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Assisted-living facility allowed 16 residents if sprinkler system installed

A Salisbury Township assisted-living facility can expand its number of residents when a working sprinkler system is installed.

The Salisbury Township Zoning Hearing Board attached conditions to its approval following three hours of testimony, questions and discussion spread over two hearings.

The zoning board voted 4-1 to approve the appeal of Eastern Comfort Assisted Living II, Inc., 1493 E. Emmaus Ave., from group home with eight residents to personal care home with 16 residents. The original request was to increase residents from eight to 32.

The applicant agreed to provide 15 percent of the lot to be “suitable and developed for passive recreation.” None was previously required.

A variance request was approved for requiring a 50-foot setback from a residential lot line. The setback is approximately 30 feet.

A variance request requiring 11 parking places is to be determined by having the lot and parking area surveyed to determine how many spaces can be accommodated.

The facility must have a working fire-suppression system, known as a fire sprinkler system whereby a water supply system has distribution pipes to which fire sprinklers are attached.

Eastern Comfort Assisted Living was required to install a sprinkler system in 2003, but it was not completed, according to zoning hearing testimony.

The township zoning hearing board, solicitors and zoning officer met in person Feb. 23 and March 2 in the municipal building. The board rendered its decision March 2.

Attorney Thomas A. Capehart filled in for Attorney Victor F. Cavacini, zoning hearing board solicitor, at the Feb. 23 hearing. Cavacini attended the March 2 hearing.

On the Zoom format, there were 10 participants listed during the two-hour portion of the Feb. 23 hearing for Eastern Comfort Assisted Living and 16 participants listed during the one-hour portion of the March 2 hearing for Eastern Comfort.

Attorney William G. Malkames represented Steven J. Miga, owner of Eastern Comfort Assisted Living II, Inc.

Objectors to the appeal included Mark Traub, Heidi Traub, David Yemm and Patricia Yemm.

Miga purchased the pie-shaped property at East Emmaus Avenue and Fairview Avenue in 2000. The two-story frame building was constructed in 2002. A PPL tower is on the property. To accommodate the tower, the building was situated 31 feet from an adjoining property.

A certificate to operate the facility with eight residents was received. Miga owns a similar facility with 32 residents in Wilson borough.

“We don’t need to do any type of construction. It’s designed for 32 people. We are just trying to make it so we can survive, with expenses,” Miga testified.

Two photos of the exterior and several photos of the building’s interior were shown.

Each 17-by-40-foot bedroom, which can accommodate four beds, has a private bathroom and shower.

Males and females are segregated. The residents are from 55 to 70 years old. There were seven residents at the facility as of the zoning hearings.

Parking for 19 vehicles along East Emmaus Avenue was shown. Parking could be reduced to allow for passive recreation. A gazebo could be put in place for residents.

“I’d be more than happy to fence it off and make it like a picnic grove,” Miga said, who has operated the facility at East Emmaus and Fairview avenues for 18 years.

“I have been running it as a loss,” Miga testified. “Basically, I’m losing $10,000 a month by operating it.”

“People are calling from Salisbury and Bethlehem, looking for a place. Unless Salisbury approves this, we can’t have them there,” Miga said.

“There’s an overwhelming need for this type of facility. I know the financial hardship doesn’t mean anything. If the relief isn’t granted, the facility might close,” Malkames said.

“This cries out for relief. Eight rooms is not enough to keep this operation open. What is to be accomplished if this residence closed?” Malkames asked.

“I think that we may be saving some lives,” Zoning Hearing Board Chairman Attorney Kent Herman replied.

“We take care of people who can’t afford to take care of themselves. We make sure they get their medication. We make sure they get good meals. We make sure their rooms are clean,” Miga said.

“If they have an appointment, my administrator takes them there in her own car. The podiatrist comes in and takes care of their feet. TV cable is paid,” Miga said.

“As far as the state is concerned, the state would love it because there are a lot of high-end and we are not high-end,” Administrator Diane Zeemer said.

Heidi Traub, one of the objectors, who said she was also representing her mother, whose property is adjacent, said, “I would request how many true parking spaces you do have,” Traub said she counted eight parking spaces.

Patricia Yemm, who lives across the street from the facility along East Emmaus Avenue, asked about parking spaces. “When there’s a VAST van, it’s very difficult. There’s generally one car per caregiver.”

Miga said a dumpster could be relocated to the opposite side of the property.

Malkames asked if a surveyor or engineer could make certain parking spaces comply with ordinances.

“Yes,” Miga said.

Zoning board vice chairman, Attorney Ian Baxter asked about parking. He was told none of the residents own cars.

The staff includes two employees per day, one during evenings and one overnight.

