Zoning Board Transcript - 7-12-11

8/6/2019 Zoning Board Transcript - 7-12-11

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1

1 ABINGTON TOWNSHIP

2 ZONING HEARING BOARD

3 MONTGOMERY COUNTY, PA

4 - - -

5 Application VC 11-01: Dr. Robert B. Sklaroff

6 - - -

7 Tuesday, July 12, 2011Commencing at 7:50 p.m.

8- - -

9 Abington Township Administration Building1176 Old York Road10 Abington, Pennsylvania

- - -11 BOARD MEMBERS:

12 BARBARA M. WERTHEIMER, ESQUIRE, Acting ChairJOHN DiPRIMIO, Member

13 EDWARD A. MEBUS, MemberLINDA J. KATES, Member

14 RICHARD J. GAGLIANESE, Member

15 - - -

COUNSEL APPEARED AS FOLLOWS:16

BRUCE J. ECKEL, ESQUIRE17 Solicitor for the Zoning Hearing Board

18 R. REX HERDER, ESQUIREfor the Township

19GREGG I. ADELMAN, ESQUIRE

20 for Baederwood Limited Partnership

21 - - -

ALSO PRESENT:22LAWRENCE T. MATTEO

23 Township Manager

24 MARK PENECALECode Enforcement Officer

25

2

1 I N D E X

2 APPLICANT'S EVIDENCE


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3 Witness Dir. Crs. Redir. Recrs.

4 ROBERT B. SKLAROFF 12 -- -- --

5 - - -

6 E X H I B I T S

7 BAEDERWOOD'S

8 Number Marked Rec'd

9 B-1 Deed 9 --

10 - - -ZONING HEARING BOARD'S

11Number Marked Rec'd

12 ZHB-1 Order 52 --13

- - -14 SKLAROFF'S

15 S-1 Application 40 --

16 S-2 Ordinance No. 2000 40 --

17 S-3 Ordinance No. 2006 40 --

18 S-4 Tax Map 47 --

19 S-5 Document dated 6-30 58 --

20 - - -

21

22

23

24

25

3

1 Application of Sklaroff

2 P R O C E E D I N G S

3 - - -

4 THE CHAIRPERSON: The next case

5 before the Board is Application VC-11-01. This is


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6 the application of Doctor Robert B. Sklaroff, owner

7 of the property located at 1219 Fairacres Road,

8 Rydal, Pennsylvania, resident of the Township of

9 Abington, who has filed a Validity Challenge to the

10 passage of Ordinance Number 2000, "Fairway Transit

11 District," and Ordinance Number 2006, "The Metes and

12 Bounds Description of the Affected Property," by the

13 Board of Commissioners of the Township of Abington.

14 This application has been

15 remanded to the Zoning Hearing Board by the Common

16 Pleas Court of Montgomery County. The properties

17 involved in this challenge are currently zoned within

18 the "FTD" Fairway Transit District of Ward Number 7

19 of the Township of Abington. The prior zoning of

20 these properties were within the R-1 Residential

21 District and (PB) Planned Business District.

22 Mr. Sklaroff, would you like to

23 step forward to the table?

24 MR. SKLAROFF: Yes, thank you.

25 THE CHAIRPERSON: Before we begin

4


2 this application, I would like to state a few ground

3 rules. First, I will make the announcement for every

4 one here that this Board invokes a ten o'clock rule,

5 that we will conclude this hearing at ten o'clock

6 this evening, and continue whatever unfinished

7 business that is before the Board after that time.

8 A few other ground rules, and


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9 this applies to all of the parties present. Any

10 document that is going to be made part of the record,

11 a copy needs to be supplied for the record to the

12 secretary of the Board, that is Mr. Matteo, and all

13 members of the Zoning Hearing Board need to be

14 supplied a copy of the document, as well as a copy

15 for each party involved.

16 As stated previously, we are

17 conducting this hearing pursuant to an Order of the

18 Court of Common Pleas of Montgomery County, Judge

19 DelRicci. That Order is dated June 15th, 2011. The

20 Board has been provided with a copy of that ruling.

21 The matter before the Board this

22 evening, according to Judge DelRicci's ruling, is a

23 substantive validity challenge, and the Judge is very

24 clear as to the parameters that are before the Board

25 this evening on this matter.

5


2 A few other matters is this

3 hearing is going to be conducted as any other hearing

4 before the Board is conducted. The zoning hearing

5 board is a quasi-judicial body. We are charged as

6 the finder of fact in these cases, and we are going

7 to be hearing this matter as a finding of fact and

8 rendering an opinion with findings of fact in this

9 case.

10 Accordingly, we are going to

11 follow certain procedural rules of law as we would in


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12 any other case to which they apply before this Board.

13 Accordingly, rules that we are going to strictly

14 abide by include the following: If during any

15 testimony an objection is made by any party, all

16 talking will stop at that point until a ruling is

17 determined on the nature of the objection. I am

18 going to repeat that again. If there is an objection

19 made during the course of testimony, all parties will

20 stop talking and not argue by any party whatsoever

21 until the ruling is made on the objection.

22 There will be a hearing. There

23 will be a record made in this case. If anyone does

24 not agree with any of the rulings made by this Board,

25 that is fully appealable to the Court of Common

6


2 Pleas, but that is how we are going to run this

3 hearing.

4 The way the hearing is conducted

5 is as follows: The petitioner in this case, the

6 applicant, goes first. In this case that will be

7 Mr. Sklaroff. He gets to present his case with his

8 witnesses. His witnesses are subject to

9 cross-examination by the other parties or their

10 attorneys to this matter. As common practice before

11 this Board, if there is anyone in this audience who

12 has a question concerning the testimony of that

13 witness, matters that this witness has testified to,

14 then you will be able to ask a question of that


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15 witness pertaining only to that matter.

16 After Mr. Sklaroff has completed

17 his case, then we will go to the cases presented by

18 the other parties to this matter. We are going to

19 begin this case this evening by requesting that all

20 parties who are involved in this case present a brief

21 opening statement so that the Board has a better

22 grasp of the situation, and so we become more fully

23 acquainted with the issues that are before the Board

24 at this time.

25 I will also advise everyone that

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2 at the conclusion of both petitioner's case and those

3 who are in opposition to the petitioner's case have

4 presented their cases, then people who are either in

5 agreement or -- strike that. At the conclusion of

6 both the petitioner's case and the opposition cases,

7 we will open the floor to anyone who wants to make a

8 comment in favor of the applicant's case, and also

9 open the floor to anyone who wants to make a comment

10 in opposition to the applicant's case. In other

11 words, everyone will get a chance to be heard.

12 In all likelihood, this will not

13 be completed this evening. This case will continue

14 for as long as it takes to complete this case. We

15 ask everyone to be patient. We will not tolerate

16 anyone speaking out from the audience, and we will

17 follow the rules.


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18 I again state that this is a

19 quasi-judicial hearing. This Board is charged with

20 certain obligations and we expect to complete them.

21 Judge DelRicci was very clear in his Order, and we

22 are going to follow the rules as set forth in Judge

23 DelRicci's Order.

24 Any questions, gentlemen?

25 MR. ADELMAN: Madam Chair, my

8


2 name is Gregg Adelman. I am here on behalf of

3 Baederwood Limited Partnership. I believe before we

4 proceed I would have to demonstrate my standing in

5 order to be recognized as an intervening party to the

6 action.

7 If the Board please, I would like

8 to take this a little bit out of order so I can

9 participate. I would like to introduce a copy of the

10 deed that is demonstrating record ownership of

11 Baederwood Limited Partnership, the owner of the

12 Baederwood Shopping Center, which has a direct,

13 immediate and substantial interest in the outcome of

14 this proceeding given that the zoning was changed as

15 a result of the challenge to the Ordinance this

16 evening.

17 THE CHAIRPERSON: Mr. Eckel?

18 MR. ECKEL: Yes, let's accept

19 that.

20 MR. ADELMAN: A copy is marked as


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21 Exhibit B -- as in Baederwood -- 1. Unfortunately, I

22 only have four copies. I can supply the Board with

23 additional ones if necessary.

24 THE CHAIRPERSON: If you would,

25 supply Mr. Sklaroff with a copy and Mr. Matteo with a

9


2 copy.

3 (Deed marked Baederwood Exhibit

4 B-1, for identification.)

5 MR. ECKEL: Ms. Wertheimer, let's

6 get on the record the parties that are going to be in

7 this case.

8 THE CHAIRPERSON: That's fine.

9 Mr. Sklaroff, please enter your appearance for the

10 record.

11 MR. SKLAROFF: Robert B.

12 Sklaroff, M.D., 1219 Fairacres Road, Rydal, PA,

13 19046-2911.

14 THE CHAIRPERSON: And you are the

15 applicant; is that correct?

16 MR. SKLAROFF: Yes.

17 MR. HERDER: Good evening, Rex

18 Herder, solicitor of Abington Township, here on

19 behalf of the Township and the Board of Commissioners

20 which adopted the challenged Ordinances.

