1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ALSO PRESENT: 22 23 24 25 2 1 2 APPLICANT'S EVIDENCE I N D E X LAWRENCE T. MATTEO Township Manager MARK PENECALE Code Enforcement Officer GREGG I.

ADELMAN, ESQUIRE for Baederwood Limited Partnership - - BRUCE J. ECKEL, ESQUIRE Solicitor for the Zoning Hearing Board R. REX HERDER, ESQUIRE for the Township - - Abington Township Administration Building 1176 Old York Road Abington, Pennsylvania - - BOARD MEMBERS: BARBARA M. WERTHEIMER, ESQUIRE, Acting Chair JOHN DiPRIMIO, Member EDWARD A. MEBUS, Member LINDA J. KATES, Member RICHARD J. GAGLIANESE, Member - - COUNSEL APPEARED AS FOLLOWS: ABINGTON TOWNSHIP ZONING HEARING BOARD MONTGOMERY COUNTY, PA - - Application VC 11-01: Dr. Robert B. Sklaroff - - Tuesday, July 12, 2011 Commencing at 7:50 p.m.

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Witness ROBERT B. SKLAROFF

Dir. Crs. Redir. Recrs. 12 - - E X H I B I T S ----

BAEDERWOOD'S Number B-1 Deed - - ZONING HEARING BOARD'S Number Marked Order - - 52 Rec'd -Marked 9 Rec'd --

11 12 ZHB-1 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 2 3 4 5 Application of Sklaroff P R O C E E D I N G S - - THE CHAIRPERSON: The next case before the Board is Application VC-11-01. This is SKLAROFF'S S-1 S-2 S-3 S-4 S-5 Application Ordinance No. 2000 Ordinance No. 2006 Tax Map Document dated 6-30 - - 40 40 40 47 58 ------

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the application of Doctor Robert B. Sklaroff, owner of the property located at 1219 Fairacres Road, Rydal, Pennsylvania, resident of the Township of Abington, who has filed a Validity Challenge to the passage of Ordinance Number 2000, "Fairway Transit District," and Ordinance Number 2006, "The Metes and Bounds Description of the Affected Property," by the Board of Commissioners of the Township of Abington. This application has been remanded to the Zoning Hearing Board by the Common Pleas Court of Montgomery County. The properties involved in this challenge are currently zoned within the "FTD" Fairway Transit District of Ward Number 7 of the Township of Abington. The prior zoning of these properties were within the R-1 Residential District and (PB) Planned Business District. Mr. Sklaroff, would you like to step forward to the table? MR. SKLAROFF: Yes, thank you. THE CHAIRPERSON: Before we begin

Application of Sklaroff this application, I would like to state a few ground rules. First, I will make the announcement for every one here that this Board invokes a ten o'clock rule, that we will conclude this hearing at ten o'clock this evening, and continue whatever unfinished business that is before the Board after that time. A few other ground rules, and

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this applies to all of the parties present. Any document that is going to be made part of the record, a copy needs to be supplied for the record to the secretary of the Board, that is Mr. Matteo, and all members of the Zoning Hearing Board need to be supplied a copy of the document, as well as a copy for each party involved. As stated previously, we are conducting this hearing pursuant to an Order of the Court of Common Pleas of Montgomery County, Judge DelRicci. That Order is dated June 15th, 2011. The Board has been provided with a copy of that ruling. The matter before the Board this evening, according to Judge DelRicci's ruling, is a substantive validity challenge, and the Judge is very clear as to the parameters that are before the Board this evening on this matter.

Application of Sklaroff A few other matters is this hearing is going to be conducted as any other hearing before the Board is conducted. The zoning hearing board is a quasi-judicial body. We are charged as the finder of fact in these cases, and we are going to be hearing this matter as a finding of fact and rendering an opinion with findings of fact in this case. Accordingly, we are going to follow certain procedural rules of law as we would in

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any other case to which they apply before this Board. Accordingly, rules that we are going to strictly abide by include the following: If during any testimony an objection is made by any party, all talking will stop at that point until a ruling is determined on the nature of the objection. I am going to repeat that again. If there is an objection made during the course of testimony, all parties will stop talking and not argue by any party whatsoever until the ruling is made on the objection. There will be a hearing. There will be a record made in this case. If anyone does not agree with any of the rulings made by this Board, that is fully appealable to the Court of Common

Application of Sklaroff Pleas, but that is how we are going to run this hearing. The way the hearing is conducted is as follows: The petitioner in this case, the applicant, goes first. In this case that will be Mr. Sklaroff. He gets to present his case with his witnesses. His witnesses are subject to cross-examination by the other parties or their attorneys to this matter. As common practice before this Board, if there is anyone in this audience who has a question concerning the testimony of that witness, matters that this witness has testified to, then you will be able to ask a question of that

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witness pertaining only to that matter. After Mr. Sklaroff has completed his case, then we will go to the cases presented by the other parties to this matter. We are going to begin this case this evening by requesting that all parties who are involved in this case present a brief opening statement so that the Board has a better grasp of the situation, and so we become more fully acquainted with the issues that are before the Board at this time. I will also advise everyone that

Application of Sklaroff at the conclusion of both petitioner's case and those who are in opposition to the petitioner's case have presented their cases, then people who are either in agreement or -- strike that. At the conclusion of both the petitioner's case and the opposition cases, we will open the floor to anyone who wants to make a comment in favor of the applicant's case, and also open the floor to anyone who wants to make a comment in opposition to the applicant's case. In other words, everyone will get a chance to be heard. In all likelihood, this will not be completed this evening. This case will continue for as long as it takes to complete this case. We ask everyone to be patient. We will not tolerate anyone speaking out from the audience, and we will follow the rules.

18 19 20 21 22 23 24 25 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 that.

I again state that this is a quasi-judicial hearing. This Board is charged with certain obligations and we expect to complete them. Judge DelRicci was very clear in his Order, and we are going to follow the rules as set forth in Judge DelRicci's Order. Any questions, gentlemen? MR. ADELMAN: Madam Chair, my

Application of Sklaroff name is Gregg Adelman. I am here on behalf of Baederwood Limited Partnership. I believe before we proceed I would have to demonstrate my standing in order to be recognized as an intervening party to the action. If the Board please, I would like to take this a little bit out of order so I can participate. I would like to introduce a copy of the deed that is demonstrating record ownership of Baederwood Limited Partnership, the owner of the Baederwood Shopping Center, which has a direct, immediate and substantial interest in the outcome of this proceeding given that the zoning was changed as a result of the challenge to the Ordinance this evening. THE CHAIRPERSON: Mr. Eckel? MR. ECKEL: Yes, let's accept

MR. ADELMAN: A copy is marked as

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Exhibit B -- as in Baederwood -- 1. Unfortunately, I only have four copies. I can supply the Board with additional ones if necessary. THE CHAIRPERSON: If you would, supply Mr. Sklaroff with a copy and Mr. Matteo with a

Application of Sklaroff copy. (Deed marked Baederwood Exhibit B-1, for identification.) MR. ECKEL: Ms. Wertheimer, let's get on the record the parties that are going to be in this case. THE CHAIRPERSON: That's fine. Mr. Sklaroff, please enter your appearance for the record. MR. SKLAROFF: Robert B. Sklaroff, M.D., 1219 Fairacres Road, Rydal, PA, 19046-2911. THE CHAIRPERSON: And you are the applicant; is that correct? MR. SKLAROFF: Yes. MR. HERDER: Good evening, Rex Herder, solicitor of Abington Township, here on behalf of the Township and the Board of Commissioners which adopted the challenged Ordinances. THE CHAIRPERSON: Thank you. MR. ADELMAN: And I would like to enter my appearance. Gregg Adelman with Kaplin,

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Stewart, here on behalf of Baederwood Limited Partnership, owner of the Baederwood Shopping Center,

Application of Sklaroff which is directed effected by the challenged Ordinances. THE CHAIRPERSON: Thank you, sir. Mr. Adelman, have you made an actual motion before this Board to be added as a party? MR. ADELMAN: I have requested intervenor and party status to this proceeding to participate. MR. SKLAROFF: No objection on this end. THE CHAIRPERSON: Thank you. So granted. MR. ADELMAN: Thank you. THE CHAIRPERSON: Mr. Sklaroff, opening statement. MR. SKLAROFF: First, is there electricity on this side of the table available? (Off the record). - - MR. SKLAROFF: You would now like me to make a brief opening statement? THE CHAIRPERSON: That is correct. MR. SKLAROFF: The first thing I

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 1 2 Robert B. Sklaroff - Direct DIRECT EXAMINATION Application of Sklaroff will say to you is I have no formal witnesses; however, I suspect that a friend of mine behind me will provide some input as to the implications of what I am trying to do here. Let's say across the Schuylkill River, whether or not that is something that we can put in as part of the presentation or whether or not it has to be subject of discussion, I guess will be an issue that you will have guidance regarding. What I am going to do is I am going to remind you that I can talk from five minutes to five hours on this topic, and I know you prefer the former or at least closer to that. So what I am going to do -MR. ECKEL: This is an opening statement, but if this is going to be considered testimony, I guess we ought to swear the Doctor in at this time. - - APPLICANT'S EVIDENCE - - ROBERT B. SKLAROFF, having been duly sworn, was examined and testified as follows: - - -

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- - MR. SKLAROFF: All right. The first thing I have to do is I have to try to accommodate some of the issues that have been raised in conjunction with the narrative that I am going to give you so it is somewhat cohesive, and so that issues that were raised this morning, for example, I can prophylactically snip away so that we can focus in on the key issues and not subterfuge. By referencing this morning, there was a hearing regarding a motion filed by the landowner which was taken basically under advisement by a different Judge. I would say I spoke for about five minutes and the other people spoke for 55 minutes, so I didn't have a lot of chance to explain things but, nevertheless, I took notes. So what I am going to do is explain that I didn't fall into this with any personal interest that suggested I was going to try to abuse the system, any political interest that would inform you on how I view the incumbent Commissioners, more specifically, Stephen Kline. I didn't fall into this for any reason other than to

Robert B. Sklaroff - Direct reflect what I view as what the community sees as important. Only later on did I understand that the issues that I was raising, let's say, had

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ripple effects, and not only within the Baederwood region but also throughout Abington, throughout Montgomery County, and even the suburbs, all four collar counties. So now what I am going to do having said that is you should note that I didn't get into this really until the two hearings that were held in the fall of '09 at the Abington School Auditorium -- not the senior high -- the junior high, and you have I believe been provided a lot of documentation. So having that occur, that sort of liberates me as to the kinds of things I would otherwise have to explain. The turnout for both of those events was in excess of a hundred people, and as I summarized it, this presentation of a Town Center type model without an Ordinance, but just sort of presenting pictures and ideas, received almost universal condemnation. This occurred at two hearings.

