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In Re: David Zimmerman,
Respondent
Y7
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120 -0400
File Docket:
X -ref:
Date Decided
Date Mailed:
FACSIMILE: 717- 787 -0806
WEBSITE: www.ethics,pa.g v
15 -002
Order No. 1740
10/23/18
10/31/18
Before: Nicholas A. Colafella, Chair
Mark R. Corrigan, Vice Chair
Roger Nick
Melanie DePalma
Monique Myatt Galloway
Michael A. Schwartz
Shelley Y. Simms
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted
an investigation regarding possible violation(s) of the Public Official and Employee Ethics
Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seg., by the above -named Respondent. At the
commencement of its investigation, the Investigative Division served upon Respondent
written notice of the specific allegations. Upon completion of its investigation, the
Investigative Division issued and served upon Respondent a Findings Report identified as
an "Investigative Complaint." An Answer was filed and a hearing was requested. A
Stipulation of Findings and a Consent Agreement were subsequently submitted by the
parties to the Commission for consideration. The Stipulated Findings are set forth as the
Findings in this Order. The Consent Agreement has been approved.
ALLEGATIONS:
That David H. Zimmerman, a public official /public employee in his capacity as a
Member of the Board of Supervisors for East Earl Township, Lancaster County, violated
Sections 1103(a) and 1105(b) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§
1103(a) and 1 05(b), when he utilized the authority of his office for a private pecuniary
beneffit of himself and/or a member of his immediate family and/or a business with which
he and /or a member of his immediate family is associated, namely, Wildflower LLC, when
he participated in actions of the Board of Supervisors, including, but not limited to,
recommending and /or voting to approve rezoning, subdivision, and storm water abatement
plans, pertaining to certain real estate at a time when he maintained equitable ownership in
said ropert y and /or himself or a member of his immediate family was associated with
Wildflower LLC; and when he failed to file complete and accurate Statement of Financial
Interests ( "SFI ") forms in connection with his service as a Supervisor for East Earl
Township, specifically when he failed to report: all direct/indirect sources of income in
excess of $1,300 on SFIs filed for the 2009 through 2014 calendar years; Creditors in
excess of $6,500 on SFIs filed for the 2009 through 2014 calendar years; his Office,
Directorship, or Employment in any Business for profit on SFIs filed for the 2009 through
2014 calendar years; his Financial Interest in a Legal Entity engaged in Business for Profit
on SFIs filed for the 2009 through 2014 calendar years; and his failure to provide a
response to Business Interests Transferred to Immediate Family Member, on his SFI filed
for the 2009 calendar year.
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IL FINDINGS:
David Zimmerman served as an East Earl Township Supervisor, Lancaster County,
from at least 2006 until his resignation effective December 9, 2014.
a. Zimmerman resigned after winning election to the Pennsylvania General
Assembly as a Representative for the 99th Legislative District, covering
portions of Lancaster County.
b. Zimmerman became a Member of the Pennsylvania General Assembly in
January 2015.
2. East Earl Township is a Second -Class Township governed by a three - Member
Board of Supervisors.
a. From January 2006 through November 2014, the East Earl Township Board
of Supervisors was comprised of the same three (3) Supervisors: David H.
Zimmerman, Joseph Shriver, and Earl Kreider.
3. While a Member of the East Earl Township Board of Supervisors, Zimmerman held
the positions of Roadmaster, Stormwater Specialist and Assistant
Secretary/Treasurer.
a. As Roadmaster, Zimmerman was responsible for overseeing the day -to -day
operations of the Township's Road Department.
b. As Stormwater Specialist, Zimmerman was responsible for reviews on small
projects.
1. Stormwater management plans on larger projects are the
responsibility of the developer, with reviews by the Township
Engineer.
4. Land development plans are subject to review and approval by the East Earl
Township Board of Supervisors.
a. Plans are submitted to Township Secretary/Treasurer Connie Gross
( "Gross ").
b. Gross provides copies of the Land Development Plans /Application to the
Board of Supervisors, Lancaster County Planning Commission, Township
Planning Commission, Township Engineer ( "ELA') and Lancaster County
Conservation District, if an NPDES (National Pollutant Discharge Elimination
System) Permit will be required for review and approval.
The [Township Planning Commission's] and Lancaster County
Planning Commission's roles in the review process are strictly
advisory.
C. Any conditions and final approvals are the sole responsibility of the East Ear!
Township Board of Supervisors.
d. Gross creates and maintains a checklist of project requirements needing to
be completed prior to the commencement of any construction activities on a
project.
e. The Township's Zoning Officer is responsible for issuing building permits and
conducting any needed inspections.
Zimmerman, 15 -002
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No timetable is set for an applicant to comply with any project contingencies
for projects conditionally approved by the Board of Supervisors.
The Board's desire is to have contingencies /issues addressed as
soon as reasonably possible.
g. Work on a project is not to be initiated until all outstanding conditions are
met, including signatures on required project agreements.
5. David H. Zimmerman, as a private businessman, had a 50% equity interest in a joint
venture land development partnership project with Mervin M. Martin known as
"Wildflower Ridge" from 2006 until August 1, 2010.*
a. Zimmerman's equity interest included a 50% ownership of approximately
fifteen (15) acres in East Earl Township, Lancaster County, which eventually
was developed under the name "Wildflower Ridge."
b. Zimmerman's interest in the land development included 50% responsibility
for the cost of land acquisition, site improvement costs, and all project
development fees needed including engineering design services, permitting,
and other professional services.
C. Although Zimmerman was not included within incorporating ocuments
filed /drafted August 1, 2010, Zimmerman was owed payments for a "buy -out"
of his previously held financial interests in the land which would become
"Wildflower Ridge."
d. A township official, whether elected or employed, is not prohibited from being
involved in a land development project in the municipality in which she or he
works as an employee or in which she or he serves as an elected official, so
long as she/he abides by, at a minimum, the provisions of the Ethics Act.
[Cf., Fact Findings 24, 24 a, 24 c.]
6. Mervin M. Martin owns and operates Countryside Builders, 540 Countryside Lane,
New Holland, PA 17557.
a. Countryside Builders' business operations include farming, a greenhouse,
and residential home construction.
b. Mervin M. Martin has operated Countryside Builders since approximately
1988.
7. Mervin M. Martin has known David H. Zimmerman as a one -time neighbor and
Member of the East Earl Township Board of Supervisors since at least 2006.
8. Around 2006, Mervin M. Martin entered into a verbal agreement to partner with J.
Michael Stoltzfus to develop approximately five (5) acres in East Earl Township.
a. The intended scope of this project was a thirteen (13) lot residential
subdivision and land development plan.
b. A land development plan was submitted to East Earl Township on
Se tember 12, 2006, under the project name "J. Michael Stoltzfus
Subdivision Plan."
Zimmerman, 15 -002
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C. Shortly after the project was submitted to East Earl Township for
consideration, J. Michael Stoltzfus decided to withdraw from the project and
sought to sell his interest to Mervin M. Martin.
d. David Zimmerman was a Member of the East Earl Township Board of
Supervisors at the time of Stoltzfus' submission.
9. In or around October 2006, Mervin M. Martin contacted David H. Zimmerman
inquiring whether Zimmerman knew anyone who might be interested in partnering
with him in the five -acre project.
a. Zimmerman informed Martin that he would be interested in partnering in the
land development plan.
