [“Judgment” again.]
3. Noting the seemingly-desirable facets to this grab-bag, one can easily view this Arborist’s Dream as a big “tease” of what a Developer might deign to give-back; all would be disappointed by the minimally-costly items actually integrated within the project. {0} Would need to be surveyed and documented for consideration by the municipality. [Another “judgment”]
4.-6. Who could reasonably dispute a claim that all that stuff about a linkage with Old York Road is has not been satisfied, for the putative site thereof is obviously apocryphal, and might reasonably be perceived as remaining so for many years. {1 + 2 + 3 = 6} If you had knowledge of the OYR Corridor Improvement Plan you would understand. The points work for one or the other not all (depending on how they achieve the conformance of the bonus items they would get 1 or 2 or 3 points not all if they achieve the 3 point option. {THIS SECTION IS SCRUTINIZED WITHIN DISCUSSION OF THE TOWNSHIP’S MASTER-PLAN, CONTAINED WITHIN A SEPARATE SECTION OF THIS MEMO.} [When I read the OYR report, months ago, I noted ambiguity; even were “3” points eliminated, the necessary threshold (vide infra) would still be easily traversed after demonstration of compliance with just the first seven criteria; this assertion would not be easily challenged. Therefore, here (as elsewhere) the specific citation from this OYR Plan should be provided, again to preclude ambiguity that begets problems.]
7. Who could reasonably dispute a claim that non-cinderblock has been predominantly used on facades? {2} Conditional Use. [again, a “gimme.”]
{Already @ {10} points, here is facetious critique of the remaining items....}
8. Does this mean we are approving construction of a windmill farm? Whatever is proposed would need to be shown
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and considered during the conditional use process. [Thus, the possibility of a windmill farm exists.]
9.-10. Does this mean that the Developer would not otherwise WANT to provide structured-parking to accommodate both the residents and the public? {3 + 2 = 5} That’s correct. See above about the point system. It is one or the other not both. [It could be “both,” merely be sacrificing a few extraneous bonus-points, inasmuch as there is no prohibition elsewhere.]
11. Right, redesigning the intersection of the Fairway with Rydal/Valley Road could be claimed as an improvement...with an impact on traffic-flow that would be de-minimus. {3} Outside of the requirements of their traffic study. [But this is not “outside of the requirements of OUR traffic study”!]
12.-13. “Hear Ye, Year Ye. Slap on a green-roof for a few bucks and earn Development Points worth mega-bucks!” {3} I disagree with your assessment that this is a minimal accommodation. These roofs are expensive to install and to maintain. The benefits have been shown to be huge. [The view that something is “minimal” is based on known-data, such as what has been done @ the library; thus, the Township should be able to generate a report that would price-out this particular criterion, thereby settling the issue as to what the qualitative term “expensive” connotes in quantitative terms.]
14. It is my understanding that storm-water management has been remiss throughout the Township and, thus, this type of criterion should be converted into a mandate. {3} This is recycling the water not just meeting the requirements of PA DEP. Recycling on-site would reduce the volume sent to either the sewer treatment plant (if it is grey water) or watershed (if it is storm water). [Therefore, there is a linkage between this criterion and the aforementioned EPA standards, thereby rendering it to the advantage of the Township to specify what would be necessary to achieve additional “points” beyond what would already be mandated by existing federal statute(s).
“504.8”—How do these myriad design-standards compare/contrast with existing standards? How do the specifics thereof comport with those in any available standard-reference(s)? Has anyone composed a simplified cross-walk between all existing/proposed criteria? Most ordinances in the township have no design standards. Not only does this give standards for a more desirable development it also gives the township the means to affect
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the design through the conditional use process. [Again, the specific questions have been side-stepped, individually and in the aggregate. Although “most ordinances in the township have no design standards,” the specific query was tethered to ID’ing those that have them. Therefore, it is legit to inquire as to how the “new” comports with the “old,” particularly when such data could be provided to the public following preparation of a cross-walk.]
“Section 4”—Why is the rationale for liberalization of signage-regulations unspecified? I believe the ordinances sign requirements are properly applicable to this type of development. [Your judgment notwithstanding, another cross-walk is needed to confirm/educate.]
“Section 5”—What are the unspecified “permitted accessory uses” that are to be created? “permitted accessory uses” are specific to the individual zoning district and you would need to see which are included in each district. [It is unclear what would apply here.]
“Section “6”—Why is only one parking-place mandated per 250 sq-ft leased [noting that one could postulate that a small shop (of, perhaps, 1000 sq-ft) would need to accommodate simultaneously a group/gaggle of customers (some/most who had arrived in autos)]? These are standards that have been established through data collection by land planning associations and traffic engineering associations. This ratio is commonly used today and has provided the proper amount of parking for a site containing a mixture of uses and has netted a reduction in impervious coverage require for older style parking ratios. [A reference is needed—only one would suffice—to support what appears to be unrealistic and false; scrutiny must be trained on qualifiers, for ignoring them permits sweeping statements to survive unchallenged. Again, this is the key-moment when uncertainty needs rectification, prior to the time when the Township cedes rights unnecessarily to the Developer.]
“Section “7”—Why is an obviously-legal catchall included—overtly threatening to invalidate any potential application of prior law to this project—absent analysis of a cogent cross-walk? This recognizes that the 1996 ordinance is filled with loopholes and contradictions and the township does not want these to compromise this FTD Ordinance. [This ambient allegation has never been buttressed by examples that can be realistically scrutinized; indeed, it seems that each issue that has arisen is “liberally” interpreted by these so-called standards.]
“Section “8”—Why is severability created—undermining the allegedly-cohesive rationale for this effort, which presumably ensures interlock of its individually-composed components—thereby allowing unchallenged facets to become operational if any definable defect exists? I have seen this
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almost ever district regulation in many townships I have worked in. I think it is self-explanatory. [Insertion of severability may be self-explanatory and somewhat ubiquitous, but the focus of the question related to the overall interrelationships that have purportedly been fashioned in this global document…which is to be rammed through the Board without reasonable scrutiny (legal/operational) by the community.]
*Overall, what is most striking is that each answer spurred logical generation of a statement that is potentially-damning…and that all paragraphs in the proposed Ordinance were easily skewered by this rudimentary plug-and-chug analysis. {And no reply has been received following distribution of these concerns to Kline/Peacock…and none seems forthcoming.}
Further, these data dramatically contrast with superficiality within the misleading/incomplete “Town Hall” handout. The nine explanations of the “Highlights of the FTD” are undermined by subsequently-acquired information direct from this Kline-memo. “Conditional use approval” is said to be needed, but this need only comply with the liberalized standards within the FTD, rather than with what might be more stringent in current-law. The “Scope of the Ordinance” is said to apply only to Baederwood, even as it is stated supra [“504.4(A)”] that Township-wide application of these criteria was discussed by the Planning Commission. “Density & Bonus provisions” constitute topic-headings rather than specific criteria that would be portrayed as benefitting the Commonweal, particularly noting how easily these bonus-points would be accrued. Maximum “Building-Height” is stated to be 75’ without revealing that this is unprecedented along the Fairway, thereby creating a mid-rise environment which alters its character. Design” is left undefined/nonspecific, the locale for “Impervious Coverage/Green Space” is not specified [and could be hidden in the rear], the contents of “Public Open Space” are not specified [art, etc.], {citing “Green Space” is redundant}, and mixed-use requirements are not placed into both horizontal/vertical contexts (recalling its “mid-rise” aspects).
Observations [composed on 12/13/2010 as Handout]
I am neither a lawyer nor a city planner, so this cursory review of the capitulation-proposal [noting that it was composed secretly, in collaboration with Brandolini during closed-meetings held throughout 2010...and perhaps earlier?] is itself subject to refinement by those who have a better grasp of current zoning law. The goal is to provide an initial elucidation of what initially strikes the reader; prior study of this dense legalese yielded identification of glaring “black hole” concessions and, thus, a more detailed discussion had been deferred.
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Now, however, in preparation for this week’s double-meetings, it is necessary to articulate specifics that poison the atmosphere, indeed, that strongly suggest that a major effort is being made to effect FUNDAMENTAL CHANGE in our Township [not dissimilar to the orientation of the Democrats on a national level] by importing an urban Philadelphia and injecting a “Town Center” within an already-congested region. I do not believe in extortion, so any suggestion that Brandolini could already invoke current zoning law to effect its goals FALLS FLAT; Kline/Peacock should have demanded that Brandolini release a plan that would comply with what already is extant...so that this could be scrutinized by the public.
With these thoughts in-mind [and knowing that this set of memos is being composed without the luxury of being able to cross-ruff with current zoning law], it is necessary to embark on an effort to help others structure the discussion...and to encourage these two sitting Commissioners to REPLY point-by-point to the concerns raised herein.
{It is CURIOUS the Penn State meeting was scheduled for one day AFTER the Planning Commission meeting, particularly anticipating that the latter half of December constitutes down-time for most people (vacations, celebrations, reunions, etc.). One would have thought Kline/Peacock—engaged in a self-styled “listening tour”—would have hosted a series of Town Hall discussions of all facets of this issue, already, during recent weeks.}
Kline/Peacock appear poised to seek rubber-stamp endorsement of this flawed/faulty/foul creation during the first week of the new year; this level of elitism...when one allows one’s self to experience the feeling of being snookered...is the underlying reason why the arrogance of the national-Democrats was soundly rejected by the voters, last month, in my opinion.
Finally, threaded throughout both the proposed Ordinance and superficial analysis thereof [performed in conjunction with having reviewed the Old York Road Corridor Master-Plan] is the concept that proximity of two RR-stations affords a unique opportunity to perceive this plan in the heart of the Township within a regional context; yet, Kline/Peacock have not called any community-meeting to entertain in-depth discussion of this concern. Therefore, this proposed Ordinance represents a grab-bag for Brandolini, impugning the integrity of its authors; one outcome that cannot be tolerated would be demonstrating any degree of deference to these two sell-outs. If they were sensitive/respectful representatives—truly concerned with the Commonweal., they would have conveyed a desire to entertain public-input by providing a parallel-memo that detailed the proposed CHANGES, so that
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a typical reader could rapidly appreciate the “before/after” effects thereof. They didn’t do it, so I did. This proposed Ordinance is portrayed as derivative of prior strategic-plans, so it is unclear whether any interim “modification” has transpired. This is why “the devil is in the details.”
The introductory phraseology of this proposed Ordinance did not allow for an appreciation of what was, specifically, to be achieved; a stand-alone elucidation-document is usually generated for Congress by staff to accomplish such information-sharing, often containing a cross-walk between existing and proposed specifications. In lieu of wading-into-the-weeds, certain issues illustrate the fundamentals of this nefarious gambit, and glaring is the lack of transparency that creates the very loop-holes that Kline/Peacock claim currently exist. When cases arise on the basis of litigation, a key-concept is to divine “legislative intent”; a key component thereof is an exclusion that otherwise might have been specifically cited.
{Added to this “editorialization” would have to be recognition that the title of this memo [referring to this “I” effort] assumed a subsequent “II” effort would be generated after the acquisition of key-documents (to have been provided within a week’s time, per statute). This latter document has obviously not been composed and, if the Township has its way, it will never be composed prior to the 1/6/2011 Public Hearing, inasmuch as—per a letter from the Township Manager—even the most rudimentary information has been held-up, pending legal/administrative reviews that are to encompass all of the requested data.}
THEREFORE, as one “drills-down,” it is necessary to recognize that this iteration cannot be perceived as definitive, particularly when it is noted that it has evolved dramatically following one simple exchange via the promptly-composed Kline-memo (plus clarification of “P” that was provided during the second meeting of the Planning Commission).
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Kline-Exchange – Without Resolution
From Kline:
The 10 acres where the current shopping center resides can be occupied by 260 units plus with an equal mix of 1 bedroom and 2 bedroom units along with the retail/commercial space as a by right use under PB (Planned Business) zoning district. If Brandolini succeeds in the validity challenge and gets the curative amendment they have requested which extends the PB onto the rear 8.32 acres then they will have the right to build few hundred units in addition to the amount they can build on the front 10 acres. The FTD Ordinance, with all of the bonus computation met, would allow a maximum of 246 units on the entire Baederwood property of 18.8 acres.
Traffic cannot be regulated within a zoning ordinance and is part of the land development process. Regardless, potential traffic issues exist with or without this zoning change because of the allowable density under the current PB District on Brandolini’s property. The FTD Ordinance at least creates density incentives that include improvements to traffic patterns and/or intersections. The time-frame is real and the township has continually asked for and received extensions from Brandolini for these hearings to begin, which allowed us to make progress on how we could deal with this issue.
Commissioner Peacock and I, along with many of our fellow Commissioners, have sat through many meetings over the last few years, where the public was very clear in their concerns, criticisms and desires. WE GOT IT and we used that knowledge within the framework of developing this ordinance. Unfortunately ZERO density is and will not be an option because of the property’s existing rights. Threats regarding my potential re-election will have no bearing on doing what I think is right and what I think is in the best interest of our neighborhood and township.
To Kline:
Please upload the legal analysis that supports your view that--absent the interim-adoption of a curative ordinance--common law precedent would favor Brandolini.
Please explain why--in light of the fact that the secret meetings you held all year, until November, led to the sudden release of a “take it or leave it” proposal--the Township cannot approach the Court and seek a continuance in January...permitting the citizenry to complete a due-diligence study of this gigantic proposal.
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Please explain why the Ordinance has so many vagaries [such as empowering the solicitor instead of the Commissioners] that appear to provide carte-blanche to Brandolini to avoid compliance with fundamental zoning mandates.
Please explain why you have failed to address the discrepancies in the traffic reports [Township v. Brandolini] which, necessarily, must encompass the increased stress on the T-Intersection RR-bridge bottleneck (and the traffic-light downstream).
Right-To-Know Requests – “Waiting for Godot”
These were submitted on 12/17 [#1-#7], 12/20 [#8] and 12/26 [#9-#10].
1. The legal analysis report submitted by Mr. Jonas, including citation of all authorities invoked in its preparation.
2. The land-use analysis report submitted by Mr. Kennedy, including citation of all authorities invoked in its preparation.
3. All graphics from all Brandolini submissions.
4. All meetings (and writings related thereto) during the past decade attended by any member of Abington Administration or any Abington commissioner regarding this tri-parcel of land or the generic issue of the Fairway Transit-Oriented Zone.
5. All meetings (and writings related thereto) during the past decade attended by any member of Abington Administration or any Abington commissioner regarding the T-Intersection at the RR-Bridge (Washington Lane and Susquehanna Road).
6. The 2007 Traffic Study by the Abington Administration.
7. The existing Standards related specifically to the proposed Standards [see “504.8”] that would permit a cross-walk analysis, with specific reference to two documents: the “Zoning Ordinance” and the “Subdivision and Land Development Ordinance.”
8. Has the opinion been expressed by the Solicitor that no judge would approve an extension beyond the 1/30/2011 “deadline” prior to empowering Brandolini to act upon its challenge?
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9. All documents generated during the past half-decade [including contracts] related to the engagements between the Township [and past/present Commissioners] and BOTH Marc Jonas, Esquire and John Kennedy, Land Planner. This includes, but is not limited to, all interactions regarding their services related to the Baederwood Shopping Center and related properties (including the Fairway Transit District). All documents generated during the past half-decade showing payments to Messrs. Jonas/Kennedy. This includes, but is not limited to, all interactions regarding their services related to the Baederwood Shopping Center and related properties (including the Fairway Transit District).
10. All documents generated during the past half-decade [including litigation] related to the interactions between the Township [and past/present Commissioners] and Brandolini. This includes, but is not limited to, all interactions with lawyers representing Brandolini. All documents generated during the past half-decade showing payments to attorneys representing the Township regarding Brandolini-related litigation. This includes, but is not limited to, all interactions related to the Baederwood Shopping Center and related properties (including the Fairway Transit District).
Legal Precedent – “Upper Merion v. Realen” Supports Abington!
Township spokespeople—particularly Kline/Peacock have repeatedly portrayed the 2003 Realen v. Upper-Merion case (decided by the PA-Supremes) as controlling/problematic [http://rmcivic.com/sites/default/files/realen%20v%20upper%20merion%20PA%20supreme%20court%20decision.pdf]. Yet, it is facially inapposite, particularly after even superficial scrutiny of the [selective/biased] arguments lifted directly from the RMCA-website [infra]. Indeed, they fail to puncture the simple narrative to which the Township should adhere: Brandolini cannot demand the back-property be rezoned to its desires; there is no need yet established that the current zoning is problematic. The Upper-Merion case is not applicable, for the two land-masses have fundamentally disparate characteristics and narrative-histories.
