another day in court fighting a citation for a business that does not exist

Downs V. Jenkintown PA, Round Two

It has not been a quiet week in Jenkintown.

Last Wednesday, like it or not, Peggy and Dave Downs had yet another day in court fighting a citation for running a business that does not exist. Never has.

The Borough’s original citation claimed that the Downses were operating an unspecified “commercial business” in violation of zoning which allows only a “zero impact business,” i.e. one that does not make noise, generate odors, or generally disrupt the peace of the neighborhood. The Downses faced a $500 fine, but instead they took the Borough to court where last March 26, Judge Elizabeth McHugh dismissed it for omitting an important detail — the type of business. This took twenty minutes.

The Borough wasted no time reissuing the citation. Hours later, they sent out a new version that cited them for operating a landscaping business. It arrived at the Downses two days later on March 28, and just in time to prevent Borough Council from discussing the matter at their meeting that very day.

A code violation citation requires a site inspection, otherwise the complaint has as much validity as a Yelp review.

Rather than paying the fine and admitting guilt, the Downses opted to appear before the Jenkintown Zoning Hearing Board, which required a $1,000 filing fee. That hearing took place last Wednesday, May 30.

What should have been a one-to-two hour hearing with a basic rundown of well-documented facts, comment, discussion, and dismissal, became instead three-and-a-half hours of Franz Kafka’s Theater of the Absurd, that involved, among other things, a 40-minute discussion about leaf blowers and weed wackers.

Our live stream of this hearing finally gave residents the opportunity to see first hand our Borough Manager’s low caliber and whether or not he justifies the six-figure salary our council awarded him.

Mr. Locke by most accounts seems to be a truly nice guy who comports himself professionally. Many sing his praises, and I even had the good fortune of a pleasant conversation with him in the neighborhood, where I got to meet and pet his beautiful dog Maisy. I’ll bet the guy tells a great story.

However under cross examination, his confidence in his own documentation withered under questioning. Mr. Locke didn’t seem to grasp the impact of his words, and his expansive interpretation of code left the gallery gasping with incredulity.

George Locke all-but-brought the house down during an exchange with the Downs’s attorney Michael Yanoff, who presented this hypothetical:

Michael Yanoff: “I want you to assume that I own a property, and I’ve decided I’m going to help out a neighbor who may or may not be infirm, but a neighbor. And I’m going to do it by cutting her grass and cleaning her yard. And the only way that I can get my equipment there is to load it on the back of my truck and drive it over to my neighbor’s house so that I can perform those neighborly services to her. With that hypothetical in mind, in your opinion, am I conducting a commercial landscaping business?”

George Locke: “Yes.”

In another illuminating moment later on, George Locke asserted that the Downses could simply settle this matter with a letter declaring their full compliance with the code.

Locke: “Based on my investigation by the complaints, the videos, and the pictures, I felt they were running a business. Because they said they weren’t, did not mean that everything I considered went away. So, what I would want them to do is …if they’re not running one and you want them to discontinue it, discontinuing it would be fairly simple, wouldn’t you agree? I’m not asking you questions.”

Yanoff: “No, you can ask me that question, because I’ll ask it right back to you. If they said to you, ‘I’m not running a business, so there’s nothing to discontinue,’ why would they have to file an appeal to the zoning hearing board?”

Locke: “They wouldn’t. They would have only had to put it in writing their intent to comply with that.”

Yanoff: “Didn’t you receive a letter from Attorney Gross [the Downs’s previous attorney] that says just that? A letter from their prior attorney that said, ‘We are not conducting a business’. Isn’t that a satisfaction of that condition?”

Locke: “That was one thing… First off, that wasn’t them putting it in writing.”

Moments later, Mr. Yanoff produced that letter which said exactly that.

Site inspections

A code violation citation requires a site inspection, otherwise the complaint has as much validity as a Yelp review. On at least two occasions, the Downses invited Mr. Locke to inspect their premises. He never accepted the invitation, but instead said repeatedly that he conducted inspections from the “public right of way.” In other words, from his car. He claimed he didn’t accept the Downs’s invitation, because he didn’t think they’d be mowing grass in November.