10. Zimmerman was a Member of the East Earl Township Board of Supervisors at the
time he entered into the partnership agreement with Martin.
a. At the time Zimmerman entered into the partnership agreement with Martin,
the J. Michael Stoltzfus Subdivision Plan was pending before the East Earl
Township Board of Supervisors.
11. On December 9, 2006, an Agreement of Sale was entered into between Michael H.
and Linda H. Martin (sellers) and Mervin M. Martin and David H. Zimmerman
(buyers) for a 10 -acre portion of the sellers' 36 -acre farm, for $375,000.00.
a. The Agreement of Sale included contingencies related to zoning changes
and subdivision approvals needed from East Earl Township:
Subdivision Contingency: "This agreement and the parties obligation
to make settlement, shall be contingent upon seller obtaining, at
Buyers' expense, a recorded subdivision plan for the premises on or
before December 31, 2008. In the event this contingency cannot be
fulfilled after reasonable effort, this agreement shall be declared null
and void and %2 (of the) down payment monies shall be returned to
buyer. This contingency date may be extended to December 31,
2009, provided, however the buyer pay the then current interest rate
on the amount of the purchase price less the down payment."
2. Zoning Contingency: "This agreement and the parties obligation to
make settlement, shall be contingent upon buyer obtaining, at buyer's
expense, approval for a zoning change for the premises from
agriculture to residential medium, on or before December 31, 2008.
This contingency date may be extended to December 31, 2009,
provided, however, the buyer pay the then current interest rate on the
amount of the purchase price less the down payment."
3. Additional contingencies included in part that "all costs of installation
of utilities, stormwater management facilities, and easements,
incurred from the date of this agreement shall be paid by buyer... and
the Buyer shall be responsible for any clean and green rollback taxes
as a result of the subdivision."
b. Zimmerman and/or Martin tendered $28,000 representing rollback taxes
specific to the Clean and Green program.
G. The intended use of the property was a fifty -one (51) lot subdivision
consisting of single family, duplex, and townhomes.
Zimmerman, 15 -002
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12. Final settlement of the purchase of the Martin property did not occur until April 18,
2012, when all the contingencies were met and approvals were granted by the East
Earl Township Board of Supervisors.
13. Zimmerman and Mervin Martin secured funding for the purchase of the 10 -acre tract
from Michael H. Martin through personal funds and a loan from Anabaptist Financial
Services.
a. Between April 16, 2009, andApril 18, 2012, Zimmerman issued at least four
�4) checks totaling $37,875.00 to Michael H. Martin from three separate PNC
ank accounts under his control.
b. Between December 9, 2006, and December 31, 2011, seven (7) checks and
one (1J wire transfer totaling $323,687.50 were made by Mervin M. Martin
from Countryside Builders HTHB /National Penn Bank account # ending
[number redacted] to Michael H. Martin.
14. A conduit loan in the amount of $300,000.00 was obtained by Mervin M. Martin
through Anabaptist Financial.
a. On December 30, 2009, $300,000.00 was wire transferred from Anabaptist
Financial to Mervin Martin's Countryside Builders account.
1. Mervin Martin then transferred the $300,000.00 to Michael Martin's
account at Susquehanna Bank.
b. Repayment of the $300,000.00 loan Mervin M. Martin obtained through
Anabaptist Financial was to be split evenly between him and David H.
Zimmerman.
15. Zimmerman and Mervin Martin retained the services of Fry Surveyying, Inc.,
Surveyors & Planners, 21 South Hershey Avenue, Leola, PA 17540 for the
Wildflower project design and engineering services.
a. Roger A. Fry was the point of contact at Fry Surveying, Inc.
b. Fry was responsible for all aspects of the project's design work including
representing the developers, Mervin M. Martin and David H. Zimmerman,
before East Earl Township.
C. Fry subcontracted some engineering services to McCarthy Engineering,
1181 Snyder Road, West Lawn, PA 19609.
1. Fry Surveying, Inc. had an ongoing business relationship with
McCarthy Engineering at the time.
16. Between January 29, 2010, and April 1, 2015, Zimmerman made approximately
sixty -two (62) payments totaling $68,538.90 to Anabaptist Financial from bank
accounts he controlled at PNC Bank and Bank of Bird -in -Hand.
a. These payments were made by Zimmerman as part of his 50% repayment
obligation of the $300,000.00 loan Mervin M. Martin obtained through
Anabaptist Financial.
1. No written agreement between Zimmerman and Martin exists to
document Zimmerman's obligation.
Zimmerman, 15 -002
Page
b. Between January 29, 2010, and April 1, 2015, Zimmerman made forty -six
46) payments totaling $29,163.90 to Anabaptist Financial /Stewardship
Resources from PNC accounts ending in numbers: [numbers redacted].
C. Between December 28, 2013, and February 4, 2015, Zimmerman made
sixteen 16) payments totaling $39,375.00 to Anabaptist
Financial /S ewardship Resources from Bank of Bird -In -Hand account ending
in number [number redacted].
d. David H. Zimmerman's brother, Ivan H. Zimmerman, also made a payment in
the amount of $75,000.00 to Anabaptist Financial early in 2016, satisfying
David Zimmerman's share of the balance owed on the $300,000.00 loan.
17. Between September 2006 and April 18, 2012, seller Michael H. Martin interacted
primarily with Mervin M. Martin on issues relating to the Wildflower Ridge
subdivision and sale of a 10 -acre portion of his 36 -acre farm.
a. The sellers dealt primarily with Mervin M. Martin on issues relating as to why
settlement of the property was being delayed.
b. On November 20, 2012, loan satisfaction documents were filed with the
Lancaster County Recorder of Deeds Office for loans /lines of credit
previously secured by Mervin Martin and David Zimmerman for land
development.
1. The loans were able to be satisfied following the East Earl Township
approvals of the plan which enabled lots and homes to be sold.
2. David Zimmerman participated in the Township's final approvals of
the Wildflower Ridge plan.
18. The settlement for the transfer of the 5 acres from J. Michael Stoltzfus and Crystal
J. Stoltzfus to Mervin M. Martin and Laura H. Martin for $336,000.00 occurred on
May 5, 2007.
19. Even though he was not listed on the Stoltzfus property deed, Zimmerman made at
least sixty (60) payments totaling $63,671.47 between November 3, 2008, and
October 1, 2012, to HomeTowne Heritage Bank from his PNC accounts toward the
loan for the purchase of the Stoltzfus property.
20. Between November 2009 and January 2012, no substantial advances were made
by Zimmerman and Martin toward completing the outstanding items required by
East Earl Township on the Wildflower projects conditional approval.
a. Reasons for the delay included obtaining an NPDES (National Pollutant
Discharge Elimination System) Permitfrom the Pennsylvania Department of
Environmental Protection ( "DEP "), a poor economy, and weak building
market.
b. The NPDES Permit process is lengthy and may take up to a year to obtain
from DEP.