The first ‘graph “says it all,” as they say: “We granted allowance of appeal to consider the validity of the [135 acre] agricultural zoning of a tract located in the heart of one of the most highly-developed areas in the region, entirely surrounded by an urban landscape, and immediately adjacent to what is currently the world’s largest shopping complex. ...[T]his agricultural zoning, designed to prevent development of the subject property and to “freeze” its substantially undeveloped state for over four decades in order to serve the public interest as
“green space,” constitutes unlawful “reverse spot zoning” beyond the municipality’s proper powers.” It may be noted that the Brandolini property is ~19 acres.
The subject-property’s zoning had been adopted in 1984; it was recognized at the onset that, “Over the last five decades, Upper Merion has developed into one of the most important ‘activity centers’ of the region.” It may be noted that the Baederwood region has not attained such august status, nor is Abington the “destination” that Brandolini envisions. Furthermore, whereas the Upper Merion property was properly depicted as “at the hub of such a major road network” [the confluence of six (6) major limited-access highways], Baederwood has no such distinction (nor can one be reasonably conjured); it parallels a RR.
The chronologies also contrast; in the Upper Merion case, “The Golf Club opened in the 1920’s, several decades before the Township enacted its first zoning regulations. In 1953 the Township created an AG-Agricultural Zoning District (AG District).” Therefore, the challenged ordinance was enacted AFTER the Golf Club had established ownership, whereas the challenged Abington ordinance was enacted BEFORE Brandolini purchased the property. Clearly, Brandolini can’t claim that it was targeted [“positively”/”negatively”] by any zoning-decisions…a status that would instantly/irrevocably change were any type of focused-ordinance to be adopted precipitously…nor has any intent to disadvantage this owner/developer been advanced [either by the Township or by the current bevy of critics].
Also relevant in the Upper Merion case [but absent from any litigation-history in Abington] is that a 1964 ordinance [reinforcing the “agricultural” status] was successfully challenged in 1966 because the “purpose and effect of” the former was found “unconstitutional as depriving the Golf Club without compensation of the full enjoyment of its property.” Then, enactment of a bond-issue (allowing for Upper Merion to purchase the property) was nixed in 1970 and no appeal was filed after a strategy-shift was adopted, planning simply to empower “the Board to control the use of the land for open space by zoning.” Again, in the instant [Abington] case, no such defiance of judicial-edict has been evidenced.Perhaps reflecting this [vindictive?] policy [for Upper Merion had adopted a posture that was supposedly intended to maintain the property as a “golf club”], the Zoning Board denied the Golf Club’s zoning request regarding “about sixty acres of the tract to SM-Suburban Metropolitan zoning designation in order to permit construction of a clubhouse, hotel, accessory recreational facilities, and additional parking.” [“We can do it, but you can’t!”] After “[s]ubsequent requests for legislative zoning relief fared no better,” a challenge was filed regarding “the substantive validity of the AG District designation of the tract.” Thus, again contrasting with Brandolini, myriad [denied] development efforts were coupled with purchase efforts, including one [at the onset of this mini-campaign] which demonstrated overt prejudice regarding allegedly identical intent [public/private golf course development].
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Regarding issues related to due-diligence, it should be noted that the only “public” events regarding the Brandolini plan were two hearings before the Planning Commission, an entity that ultimately harbors only advisory input to the Board; this issue has been assessed by neither the Zoning Board nor the entity charged with reassessing the overall Zoning Laws. In contrast, “Twenty-three sessions of a public hearing were conducted by the board from January 1984 through July 1985 in which the Township and a citizens group opposed the [1982] challenge.” For legal/business-related reasons, the issues herein ultimately lapsed.
Flashing-forward, current litigation was triggered thusly: “On November 13, 1997, Realen, under contract to purchase the property, presented its zoning ordinance validity challenge to the Township zoning board. Relafen’s challenge included claims that the Golf Club’s AG District zoning constitutes spot zoning, special legislation, and is both arbitrary and irrational. Two conceptual site plans were presented with the challenge to illustrate the desired definitive relief.” Again, overt contrasts emerge, particularly those related to enactment of “special legislation” and simultaneous submission of “conceptual site plans”; the former did not transpire in Abington, and Kline/Peacock insist the latter is not needed.
Returning to the aforementioned concerns with due-diligence, the contrast is striking: “Fourteen sessions of a public hearing were conducted by the zoning board between February 1998 and June 1999 in the matter of Relafen’s challenge.” The current plan is to acquire Board approval of a fundamental zoning change on the day it is formally presented.
The legal issues were framed as contrasting the constitutionally-protected right of an owner to use/enjoy property with a qualifier that it may be “reasonably limited by zoning ordinances…enacted by municipalities pursuant to their police power, i.e., governmental action taken to protect or preserve the public health, safety, morality, and welfare” [emphasis added, recognizing only that “morality” is not specifically of-concern, currently]. Thus, the Abington Commissioners have an absolute duty to ensure that any new Ordinance encompasses this fundamental mandate, to protect/preserve health/safety/welfare of the public/citizens/taxpayers/voters on behalf of whom they are sworn to be responsible.
The principle, here, is “sic utere tuo ut alienum non laedas” namely, “persons must use their property so as not to harm that of others.” This is akin to the medical-precept [which had been repeatedly invoked by this physician, quoting from the Hippocratic Oath] that doctors recognize “Primum non nocere” namely “the first priority is to do no harm.”The issues were rephrased [specifically discounting “size” as an operational criterion] thusly: “The question is whether the lands at issue are a single, integrated unit and whether any difference in their zoning from that of adjoining properties can be justified with reference to the characteristics of the tract and its environs.” In this regard, it may be
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recalled that the 9-acre parallelogram is physically located on two levels that are [guestimating] 20’ apart (Rydal Waters and the Shopping Center). The aerial views do not convey this awareness, but a simple field-trip [particularly noting the tiered-parking just to the west thereof] confirms, as does the map [supra] that designates a gradation-change that crosses this internal entity. Therefore, contrasting with the expansive golf-course in Upper Merion, the small property cannot be portrayed as “a single, integrated unit,” either in-isolation or as a portion of the larger property that Brandolini currently covets for complete razing and reconstruction.
After discounting the size of the property as having any relevance, the PA-Supremes then discounted its borders: “It turns reason and land planning precepts on their head to assert, as the zoning board’s decision implies, that this tract’s restricted, agricultural zoning is justified by its ready-access to the region’s primary arterial roads on every hand.” Next, reminiscent of the aloof fashion in which the hearsay report from Marc Jonas has been portrayed by layers of protective intermediaries [Kline/Peacock and the RMCA], who are easily vulnerable to “whispering down the lane” modification of primary [as yet not supplied] data is this rejoinder: “Apart from a bare assertion that it is so, neither the zoning board nor the courts below have offered either reason or authority to support the proposition.”
As they say, “Saying it so doesn’t make it so; People are entitled to their own opinions, but they are not entitled to conjure their own facts.” Indeed, even when it was overtly reminded of this criterion, admittedly overlooked/ignored/unresearched by the Planning Commission was the potential impact of unbridled development [for example, not being age-restricted] upon the capacity of the school system to absorb additional students residing in these units. This is an inherent concern, for the public “welfare” [plus the potential impact on taxation] is affected when the educational requirements of a new set of warm-bodies is pondered. And dismissive rationalizations suffice with regard neither to the size/location criteria, nor to its contents; the pig-in-a-poke [“take it or leave it”] posture presented publicly is both reprehensible/insulting to the intelligence of the electorate AND legally inopportune.
Finally, contrasting with the multiple relevant problems with the Brandolini-inspired effort, the Upper Merion case was justifiably found to favor the [prejudiced, injured] Developer: “On this record, no characteristic of the Golf Club’s property justifies the degree of its developmental restriction by zoning as compared to the district designation and use of all of the surrounding lands both within the Township and in the adjoining municipality. This is spot zoning.” In the Brandolini case, however, obvious/germane characteristics of the parallelogram-property justify the degree of its developmental restriction, including its abutting [by~50%] a piece that was justifiably zoned to be purely-residential [Rydal Waters].
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The gravamen: “[T]he term ‘reverse spot zoning’ to describe the circumstances where the unjustified difference in treatment arises from the rezoning of lands surrounding the tract at-issue and this term appropriately underscores the distinction between cases like that here presented where an island is created by the rezoning of other land from the more common situation where the challenged legislation is that creating the island tract.”There is no instance when surrounding lands have been zoned to encompass businesses; the properties to the south and west have been businesses for decades, and the property to the east has been zoned to be purely-residential. Therefore, Brandolini has no capacity to attempt to cite the Upper Merion case as justification to challenge either the appropriateness of the current law or the ability to apply the current law to the Baederwood properties.
The PA-Supremes deferred discussion of how a record might be selectively generated: “Realen contends that it is not possible for a challenger to meet its evidentiary burden where the factfinder possesses such unbridled discretion in its credibility determinations and the body with the statutory power to appoint members of the fact-finding tribunal - the municipal governing body – actively participates in opposition to the challenge.” This harkens to citations of Edmund Burke that concluded that Kline/Peacock have not functioned as either “representative” or “delegate”; by extension, the sparse record that has been generated by the Township is subject to challenge regarding failure to have pursued basic due-diligence responsibilities. That is why judgment on 1/6/2011 is so premature.
{It should be noted parenthetically that the Saylor dissent focuses on the capacity for a use of the property that would be less dense than that sought by Realen, based [in his view] on the complete record that had been generated within Upper Merion. He cites size/borders as criteria that may be invoked [but that are not controlling], while emphasizing the “history” of having treated the land as a golf course; he does not challenge the facts cited by the Majority and, indeed, laments only that the facts presented by Upper Merion were not invoked. Here, recalling the gradation concern supra and the basic desire to preserve open/green-space, he writes: “It has significant elevation changes. It has significant vegetation.” Next, both traffic-congestion and fiscal-motivations are addressed candidly, albeit not conclusively. Thus, accommodating such additional criteria, the Brandolini challenge degrades the region.}
{Saylor’s dissent provides a quotation that is on-point regarding the Brandolini chronology, inasmuch as the land was purchased with full-knowledge of its current zoning status: “The American way, as the Court describes it, is to treat the bulk of events as belonging to the normal give-and-take of a progressive and democratic society; it is to treat regulation as an ordinary part of background risk and opportunity, against which we all take our chances in our roles as investors in property.” [Frank I. Michelman, A Skeptical View of “Property Rights” Legislation, 6 Fordham Envtl. L. J. 409, 415 (1995)]}.
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{Saylor’s dissent ultimately captures density-related concerns raised in the Brandolini case. Although it was not controlling, its tenets were not contravened by the majority because Saylor’s conclusion entailed the application of “discretion” [and a degree of deference] to his interpretation of the generated record [the reader is referred to on-line legal citations, omitted herein to facilitate appreciation of legal principles by the lay-public reading this]:
…[S]trong public interests are involved, in light of the governing body’s concern with overcrowding of land and congestion of transportation arteries, credited by the factfinder. See generally C&M, 573 Pa. at ___, 820 A.2d at 155 (explaining that municipalities may utilize IN RE: APPEAL OF REALEN VALLEY FORGE Page 17 of 19 http://law.wustl.edu/landuselaw/downzoning.htm 11/24/2010 zoning ordinances to regulate, inter alia, density of population and intensity of use and to protect and preserve resources (citing 53 P.S. § 10603(b)). See generally 101A C.J.S. ZONING & LAND PLANNING § 46 (2003) (“The control and regulation of density, as related to population or use of land, are proper considerations or factors in zoning, and zoning regulations which have their justification in the prevention of overcrowding of land and the avoidance of undue concentration of population bear a substantial relation to the public health, safety, morals, or general welfare, and are valid.”). n11
n11 The United States Supreme Court has explained:
The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. Berman v. Parker, 348 U.S. 26, 33, 75 S. Ct. 98, 102-03, 99 L. Ed. 27 (1954) (citation omitted); see also 1 RATHKOPF’S THE LAW OF ZONING AND PLANNING § 6.40 (“Open-space zoning, which limits the extent or density of development to preserve the visual character of an area or to implement growth management goals, is likely to be held a ‘general welfare’ type of restriction, which is designed to secure a widespread benefit.”).
The public interest in lower-density use and open space has obviously increased over time, as land development has flourished. See generally Cordes, Property Rights and Land Use Controls, 19 N. ILL. U. L. REV. at 643-45 (noting that public limits on property use necessarily correspond to changing social values and conditions). It should also be observed that the public interest in low-density use for the Property plainly increased during the substantial time period during which the landowner voluntarily operated it as a commercial golf course; the
landowner’s choice in this regard obviously impacted on the Township’s growth planning, particularly as it is clear from the record that Upper Merion experienced tremendous pressure in this regard over the years. See id. at 653-54 (noting that unfairness concerns attendant to land regulation are tempered where the landowner is on notice that the property has attributes which would implicate potential regulation).
I do not discount the landowner’s interests in the equation, which are amply developed by the majority. n12
n12 Certainly, the majority raises valid fairness concerns in the Township’s treatment of the Property, most notably, in the rejection of the 1967 and 1981 proposals for commercial enhancements to the golf course. See Majority Opinion, slip op. at 8, 26. I do not believe, however, that an appellate court has the ability to glean from such occurrences, particularly at the degree of abstraction in detail reflected in the majority opinion, unfairness as a matter of law on the order of manifestly arbitrary conduct, in derogation of the contrary judgment of the fact-finder. Cf. N.T., at 575 (testimony of John E. Rahenkamp) (“I don’t know the reason it didn’t go forward, whether it was . . . the Acorn side, or whether it was the township side.”); N.T., at 468-70 (discussing the IN RE: APPEAL OF REALEN VALLEY FORGE Page 18 of 19 http://law.wustl.edu/landuselaw/downzoning.htm 11/24/2010 reasons for the denial of the landowner’s 1967 request for rezoning). Furthermore, such plans are not presently offered before the Court as alternatives justifying a claim of as-applied invalidity.
Indeed, there are fairness elements involved that would suggest that the Township should consider alternatives reflecting a degree of compromise, for example, along the lines of the proposals from 1967 and 1981, or acquisition of development rights from the landowner for compensation, to the extent legally permitted. See generally id. at 650-51 (discussing purchase of development rights and transferable development rights programs). Nevertheless, in view of the public interests involved, as a matter of constitutional, substantive due process, I simply do not believe that Appellant has demonstrated the kind of arbitrary or unbalanced action on the part of the governing body such as would implicate judicial redress in the form of site specific relief predicated on the plans presented by Appellant in these proceedings.
As such, on this record, and in view of the supported findings of the Zoning Hearing Board, it is my considered view that deference is due here to the political branch. Accordingly, I respectfully dissent.
To be explicit, it would seem that much of what Saylor wrote could have been encompassed within the Majority Opinion. Whatever multiple
concerns related to “police power” that had been explored in the record, per Saylor, were felt not to have been applied by Upper Merion in an even-handed fashion. Plenary review may involve weighing due-process concerns, but the Majority overtly took the health/safety/welfare criteria into account when concluding that Upper Merion had [consciously?] implemented a pattern of zealous efforts to keep the golf course in a time-capsule, while allowing surrounding development to outpace it. Again, there is no such conduct discernable with regard to Abington throughout this process, and thus, the Brandolini challenge would meet neither the Majority/Minority standards.
It is perhaps desirable to “test” these conclusions by lifting the key-quotes from the website maintained by the RMCA, noting their superficiality when the primary-datum (the Opinion) is consulted (thereby impugning the credibility of the authors/sponsors of this effort):
1. an agreement acceptable to Brandolini avoids litigation (that is very likely to fail)
2. The PB zoning is poorly written...and it fails in several ways
3. The PB zoning and existing R-1 zoning cannot realistically be the basis for a defense
4. a zoning plan designed to limit Brandolini rights is unlikely to be accepted by courts...[inasmuch as] a zoning ordinance must be presumed constitutionally valid unless a challenging party shows that it is unreasonable, arbitrary, or not substantially related to the police power interest that the ordinance purports to serve
5. an ordinance will be found to be unreasonable and not substantially related to a police power purpose if it is shown to be unduly restrictive or exclusionary....Similarly, an ordinance will be deemed to be arbitrary where it is shown that it results in disparate treatment of similar landowners without a reasonable basis for such disparate treatment
In this case, although it is desirable to avoid litigation, it must be withstood if it is unjustified. Here, details of the Realen v. Upper Merion case [e.g., zoned agricultural abutting confluence of highways leading to multiple regional malls] differ dramatically from Baederwood. Also, the region around Baederwood cannot accommodate enhanced traffic-density; the capacity during daytime [not rush-hour] time-frames is much more limited and arguably at-capacity. Incredibly, Brandolini argues that there would be
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little to no measurable impact on traffic, but the Township has a responsibility to test this premise [particularly with regard to the ability of emergency vehicles to arrive at this site, to function effectively, and to travel under the RR-trax], concerns which [also recalling the potential for school-system overcrowding] do fall within its Police Power [and which have not begun to be studied, via due-process].