Evidence

The Borough’s entire case rests primarily upon the word of Joe and Christine Glass and upon their photographs. While the Borough did not share these with the gallery, it did describe them in some detail. They showed Dave Downs pushing a lawnmower described by Mr. Locke as the type used by professional landscapers, a back-pack style leaf blower, the Downs’s pickup truck, and gas-powered grass trimmer.

The borough provided no evidence that Mr. Downs used any of this equipment in a professional manner — i.e. that he received money for his services — just that he possessed these items. This presumption would implicate anyone with a Viking stove who bakes cupcakes for a bake sale, a paneled van volunteered to carry kids to camp, a floor-standing drill press used in the making of bird houses, or anyone in possession of a contractor-level power tool used on a neighbor’s property.

Unlike citing a disturbance for making too much noise, as the Borough might have done, a commercial home-based business invites scrutiny from the IRS or the DOR, since “commerce” implies income. Otherwise, they and most people would consider it a hobby. If your hobby gets a little noisy, then usually a friendly call from the Borough or the police corrects the problem — at least in most communities run by people endowed with common sense.

Francis Reiley

Francis Reiley at the Jenkintown PA ZHB hearing
Frank Reiley (in green sweater) testifies at the Jenkintown ZHB hearing.

Perhaps the most bizarre scene in this show came when the Borough called its first witness, the owner of 303 Runnymede, Francis (Frank) Reiley. The Board had already declared their intention to continue the hearing on June 7, but the Borough requested that Mr. Reiley should testify that night as he would be in Kabul, Afghanistan on that date. Mr. Reiley works for a government contractor, not the military which might justify deference. This begs the question, could anyone whose work took them out of the country during the next hearing ask permission to speak that night?

Mr. Reiley’s testimony offered little insight into the matter. As an absentee landlord, he had little to no exposure to the day-to-day events on his property. Mr. Reiley claimed that Mr. Glass owed thousands in back rent, likely because of the conviction, so naturally Mr. Reiley had a vested interest in making this problem go away, even if it meant undermining the legitimacy of the Downses complaints under oath. In testimony that stretched for more than twenty minutes, Mr. Reiley failed to make his appearance at all relevant, but it did guarantee a second night of testimony and more billings for the attorneys.

Below is the two-minute “public comment” that the ZHB allowed Mr. Reiley to make a week early.

Reading the Room

As a matter of course, the Borough sends out a notice about these hearings to all residents within a 300-foot radius of the property and posts signs on the front lawn. The Downses also notified everyone they knew in town to attend in support. As a result, Borough Hall had another packed house, but because the hearing stretched into the 10 o’clock hour, a period of cross-examination by the board, by neighbors with standing, and public comment would have to wait.

According to heavily redacted documentation supplied by the Borough as part of a Right-to-Know request, Sean Kilkenny’s office has received nearly $6,000 in fees as of February of this year. We have filed another RTK for fees and expenses paid to Kilkenny’s office and others from that point until the present. We do not expect the information before the next hearing, but we conservatively estimate that Jenkintown will transfer another $2,000 to $5,000 to Sean Kilkenny’s firm. The Downses have spent to date over $8,000.

Mr. Hitchens’s tour-de-force turd-polishing wasted a considerable amount of time and resources, not just for the Downses, but also for the Borough, the ZHB, and all those in attendance who endured the discomfort of metal folding chairs or standing for three-plus hours. The room clearly recognized the Borough’s false accusations and ham-fisted  actions that could crush some households in this town. To most in the room, Peggy and Dave Downs stood up for the preservation of our community and common sense.

Council members who attended included Deborra Sines-Pancoe, Ann MacHaffie, Kieran Ferrell, Michael Golden, and David Ballard. If they did not come away from that hearing with a diminished sense of confidence in their borough manager, one could reasonably wonder what standard they applied in his hiring.

The best thing the Borough could do at this point is to shut this kangaroo court down immediately and apologize to the residents and especially to the Downses for putting this town through this wringer. Adding a few high-level resignations would serve as a perfect a la mode to some humble pie.

We plan to live stream the hearing on the June 7th, at 7:00 P.M. on our Walkable Jenkintown Facebook page and will then post the video to YouTube.

George Locke’s code violations of the mind

We will comment in much greater detail  about last night’s zoning board hearing soon, but one thing stands out.