Robert B. Sklaroff - Direct The first hearing was more oriented towards asking questions, and the second hearing was basically bordering on irate expressions of amazement that this project had gotten so far. I am mixing in editorial comment there, but if you read the transcript it's unavoidable when you quantitate what people said, how many people said, and what they

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said. MR. ADELMAN: Madam Chair, at this point I am going to object. I believe you asked and requested a brief opening statement and this is rambling and does not have any direct relevance to the issue at hand which is the substantive challenge to the Ordinance. MR. SKLAROFF: I'm getting there. I am setting a foundation for it if you allow me some space. THE CHAIRPERSON: Mr. Sklaroff, what was the rule? When someone objects, we stop talking. MR. SKLAROFF: All right. THE CHAIRPERSON: I am going to ask you that as an opening -- Mr. Adelman is not incorrect -- that you briefly address your issues.

Robert B. Sklaroff - Direct MR. SKLAROFF: I was about to get to that point, believe it or not. THE CHAIRPERSON: When will you get there? MR. SKLAROFF: Soon. THE CHAIRPERSON: Put your foot on the accelerator. MR. SKLAROFF: The bottom line is that the issues that were raised at that juncture, I felt people understood and that they would be, let's

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say, properly weighed. Well, a year hence, the issues suddenly popped up in these two Ordinances -actually the one Ordinance, the 2000 Ordinance. So I attended two meetings of the Abington Planning Commission, and I just did due diligence. I took the Ordinance and took a line by line analysis of it and pointed out initially some questions, and reflective of the fact that I had a decent relationship with Commissioner Kline, not only had I learned something from him about what he had portrayed as gravamen of the case that spring, the spring of 2010, namely, the issue of whether or not they could build in front of the property or the rear of the property or whatever, I posed these questions

Robert B. Sklaroff - Direct to him and he gave me one set of answers, which I then transformed into simple declarative sentences, again, one per line in the entire 18-page Ordinance. Never thereafter did I receive any kind of response to these questions. They were presented in memo form in multiple settings. So then we jumped to the hearing in this room, the public hearing room, and although we are not focusing on procedures, suffice it to say that all dozen speakers spoke against it and gave a lot of different reasons. The chair wrote down questions but never had any of them answered, and that included stuff that I had sort of thought up on my own, and

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then only belatedly did I get a copy of the report from the Montgomery County Planning Commission dated November 17th which served to validate a myriad of questions I had raised. So then on discovery on the last Monday in January, whatever it was, sitting in the front right down below us, going through a box of discovery, Commissioner Kline walked past and I was, let's say, advised not to address him directly, so the person with me did. So she asked, Is it true that you got all of these pieces of advise and you

Robert B. Sklaroff - Direct didn't change? MR. ADELMAN: Objection. MR. HERDER: Objection. MR. ADELMAN: Go ahead. MR. HERDER: Madam Chair, this is a substantive validity challenge. MR. SKLAROFF: I am getting there. MR. ADELMAN: I don't think you are. MR. HERDER: He is not getting there, and I object to the reference to any, by name, of any township official, any elected official appointed or otherwise. We are here about Ordinance 2000, as Doctor Sklaroff points out, and 2006. We are here for those two Ordinances. He claims that

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they are substantively invalid. Let's get to it. THE CHAIRPERSON: Thank you, Mr. Herder. I will sustain the objection. Continue. MR. SKLAROFF: I am getting to it because I established existence of how I generated my initial memo, and then I established the creation of my awareness of the subsequent memo, and then I have established the fact that the existence of neither

Sklaroff Application entity impinged upon the advocates for this situation. Therefore, I would suggest simply, if nothing else, a starting point for your investigation would be to take my initial memo and/or the planning commission memo, compare it to the draft, make all of the necessary changes that both suggest, and then you will have a very simplified task. THE CHAIRPERSON: Thank you. Mr. Herder? MR. HERDER: Thank you, Madam Chair. It doesn't work that way. We are here on a Substantive Validity Challenge. It is the Doctor's burden, a very heavy burden as the courts say, to establish the invalidity of this Ordinance or some part of it. The case law is very clear on this. This is from a 2010 case, Plaxton versus Lycoming County Zoning Hearing Board. MR. SKLAROFF: A point of information, will I get a copy of this?

21 22 23 24 25 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 whom?

MR. HERDER: No. THE CHAIRPERSON: Wait. Let's get the citation. He will read you the citation. MR. HERDER: I was about to read that. It's 986 Atlantic 2nd 199.

Sklaroff Application MR. SKLAROFF: Plaxton versus

MR. HERDER: The Lycoming County Zoning Hearing Board. MR. SKLAROFF: Thank you. MR. HERDER: That is a Commonwealth Court opinion decided in December of 2009. It is the plaintiff's burden to establish that the Ordinance is arbitrary and unreasonable. A legislative enactment, such as the adoption of a Zoning Ordinance by this Board of Commissioners, can be declared void only when it violates the fundamental law clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation in the mind of the reviewing tribunal. That is what we are here about tonight. Now, I understand that the doctor is displeased with the adoption of this Ordinance. However, arguing that displeasure without reaching the specifics of what it is that he claims to be in invalid gets us nowhere. So with that I would defer to Mr. Adelman.

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MR. ADELMAN: Thank you, Mr. Herder. To echo your statements, I would also agree

Sklaroff Application that we are here on a limited scope, a very limited focus. This challenge is arguably made pursuant to 916.1 of the Pennsylvania Municipalities Planning Code which requires this Board to decide on a very limited scope whether the challenge before you has merit. In other words, this Board's task is to determine whether or not the applicant meets that heavy burden of determining that there is some substantive invalidity with the Challenged Ordinance. That substantive invalidity has nothing to do with procedure. It has nothing to do with procedural process. It has nothing to do with comments that were made, answered, unanswered, ignored, et cetera. It has to be something based in substance not in procedure. Specifically, the case that Mr. Herder referred to, the Plaxton case, also states -- and I also believe that it is very appropriate at this juncture -- the question of what best serves the public interest is primarily a question for the decision of the appropriate legislative body in a given situation. Here you have the Board of Commissioners acting in its legislative capacity.

21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 1 2 Sklaroff Application private, personal interest, and by immediate I Sklaroff Application That legislative discretion is afforded great weight. It is presumed that this Ordinance is valid, and I suggest to you after having read the litany of Doctor Sklaroff's pleadings and other writings, that he has not in one of them set forth any cognitive, recognized allegation of substance invalidity with respect to the challenged Ordinance. So I suggest to this Board that there is or there are actually no valid claims before you with respect to the substantive invalidity of the challenged Ordinance. Moreover, and this was discussed earlier today and I believe it's equally appropriate this evening in the substantive challenge, I don't believe Doctor Sklaroff meets the necessary requirements to have standing to bring this challenge. He has not, and I don't believe he can, demonstrate as required under the law that he has a direct, immediate and substantial interest in the outcome of this litigation, such that he would have standing to maintain it. Now, by standing I mean specifically something that surpasses the common interest of all citizens. By direct I mean something that is a matter complained of causing harm to his

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obviously mean that he seeks to protect within the zone of interest that it ought to be protected by statute or constitutional guaranteed question. I don't believe he has demonstrated in any of his pleadings, nor can he demonstrate those requirements to maintain this challenge this evening. Thank you. THE CHAIRPERSON: Thank you, Mr. Adelman. With respect to the issue of standing, I would respectfully submit that that matter was -MR. ECKEL: Well, that was dealt with by Judge DelRicci's decision, but let me read what Judge DelRicci said, because what Judge DelRicci said was, "The Township shall accept the filing and shall not contest the right or timeliness of the filing. By right I mean standing or timeliness of the filing." That is directed at the Township. I don't know if Mr. Adelman was at that hearing or his client was at that hearing or not. MR. SKLAROFF: He was not. MR. ADELMAN: We are not bound, I believe. That is my opinion. I also believe that Judge DelRicci was not making a determination with

Sklaroff Application respect to substantive standing to maintain a challenge. I believe he was referring to the ability to bring and file but not maintain it. So the Township would have to recognized that it was a

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timely filed challenge and proceed accordingly, not with respect to the substance as to whether Doctor Sklaroff had a direct, immediate and substantial interest in the outcome. I don't believe that was discussed or determined by the Court. MR. ECKEL: I think we understand your position, and the Board will take that into account when it makes its ruling. THE CHAIRPERSON: Thank you. MR. SKLAROFF: May I respond to that dialogue? They went back and forth. A key point is that if you look -THE CHAIRPERSON: When you bring your case, I will let you address that question. MR. ECKEL: I think we are at that point now. THE CHAIRPERSON: Go ahead. MR. SKLAROFF: The key point here is that if what was just stated would be accurate, then he would not specifically have said that my

Robert B. Sklaroff - Direct standing would not be subject to challenge, because I was essentially given the right to file this thing without having to pay the fifteen hundred dollar fee, and without any issue related to timing. But in addition, by him having said specifically that I should have standing, this is a distinction without a difference to suggest that

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I should have the ability to file it and then have that subsequently challenged. MR. ECKEL: We understand your position and the Board will consider it. MR. SKLAROFF: I wanted to put that on the record though. THE CHAIRPERSON: Are you ready to begin your case? MR. SKLAROFF: Yes. THE CHAIRPERSON: You may begin, sir. MR. SKLAROFF: Okay. What I am going to do is first reply to what we just heard as to my understanding of my burden. The key thing to me is that I have tried to carefully articulate all that in my filing so I can be somewhat telegraphic. It's easy to be dismissive, but when you examine the