“Spot zoning” [rezoning a tract from commercial to residential designation to prevent a shopping center development for which the landowner had conditionally agreed to sell the property] has not been alleged (nor can it be), but “reverse spot-zoning” has been alleged, despite the fact that half of the border of the parallelogram-property is also residential. Thus, Abington’s zoning hearing board’s performance of its fact-finding function [or, for that matter, that of the Board of Commissioners] cannot be challenged whether it “deprived the applicant of a fundamentally fair proceeding and whether particular necessary findings of the board, although minimally supported by record evidence, capriciously and without reasonable explanation disregard overwhelming evidence having a contrary import.”
{Actually, there is a bit of a role-reversal here, inasmuch as it would be the citizens who are concerned with the degree of due-diligence, rather than the commissioners/Developer.}
Thus, STARK contrasts are easily distilled between the Upper Merion v. Realen case and what Kline/Peacock are trying to RR-through the Board of Commissioners on 1/6/2011 [while the consciousness of the community is being distracted by the Holiday Season]. The reader is invited to tick-off the multiple deviations of this “landmark” case from what’s happening in Abington, and then wonder why advocates for capitulation to Brandolini would cite it as controlling…and adverse to the interests of the Township and its citizenry.
Brandolini knew this zoning status when it [voluntarily] purchased Baederwood, and it is not disadvantaged by awareness that it can develop the upper-property by constructing homes. The all-day traffic bottle-neck @ the RR-bridge T-Intersection is intuitive/determinative; predictably, it would be greatly exacerbated were hundreds of people (many owning cars) to be added to those who are already living/functioning in this densely-concentrated region.
When visualizing/comparing land-masses, it is easy to contrast that located in Upper Merion with that which Brandolini and its co-conspirators are trying to employ [to generate mega-$] and, in the process to perpetrate a signature-change upon unsuspecting suburban taxpayers. This can be accomplished by identifying (on this King-of-Prussia Mall/Court/Plaza map)
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the large triangular-plot (on the other side of the of the Schuylkill Expressway) by scrolling slightly to the west (from the initial screen that pops-up on the following hyperlink) [http://www.bing.com/maps/default.aspx?q=&FORM=WLETLB&PC=WLEM&MKT=en-us#JnE9Lm5vcnRoK2d1bHBoK3JvYWQlMmMrdXBwZXIrbWVyaW9uJTJjK3Blbm5zeWx2YW5pYSU3ZXNzdC4wJTdlcGcuMSZiYj00MS4yNjk3NDYzNjIyNTgyJTdlLTc2Ljg3OTg5ODQxMTUwMiU3ZTM5LjQwMjQ0NjcyNDUzOTUlN2UtODIuNTE1ODg0NzM5NjI3].
{It appears that my memos can become a mite elaborative [sometimes, indeed, having the capacity to take-on a life-of-their-own], but their generation is motivated solely by the intent to articulate measured reaction by a “reasonable man” [or woman] to having read primary documentation. Commissioners must recognize that the already completed [2007/2009] traffic analyses remain embarrassingly-unrectified/notably-flawed. As Kline/Peacock run interference for [absent] lawyers—Brandolini’s Kaplan and Abington’s Jonas—what remains are “whisper-down-the-lane” hearsay reports of the existence of [unstated but] allegedly-fatal characteristics/flaws in current zoning ordinances. Much of the discussion touting the utility of the proposed Ordinance has been predicated on its inclusion of multiple criteria which are not cited in current zoning law, but these alleged-deficits [particularly because none are “cured” by the proposed Ordinance, as is amply documented elsewhere in this memo] cannot in-and-of-itself disadvantage Abington. Indeed, this allegation must come as news to the Abington Zoning Board, which [having never been presented with examples of what is so very contradictory] continues to “labor” under such a crushing burden…successfully.}
Maintaining the status-quo zoning status accommodates reasonable development of this property. Abington should simply follow its internal [as-yet unchallenged] rules —first, by seeking a continuance because this public review process can reasonably be shown to have JUST BEGUN—and, second, by completing the due-diligence mandated-study of already-defined and undeniably-vital safety-related concerns. By honoring a modicum of community-input already placed onto the record.
Abington Planning Commission Meeting #2 – Wired
The 3-plus hour Planning Commission meeting #2 [available on-line @ Abington.org] ended with restatement of exertion of overt pressure from the Chair that advised strongly for an up-or-down vote regarding the proposed Ordinance; indeed, they didn’t even mandate that they would revisit the issue (notwithstanding the qualifier in the “resolved”).
[After they lamented that most of the public-comments were generic and unrelated to the specific lingo in the proposed Ordinance, I (orally) skimmed through my 18-page handout which, obviously, they had had insufficient time to study/scrutinize.]
It is not surprising, therefore, that the core of the approval-resolution was this preamble regarding the pre-meeting orientation received by the Planning Commission members: “…[having received] legal advice that not resolving this through negotiation may result in an untenable and detrimental condition….”
[Essentially, these individuals were intimidated by even the threat of litigation, no matter how untenable. Corrupting the above-quoted dependent-clause, such a filing also may NOT carry such a dire/irreversible outcome.]
And it is not surprising, therefore, that appended to the approval-language was a totally-useless phrase: “…with any comments or conditions we may have agreed upon.”
[This phrase doesn’t pass muster for any number of obvious reasons: it doesn’t cite specifics, it is highly “conditional”—literally and figuratively—and it fails to recognize that there will be no projected opportunity for any meaningful amendment/suggestions to be entertained.
Other quotable-quotes from the members of this entity included ignorance of the contents of the document they were referencing, the Old York Road Corridor study.] Anyway, for its sheer entertainment value [reflecting what should NOT serve as a model of due-diligence, achieved on behalf of the taxpayer/citizen/voter], it is commended to the reader’s attention.
It was clear that the “atmospherics” were characterized by veiled tolerance of the need to have entertained public comment; efforts to limit it were rebuffed as often as was needed, such as when the Chair asked that the detailed-critique of the Ordinance [which no one had previously reviewed] be limited to a five-minute time-frame [despite its extensiveness]. Indeed, amazingly, my opening comments [intended to convey openness if any errors had crept into my presentation by citing how I had approached the Roslyn Branch Library issue] were interrupted in mid-sentence; it was necessary for the Chair [Ronald Rosen] to silence Harold Lichtman. Its other members [http://www.abington.org/info/landdev.htm] are Charles Carter, Ashley Spearman, Van Strother, Michael Stubel, Sr., Donald
To alleviate the T-intersection bottleneck, I advised buying a for-sale land-crescent via Long & Foster [the sign is visible as one drives under the RR-bridge]. Tree/ground removal could precede embedding a retaining wall, perhaps encompassing 15’ of territory which would be paved-over, allowing cars traveling from Washington Lane to Susquehanna Road to drive around the intersection without being blocked by those turning to go under the RR-bridge. I met in late-January with Josh Shapiro, sought input from Penn-DOT and shared awareness thereof with Messrs. Peacock/Kline. [This 10/14/2009 memo provides a foundation for what has occurred during 2010; it was addressed/e-mailed to the Commissioners.]
I will be out-of-town at the time of the hearing, so I request that this input be placed into the record; I will try to arrange for it to be read publicly, as well.
1. This resident/taxpayer was one of the multitude of vocal opponents to this project, focusing on the traffic congestion it would undoubtedly cause.
2. The “Traffic Planning and Design, Inc.” Report [7/13/2009] purports to reassure the reader that traffic volumes would not be greatly affected by the plan to construct inter alia hundreds of residences and expanded businesses in a region that already routinely sports bottle-necked traffic on Susquehanna Avenue between the Fairway and the RR-bridge during weekdays.
3. This Report studied four sites: Route 611 and the Fairway/Harte Road; The Fairway and the four (4) intersecting driveways; The Fairway and Rydal Road; and Susquehanna Road and Rydal Road/Valley Road.
4. This Report advises a redesigned intersection at The Fairway and Rydal Road, but it fails to take into account the potential impact of construction of a new road from 611 at the Noble SEPTA RR-station that would intersect with Rydal Road (at a site unspecified in a new “Old York Road Corridor” Report).
5. Because the developers budgeted for the aforementioned highway improvements, they recognized the applicability of the Latin adage ascribed to Galen of Pergamum: “Primum Non Nocere” [The first priority is do no harm].
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6. The counterintuitive conclusions in the TPD-Report are invalidated also (specifically) by the absence of any study of both the bottle-neck that routinely develops at the RR-bridge and the potential impact of planned reconstruction of a road leading to one of the studied-intersections.
7. Thus, this project should not be approved until the traffic-impact thereof can be studied cogently, after which time rectification thereof would need to be planned before any construction could be approved at Baederwood.
The following two e-mails highlight what transpired this past year regarding my efforts to effect a settlement of this bottleneck concern; I advised adopting a problem-solving mindset.This letter by Steve Kline was pejorative/problematic, reflecting the need for an attitudinal-readjustment during future interactions; I provide “informed consent” regarding prior interpersonal conflict that HE created, to ensure that all other information can be appreciated WITHOUT entertaining such tangential/distracting notions/concerns.
Do not continue to indulge this idea by Mr. Sklaroff. Yes this intersection has problems, problems that have existed for years and his idea in theory causes more than it solves.
Left turns across merging traffic on blind inclines, purchasing or taking property from no fewer than two property owners (you will need to take a portion of the property on Barrowdale & Washington), coordination with PennDOT who in the past has had no interest in working on this intersection and millions of dollars to implementing a plan that avoids solving the main issue - traveling west bound on Susquehanna Rd under bridge to The Fairway & Valley Road & OYR as well as traffic traveling East under the bridge to either Washington Ln or continuing on Susquehanna.
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There have been many people who have ponder[ed] solutions to this intersections but none that have avoided the main issue and certainly none that considered the possibility of taking private property as Mr. Sklaroff has discussed with me in a past encounter.
We should leave Mr. Sklaroff to the thing he knows best, filing lawsuits against synagogues, municipalities/governmental entities, political parties and who knows who else.
Hope you had a good weekend and take care.
*
He alludes inter-alia to my “sunshine law” litigation, intended to ensure the Commissioners expose their thinking to public scrutiny, a copy of which is available upon request. Otherwise, as documented infra, his assertions are false/misleading, for there is no effort here to exert Eminent Domain efforts as he supported regarding the Roslyn Branch Library [which, I understand, is now mooted because state/county-$$$ is no longer available].
Anyway, as a result of this effort, I acquired a letter from Penn-DOT which reflected [perhaps because it resulted solely from a chat with Josh Shapiro prior to its preparation] lack of awareness of what had been envisioned; he thought I wanted a bridge constructed.
Your suggestion to improve the intersection at the above location was sent to my attention for a response by Representative Shapiro’s Office.
Please be advised that PENNDOT can only acquire right of way for approved transportation projects. At this time we are not aware of any proposed work or approved project at this site, either public or private, that would upgrade the signals or turning movements at this intersection. Because there is no approved project your proposal should be brought before Abington Township and the Montgomery County Planning Commission for their consideration to be included on this region’s Transportation Improvement Program (TIP).
We did make a cursory review of the site and your suggestions. The cost to make the improvements would be considerable. A complete replacement of the SEPTA bridge would be required. This bridge replacement would involve a lengthy and complicated process to deliver the project. More right of way would have to be required than the amount you suggested in your discussion and we believe we would have to contend with environmental and utility issues for a project at this location.
Due to the constrained federal and state funds available for highway and bridge projects, each proposed project must be cost effective and meet the transportation needs of the region. PENNDOT must focus on projects we can afford to construct and these projects must be prioritized based on regional needs.
We thank you for your interest in the transportation needs of your community. We encourage you to discuss your suggestions with Abington Township for consideration as a transportation project for the region.
Sincerely,
Les Toaso
*
Oral communication revealed--believe it or not--that the project would cost upwards of $1 million if done by Penn-DOT...but 10% thereof if done privately [because of the lack of automatic approvals that would be required, based on automatic %-age enhancements]. Illustrating the aloofness of Kline/Peacock is their rejection of the do-able idea of rehabbing/widening this T-intersection. Therefore, in the spirit of cooperation—because I’m told the 2007 Traffic Study corroborates the “failure” of both this intersection and that @ the traffic-light a few yards distant—it is suggested that it is this type of CONCRETE resolution of what is transpiring that OTHERS should consider adopting.
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Rydal-Meadowbrook Civic Association – Smoked-Out!
Abdication of Leadership Responsibility by RMCA President
The RMCA’s Mission [“…to promote the best interests and general welfare of Rydal-Meadowbrook and of Township of Abington”] has been hijacked in this situation and, thus, its president [Ms. Linda Rubin] must be asked to justify why she should remain in-office; having abrogated her duties in many definable/irrefutable/profound ways, she requires an attitudinal readjustment… but there is insufficient time for this to be realistically achieved before 1/6/2011. Therefore, she should be relieved of her position [in]voluntarily.
Purging of Website
After much of the information herein had been uploaded onto the RMCA-website [on each of the five applicable web-pages allotted, absent input from anyone else, then and now], all of it was deleted and replaced by this: “You are not authorized to post comments.”
This was the preceding e-mail exchange with the webmaster, as per the president:
I wanted both of you to know that President Linda Rubin wants the RMCA site be a source of reliable information to its members and the community. We have released a mailer to 2,275 residents and want them to voice their opinions, so it is particularly important to let them speak in the next week.
The terms that are posted on the site are currently under review but could be enforced much more rigorously: <http://www.rydal-meadowbrook.org/terms>. If it appears that the policies need to be modified in order for the site to live up to the vision and standards she sets, Linda has told me that she will ask the Board to modify those policies.
In advance of any policy change, I would simply ask both of you to limit the number of posts to one per day, keep them short and if you want to
write long commentaries, do so on your own web sites and provide a link on the RMCA site. I really want the site to be a public resource with different perspectives, but we all need to work on making that possible.
Regards,
Steve Turner
PS: Remember that I am busy running two businesses, raising a daughter, being there for my wife and caring for my father with Alzheimer’s. I don’t have time check on the RMCA site more than once a day.
I believe both of us have provided lengthy expositions, and {someone else} wrote most of what I had envisioned as my third-installment…which now will be delayed until Monday.
[I held-back posting what I’d written, awaiting the opportunity to integrate what others might have contributed…and I would hope my first two-installments will soon appear.]
I just read the web-site, and I clarified/commented on two subsequent postings; I would have no problem if you uploaded them each on successive days over the weekend.
I also have not seen {someone else}’s posting on the website yet; I hope it is not being withheld; I do appreciate the fact that Mr. Kline appreciates that I uploaded his viewpoint.
BUT, I am in a posture, now, to DEMAND a reply to one of them, namely, the primary legal-analysis that [it is now revealed] the RMCA has apparently generated.
If there is anything uploaded that is not “reliable information,” then it should be ID’ed; if nothing can be identified, then there should be NO reason to screen-out my postings.
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One would think that you would want to generate a vibrant go-to website [for this and other issues] as occurs in Ardmore [http://www.saveardmorecoalition.org/].
[You all may recall that {someone else} and I are big on freedom-of-speech, and I daresay no harm is done when people provide rationale for how they express their views.]
I would be eager to chat with Prez-Rubin whenever/wherever, because I hope she has not been somehow diverted from the goal of the RMCA to maintain independence.
*
The RMCA must call an EMERGENCY MEMBERSHIP MEETING to discuss this entire matter; if it must occur when some people are departing for vacations, the rest of us merit this modicum of attention.
The RMCA must promptly upload all non-defamatory input/discussion onto its blog-site; recall “Sunshine is the best disinfectant!” [Brandeis].The RMCA must not rubber-stamp what is portrayed as absolute-truth without completing independent study thereof…and weighing its profound import.
The RMCA must not behaviorally validate potential-extortion from Brandolini; if there is no legal problem that constitutes a smoking-gun, then it should do what is RIGHT.
[I would invite all recipients of these e-mails to circulate any critique thereof by hitting “reply all”; if no one can find anything problematic, then that fact will glisten.]
And anyone who disagrees with anything I have written/said is cordially invited to contact me ASAP, for I will dutifully circulate it [as I did when uploading the Kline-composed e-mail of last month] prior to responding thereto.