Borough Manager George Locke went on record explaining what could constitute a zoning violation akin to what the Downses are contesting. If you help a neighbor mow their lawn or clear their yard, you could be cited. Mowing someone else’s lawn — for whatever reason — labels your activity as “commercial” and you are in violation of Jenkintown zoning code.

This is an excerpt of the full 3-plus-hour, monumentally wasteful and pointless, zoning hearing where Peggy and Dave Downs find themselves defending against a code violation that never occurred.

Jenkintown, Pennsylvania: a bell jar sample of municipal decline

Four issues that expose Jenkintown’s festering malaise and the people responsible for it

Most people who live here want to preserve Jenkintown’s small-town character, and yet our leaders seem hell-bent on letting that unravel. Council President Deborra Sines-Pancoe, social media bully and Council VP, Rick Bunker, and finally Borough Solicitor and FBI target Sean Kilkenny have led our town and its citizens into a growing thicket of municipal failures and public outrages.

It concerns me particularly, because I’ve traveled though hundreds of small towns across this region, observing that cities and towns enter decline for many reasons. They keep declining or linger in malaise for mainly one: The absence of capable, visionary, and civic-minded leadership.

My residence in Jenkintown goes back 15 years now, and I can objectively say that in comparison to the communities around us, our town shows little progress. A parking lot, a movie theater, and brew pub do not make up for the continued lack of overall economic activity and declining tax base in our town center, even in comparison to what I found when I moved here.

To any outsider who casts even a casual glance into the activities of our local government, clearly we look bad. Foolish, might apply even better. Here’s why.

One: The paving program

how walkable becomes laughable
A real sidewalk repair program does not leave this mess behind.

Announced to residents via mail without warning in April, 2015 and without any general public hearing at all, the Borough’s paving program caused a mad scramble among residents to fix sidewalks and curbs inspected by borough workers who normally go around picking up trash and filling holes. This provided a bonanza for contractors who took full advantage of their captive market charging wildly fluctuating fees for an accordingly varying quality of work. As a consequence, Jenkintown residents spent double to triple what the Borough would have paid with a wholesale program and have a substandard result to show for it.

Two: Cedar Street Park

Site of the proposed pocket park, currently a storage yard for borough trucks.

Using transparency rules written when no one heard of the internet, Borough Council announces a purchase of two adjacent parcels on Cedar Street at below market price with money discovered from a loan renegotiation and discussed in executive session. Then Council stands back in utter amazement that anyone might object, and emphatically claims its commitment to the open process in the face of public outcry. This purchase not only ignores the goals of the still-not-implemented Jenkintown 2035 plan, but it will cost money that the Borough does not have. We hear that it has applied for grants for design and build-out, but it could instead apply for grants that might further town center development. Or perhaps it might use its limited resources to work on the laundry list of code issues that have grown during George Locke’s tenure.

Three: Taco Bell & Summit House

The announcement of both Taco Bell and the Summit House project landing in Jenkintown all-but-begs deeper scrutiny. They both expose the Borough’s fumbling management and put Council’s commitment to Jenkintown’s future and oft-stated principles of transparency to the test.

When Israel Roizman gets Sean Kilkenny’s way, these historic buildings will be reduced to dust.

The Summit House project just smells bad. Some residents have hysterically predicted a parking apocalypse, but this distracts us from the true threat to our town. The residents who live near the looming project do have legitimate concerns about the impact to their property values. However, the real concern has more to do with the ominous connections between Israel Roizman, the local and county Democratic Party, and Sean Kilkenny. We suspect that Roizman would rather not build here, but he endures this arduous process as a favor to Kilkenny who knows how desperately Jenkintown needs the money to complete future sewer upgrades.

The Taco Bell proposal lays dormant for now as the developers have yet to refile their variance application, but the spectacle of all twelve Borough Council members voting their support of this idea numbs the mind. While we have no issue with a Taco Bell coming to Jenkintown, we do have a problem with zoning codes that effectively mean nothing. Some on Council erroneously claim that they can’t really stop any legal business that wants to set up shop here — except that zoning exists for exactly that reason. The whole spectacle of Borough Council bending over for the sake of a few shekels has any reasonable person wondering why bother paying lip service to walkability? Why not just declare it open season on York Road buildings, summon the bulldozers, and call it a day?

Four: Peggy and Dave Downs

Kilkenny Law Invoices
As usual, the lawyers win while taxpayers lose.