21 THE CHAIRPERSON: Thank you.

22 MR. ADELMAN: And I would like to

23 enter my appearance. Gregg Adelman with Kaplin,


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24 Stewart, here on behalf of Baederwood Limited

25 Partnership, owner of the Baederwood Shopping Center,

10


2 which is directed effected by the challenged

3 Ordinances.

4 THE CHAIRPERSON: Thank you, sir.

5 Mr. Adelman, have you made an actual motion before

6 this Board to be added as a party?

7 MR. ADELMAN: I have requested

8 intervenor and party status to this proceeding to

9 participate.

10 MR. SKLAROFF: No objection on

11 this end.

12 THE CHAIRPERSON: Thank you. So

13 granted.

14 MR. ADELMAN: Thank you.

15 THE CHAIRPERSON: Mr. Sklaroff,

16 opening statement.

17 MR. SKLAROFF: First, is there

18 electricity on this side of the table available?

19 (Off the record).

20 - - -

21 MR. SKLAROFF: You would now like

22 me to make a brief opening statement?

23 THE CHAIRPERSON: That is

24 correct.

25 MR. SKLAROFF: The first thing I


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11


2 will say to you is I have no formal witnesses;

3 however, I suspect that a friend of mine behind me

4 will provide some input as to the implications of

5 what I am trying to do here. Let's say across the

6 Schuylkill River, whether or not that is something

7 that we can put in as part of the presentation or

8 whether or not it has to be subject of discussion, I

9 guess will be an issue that you will have guidance

10 regarding.

11 What I am going to do is I am

12 going to remind you that I can talk from five minutes

13 to five hours on this topic, and I know you prefer

14 the former or at least closer to that. So what I am

15 going to do --

16 MR. ECKEL: This is an opening

17 statement, but if this is going to be considered

18 testimony, I guess we ought to swear the Doctor in at

19 this time.

20 - - -

21 APPLICANT'S EVIDENCE

22 - - -

23 ROBERT B. SKLAROFF, having been

24 duly sworn, was examined and testified as follows:

25 - - -

12

1 Robert B. Sklaroff - Direct

2 DIRECT EXAMINATION


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3 - - -

4 MR. SKLAROFF: All right. The

5 first thing I have to do is I have to try to

6 accommodate some of the issues that have been raised

7 in conjunction with the narrative that I am going to

8 give you so it is somewhat cohesive, and so that

9 issues that were raised this morning, for example, I

10 can prophylactically snip away so that we can focus

11 in on the key issues and not subterfuge.

12 By referencing this morning,

13 there was a hearing regarding a motion filed by the

14 landowner which was taken basically under advisement

15 by a different Judge. I would say I spoke for about

16 five minutes and the other people spoke for 55

17 minutes, so I didn't have a lot of chance to explain

18 things but, nevertheless, I took notes.

19 So what I am going to do is

20 explain that I didn't fall into this with any

21 personal interest that suggested I was going to try

22 to abuse the system, any political interest that

23 would inform you on how I view the incumbent

24 Commissioners, more specifically, Stephen Kline. I

25 didn't fall into this for any reason other than to

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2 reflect what I view as what the community sees as

3 important.

4 Only later on did I understand

5 that the issues that I was raising, let's say, had


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6 ripple effects, and not only within the Baederwood

7 region but also throughout Abington, throughout

8 Montgomery County, and even the suburbs, all four

9 collar counties.

10 So now what I am going to do

11 having said that is you should note that I didn't get

12 into this really until the two hearings that were

13 held in the fall of '09 at the Abington School

14 Auditorium -- not the senior high -- the junior high,

15 and you have I believe been provided a lot of

16 documentation.

17 So having that occur, that sort

18 of liberates me as to the kinds of things I would

19 otherwise have to explain. The turnout for both of

20 those events was in excess of a hundred people, and

21 as I summarized it, this presentation of a Town

22 Center type model without an Ordinance, but just sort

23 of presenting pictures and ideas, received almost

24 universal condemnation. This occurred at two

25 hearings.

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2 The first hearing was more

3 oriented towards asking questions, and the second

4 hearing was basically bordering on irate expressions

5 of amazement that this project had gotten so far. I

6 am mixing in editorial comment there, but if you read

7 the transcript it's unavoidable when you quantitate

8 what people said, how many people said, and what they


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12 say, properly weighed. Well, a year hence, the

13 issues suddenly popped up in these two Ordinances --

14 actually the one Ordinance, the 2000 Ordinance.

15 So I attended two meetings of the

16 Abington Planning Commission, and I just did due

17 diligence. I took the Ordinance and took a line by

18 line analysis of it and pointed out initially some

19 questions, and reflective of the fact that I had a

20 decent relationship with Commissioner Kline, not only

21 had I learned something from him about what he had

22 portrayed as gravamen of the case that spring, the

23 spring of 2010, namely, the issue of whether or not

24 they could build in front of the property or the rear

25 of the property or whatever, I posed these questions

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2 to him and he gave me one set of answers, which I

3 then transformed into simple declarative sentences,

4 again, one per line in the entire 18-page Ordinance.

5 Never thereafter did I receive

6 any kind of response to these questions. They were

7 presented in memo form in multiple settings. So then

8 we jumped to the hearing in this room, the public

9 hearing room, and although we are not focusing on

10 procedures, suffice it to say that all dozen speakers

11 spoke against it and gave a lot of different reasons.

12 The chair wrote down questions

13 but never had any of them answered, and that included

14 stuff that I had sort of thought up on my own, and


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15 then only belatedly did I get a copy of the report

16 from the Montgomery County Planning Commission dated

17 November 17th which served to validate a myriad of

18 questions I had raised.

19 So then on discovery on the last

20 Monday in January, whatever it was, sitting in the

21 front right down below us, going through a box of

22 discovery, Commissioner Kline walked past and I was,

23 let's say, advised not to address him directly, so

24 the person with me did. So she asked, Is it true

25 that you got all of these pieces of advise and you

17


2 didn't change?

3 MR. ADELMAN: Objection.

4 MR. HERDER: Objection.

5 MR. ADELMAN: Go ahead.

6 MR. HERDER: Madam Chair, this is

7 a substantive validity challenge.

8 MR. SKLAROFF: I am getting

9 there.

10 MR. ADELMAN: I don't think you

11 are.

12 MR. HERDER: He is not getting

13 there, and I object to the reference to any, by name,

14 of any township official, any elected official

15 appointed or otherwise. We are here about Ordinance

16 2000, as Doctor Sklaroff points out, and 2006. We

17 are here for those two Ordinances. He claims that


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18 they are substantively invalid. Let's get to it.

19 THE CHAIRPERSON: Thank you,

20 Mr. Herder. I will sustain the objection. Continue.

21 MR. SKLAROFF: I am getting to it

22 because I established existence of how I generated my

23 initial memo, and then I established the creation of

24 my awareness of the subsequent memo, and then I have

25 established the fact that the existence of neither

18

1 Sklaroff Application

2 entity impinged upon the advocates for this

3 situation. Therefore, I would suggest simply, if

4 nothing else, a starting point for your investigation

5 would be to take my initial memo and/or the planning

6 commission memo, compare it to the draft, make all of

7 the necessary changes that both suggest, and then you

8 will have a very simplified task.

9 THE CHAIRPERSON: Thank you. Mr.

10 Herder?

11 MR. HERDER: Thank you, Madam

12 Chair. It doesn't work that way. We are here on a

13 Substantive Validity Challenge. It is the Doctor's

14 burden, a very heavy burden as the courts say, to

15 establish the invalidity of this Ordinance or some

16 part of it. The case law is very clear on this.

17 This is from a 2010 case, Plaxton versus Lycoming

18 County Zoning Hearing Board.

19 MR. SKLAROFF: A point of

20 information, will I get a copy of this?


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21 MR. HERDER: No.

22 THE CHAIRPERSON: Wait. Let's

23 get the citation. He will read you the citation.

24 MR. HERDER: I was about to read

25 that. It's 986 Atlantic 2nd 199.

19


2 MR. SKLAROFF: Plaxton versus

3 whom?

4 MR. HERDER: The Lycoming County

5 Zoning Hearing Board.

6 MR. SKLAROFF: Thank you.

7 MR. HERDER: That is a

8 Commonwealth Court opinion decided in December of

9 2009. It is the plaintiff's burden to establish that

10 the Ordinance is arbitrary and unreasonable. A

11 legislative enactment, such as the adoption of a

12 Zoning Ordinance by this Board of Commissioners, can

13 be declared void only when it violates the

14 fundamental law clearly, palpably, plainly, and in

15 such manner as to leave no doubt or hesitation in the

16 mind of the reviewing tribunal. That is what we are

17 here about tonight.

18 Now, I understand that the doctor

19 is displeased with the adoption of this Ordinance.