The labor associated with downloading/preserving my prior uploads proved worthwhile; extensive input had been provided for public consumption/scrutiny regarding each of the distilled pages—Hearings, Ordinance, Precedent, Traffic, Poll—but, alas, to no avail. Probably in response to the above, uploading did not occur [either at-once or daily over the subsequent weekend] after submission of comments by myself [unfortunately not preserved but, it is hoped, later reconstructed from
memory] and by {someone else}; indeed, everything was DELETED! [No Board meeting occurred over the weekend, so this act was generated solely by Ms. Rubin.] This contradicted the stated-goal of the RMCA in this instance [“RMCA strongly encourages you to tell officials what you want”] and its web-site [“The will of the membership is now able to be harnessed through this web site and communicated to those with influence and authority”]. Such hegemony is inexcusable.
I had spoken with Steve Turner [webmaster] a few days ago [646=509-8967], and I had gained a clear appreciation for the fact that he was functioning solely under the direction of Ms. Linda Rubin [215=884-3677]. It was my impression that she somehow felt that my counterpoint-analysis crowded-out anyone else’s submission, for nothing allegedly violated any of the uploading precepts [written and unwritten, such as to avoid defamation, etc.].
After having distributed the above, no one [including Ms. Rubin] contacted me; when I “called her out” during the Town Hall event, she muttered, “You don’t know all the facts.” But she neither hit the “reply all” button to explain herself, nor did she do so @ Penn State. Notwithstanding the content/stridency of my memo, no one replied [and no one has posted anything on the RMCA website]; perhaps “still waters run deep.” I invited people to express wonderment to the RMCA leadership [and to me, if commentary/explanation is desired] regarding the “who/what/where/when/why/how” of the RMCA-website “cleansing.”
The Dybbuk in the piece is not webmaster [Mr. Turner], but president [Ms. Rubin]. I do not know if she is a registered-Democrat [as are Peacock/Kline], adherent to a desire to urbanize Abington [dangling the prospect of federal grant-monies to convince the wayward]. I do not know if she would sustain her threat [“If it appears that the policies need to be modified in order for the site to live up to the vision and standards she sets, Linda has told me that she will ask the Board to modify those policies.”], but she certainly has contravened the honoring of CURRENTLY-ACTIVE blogging policies, as is her duty.
Flawed Plebiscite
The public-poll only offered TWO alternatives [capitulate by adopting the proposed Ordinance v. engage in extended litigation, themed on “Legislation v. Litigation”] without offering a third obvious choice [stand by the current law], skewing whatever response the knowingly incompletely-educated readership might generate. The FACTS render as unjustified the absence of a “none of the above” alternative [“do nothing to change the currently in-force law”], fatally skewing any ability to interpret the results. And the absence of any contrary data/opinions/options on the website impugns/rescinds the ability of any open-minded people to review the
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[uncontrolled] pro/con arguments. This flawed-survey, therefore, smacks of avoidance-of-truth and demagoguery [“leading the witness”].
That only 11 people bothered to act constitutes a scathing “commentary” akin to when people “vote with their feet”. In “I and Thou,” Martin Buber notes that THERE ARE ALWAYS MULTIPLE WAYS TO PERCEIVE REALITY. When only two alternatives are provided…and a third one [which is cogent and potentially desirable] is not proffered… the result is comparable to a political push-poll, and is just as reprehensible.
The RMCA’s Legal Analysis
The only additional information on the website is the following:
Submitted by RMCA on Fri, 12/10/2010 - 1:40pm.
RMCA encourages each person to read the precedent and draw their [sic] own conclusions. Much of the text above is drawn from the actual case, which can be downloaded as a PDF. This ruling handed-down from [the] Supreme Court of Pennsylvania is one case, but [it] includes many references to other cases that all lead the majority of the RMCA Board to conclude that Brandolini does have property rights that are constitutionally-protected.
It explains why the five specific challenges to the biased presentation of the law [see page 27] were totally ignored, supplanted by this judgment-call; the organization’s Board [including, reportedly, its four attorney-members] has not issued any sort of an explanation. That these problematic quotations were not specifically addressed by the RMCA leadership—despite its having been sufficiently isolated/distilled to allow for cogent discussion—is shameful.
Thus, in the absence of a cogent legal analysis [by the RMCA or by Abington’s Marc Jonas], it is necessary to cobble-together tentative observations. That the RMCA Board specifically tethered is viewpoint to the Upper Merion case is indicative that—were they to allow themselves to be enlightened—they might harbor the capacity to alter/amend/modify their sweeping conclusions. Even accepting arguendo that “Brandolini does have property rights that are constitutionally-protected” does not, in and of itself, yield the need for capitulation, as the proposed Ordinance would transparently
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produce. Thus, it behooves the BOARD of the RMCA to reassess its viewpoints and TO UPLOAD ALL COGENT DISCUSSION OF THIS ISSUE IMMEDIATELY…and to encourage further dialogue.
In this regard, it is necessary to elaborate on the dangers inherent in rumor perpetuation, indeed, including those that may arise from faulty testimony. The ability of undocumented quotations to be invoked subsequently is a nugget within the Upper-Merion Opinion: “The Township’s expert land planner testified during the course of the board’s hearing just to the contrary [as to whether single-family dwellings could be constructed on the property], including the direct conclusion that none of the uses permitted by right on the tract are ‘practical’.” This is why orchestrated-events already transpiring must be seen as profoundly problematic, even as the rest of the electorate is awakening to the choo-choo train that relentlessly barrels towards a collision-course with the assumed-future of this community.
RMCA-Related Conclusions
It is always hoped that civil discourse will yield optimal conclusions; the RMCA has a DUTY to uphold its charge to maximize this effort. Other than creating the website, however, it has not accomplished this end. The blogging [note the absence of input from myself and at least one other citizen, per knowledge and belief] is suppressed…and now we know why. The “factual” rendition thereupon is skewed…and now we know why. The poll was biased [structured as a two-option poll (Accept/Modify the Ordinance), denying people the ability to endorse efforts to maintain the status quo, thereby overtly “wired” from allowing anyone to draw a potentially worthwhile conclusion opposed by Ms. Rubin]…and now we know why.
Denuded of any pretense of playing a constructive/educational role, the RMCA has now proven itself to have become a Kline/Peacock pawn, so sad. With untrustworthy leaders, unmasked has been behavior that cries for analysis on a number of internal/external levels. Perhaps it is not surprising that the RMCA has not adopted a final/public position regarding this issue, for doing so would immediately subject it to overt critique; it remains AWOL.
As efforts are afoot to import Philly-brand urbanization, it’s over-time for the RMCA to get revved-up…and it’s about-time for the citizenry to get up-to-speed regarding what is, metaphorically, detonation of a neutron-bomb [which kills without destroying property]. The RMCA must call an EMERGENCY MEMBERSHIP MEETING to discuss this entire matter; if it must occur when some people are away on vacation, the rest of us merit this modicum of attention. Indeed, the entire Township should be alerted as to the irreversible fate that is imminent. The RMCA must upload all non-
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defamatory input/discussion onto its blog-site ASAP; recall “Sunshine is the best disinfectant!” [Louis D. Brandeis]. The RMCA must not rubber-stamp what is portrayed as absolute-truth [by Kline/Peacock] without completing independent due-diligence study thereof…and weighing its profound import. The RMCA must not behaviorally validate potential-extortion from Brandolini; if there is no legal problem that constitutes a smoking-gun, then it should do what is RIGHT.
This historical [albeit, not “hysterical”…for no o ne is laughing] event in Abington’s history raises a specter-of-concern that the entire sequence-of-events was orchestrated by RMCA leaders—perhaps abetted by Kline/Peacock—to “run out the clock” in an effort to ambush the citizenry with an absolutely revolutionary mandate to alter the community’s heart.
Julie Greenbaum would turn-in-her-grave if she knew how the “driving” tenets of her cherished RMCA had been so thoroughly trashed…so very quickly after her death. Rather than spearheading activism, the RMCA’s muteness reflects its moral/intellectual bankruptcy.
Disclaimers – Personal
My politics inform my approach to this issue. I have spoken at three (3) Tea Party events during 2009-2010 [Independence Hall on 7/4 of both years, plus Arcadia when Obama dropped-in]. I adhere to core principles of this anti-revolutionary movement [restoration of limited-government, free-enterprise, individual responsibility, and low taxation]. In short, I oppose just about every Obama-linked policy-position [both domestically and abroad] because I abhor socialism/collectivism/statism/elitism; because “all politics is local” [as per Tip O’Neill’s father], I feel compelled to manifest these philosophies on the local-level.
I have no “skin in the game,” other than acknowledging prior-advocacy during the past year for fixing the T-intersection @ the RR-bridge [which is a no-brainer that would necessitate no construction]. Further elaboration of this issue is apparently/urgently warranted, in light of what Mr. Kline wrote within one of his more aggressive e-mails. I consistently noted that the relevant property is for-sale; the Long & Foster sign is visible as one drives under the bridge; thus, I did NOT support using Eminent Domain to purchase an unused sliver of the index-property. To excavate [removing trees/dirt] and to pave-over what would be created by a reinforced dividing-wall [outside of the fence that exists on the level-surface of the home-on-the-hill], this would not hoe new ground [no pun intended] in the realm of architectural/structural brain-storms…nor would it cost “millions” [as misportrayed—without documentation—by the all-knowing Mr. Kline]…but it would alleviate the traffic bottle-neck near Baederwood without expending excess monies [for example] to engineer
and to build [somehow] either a bridge over the RR-trax or another tunnel beneath them.
Regarding possible relocation of the Roslyn Branch Library, I did not support the use of Eminent Domain to waste-$$$, and I provided extensive testimony (and handouts) opposing this effort, starting [alone, I might add] on 3/2009; apparently, state [and probably county] funding has dried-up, validating my labors to save the Township from suffering $$$-liability [re: Patane litigation]. Libraries are feel-good projects, but oh so very “20th
Century.”
Appended is cursory documentation of my 2009 “Freedom-of-Speech” suit against the Abington Board of Commissioners; it is remarkable how stubborn Ms. DiJoseph has proven to be, for she came close to ANOTHER sunshine-law filing [at the December meeting]. [BTW, the legal defense being mustered is apparently the lament that I could speak, albeit not when I wanted to do so; this is a novel methodology for gagging the constituent who is statutorily empowered to speak whenever he/she so desires at the time when any issue is being considered that is then [or is likely to be] voted upon by the governmental body.]
I have expressed anguish over the warp-speed plan of Kline/Peacock to achieve approval of this document within less than a month, absent a cogent approval process that reflects the capacity of Abington to complete its due-diligence responsibilities, on behalf of its citizenry. The customary counterargument is that voters can replace incumbents if displeased with their performance. Yet, the established time-frame does not permit canvassing of the voters, let alone a campaign to recall/replace Kline/Peacock [assuming this were legally plausible]. Awareness of one alleged-reason [Rydal Waters] why Peacock was elected, for example, would only serve to illustrate why there was insufficient “informed consent” that he would pursue—unbridled—a programme more worthy of a sitting Philly City Council-Person than of an Abingtonian who is charged with advocating for the interests of his constituency.
E-Mail Discourse – Limited, Albeit Revealing
I initiated efforts to enlighten the community to what is about to befall Abington residents; information not otherwise covered supra has been preserved for presentation in a fashion that can capture how people responded to colloquy. My first entry set a positive-tone:
After returning from last night’s Tea Party [Congressman-Elect Mike Fitzpatrick spoke eloquently @ the Washington Crossing Inn regarding the humility that all public servants should evince
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in America, sponsored by the Thomas Jefferson Club], I awoke episodically to note the Lunar Eclipse [noting “not a cloud in the sky”]…and then got to work…. Again, for those who can’t open the attachment, its complete-contents are provided infra. I would hope that information-flow (from whatever source, albeit predictably NOT from the RMCA, tragically) would continue to flow, even as I await the aforementioned “Right to Know” requests (due on Christmas Eve). Perhaps one or two of the more civic-minded recipients of this e-mail will wish to prod the proponents of this proposed Ordinance to confirm the veracity of the conclusions drawn directly from the Kline-memo, for they are DAMNING (individually and in the aggregate); as discussed earlier with regard to the citation of Edmund Burke, Kline/Peacock are demonstrably neither “delegates” nor “representatives” of their constituents. I have received positive feedback from individuals, but nothing has been circulated by use of the “Reply All” button; inasmuch as this proposal is now recognized to have Township-wide implications, one would think that those who are well-networked could provide appropriate alerts to the remaining Commissioners. I really would not like to have to shoulder this work-load [and learn the entire Zoning Code on the fly, as a result] without SOME assistance, PARTICULARLY from those who have professional experiences that would facilitate this process. I would predict that, if this goes through, the utility of the RMCA will have become forever mooted so, to its so-called leadership, I yell: “YOO-Hoo!”
The Kline-response [Tue, Dec 21, 2010 at 1:52 PM] was predictable:
As I said before, I will not get into a back and forth. I have read your responses and can only say that most of these responses, others just being your subjective opinion, are evident of your lack of knowledge regarding land use and zoning issues. I have neither the time nor the inclination to teach/guide you through these specifics just as I would not expect you to teach/guide me through the specifics of your profession.
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It is clear that that we will never bridge this impasse. I am very comfortable with my level of analysis and the conclusions that followed. Considering the potential litigation and strong evidence that the township would not prevail, I believe this course of action is in the best interest of the township and my neighborhood, a neighborhood where I am proud to have chosen to raise a family and build a home. Thanks for interest in this matter. Have a Happy New Year. See you on January 6th.
The reaction to this e-mail by Dawn-Marie Loney was swift [Tue, Dec 21, 2010 at 2:57 PM]:
I realize that I am “green” when it comes to township politics and that I’ve sat very quietly through this debate. But I come from a small town where democracy is alive and well in the town hall; where decisions like these come before the residents to vote; where the “knowledge” of a community leader never supersedes the desires of the community. The town manager and board represent the wants and desires of the community and those wants are expressed by votes.
This proposal has in large part been a closed-door-deal, so most certainly you would have more “knowledge” than anyone else in community but that should not be the basis for judging the value of the information or the weight of the decision. Mr. Kline your frustration is evident but it reads as patronization and that most certainly isn’t helping the impasse. I think you have failed to grasp the breadth of the frustration throughout the community and yes your “job” as Commissioner is such that you are obligated to guide us through the specifics because, as a point of fact, you were hired by the very people addressed in this email. You represent us, so yes I DO expect you to “teach/guide” us through the specifics and your unwillingness to do so in a constructive and patient manner has only made this situation worse.
I think the basis for the community uprising over this issue is the apparent lack of consideration for the opinions of the community and the rather sudden change of opinion which has spurned many holiday party conversations on the topic. The school board declared their inability to accommodate the rise student population that would result from such development and the likelihood of increased school taxes and those warnings seemingly fell on deaf ears. No one has addressed the traffic issue and as I have seen time and time again that traffic analysis is not part of this process.
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This zoning challenge has grown legs and the scope of the issue at hand has grown exponentially and no one seems to care what the residents think. Residents talk and no one seems to listen or be willing to compromise. I keep hearing that there are at least as many residents for the proposed development as against although I have yet to find even one. (aside from you and Ernie)So what I want to know is, why is the township so afraid of polling the residents? We can only hope to be as strong as the “We the People of Cheltenham” or the “Save Ardmore Coalition” have been and I think it is time we strongly consider a similar move.
I can assure you Mr. Kline that the very next email chain that is conducted ward wide, if this zoning change is passed, will be to vote you out. Although I can only imagine by the tone of your last email that you will be most happy to let us do so.
The Kline-response [Tue, Dec 21, 2010 at 3:24 PM] was also swift:
Ms. Loney, On almost every e-mail I have received from you, you have threatened my elected position. I assure you that threats to my position, as I have told many, do not weigh on my decision to do what I believe is right for our ward and our township. I assure you that the resident of our ward and the township have been heard. There have been many meetings and conversations over the last 4 years that have framed the solution to the litigation brought against the township by Brandolini. Most recently Commissioner Peacock and I spent almost three hours with residents explaining the situation in depth and answered resident questions for most of that time. In addition I have had numerous neighborhood meetings where this issue was topic number one. All I have been is constructive and patient during this entire process and I am willing to spend the time with whoever desires to go through the specifics of this process and potential solution (I have done this with Dr. Sklaroff). I have found time and time again, that given the information and the specifics of the potential litigation, analysis of the situation and the solution the township has crafted, most residents realize that the township is working in their best interest. I recently attended a meeting Dr. Sklaroff had attended to listen to people’s concerns but was asked to leave before I even had the chance to
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sit down. Would you like to meet or would you like to host a neighborhood meeting? I will make myself available at a time convenient to you and/or your neighbors.