Robert B. Sklaroff - Direct documents that I have provided you, and in light of what I just heard, I am going to have to go through the specifics. You will find that some of the points are easily fixed, and I don't know why any weren't fixed. Others go to the heart of what I view your charge as a Zoning Board and, more specifically, the Township's governance should entail. I tether this specifically to the issue of vehicular movement, and the specific case of Realen versus Upper Merion, which I photostatted and

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gave you at the very end of my file. It was somewhat surprising today that two of the principals involved in that case apparently were Messrs. Jonas and Kaplin, and they emphasize the issue of the reverse spot zoning component of the case. I had to remind them that prominent therein was the fact that the Supreme Court had weighed specifically the issue of whether or not health and safety concerns were being protected by police power. The key point in that regard is that the opinion stated that this criterion had to been substantially important -- and certainly health and safely are -- and had to be specific in how it is

Robert B. Sklaroff - Direct cited, and that burden is also met in the Ordinance and statute and so, therefore, there was an obligation that it should be weighed and it wasn't. There is a mass of information out there describing the fact that the Susquehanna Road section from Old York Road through to the T intersection is already, according to PennDOT, manifesting unsafe, rated F, et cetera. MR. ADELMAN: Madam Chair, I object. I can't tell whether this is testimony, evidence, public comment. I believe it's out of order. He has the burden to move forward at this point with producing evidence in support of his

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substantive challenge, not giving this Board diatribes or background information. I am at a disadvantage in that he is a pro se litigant and he is testifying, but he is not putting on any evidence or any witnesses. I can't allow him to continue to go forward and make speech after speech. We will be here for many nights. My client can't afford to wait. I don't believe it's fair. It impedes on his property rights, so I would object that this is out of order and irrelevant.

Robert B. Sklaroff - Direct MR. HERDER: I join that objection on a procedural basis, not having anything to do with property rights, but we are just not getting anywhere. This is not testimony. Apparently it's just background information that is not relevant to the issue before the Board. THE CHAIRPERSON: Mr. Eckel? - - (Discussion off the record.) - - THE CHAIRPERSON: Back on the record. Mr. Sklaroff, before we rule on the objection, the Board has a question of you. Exactly what is your evidence that you are going to be producing? Is it only going to be your testimony? MR. SKLAROFF: No.

18 19 20 21 22 23 24 25 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Abington plan.

THE CHAIRPERSON: You said you have no witnesses though. MR. SKLAROFF: But I have my filings. I am going to go through what they mean. THE CHAIRPERSON: When you say you have your filings, what are they? Can you just give me some idea of what they are without going through them specifically?

Robert B. Sklaroff - Direct MR. SKLAROFF: Right. Well, the first I just covered. That was the Supreme Court case, and I did that in particular because of the prior allegation that I didn't have anything major to say. I want to tie that together to my standing. In addition, there are four reports that I have excerpted in my filing that you should have available to you. THE CHAIRPERSON: Okay. When you say reports, going back to my comment that this is a quasi-judicial hearing, in terms of reports there are certain rules of evidence that we need to comply with. MR. SKLAROFF: I understand, and one of the reports is the Old York Road Corridor study. THE CHAIRPERSON: Okay. MR. SKLAROFF: Another one is the

21 22 23 24 25 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2007, yes.

THE CHAIRPERSON: Do you have the authors of those reports who can qualify them? MR. SKLAROFF: They were approved by the Board of Commissioners here in Abington, both of them. That should suffice in terms of being

Robert B. Sklaroff - Direct relevant, don't you think? MR. HERDER: Perhaps I can help the Board. Doctor Sklaroff refers to the Old York Road Corridor Study. THE CHAIRPERSON: Yes, sir. MR. HERDER: And when he refers to the plan, I believe -- he will correct me if I am mistaken -- that he's referring to the Abington Township Comprehensive Plan. THE CHAIRPERSON: Of what year? MR. HERDER: Is it 2007? MR. SKLAROFF: I think both were

MR. HERDER: The problem I have there, members of the Board, is, as we all know, the actions of the governing body, the Board of Commissioners, can not be overturned even if they were inconsistent with the Comprehensive Plan. It's written right into the MPC. I am not suggesting for a second that anything that the Board did by adopting these Ordinances was inconsistent with the plan, with the Comprehensive Plan, but even if it was it

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wouldn't be relevant. THE CHAIRPERSON: Thank you, sir.

Robert B. Sklaroff - Direct MR. SKLAROFF: And the other two documents are the planning commission reports respectively of Montgomery County and Abington. MR. ADELMAN: Madam Chair, if there is any testimony directly from those reports, in particular the Montgomery County Planning Commission report, I would object unless the author of that report is made available for cross-examination. MR. SKLAROFF: Fine. We will be happy to subpoena him if that is what it takes, or maybe you would. THE CHAIRPERSON: It's your case, Mr. Sklaroff. MR. SKLAROFF: So, in other words, am I hearing you correctly when I hear you suggest that I would be empowered to subpoena people to attend an event such as this? THE CHAIRPERSON: No, I did not state that. MR. SKLAROFF: Then how would I comply with the suggestion that the quote-unquote author of this letter be produced? THE CHAIRPERSON: I cannot advise

31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 1 2 Robert B. Sklaroff - Direct MR. SKLAROFF: Yes. that. MR. SKLAROFF: Good. Then I will use the report and then I will see what I can do about trying to produce the witness. MR. HERDER: I think there is an objection on the record. THE CHAIRPERSON: Yes, there is. MR. HERDER: I think it would be in the form of hearsay. MR. ADELMAN: Also, Section 908.9 of the Pennsylvania Municipalities Planning Code. THE CHAIRPERSON: Let's deal with these one at a time so the record is clear. MR. ECKEL: Doctor Sklaroff, is what you are saying that your case is composed of these four documents? That's your case? MR. SKLAROFF: No. THE CHAIRPERSON: Do you have something in addition to that? Robert B. Sklaroff - Direct you on that, sir. MR. SKLAROFF: Are you saying that that report would not be germane if I cannot produce that individual? THE CHAIRPERSON: I did not state

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 1 2 3 4 5 through them, yes. that is your case?

MR. ECKEL: Let's hear what you have in addition to that. MR. SKLAROFF: Well, I already mentioned the fact that I have my memos that I generated for starters, and then I have the citation of the Supreme Court case that ties it all together. MR. ECKEL: And that would be the evidence that you would present? MR. SKLAROFF: Primarily, but I am going to go through the attachments just to make sure I am comprehensive, because I want to make sure you have a database. MR. ECKEL: So those documents,

MR. SKLAROFF: I am going to go

MR. ADELMAN: I would object. The documents speak for themselves. MR. HERDER: Right. MR. ECKEL: The documents do speak for themselves. You can't add to what the documents are. MR. SKLAROFF: Right, but I will

Robert B. Sklaroff - Direct explain what I mean by each one of them. MR. ADELMAN: I object to any characterization of the documents. MR. HERDER: I join in that

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 1 2 3 4 5 6 7 8

objection. THE CHAIRPERSON: I will sustain that objection. The documents speak for themselves. MR. SKLAROFF: Right, but I want to be able to explain the specifics of the problems that I have with the Ordinances. MR. ECKEL: Then you can present your argument. I think what Mrs. Wertheimer was asking at the beginning of your case when she wanted to know what issues you wanted to raise, she was trying to get out of you what areas are you saying that the Township Board of Commissioners were arbitrary in or capricious in. You are trying to prove that there is a substantive invalidity to the Ordinance, and I don't know that she got an answer to what your claims are, and I think Mr. Herder has objected because he said he hasn't heard any claims that you have made as to the substance invalidity of the Ordinance. I think that is what we are trying to get

Robert B. Sklaroff - Direct at. MR. SKLAROFF: And my response to you is that the substantive component is integrated with the prior documentation which I will elucidate without forcing you to rely on the written word. It may take a little longer, but I will do what I have to, and then you will have your question answered,

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 35 1 2 3 4 5 6 7 8 9 10 11

plus tying it together with the Supreme Court case. MR. ECKEL: Well, either that or maybe that doesn't make the case, because that looks like about five inches worth of material there. It may not be what you need to do to carry the burden that you have. MR. SKLAROFF: Let's find out. THE CHAIRPERSON: Have we dealt with all of the objections that are on the record? MR. HERDER: Not to my satisfaction. THE CHAIRPERSON: I didn't ask you if it was to your satisfaction. MR. ADELMAN: I assume then that this was, for lack of a better word, Doctor Sklaroff's offer of proof as to his case in chief and testimony?

Robert B. Sklaroff - Direct THE CHAIRPERSON: It could be characterized as that, yes. MR. ADELMAN: Okay. I would like the Board to note my objection, and I would continue to object throughout his testimony on what he has provided or suggested will be his case in chief. THE CHAIRPERSON: Your continuing objection is duly noted. MR. ADELMAN: Thank you. THE CHAIRPERSON: Mr. Herder,

12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14

anything further? MR. HERDER: No, nothing further. THE CHAIRPERSON: Mr. Sklaroff, we're ready for your cogent argument. MR. SKLAROFF: I will start with the letter that was sent on November 17th, 2010, to Mr. Mark Penecale from Mike Narcowich. MR. ADELMAN: Objection. MR. HERDER: Objection. We just talked about this. This is the offer of a letter issue. Mr. Narcowich is not here. THE CHAIRPERSON: That's correct. I will sustain the objection. It's hearsay, sir. MR. SKLAROFF: So I will just

Robert B. Sklaroff - Direct happen to read comments and then annotate them from my own perspective regardless of when they arose. THE CHAIRPERSON: Wait a minute. When you say read comments, you can not read comments from that letter because those comments would be the author's comments, is that true? MR. SKLAROFF: And mine. THE CHAIRPERSON: We can hear your comments. MR. SKLAROFF: Okay, I will give you my comments. THE CHAIRPERSON: We will give it a go.

15 16 17 18 19 20 21 22 23 24 25 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 paraphrasing it.