21. Between 2009 and 2012, while the project was stalled, Zimmerman continued to
make payments to HomeTowne Heritage Bank /National Penn Bank and Anabaptist
Financial on loans used to secure the 5 acres from J. Michael Stoltzfus and Crystal
J. Stoltzfus ($750,000.00 HomeTowne Heritage Bank loan) and 10 acres from
Michael H. Martin and Linda H. Martin ($300,000.00 Anabaptist Financial loan and
personal funds.)
Zimmerman, 15 -002
age e
a. Even though the project was not advancing during this period, both
Zimmerman and Mervin Martin were required to make payments on the
loans.
22. Between December 2, 2010, and March 7, 2011, a series of correspondence was
exchanged between the Township (under the signature of East Earl Township
Secretary Connie Gross), Roger Fry, Mervin M. Martin, ,and Lancaster County,
regarding the outstanding approvals and status of the project.
a. On December 2, 2010, Township Secretary Connie J. Gross sent
correspondence to Mervin M. Martin requesting a status update on the plan:
• Gross advised Martin that the Township was contacted by the
Lancaster County Planning Commission regarding the Wildflower
Ridge subdivision plan and whether or not it was still an active plan.
• Gross added that she had also contacted Roger Fry to obtain a plan
update.
• Gross' letter also noted that "Dave Zimmerman passed onto me that
the NPDES p ermit was the hold -up but that it was approved and in
the hands of McCarthy Engineering."
• Gross noted that the Township needed to sign off on the subdivision
plan for Wildflower Ridge before the plan could be recorded at the
Lancaster County Courthouse.
1. Mervin Martin did not respond to Connie Gross' December 2, 2010,
correspondence.
2. Gross sent a follow -up correspondence dated February 22, 2011, to
Martin.
b. By way of correspondence dated March 7, 2011, sent to East Earl Township,
Mervin M. Martin requested the Township to "please ask Lancaster County
Planning Commission to keep Wildflower Ridge as an active project, there
was a several year wait and a huge cost in acquiring the NPDES permits
from the DEP. This was in part due to the Black Creek being listed as a
high - quality stream. The housing crash also has made it unaffordable to build
the infrastructure and the new homes, please be patient as we wait on better
economic times."
1. The letter was sent on Countryside Builders stationary.
C. Gross responded to Martin on March 10, 2011, advising that the Lancaster
County Planning Commission was contacted, and a request was made that
the Wildflower Ridge subdivision plan remain active.
23. Minutes from the East Earl Township Board of Supervisors March 8, 2011, meeting
reflect that the Township received notification from the Lancaster County Planning
Commission ( °LCPC ") that the Wildflower Ridge plan would be closed unless the
Township requested to keep it open.
a. Minutes of the meeting note Martin's March 7, 2011, correspondence
requesting that the plan remain active.
Zimmerman, '15 -002
Page 8
1. The Board agreed, without a vote, to forward Martin's request to the
LCPC.
b. David H. Zimmerman was present at this meeting but did not offer any
comments on the project or advise of his interest in the Wildflower Ridge
project.
C. By this time, David Zimmerman was no longer a partner to the project;
however, his brother, Ivan H. Zimmerman, was a partner, having acquired a
financial interest in the project from David H. Zimmerman.
24, From 2006 until approximately January 2009, the Wildflower Ridgge land
development plan was a 50150 joint venture partnership between Mervin M. Martin
and David H. Zimmerman.*
a. On January 27, 2009, David H. Zimmerman sold one -half of his fifty percent
interest in Wildflower Ridge to his brother, Ivan H. Zimmerman, for the sum
of $350,000.00.*
b. There was no written sales agreement between David H. Zimmerman and
his brother, Ivan H. Zimmerman, documenting the sale.
C. At that time (2009) the ownership interests in Wildflower Ridge became:
Mervin Martin: 50%
David Zimmerman: 25 %*
Ivan Zimmerman: 25%
d. No additional partners were added to the project until or about August 1,
2010.
e. Between January 27, 2009, and April 27, 2012, Ivan H. Zimmerman made
twenty (20) payments totaling $365,745.00 to David H. Zimmerman towards
the purchase of 25% of the Wildflower Ridge project.
Ivan H. Zimmerman made an initial payment of $200,000.00 to David
H. Zimmerman on January 27, 2009.
2. Ivan Zimmerman paid the remaining $150,000.00 balance, with
interest, in installments to David Zimmerman.
[Cf., Fact Finding 5.]
25. Byy the summer of 2010, David Zimmerman was interested in selling his remaining
25% interest in the Wildflower Ridge project.
a. Zimmerman and Mervin Martin sought additional investors for the project that
could contribute financially and offer construction expertise and services.
b. Scott A. Guthridge and Stephen J. Martin were identified as individuals
interested in buying into the project.
1. Guthridge was a builder at the time, and Stephen Martin operates
Cornerstone Excavating.
26. On August 1, 2010, Stephen J. Martin executed installment loan notes with both
David H. Zimmerman and Mervin M. Martin for ownership in Wildflower Ridge.
Zimmerman, 15 -002
age
a. These loan notes were in the amount of $150,000.00 each, for a 25%
ownership interest in the project.
1. Stephen J. Martin obtained a 12.5% ownership from both David
Zimmerman and Mervin M. Martin to comprise his 25% ownership
interest.
b. The agreement Stephen Martin entered into with Zimmerman required that
he make payments to Zimmerman beginning in August 2010.
27. On August 1, 2010, an Operating Agreement for Wildflower, LLC was created.
a. Mervin M. Martin is identified as Member and Manager.
b. Members of the LLC were identified as Ivan H. Zimmerman, Stephen J.
Martin, Mervin M. Martin, and Scott A. Guthridge.
C. Ownership interests were identified as 25% each for Mervin M. Martin, Ivan
H. Zimmerman, Scott A. Guthridge, and Stephen J. Martin.
28. At the time of the August 1, 2010, Operating Agreement, David Zimmerman still had
a 12.5% ownership interest in Wildflower, LLC.
a. Scott Guthridge had verbally agreed to purchase a 12.5% interest from both
Mervin Martin and David Zimmerman.
b. No purchase /transfer agreement was signed between Guthridge and
Zimmerman.
C. In light of the pending transfer between Guthridge and Zimmerman, David
Zimmerman was not included in the Operating Agreement for Wildflower
Ridge.
d. After he was to become a partner in August 2010, Scott Guthridge built a
house during Phase I of the project, consisting of the five acres that came
from Mervin Martin and Michael Stoltzfus.
e. No payments were ever made to David Zimmerman until December 2012,
after the approvals for the Wildflower Ridge project were finalized.
29. On September 1, 2010, a Declaration of Restrictions for Wildflower Ridge was
created which identified various rights of first refusal for the sale and construction of
homes as part of the housing plan.
a. Rights of first refusal were identified as follows:
• Scott A. Guthridge dlbla Providence Homes: construction of homes.
• Ivan H. Zimmerman dlbla Zimmerman Electrical Plumbing: installation
of electric and plumbing fixtures.
• Sheldon D. Zimmerman, son of David H. Zimmerman: sale of lots
and/or homes.
C Steven J. Martin: all site excavation work.
30. On October 4, 2010, a Certificate of Organization for Wildflower, LLC was filed with
the Pennsylvania Department of State, Corporation Bureau.