This is how Ms. Loney [Tue, 21 Dec 2010 17:34:38] reacted to this follow-up communication:
See response from Commissioner Kline.
I’ve only emailed the Commissioner one other time, back when he was against the zoning change and I most certainly didn’t threaten him then, nor has he been threatened now. (However, I find his arrogance entertaining.) I don’t believe he understands that my claim to vote him out is not a threat; it’s our right as citizens of Abington. Any elected representative that does not represent the interests of the electorate must face the democratic certainty that they will be voted out. Somewhere along the line I suspect we, as the community, have lost sight of the power we actually do have if we organize appropriately.
Is anyone interested in organizing the community meeting he has offered below? My understanding is that we can hold all the neighborhood meetings we want but it is all for naught if no one is listening. Ultimately that is my beef with the township.
Next, Michael Stewart [Tue, December 21, 2010 9:28 PM] weighed-in:
Ward 7 residents have received a similar confrontational email from commissioner Peacock. Individuals are welcome to organize a meeting but I agree with you that this meeting is for naught. The commissioners have heard the residents loud and clear over the past 4 years. Myself, I walked to at least 300 homes when Ward 7 began a petition to show the residents objection to the rezoning. It is my understanding this was one of the first petitions by Abington residents and nearly 300 signatures were obtained in 3 weeks. In my travels and at the meetings I only heard 3 residents in favor of the idea, all others opposed. Yet the final outcome was completed without any resident input. In your Ward, there is a Rydal Civic Association, clearly a member of that group could have been invited to level the playing field for the residents. Instead we are lead to believe by the commissioners that this was the best outcome they could achieve without losing this case in court. That outcome was only 21 apartment units less than their original design for all 3 combined parcels. Now the commissioners have been holding several meetings to plead their case to the residents that elected them.
What most residents may not be aware of is that the commissioners are in favor of a “Transit Oriented District”. This “Transit Oriented District” is an approach
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the commissioners would like to revitalize the “Fairway”. As you may be aware, construction is going to begin in the next several years to replace the bridge over the Noble train tracks. This work will be done by PennDOT. SEPTA also caught wind of this “Transit Oriented District” and approached the township with the possibility of adding a parking garage / hub to the Noble Train station. The idea is to extend Baeder Road into the new SEPTA Transit hub and then it would connect to the Fairway. You may be aware the Jenkintown has been successfully fighting off a parking garage / hub at the Jenkintown Train station. It is greatly opposed by the residents of Jenkintown and Cheltenham. Unfortunately as you mention in your email, in Abington there is no vote by the residents. When the question was raised to commissioners Kline / Peacock if they were in favor of this parking garage / transit hub, commissioner Peacock stated “Yes”. It is clear that if other townships fight “Parking Garages / Septa Hubs and our commissioners are in favor before even presenting the idea to the residents than where could we get holding fruitless meetings on the Brandolini apartments. Since the day I moved into Abington I have heard one complaint that is shared by almost every single resident, traffic. Our commissioners are in favor of a Transit oriented district. The exact opposite view of the number one resident objection. I would ask has anyone ever heard of the ward commissioners holding a meeting to discuss a solution to the traffic problems? I’m sure the answer is “No”. How could the commissioners attempt to hold a meeting to tame traffic when they are in favor of a “Transit Oriented District”. Somewhere along the line we will be told a reason the “Septa Hub / Garage” needs to be built at Noble. There will be meetings where the residents complain in force and then it will be voted in. I agree with your comments. Abington residents need to vote for commissioners that have the same concerns and vision as the residents of that ward. If not, they should not be re-elected.
Pete Morse responded [Wed, December 22, 2010 8:39 AM] soon thereafter:
I am as upset with this project and the commissioners as anyone. However, it is clear that they are going to ram this down our throats. We cannot sit by and watch this happen. We have gone to many meetings and spoken out. But they have not and will not listen. I believe we need to do several things:
(1)—Send one person only to each meeting (why waste our time) and that person should have a prepared written speech that is presented and then read the list of people whom he or she represents and who supports our position.
(2)—Hire our own zoning expert to draft an ordinance that is more in keeping with our desires.
(3)—Hire a lawyer to deal with both the commissioners and Brandolini. If we do not we will be looking at a different Abington, one that none of us wants.
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(4)—Contact as many people as we can that support our position and find a way to keep them informed. The media no longer serves any purpose in Abington and local issues. And, I believe both the school board and Township rely on that fact. Time is critical
Comments suggestions, recommendations are welcome. Please. Thanks.
Larry Cheifetz responded [Wed, December 22, 2010 1:27 PM] soon thereafter:
Gang:
This may sound off the wall to some...but has anyone considered a facebook group...facebook is a very public forum, very visible to all residents and very easy to pass around a link to grow the campaign against this plan. Additionally, each person that goes to the facebook page and becomes a fan of our side of the story, is equivalent of a signee on a petition. If that facebook page has 10000 fans, it would be hard to ignore it.. Those of you not on Facebook, of which I doubt there are any, this is a very, very powerful forum, its far reaching, certainly more than this email string.Second, it seems that everyone feels powerless. Has anyone considered calling Channel 10, or Harry Hairston, or any new type person that is just looking for a fight>? These guys love ratings and the best way to get them is to champion a cause from the underdog side. Get that guy to the next meeting of the minds with a camera and some of the more irate residents, fireworks for sure will bring attention to our plight. These guys probably aren’t afraid of being booted out of office, but see how they feel defending their stance on the 10pm news. As a resident, the content and frequency of these emails has become such that I can’t even open them anymore. It’s a battle of guys using too many words to convey a simple message, which is, we don’t want this in our township. My 2 cents
My reply—summarizing responses to the aforementioned plus other events—was as follows:
First of all, as some of you may know, I have sued the Board of Commissioners for having repeatedly denied me from asserting fundamental “freedom of speech” rights during its meetings; appended are the two “active” documents which summarize the case and reply to the Township’s dismissive efforts to have it quashed. I will pursue this legal effort, but even being confronted with the “three minute rule” being ruthlessly applied (even denying citizens the ability to return to the
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lectern to reply to what others may say on a topic about which they hadn’t previously spoken) meshes with the need for OTHERS to express outrage at the elitism being evinced in local government.
Second, perhaps consistent with the attitude that yields such conduct, I received yesterday a letter from the Township that stated that the aforementioned “Right to Know” requests—due by Friday, per statute—won’t be provided until January 14, 2011; this is clearly AFTER the Commissioners are to vote on the proposed Ordinance (in a fortnight). It becomes palpably obvious that “someone may have something to hide.” I will try to accelerate this process, but even being presented with this rejection meshes with the need for others to become involved in public advocacy.
Third, during the Kline/Peacock Town Hall, I was the speaker on whom Peacock perpetrated “assault” [an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact] and “battery” [an intentional unpermitted act causing harmful or offensive contact with the “person” of another] on two distinct occasions, with these definitions as per the internet [http://legal-dictionary.thefreedictionary.com/]; Peacock apologized to myself and to the audience for having “lost control” of his behavior [which I did not accept] and lamented having deviated from his previously-established plan to maintain physical control over the microphone while paraphrasing queries [rather than allowing people to broadcast their own voices directly to the other attendees]. I will watch the videotape of what transpired and decide what to do thereafter.Fourth, it is gratifying to have received the elaborative responses from some of you, after having been notified about what has been occurring under-the-radar, for such personal vignettes illustrate [locally] why the Tea Party Movement has blossomed [regionally, state-wide and nationally]. People do not find arrogance to be endearing, particularly when delivered by a know-it-all…WITHOUT having addressed cogent queries that are DIRECTLY derivative of their responses/assertions. It was admirable that the Kline-memo was generated [contrasting with Peacock’s inability to shut-up this questioner], but it is surprising that he cannot muster the energy to defend it by providing cogent responses to what he wrote. As the RMCA remains mute, the earth is shifting under Abington’s culture.
Fifth, it is recognized that my memos can become a mite elaborative, but all that motivates their generation is reaction by a “reasonable man” to having read the primary documentation. Seeking a last-minute traffic study, for example, may be desirable, but Commissioner-level recognition that the already completed [2007/2009] analyses remain both embarrassingly-unrectified/notably-flawed. With Kline/Peacock running interference for [notably absent] lawyers—Brandolini’s Kaplan and Abington’s Jonas—what remains is “whisper-down-the-lane” hearsay reports of the allegedly fatal-flaws in current zoning ordinances. This must come as news to the Zoning Board, which [having never been presented with examples of what is so contradictory] continues to “labor” under such a crushing burden… successfully.
Sixth, meanwhile, a due-diligence effort resulted in questions/conclusions regarding the proposed Ordinance that are both comprehensive [every clause is problematic] and incisive [with linguistic vagaries parsed with precision]. And Kline/Peacock [and the RMCA’s Linda Rubin] remain stunningly mute, noting the deafening-silence from previously-vocal politicians who are suddenly clamoring for a FUNDAMENTAL CHANGE in the character of this ENTIRE Township. Meanwhile, I am denied basic-data regarding the secret-meetings that they held throughout 2010, raising concern that at least one of them could reflect collusion with Brandolini.
Seventh, when I presented this information to a “shocked” friend [who opened the discussion by stating he had a “tabula rasa” regarding the details of what I was advocating], this individual was invited to review the online versions of both the proposed Ordinance [http://www.abington.org/newspage/downloads/bsc%20redev%20litig.pdf] and the legal precedent that is on-point [http://rmcivic.com/sites/default/files/realen%20v%20upper%20merion%20PA%20supreme%20court%20decision.pdf]. Buried in a prior memo [previously distributed to you-all] is critique of the latter, and dominant in more recently-circulated set of memos is critique of the former. The reader is invited to compare/contrast my analysis of both documents with what has been “said” to represent the views of Township personnel and the attorney/land-planner who were hired with YOUR tax-$$$.
Eighth, a simple way to appreciate how inapposite the Upper-Merion case is—when compared with what Brandolini and his
co-conspirators are attempting to perpetrate upon the suburban taxpayer—is to note this map of the King-of-Prussia Mall/Court [http://www.bing.com/maps/default.aspx?q=&FORM=WLETLB&PC=WLEM&MKT=en-us#JnE9Lm5vcnRoK2d1bHBoK3JvYWQlMmMrdXBwZXIrbWVyaW9uJTJjK3Blbm5zeWx2YW5pYSU3ZXNzdC4wJTdlcGcuMSZiYj00MS4yNjk3NDYzNjIyNTgyJTdlLTc2Ljg3OTg5ODQxMTUwMiU3ZTM5LjQwMjQ0NjcyNDUzOTUlN2UtODIuNTE1ODg0NzM5NjI3]. The land of-interest is the large triangular-plot which is just to the west of the Schuylkill Expressway. It may be noted that 23 [twenty-three] hearings were held [page 5], yielding just another STARK contrast with what Kline/Peacock are trying to RR-through the Board of Commissioners [while the consciousness of the community is being distracted by the Holiday Season]. The reader is invited to tick-off the multiple deviations of this “landmark” case from what’s happening in Abington, as the narrative is reviewed, and then wonder why advocates for capitulation to Brandolini would cite it as controlling…and adverse to the interests of the Township and its citizenry.
Ninth, anyone who watches the second “Planning Commission” hearing [http://abington.org/channel43.htm] will note that the “approval” resolution adopted @ its conclusion was qualified…without specifying what changes would be viewed as desirable! Such is the level of representation that these Commissioner-appointees have devoted to this vital challenge to your decision to build your lives around homes in [suburban] Abington. Is it not strange that the culprits—guilty of abdicating their responsibilities to represent the voters—endorsed these sweeping efforts and then hibernated, after having hosted only one Town Meeting [on an evening after a day of inclement weather]?
Tenth, here is the “Cliff’s Notes” version of all-you-need-to-know about what’s planned by Kline/Peacock for your future. Viewers of the videotape will soon be able to note that Peacock desperately tried to interrupt my focused-questioning of Kline regarding the Upper-Merion case; ultimately, he relented, concurring that the inherent “Police Power” of the Township extends to ensuring that “Public Health/Safety” is maintained. Denials that traffic-congestion is now applicable thereby fail to convince the bottle-necked driver who is driving southbound on Susquehanna Avenue, approaching the traffic-light @ Rydal/Valley Roads; how often have you been unable to cross
that intersection [after having been green-lighted] because of the lineup of cars confronting the T-intersection @ the RR-bridge? And how often has this occurred in mid-morning (rather than just during rush-hour)? And might you imagine the inability of an ambulance, fire-engine, or police car to wend-its-way to an emergency via this maximally-congested highway-route?
Does anyone else find these rapid-fire issues to be outrageous?
The above constituted public/personal elaboration. Deferred was critique of the suggestions [supra] of Peter Morse; it could be argued whether it is desirable to maximize attendance @ meetings, but we must maximize communication and, possibly, hire a set of experts.
During a private meeting, it was learned that the criteria for “impervious surface” have been considerably liberalized. Whereas residents (in their most intense districts) are only allowed to have a maximum of 55% and the currently-applicable PB [“Planned Business”] allows for a maximum of 70%, the TOD/FTD {“Fairway Transit District”} allowance is up-to-80%.
Hearings – [Personal Essay]
Ambushed!
That was the tenor of the anger animating the public’s attitude expressed during the Abington Township Planning Commission Hearing on November 17th.
Why?
Because the proposed ordinance regarding the Baederwood Shopping Center was so transparently faulty, sporting a “bonus-system” that had been admittedly conjured without citing precedent or authority.
Capitulation.
Indeed, the lawyers had been composing this ordinance secretly—working only with staff and commissioners, not the public—for upwards of nine months.
Railroad Job.Repeatedly, it was advised that it must be approved by the end of January, lest costly court costs befall the township because the owner is placed at a “disadvantage” by the current zoning.
Why?
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Because, although the official tri-parcel status was known by these purchasers when the land “passed” to Brandolini, it had the “right” to claim harm in the process.
Done-Deal.
This was the take-it-or-leave-it atmospheric that overtly pressured the Commission members whenever they raised potential defects in the Ordinance.
Density.
This was the theme of the Commission members and the residents, the response to which the presenter had no cogent reply—no metric for assessment—despite recognizing the concern.
Bottle-neck.
Although reminded that the traffic study failed to include the T-Intersection at the railroad bridge (Washington Lane and Susquehanna Avenue), and that there is already a back-up routinely extending to the Valley Road traffic lightNo remedy.
Despite recognizing this specific issue, the ordinance proponent admitted he had no specific relief to offer suburbanites who had chosen homes in a community without urban sprawl.
Primum non nocere.
“The first priority is to do no harm” was presented as both an aphorism for wise medical care and for public officials who feel threatened by a monied developer.
Arrogance.
There is no other explanation for the aloofness exhibited on behalf of this boarded-up strip-mall, allowed to fester to leverage approval in a form of the game “Chicken.”
Behavioral extortion.
The Rydal-Meadowbrook Civic Association website traces the multi-year history of near-unanimous opposition by residents/taxpayers—expressed at multiple hearings—to this project.
http://www.rmcivic.com/brandolini
Smooth-talking Commissioners—Kline and Peacock, both of whom are standing for re-election in 2011—should deign to listen…and to fight to maintain the quality-of-life of their constituents.
A Transit-Oriented-District {TOD} [http://www.oldyorkroad.net/Market%20Analysis.pdf] has been cited repeatedly as justifying the proposed Ordinance; thus, the Marketing Study [pages 56-58 – pages H2-H4] in this 11/29/2007 report must be scrutinized, specifically, this is one of four of the so-designated “Opportunity Clusters” [FIGURE H-1].
ASSETS
The strongest asset of this cluster is its relatively dense concentration of commercial activity which consists primarily of new car dealerships and retail stores—both high-power destinations for local and regional residents. While these types of businesses do not necessarily depend on mass transit to attract their customers, they do create an image that the TOD Cluster is an active, thriving area where businesses are successful. The TOD Cluster combines brand name recognition with good visibility, making development sites in the TOD Cluster among the most valuable in the study area. The cluster combines national chains such as Barnes & Noble, Houlihan’s, Bed Bath & Beyond and Old Navy with Class A office space in Noble Plaza within the ¼ mile of the Noble Station. Typically the primary pedestrian district is located within a ¼ mile of a
train station, and the secondary pedestrian district within a ½ mile of a station.
Extending the TOD influence to a ½ mile radius from the Noble Station captures several other prized national retail chains, including Trader Joe’s and Whole Foods along with residential condominiums and office space in the Rydal East-West complex. The concentration of such recognizable retailers in a free-standing setting offers the opportunity to attract additional brand name retailers to available sites or in combination with mixed-use development to enhance the image of Abington.