Salisbury Township Zoning Officer Kerry Rabold said a site plan is needed for parking. Each parking space is to be 9 feet by 18 feet. One parking space is required for every three beds.

For resurfacing of the parking lot, a grading permit would not be required, Rabold said.

Heidi Traub complained about water runoff from the facility.

“The current water runoff runs into the back of my property to the extent that I lost my lawn service because their equipment gets stuck,” Heidi Traub said.

Miga said he had a swale installed as required by Salisbury.

“If it’s not working, I didn’t know that. If I need to change it so that it goes to the creek, I will do it,” Miga said.

Mark Traub, who is Heidi Traub’s husband, said, “The swale’s not holding the water and all the water is going into the Garden Road property.”

If stormwater problems are to be addressed, “a grading permit would be required,” Rabold said.

Zoning hearing board member Joseph Kovach asked if the building’s sprinkler system is active.

“No,” Miga replied.

Zoning hearing board member Ronald Evans said in 2003, Salisbury zoners allowed the facility to increase its number of residents to 16, contingent upon installation of a sprinkler system.

Herman reviewed a 2003 decision by the Commonwealth Court concerning the facility.

Herman said one condition allowed two persons per bedroom, for a total of 16 and no more.

Herman said a second condition was a working sprinkler system.

“I gather, from your testimony, that building still doesn’t have a functioning sprinkler system,” Herman said to Miga.

“That’s a ‘yes’ or ‘no’ answer,” Herman said.

“No,” Miga replied.

“You came back to the board in 2011 and the board did not amend those conditions and that was appealed to the Commonwealth Court.

“Looking at the Commonwealth Court case, the dimensional variance was allowed 18 years ago,” Herman said.

“I’m deeply troubled that 18 years later, a functioning sprinkler system has not been installed. That’s a disaster waiting to happen. I would implore the township to enforce that.”

“With eight residents, they are not required to have a sprinkler system,” Rabold said.

According to Rabold’s Dec. 7, 2020, review letter, Salisbury Township Director of Fire Services Dustin Grow issued two permits, one in 2014 for a new fire line and one in 2016 for a new pump.

“We’ve been waiting for Mr. Miga to request an inspection,” Rabold said.

“That could be a condition of approval,” Malkames said.

“We’re willing to comply with anything the board wants,” Malkames said.

“What you have is the capability of having 16 residents and complete the sprinkler system,” Herman said.

“He will put in the fire system as a condition of the approval,” Malkames said.

“There was not a permit issued because he didn’t do the work,” Rabold said.

“After 12 months, all such approval shall be rescinded,” Rabold said.

“They actually never got the permit. So their approval is no longer valid. They need a special exception,” Rabold said.

“This is a new application. And we’ve met the four conditions,” Malkames said.

“As the current ordinance stands, I cannot approve it,” Rabold said.

“Nothing’s valid from the original decision because they never got a permit,” Rabold said.

“I’m not sure if the gazebo applies, and the setback and no site plan has been provided,” Rabold said.

“I don’t see granting any relief beyond the 16 [residents],” Herman said, adding, “I spent 40 years of my career on affordable housing.”

At that point, the zoning board voted to continue the Eastern Comfort Assisted Living Feb. 23 hearing until the March 2 hearing.

During the one-hour portion of the March 2 hearing for Eastern Comfort Assisted Living, Rabold read a Jan. 4 letter by Heidi Traub.

Among the points raised in the letter: “Eastern Comfort already has excessive runoff. The water draining is not working. There’s excessive runoff.”

Malkames began by saying, “We would settle for 16 [residents]. We would hire a surveyor to lay out parking. We would provide passive recreation from parking not needed.”

Rabold also read a March 1 letter from David and Patricia Yemm.

The letter cited several alleged violations and a license reinstatement, based on information on the Pennsylvania Department of Human Services website. The citations allegedly included incomplete training for staff, lack of running water and cigarette butts thrown from a porch.

“We hired a new administrator. Since then, everything was going smooth,” Miga said.

“The license was reinstated,” Malkames said.

A certificate of compliance for the home was issued Dec. 12, 2020.

Cavacini asked about the license, which is issued annually.

“Every two to three months, we’re talking with the party that handles that,” Miga said.

Herman, reviewing the Eastern Comfort Assisted Living appeal, said there’s a need for a dimensional variance, which was granted two decades ago.

A special exception for a personal care home is needed, Herman said.

There are conditions for passive recreation and the number of parking spaces, Herman said.

The facility will not have more than 16 occupants, which was granted two decades ago, Herman said.

Baxter, speaking via Zoom, referred to Rabold’s statement the previous relief granted was nullified because there was noncompliance.