Zimmerman, 15 -O02
agF'TF
a. Entity no. 3983539 was assigned by the Pennsylvania Department of State
to Wildflower, LLC.
b. The registered address is identified as 540 Countryside Lane, New Holland,
Pennsylvania 17557.
540 Countryside Lane is [the address] for Countryside Builders.
G. Four (4V rganizers are listed for Wildflower, LLC:
Mervin Martin, 540 Countryside Lane, New Holland, Pennsylvania 17557;
Ivan H. Zimmerman, 17 East Mohler Church Road, Ephrata, Pennsylvania
17522; Scott A. Guthridge, 497 Smoketown Road, Denver, Pennsylvania
17517; and Steven J. Martin, 144 Mountain Road, Newmanstown,
Pennsylvania 17073.
1. LLC documents also include the signatures of all four (4) organizers.
d. The business name "Wildflower, LLC" did not appear on any official project
documents until February 2012, just prior to settlement.
31. On November 25, 2011, an Amendment to First Members Agreement was executed
between Scott A. Guthridge and Members of Wildflower, LLC.
a. This agreement provided that David H. Esh would replace Scott A. Guthridge
as Builder and Member of Wildflower, LLC.
32, David Esh executed an Installment Note dated December 28, 2011, with Mervin
Martin to purchase a 25% interest in the project for the sum of $320,000.00.
a. Esh's 25% interest in the project included 12.5% from Mervin Martin and
David Zimmerman's remaining 12.5% interest.
b. Esh did not pay anything directly to David Zimmerman for Zimmerman's
12.5% interest.
1. Mervin Martin sold David Zimmerman's remaining 12.5% interest in
Wildflower Ridge to satisfy project costs owed to Martin by David
Zimmerman.
33. Esh's ownership was memorialized in an Amendment to the Declaration of
Restrictions for the project on January 12, 2012.
a. The declaration provides that Esh replace Guthridge on all documents
related to the construction of approximately ten acres on the northern side of
Red Run Road and Vine Street, East Earl, Pennsylvania.
b. Included with the amendment is an appendix detailing percentage of interest
held:
Mervin M. Martin: 25%
Ivan H. Zimmerman: 25%
Stephen J. Martin: 25%
David H. Esh: 25%
G. Ivan Zimmerman is the brother of David Zimmerman.
d. David Zimmerman is not listed as having an ownership interest in Wildflower
Zimmerman, 15 -002
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Ridge after August 2010.
34, On December 31, 2015, a Second Amendment to the Operating Agreement of
Wildflower, LLC was executed.
a. The purpose of this agreement was to document Stephen J. Martin's
withdrawal of ownership interest in the LLC and sale of his interest to the
remaining partners.
b. The document reflects Stephen Martin sold his 25% interest in the LLC to the
remaining three (3) members for $225,000.00: $75,000.00 each.
C. Settlement was identified as being due by February 1, 2016.
d. As a result of Martin's sale of his share, each remaining partner's percentage
of ownership increased to 33 1/3 %.
35. David Zimmerman's financial connection with Wildflower Ridge after 2010 was:
a. Zimmerman was legally obligated and continued to make loan payments to
HTHB and Anabaptist Financial on the loans he and Mervin Martin secured
to purchase both tracts of land that comprised the Wildflower Ridge project.
b. Zimmerman was owed $150,000.00 by Stephen J. Martin for the purchase of
Zimmerman's 12.5% interest in the project.
C. Between 2011 and 2015, Zimmerman's brother owned a 25% interest in the
Wildflower Ridge project.
36. In or around January of 2012, Zimmerman, as a Township off iciallemployee,
initiated actions to get the outstanding items remaining for the Wildflower Ridge
project addressed by the Township so that construction could begin.
a. At the time infrastructure items needed to be approved by the Township in
order for construction to begin including Phase I approvals,
inspectionslapprovals of storm drain water catch basins, installation of storm
water inlets, paving, open space fees, signed Stormwater Management
Agreement, establishment of escrow amounts and filing of a Stormwater
Disclosure Agreement.
b. At this time, David Zimmerman had no interest in the project other than he
was owed money for the interest he earlier conveyed.
37. At the time David Zimmerman initiated actions to get the Wildflower Ridge final
approval, there was no timetable required by the Township for completion of the
outstanding project items.
a. No Township officials, other than Zimmerman, initiated any action to move
the Wildflower Ridge project to final approval.
b. Zimmerman asserts that since there was no Township anager, all actions
of the Board of Supervisors were initiated by David Zimmerman.
38. On or before January 23, 2012, David Zimmerman inquired of Township Secretary
Connie Gross of remaining items outstanding on the Wildflower Ridge Plan.
a. Zimmerman contacted Gross in his official capacity as Chairman of the East
Earl Township Board of Supervisors. As the only Supervisor employed by
Zimmerman, 15 -002
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the Township, David Zimmerman was expected to keep track of pending
development plans and report back to the Planning Commission and the
Board of Supervisors.
b. Gross, as the Township Secretary/Treasurer, reports directly to the Board of
Supervisors.
1. One of Gross' duties was to track all needed items on land
development plans before the Board.
2. Gross maintained a project approval progression log as she does on
all land development plans before the Township.
C. At the time of his inquiry, Zimmerman's brother had a 25% interest in
Wildflower Ridge and Zimmerman was owed approximately $150,000.00 by
Stephen Martin.
39. On January 23, 2012, Gross responded to Zimmerman's inquiry by email to
Zimmerman's Township email address eetroad(@comcast.net.
a. Gross copied the email to Supervisors Earl Kreider and Joe Shriver, Zoning
Officer Shaun Seymour and his assistant, Judy Muckle.
b. Gross responded to Zimmerman's inquiry as follows:
Dave,
What I found between the J. Michael Stoltzfus and Wildflower Ridge plans
was that 1) the zoning was changed to Residential Medium in 2007 thus
allowing duplex and townhouse dwellings in the development and 2) a zoning
hearing decision was issued allowing creation of lots with a minimum size of
10,000 square feet and a minimum width of 80 feet. According to my
records, there are still some outstanding issues with this plan:
1) A Storm Water Ownership and Maintenance Agreement
has not been provided.
2) An easement for dealing with discharge of storm water
with downstream property owners has not been
provided.
3) ENot recorded written in the margin)
scrow has not been established nor have proposed
escrow amounts.
Though the plan was approved conditionally in 2009, these items remain
outstanding, and, therefore, the plan cannot be recorded until they are
addressed. My understanding is that recording must occur before building
permits can be issued.
40. No building could be commenced until the plan was recorded with the County.
a. The plan could not be recorded until the outstanding items outlined in
Gross's January 23, 2012, email were addressed and approved.
41. Around this same time in January 2012, Zimmerman provided Supervisors Earl
Kreider and Joe Shriver with an undated narrative update of the Wildflower Ridge
Project.
Zimmerman, 15 -002
Page 33
a. As part of the update, Zimmerman informed Kreider and Shriver that he was
very comfortable permitting the Wildflower Ridge developers to proceed
without placing funds in escrow for Phase 11.
Not requiring escrow may not have been atypical at the time, for it
was consistent with recommendations of the LCPC.
2. Nonetheless, the Township required the posting of an escrow.
b. Phase II included the 10 -acre property that Zimmerman and Mervin Martin
had a sales agreement for since December 9, 2006.