Adding to the regional attraction of the TOD Cluster is the concentration of new car dealerships [Sussman Acura and Faulkner Jeep Chrysler Dodge on Old York Road near Rydal Road, and Eckenhoff Buick Pontiac GMC Cadillac Hummer on The Fairway], all within the ¼-mile primary pedestrian district. Also, the Saturn of Jenkintown dealership, located on Old York Road across from the library, is within ½-mile of the Noble Station. In 2006, auto dealerships in the study-area had sales of ~ $367 million, representing 16% of all new and used car sales in Montgomery County. Over $200 million of the $367 million in auto sales came from buyers who live outside the Old York Road study area (serving as an example of their powerful draw), including the dealerships on Old York Road and The Fairway.
The TOD Cluster is one of the richest in assets and opportunities among the four clusters within the Old York Road study area corridor, primarily due to the amount of land that is either vacant or used for surface parking and auto storage. The determination of the opportunity clusters is based in part on the concept that surface parking lots and auto storage areas can be reconfigured to permit new development in the context of existing businesses and institu-tions, while continuing to meet the parking demand of existing businesses. Among the most strategic vacant sites in the corridor in terms of connectivity to the existing concentration of commercial activity, visibility, and proximity to the R3 line is the former Eckenhoff Buick Pontiac GMC dealership on the west side of Old York Road near Rydal Road.
The availability of the vacant car dealership at the southern gateway to the Old York Road corridor in Abington presents an extraordinary opportunity to enhance the image of the corridor as an economic engine that is important to the Township and the County. Another strategic site at the edge of the ¼- mile
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TOD district is the upper parking lot of Noble Town Center which is substantially underutilized. Other opportunity sites include a parking lot associated with Noble Plaza adjacent to the train station and auto storage associated with the new car dealerships located along Old York Road and The Fairway.
Perhaps the biggest asset in terms of future development opportunity is the largely vacant Rydal Waters site of approximately 34 acres, which is now in bankruptcy court. Portions of the Rydal Waters site are located within the ½ mile TOD secondary pedestrian district, providing an acceptable walking distance for new residential and commercial development. Other development opportunities in the TOD Cluster include the Baederwood Shopping Center where there is already a proposal for a mixed-use development of 266 residential units and 168,000 square feet of new retail space. Adding residential units in the TOD Cluster would increase pedestrian activity and create a more urban environment that would benefit existing retailers and help attract new retail stores. At the same time, the proximity of these vacant and underutilized sites to the Noble Station makes them even more attractive for residential development.
Just beyond the ½-mile TOD pedestrian radius is Rydal Park of the Philadelphia Presbytery Homes near the intersection of The Fairway and Susquehanna Road, a growing residential community that could also contribute to a more pedestrian-oriented environment in the TOD Cluster, while providing additional retail demand and local purchasing power. The nearby concentration of Class A professional offices at the eastern edge of The Fairway, including the Thomas J. Paul Building, 1077 Rydal Road and the Rydal Executive Plaza offers the beginnings of the critical mass of office space necessary to attract additional office development.
A significant portion of the tenants in these office buildings provide medical and other health and wellness services, perhaps reflecting the dominant role in the local economy played by Abington Memorial Hospital. At the same time these offices generate a daytime population that could support local retailers and restaurants.
CONSTRAINTS
From an economic point of view the TOD Cluster has few constraints. The most troublesome constraint is that there are
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only a few truly vacant sites, limited largely to the Eckenhoff Buick Pontiac GMC site and the Rydal Waters site.
The center of gravity in the TOD cluster wants to be located close to the Noble Station to take advantage of the proximity to mass transit as a marketing tool, particularly for any new residential and office development. Except for the vacant Eckenhoff site, any new development in this cluster linked to TOD would require reconfiguration of existing auto dealerships or shopping centers, an action that is possible but not imminent as suggested by the public’s reaction to the redevelopment of the Baederwood Shopping Center. However, market forces (i.e., supply and demand) may win the day for future development.
Discussion of this presentation is best initiated by noting the emphasized excerpts supra. Essentially, resident-opposition to reconfiguration inter alia of Baederwood was recognized, as was the fact that the true center-of-gravity is distant therefrom, @ the Noble RR-station. Thus, if “market forces” are to be validated over the constituency, “attention must be paid” [ref: Death of a Salesman] to the current community rather than to brute Developer force. Therefore, the Township is AWARE of community opposition…but has not invited input.
This report also discusses—albeit far too briefly—the traffic situation in this region [http://www.oldyorkroad.net/Existing%20Conditions/Existing%20Conditions%20Report.pdf, “Existing Conditions Report” – page 11]:
Off-peak vehicular congestion along Old York Road also needs to be evaluated when considering the corridor. Significant contributors include traffic traveling to major destination shopping centers such as the Willow Grove Mall, The Fairway and Baederwood Shopping District and Abington Shopping Center.
Again, further study is advised…but has never been accomplished [see pages 31-33].
Abington Comprehensive Plan – 2007
The Abington Comprehensive Plan has been repeatedly cited as having justified the TOD [http://abington.org/code/Comp%20Plan%202007_files/comp%20plan%20072707.pdf]. To appreciate the endpoint [recall how Babe Ruth pointed to the bleachers before an at-bat], it is desirable to cite in-toto the Zoning section [Chapter 9] that concludes this document:
The goal of zoning is to implement the vision expressed in master planning for the Township. As master planning is envisioned to be an ongoing, dynamic process, the Zoning Ordinance must provide for and encourage development that is innovative and addresses the needs of a changing population. This implies that updates of the Zoning Ordinance should occur more frequently than they have in the post.
The current Zoning Ordinance of May 9, 1996 (as amended) largely was based on determining the existing uses in a zoning district and codifying them as permitted or conditional uses in those districts. This, in most cases, led to a large overlap of permitted uses across the various districts, which in turn lessened the distinctiveness of each district. For example, the commercial Special Commercial and Planned Business Districts are very similar and include uses that do not complement each other (a lumber yard, together with a medical clinic, a tavern/bar and an assembly plant in the case of SC).
Abington Township is a highly developed, highly diverse municipality that today is attractive both residentially and commercially; however, the current Zoning Ordinance is limited in directing future development in a more coherent manner than currently exists, especially in Mixed Use, Apartment/Office and Commercial districts. Nationally, old industrial and heavy commercial uses are giving way to residential, office and retail uses. The same trend needs to be encouraged in Abington to keep the Township competitive with surrounding municipalities.
The use of overlays is a possible method of directing redevelopment. For example, Abington has two distinct commercial corridors, along Easton Road and along York Road. Instead of breaking these corridors into distinct districts with fixed boundaries as currently exists, they simply could be designated as commercial corridors with multiple overlays providing the characteristics to be encouraged. Because two or more overlays could overlap, this approach could provide smoother transitions between areas that incorporate substantially different uses. Alternatively, instead of narrow, continuous strips, the existing corridors could be limited in length but expanded in breadth and integrated with the
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surrounding residential areas. This would create more Town Center areas providing a cohesive integration of commercial and residential. The point here is that innovative methods of controlling and directing future growth are required rather than the current approach of fixed, static boundaries based in existing uses.
Any zoning changes need to maintain environmental standards with respect to wetlands, floodplains and steep slopes. The maintenance and possible creation of open space, as well as the preservation of historic resources in redeveloped areas also are requirements.
To these ends, the Zoning Ordinance needs to be revised with the following objectives:
1. Redevelopment should lead to higher and better uses relative to current uses.
2. Redevelopment should lead to each district having a more distinct character than currently exists.3. Non-complementary permitted uses in a district should be reduced to the maximum extent possible.
4. Areas of limited extent where significantly different or incompatible uses currently exist should be made more uniform through a change in zoning designation and/or a permitted use.
5. Improved buffering or transition zones between different districts should be established, especially between residential districts and those districts that have intense uses.
6. Greater availability of residential rental properties in clustered developments or in town settings should be encouraged.
7. The development of senior housing should be encouraged.
8. The expansion of town settings should be encouraged.
9. New permitted uses should be considered for old commercial/ industrial areas where current uses are declining.
10. Creative mechanisms should be incorporated that permit and encourage the expansion in breadth and limitation in length
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of commercial corridor areas where such change will achieve the size necessary for destination areas to be developed.
11. The number of districts and the makeup of each district should be reviewed with the objective of consolidation and simplification.
Of-interest is encouragement of a “Town Center” mixed-use approach, plus rentals. Here, one wonders whether much discussion occurred prior to adoption of this proposal and, thus, it may be instructive to review the minutes of the relevant Commissioner Meetings to glean input in this regard. Otherwise, updates of the Zoning Code are advised, but it is not advised that the Zoning Board be bypassed within the context of such ongoing efforts; essentially, a routinized effort to inject dynamism/flexibility is recommended throughout.
The Comprehensive Plan also included a Transportation Plan [Chapter 6, pages 76-83] that encouraged mass-transit [page 6-4, page 79]; also recognized, however, were inherent limits when implementing such plans [point #4, page 6-5, page 80]: “Recent observations of the Meadowbrook, Rydal, Roslyn and Ardsley train stops have shown that parking space capacity is virtually at one hundred percent occupancy during weekdays, which suggests that a limiting factor of the current rider counts is the amount of available parking.” {Thus, it would appear to be a “win-win” opportunity to increase available parking as a priority, prior to drawing hoards of all-day congestion to the regional roads.}
Recognizing these concepts, it is desirable to analyze vehicular data:
Introduction
Transportation facilities are the “life blood” of a community. As such, they are paramount to a community’s continued growth and prosperity. A transportation system should be designed to meet the differing mobility needs of residents, businesses, emergency services (police, fire, medical services), and commuters alike. The system needs to consider individual automobile/truck transportation and public transit, as well as pedestrian travel.
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Abington Township is served by an extensive network of township streets, county roads, and state highways. As an important and growing member of the Philadelphia metropolitan area, Abington Township has had to struggle with increasing traffic congestion and time delays, road hazards, and inadequate off-street parking. Moreover, the shift to inter-suburban travel (as described in Section B of the 1992 Comprehensive Plan) has dramatically increased usage of major Township thoroughfares such as York, Easton, and Moreland Roads. In addition to roadways, rail transit is and will continue to be of major importance to many city commuters. Increasingly health-minded and environmentally conscious residents also desire facilities for pedestrian travel (bikeways and sidewalks).
An important part of the overall comprehensive plan for Abington included this study of the Township’s transportation facilities and thoroughfare system. While not a comprehensive “traffic study or plan,” the report included herein serves as the initial step in arriving at an overall plan. This section will: 1) assess the adequacy of the current transportation system, and 2) determine the capability of the system to meet future needs. Information for this section was compiled from the 1964 and 1977 Comprehensive Plans for Abington Township.
More importantly, the Township retained the engineering/transportation planning firm of McMahon and Associates (of Willow Grove, Pennsylvania) to assist in this effort. A detailed report including maps, traffic counts and other supportive data, analysis of hazardous intersections, general discus-sions, traffic projections, recommended improvements, and summary is an addendum to the 1992 Comprehensive Plan. Please refer to the report for a more thorough discussion concerning transportation and thoroughfares.
Private Transportation (Automobiles/Trucks)
Previously, the Township’s 1964 and 1977 Comprehensive Plans set forth a functionally differentiated system of highways and roadways.
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Four basic types of highways were set forth: major arterials designed as inter-regional routes in the State Primary System; primary streets designed to serve as inter-community connector streets in the State Secondary System; Township secondary or feeder streets designed to collect and distribute traffic within Abington; and local resident streets. The purpose of classifying highway types is to establish right-of-way/pavement widths and other design standards in accordance with the function of the highway and the projected volume of traffic it will carry. Refer to Table 30 in the 1992 Comprehensive Plan for current street classifications.
Major Arterials
The major arterial system of Abington Township connects the major centers in the area, transports the highest traffic volumes, accommodates the longest trip desires and carries a high proportion of the total vehicle miles traveled in the area. Earlier Township plans called for rights-of-way in accordance with State Highway Standards of 80 to 100 feet for major arterials.
Often the recommended rights-of-way cannot be realized in every case; however, these standards are to be applied through the subdivision/ land development regulations whenever new development is proposed along major arterials. Several of the major arterials in the Township are urgently in need of highway improvements as they currently handle traffic volumes in excess of what the roads were originally designed to handle. State Highway Department standards for traffic capacity of major arterials is approximately 37,100 vehicles per day for four-lane arterials at a Level of Service E. Yet, the study by McMahon demonstrated volumes in excess of 15,000 vehicles/day on some of these arterials including Huntingdon Pike at 23,200 ADT; Moreland Road (Rt. 63) at 18,000 ADT and Old York Road (Rt. 611) at 35,000 ADT.
Primary Streets
Rights-of-way of between 50 to 80 feet are recommended for primary streets to handle the State Standard capacities of 16,200 vehicles per day at a generalized level of Service E. Many of the Township’s primary streets only have rights-of-way of 33 feet, yet carry from over 8,000 vehicles per day to 14,650 per day. Of the 15 roadways studied by McMahon,
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these are a few of counts found: Susquehanna Road at 12,900 to 14,650; Jenkintown Road at 14,650 and The Fairway at 11,800. However, Levels of Service will vary with the individual physical characteristics of each roadway.
Secondary Streets
Table 30 in the 1992 Comprehensive Plan lists roads in Abington’s secondary (or collector) street system. These roads, according to State Standards, have a capacity of 2,500 vehicles per day and should have rights-of-way between 50 to 60 feet. In the McMahon study, we find existing traffic volumes range from 3,900 vehicles per day on Shady Lane to 5,850 vehicles per day on North Hills Avenue (portion) to 9,500 vehicles per day on Highland Avenue.
Residential Streets
Local residential streets, which make up the bulk of the highway system in Abington, provide access from individual homes to collector streets. With standard carrying capacities not exceeding 500 vehicles per day, the recommended right-of-way is 50 feet.
Intersections
The transportation study by McMahon and Associates stated that, while roadways throughout the Township “are important in providing carrying capacity to accommodate travel demands, it is generally at the intersections of the various roadways where conflict and congestion develops.” The Transportation Study performed by McMahon & Associates studied 13 intersections identified by Abington Township as being the most critical. They compared movement at the intersections with standards of the “Highway Capacity Manual” which rates the “Level of Service” for intersections and assigns them a grade ranging from A to F (A being the least delay and congestion, F being the very worst).
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The study performed by McMahon and Associates showed 9 of the 13 intersections functioning at a ‘Level of Service F’ during one or more hours during peak travel including the intersections of: Susquehanna Road/York Road, Susquehanna Road/Highland Avenue, Susquehanna Road/Washington Lane, Susquehanna Road/Maple Avenue, Moreland Road/York Road, Moreland Road/Fitzwatertown Road, Fox Chase Road/Cedar Road, Edge Hill Road/Jenkintown Road and Edge Hill Road/Limekiln Pike.
Moreover, the study showed trouble at other intersections (Jenkintown Road/Meetinghouse Road, Jenkintown Road/Washington Lane, Township Line Road/Meetinghouse Road, Township Line Road/Church Road, Easton Road/Woodland Road, and Fitzwatertown Road/North Hills/Woodland Road) which warrant future study.
The remaining intersections described in the report should also be improved as indicated in the report.
McMahon & Associates also studied accident records for roadways and intersections; their review indicated the approximately 38 intersections in the Township have had more than 10 accidents over three years (1988-1990). The intersections found to have had the highest number of accidents include: Old York Road/Susquehanna Road, Old Welsh Road/Old York Road, and Highland Avenue/Susquehanna Road (all of these intersections recorded 40+ accidents in the same three year period). Improvements at hazardous intersections (such as signalization, striping) could reduce the number of accidents. The McMahon study includes suggested capital improvements to study roadways and intersections to make them safer and more efficient. The study also identifies methods to improve the existing and future functioning of these intersections including separate turning lanes, traffic signal improvements and installation of new traffic signals.
There is a lot of grist, here, both regarding overall Township performance and how it may specifically be applied to the issues at-hand. For example, follow-up studies were advised three years ago [including @ the intersection of Washington Lane and Jenkintown Road, which abuts the region where expansion of the region around the Acme has been OK’ed]; if
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they were not accomplished, someone should assume responsibility for explaining why.
While acknowledging the increasing congestion and the need for more studies, the concept that arose legally as to the import of traffic studies was corroborated in the first sentence of this report: “A transportation system should be designed to meet the differing mobility needs of residents, businesses, emergency services (police, fire, medical services), and commuters alike.” The exertion of police power to ensure the ability to provide emergency services is, indeed, corroborated and is, indeed, a cognizable parameter.