MR. SKLAROFF: Thank you. I will hesitate periodically to paraphrase, but if anyone wants to follow along you have a copy of this. MR. HERDER: Objection. Mr. Sklaroff is merely reading from the November 17th letter. You said you got a copy of it because you apparently do have a copy of it in your book. These are not his comments. He is reading from a letter. MR. SKLAROFF: I haven't even started yet. Let's see what happens, okay? THE CHAIRPERSON: Mr. Sklaroff,

Robert B. Sklaroff - Direct it doesn't work that way. We don't wait and see what happens. You are not able to read from the letter. There has been an objection and there is a ruling. You are not allowed to read from that letter, period. MR. SKLAROFF: I will not read from the letter. I will use it to jog my memory regarding my concerns. MR. ADELMAN: Objection. If he paraphrases the letter, it's the same thing as reading the letter. MR. SKLAROFF: I am not

THE CHAIRPERSON: Wait a minute. What's the rule if there is an objection? MR. SKLAROFF: Okay. THE CHAIRPERSON: Sustained. You

18 19 20 21 22 23 24 25 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

are not allowed to paraphrase the letter. You are to give your comments by way of argument. MR. SKLAROFF: Okay. Well, I support the concept of planned, safe and legal development which could be within a FTD Ordinance that is properly written. Any objections to that? THE CHAIRPERSON: Mr. Sklaroff, I will ask you not to make comments addressed to other

Robert B. Sklaroff - Direct counsel. You can address comments to the Chair. MR. SKLAROFF: Good. As long as that survived, I think I can survive the rest of this. THE CHAIRPERSON: I can assure you that if they object to anything you say, you will be the first to hear it, or maybe the second. MR. SKLAROFF: Okay. In my view there is a discussion point regarding the size of lots. This was discussed at both hearings of the Abington Township Planning Commission, because although the FTD contains specifications regarding whether or not a lot is greater than or less than one acre, it turns out that none of the lots in the FTD area of the Baederwood Shopping Center are less than one acre. MR. ADELMAN: Objection, assumes facts not in evidence. No foundation. THE CHAIRPERSON: Clarification,

21 22 23 24 25 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

please. MR. ADELMAN: Doctor Sklaroff just testified as to certain lots in the FTD Zoning District without actually producing any evidence with respect to the qualifications and criteria of those

Robert B. Sklaroff - Direct lots; therefore, he can not make a conclusion that all lots within the FTD Zoning District do not meet that criteria. THE CHAIRPERSON: I will sustain the objection. MR. SKLAROFF: Well, do you not have before you the 2000 and 2006 documents where they define the sizes of lots, correct? I am assuming you have a database. THE CHAIRPERSON: Do we have those documents in evidence, Mr. Eckel? MR. ECKEL: I haven't heard of it, no. MR. SKLAROFF: Well, put them into evidence and then you have an answer to his questions. THE CHAIRPERSON: It doesn't work that way. We don't just put things into evidence. MR. SKLAROFF: Can I request that you put it into evidence? THE CHAIRPERSON: It's up to the petitioner to put certain documents into evidence.

24 25 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 objection. those your exhibits?

MR. SKLAROFF: So now I would like to ask that the Ordinances that were outside as

Robert B. Sklaroff - Direct handouts be officially placed into evidence, and then you will have your lot sizes. MR. ECKEL: When you say the Ordinances, what Ordinances? MR. SKLAROFF: 2000 and 2006. MR. ECKEL: Do you want to make

MR. SKLAROFF: Sure. MR. ECKEL: We will mark the application as S-1. We will mark Ordinance 2000 as Exhibit S-2 for Sklaroff 2, and Ordinance 2006 will be S-3 for Sklaroff 3. (Ordinance marked Sklaroff Exhibit S-1, for identification.) (Ordinance No. 2000 marked Sklaroff Exhibit S-2, for identification.) (Ordinance 2006 marked Sklaroff Exhibit S-3, for identification.) MR. ADELMAN: I renew my objection. I don't believe these documents actually lay a foundation with respect to each individual lot size in that district. MR. HERDER: I join in that

41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 1 2 Robert B. Sklaroff - Direct B-1 as the deed, and then Exhibit A is the marked. MR. MATTEO: That is Exhibit B-1. MR. SKLAROFF: Then I'll refer to (indicating)? MR. SKLAROFF: This was prepared by and returned to Alison Taylor, Esquire, of Wolf, Block, Schorr. It's a deed. MR. ADELMAN: That's the deed we opposing counsel. MR. ECKEL: This exhibit, Doctor, by opposing counsel. THE CHAIRPERSON: I see two Robert B. Sklaroff - Direct MR. ECKEL: Maybe Mr. Sklaroff can show the Board where that lot size is in those Ordinances since he put them into evidence. MR. SKLAROFF: Let me ask you. This filing that I was just handed, this defines the lot sizes under legal description, Exhibit A. So how about if I put this in as another one of my exhibits and then it's there? THE CHAIRPERSON: When you say this filing, the Board has no idea what you are referring to. MR. SKLAROFF: It was given to me

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 1 2 3 4 5

description of the actual lot. THE CHAIRPERSON: Is there a reference to lot size in there? MR. SKLAROFF: I suppose someone could calculate them. Let's see if there is anything in there. I didn't read this yet. It was just handed to me (pause). I guess I would have to get this interpreted, but I do recall the discussion and that everyone agreed that -THE CHAIRPERSON: When you say this discussion, you need to make specific reference. MR. SKLAROFF: I did already. I was referring to the discussion at the Abington Township Planning Commission meeting. THE CHAIRPERSON: Of what date? MR. SKLAROFF: I don't remember. I think it was both of them, actually. It was both dates. I have them in my filings. If you need them, I will give them to you. Hold on. Let's see. The second date was December 15th. I didn't save the first one. So at least on December 15th that was a discussion point and everyone agreed.

Robert B. Sklaroff - Direct MR. HERDER: I object. It's not competent evidence as to the lot sizes on Baederwood. THE CHAIRPERSON: I sustain the objection. Continue, Mr. Sklaroff.

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 44 1 2 3 4 5 6 7 8 we accept that?

MR. SKLAROFF: Well, does this mean that I should try to ask somebody to translate this so that you can feel assured that my recollection is correct to unsustain the statement that I thought was sort of universal? They were talking about, I think, four parcels, one of them being the -- at least the way you have them described in your Ordinances, one of them being the Whole Foods, another being the upper parallelogram, and then the trapezoid down below whatever is left -maybe the zoning map will do it. Let's see. I have zoning maps here. Hold on. I have an idea. I have a zoning map and this is going to have to be introduced into evidence, although I got it from the township. Can the township refer to its own document in that regard? THE CHAIRPERSON: Mr. Eckel, can

MR. ECKEL: If he wants to put it

Robert B. Sklaroff - Direct in as a tax map, it would be S-4. Is there a number on that tax map? MR. SKLAROFF: It is Block Number 177. Actually, it only has three divisions it looks like with the upper parallelogram being 8.42 acres. The bottom trapezoid being what looks like a total of 14.86 acres. So there you have it, okay?

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 1 2 3 4 5 6 7 8 9 10 11 back. back? it now. that into evidence.

THE CHAIRPERSON: We need to mark

MR. SKLAROFF: Do we get a copy back or can you make your own copy? MR. ECKEL: Mr. Matteo needs it so it doesn't get lost for the record. THE CHAIRPERSON: Right, we need

MR. SKLAROFF: But can I get it

MR. ECKEL: You can't get it

MR. SKLAROFF: Can I provide you a copy later on? I will pay someone to make a copy. MR. ECKEL: We need it now. If you mark something into evidence, we need to keep it now as part of the record.

Robert B. Sklaroff - Direct THE CHAIRPERSON: Mr. Sklaroff, when you come here for a hearing, you need to come prepared. MR. SKLAROFF: I didn't realize that the acreage issue was going to be subject to challenge. THE CHAIRPERSON: I think you have to assume that everything will be subject to challenge. You need to come prepared. MR. SKLAROFF: I am prepared. I

12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14

will discuss this and I will get you a copy of it tomorrow if that is okay. THE CHAIRPERSON: No, it doesn't work that way. MR. SKLAROFF: Well, will I be able to borrow it back tomorrow to make a copy and get it back? It's the only copy I have. THE CHAIRPERSON: Once something has been marked as an exhibit -MR. PENECALE: Once it's part of the record, it's part of the record. MR. ECKEL: I don't know if they charge to make copies or not, but it's in the record. MR. SKLAROFF: What I will do is

Robert B. Sklaroff - Direct I will give this to you and then I will ask you for a copy of my own exhibits, okay? MR. ECKEL: Usually when you come to exhibits, you have multiple copies to give opposing counsel and give to the Board. MR. SKLAROFF: Right. MR. ECKEL: And you put in the record. MR. SKLAROFF: The reason I didn't do that is I felt I already given you all my documents in my previous file which staff already circulated. MR. ECKEL: If you wanted to rest

15 16 17 18 19 20 21 22 23 24 25 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

on the documents in your application, I guess we could do that. MR. SKLAROFF: Fine. That would make things efficient, wouldn't it? MR. ECKEL: If that is what you want your case to be, we can take them and make the decision based on the application. MR. SKLAROFF: Well, no, I want to discuss the issues as well. I don't think it's an either/or. (Tax Map marked Sklaroff

Robert B. Sklaroff - Direct Exhibit S-4, for identification.) THE CHAIRPERSON: We still need S-4. MR. SKLAROFF: You will get it and I will ask for it back later. THE CHAIRPERSON: Please hand it to Mr. Matteo. MR. HERDER: Could we see it first so we know what it is? THE CHAIRPERSON: Yes. MR. SKLAROFF: Wait. I have a copy. Forget it. Now, to continue, the issue of density is central to many subarguments that have been rendered, and what I believe to be a case is that the maximum thereof has to be specified either

18 19 20 21 22 23 24 25 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

as related to the net or to the gross land area. MR. ADELMAN: Objection. Doctor Sklaroff is not trained, as far as I know, with respect to civil engineering and land planning. I don't believe he is qualified to testify as to gross or net, what should or shouldn't be in an Ordinance. If this is a lay opinion, that's fine, but I would like the record to state that it is not the opinion