20 However, arguing that displeasure without reaching

21 the specifics of what it is that he claims to be in

22 invalid gets us nowhere. So with that I would defer

23 to Mr. Adelman.


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24 MR. ADELMAN: Thank you, Mr.

25 Herder. To echo your statements, I would also agree

20


2 that we are here on a limited scope, a very limited

3 focus. This challenge is arguably made pursuant to

4 916.1 of the Pennsylvania Municipalities Planning

5 Code which requires this Board to decide on a very

6 limited scope whether the challenge before you has

7 merit. In other words, this Board's task is to

8 determine whether or not the applicant meets that

9 heavy burden of determining that there is some

10 substantive invalidity with the Challenged Ordinance.

11 That substantive invalidity has

12 nothing to do with procedure. It has nothing to do

13 with procedural process. It has nothing to do with

14 comments that were made, answered, unanswered,

15 ignored, et cetera. It has to be something based in

16 substance not in procedure.

17 Specifically, the case that

18 Mr. Herder referred to, the Plaxton case, also

19 states -- and I also believe that it is very

20 appropriate at this juncture -- the question of what

21 best serves the public interest is primarily a

22 question for the decision of the appropriate

23 legislative body in a given situation.

24 Here you have the Board of

25 Commissioners acting in its legislative capacity.


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21


2 That legislative discretion is afforded great weight.

3 It is presumed that this Ordinance is valid, and I

4 suggest to you after having read the litany of Doctor

5 Sklaroff's pleadings and other writings, that he has

6 not in one of them set forth any cognitive,

7 recognized allegation of substance invalidity with

8 respect to the challenged Ordinance. So I suggest to

9 this Board that there is or there are actually no

10 valid claims before you with respect to the

11 substantive invalidity of the challenged Ordinance.

12 Moreover, and this was discussed

13 earlier today and I believe it's equally appropriate

14 this evening in the substantive challenge, I don't

15 believe Doctor Sklaroff meets the necessary

16 requirements to have standing to bring this

17 challenge. He has not, and I don't believe he can,

18 demonstrate as required under the law that he has a

19 direct, immediate and substantial interest in the

20 outcome of this litigation, such that he would have

21 standing to maintain it.

22 Now, by standing I mean

23 specifically something that surpasses the common

24 interest of all citizens. By direct I mean something

25 that is a matter complained of causing harm to his

22


2 private, personal interest, and by immediate I


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3 obviously mean that he seeks to protect within the

4 zone of interest that it ought to be protected by

5 statute or constitutional guaranteed question.

6 I don't believe he has

7 demonstrated in any of his pleadings, nor can he

8 demonstrate those requirements to maintain this

9 challenge this evening. Thank you.


11 Mr. Adelman. With respect to the issue of standing,

12 I would respectfully submit that that matter was --

13 MR. ECKEL: Well, that was dealt

14 with by Judge DelRicci's decision, but let me read

15 what Judge DelRicci said, because what Judge DelRicci

16 said was, "The Township shall accept the filing and

17 shall not contest the right or timeliness of the

18 filing. By right I mean standing or timeliness of

19 the filing." That is directed at the Township. I

20 don't know if Mr. Adelman was at that hearing or his

21 client was at that hearing or not.

22 MR. SKLAROFF: He was not.

23 MR. ADELMAN: We are not bound, I

24 believe. That is my opinion. I also believe that

25 Judge DelRicci was not making a determination with

23


2 respect to substantive standing to maintain a

3 challenge. I believe he was referring to the ability

4 to bring and file but not maintain it. So the

5 Township would have to recognized that it was a


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6 timely filed challenge and proceed accordingly, not

7 with respect to the substance as to whether Doctor

8 Sklaroff had a direct, immediate and substantial

9 interest in the outcome. I don't believe that was

10 discussed or determined by the Court.

11 MR. ECKEL: I think we understand

12 your position, and the Board will take that into

13 account when it makes its ruling.


15 MR. SKLAROFF: May I respond to

16 that dialogue? They went back and forth. A key

17 point is that if you look --

18 THE CHAIRPERSON: When you bring

19 your case, I will let you address that question.

20 MR. ECKEL: I think we are at

21 that point now.

22 THE CHAIRPERSON: Go ahead.

23 MR. SKLAROFF: The key point here

24 is that if what was just stated would be accurate,

25 then he would not specifically have said that my

24


2 standing would not be subject to challenge, because I

3 was essentially given the right to file this thing

4 without having to pay the fifteen hundred dollar fee,

5 and without any issue related to timing.

6 But in addition, by him having

7 said specifically that I should have standing, this

8 is a distinction without a difference to suggest that


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9 I should have the ability to file it and then have

10 that subsequently challenged.

11 MR. ECKEL: We understand your

12 position and the Board will consider it.

13 MR. SKLAROFF: I wanted to put

14 that on the record though.

15 THE CHAIRPERSON: Are you ready

16 to begin your case?


18 THE CHAIRPERSON: You may begin,

19 sir.

20 MR. SKLAROFF: Okay. What I am

21 going to do is first reply to what we just heard as

22 to my understanding of my burden. The key thing to

23 me is that I have tried to carefully articulate all

24 that in my filing so I can be somewhat telegraphic.

25 It's easy to be dismissive, but when you examine the

25


2 documents that I have provided you, and in light of

3 what I just heard, I am going to have to go through

4 the specifics. You will find that some of the points

5 are easily fixed, and I don't know why any weren't

6 fixed. Others go to the heart of what I view your

7 charge as a Zoning Board and, more specifically, the

8 Township's governance should entail.

9 I tether this specifically to the

10 issue of vehicular movement, and the specific case of

11 Realen versus Upper Merion, which I photostatted and


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12 gave you at the very end of my file. It was somewhat

13 surprising today that two of the principals involved

14 in that case apparently were Messrs. Jonas and

15 Kaplin, and they emphasize the issue of the reverse

16 spot zoning component of the case.

17 I had to remind them that

18 prominent therein was the fact that the Supreme Court

19 had weighed specifically the issue of whether or not

20 health and safety concerns were being protected by

21 police power.

22 The key point in that regard is

23 that the opinion stated that this criterion had to

24 been substantially important -- and certainly health

25 and safely are -- and had to be specific in how it is

26


2 cited, and that burden is also met in the Ordinance

3 and statute and so, therefore, there was an

4 obligation that it should be weighed and it wasn't.

5 There is a mass of information

6 out there describing the fact that the Susquehanna

7 Road section from Old York Road through to the T

8 intersection is already, according to PennDOT,

9 manifesting unsafe, rated F, et cetera.

10 MR. ADELMAN: Madam Chair, I

11 object. I can't tell whether this is testimony,

12 evidence, public comment. I believe it's out of

13 order. He has the burden to move forward at this

14 point with producing evidence in support of his


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15 substantive challenge, not giving this Board

16 diatribes or background information.

17 I am at a disadvantage in that he

18 is a pro se litigant and he is testifying, but he is

19 not putting on any evidence or any witnesses. I

20 can't allow him to continue to go forward and make

21 speech after speech. We will be here for many

22 nights. My client can't afford to wait. I don't

23 believe it's fair. It impedes on his property

24 rights, so I would object that this is out of order

25 and irrelevant.

27


2 MR. HERDER: I join that

3 objection on a procedural basis, not having anything

4 to do with property rights, but we are just not

5 getting anywhere. This is not testimony. Apparently

6 it's just background information that is not relevant

7 to the issue before the Board.


9 - - -

10 (Discussion off the record.)

11 - - -

12 THE CHAIRPERSON: Back on the

13 record. Mr. Sklaroff, before we rule on the

14 objection, the Board has a question of you. Exactly

15 what is your evidence that you are going to be

16 producing? Is it only going to be your testimony?

17 MR. SKLAROFF: No.


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18 THE CHAIRPERSON: You said you

19 have no witnesses though.

20 MR. SKLAROFF: But I have my

21 filings. I am going to go through what they mean.

22 THE CHAIRPERSON: When you say

23 you have your filings, what are they? Can you just

24 give me some idea of what they are without going

25 through them specifically?

28


2 MR. SKLAROFF: Right. Well, the

3 first I just covered. That was the Supreme Court

4 case, and I did that in particular because of the

5 prior allegation that I didn't have anything major to

6 say. I want to tie that together to my standing.

7 In addition, there are four

8 reports that I have excerpted in my filing that you

9 should have available to you.

10 THE CHAIRPERSON: Okay. When you

11 say reports, going back to my comment that this is a

12 quasi-judicial hearing, in terms of reports there are

13 certain rules of evidence that we need to comply

14 with.

15 MR. SKLAROFF: I understand, and

16 one of the reports is the Old York Road Corridor

17 study.

18 THE CHAIRPERSON: Okay.

19 MR. SKLAROFF: Another one is the

20 Abington plan.


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21 THE CHAIRPERSON: Do you have the

22 authors of those reports who can qualify them?

23 MR. SKLAROFF: They were approved

24 by the Board of Commissioners here in Abington, both

25 of them. That should suffice in terms of being

29


2 relevant, don't you think?