C. Supervisors Kreider and Shriver were unaware of Zimmerman's interest in
the protect at the time Zimmerman was proposing waiving escrow fees for
Wildflower Ridge.
42. Zimmerman's one -page memo to Supervisors Kreider and Shriver which outlined
the project's status was an attempt to influence the Supervisors to waive escrow
fees and to permit the Wildflower project to move forward.
Earl and Joe,
Wildflower Ridge back by Terre Hill wants to get started. The only thing that
remains outstanding is setting up an escrow account. Some townships are
foregoing escrows and simply holding out on occupancy permits until the
infrastructure is installed and inspected. Also most all municipalities are letting
projects be phased. Lancaster County Planning Commission supports both of
these.
Wildflower Ridge has three phases. The first phase is down to four single houses
yet to be built. East Earl is holding escrow for several items that have been
completed. The only thing needing to be done in phase one is the final blacktop
coat. They also did the Red Run Road widening and installed the curbing along the
township road with phase one.
For phase two Wildflower Ridge has installed the large storm water basin some time
ago which was closely monitored by Kent Himmelright with the Conservation
District. It is well established and working. They installed the public sewer lines
with laterals and installed the public water lines and fire hydrants. Bob Rissler
monitored the sewer and water line installations and did the inspections. He was
fine with their work.
What remains to be installed for phase two are a few storm water inlets and piping,
a few more stones and base and final blacktop coats on the street and the inferior
curbing. The cost to finish phase two is $244,000. All items are completed except
for $75,000 of the $244,000. See enclosed copy.
Phase three which will begin after phase two is built has cost estimates of $315,900.
We should take a look at this phase when they are ready to build and then decide
on escrows. Costs could change by the time they are ready to build. If phase three
would never start it would not be a big deal since it is a nice wooded area.
Developer Mervin Martin and engineer Roger Fry have been in contact with me and
reviewed the plans in depth with me. I'm very comfortable to let them start without
putting up escrow for phase two. However I would want to make sure Shaun does
not release any occupancy permit before this infrastructure is installed which I will
monitor along with the Conservation District. Again what are needed in
improvements are several storm water inlet boxes and piping, some stone and
Zimmerman, 15 -002
Page
blacktop on the street and curbing. I will have the road department do the proof roll
before they blacktop. I spoke with the Excavator about this so he understands.
43. At the time of Zimmerman's January 20, 2012, memo to the other Supervisors
advocating approval of the Wildflower Ridge development plan, Zimmerman was
owed at least $150,000.00 from the sale of his 12.5% interest in the plan.
a. Zimmerman's brother, Ivan Zimmerman, also had an ownership interest in
the project at this time.
44. On January 25, 2012, Gross emailed Zimmerman's one �1) page narrative and her
January 23, 2012, response email to Solicitor Frank incarelli for review and
comments. Gross' email included the following:
Frank,
I was asked to share a situation with a development in the Township for
which the plan was conditionally approved but has not yet been recorded because
some outstanding issues remain. The development is Wildflower Ridge near Terre
Hill Borough. The three outstanding issues appear on my attached email to Dave Z.
with copies to Earl, Joe, Shaun and Judy (Shaun's administrative assistant). A copy
of #2 on the list -- -the easement for storm water discharge with downstream property
owners - - -has been provided, but I haven't been able to confirm if it has been
recorded yet or not as I haven't been able to access the records on the Recorder of
Deeds website. Numbers 1 &2 are still outstanding.
The other attachments are a memo Dave Z. sent to Earl and Joe and the
cost quote that would have been used to establish escrow. Questions have arisen
as to why so much has been done with the plan not having been recorded yet.
Dave's memo suggests not requiring any escrow. Typically when a new street is
installed the Township holds escrow for 18 months to be sure the street holds up
the way it should. There is concern that none of this should have progressed as far
as it has and whether foregoing escrow would be wise. The others would like your
recommendation and comments.
FYI ---the highlighted area on the first page of the cost quote is everything except
"Site Work..." at the bottom of the page.
45. Solicitor Mincarelli responded to Gross in a January 30, 2012, email which
expressed his opinion that the developer, Mervin Martin, violated the Township's
zoning and subdivisionlland development ordinances by proceeding without final
plan approval.
a. Mincarelli also concluded the developers neither completed public
improvements nor posted financial security sufficient to cover costs of
improvements.
b. Mincarelli further concluded building permits were improperly obtained and
the Township had a right to revoke all permits, if any were issued.
C. Mincarelli finally concluded that the developers were in violation of the
Subdivision and Land Development Ordinances ( "SALDO ").
d. Zimmerman was not one of the developers at that time.
46. The text of Solicitor Mincarelli's email to Gross is as follows:
Zimmerman, 15 -002
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"Connie, based on the information provided to me concerning the Wildflower
Ridge land development, it is my opinion that the developer has violated both
the Twp's zoning and subdivision /land development ordinances (SALDO) by
proceeding as far as he had without final plan approval.
Section 301 of the SALDO provides that "no land development can occur
without a final land development plan being uly approved accordance
with this Ordinance and recorded with the -Lancaster m ancaster County Recorder of
Deeds ". The developer has not recorded a final plan and cannot do so until
he satisfies one of the 2 conditions set forth in Section 501 of the SALDO.
He must either complete the public improvements, i.e. streets, curbs,
sidewalks etc., or in lieu of completing them, he must post financial security
in an amount sufficient to cover the costs of such improvements. The
developer has done neither of these two requirements. There is no third
alternative.
The Zoning Ordinance in Section 1903 requires the applicant for a building
permit to provide "such information as may be necessary to determine
compliance with this Ordinance and all other codes and ordinances." This
requires the applicant for a permit to provide the Zoning Officer with the
information confirming final approval of his subdivision /land development
plan. Because there has been no final plan approval, the applicant could not
have provided this information, and he therefore obtained building permits
improperly.
At this stage of the process, the Township has the right to revoke the building
permits and all use and occupancy permits, if any, that have been issued, if
the developer fails to post the necessary security or complete the public
improvements. All future permits should be withheld until one or the other is
completed by the developer.
As far as phasing of the development is concerned, the SALDO requires that
final approval as it applies to each phase can be pursued by the developer.
In this case, it seems as though the developer has not obtained final
approval for any of the phases, and is therefore in violation of the SALDO."
Gross forwarded Solicitor Mincarelli's response to Supervisor Joe Shriver on
January 30, 2012.
47. Between February 1, 2012, and March 3, 2012, Zimmerman participated in the
following email exchanges with Township officials addressing questions and /or
concerns relating to final approvals of Wildflower Ridge and advocating that the plan
should move forward.