Robert B. Sklaroff - Direct of an expert nor determinative on the matter. THE CHAIRPERSON: Is this your lay opinion, sir? MR. SKLAROFF: It is my lay opinion which I am -- no pun intended -- laying upon you to adjudicate. THE CHAIRPERSON: Let the record show that this is Doctor Sklaroff's lay opinion on the matter. It is not an expert opinion but a lay opinion. Proceed, sir. MR. SKLAROFF: There is a problem with -MR. MATTEO: I'm sorry. I apologize for the interruption. Can we clean up the record as far as what exactly this submission was? MR. ECKEL: Mr. Penecale wants the record to be clear that the application that he has that we have marked as S-1 is the application that he had at the time it was advertised. He is

21 22 23 24 25 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

holding it up and that is Exhibit S-1. MR. ADELMAN: What is the title of the document? MR. PENECALE: There are several documents attached. The cover sheet after the first

Robert B. Sklaroff - Direct two pages has the Township's application form in the Court of Common Pleas of Montgomery County, Civil Division. It's a jury trial request with Robert B. Sklaroff, M.D., with his address, Petitioner versus the Township of Abington. That consists of -MR. HERDER: Mr. Penecale, I'm sorry to interrupt. Going back to the document you were just referring to that bears the jury trial and Court of Common Pleas notation, there is a title to that. Mr. Eckel is probably familiar with it. MR. ECKEL: It is a Mandamus Petition for Review of Township Ordinance. MR. HERDER: Thank you. That is what I wanted know. MR. ECKEL: It ends with -- it's not numbered -- but it ends with, "Certificate of Service, Robert B. Sklaroff, 5-9-2011." MR. PENECALE: Then there are several pages with that hearing that refer to other items that are to be supplied later, and they are blank pages. I don't know how this measures up to the stack that the Doctor has in front of him, but

24 25 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

this is what has been forwarded to the Board. This is what you are in possession of, and I think maybe

Robert B. Sklaroff - Direct we need to find out, since we keep referring to the collection of paperwork that is there as being the application, that this is what has been submitted. THE CHAIRPERSON: Just so the record is clear, the Mandamus petition that the Board has before us that is attached to the Application to the Zoning Hearing Board consists of 161 paragraphs, 81 pages, and then has additional pleadings attached to it, including but not limited to a form of order, a form of rule to show cause, and then a listing of appendices from A through V as in Victor. Those documents comprise an additional -- we don't have a total. The total of numbered pages we have in our booklet are 183. Attached to that additionally, so the record is clear and we know exactly what is in our book, is, again, Court of Common Pleas, Montgomery County, with a caption of Robert B. Sklaroff, M. D., versus Township of Abington, a jury trial requested, Plaintiff's reply to Respondent Township of Abington's brief, in support of preliminary objections to petitioner's amended petition for review of Township Ordinance adjudication. That document is five pages with, again, a form of order attached as well as an

51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 52 1 2 Robert B. Sklaroff - Direct order from Judge DelRicci remanding this to us and the record is clear. MR. SKLAROFF: Can I find out more about Mr. Kaplin's memo which I don't know if I have seen? MR. ECKEL: While doing that, I think we ought to put in the record a copy of the of the application. THE CHAIRPERSON: That's just so the application. THE CHAIRPERSON: That wasn't part of the application, okay. Then a copy of Mr. Kaplin's memo. MR. ECKEL: And that is not part Robert B. Sklaroff - Direct affirmation and certificate of service. There is also a copy of a memo attached dated December 17th, 2010. Next is, again, captioned Court of Common Pleas, Montgomery County, Pennsylvania, same caption, jury trial requested, precipe for summary judgment due to failure to respond to motion. That is two pages with a form of order, affirmation and certificate of service. And then attached are the names and addresses of property owners to whom notice of this hearing was sent. MR. ECKEL: That wasn't part of

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53 1 2 3 4 5

that will make that ZHB-1. (Order marked Zoning Hearing Board Exhibit ZHB-1, for identification.) THE CHAIRPERSON: Right. There is also a motion before the Zoning Hearing Board of Abington Township by an intervenor, Baederwood Limited Partnership, a motion for more specific pleadings. MR. SKLAROFF: I think I replied to that. So you might want to put my reply in as well. THE CHAIRPERSON: Could you speak into the microphone? MR. SKLAROFF: Yes. I replied to that as well, so, therefore, if you are going to put that in, put in my reply. MR. ECKEL: I think Mr. Sklaroff was asking you about the letter from Mr. Kaplin and the motion or more specific pleading, but that letter that Mr. Kaplin wrote, Mr. Sklaroff, you were copied on. So I think you have that letter. MR. SKLAROFF: Okay. THE CHAIRPERSON: You were copied

Robert B. Sklaroff - Direct on that. MR. SKLAROFF: Fine. I wasn't sure what you were talking about. Anyway, is ZHB-2 the letter from Kaplin?

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 54 1 2 3 4 5 6 7 8 is Kaplin's filing? from Judge DelRicci.

MR. ECKEL: ZHB-1 is the Order

MR. SKLAROFF: Right, and where

MR. ECKEL: That is not part of it. The Board was given a copy of that because it was sent to them and a copy was sent to you. That was in what the Board had. Mrs. Wertheimer read that and I said, no, that is not part of the application. MR. SKLAROFF: Okay. THE CHAIRPERSON: Right. And you were copied on the letter plus the motion. MR. SKLAROFF: Okay. And presumably if I received the motion, then I replied to the motion, so you should have that as well. MR. ECKEL: Well, I think that motion in written form is what Mrs. Wertheimer tried to ask of you at the beginning, which is to tell the Board precisely what you are complaining about in terms of a substantive invalidity.

Robert B. Sklaroff - Direct MR. SKLAROFF: Right, and I think in response thereto I specifically requested prior to this meeting that Brandolini file, a response paragraph by paragraph to my substantive challenge, if I am remembering correctly, to facilitate matters. MR. ECKEL: There is not really a pleading practice before zoning hearing boards.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 55 1 2 3 4 5 6 7 8 9 10 11 problem.

MR. SKLAROFF: It was just a suggestion. You should also have a copy of my distilled, believe it or not, substantive petition for review of Township Ordinances' Adjudication memo which doesn't have any blank pages and it was remitted on 6/30. MR. ECKEL: That was after the application was filed? MR. SKLAROFF: Yes. MR. ECKEL: Part of the problem with that, Doctor Sklaroff, is that when a applicant files an application, that is what is advertised and that is what the Zoning Board has. MR. SKLAROFF: Right. MR. ECKEL: Subsequent things that come in are not part of the application. If you want to make that part of it, you are going to have

Robert B. Sklaroff - Direct to -- and I think Mrs. Wertheimer said you should have like seven copies of it for opposing counsel, for the Zoning Board, a copy for the record. MR. SKLAROFF: Seven copies, no

MR. PENECALE: I would recommend having nine with one for the solicitor and one for the record. MR. SKLAROFF: So nine copies of my substantive petition.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14

MR. ADELMAN: Just for the record, rather than waiting for copies of everything, I am going to object to the introduction of that pleading as being beyond the time of filing, and as being an improper submission to the Zoning Hearing Board. I am aware of its contents. THE CHAIRPERSON: Can I have the title of that submission, sir? MR. SKLAROFF: It was called a Substantive Petition for Review of Township Ordinances' Adjudication, and I will get you nine copies tomorrow. MR. HERDER: I object to the admission of that document. It's untimely. This

Robert B. Sklaroff - Direct serves only to delay these proceedings. I don't think that the Township should be prejudiced nor Doctor Sklaroff benefitted by his lack of preparedness and unfamiliarity or lack of knowledge regarding the legal practice before a Zoning Hearing Board. He has undertaken to do this pro se and he should be bound by the rules. THE CHAIRPERSON: Thank you, Mr. Herder. Mr. Eckel? MR. ECKEL: Mr. Herder and Mr. Adelman both mentioned untimeliness. Follow up on that. Give me a little more about that argument. MR. ADELMAN: It's a substantive

15 16 17 18 19 20 21 22 23 24 25 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

petition. It's what I would call an original process that would, for lack of better terms, institute a substantive challenge. I don't believe that it's appropriate to introduce this document as a supplement to the pending application before the Board. MR. HERDER: And that was my point. MR. ECKEL: Let me ask you this, Doctor Sklaroff. Is that different than what you submitted to the Board?

Robert B. Sklaroff - Direct MR. SKLAROFF: Believe it or not, it is a simplification thereof because the process that went through it was that after the Order was issued on June 15th, within four days I had basically split my initial -MR. ECKEL: This was the initial submission? MR. SKLAROFF: Believe it or not, yes. So what happened is I maintained coverage of the overlap like you heard in my intro, where I had to discuss some of the procedural stuff in order to get to the substantive issues. MR. ECKEL: Why don't you mark that as Sklaroff 5 and the Board will take it under advisement as to whether or not the Board will consider it, but if it simplifies matters the Board

18 19 20 21 22 23 24 25 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

may consider it. MR. ADELMAN: It's ninety plus pages. MR. HERDER: My copy is 124 pages. MR. SKLAROFF: It's shorter than the other 1100 pages. MR. ECKEL: Wait. Your copy is

Robert B. Sklaroff - Direct 90 pages and your copy is 124 pages? MR. ADELMAN: I'm missing an attachment, I believe. MR. HERDER: I have 125 pages. MR. ECKEL: That's S-5. What is the title of that? MR. HERDER: My document is titled, "Substantive Petition for Review of Township Ordinances' Adjudication. MR. ADELMAN: So is mine. MR. HERDER: This appears to me to be an effort to amend the application. MR. ECKEL: Well, the Board, without ruling on whether it would be admissible, will take it and we will consider it when it deliberates. MR. HERDER: And I object to it. MR. ECKEL: We have your objection on the record, and Mr. Adelman's objection

21 22 23 24 25 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

on the record. Mr. Sklaroff, you need to give a copy of that to Mr. Matteo. That document is dated when? MR. SKLAROFF: The 30th of June. (Document dated 6-30 marked Sklaroff Exhibit S-5, for identification.)