3 MR. HERDER: Perhaps I can help

4 the Board. Doctor Sklaroff refers to the Old York

5 Road Corridor Study.

6 THE CHAIRPERSON: Yes, sir.

7 MR. HERDER: And when he refers

8 to the plan, I believe -- he will correct me if I am

9 mistaken -- that he's referring to the Abington

10 Township Comprehensive Plan.

11 THE CHAIRPERSON: Of what year?

12 MR. HERDER: Is it 2007?

13 MR. SKLAROFF: I think both were

14 2007, yes.

15 MR. HERDER: The problem I have

16 there, members of the Board, is, as we all know, the

17 actions of the governing body, the Board of

18 Commissioners, can not be overturned even if they

19 were inconsistent with the Comprehensive Plan. It's

20 written right into the MPC. I am not suggesting for

21 a second that anything that the Board did by adopting

22 these Ordinances was inconsistent with the plan, with

23 the Comprehensive Plan, but even if it was it


27/85

24 wouldn't be relevant.

25 THE CHAIRPERSON: Thank you, sir.

30


2 MR. SKLAROFF: And the other two

3 documents are the planning commission reports

4 respectively of Montgomery County and Abington.

5 MR. ADELMAN: Madam Chair, if

6 there is any testimony directly from those reports,

7 in particular the Montgomery County Planning

8 Commission report, I would object unless the author

9 of that report is made available for

10 cross-examination.

11 MR. SKLAROFF: Fine. We will be

12 happy to subpoena him if that is what it takes, or

13 maybe you would.

14 THE CHAIRPERSON: It's your case,

15 Mr. Sklaroff.

16 MR. SKLAROFF: So, in other

17 words, am I hearing you correctly when I hear you

18 suggest that I would be empowered to subpoena people

19 to attend an event such as this?

20 THE CHAIRPERSON: No, I did not

21 state that.

22 MR. SKLAROFF: Then how would I

23 comply with the suggestion that the quote-unquote

24 author of this letter be produced?

25 THE CHAIRPERSON: I cannot advise


28/85

31


2 you on that, sir.

3 MR. SKLAROFF: Are you saying

4 that that report would not be germane if I cannot

5 produce that individual?

6 THE CHAIRPERSON: I did not state

7 that.

8 MR. SKLAROFF: Good. Then I will

9 use the report and then I will see what I can do

10 about trying to produce the witness.

11 MR. HERDER: I think there is an

12 objection on the record.

13 THE CHAIRPERSON: Yes, there is.

14 MR. HERDER: I think it would be

15 in the form of hearsay.

16 MR. ADELMAN: Also, Section 908.9

17 of the Pennsylvania Municipalities Planning Code.

18 THE CHAIRPERSON: Let's deal with

19 these one at a time so the record is clear.

20 MR. ECKEL: Doctor Sklaroff, is

21 what you are saying that your case is composed of

22 these four documents? That's your case?

23 MR. SKLAROFF: No.

24 THE CHAIRPERSON: Do you have

25 something in addition to that?

32




29/85

3 MR. ECKEL: Let's hear what you

4 have in addition to that.

5 MR. SKLAROFF: Well, I already

6 mentioned the fact that I have my memos that I

7 generated for starters, and then I have the citation

8 of the Supreme Court case that ties it all together.

9 MR. ECKEL: And that would be the

10 evidence that you would present?

11 MR. SKLAROFF: Primarily, but I

12 am going to go through the attachments just to make

13 sure I am comprehensive, because I want to make sure

14 you have a database.

15 MR. ECKEL: So those documents,

16 that is your case?

17 MR. SKLAROFF: I am going to go

18 through them, yes.

19 MR. ADELMAN: I would object.

20 The documents speak for themselves.

21 MR. HERDER: Right.

22 MR. ECKEL: The documents do

23 speak for themselves. You can't add to what the

24 documents are.

25 MR. SKLAROFF: Right, but I will

33


2 explain what I mean by each one of them.

3 MR. ADELMAN: I object to any

4 characterization of the documents.

5 MR. HERDER: I join in that


30/85

6 objection.

7 THE CHAIRPERSON: I will sustain

8 that objection. The documents speak for themselves.

9 MR. SKLAROFF: Right, but I want

10 to be able to explain the specifics of the problems

11 that I have with the Ordinances.

12 MR. ECKEL: Then you can present

13 your argument. I think what Mrs. Wertheimer was

14 asking at the beginning of your case when she wanted

15 to know what issues you wanted to raise, she was

16 trying to get out of you what areas are you saying

17 that the Township Board of Commissioners were

18 arbitrary in or capricious in.

19 You are trying to prove that

20 there is a substantive invalidity to the Ordinance,

21 and I don't know that she got an answer to what your

22 claims are, and I think Mr. Herder has objected

23 because he said he hasn't heard any claims that you

24 have made as to the substance invalidity of the

25 Ordinance. I think that is what we are trying to get

34


2 at.

3 MR. SKLAROFF: And my response to

4 you is that the substantive component is integrated

5 with the prior documentation which I will elucidate

6 without forcing you to rely on the written word. It

7 may take a little longer, but I will do what I have

8 to, and then you will have your question answered,


31/85

9 plus tying it together with the Supreme Court case.

10 MR. ECKEL: Well, either that or

11 maybe that doesn't make the case, because that looks

12 like about five inches worth of material there. It

13 may not be what you need to do to carry the burden

14 that you have.

15 MR. SKLAROFF: Let's find out.

16 THE CHAIRPERSON: Have we dealt

17 with all of the objections that are on the record?

18 MR. HERDER: Not to my

19 satisfaction.

20 THE CHAIRPERSON: I didn't ask

21 you if it was to your satisfaction.

22 MR. ADELMAN: I assume then that

23 this was, for lack of a better word, Doctor

24 Sklaroff's offer of proof as to his case in chief and

25 testimony?

35


2 THE CHAIRPERSON: It could be

3 characterized as that, yes.

4 MR. ADELMAN: Okay. I would like

5 the Board to note my objection, and I would continue

6 to object throughout his testimony on what he has

7 provided or suggested will be his case in chief.

8 THE CHAIRPERSON: Your continuing

9 objection is duly noted.

10 MR. ADELMAN: Thank you.

11 THE CHAIRPERSON: Mr. Herder,


32/85

12 anything further?

13 MR. HERDER: No, nothing further.


15 we're ready for your cogent argument.

16 MR. SKLAROFF: I will start with

17 the letter that was sent on November 17th, 2010, to

18 Mr. Mark Penecale from Mike Narcowich.


20 MR. HERDER: Objection. We just

21 talked about this. This is the offer of a letter

22 issue. Mr. Narcowich is not here.

23 THE CHAIRPERSON: That's correct.

24 I will sustain the objection. It's hearsay, sir.

25 MR. SKLAROFF: So I will just

36


2 happen to read comments and then annotate them from

3 my own perspective regardless of when they arose.

4 THE CHAIRPERSON: Wait a minute.

5 When you say read comments, you can not read comments

6 from that letter because those comments would be the

7 author's comments, is that true?

8 MR. SKLAROFF: And mine.

9 THE CHAIRPERSON: We can hear

10 your comments.

11 MR. SKLAROFF: Okay, I will give

12 you my comments.

13 THE CHAIRPERSON: We will give it

14 a go.


33/85

15 MR. SKLAROFF: Thank you. I will

16 hesitate periodically to paraphrase, but if anyone

17 wants to follow along you have a copy of this.


19 Mr. Sklaroff is merely reading from the November 17th

20 letter. You said you got a copy of it because you

21 apparently do have a copy of it in your book. These

22 are not his comments. He is reading from a letter.

23 MR. SKLAROFF: I haven't even

24 started yet. Let's see what happens, okay?


37


2 it doesn't work that way. We don't wait and see what

3 happens. You are not able to read from the letter.

4 There has been an objection and there is a ruling.

5 You are not allowed to read from that letter, period.

6 MR. SKLAROFF: I will not read

7 from the letter. I will use it to jog my memory

8 regarding my concerns.

9 MR. ADELMAN: Objection. If he

10 paraphrases the letter, it's the same thing as

11 reading the letter.

12 MR. SKLAROFF: I am not

13 paraphrasing it.

14 THE CHAIRPERSON: Wait a minute.

15 What's the rule if there is an objection?

16 MR. SKLAROFF: Okay.

17 THE CHAIRPERSON: Sustained. You


34/85


35/85

21 please.

22 MR. ADELMAN: Doctor Sklaroff

23 just testified as to certain lots in the FTD Zoning

24 District without actually producing any evidence with

25 respect to the qualifications and criteria of those

39


2 lots; therefore, he can not make a conclusion that

3 all lots within the FTD Zoning District do not meet

4 that criteria.


6 the objection.

7 MR. SKLAROFF: Well, do you not

8 have before you the 2000 and 2006 documents where

9 they define the sizes of lots, correct? I am

10 assuming you have a database.