February 1, 2012, 10:36 a.m. Zimmerman to Gross:
Good Morning Connie, Mervin Martin says the subdivision plan for Wildflower
needs to be signed by Terre Hill Borough and East Earl Township then filed
with the County which finishes the subdivision. Then he can and will sign a
Storm Water Management Agreement and Declaration of Easement for Non -
Dedicated Facilities. The 10 acres that will be part of Wildflower is coming
off of a 37 -acre tract owned by Michael and Linda Martin. The remainder of
the 37 acre tract will remain a farm and stay in Michael and Linda Martin's
name. He says until the plan is filed there is no deed for the 10 acres, which
a deed number is required on the agreement. Also no bank will release
monies without a deed. Unlike most subdivisions this 10 acres of land was
not subdivided off the 37 acre farm prior to laying out and approving the
development. The way it was done was perfectly fine except now it has to be
Zimmerman, 15 -002
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filed to finish the subdivision. There are 3 additional acres that are part of
the Wildflower subdivision which are in Mervin Martin's name. The
development is 13 acres in size. I'm not concerned about this agreement not
getting signed. Mervin is not a big time developer like Keystone that it out to
take advantage of the Township. Also we have the power to hold u building
permits and occupancy permits if we do not get what we need. Terre Hill
Borough wants this development to start so they can sell sewer and water
EDU's. East Earl could use the tax base as well. Thanks, Dave Z.
b. February 1, 2012,11:43 a.m., Gross to Zimmerman with copy to Supervisors
Kreider and Shriver.
Dave,
The plan cannot be released for recording until the outstanding items are
addressed. They never followed through in providing fee in lieu of that they
indicated they would do instead of dedicating park and open space fee. The
opinion of probable cost for improvements was never reviewed by ELA and a
recommendation on this received from ELA, and the Storm Water
Agreement is supposed to be reviewed and approved by Frank before final
plan approval. A copy of the outstanding items, information from Frank
relative to this and copies of the latest review letters (2009) are in your BOS
file for your review.
C. At the time of the email exchange with Gross, Zimmerman's brother, Ivan
Zimmerman, had a financial interest in the Wildflower Ridge development.
48. The Board of Supervisors took action during its February 9, 2012, meeting with
Zimmerman participating on all of the outstanding items that needed to be
addressed before the Wildflower Ridge plan could proceed. Items listed as needing
to be completed were identified as follows:
a. "Receiving ELA's review comments, a signed storm water ownership and
maintenance agreement, submission of the $131,527.00 improvement
guarantee, recording of the Storm Water Discharge agreement with
downstream property owners and addressing the dedication of land for park
and open space or fee in lieu of, along with any issues raised by EL.A's
review letter."
1. ELA was the Township Engineer overseeing the project.
b. The Board, with Zimmerman participating; unanimously voted that the plan
could proceed once all outstanding items were completed.
C. At this time Zimmerman was not a named member of Wildflower Ridge LLC,
however, his brother was an owner in the corporation.
49. On February 10, 2012, Connie Gross informed the Board of Supervisors via email
that Mervin Martin had provided a signed and notarized Storm Water Management
plan.
a. Gross advised that no escrow was provided and questioned who determines
fees.
b. Gross also forwarded a February 10, 2012, email from Roger Fry to George
Smith responding to comments in ELA review of April 16, 2009.
C. Fry's email provided responses to the comments in the ELA review.
Zimmerman, 15 -002
Page
Wavers:
A -E — Note 48 acknowledges the waiver approvals.
F —A note has been added to the fence detail on Sheet 7 requiring approval
of proposed fencing by East Earl Township prior to installation.
Subdivision & Land Development:
Numbers 1 &2 are completed orwill be when plans are released by East Earl
Township for recording.
Number 3 — Developer will pay a fee in lieu of land.
Number 4 — Terre Hill signed the plans after approval of utilities. A letter
should be available, if required.
Number 5 — A note has been added to the detail on Sheet 5 requiring
approval of detectable warning design by East Earl Township prior to
installation.
Number 6 — East Earl Township approved the roadway width as proposed.
Number 7 — Overlay of Red Run Road is completed,
Number 8 — The developer has completed an Improvement Guarantee and
will deliver to East Earl Township prior to release of the plan.
Storm Water Management:
Number 1 — The developer has completed an Ownership and Maintenance
Agreement and will deliver to East Earl Township prior to release of
the plan.
Number 2 — Per our conversation, this item has been satisfied.
Number 3 — The agreement with the downstream owner is signed and
notarized and ready to be recorded.
Number 4 — A complete plan set, including PCSWM plans will be delivered
to East Earl Township as soon as plans are recorded.
General:
Numbers 1 -4 —All items have been addressed.
50. Gross' February 1, 2012, email referenced a fee in lieu of park/open space which
needed to be determined for the project.
a. On or about February 27, 2012, Zimmerman, in his capacity as Chairman of
the East Earl Township Board of Supervisors, submitted a handwritten
request to Solicitor Mincarelli to determine a fee in lieu of park/open space
for the Wildflower Ridge project.
b. Solicitor Mincarelli had not previously ever been requested to determine such
a fee since the fee in lieu ordinance was only relatively recently adopted.
1. Such fees are typically determined by the Township engineer.
51. Between February 27, 2012, and March 3, 2012, Solicitor Mincarelli and
Zimmerman engaged in a series of emails regarding Zimmerman's fee in lieu of
request on behalf of the Wildflower Ridge project.
a. The fee in lieu ordinance was new to the Township.
b. Zimmerman's emails to Mincarelli sought waivers on behalf of Wildflower
Ridge of the provisions of the Township resolutions as it relates to the
requirement of payment of the full in lieu fee prior to recording of the final
phase of the project.
Zimmerman, 15 -002
Page 18
Zimmerman directs Mincarelli to draft a new resolution to enable the
lesser payment.
2. Township Ordinance 139, as amended by Resolution 12 -2007,
established guidelines for calculating open space fees.
C. At the time of these email exchanges, Zimmerman did not advise the Board
or the Solicitor of his brother's financial interest in the Wildflower Ridge
project.
d. Zimmerman emailed Mincarelli on behalf of Wildflower Ridge without
consulting any other Member of the Board of Supervisors.
e. Zimmerman never advised the Board of his plans to amend resolutions in
favor of the Wildflower Ridge developers.
52. The texts of the Zimmerman and Mincarelli emails are as follows:
a. February 27, 2012
Dave,
Per your request, I have prepared the formula for computing the fee in lieu of
dedication owed by Michael H. Martin, owner of the 36.3 acre tract being
developed by Mervin Martin. I understand that the residential subdivision will
consist of 51 single family dwellings. That number of units will require the
dedication of 260,100 sq ft (51 x 1,500 sq ft) of land per the ELANCO
Regional Plan. That equates to 5.97 acres of land to be dedicated. I do not
have the fair market value of an acre of land so I can not compute the actual
dollar amount of the fee in lieu of dedication. The property owner is
responsible for providing the township with an appraisal that will set forth the
fair market value of an acre of land in the subdivision. If the township is not
satisfied with the appraisal, it can obtain its own appraisal and the 2 shall be
averaged. Note: if Mervin Martin has purchased or is in the process of
purchasing the tract from Michael Martin, then the purchase price being paid
y Mervin can be used to determine the fair market value of an acre,
assuming it is an arm's length transaction and not a family transaction with
an undervalued price.
I will provide you with a written formula for future calculations of the amount of
land dedicated or the fee in lieu of dedication. Since the fee has to be paid
PRIOR TO THE RECORDING OF EACH FINAL_ PHASE OF THE PLAN,
there is no need to have an agreement with the developer, as the township
will not sign the mylars for the plan unless the fee is paid: If the project is
being phased, then you can pro rate the fee by phases, using the number of
units in each phase and the % it bears to the total # of units, i.e. 51. As the
final plan for each phase must be recorded, you can withhold signing the
mylar for each phase until such time as that portion of the fee is paid.