Robert B. Sklaroff - Direct THE CHAIRPERSON: Doctor Sklaroff just so you know the rules, you can't keep submitting documents once you have submitted your initial application. MR. SKLAROFF: Right, but I thought I was doing this under court order in order to separate the procedural and substantive components. THE CHAIRPERSON: Please proceed. MR. SKLAROFF: The next issue has to do with the design and dimensional standards in C-34 and that is on page 1. THE CHAIRPERSON: Page 1 of what? MR. SKLAROFF: Of the Ordinance 2000. I am talking about the Ordinance 2000. Apparently what was lost were certain restrictions that previously existed in Ordinances applicable to this area. That relates specifically to bars or taverns from being located within 2000 feet -MR. HERDER: Excuse me, Doctor. I object. This is wholly irrelevant to a substantive validity challenge. It's commentary of what is in

24 25 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the Ordinance or what is not in the Ordinance. THE CHAIRPERSON: I will sustain

Robert B. Sklaroff - Direct that objection. MR. SKLAROFF: Can I finish it and then you decide whether it's okay? It's not that long. It's about ten more words. THE CHAIRPERSON: I will give you ten more words and then I will let you know. MR. SKLAROFF: Within one thousand feet of a church or school, maximum hotel density and minimum lot area, five acres for schools. These are restrictions that did exist which were dropped. THE CHAIRPERSON: Did exist in what? MR. SKLAROFF: In an existing Ordinance applicable to this region. THE CHAIRPERSON: I will sustain the objection. MR. HERDER: Thank you. MR. SKLAROFF: Maybe if you can tell why it might simplify things. THE CHAIRPERSON: It doesn't work like that. MR. SKLAROFF: Then I will plunge along. Next has to do with the -- well, I will skip

61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 62 1 2 Robert B. Sklaroff - Direct don't know what he is talking about. There are no Robert B. Sklaroff - Direct that one. The next one has to do with fenestration. It suggests in the Ordinance that at least sixty percent of the length of the ground floor of all of the building facades facing a street or main access driveway shall consist of windows, glass doors or other transparent building surfaces, and you should change the length to the vertical surface in order to clarify matters. The renderings of a proposed building facade should be submitted with this project and they were not. That actually is a problem that was rooted in many of the objections that were aired by myself and others at the two events in 2009, and there was specific reference to whether or not fire engines could access what was then viewed as the rear or north end of the property. The ultimate rationalization was that the buildings would be constructed with fireproof material and, therefore, no fire could ever start and, therefore, the need to make sure that the fire engines could get to the back was thereby obviated. MR. ADELMAN: I am going to object to this whole line of comment or testimony. I

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 63 1 2 3 4 5

facts in evidence. There is no foundation, and I am not even sure if it's hearsay or opinion testimony. The rationalization, the characterization of what he is testifying to is wholly irrelevant to this subject matter before this Board. MR. HERDER: I join in that objection, and I will point out to the Board that Doctor Sklaroff is reading directly from the November 17th letter from Michael Narcowich addressed to Mr. Penecale. It also is just not relevant to the validity of the Ordinance. MR. SKLAROFF: May I respond to that? THE CHAIRPERSON: You may respond. MR. SKLAROFF: The validity of the Ordinance has to do specifically with safety issues, and fire safety is among them. So, therefore, when renderings were not given either then or now, then that is indeed relevant to your charge; namely, the health and safety of the residents. THE CHAIRPERSON: Mr. Eckel? MR. ECKEL: You can listen to

Robert B. Sklaroff - Direct that. MR. ADELMAN: I would like to lodge an objection. He doesn't have any qualifications to make any testimony or statements

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 64 1 2 3 4 5 6 7 8

with respect to what does and doesn't create a fire safety hazard. MR. ECKEL: You can consider it, and we will give it the weight. THE CHAIRPERSON: This is his lay opinion. MR. ECKEL: Yes, it's not expert testimony. THE CHAIRPERSON: Doctor Sklaroff, this is your lay opinion? MR. SKLAROFF: Everything you are hearing is a lay opinion. THE CHAIRPERSON: Thank you. MR. SKLAROFF: But I am also, as I said earlier, laying upon you the opportunity to check it out. THE CHAIRPERSON: Thank you. Continue. MR. SKLAROFF: If you look on page 11, item J, which is in the middle of the page,

Robert B. Sklaroff - Direct it states the following: "Primary facades or portions of building facades facing a street, a main access driveway, a surface parking lot, either of which is greater than two hundred linear feet, shall include at least three design elements such as awnings, porches, canopies, towers, balconies, bays, gables, changes in material, changes in facade, et

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 65 1 2 3 4 5 6 7 8 9 10 11

cetera," but these do not apply to buildings on secondary access drives, according to what I am understanding to be the Ordinance that presently exists regarding the definition of secondary access drives which is provided on page 2 which states -THE CHAIRPERSON: Page 2 of what? MR. SKLAROFF: I'm sorry, page 4 of the Ordinance. THE CHAIRPERSON: Which Ordinance? MR. SKLAROFF: 2000, where it says, "The primary function of a secondary access driveway is to provide access when the main access driveway -THE CHAIRPERSON: Hold on. We don't have a copy of that Ordinance in front of us. MR. SKLAROFF: That was handed

Robert B. Sklaroff - Direct up. MR. ECKEL: It's Exhibit S-2. THE CHAIRPERSON: Where is it? It's not in the booklets. MR. ECKEL: It's right here (indicating). THE CHAIRPERSON: What we have is Ordinances 2000 and 2006, and we have a blank page. MR. HERDER: That is because that is the Doctor's application and the Ordinances were

12 13 14 15 16 17 18 19 20 21 22 23 24 25 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14

not included with it even though the pages were included in it. - - (Discussion off the record.) - - THE CHAIRPERSON: Doctor Sklaroff, continue. MR. SKLAROFF: Now that you are organized, so you see what I was reading from? THE CHAIRPERSON: Now that I have a copy in front of me, yes. MR. SKLAROFF: Okay. The next point is related to Section 504.8D.2d which is on page 14, and the word "dimension" should be changed

Robert B. Sklaroff - Direct to "radius" so that there is no ambiguity as to the open space requirement. MR. HERDER: I object again. He is reading directly from the November 17th review letter from the County Planning Commission and there is no substantive invalidity challenge here. MR. SKLAROFF: There is a major concern regarding the preservation of open space. MR. ADELMAN: Objection. MR. HERDER: Major concerns about open space are not relevant here. MR. SKLAROFF: Major concerns regarding open space I believe can be relevant to

15 16 17 18 19 20 21 22 23 24 25 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

your decision making. They are in your standards, your Ordinances. THE CHAIRPERSON: Let's go back. Doctor Sklaroff, you were instructed that you cannot read from the letter. MR. SKLAROFF: I am not reading. What I am doing is I am jogging my memory and then talking about what I know to be true. THE CHAIRPERSON: What was your objection, Mr. Herder, again, please? MR. HERDER: My objection is that

Robert B. Sklaroff - Direct the Doctor is reading verbatim from the November 17th letter, and that nothing he is reading constitutes a challenge to the validity of the Ordinance. MR. ADELMAN: I would like to add to that. The nature of his testimony is really in the form of public comment and, as I stated in my opening statement, that is inappropriate and does not serve as a basis for a substantive validity challenge. I have a feeling we are going to be doing this for a long time unless somehow his testimony is limited to actual evidence that is relevant to the application. THE CHAIRPERSON: Doctor Sklaroff, do you understand the nature of the objection? MR. SKLAROFF: I understand the

18 19 20 21 22 23 24 25 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

nature of the objection, but I am tethering each concept to what I know to be true based on my knowledge, training and experience. MR. ADELMAN: Objection, he is not qualified to do that. MR. SKLAROFF: I am saying -THE CHAIRPERSON: We have objections on the record. I must rule on those

Robert B. Sklaroff - Direct objections. MR. SKLAROFF: He was asking me a question, so I answered it. THE CHAIRPERSON: Thank you. With respect to those objections, for the time being I will overrule the objection. Doctor Sklaroff, we would like you to testify that this is your opinion. It's your lay opinion, and the Board will give your testimony the weight it deems appropriate. MR. SKLAROFF: Fine. I ask for no more. The next point is the gravamen of the entire effort. That is the absolute necessity for a traffic study to be accomplished. I will provide you an exhibit shortly to amplify on the exhibits that I acquired through discovery which you already have, that I will make sure that I get nine copies provided to you tomorrow thereof. This is dating back over the years, and the necessity for a proper traffic study

21 22 23 24 25 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

has been ignored despite its amplification in both the Old York Road study and the Abington Township plan. Anyone who uses Susquehanna Road during light hours, not just rush hours, would know that. The problem is that the

Robert B. Sklaroff - Direct Brandolini people provided a traffic study -MR. ADELMAN: Objection, beyond the scope of the actual enactment of the Zoning Ordinance. THE CHAIRPERSON: I will sustain the objection. MR. SKLAROFF: Is there a way to let me finish my point before the objection comes? THE CHAIRPERSON: No. MR. SKLAROFF: No? Okay, then I will try it differently. The issue of traffic relates to density and relates to the point I made earlier regarding your charge as to the health and safety of the people who live here, and in particular those who may have an additional need to utilize the emergency vehicular transport that would necessarily traverse Susquehanna, and then from my perspective wander up Washington Lane towards Fairacres. The key issue to me and I think to the residents sitting behind me in particular -MR. ADELMAN: Objection. THE CHAIRPERSON: State your

24 25 70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

objection. MR. ADELMAN: Doctor Sklaroff

Robert B. Sklaroff - Direct cannot testify or characterize opinions of people who are not himself. THE CHAIRPERSON: Keep your comments basically to yourself. MR. SKLAROFF: Right. THE CHAIRPERSON: Objection sustained. MR. SKLAROFF: The key issue here is that when the traffic study was provided by Brandolini, and just two pages I believe were excerpted and given to you as an exhibit -MR. ADELMAN: Objection on the same basis. MR. SKLAROFF: I am telling you about the exhibits that you are going to get. MR. ADELMAN: I have already objected to that exhibit as being beyond the scope. MR. SKLAROFF: It's his own exhibit. MR. ADELMAN: No, it's not. MR. HERDER: I object as well. There is nothing in the record for him to be talking about. THE CHAIRPERSON: Right. In