11 THE CHAIRPERSON: Do we have

12 those documents in evidence, Mr. Eckel?

13 MR. ECKEL: I haven't heard of

14 it, no.

15 MR. SKLAROFF: Well, put them

16 into evidence and then you have an answer to his

17 questions.

18 THE CHAIRPERSON: It doesn't work

19 that way. We don't just put things into evidence.

20 MR. SKLAROFF: Can I request that

21 you put it into evidence?

22 THE CHAIRPERSON: It's up to the

23 petitioner to put certain documents into evidence.


36/85

24 MR. SKLAROFF: So now I would

25 like to ask that the Ordinances that were outside as

40


2 handouts be officially placed into evidence, and then

3 you will have your lot sizes.

4 MR. ECKEL: When you say the

5 Ordinances, what Ordinances?

6 MR. SKLAROFF: 2000 and 2006.

7 MR. ECKEL: Do you want to make

8 those your exhibits?

9 MR. SKLAROFF: Sure.

10 MR. ECKEL: We will mark the

11 application as S-1. We will mark Ordinance 2000 as

12 Exhibit S-2 for Sklaroff 2, and Ordinance 2006 will

13 be S-3 for Sklaroff 3.

14 (Ordinance marked Sklaroff

15 Exhibit S-1, for identification.)

16 (Ordinance No. 2000 marked

17 Sklaroff Exhibit S-2, for identification.)

18 (Ordinance 2006 marked Sklaroff


20 MR. ADELMAN: I renew my

21 objection. I don't believe these documents actually

22 lay a foundation with respect to each individual lot

23 size in that district.


25 objection.


37/85

41


2 MR. ECKEL: Maybe Mr. Sklaroff

3 can show the Board where that lot size is in those

4 Ordinances since he put them into evidence.

5 MR. SKLAROFF: Let me ask you.

6 This filing that I was just handed, this defines the

7 lot sizes under legal description, Exhibit A. So how

8 about if I put this in as another one of my exhibits

9 and then it's there?


11 this filing, the Board has no idea what you are

12 referring to.

13 MR. SKLAROFF: It was given to me

14 by opposing counsel.

15 THE CHAIRPERSON: I see two

16 opposing counsel.

17 MR. ECKEL: This exhibit, Doctor,

18 (indicating)?

19 MR. SKLAROFF: This was prepared

20 by and returned to Alison Taylor, Esquire, of Wolf,

21 Block, Schorr. It's a deed.

22 MR. ADELMAN: That's the deed we

23 marked.

24 MR. MATTEO: That is Exhibit B-1.

25 MR. SKLAROFF: Then I'll refer to

42


2 B-1 as the deed, and then Exhibit A is the


38/85

3 description of the actual lot.

4 THE CHAIRPERSON: Is there a

5 reference to lot size in there?

6 MR. SKLAROFF: I suppose someone

7 could calculate them. Let's see if there is anything

8 in there. I didn't read this yet. It was just

9 handed to me (pause). I guess I would have to get

10 this interpreted, but I do recall the discussion and

11 that everyone agreed that --


13 this discussion, you need to make specific reference.

14 MR. SKLAROFF: I did already. I

15 was referring to the discussion at the Abington

16 Township Planning Commission meeting.

17 THE CHAIRPERSON: Of what date?

18 MR. SKLAROFF: I don't remember.

19 I think it was both of them, actually. It was both

20 dates. I have them in my filings. If you need them,

21 I will give them to you. Hold on. Let's see.

22 The second date was December

23 15th. I didn't save the first one. So at least on

24 December 15th that was a discussion point and

25 everyone agreed.

43


2 MR. HERDER: I object. It's not

3 competent evidence as to the lot sizes on Baederwood.

4 THE CHAIRPERSON: I sustain the

5 objection. Continue, Mr. Sklaroff.


39/85

6 MR. SKLAROFF: Well, does this

7 mean that I should try to ask somebody to translate

8 this so that you can feel assured that my

9 recollection is correct to unsustain the statement

10 that I thought was sort of universal? They were

11 talking about, I think, four parcels, one of them

12 being the -- at least the way you have them described

13 in your Ordinances, one of them being the Whole

14 Foods, another being the upper parallelogram, and

15 then the trapezoid down below whatever is left --

16 maybe the zoning map will do it.

17 Let's see. I have zoning maps

18 here. Hold on. I have an idea. I have a zoning map

19 and this is going to have to be introduced into

20 evidence, although I got it from the township. Can

21 the township refer to its own document in that

22 regard?

23 THE CHAIRPERSON: Mr. Eckel, can

24 we accept that?

25 MR. ECKEL: If he wants to put it

44


2 in as a tax map, it would be S-4. Is there a number

3 on that tax map?

4 MR. SKLAROFF: It is Block Number

5 177. Actually, it only has three divisions it looks

6 like with the upper parallelogram being 8.42 acres.

7 The bottom trapezoid being what looks like a total of

8 14.86 acres. So there you have it, okay?


40/85

9 THE CHAIRPERSON: We need to mark

10 that into evidence.

11 MR. SKLAROFF: Do we get a copy

12 back or can you make your own copy?

13 MR. ECKEL: Mr. Matteo needs it

14 so it doesn't get lost for the record.

15 THE CHAIRPERSON: Right, we need

16 it now.

17 MR. SKLAROFF: But can I get it

18 back?

19 MR. ECKEL: You can't get it

20 back.

21 MR. SKLAROFF: Can I provide you

22 a copy later on? I will pay someone to make a copy.

23 MR. ECKEL: We need it now. If

24 you mark something into evidence, we need to keep it

25 now as part of the record.

45



3 when you come here for a hearing, you need to come

4 prepared.

5 MR. SKLAROFF: I didn't realize

6 that the acreage issue was going to be subject to

7 challenge.

8 THE CHAIRPERSON: I think you

9 have to assume that everything will be subject to

10 challenge. You need to come prepared.

11 MR. SKLAROFF: I am prepared. I


41/85

12 will discuss this and I will get you a copy of it

13 tomorrow if that is okay.

14 THE CHAIRPERSON: No, it doesn't

15 work that way.

16 MR. SKLAROFF: Well, will I be

17 able to borrow it back tomorrow to make a copy and

18 get it back? It's the only copy I have.

19 THE CHAIRPERSON: Once something

20 has been marked as an exhibit --

21 MR. PENECALE: Once it's part of

22 the record, it's part of the record.

23 MR. ECKEL: I don't know if they

24 charge to make copies or not, but it's in the record.

25 MR. SKLAROFF: What I will do is

46


2 I will give this to you and then I will ask you for a

3 copy of my own exhibits, okay?

4 MR. ECKEL: Usually when you come

5 to exhibits, you have multiple copies to give

6 opposing counsel and give to the Board.

7 MR. SKLAROFF: Right.

8 MR. ECKEL: And you put in the

9 record.

10 MR. SKLAROFF: The reason I

11 didn't do that is I felt I already given you all my

12 documents in my previous file which staff already

13 circulated.

14 MR. ECKEL: If you wanted to rest


42/85

15 on the documents in your application, I guess we

16 could do that.

17 MR. SKLAROFF: Fine. That would

18 make things efficient, wouldn't it?

19 MR. ECKEL: If that is what you

20 want your case to be, we can take them and make the

21 decision based on the application.

22 MR. SKLAROFF: Well, no, I want

23 to discuss the issues as well. I don't think it's an

24 either/or.

25 (Tax Map marked Sklaroff

47



3 THE CHAIRPERSON: We still need

4 S-4.

5 MR. SKLAROFF: You will get it

6 and I will ask for it back later.

7 THE CHAIRPERSON: Please hand it

8 to Mr. Matteo.

9 MR. HERDER: Could we see it

10 first so we know what it is?

11 THE CHAIRPERSON: Yes.

12 MR. SKLAROFF: Wait. I have a

13 copy. Forget it.

14 Now, to continue, the issue of

15 density is central to many subarguments that have

16 been rendered, and what I believe to be a case is

17 that the maximum thereof has to be specified either


43/85

18 as related to the net or to the gross land area.

19 MR. ADELMAN: Objection. Doctor

20 Sklaroff is not trained, as far as I know, with

21 respect to civil engineering and land planning. I

22 don't believe he is qualified to testify as to gross

23 or net, what should or shouldn't be in an Ordinance.

24 If this is a lay opinion, that's fine, but I would

25 like the record to state that it is not the opinion

48


2 of an expert nor determinative on the matter.

3 THE CHAIRPERSON: Is this your

4 lay opinion, sir?

5 MR. SKLAROFF: It is my lay

6 opinion which I am -- no pun intended -- laying upon

7 you to adjudicate.

8 THE CHAIRPERSON: Let the record

9 show that this is Doctor Sklaroff's lay opinion on

10 the matter. It is not an expert opinion but a lay

11 opinion. Proceed, sir.