“The applicant would have to get a permit. Eastern never did that. To grant a special exception is no longer applicable. This board can reconsider whether to grant a special exception for a personal home,” Cavacini said.

“Decades ago, the approval was for a personal care home of 16 residents with a sprinkler system, but he didn’t comply with that,” Herman said.

“A group home is limited to eight people. But a personal care home doesn’t have limitations,” Rabold said.

Malkames said the request would be for 16 residents, there would be a working sprinkler system, an engineer-surveyor would make sure there are enough parking spaces and 15 percent could be set aside for passive recreation.

“He doesn’t need relief from parking by reducing it [the number or residents] from 32 to 16,” Malkames said, adding, “He’s confident that he can remove the parking spaces and have the recreation area.”

“I have a problem with the whole thing. Since you granted him relief and he hasn’t complied,” Evans said.

“They mentioned water runoff. I don’t know if that’s been addressed,” Kovach said.

“This has been a difficult case to dig into,” Herman said.

“I believe that the dimensional variance ... that they met their burden. The dimensional shape of the lot ... and the power line. The placement of the building on the lot doesn’t materially alter the neighborhood,” Herman said.

“Reiterate that the relief that was granted back in 2003 for 16 residents and the necessity to install a sprinkler system,” Herman said.

“The applicant must comply with 15 percent for passive recreation. And parking, I calculated that as six spaces,” Herman said.

“And the applicant would have to provide a site plan for review by the planning commission and the commissioners for the parking and recreation and for review of the runoff,” Herman said.

“I spent a fair amount of time to study this,” Herman continued.

“I am deeply troubled by the noncompliance, but then again the structure is there. And I can identify with Mr. Miga and the difficult plight of the population that he is serving,” Herman said.

“And that is not to condone the shortcuts he has taken nor the license with the state,” Herman said.

“I am concerned with removing a facility like this because it exacerbates a problem of serving residents like this,” Herman said.

“In conjunction with a special exception there can be a requirement for a site plan. That’s the best we can do to ensure compliance,” Herman said.

Zoning hearing board member Jessica Ortiz said, “I have some major concerns that they didn’t do anything how many years ago. Reinstating what was decided years ago is probably the route that I am most in favor of.”

“I am inclined to agree with Mr. Herman that this type of housing is very difficult to find. But I am very concerned with the safety of the residents because of the sprinkler system. But the concerns of the neighbors need to be addressed,” Kovach said.

“There is a need for such housing. And if that housing can be provided in a meaningful way in our township then that should be provided. But the history is troubling. Will the board in 2040 be faced with a similar situation?” Baxter said.

“Can the solicitor put in a time limit?” Baxter asked.

“You can certainly put in a time limit, and that there be an inspection. And if it’s not installed, then the township could lead to enforcement, which could lead to an evacuation of the building,” Cavacini said.

“He has every incentive of getting it in there. He can’t get the residents in there until it’s installed,” Malkames said.

“There’s some concern over what has transpired over enforcement of this property. I’m thinking 60 or 90 days,” Herman said.

“He would accept 90 days,” Malkames said.

“He will accept an inspection by the zoning officer at the end of 90 days?” Cavacini asked.

“If you put a stipulation, they need to get a permit and they will get a CO [certificate of occupancy]. I will not give zoning approval until. We will not issue a zoning permit until a CO is issued,” Rabold said.

“We tried to issue a zoning permit, so I’m declining,” Evans said.

Cavacini recommended the record of the zoning hearing be transcribed.

Herman reiterating: grant dimensional variance, personal care home, with eight occupants until sprinkler system completed and approved, and prepare site plan, incorporating 15 percent recreation and parking places “and address any stormwater issues with respect to neighboring properties.”

Ortiz asked about the condition with respect to 16 residents.

“We can specifically put in there that there should be no increase until a sprinkler system is installed,” Cavacini said.

“Can the township engineer review this under the grading ordinance? Can the planning commission only review this?” Rabold asked.

Herman said the site plan review approval is amended and approval is needed before 16 residents occupancy.

Herman moved to approve, seconded by Ortiz, the variances appeals with the stated stipulations.

“You’re not giving any right to increase unless and until ... The applicant can continue with eight. We can’t take away from him his right to do the group home,” Cavacini said.

“We have a new, energetic zoning officer,” Herman said.

Voting “yes” to approve the variances were Kovach, Baxter, Ortiz and Herman. Evans voted “no.”

The Salisbury Township Zoning Hearing Board is next scheduled to convene 7 p.m. April 6 in the township municipal building. The public and media preregister via Zoom on the township website.

PRESS PHOTO BY PAUL WILLISTEIN Eastern Comfort Assisted Living, 1493 E. Emmaus Ave., Salisbury Township, appears before the zoning board requesting an increase to 16 residents.