In the interest of full disclosure, I helped with Peggy’s write-in campaign. I did this because of Peggy’s declared commitment to, among other things, a more open government. While Louise and I had our own problems with the Borough, the Downses predicament has exposed Jenkintown government’s bullying tactics and its willingness to use its own zoning codes as a weapon against dissent.

The story began when a new neighbor began renting the house next door and has unspooled in somewhat epic fashion. In an indisputable violation of zoning, the neighbor began to operate a concrete business on the property. The Downses filed a complaint with the Borough, which triggered harassment from the neighbor. Despite several appearances before Borough Council, the behavior continued and a citation was not issued.

Taking matters into their own hands, the Downses filed a criminal complaint in District Court and prevailed with the court finding this neighbor guilty on all charges. Thanks to our own experiences, we already had a low opinion of our borough’s governance. The fact that the Borough not only dragged its feet in helping the Downses, but that they obstructed their efforts to settle this matter sealed the deal in our minds. We began to wonder who or what exactly does this government represent?

Coincidentally, a few weeks after last November’s election where Peggy received nearly 40 percent of the mayoral vote as a write-in, she and Dave received a citation from the Borough for operating an unspecified business in violation of code. The citation arrived without a site inspection or any other supporting evidence. Imagine a restaurant receiving a failing sanitary grade from inspectors based on a Yelp review. Rather than capitulating, the Downses lawyered up and on March 26th of this year, got the citation dismissed in district court.

On the same day as the dismissal, Jenkintown Borough issued a new citation, redrafted to claim the Downses operated a code-violating landscaping business — this despite the failure of the Borough to inspect the premises, even after an invite from the Downses. The citation’s sole basis of legitimacy rested upon the complaint of a next door neighbor currently serving jail time for his harassment of the Downses. This also despite the fact that the Downses operate NO such business at this location. Conveniently, the new citation arrived on the day of the next Council meeting which prohibited Council from discussing the matter.

This leads to one very important question: How much is this costing taxpayers? The only two people benefitting from this circus are Jenkintown Solicitor Sean Kilkenny and the Downs’s attorney — proving yet again that the lawyers always win. The Downses fight this because they have stated repeatedly that they do not operate a business, impactful or otherwise, and the Borough has failed to show evidence to the contrary.

According to the heavily-redacted documents received by Walkable Jenkintown from a Right-to-Know request, the Borough has so far spent $5,550 in taxpayer funds pursuing these citations — nearly as much as the Downses have spent in fighting them. Given Sean Kilkenny’s association with other scandals, we have little faith in the veracity of this figure.

Remember that this Democratically controlled Borough has launched a thinly veiled vendetta against a fellow Democrat. Heaven help the lonely Republican or Independent in Jenkintown who rubs Sean Kilkenny and his Gang of 12 the wrong way.

Keep all this in mind the next time you hear Council President Deborra Sines-Pancoe call for civility in public discussion while proudly affirming the Borough’s commitment to transparency. You will not be blamed for laughing out loud.

Summit Hill: The fix is in, Jenkintown

Jenkintown Borough Council failed to vote on Summit Hill last Wednesday. Instead, it told the neighbors around the proposal that they had 45 days to become attorneys and provide proof of their objections to the project. Funny me, I thought that was why we elect Council members.

People are still not asking the two most salient questions that apply to this development. Why here? Why now?

There has got to be a dozen other locations within a five-mile radius where this project will fit without requiring so many variances. And yet, Israel Roizman wants to dump this on our doorstep — just in time to pour new tax dollars into Jenkintown’s coffers as we must now pay for upcoming sewer upgrades, declining business district appraisals, and other looming expenses alluded to by Council that will severely impact the Borough’s budget.

Consider also Israel Roizman’s deep connections to county Democrats, Sean Kilkenny’s machinations and obfuscations and conflicts of interest, combined with the Borough administration’s overall ineptitude, Council’s lack of transparency, and you create a perfect opportunity for an abuse of power.

We can argue all day about parking “shortages”, height requirements, and whatever, but this is all beautifully designed as a tactic to distract us from what must be going on behind the scenes.

Unless we make it clear that twelve council members are going to get resoundingly voted out of office if they don’t stop this, Jenkintown is getting a five-story apartment building where no one, not even Israel Roizman, wants it.