71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 72 1 2 Robert B. Sklaroff - Direct MR. SKLAROFF: Then I would like offering it. THE CHAIRPERSON: Mr. Eckel, would you care to explain to Doctor Sklaroff about the Brandolini traffic study? MR. ECKEL: There has been an objection to it, and the objection has been sustained, so it's not an exhibit. MR. SKLAROFF: Let's see. Now that I have shown it to you and it illustrates the deficiency of the traffic study performed -MR. ADELMAN: Objection. that. MR. HERDER: So am I if he is Robert B. Sklaroff - Direct other words, for you to talk about the exhibit, it needs to be in evidence. MR. ECKEL: There is no exhibit. THE CHAIRPERSON: Right, there is no exhibit until it is an exhibit. MR. SKLAROFF: All right. Let's see if I can find you an extra copy. I think I have one. MR. ADELMAN: I am already objecting to its admission. THE CHAIRPERSON: I understand

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 73 1 2 3 4 5

it to be made into a exhibit. MR. HERDER: Objection. THE CHAIRPERSON: Are you the author of the exhibit? MR. SKLAROFF: No. THE CHAIRPERSON: Then you cannot place it into evidence as an exhibit. MR. SKLAROFF: So in other words, my discovery that I acquired when I went through the box here at Abington, none of that I can put in as an exhibit even though it's Abington's own documents? THE CHAIRPERSON: I can't answer that question for you. MR. SKLAROFF: Because I have a number of them I am going to try to discuss with you. Actually, I have an idea. Mr. Penecale is here. MR. ADELMAN: To whom is that addressed? MR. SKLAROFF: Let me see. It was addressed to Kaplin. Well, I have other letters that were sent to Mr. Penecale and memos that were generated by Abington, and since they are here, maybe they could validate their appropriateness and then we

Robert B. Sklaroff - Direct could work from there. How does that sound? MR. HERDER: Objection. Appropriateness is not a kind of legal standard. This is completely out of hand.

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 74 1 2 3 4 5 6 7 8

THE CHAIRPERSON: Right. Doctor Sklaroff, I am going to sustain the objection. You need to present the exhibits that are relevant to the subject, relative to your substantive challenge, and that are procedurally correct. As I said at the beginning, there are certain rules we have to follow here. MR. SKLAROFF: Yes. So we are going to mush along here. THE CHAIRPERSON: Just so you know, it's now 9:25 and we will follow the ten p.m. rule for this evening's hearing. MR. SKLAROFF: Okay. I was told to bring along my calendar in case we had to schedule a follow-up meeting. Now would not be an inappropriate time to do so? THE CHAIRPERSON: No, you may continue. Now would be an inappropriate time to do so. MR. SKLAROFF: Just asking before

Robert B. Sklaroff - Direct people left. Okay. There needs to be, in my lay opinion, a traffic study for reasons that are directly tethered to a Supreme Court decision, as I mentioned a few times. The results thereof should be given heavy weight before any approval has been rendered. The issue of where loading spaces

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 75 1 2 3 4 5 6 7 8 9 10 11

are located has also some concern, and this has to do with a viewpoint regarding the safety of where people can or can not be, let's say, traveling vehicularly versus ambulatorily, if that is a word. MR. ECKEL: Ambulatory? MR. SKLAROFF: Yes, in an ambulatory fashion. THE CHAIRPERSON: How about on foot? MR. SKLAROFF: Well, I was using a word that I thought might be more formalistic. Yes, on foot would be okay or by wheelchair or whatever. Let's say via a non-enclosed motorized entity. MR. HERDER: I object. Doctor Sklaroff at this time seems to be filibustering for want of a better term. He is not producing any

Robert B. Sklaroff - Direct relevant or competent evidence. MR. ADELMAN: We have been at this for an hour and a half this evening so far. I think I have had more objections sustained than Doctor Sklaroff has had exhibits entered or even on hand. I would echo that objection. I am getting very close to asking this Board to quash his appeal. MR. HERDER: As am I. It's apparent that Doctor Sklaroff not being an attorney and not being a land planner is simply not versed in

12 13 14 15 16 17 18 19 20 21 22 23 24 25 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14

what the requirements are that are placed upon him. As a consequence, he is here unprepared and he is just wasting this Board's time. THE CHAIRPERSON: Mr. Eckel? MR. ECKEL: I am not going to comment on Mr. Herder's last words; however, we have been here for a long time and we have not heard a lot of substantive evidence regarding what the basis of the substantive validity challenge is. Do you want to talk with me? THE CHAIRPERSON: We would like a five minute recess, please. - - (Recess)

Robert B. Sklaroff - Direct - - THE CHAIRPERSON: Back on the record. We have an objection that was last on the record. Can you go back and read what the objection was? (The Court Reporter read back the last two objections). THE CHAIRPERSON: If that was a motion to quash the appeal, the motion is denied. We are going to proceed with the hearing. Doctor Sklaroff, at this point in time we have been going on for an hour and a half, and we would ask you to produce at this point whatever relevant and/or

15 16 17 18 19 20 21 22 23 24 25 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

competent evidence that you have, any exhibits that you have for your case. MR. SKLAROFF: Okay. Well, in light of what we were discussing here, some of my exhibits have to be perhaps authenticated, so I will rely for now on providing you nine copies tomorrow of my substantive document which has some attachments to it. So I'll continue along. MR. ADELMAN: I object again. I don't think that is responsive to your instructions, the Board's instructions and, in addition, we are not

Robert B. Sklaroff - Direct here to come back again at another hearing or another day where he can supply something that you may not supply or may not be valid. I am going to renew my motion to quash because I believe that this is wasting all of our time and it's preventing my client from moving forward with their project. MR. SKLAROFF: May I reply to the motion? THE CHAIRPERSON: You may, briefly. MR. SKLAROFF: Yes, the key word in both the statement we heard and the statement from five minutes before the recess was whether or not all versus some of the points I have made have survived the scrutiny from the other side of the room. Since

18 19 20 21 22 23 24 25 78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

at least one and, of course, more than one -- maybe not the majority, I haven't taken a score -- has survived, so there is no way you can quash this because substantive issues have to be assessed by yourself in order to decide whether or not what I am trying to accomplish is indeed to benefit the citizenry. THE CHAIRPERSON: We have already

Robert B. Sklaroff - Direct ruled that I am not going to grant the motion to quash this application. MR. SKLAROFF: He renewed it. That is my response. THE CHAIRPERSON: I'm ruling again that we are not going to grant the motion to quash. What I am going to instruct is we have already ruled on the fact that we are not going to accept documents that were filed late on June 30th, the untimely submission that the Board already determined that it will take it under advisement. MR. SKLAROFF: Right. THE CHAIRPERSON: 125 pages. And that there are continued objections on the record by both counsel, and we don't have to discuss it any further. So please proceed if you have anything in addition to present in your case this evening. MR. SKLAROFF: Yes. It is inherently and arbitrarily unreasonable when the

21 22 23 24 25 79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Abington reports say that infrastructure/density is stretched to the max to exacerbate the problem, and that you should take judicial notice of the aforementioned documents. MR. ADELMAN: I'm sorry, but I

Robert B. Sklaroff - Direct object. I don't know what documents he is talking about or what reports he has. MR. SKLAROFF: I am referring to the Old York Road Corridor study and the Abington Township plan, both of 2007. I am asking that because they were approved by the Board of Commissioners, that judicial notice be taken of the existence and contents thereof. MR. ADELMAN: And I object to the relevance based upon the Municipalities Planning Code, Section 303.C, as Mr. Herder had already objected to. MR. HERDER: And I renew that objection. THE CHAIRPERSON: Mr. Eckel? MR. ECKEL: The Comprehensive Plan and the Old York Road Corridor Study was done by the Township. I think as to the township documents, you can consider them and give them the weight you think they shall receive in the course of adjudicating this substantive challenge. THE CHAIRPERSON: And that's the

24 25 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

ruling of this Board. MR. SKLAROFF: I'm sorry, what

Robert B. Sklaroff - Direct did you say? MR. ECKEL: I didn't understand what you just said. THE CHAIRPERSON: He said it in a soft voice. MR. ECKEL: I said that the Board would receive those two exhibits and they will give them the weight they are entitled to under the standards of a substantive validity challenge. MR. SKLAROFF: Okay. THE CHAIRPERSON: Continue. MR. SKLAROFF: Thank you. The surface parking on page 11 is the next topic of discussion. THE CHAIRPERSON: Page 11 of what? MR. SKLAROFF: Of Ordinance 2000. THE CHAIRPERSON: Thank you. MR. SKLAROFF: Section 504.8.B.2a, and the surface parking locations have to do, if memory serves, with an issue again of safety of people who are going to be driving versus walking. Therefore, it should not be located between a street or driveway in the Fairway.

81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 82 1 2 Robert B. Sklaroff - Direct District as a manifestation thereof, is central to Next. MR. SKLAROFF: The issue of whether or not there should be vehicular interconnection with parking lots is a concept that I have seen in many other shopping areas, and the key point here, again related to safety, is, let's say, exemplified by the area of the pavilion, where you have ingress in a finite site, and then branching from there would be the capacity to go to other areas of the, let's say, parking lot, and there is no such restriction here. That allows for, let's say, potentially a wildly directed traffic flow without even physical barriers that would direct the traffic before people decide where they are going and where they are going to park and so forth, and that is not specified in the Ordinance. The specific area thereof is on page 7, Section 504.6.I, and it's self-explanatory. You can read it later on. The issue of pedestrian-oriented development, which is underlying a lot of the thinking of the transit-oriented district concept and, specifically, the FTD, the Fairway Transit Robert B. Sklaroff - Direct THE CHAIRPERSON: Thank you.