12 MR. SKLAROFF: There is a problem

13 with --

14 MR. MATTEO: I'm sorry. I

15 apologize for the interruption. Can we clean up the

16 record as far as what exactly this submission was?

17 MR. ECKEL: Mr. Penecale wants

18 the record to be clear that the application that he

19 has that we have marked as S-1 is the application

20 that he had at the time it was advertised. He is


44/85

21 holding it up and that is Exhibit S-1.

22 MR. ADELMAN: What is the title

23 of the document?

24 MR. PENECALE: There are several

25 documents attached. The cover sheet after the first

49


2 two pages has the Township's application form in the

3 Court of Common Pleas of Montgomery County, Civil

4 Division. It's a jury trial request with Robert B.

5 Sklaroff, M.D., with his address, Petitioner versus

6 the Township of Abington. That consists of --

7 MR. HERDER: Mr. Penecale, I'm

8 sorry to interrupt. Going back to the document you

9 were just referring to that bears the jury trial and

10 Court of Common Pleas notation, there is a title to

11 that. Mr. Eckel is probably familiar with it.

12 MR. ECKEL: It is a Mandamus

13 Petition for Review of Township Ordinance.

14 MR. HERDER: Thank you. That is

15 what I wanted know.

16 MR. ECKEL: It ends with -- it's

17 not numbered -- but it ends with, "Certificate of

18 Service, Robert B. Sklaroff, 5-9-2011."

19 MR. PENECALE: Then there are

20 several pages with that hearing that refer to other

21 items that are to be supplied later, and they are

22 blank pages. I don't know how this measures up to

23 the stack that the Doctor has in front of him, but


45/85

24 this is what has been forwarded to the Board. This

25 is what you are in possession of, and I think maybe

50


2 we need to find out, since we keep referring to the

3 collection of paperwork that is there as being the

4 application, that this is what has been submitted.

5 THE CHAIRPERSON: Just so the

6 record is clear, the Mandamus petition that the Board

7 has before us that is attached to the Application to

8 the Zoning Hearing Board consists of 161 paragraphs,

9 81 pages, and then has additional pleadings attached

10 to it, including but not limited to a form of order,

11 a form of rule to show cause, and then a listing of

12 appendices from A through V as in Victor.

13 Those documents comprise an

14 additional -- we don't have a total. The total of

15 numbered pages we have in our booklet are 183.

16 Attached to that additionally, so the record is clear

17 and we know exactly what is in our book, is, again,

18 Court of Common Pleas, Montgomery County, with a

19 caption of Robert B. Sklaroff, M. D., versus Township

20 of Abington, a jury trial requested, Plaintiff's

21 reply to Respondent Township of Abington's brief, in

22 support of preliminary objections to petitioner's

23 amended petition for review of Township Ordinance

24 adjudication. That document is five pages with,

25 again, a form of order attached as well as an


46/85

51


2 affirmation and certificate of service.

3 There is also a copy of a memo

4 attached dated December 17th, 2010. Next is, again,

5 captioned Court of Common Pleas, Montgomery County,

6 Pennsylvania, same caption, jury trial requested,

7 precipe for summary judgment due to failure to

8 respond to motion. That is two pages with a form of

9 order, affirmation and certificate of service. And

10 then attached are the names and addresses of property

11 owners to whom notice of this hearing was sent.

12 MR. ECKEL: That wasn't part of

13 the application.

14 THE CHAIRPERSON: That wasn't

15 part of the application, okay. Then a copy of

16 Mr. Kaplin's memo.

17 MR. ECKEL: And that is not part

18 of the application.

19 THE CHAIRPERSON: That's just so

20 the record is clear.

21 MR. SKLAROFF: Can I find out

22 more about Mr. Kaplin's memo which I don't know if I

23 have seen?

24 MR. ECKEL: While doing that, I

25 think we ought to put in the record a copy of the

52


2 order from Judge DelRicci remanding this to us and


47/85

3 that will make that ZHB-1.

4 (Order marked Zoning Hearing

5 Board Exhibit ZHB-1, for identification.)

6 THE CHAIRPERSON: Right. There

7 is also a motion before the Zoning Hearing Board of

8 Abington Township by an intervenor, Baederwood

9 Limited Partnership, a motion for more specific

10 pleadings.

11 MR. SKLAROFF: I think I replied

12 to that. So you might want to put my reply in as

13 well.

14 THE CHAIRPERSON: Could you speak

15 into the microphone?

16 MR. SKLAROFF: Yes. I replied to

17 that as well, so, therefore, if you are going to put

18 that in, put in my reply.

19 MR. ECKEL: I think Mr. Sklaroff

20 was asking you about the letter from Mr. Kaplin and

21 the motion or more specific pleading, but that letter

22 that Mr. Kaplin wrote, Mr. Sklaroff, you were copied

23 on. So I think you have that letter.


25 THE CHAIRPERSON: You were copied

53


2 on that.

3 MR. SKLAROFF: Fine. I wasn't

4 sure what you were talking about. Anyway, is ZHB-2

5 the letter from Kaplin?


48/85

6 MR. ECKEL: ZHB-1 is the Order

7 from Judge DelRicci.

8 MR. SKLAROFF: Right, and where

9 is Kaplin's filing?

10 MR. ECKEL: That is not part of

11 it. The Board was given a copy of that because it

12 was sent to them and a copy was sent to you. That was

13 in what the Board had. Mrs. Wertheimer read that and

14 I said, no, that is not part of the application.


16 THE CHAIRPERSON: Right. And you

17 were copied on the letter plus the motion.

18 MR. SKLAROFF: Okay. And

19 presumably if I received the motion, then I replied

20 to the motion, so you should have that as well.

21 MR. ECKEL: Well, I think that

22 motion in written form is what Mrs. Wertheimer tried

23 to ask of you at the beginning, which is to tell the

24 Board precisely what you are complaining about in

25 terms of a substantive invalidity.

54


2 MR. SKLAROFF: Right, and I think

3 in response thereto I specifically requested prior to

4 this meeting that Brandolini file, a response

5 paragraph by paragraph to my substantive challenge,

6 if I am remembering correctly, to facilitate matters.

7 MR. ECKEL: There is not really a

8 pleading practice before zoning hearing boards.


49/85

9 MR. SKLAROFF: It was just a

10 suggestion. You should also have a copy of my

11 distilled, believe it or not, substantive petition

12 for review of Township Ordinances' Adjudication memo

13 which doesn't have any blank pages and it was

14 remitted on 6/30.

15 MR. ECKEL: That was after the

16 application was filed?


18 MR. ECKEL: Part of the problem

19 with that, Doctor Sklaroff, is that when a applicant

20 files an application, that is what is advertised and

21 that is what the Zoning Board has.


23 MR. ECKEL: Subsequent things

24 that come in are not part of the application. If you

25 want to make that part of it, you are going to have

55


2 to -- and I think Mrs. Wertheimer said you should

3 have like seven copies of it for opposing counsel,

4 for the Zoning Board, a copy for the record.

5 MR. SKLAROFF: Seven copies, no

6 problem.

7 MR. PENECALE: I would recommend

8 having nine with one for the solicitor and one for

9 the record.

10 MR. SKLAROFF: So nine copies of

11 my substantive petition.


50/85

12 MR. ADELMAN: Just for the

13 record, rather than waiting for copies of everything,

14 I am going to object to the introduction of that

15 pleading as being beyond the time of filing, and as

16 being an improper submission to the Zoning Hearing

17 Board. I am aware of its contents.

18 THE CHAIRPERSON: Can I have the

19 title of that submission, sir?

20 MR. SKLAROFF: It was called a

21 Substantive Petition for Review of Township

22 Ordinances' Adjudication, and I will get you nine

23 copies tomorrow.

24 MR. HERDER: I object to the

25 admission of that document. It's untimely. This

56


2 serves only to delay these proceedings. I don't

3 think that the Township should be prejudiced nor

4 Doctor Sklaroff benefitted by his lack of

5 preparedness and unfamiliarity or lack of knowledge

6 regarding the legal practice before a Zoning Hearing

7 Board. He has undertaken to do this pro se and he

8 should be bound by the rules.


10 Mr. Herder. Mr. Eckel?

11 MR. ECKEL: Mr. Herder and Mr.

12 Adelman both mentioned untimeliness. Follow up on

13 that. Give me a little more about that argument.

14 MR. ADELMAN: It's a substantive


51/85

15 petition. It's what I would call an original process

16 that would, for lack of better terms, institute a

17 substantive challenge. I don't believe that it's

18 appropriate to introduce this document as a

19 supplement to the pending application before the

20 Board.

21 MR. HERDER: And that was my

22 point.

23 MR. ECKEL: Let me ask you this,

24 Doctor Sklaroff. Is that different than what you

25 submitted to the Board?

57


2 MR. SKLAROFF: Believe it or not,

3 it is a simplification thereof because the process

4 that went through it was that after the Order was

5 issued on June 15th, within four days I had basically

6 split my initial --

7 MR. ECKEL: This was the initial

8 submission?