Citing a 1992 report that shows Susquehanna Road and The Fairway to be accommodating near-capacity volumes [as per state-standards] suggests strongly that another study that accommodates an additional two decades of growth would yield greater-than-capacity data. Thus, it is unclear why such information has not been acquired and, certainly, it is needed before any mega-development is approved along the Fairway and its networked streets.
Finally, the intersections—as anticipated empirically—are highly problematic, including that which is located @ the T-Intersection @ the RR-bridge. That the OYR/Susquehanna intersection is high-volume/high-accident also is of-concern with regard to this Ordinance.
The Land-Use section provides (generic and specific) citations; the former reflects the overall approach to zoning [page 8-13, page 109]: “Revitalize our commercial corridors, Improve housing options to maintain the current and advance our current population, Create guidelines which will enhance our commercial/industrial properties, and Create transition zones between our residential neighborhoods and commercial districts.”
The latter captures (without citing traffic) the specific TOD Plan [page 8-7, page 103]:
Baederwood Shopping Center (Brandolini)
For the past year, the Township has been anticipating a plan to redevelop the Baederwood Shopping Center. A mixed use development that could have two or more of the following:
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retail, office and housing, has been the initial plan presented by the developer. Baederwood Shopping Center is a prime example of an opportunity where the Township and its collaboration with the developer could bear fruit beneficial to both parties. A mixed-use development, if done with care and sensitivity, could enable the developer and the Township to produce a product on a property in an area already populated with higher-density development. This type of mixed-use redevelopment could provide the age-restricted housing discussed early in this section with retail and access to public transportation and a major thoroughfare (Old York Road) through the Township. The potential of this type of development could be the infusion of pedestrian traffic, destination mode and retail revitalization needed within the Township.
Can it truly be asserted that this plan has been presented to the community with requisite “care and sensitivity”? This opportunity, if squandered, would not diminish future plans related to development near the Noble RR-station…which would be far less apt to cause congestion along Susquehanna Road…and which could still accommodate mixed-uses.
The Goals/Objectives [page 1-3 et seq., page 5 et seq.] illustrate points noted subsequently (throughout the report). They relate to Housing [enhance diversity, but conserve the character and encourage the maintenance of existing housing], Natural Resources/Green Spaces [preserve/protect], Parks and Recreation [collaborate], Community Identity/Pride [Encourage open access to all of Abington’s governing bodies], Township/Community Facilities and Services [identify/fulfill, maintaining awareness of realistic fiscal constraints], Wastewater Treatment [update facilities], Transportation [relieve traffic congestion and provide for the safe and efficient access to commercial, recreational, and institutional centers; encourage mass-transit and non-vehicular movement; update McMahon Study; encourage Transit-Oriented-Development and the development of medium-/high-density residential uses at transportation nodes and in commercial districts]; Township Finance [stability]; Land Use & Zoning [revise zoning map to comport with comprehensive plan, encourage mixed-use, create a seamless transition between commercial corridors and residential neighborhoods]. These generically restate what already has been discussed.
Of greater interest within the context of the proposed Ordinance is how it comports with the need to enhance economic development [to enhance Abington’s image and tax-base]; cynicism would arise if it were to be conclude that undue emphasis exists in this context.
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Numerous measures were advised: Promote mixed-use business districts along main arteries (residential, retail, office); and Develop methods to aesthetically improve commercial corridors with surrounding neighborhoods to create a supporting climate. It is noted that mixed-use is to occur “along main arteries” [preferentially OYR, more than The Fairway], and creating a “supportive climate” is necessary [rather than pushing-through an Ordinance].
And the recommendation that collaboration occur among multiple entities [Administration, Code Enforcement, Community Development, the EDC and the PC] suggests strongly that these entities also be provided the opportunity to review proposed Ordinances; otherwise, it would not be realistic to aspire to follow the advice that they “meet periodically to share information, vision, and policies in an effort to maximize departmental resources of the Township in achieving the economic development mission.” Here, the absence of input from any of the correlative departmental committees [except for discussion @ two meetings of the Planning Commission] yields the conclusion that due-diligence was sorely lacking.
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Kline/Peacock “Lead the Witnesses” - Constituents Are Denied Full Disclosure
An e-mail [minus annotation] from Kline regarding this entire issue is reprinted herein; each point is followed by a commentary on its legal underpinnings [which are damning]:
From: Commissioner Steven Kline [mailto:[email protected]] Sent: Monday, December 13, 2010 9:13 AMSubject: RE: Please correct the information for me
[personal comments omitted]…Some facts:
The Realen Homes case is absolutely relevant to this issue and is the law of the land (PA) because it was decided by the PA Supreme Court. It is the opinion of not just the township solicitor, Mr. Kennedy and Mr. Jonas but other very experienced land use attorneys I have consulted with outside of the township process that agree that in some cases the Baederwood Shopping Center is more of a compelling case of reverse spot zoning.
{As discussed supra, the Realen case supports the TOWNSHIP.}
The SNR (Senior Neighborhood Residential) is not a viable cure because the zoning requires a minimum lot size of 25 acres. Rydal Park has no interest in purchasing Brandolini’s 8.32 acres or in allowing access from their property. Therefore the SNR would not be seen by any court to be a viable cure in this situation. It would be seen as a more restrictive ordinance than the R-1 regardless of the increased allowable density (if you ignore the 25 acre minimum lot size requirement).
{Fine, then no change is needed. It could be argued that Brandolini could prefer this designation—to maximize units—but if everyone considers the point “moot,” then the “solution” lies elsewhere…specifically, by maintaining the status quo}.
The township cannot strip Brandolini of its property rights to certain density already afforded them from the PB District (circa 1996) because there is a perceived traffic issue if the property were to be developed to its fullest under the FTD zoning or the PB zoning.
{This is, perhaps, the pivotal argument that could be made by Brandolini: “Here, simply developing “as a right” the 10-acre Trapezoid, it could enhance traffic; therefore, it should be allowed to do something identical by using all 18 acres.” Yet, studies would be needed to prove this,
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inasmuch as the combination of both more homes/businesses would not permit Brandolini to claim this trade-off easily. Also, this case was superseded by the Realen case, which does not restate any mandate that a particular clause related to traffic-congestion be noted at the particular site in the zoning law where the challenge would be effectuated; instead, the PA-Supremes refer to generic “police power” for inter alia safety. Therefore, this cite is not controlling when the case-law in PA states otherwise. Nevertheless, it does “inform” the debate, for it illustrates the burden that is on Brandolini to be able to claim any such traffic-equivalency…which would require performance of a traffic study…which would therefore delay the process.}
This is an excerpt from the book “Ryan on Pennsylvania Zoning” considered to be the bible on PA zoning laws.
The general rule is that the governing body must approve a subdivision plan if it complies with the applicable statutes and ordinances. While there is some authority for the proposition that a subdivision application may be denied if there is a showing that the plan would injurious to the public interest, Braun v. Swarthmore Borough, 288 A.2d 830 (Pa.Cmwlth. 1972), the kind of public injury which will justify denial of an otherwise conforming plan must be specific, and substantial. From the outset, the courts ruled that a subdivision application may not be denied on the grounds that the use is inappropriate, or that the plan shows ‘poor planning’ and ‘over development’ or does not make adequate provisions for traffic flow, or for other similar or ‘policy’ reasons unless those policies are referenced in the specific requirements of the ordinance itself. Scluffer v. Plymouth Township, 379 A.2d 1060 (Pa.Cmwlth. 1977) [string citations omitted] [emphasis added].”
{There indeed is “a showing that the plan would injurious to the public interest” that’s “specific, and substantial”; recall the [incomplete] traffic studies [cited in the two planning reports]. Even if the currently-applicable law doesn’t reference therein to public safety, the Realen case creates this police power.}
You seem to ignore the fact that Brandolini current holds the rights to develop a mixed-use project including retail/office and residential on the front 10 acres under the PB (Planned Business) District. The PB zoning district gives no limitation on the mixture or square-footage cap of retail/office space; as long as they can find the parking they can build it. The residential use allows for a maximum of 430 efficiency units on just the front 10 acres. The FTD Ordinance caps the residential density, with bonus points, at 246 units (on the full 18.8 acres), 36 less than the maximum they requested under the BSCRD District (15 units per acre as per their drafted ordinance) and the commercial density at ~200k sq.ft. (on
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the full 18.8 acres) with bonus points. Are you sharing these comparisons or have you deemed them irrelevant to your cause.
{Yes, “as long as they can find the parking they can build it.” But can they do so? Obviously, this is being suggested as a threat, but it also entails a legal “escape” for the Township; Brandolini cannot claim to be disadvantaged by current law.}
…[personal comments omitted]
Therefore, invoking this Kline-memo, Brandolini hardly has a slam-dunk!
The Kline-claim that the proposed Ordinance has been available for review since September [on the Township website] has been probed, based on portrayals thereof…in Kline-memos.
On 9/29/2010, he wrote:
BAEDERWOOD S.C. PROCESS
In my last newsletter, I reported that the Board of Commissioners was going to start advertising for the first public hearing on November 3rd at 7:30 pm in the main board room on the second floor of the Township Administration Building of Brandolini’s Substantive Validity Challenge of the R-1 Zoning for the rear 8.32 acres of their property. This part of their property is the mostly wooded hill behind the shopping center and they are contending that the R-1 Residential Zoning District (which only allows single family homes on 1 acre minimum lot sizes) is a left-over zoning classification after other properties surrounding this 8.32 acres have been rezoned to higher density residential and/or commercial zoning. The term they use is “Reverse Spot Zoning.” Brandolini filed this Substantive Validity Challenge back in the January of 2009 and has granted the township several extensions of time postponing the start of this hearing. In December of 2009, the Board of Commissioners hired an attorney who specializes in Land Use, Marc Jonas, to examine the possibilities of a defense of the R-1 Zoning and represent the townships interests during this process. The Board also hired a Land Planner, John Kennedy, to examine the history of the zoning changes in and around the parcel in question and to look at Brandolini’s proposed cure for this perceived problem and also represent the townships interests during this process.
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The hearing scheduled for November 3rd will be the first public meeting of what I suspect will be several public meetings to deal with this issue. The Board of Commissioners will sit as judges in the hearing listening to the testimony of the applicant attempting to prove their case that the Validity Challenge has merit. The Board’s special counsel, Mr. Jonas, will be present during this presentation and will attempt to cross examine, dispute or question any of the testimony presented if deemed necessary. Township’s special counsel will then be given an opportunity to defend the Validity of the Zoning if he feels there is a defense. After all testimony is presented, the Board will then need to make a judgment on whether the applicant has proven that the current Zoning is Invalid. In the eventuality that the Board finds this to be true the Board would need to adopt a cure for this invalid zoning. Brandolini has proposed a cure that would extend the PB Zoning (Planned Business District) that current governs the front 10 acres of their property (where the shopping center exists currently).
This proposal does not seem to be in the best interest of the township and the neighborhood given the broad-base regulation that exist in the PB Zoning District. To prepare for this potential outcome the Board’s Land Planner, Mr. Kennedy, has been working on a cure that would incorporate the ideas and recommendations expressed by the Board of Commissioners, the Comprehensive Plan and the Old York Road Corridor Improvement Study. This cure would be a new Zoning District called Fairway Transit-Oriented District (FTD). Although this Ordinance is only a “Draft” and although the process may not be presented, it is available for review on the Township’s Website.
[http://www.abington.org/newspage/downloads/bsc%20redev%20litig.pdf] I want everyone to understand that this is only a “Draft” and would still need to go through a full public process before it can be adopted. I welcome your comments and concerns. For those that are curious, the current renovations at Baederwood S.C. are primarily facade renovations and there is change of use proposed. Here are renderings showing what the facade renovations.• Building “A” – Chico’s & Postal Factory bldg
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• Building “B” - Former movie theater Bldg • Building “C” - Pharmacy Bldg
Therefore, it was indeed posted, but announcement of this fact was explicitly coupled with the admonition that “the process may not be presented.”
On 10/21/2010, he announced the cancellation of the meeting:
BAEDERWOOD S.C. - MEETING CANCELLED
At the request of the township, the meeting scheduled for Wednesday, November 3rd is cancelled. No new scheduled date has been determined but it is anticipated that a new meeting will be scheduled in January 2011. This cancellation has been done in coordination with Brandolini {emphasis added} and the township is expecting an extension letter on their Substantive Validity Challenge.
It would appear that this occurred following agreement with Brandolini, but there was no statement which suggested the aforementioned Ordinance-posting had attained any degree of operational legitimacy.
Thus, the reasonable recipient of this newsletter would not view it as mandating intense scrutiny be trained upon the aforementioned proposed Ordinance; indeed, this did not include a hyperlink to it, reflecting the fact that, perhaps, it was going to be subject to revision before being formally presented to the public for potential approval.
The Peacock-newsletter of 9/6/2010 did not include a hyperlink and, indeed, it documented the fact that this item had been deleted by the agenda of a Board Committee:
By now, most of you have seen that the Baederwood Shopping Center is undergoing a facelift. I first reported this to you in my August 2010 newsletter. Just to reiterate, the facelift includes only renovations to the facades of the three main buildings (not including Whole Foods Market). The renovations do not include changes in use or expansions to current structures and therefore did not require any zoning or land development approvals. Renovations are scheduled to take four months to complete. Brandolini hopes to fill the shopping center with tenants in time for the 2010 holiday season. At the Code Enforcement Committee meeting of the Board on August 30, one item, advertising a public hearing on the
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proposed Fairway Transit Zoning District (FTD), was deleted at my request so that it could be presented at the still-pending hearing on the validity challenge filed by the Brandolini Companies for the Baederwood Shopping Center (see previous newsletters for details). I will notify you as soon as a hearing date is determined. The deadline for that hearing to be held is November 30. For your information, the FTD was developed by the land planner hired by the Township, Kennedy Associates. The FTD is a potential curative amendment if it is determined by the Board that Brandolini’s validity challenge should be upheld. This is why I felt it was much more appropriate that the FTD be presented, if applicable, as part of the validity challenge process.
Clearly, he was conveying a sense of “tentativeness” commensurate with that that was in the Kline-memo. The public was thereby lulled into a sense of relaxation and, thus, it cannot be reasonably claimed that its attention was drawn to this proposed Ordinance until November, when the first hearing was held before the Planning Commission [which, by the way, did not convey a sense of urgency regarding its proceedings during that first meeting, contrasting with the chronologic-pressure that was palpable during its second [December] hearing.
The most-recent Peacock-newsletter states, in-toto, his oral comments; he underscored the key-sentence that [as per a retired judge] is inapposite to courtroom behavior:
It has been an eventful three years with regard to redevelopment of the Baederwood Shopping Center (BSC). It would take a book-length narrative to remind you of everything that has transpired in that time. And, while events in 2008 and 2009 seemed to move slowly and with little to no progress, 2010 has seen a flurry of activity, with major events occurring in a relatively short period of time, in particular, since September.
In the simplest of terms, I will reiterate that Brandolini Companies filed a validity challenge that seeks to change the zoning on one of the parcels on its property (the wooded hill) from R1 (low density residential) to PB (Planned Business) to match the PB zoning of its other two parcels (the shopping center and parking lot). If you need a refresher beyond that, please see my many previous emails from this year and before.
For now, I will address the outcome of the most recent meetings (Planning Commission, 11/17/10 and 12/15/10 and Town
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Meeting, 12/16/10) and advise you of what lies ahead. But, first, as a reminder:
PUBLIC HEARINGBAEDERWOOD SHOPPING CENTER - FTD ORDINANCE
JANUARY 6, 20117:00 PM
BOARD ROOMABINGTON TOWNSHIP BUILDING
1176 OLD YORK ROAD Recap of Planning Commission (PC), 11/17/10 and 12/15/10 After two meetings and over 6 hours of deliberations, including questions and comments from the PC and the public, the PC unanimously approved the draft Fairway Transit District (FTD) ordinance that the Township is presenting as its cure to the validity challenge filed by Brandolini. The Board of Commissioners will receive a copy of the PC’s recommendations for consideration when the Board deliberates on the draft FTD on 1/6/11. The draft ordinance can be viewed on the Township’s website at the following link: http://www.abington.org/newspage/downloads/bsc%20redev%20litig.pdf Recap of Town Meeting, 12/16/10 Commissioner Steven Kline, Ward 1, and I hosted a Town Meeting to discuss the draft FTD, to listen to comments and to answer questions. Approximately 50 people attended. I briefly discussed a chronology of events from the time that Brandolini purchased the property in 2005 to the present (see pages 1, 2 of the attached Handout). In the chronology, I included entries that refer to the many different “proposals” that Brandolini presented to the Township, either officially or unofficially, since they bought the BSC property. Feel free to draw your own conclusions. Clearly, the key event is the filing of the validity challenge on 1/24/09, which is how the chronology is subdivided in the handout. It was from that point that the Township was involved in a legal proceeding over the status of the BSC property. This left the Township with three options: defend the existing zoning of the BSC property in court, accept a cure to the zoning as proposed by Brandolini, or create our own cure to the zoning.