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 83 1 2 3 4 5

the development of a project that is user friendly and safe, and there are no maximum length widths set for streets and driveways, and that should be so specified. The issue of signs is of interest relative to the billboard issue which you don't have officially before you. MR. ADELMAN: Objection, beyond the scope. THE CHAIRPERSON: Sustained. MR. SKLAROFF: I know that, but I am not going to talk about billboards. I am talking about signs as a metaphor, so signs are before you. MR. ADELMAN: As a metaphor to what? MR. SKLAROFF: To the point that I am going to make regarding the specifications thereof. THE CHAIRPERSON: Continue. I overrule the objection. MR. SKLAROFF: They should be required to use light text and graphics on a dark background so people can read them and understand

Robert B. Sklaroff - Direct them and not be distracted by them, which some people feel could cause traffic problems. If people are driving along the Fairway and then see a sign, that might transiently divert their attention whether it

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 84 1 2 3 4 5 6 7 8

be by glare or whatever. Next. Awning signs. The awning signs, as I understand it, would be in front of various shops and because, again, they are along a roadway, they have to be specified as using indirect lighting so as not to distract the driver as opposed to, let's say, a light that is shining not just on the sign but also in the street and perhaps on the eyes of the driver. THE CHAIRPERSON: Continue. MR. SKLAROFF: Pedestrian issues for safety. In Section 504.6.C., which is page 7, the issue of whether or not crosswalks should be required at intersections seems to me to be intuitive. In other words, just today walking across the street from the courthouse to One Montgomery Plaza, and also across the street to the parking area, there are specific designations where if a pedestrian is standing off the curb in that area that traffic stops, and in main areas of the development

Robert B. Sklaroff - Direct that should be so specified, and they should connect all of the principal buildings in some sort of a cohesive planning fashion. That is relative to D, again, page 7, Section 504.6. MR. HERDER: Madam Chair, if you would just note my continuing objection to the relevance of this. I am not going to stop Doctor

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 85 1 2 3 4 5 6 7 8 9 10 11

Sklaroff. I want that on the record. THE CHAIRPERSON: Thank you, Mr. Herder. MR. SKLAROFF: So I can still talk? THE CHAIRPERSON: Keep going. MR. SKLAROFF: The issue of curb cuts. I had independently researched in my memo -and apparently it's validated, and I have seen this after I read up and had it validated -MR. HERDER: I object. He is referring to a self-authored document which he just said has apparently been validated. I don't understand what that is about and what it means. MR. SKLAROFF: Well, what I'm -THE CHAIRPERSON: What's the rule?

Robert B. Sklaroff - Direct MR. SKLAROFF: I will explain it. THE CHAIRPERSON: Wait a minute. Finish, Mr. Herder. MR. HERDER: I am finished. I think Doctor Sklaroff started talking but I had finished. He is referring to a self-authored document. He has referred to it as being apparently validated. I don't know what that means but, in any event, it's a self-authored document and I object to testimony about it or its introduction into evidence

12 13 14 15 16 17 18 19 20 21 22 23 24 25 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14

or whatever it is we are headed for. THE CHAIRPERSON: Doctor Sklaroff, what do you mean by it's validated? MR. SKLAROFF: Well, I remember testifying while looking -- this is now a year and a half ago -- on the telephone I looked up cuts in Manhatten, and I quoted somewhere in the transcript the fact that there are specifications that are necessary, for example, to grip if you have a wheelchair for safety purposes, and none of that is in this document. So it's again a safety issue regarding what is the composition of the cuts that occur in the curbs.

Robert B. Sklaroff - Direct MR. ADELMAN: I am going to echo Mr. Herder's objection and move to strike that response from the record. THE CHAIRPERSON: The response being it's validated and -MR. ADELMAN: -- and I checked my testimony and the grip and the specifications. THE CHAIRPERSON: I am going to overrule the objection and give the testimony the weight that the Board deems necessary or suitable. Continue, Doctor Sklaroff. MR. SKLAROFF: The section that I am going to skip now and later has to do with --

15 16 17 18 19 20 21 22 23 24 25 87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 five minutes? it?

MR. ECKEL: Are you shortening

MR. SKLAROFF: Yes. MR. ECKEL: Very good. MR. SKLAROFF: It has to do with this bonus point system which I consider to be, let's say, skewed towards maximum development, and we will leave it at that, because none of the issues, as I recall them that I had raised, relate specifically to safety. What they do is they allow the

Robert B. Sklaroff - Direct increased density to occur, and I have already discussed the problem of increased density as it not only applies to traffic but also stretching the school system and so forth. THE CHAIRPERSON: Doctor Sklaroff, before you continue, I just want to give you a five-minute warning because then at 5 of 10 we are going to look at our calenders. So this is your five-minute warning. MR. SKLAROFF: Fine. Believe it or not, I have covered a lot. I thank you for your patient in listening. MR. ECKEL: Could you finish in

MR. SKLAROFF: I doubt it. Sorry. What can I tell you? I am going to refer to

18 19 20 21 22 23 24 25 88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

my own analysis of this by jogging my memory accordingly. I have before me the Ordinance 2000, and I think that what I can do is at least start this, if you would like, or maybe you can invoke your five minute warning now and I can do this later, because this whole section is going to take more than five minutes. THE CHAIRPERSON: Keep going.

Robert B. Sklaroff - Direct MR. SKLAROFF: In Section 34, what I see is what is included -THE CHAIRPERSON: Section 34 of what? MR. SKLAROFF: Sorry. Section 706.C, page 1, Use Number C-34. It's at the top of page 2, introduced on the bottom of page one. What is listed there is office uses that are included, and what should also be included in the Ordinance somewhere is which commercial uses should be excluded using some sort of reference that you might conjure. In other words, there may be some other use that might, let's say, slip in through the cracks, and I refer specifically -- for example, I see retail shop, and I remember what happened to Victor Saab a few years ago. It became basically a porno heaven. That was because of the fact that the Ordinance did not specifically exclude or deal with

21 22 23 24 25 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

that concept. So when you specify in Section C-34 what commercial uses are included, I feel obligated to make sure that you specify what is not included.

Robert B. Sklaroff - Direct At the bottom of two, C-35, the car share facility. In the record is the testimony of Mr. Kennedy -- and I will try to invite him to come at a future event, perhaps -- but the concept of the Fairway Transit District in his mind is that although you would be increasing the number of units from eight to three hundred in the region, that because of such efficiencies as having a car share facility and orienting the construction to the railroad stations, that there would actually be an amelioration of density, citing no data, which seems contradictory intuitively, and the existence of a car share facility exemplifies that. On the one hand, you are saying that means fewer cars. On the other hand, what that reflects is the fact that there is going to be a lot more of a desire or demand for vehicular transport and, therefore, the storage of the cars and so forth, because of the increased density which, of course, is a problem that now does not exist. Next. In 504.1, the purpose. I discussed these concepts conceptually and integrated

24 25 90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

them into my presentation, and I would ask that when you take judicial notice of the plan and study that

Robert B. Sklaroff - Direct you scrutinize, let's say, the cross-rough between intent and delivery on each of these nine items. I just saw a wristwatch check. Shall I continue? THE CHAIRPERSON: Let me stop you there, Doctor Sklaroff. MR. SKLAROFF: Okay. THE CHAIRPERSON: It's 5 to 10 right now. Let the record show that our next scheduled regular meeting is -MR. ECKEL: -- the 24th of August. THE CHAIRPERSON: We are going to continue this hearing until that date; is that correct, Mr. Penecale? MR. PENECALE: That would be fine. You do have two additional applications at this point that evening as well. MR. ECKEL: Maybe we could start a little earlier. Maybe we could start at 6:30. MR. ADELMAN: If I may interject, I believe we are entitled to an offer of proof as to what is remaining in Doctor Sklaroff's case in chief. I don't intend to have him continue to use this as a

91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 92 1 2 Robert B. Sklaroff - Direct ambient and I will work on that aggressively. you. THE CHAIRPERSON: Thank you. MR. SKLAROFF: That is that the issue of validating the exhibits, obviously, is responded. THE CHAIRPERSON: Yes, but he was talking to me not you. MR. SKLAROFF: I will talk to intuitive. THE CHAIRPERSON: Doctor Sklaroff, I would ask you not to address the comments to counsel. MR. SKLAROFF: He responded so I that means. MR. SKLAROFF: You should. It's Robert B. Sklaroff - Direct public comment, but if he is going to offer nothing substantive, then I will be going to Court. MR. SKLAROFF: I will give you a straight answer on my offer of proof. I am going to start trying to get some subpoenas out so I can get my exhibits validated next go around. That should speak volumes into what I anticipate will occur in a month. MR. ADELMAN: I have no idea what

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Essentially, the offer of proof is what you can anticipate on the agenda next month. MR. ADELMAN: Madam Chair, I would submit if we have more of the same, that this Board re-entertain the motion to quash at such time on the continuing hearing date. THE CHAIRPERSON: Thank you, Mr. Adelman. Mr. Eckel, should we schedule this meeting for our next scheduled hearing date which would be August 24th? MR. ECKEL: Yes. The question is, Do we want to do it a little earlier like 6:30? MR. MEBUS: No. - - (Discussion off the record.) - - THE CHAIRPERSON: For the record, the next hearing is Wednesday, August 24th, at 7 p.m. Doctor Sklaroff, at that time any exhibits that are going in, nine copies, and all exhibits must be properly authenticated, otherwise, that's it. MR. SKLAROFF: I got it. THE CHAIRPERSON: I am expecting

Robert B. Sklaroff - Direct you to complete your case that evening. MR. SKLAROFF: I think that's reasonable. THE CHAIRPERSON: And then we

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will move on to the opposition. MR. ADELMAN: Thank you. THE CHAIRPERSON: There being nothing further, this case is continued until Wednesday, August 24th, at 7 p.m. Do I have a motion to adjourn? MR. MEBUS: So moved. THE CHAIRPERSON: Is there a second? MS. KATES: I second it. THE CHAIRPERSON: All in favor? THE BOARD: Aye. THE CHAIRPERSON: Opposed? (No response). THE CHAIRPERSON: We are adjourned. (At 10:02 p.m., proceedings were adjourned.) - - -

C E R T I F I C A T E

I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me in the above cause and that this is a correct transcript of the same.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THOMAS P. CORCORAN, Court Reporter - - -