9 MR. SKLAROFF: Believe it or not,

10 yes. So what happened is I maintained coverage of

11 the overlap like you heard in my intro, where I had

12 to discuss some of the procedural stuff in order to

13 get to the substantive issues.

14 MR. ECKEL: Why don't you mark

15 that as Sklaroff 5 and the Board will take it under

16 advisement as to whether or not the Board will

17 consider it, but if it simplifies matters the Board


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18 may consider it.

19 MR. ADELMAN: It's ninety plus

20 pages.

21 MR. HERDER: My copy is 124

22 pages.

23 MR. SKLAROFF: It's shorter than

24 the other 1100 pages.

25 MR. ECKEL: Wait. Your copy is

58


2 90 pages and your copy is 124 pages?

3 MR. ADELMAN: I'm missing an

4 attachment, I believe.

5 MR. HERDER: I have 125 pages.

6 MR. ECKEL: That's S-5. What is

7 the title of that?

8 MR. HERDER: My document is

9 titled, "Substantive Petition for Review of Township

10 Ordinances' Adjudication.

11 MR. ADELMAN: So is mine.

12 MR. HERDER: This appears to me

13 to be an effort to amend the application.

14 MR. ECKEL: Well, the Board,

15 without ruling on whether it would be admissible,

16 will take it and we will consider it when it

17 deliberates.

18 MR. HERDER: And I object to it.

19 MR. ECKEL: We have your

20 objection on the record, and Mr. Adelman's objection


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21 on the record. Mr. Sklaroff, you need to give a copy

22 of that to Mr. Matteo. That document is dated when?

23 MR. SKLAROFF: The 30th of June.

24 (Document dated 6-30 marked

25 Sklaroff Exhibit S-5, for identification.)

59


2 THE CHAIRPERSON: Doctor Sklaroff

3 just so you know the rules, you can't keep submitting

4 documents once you have submitted your initial

5 application.

6 MR. SKLAROFF: Right, but I

7 thought I was doing this under court order in order

8 to separate the procedural and substantive

9 components.

10 THE CHAIRPERSON: Please proceed.

11 MR. SKLAROFF: The next issue has

12 to do with the design and dimensional standards in

13 C-34 and that is on page 1.

14 THE CHAIRPERSON: Page 1 of what?

15 MR. SKLAROFF: Of the Ordinance

16 2000. I am talking about the Ordinance 2000.

17 Apparently what was lost were certain restrictions

18 that previously existed in Ordinances applicable to

19 this area. That relates specifically to bars or

20 taverns from being located within 2000 feet --

21 MR. HERDER: Excuse me, Doctor.

22 I object. This is wholly irrelevant to a substantive

23 validity challenge. It's commentary of what is in


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24 the Ordinance or what is not in the Ordinance.


60


2 that objection.

3 MR. SKLAROFF: Can I finish it

4 and then you decide whether it's okay? It's not that

5 long. It's about ten more words.

6 THE CHAIRPERSON: I will give you

7 ten more words and then I will let you know.

8 MR. SKLAROFF: Within one

9 thousand feet of a church or school, maximum hotel

10 density and minimum lot area, five acres for schools.

11 These are restrictions that did exist which were

12 dropped.

13 THE CHAIRPERSON: Did exist in

14 what?

15 MR. SKLAROFF: In an existing

16 Ordinance applicable to this region.


18 the objection.

19 MR. HERDER: Thank you.

20 MR. SKLAROFF: Maybe if you can

21 tell why it might simplify things.

22 THE CHAIRPERSON: It doesn't work

23 like that.

24 MR. SKLAROFF: Then I will plunge

25 along. Next has to do with the -- well, I will skip


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61


2 that one. The next one has to do with fenestration.

3 It suggests in the Ordinance that at least sixty

4 percent of the length of the ground floor of all of

5 the building facades facing a street or main access

6 driveway shall consist of windows, glass doors or

7 other transparent building surfaces, and you should

8 change the length to the vertical surface in order to

9 clarify matters.

10 The renderings of a proposed

11 building facade should be submitted with this project

12 and they were not. That actually is a problem that

13 was rooted in many of the objections that were aired

14 by myself and others at the two events in 2009, and

15 there was specific reference to whether or not fire

16 engines could access what was then viewed as the rear

17 or north end of the property.

18 The ultimate rationalization was

19 that the buildings would be constructed with

20 fireproof material and, therefore, no fire could ever

21 start and, therefore, the need to make sure that the

22 fire engines could get to the back was thereby

23 obviated.

24 MR. ADELMAN: I am going to

25 object to this whole line of comment or testimony. I

62


2 don't know what he is talking about. There are no


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3 facts in evidence. There is no foundation, and I am

4 not even sure if it's hearsay or opinion testimony.

5 The rationalization, the characterization of what he

6 is testifying to is wholly irrelevant to this subject

7 matter before this Board.


9 objection, and I will point out to the Board that

10 Doctor Sklaroff is reading directly from the November

11 17th letter from Michael Narcowich addressed to

12 Mr. Penecale. It also is just not relevant to the

13 validity of the Ordinance.

14 MR. SKLAROFF: May I respond to

15 that?

16 THE CHAIRPERSON: You may

17 respond.

18 MR. SKLAROFF: The validity of

19 the Ordinance has to do specifically with safety

20 issues, and fire safety is among them. So,

21 therefore, when renderings were not given either then

22 or now, then that is indeed relevant to your charge;

23 namely, the health and safety of the residents.


25 MR. ECKEL: You can listen to

63


2 that.

3 MR. ADELMAN: I would like to

4 lodge an objection. He doesn't have any

5 qualifications to make any testimony or statements


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6 with respect to what does and doesn't create a fire

7 safety hazard.

8 MR. ECKEL: You can consider it,

9 and we will give it the weight.

10 THE CHAIRPERSON: This is his lay

11 opinion.

12 MR. ECKEL: Yes, it's not expert

13 testimony.

14 THE CHAIRPERSON: Doctor

15 Sklaroff, this is your lay opinion?

16 MR. SKLAROFF: Everything you are

17 hearing is a lay opinion.


19 MR. SKLAROFF: But I am also, as

20 I said earlier, laying upon you the opportunity to

21 check it out.


23 Continue.

24 MR. SKLAROFF: If you look on

25 page 11, item J, which is in the middle of the page,

64


2 it states the following: "Primary facades or

3 portions of building facades facing a street, a main

4 access driveway, a surface parking lot, either of

5 which is greater than two hundred linear feet, shall

6 include at least three design elements such as

7 awnings, porches, canopies, towers, balconies, bays,

8 gables, changes in material, changes in facade, et


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9 cetera," but these do not apply to buildings on

10 secondary access drives, according to what I am

11 understanding to be the Ordinance that presently

12 exists regarding the definition of secondary access

13 drives which is provided on page 2 which states --

14 THE CHAIRPERSON: Page 2 of what?

15 MR. SKLAROFF: I'm sorry, page 4

16 of the Ordinance.

17 THE CHAIRPERSON: Which

18 Ordinance?

19 MR. SKLAROFF: 2000, where it

20 says, "The primary function of a secondary access

21 driveway is to provide access when the main access

22 driveway --

23 THE CHAIRPERSON: Hold on. We

24 don't have a copy of that Ordinance in front of us.

25 MR. SKLAROFF: That was handed

65


2 up.

3 MR. ECKEL: It's Exhibit S-2.

4 THE CHAIRPERSON: Where is it?

5 It's not in the booklets.

6 MR. ECKEL: It's right here

7 (indicating).

8 THE CHAIRPERSON: What we have is

9 Ordinances 2000 and 2006, and we have a blank page.

10 MR. HERDER: That is because that

11 is the Doctor's application and the Ordinances were


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12 not included with it even though the pages were

13 included in it.

14 - - -

15 (Discussion off the record.)

16 - - -


18 Sklaroff, continue.

19 MR. SKLAROFF: Now that you are

20 organized, so you see what I was reading from?

21 THE CHAIRPERSON: Now that I have

22 a copy in front of me, yes.

23 MR. SKLAROFF: Okay. The next

24 point is related to Section 504.8D.2d which is on

25 page 14, and the word "dimension" should be changed

66


2 to "radius" so that there is no ambiguity as to the

3 open space requirement.

4 MR. HERDER: I object again. He

5 is reading directly from the November 17th review

6 letter from the County Planning Commission and there

7 is no substantive invalidity challenge here.

8 MR. SKLAROFF: There is a major

9 concern regarding the preservation of open space.


11 MR. HERDER: Major concerns about

12 open space are not relevant here.

13 MR. SKLAROFF: Major concerns

14 regarding open space I believe can be relevant to


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15 your decision making. They are in your standards,

16 your Ordinances.

17 THE CHAIRPERSON: Let's go back.

18 Doctor Sklaroff, you were instructed that you cannot

19 read from the letter.