Jenkintown Borough

Statement from Peggy Downs regarding the borough’s citation

Peggy Downs stood before Borough Council last night to read this statement. Unfortunately, Council President Deborra Sines-Pancoe cut her off before she could finish. We publish that statement here in its entirety. Please share this post not only with your friends and neighbors, but with any connections you might have in the media or with organizations that might be interested in learning more about Jenkintown’s governmental abuses. 

UPDATE: the Boro has, in fact, re-issued this Violation Notice against us! I received it when I arrived home from work tonight. More taxpayer dollars wasted on this bogus charge!!! Additionally, more unnecessary legal expenses for us just to defend ourselves from an abuse of power! So not fair! Please speak out! Not just in objection of the wrongful spending of our tax dollars, but also to stand up against these malicious acts!! Please feel free to contact me with any questions you may have. Thank you for your support!!

I wanted to update members of Council and Jenkintown residents on the Borough’s ongoing efforts to cite me and my husband, David for violating zoning codes, and explain to those here what we have had to endure to clear our names.

In August 2016, my husband and I sought the Boro’s assistance with a property zoning issue at the property next-door to ours and quickly came to learn that there was more resistance on the Boro’s part to assist than there was willingness to enforce our existing codes.

Our filing complaints with the borough touched off a series of criminal activity directed against us by our neighbors. I stood before Council then and described the early-morning harassment, the threats, and the disturbances directed against me and my family, which continued to intensify concurrently with the Boro’s disinclination to protect my rights under our existing zoning code. We eventually filed private criminal charges against our neighbor, which resulted in guilty verdicts and jail time for him.

In addition to not enforcing the zoning code, I also discovered that the Boro had been remiss in properly enforcing our codes pertaining to Business Licenses, Business Privilege Tax Filings/Collections, Contractors’ Permits, Contractors’ Insurance, Rental applications and Tenant Registrations. My decision to run for mayor as a write-in candidate was because I wanted to provide a channel of communication as the residents’ advocate and to also assist in curtailing the noted process deficiencies. This decision was not welcomed by the local Democratic committee. In fact, I was bullied on Facebook by one of the sitting Council Members who made fictitious and non-factual statements about me. At the polls, I was called a ‘cheater’ as well as other derogatory terms. Bottom line, I just wanted to make a difference. I have no hard feelings and I’ve mentioned to many, I am grateful to those who serve our community, where they too are doing so to make a difference.

In the weeks immediately before the election, the Borough issued two property violation notices against us. Additionally, in the days immediately after the election, the Boro requested we come up to Boro Hall on December 7th for a meeting to discuss multiple complaints the Boro had received from our next door neighbor claiming we were operating a business out of our property. We were led to believe and hopeful that the intent of the meeting was to ‘discuss’ these accusations and perhaps subdue the dispute.

However the intentions of the Boro Manager and the Boro Solicitor were not the same. Rather, upon our arrival, they physically handed us the Notice of Violation which cited a “Commercial Business” was being operated out of our property. It is important to note that after having heard of the accusations against us, I had, on several occasions prior to this meeting, invited our Boro Manager, and our Council Members to come to our property to conduct an inspection. Never, did our Manager, or any Council Member ever take us up on the open offer. Therefore, there was never an inspection of our property before this Notice, even though we had willingly offered and suggested!

Outraged, Dave and I decided to fight this as I don’t like being wrongly accused of any type of criminal offense. At great personal expense, we hired our own attorney to assist us with our defense. On Monday, the Judge dismissed the citation because it did not comply with PA statute requirements. However, while the citation has been dismissed for now, the Borough does have the ability to refile it. Dave and I must now wait to see if the Boro Manager and the Boro Solicitor will continue to pursue this as they had expressed their intention to do so after our hearing.

I have a petition containing the signatures of a number of my neighbors who will go on record saying that they have never seen any business activity at our home that would violate our zoning laws. Some of those neighbors are planning on coming to the Council meeting this evening.

Accordingly, I plan to ask Council, how many more thousands of taxpayer dollars will they spend to continue chasing us for a violation (with a nominal fine) that did not occur and is not occurring? It is simply wrong! Finally, I hope that by bringing this matter to light, this type of persecution is never again inflicted on another Jenkintown resident.