If the board would prefer to have an agreement in any case, then I can
prepare one for your use. When you obtain an appraisal from the developer,
I will be happy to compute the fee due from him. Until we have an appraisal
that the supervisors are satisfied with, we can not calculate the fee. Frank
b. February 27, 2012, 2:06 p.m. Zimmerman to Solicitor Mincarelli:
Hello Frank, Mervin Martin bought 10 acres off of the Michael Martin farm.
He is having an appraisal done which he says will be here today or
Zimmerman, 15 -002
ag�F_-
tomorrow. He wants to pay with each building permit which is also what
Lancaster County Economic Development is asking for on a future East Earl
project. With this in mind could you draft a sample agreement like this.
Thanks, Dave Z.
C. February 27, 2012, 2:28 p.m. Solicitor Mincarelli to Zimmerman, with a copy
to Connie Gross and Supervisors Earl Kreider and Joe Shriver:
Dave,
How many units is Mervin planning on putting on the 10 acre tract? It is the
51 that you mentioned at our meeting?
How much did he pay for the 10 acres? The purchase price for the acreage
is the best gauge of the property's fair market value, if the purchase was an
arm's length purchase. If so, he may not need an appraisal. If he gets one,
we can compare the price paid for the land to the appraised value.
As far as paying the "dedication in lieu fee" with each building permit, the
BOS will have to first waive the provisions of its resolution as it requires
payment of the full fee prior to the recording of the final plan, or if done in
phases, payment of a prorated portion of the fee prior to recording each final
phase of the plan. There is no provision for payment of a portion of the fee
with each building permit. You should inform the EDC that it will not be able
to pay on per permit basis either without the supervisors either waving their
resolution or amending it to allow for portion payment of the fee. If the BOS
decided to waive it or amend the resolution to allow it, then you would need
some form of agreement to bind the developer. If you keep the language as
it is today in the resolution, then none is needed for the reasons I cited in my
earlier email. Before preparing an agreement that can be used for this, I will
wait to hear how the board wants to handle the matter. Frank
d. February 28, 2012, 6:43 a.m., Zimmerman to Solicitor Mincarelli:
Good Morning Frank, Could you prepare a new resolution or an amendment
and a draft agreement to pay with each permit. We will have a special Board
meeting next week which we could take action. I believe EDC is planning on
this on their project. Also this way Mervin could get started which would help
create jobs. Mervin is putting 5 singles, 14 duplexes and 32 towns on ten
acres. A total of 51 units. I will get the appraised information to you as soon
as I have it. Dave Z.
e. February 28, 2012, 10:36 a.m., Solicitor Mincarelli to Zimmerman:
Dave,
The records at the courthouse do not show Mervin as having acquired 10
acres from Michael Martin, nor is there a sub plan on record creatorg a 10
acre lot. In that case, I must assume that Michael is the owner, not Mervin,
and that Mervin is merely acting as the builder for Michael. That means that
Michael will have to be the party committing to pay the fee in lieu of
dedication, not Mervin. It also means that the deed restriction will cover the
entire 36 acre tract unless Michael's subdivision plan is recording creating
the 10 acre lot prior to the recording of the agreement. I presume that
Mervin will then file a land development plan for the 10 acre lot created by
Michael in which he subdivides it further. As I indicated, this will be a
somewhat complex agreement. Frank
Zimmerman, 15 -002
ag—e —
February 28, 2012, 12: 43 p.m., Zimmerman to Solicitor Mincarelli:
Frank, The way I understand from Mervin Martin and Roger Fry is that Roger
did the complete 51 lot subdivision on the Michael Martin propert . When
the mylars are filed the subdivision will be completed. I will talk with Roger
and Mervin again, perhaps they want the fee in lieu done different if it is a
real complex agreement. The first phase that ELA provided an escrow
amount only gets to the first 7 lots. EDC wants to do something similar to
this with the Geist farm. They want to have the owners maintain ownership
and partner with them until the project is complete. Also in conversation with
Roger Fry, he says this is the normal today. Thanks, Dave Z.
February 28, 2012, 1:01 p.m., Solicitor Mincarelli to Zimmerman, copy to
Connie Gross, Earl Kreider and Joe Shriver:
Dave,
I am not following your email very well. I was under the impression that
Mervin bought a 0 -acre portion of the 36 -acre Michael Martin tract. That
does not appear to be the case, now. It appears as though a sub plan has
been prepared for the creation of 51 lots on either 10 acres or 36 acres of
the Michael Martin tract, I don't know which, but then you refer to an escrow
for the first phase in which ELA provided an escrow for 7 lots.
Maybe the best way to proceed would be to get me a copy of the sub plan
that has been submitted for final approval, then I will be able to determine
what is happening. In any event, the agreement for payment of the fees will
have to be entered into with the landowner, Michael Martin, as it will be
recorded as a deed restriction against his land. As for the EDC project, that
too will have to have an agreement with the property owners if the township
is not going to require payment of the "in lieu of" fee before signing the
mylars and allowing the subdivision to proceed.
Certainly, the easiest way to ensure payment of the fee, is to require it to be
paid before signing the mylars. That is what is most commonly done. That
does not mean you can't adjust the arrangement, it only means that you
need to have an agreement with the landowner, not the builder, that will
place a form of deed restriction on the property subjecting it to payment of
the fee. The agreement will address the other issues that come into play if
the fee is not aid and how the 3 year limit applies if the fee is to be paid as
permits are lifted. Frank.
March 1, 2012, 4:26 p.m., Zimmerman to Solicitor Mincarelli:
Hello Frank, I had some conversation with BOS members and Connie.
Since the fee in lieu needs to be used adjacent to a project, we are no longer
sure we want to request this. If we do not then there will be no need for an
agreement with the property owner of Wildflower. I'll be back in touch, Dave
March 2, 2012, 9:39 a.m., Solicitor Mincarelli to Zimmerman, copy to Connie
Gross, Earl Kreider and Joe Shriver:
Dave,
I want to clarifX- one aspect of your email: the fee in lieu does not need to be
used on an ' adjacent" site; it must, however, be used "for purpose of
providing park or recreational facilities ACCECSSIBLE to the development."
Zimmerman, 15 -002
Page 21
No definition has been provided in the MPC for the word "accessible" but I
am certain that it will not require the park or facilities to be necessary be
adjacent to the development. The courts will have to interpret what the
legislature had in mind, but its common meaning is "easily obtainable" so I
would think that as long as residents can walk to the park or the facilities,
they will be considered accessible.