20 MR. SKLAROFF: I am not reading.

21 What I am doing is I am jogging my memory and then

22 talking about what I know to be true.

23 THE CHAIRPERSON: What was your

24 objection, Mr. Herder, again, please?

25 MR. HERDER: My objection is that

67


2 the Doctor is reading verbatim from the November 17th

3 letter, and that nothing he is reading constitutes a

4 challenge to the validity of the Ordinance.

5 MR. ADELMAN: I would like to add

6 to that. The nature of his testimony is really in

7 the form of public comment and, as I stated in my

8 opening statement, that is inappropriate and does not

9 serve as a basis for a substantive validity

10 challenge. I have a feeling we are going to be doing

11 this for a long time unless somehow his testimony is

12 limited to actual evidence that is relevant to the

13 application.


15 Sklaroff, do you understand the nature of the

16 objection?

17 MR. SKLAROFF: I understand the


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18 nature of the objection, but I am tethering each

19 concept to what I know to be true based on my

20 knowledge, training and experience.

21 MR. ADELMAN: Objection, he is

22 not qualified to do that.

23 MR. SKLAROFF: I am saying --

24 THE CHAIRPERSON: We have

25 objections on the record. I must rule on those

68


2 objections.

3 MR. SKLAROFF: He was asking me a

4 question, so I answered it.


6 With respect to those objections, for the time being

7 I will overrule the objection. Doctor Sklaroff, we

8 would like you to testify that this is your opinion.

9 It's your lay opinion, and the Board will give your

10 testimony the weight it deems appropriate.

11 MR. SKLAROFF: Fine. I ask for

12 no more. The next point is the gravamen of the

13 entire effort. That is the absolute necessity for a

14 traffic study to be accomplished. I will provide you

15 an exhibit shortly to amplify on the exhibits that I

16 acquired through discovery which you already have,

17 that I will make sure that I get nine copies provided

18 to you tomorrow thereof.

19 This is dating back over the

20 years, and the necessity for a proper traffic study


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21 has been ignored despite its amplification in both

22 the Old York Road study and the Abington Township

23 plan. Anyone who uses Susquehanna Road during light

24 hours, not just rush hours, would know that.

25 The problem is that the

69


2 Brandolini people provided a traffic study --

3 MR. ADELMAN: Objection, beyond

4 the scope of the actual enactment of the Zoning

5 Ordinance.


7 the objection.

8 MR. SKLAROFF: Is there a way to

9 let me finish my point before the objection comes?

10 THE CHAIRPERSON: No.

11 MR. SKLAROFF: No? Okay, then I

12 will try it differently. The issue of traffic

13 relates to density and relates to the point I made

14 earlier regarding your charge as to the health and

15 safety of the people who live here, and in particular

16 those who may have an additional need to utilize the

17 emergency vehicular transport that would necessarily

18 traverse Susquehanna, and then from my perspective

19 wander up Washington Lane towards Fairacres. The key

20 issue to me and I think to the residents sitting

21 behind me in particular --


23 THE CHAIRPERSON: State your


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24 objection.

25 MR. ADELMAN: Doctor Sklaroff

70


2 cannot testify or characterize opinions of people who

3 are not himself.

4 THE CHAIRPERSON: Keep your

5 comments basically to yourself.


7 THE CHAIRPERSON: Objection

8 sustained.

9 MR. SKLAROFF: The key issue here

10 is that when the traffic study was provided by

11 Brandolini, and just two pages I believe were

12 excerpted and given to you as an exhibit --

13 MR. ADELMAN: Objection on the

14 same basis.

15 MR. SKLAROFF: I am telling you

16 about the exhibits that you are going to get.

17 MR. ADELMAN: I have already

18 objected to that exhibit as being beyond the scope.

19 MR. SKLAROFF: It's his own

20 exhibit.

21 MR. ADELMAN: No, it's not.

22 MR. HERDER: I object as well.

23 There is nothing in the record for him to be talking

24 about.

25 THE CHAIRPERSON: Right. In


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71


2 other words, for you to talk about the exhibit, it

3 needs to be in evidence.

4 MR. ECKEL: There is no exhibit.

5 THE CHAIRPERSON: Right, there is

6 no exhibit until it is an exhibit.

7 MR. SKLAROFF: All right. Let's

8 see if I can find you an extra copy. I think I have

9 one.

10 MR. ADELMAN: I am already

11 objecting to its admission.

12 THE CHAIRPERSON: I understand

13 that.

14 MR. HERDER: So am I if he is

15 offering it.

16 THE CHAIRPERSON: Mr. Eckel,

17 would you care to explain to Doctor Sklaroff about

18 the Brandolini traffic study?

19 MR. ECKEL: There has been an

20 objection to it, and the objection has been

21 sustained, so it's not an exhibit.

22 MR. SKLAROFF: Let's see. Now

23 that I have shown it to you and it illustrates the

24 deficiency of the traffic study performed --


72


2 MR. SKLAROFF: Then I would like


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3 it to be made into a exhibit.


5 THE CHAIRPERSON: Are you the

6 author of the exhibit?

7 MR. SKLAROFF: No.

8 THE CHAIRPERSON: Then you cannot

9 place it into evidence as an exhibit.

10 MR. SKLAROFF: So in other words,

11 my discovery that I acquired when I went through the

12 box here at Abington, none of that I can put in as an

13 exhibit even though it's Abington's own documents?

14 THE CHAIRPERSON: I can't answer

15 that question for you.

16 MR. SKLAROFF: Because I have a

17 number of them I am going to try to discuss with you.

18 Actually, I have an idea. Mr. Penecale is here.

19 MR. ADELMAN: To whom is that

20 addressed?

21 MR. SKLAROFF: Let me see. It

22 was addressed to Kaplin. Well, I have other letters

23 that were sent to Mr. Penecale and memos that were

24 generated by Abington, and since they are here, maybe

25 they could validate their appropriateness and then we

73


2 could work from there. How does that sound?


4 Appropriateness is not a kind of legal standard.

5 This is completely out of hand.


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9 are located has also some concern, and this has to do

10 with a viewpoint regarding the safety of where people

11 can or can not be, let's say, traveling vehicularly

12 versus ambulatorily, if that is a word.

13 MR. ECKEL: Ambulatory?

14 MR. SKLAROFF: Yes, in an

15 ambulatory fashion.

16 THE CHAIRPERSON: How about on

17 foot?

18 MR. SKLAROFF: Well, I was using

19 a word that I thought might be more formalistic.

20 Yes, on foot would be okay or by wheelchair or

21 whatever. Let's say via a non-enclosed motorized

22 entity.

23 MR. HERDER: I object. Doctor

24 Sklaroff at this time seems to be filibustering for

25 want of a better term. He is not producing any

75


2 relevant or competent evidence.

3 MR. ADELMAN: We have been at

4 this for an hour and a half this evening so far. I

5 think I have had more objections sustained than

6 Doctor Sklaroff has had exhibits entered or even on

7 hand. I would echo that objection. I am getting

8 very close to asking this Board to quash his appeal.

9 MR. HERDER: As am I. It's

10 apparent that Doctor Sklaroff not being an attorney

11 and not being a land planner is simply not versed in


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12 what the requirements are that are placed upon him.

13 As a consequence, he is here unprepared and he is

14 just wasting this Board's time.


16 MR. ECKEL: I am not going to

17 comment on Mr. Herder's last words; however, we have

18 been here for a long time and we have not heard a lot

19 of substantive evidence regarding what the basis of

20 the substantive validity challenge is. Do you want

21 to talk with me?

22 THE CHAIRPERSON: We would like a

23 five minute recess, please.

24 - - -

25 (Recess)

76


2 - - -

3 THE CHAIRPERSON: Back on the

4 record. We have an objection that was last on the

5 record. Can you go back and read what the objection

6 was?

7 (The Court Reporter read back the

8 last two objections).

9 THE CHAIRPERSON: If that was a

10 motion to quash the appeal, the motion is denied. We

11 are going to proceed with the hearing. Doctor

12 Sklaroff, at this point in time we have been going on

13 for an hour and a half, and we would ask you to

14 produce at this point whatever relevant and/or


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15 competent evidence that you have, any exhibits that

16 you have for your case.

17 MR. SKLAROFF: Okay. Well, in

18 light of what we were discussing here, some of my

19 exhibits have to be perhaps authenticated, so I will

20 rely for now on providing you nine copies tomorrow of

21 my substantive document which has some attachments to

22 it. So I'll continue along.

23 MR. ADELMAN: I object again. I

24 don't think that is responsive to your instructions,

25 the Board's instructions and, in addition, we are not

77


2 here to come back again at another hearing or another

3 day where he can supply something that you may not

4 supply or may not be valid.

5 I am going to renew my motion to

6 quash because I believe that this is wasting all of

7 our time and it's preventing my client from moving

8 forward with their project.

9 MR. SKLAROFF: May

Zoning Board Transcript - 7-12-11

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