As you can see from the chronology handout, and from the many emails I have sent on this subject previously, the Township engaged an independent land planner with over 30 years of experience to create its own cure, the FTD.
I will stress here again that it was the considered opinion of both the land planner and independent expert counsel (over 30 years of experience in zoning law) that this was the best course of action. As the chronology also shows, there were numerous extensions of the deadline for hearing the validity challenge, granted by Brandolini to the Township, since the challenge was first filed on 1/24/09. Brandolini has indicated that the most recent extension granted, which ends on 1/31/11, is the last. Legally, we have no other option but to have the validity challenge hearing by the 1/31/11 deadline. That last point has been confirmed by both the Township solicitor and our independent counsel. Commissioner Kline briefly discussed a slide presentation, (attached) prepared for us by our land planner, that compares redevelopment scenarios under the current zoning (two parcels PB, one parcel R1), and under the cure that Brandolini is seeking (all three parcels PB) versus the cure that the Township is proposing (the FTD ordinance). Here follows a slide-by-slide narrative (with thanks to Commissioner Kline):
Slide #1 - This shows the current zoning map for this area. As noted above, the BSC is made up of two different zoning districts (PB and R1). Brandolini has claimed that the R1 portion is “Reverse Spot Zoning” because the parcels around the R1 district are of a more intense zoning. PB is the township’s most intense commercial zoning district, AO (Apartment/Office) is the Township’s most intense residential/office district and SNR-Senior Neighborhood Residential is a zoning district that allows for age -restricted carriage house/townhouses district which requires a minimum lot size of 25 acres.
Slide #2 - This shows an aerial view of the area with the BSC property outlined.
Slide #3 - The Township asked our land planner to examine the current zoning for the front parcel to understand the potential residential yield. This slide
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shows how 276 residential units could be laid out on the front 10 acres as a by-right use under PB zoning. Although commercial space is not calculated, there is no limit to the amount of commercial square footage under PB that can be added as long as a developer can find the parking (parking garages are a by-right use in PB) and meet all other dimensional requirements.
Slide #4 - Shows the residential yield if Brandolini was successful in their validity challenge and the entire 18.9 acre property was zoned PB. This assumes the shopping center remains. Again, keep in mind that commercial square footage can be added with the only limiting factor being parking and dimensional regulations.
Slide #5 - Shows the residential yield if Brandolini was successful in their validity challenge and the entire 18.9 acre property was zoned PB. This assumes that the shopping center is razed. Once again, keep in mind that commercial square footage can be added with the only limiting factor being parking and dimensional regulations.
Slide #6 - This slide lists both the maximum residential and commercial development for the entire 18.9 acre property if it was zoned under the draft FTD ordinance. No layout is shown.
Slide #7 - Shows the comparison of the entire 18.9 acre property using both the density regulations under PB zoning and the draft FTD ordinance.
Slide #8 - Explains that “Zero Density is Not an Option”. This is shown because, as you can see in Slide #3, the property is already afforded a certain amount of density under PB zoning (which was a part of the 1996 Township Zoning Ordinance). This slide makes it clear that the Township cannot strip the property owner of these rights.
At the PC meetings, the Town Meeting, and at every single public meeting to date on this issue, as well as in email, phone, and face-to-face communications, the number one concern
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raised about redevelopment at the BSC has always been traffic. Here are some important points to keep in mind on that issue:
• Any application for development under the FTD Ordinance would require an independent traffic study. Traffic improvements identified in the study could cause the developer to reduce their density if they are not willing to pay for the required traffic improvements.
• The township cannot use the potential of traffic problems to deny a property owner their rightful use of their property. This is state law.
• Because of the current density afforded Brandolini, on just the front 10.5 acres, the potential for similar traffic issues already exists and therefore cannot be used as a rationale to reduce or strip the property owner of their property rights.
• The draft FTD ordinance uses a Conditional Use process by which the township can impose reasonable conditions, including traffic improvements that are related to the development of the property.
I would like to direct you also to pages 3,4 of the handout for highlights of the draft FTD ordinance (if you are not inclined to review the ordinance in its entirety). I hope it is apparent that the FTD affords the Township considerably greater control over the scope and nature of development of the BSC property than we have under either the existing zoning (PB and R1) or under Brandolini’s cure (all PB). In addition, please see page 5 of the handout for comparisons of what is allowed under the draft FTD and PB. Where it appears that the FTD is slightly more liberal in two areas (building height, maximum impervious coverage), it is clearly more restrictive in three more important areas (density, mix of uses, design requirements). To reiterate, our only options at the present time are: 1. Fight Brandolini in court to preserve the R1 zoning
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on the wooded hill. This would likely result in years of litigation, several hundred thousand dollars in legal and expert fees, and produce an outcome that would be of no advantage to the Township, even if we won (note Slide 3), an outcome which is highly unlikely, in any case.
2. Approve Brandolini’s cure of all PB zoning. This is clearly not to the Township’s advantage (note slides 4 and 5)
3. Approve the FTD ordinance (note slides 6, 7 and the handouts, as well as the advice of our independent counsel and land planner).
In sum, what we have done is to take an inherited problem (the 1996 PB zoning ordinance and “reverse spot zoning” of the surrounding properties) and crafted a cure to a challenge filed against the Township that affords the Township the ability to regulate redevelopment of the BSC in ways that we do not possess currently, while still preserving the property rights of the owner. These two points are equally critical to any resolution of this situation. I will not represent that this is a perfect solution, because I know that opinions among my constituents vary on this issue. I will tell you that I believe strongly that it is the best possible solution, under the circumstances. The next step is the hearing on 1/6/11. The Board of Commissioners will review the draft FTD ordinance and take public comment. If possible, a decision on the ordinance could occur that evening. If necessary, the hearing could be continued. However, a decision must be rendered by 1/31/11. If you have any questions or comments, don’t hesitate to contact me. Please forward this email to your neighbors and friends in Ward 7. If you receive this email from a third party, please reply so that I can add you to my distribution list. As always, thank you for your support. All the best…
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The fourth alternative, not articulated, is simply to request another continuance [vide supra] to permit performance of due diligence study (including a traffic analysis).
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E Testimony to Board of Commissioners [1/6/2011]
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The Import of the Complete Set of Previously-Generated Documents -
“Cliff’s Notes” Version of Why the Proposed Ordinance Must be Defeated
An issue that has immediate Township-wide import—misportrayed as a template derived from the “Abington Comprehensive Plan”—should not be blindly deferred to the judgment/recommendation of the “local” Commissioner[s].
Kline/Peacock tout this as such a model, an assertion that is proven when it is noted that the proposed Ordinance addresses plots less than an acre in size [while the three Brandolini plots comprising Baederwood are all far larger].
This summarizes how REGIONAL-PLANNING has recognized the importance of providing EMERGENCY-SERVICES through roads that are already shown to have MAXIMAL-CONGESTION, even as the Township’s contemplated approval-process has skipped review by multiple known-to-be-interested committees while being FAST-TRACKED in conjunction with DISINGENUOUS efforts to achieve meaningful community involvement due, allegedly to tremendous pressure regarding LEGALITIES.
REGIONAL-PLANNING PROVIDES CONCEPTUAL OVERVIEW
The “Old York Road Corridor Improvement Study” documents recognition that the locals vehemently opposed prior efforts to increase density:
…[A]ny new development in this cluster linked to TOD would require reconfiguration of existing auto dealerships or shopping centers, an action that is possible but not imminent as suggested by the public’s reaction to the redevelopment of the Baederwood Shopping Center. However,
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market forces ( i.e., supply and demand ) may win the day for future development.
The “Old York Road Corridor Improvement Study” documents recognition that further traffic-related study is specifically needed:
…Off-peak vehicular congestion along Old York Road also needs to be evaluated when considering the corridor.
The “Abington Comprehensive Plan” documents the intent to update zoning-law more frequently to accommodate inter alia intent to enhance “coherence,” to wit:
…[I]nnovative methods of controlling and directing future growth are required rather than the current approach of fixed, static boundaries based in existing uses.
EMERGENCY-SERVICES LINK TO ALREADY-DOCUMENTED-TO-BE-SEVERE TRAFFIC CONGESTION
The “Abington Comprehensive Plan” documents recognition that “Abington Township has had to struggle with increasing traffic congestion and time delays, road hazards, and inadequate off-street parking”—as use of its major thoroughfares has increased—unambiguously acknowledging governmental responsibility to prioritize the ability to deliver emergency services:
A transportation system should be designed to meet the differing mobility needs of residents, businesses, emergency services (police, fire, medical services), and commuters alike.
The “Abington Comprehensive Plan” documents recognition that its internal/interim analysis [by McMahon and Associates] is definably incomplete [“While not a comprehensive “traffic study or plan,” the report included herein serves as the
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initial step in arriving at an overall plan. This section will: 1) assess the adequacy of the current transportation system, and 2) determine the capability of the system to meet future needs.”] and embarrassingly dated [“Information for this section was compiled from the 1964 and 1977 Comprehensive Plans for Abington Township.”], even as—after applying State Highway Department Standards—it concluded:
Several of the major arterials in the Township are urgently in need of highway improvements as they currently handle traffic volumes in excess of what the roads were originally designed to handle.
The “Abington Comprehensive Plan” documents recognition that all four street categories [Major Arterials, Primary, Secondary and Residential] are already congested, but that—because “it is generally at the intersections of the various roadways where conflict and congestion develops”—it is necessary to apply standards of the “Highway Capacity Manual” to intersections near the Fairway Transit District Standards and note its unambiguous conclusion [not even addressing the T-Intersection @ the RR-Bridge where traffic from Washington Lane and Susquehanna Road is forced to mesh]:
…9 of the 13 intersections functioning at a ‘Level of Service F’ [“the very worst”] during one or more hours during peak travel including the intersections of: Susquehanna Road/York Road, …, Susquehanna Road/Washington Lane….
The “Abington Comprehensive Plan” documents recognition that the Old York Road/Susquehanna Road intersection was particularly accident-prone [correlating congestion with safety-
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risk] and that additional intersections warranted further study [but none was accomplished] acknowledging this unmet need:
…The McMahon study includes suggested capital improvements to study roadways and intersections to make them safer and more efficient.
THE PROCESS, TO-DATE, HAS BEEN INORDINATELY FAST-TRACKED
BY KLINE/PEACOCK
The “Abington Comprehensive Plan” documents recognition [as did the “Old York Road Corridor Improvement Study”] that community involvement should be invited rather than ignored:
…A mixed-use development, if done with care and sensitivity, could enable the developer and the Township to produce a product on a property in an area already populated with higher-density development.
Meanwhile, despite the fact that the “Abington Comprehensive Plan” advocates assessment of zoning-related issues by multiple committees prior to adoption, the only entity to which it was presented [for non-binding review] was the Planning Commission…which “approved it” by appending specific language that acknowledged the time-pressure it was experiencing and its unspecified defects [to be addressed, if at all, at an unspecified future-time] therein:
…[Having received] legal advice that not resolving this through negotiation may result in an untenable and detrimental condition…[, the proposed Ordinance is approved…with any comments or conditions we may have agreed upon.
DISINGENUOUS COMMUNITY-COMMUNICATIONHAS BEEN OVERTLY-INCOMPLETE
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A Peacock-memo documented that no other committee would assess this proposed Ordinance—while recognizing that at least one other committee [Code] had demonstrated interest in “the proposed Fairway Transit Zoning District (FTD),” even as its contemplated public hearing was “deleted at my request”—and, further, that he would consciously deny his constituents complete/pivotal knowledge of what the Planning Commission had actually done by mischaracterizing it thusly:
…[T]he PC unanimously approved the draft Fairway Transit District (FTD) ordinance that the Township is presenting as its cure to the validity challenge filed by Brandolini. {Using the phrase “is presenting” is presumptuous.}
A Kline-memo included an off-putting disclaimer that undermines the claim that the proposed Ordinance has been subject to community assessment since 9/29/2010 [when availability of the text was announced]:
Although this Ordinance is only a “Draft” and although the process may not be presented, it is available for review on the Township’s Website.
The Rydal-Meadowbrook Civic Association has uploaded incomplete/misleading information while conducting a meaningless membership-poll, even as it purged truthful information submitted by its members [having unilaterally removed such data without having held a Governing Board meeting] and, in at least one instance, pronounced:
You are not authorized to post comments.
LEGALITIES FAVOR ABINGTON AND UNDERMINE BRANDOLINI
The Kline-memos cite one “controlling” case [Upper Merion v. Realen…2003] which allegedly supports the Brandolini-claim of being disadvantaged because the wooded/slanted-property [north of the Baederwood Shopping Center] is now “surrounded” by
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liberalized zoning on perimeter properties, despite the fact that half of this property is contiguous with residential property [Rydal Waters] and thus fails to comprise “negative spot-zoning”:
[T]he term ‘reverse spot zoning’ to describe the circumstances where the unjustified difference in treatment arises from the rezoning of lands surrounding the tract at-issue and this term appropriately underscores the distinction between cases like that here presented where an island is created by the rezoning of other land from the more common situation where the challenged legislation is that creating the island tract.
The Kline-memos cite one “controlling” case [Upper Merion v. Realen…2003] that reflected specific efforts by the township to maintain an island of land as “agricultural” for a golf course, despite the fact that multiple characteristics thereof are inapposite to underlying Brandolini-assertions [confluence of major arteries, proximity to largest-in-the-region mall, 135-acres v. 18-acres, 37 [14 + 23] public hearings before empowered entities v. none, etc.]:
Over the last five decades, Upper Merion has developed into one of the most important ‘activity centers’ of the region.
The Kline-memos cite one “controlling” case [Upper Merion v. Realen…2003] which purportedly supports the Brandolini validity challenge, but ignored is the fact that altering the current code would then empower Brandolini to claim prejudicial-injury:
While there is some authority for the proposition that a subdivision application may be denied if there is a showing that the plan would be injurious to the public interest , Braun v. Swarthmore Borough, 288 A.2d 830 (Pa.Cmwlth. 1972) , the kind of public injury which will justify
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denial of an otherwise conforming plan must be specific, and substantial.
The Kline-memos cite one “controlling” case [Upper Merion v. Realen…2003] which purportedly supports the Brandolini validity challenge, despite the fact that it can enjoy its property [admittedly] without changing the zoning thereof:
The American way, as the Court describes it, is to treat the bulk of events as belonging to the normal give-and-take of a progressive and democratic society; it is to treat regulation as an ordinary part of background risk and opportunity, against which we all take our chances in our roles as investors in property.
The Kline-memos cite a text [Ryan on Pennsylvania Zoning…1977] which fails to undermine the Township’s position [as per Upper Merion v. Realen…2003], containing a key disclaimer—”a subdivision application may not be denied on the grounds that the use is inappropriate, or that the plan shows ‘poor planning’ and ‘over development’ or does not make adequate provisions for traffic flow, or for other similar or ‘policy’ reasons unless those policies are referenced in the specific requirements of the ordinance itself” [Scluffer v. Plymouth Township, 379 A.2d 1060 (Pa.Cmwlth. 1977)]—while concluding:
While there is some authority for the proposition that a subdivision application may be denied if there is a showing that the plan would be injurious to the public interest , Braun v. Swarthmore Borough, 288 A.2d 830 (Pa.Cmwlth. 1972) , the kind of public injury which will justify denial of an otherwise conforming plan must be specific and substantial..
Due-diligence study of the proposed Ordinance demonstrates vagaries that would, themselves, subject the Township to vulnerability to future challenge by developers:
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Because “the devil is in the details,” the concern raised by proponents of the new Ordinance—that the current one is flawed—is emblematic of their enhancement of legal ambiguity. When it is not ceding-rights to Brandolini, it is using terms that are clearly discretionary and phraseology that is not tethered to authorized sources. Indeed, its introduction fails to recognize that there is a 10 th goal of any development plan, namely, to recognize the need to retain the residential character of Abington; this omission discolors the rest of the effort. It also “adopts by reference” (internally/externally) in a “circular” fashion, and it fails to cite authorities as sources for what seem to be arbitrary designations; lacking are cross-walks that would allow the public to identify “before/after” specifics that would supervene.
THEREFORE, THE PROPOSED ORDINANCE MUST BE DEFEATED!