On a related note, the MPC also requires that any township imposing public
dedication of land requirements on residential developers must have a
"formally adopted recreation plan" in place. I don't know if the twp has one,
so I thought I ought to point this out. If you do, send me a copy for future
reference. Thank you. Frank
March 20, 2012 1:55 p.m., Solicitor Mincarelli to Zimmerman:
"Dave, based on the appraisal $34,500 per acre in this development. The
total fee in lieu of dedication parcel open space is $60,582. 1 arrived at that
figure by multi lying 51 (the total number of units in the development) by
1,500 square feet (the area required for each unit). The resulting figure of
76,500 square feet was then divided by 43,560 square feet to determine the
number of acres required for dedication to open space. That results in a
total of 1.756 acres to be dedicated to park/open space. The payment in lieu
of dedication would be the value of an acre ($34,500) multiplied by the
number of acres to be dedicated (1.756) for a total fee in lieu of dedication in
the amount of $60,582.00. If this is a phased development with final plans
recorded for each phase, then the developer will need to make payment of
13.725% of the total fee, or $8,315.18 before Phase 1 plan is recorded, as
the seven lots in PH 1 is 13.725% of the 51 lot total. Let me know if you
have any follow up questions on this. Frank"
53. On February 29, 2012, at 8:11 p.m., Supervisor Joe Shriver forwarded an email to
Zimmerman questioning Zimmerman's direction to Solicitor Mincarelli to change the
Township resolution for the benefit of Wildflower Ridge.
a. The text of Shriver's email is as follows:
Dave,
I do not recall the board approval for Frank to work on alternate resolution or
amendment for this. Also I have not seen any such type of from other
municipalities. This appears to be rather complicated and difficult to
administer. I would want to see samples from others and Frank and Shaun's
opinion of how they are working before we proceed.
I know your trying very hard for some reason to help these projects move
forward with some shortcuts that the board has not approved. Brining ideas
and suggestions from LCPC is great, but we must have due diligence before
adopting new ideas. We must be very careful not to set a precedent.
Joe
54. On March 2, 2012, at 7:08 p.m., Supervisor Shriver again emails Supervisor Kreider
questioning the actions of Zimmerman.
a. The email questions Zimmerman's March 1, 2012, email to Mincarelli (see,
Fact Finding No. 52 h) which asserts that Zimmerman discussed the f6-e- Jn
lieu with the Board and Secretary Gross.
b. Shriver inquires if Zimmerman spoke to Kreider.
Zimmerman, 15 -002
Page
G. Shriver's email includes the following:
Earl,
In Dave's note to Frank he makes the statement "Hello Frank, I had some
conversation with BOS members and Connie ". Dave did not speak to me
about this, did he speak to you? Dave has not spoken to me on any of the
latest issues of Wildflower. These kind of statements are very disappointing.
Joe
55. Supervisor Kreider responded to Supervisor Shriver on March 3, 2012, at 5 :59 a.m.
advising that he never spoke to Zimmerman.
a. Kreider's email included the following:
Joe,
No, Dave did not speak to me about this matter. He may have talked with
Connie about it in the last day or two; but not with me. She knows how I feel
about lowering the bar for these Wildflower peoplel I believe he got your
message about changing Resolution No. 12 -2007. It was "HIS" idea not the
"BOS!"
Thanks!
Earl
56. In 2012, Zimmerman also took an active role as an East Earl Township Supervisor
to approve the storm water management agreements that had been one of the
delays in the final approval of Wildflower Ridge.
a. On February 10, 2012, Zimmerman signed the Stormwater Management
Agreement between Wildflower, LLC and the Township.
1. Zimmerman signed this document in his official capacity as an East
Earl Township Supervisor.
2. No other Township officials signed this agreement, thouggh it was not
unusual for David Zimmerman to sign Stormwater Mana ement
agreements, as he was the only Supervisor who also served as an
employee of the Township.
b. This agreement related to a 12.5 -acre tract located along Red Run Road
shown on a subdivision and/or land development plan prepared by Fry
Surveying, Inc., drawing No. 18- 94 -07 -D dated May 27, 2008, last revised on
August 23, 2011.
C. This agreement was also signed by Mervin M. Martin, Managing Partner of
Wildflower, LLC.
d. The signed agreement was returned to Solicitor Mincarelli's office for filing
with the Lancaster County Recorder of Deeds Office.
e. This agreement was filed with the Lancaster County Recorder of Deeds
Office on February 27, 2012, Instrument #5981804.
f. The protect could not have continued without this approval and filing with the
Lancaster County Recorder of Deeds.
Zimmerman, 15-002
ag�3—
57. On February 10, 2012, when [Zimmerman] signed the Stormwater Management
Agreement, Zimmerman's brother had a financial interest in the Wildflower Ridge
project.
a. Zimmerman never disclosed to any Township official his brother's financial
interest in the Wildflower Ridge project.
b. Although not a named partner, Zimmerman himself was still owed monies [at
this time] from the prior sale of his financial interests....
58. Final project drawings included signed approvals from the East Earl Township
Board of Supervisors, East Earl Township Planning Commission, Terre Hill Borough
Planning Commission and Terre Hill Borough Council.
a. Terre Hill Borough officials also signed final project drawings since a portion
of the project was located within the geographical boundaries of the
Borough.
b. Approval from the East Earl Township Planning Commission was given on
April 7, 2009.
This approval was advisory in nature and non - binding.
59. The East Earl Township Board of Supervisors approved the Wildflower Project
plans on February 14, 2012.
a. These plans were signed by all three (3) Supervisors, including Zimmerman
as Chairman of the Board.
60. During the Board's February 14, 2012, meeting, Zimmerman participated in Board
actions approving matters related to the Wildflower Ridge project including the
release of credit escrow agreements and storm water management plans as
follows, which enabled the project to proceed. Minutes of the meeting confirm the
following:
a. "Supervisor Shriver moved to release $12,270.01 of the letter of credit for
Wildflower Ridge Phase 1 as recommended by ELA, seconded by
Supervisor Kreider and carried unanimously."
b. "Supervisor Shriver moved to accept ELA's recommendation of improvement
guarantee escrow at $131,527.00 for Wildflower Ridge Phase 2, seconded
by Supervisor Kreider and carried unanimously."
C. Supervisor Shriver moved to accept and sign the storm water management
agreement and declaration of easement from Wildflower LLC, near Terre Hill
Borough, seconded by Supervisor Kreider and carried unanimously."
d. It was agreed by the Board during the meeting that engineer Roger Fry
would follow through on getting the downstream storm water discharge
easement recorded.
e. The Board also discussed the remaining issues needing Board approval
including fee in lieu of for park and open space based on Township
Resolution 12 -2007 formula, receipt of verification that the storm water
discharge easement was recorded and receipt of the improvement
guarantee.
Zimmerman, 15 -002
Page 4
The final approval of the Wildflower plan would be considered when
all outstanding issues are fulfilled.
Supervisors David H. Zimmerman, Joseph Shriver and Earl Kreider were all
in attendance at this meeting.
61. On February 23, 2012, Zimmerman filed a Storm Water Discharge Easement
Agreement dated June 30, 2009, between Michael H. Martin & Linda H. Martin and
James W. Martin & Catherine B. Martin with the Lancaster County Recorder of
Deeds Office.
a. This agreement was filed with the Lancaster County Recorder of Deeds
Office, Instrument #5981512.
b. This agreement references the Subdivision Plan prepared by Fry Surveying,
Inc. and authorizes the discharge of stormwater into an existing swale
located on property owned by James W. Martin & Catherine B. Martin.
C. This agreement was required by East Earl Township to be filed with the
Lancaster County Recorder of Deeds Office as part of the outstanding issues
needing to be resolved before the plan could be finalized.
d. It was the responsibility of the Wildflower Ridge developers to file the
agreement with Lancaster County.
It appeared that at all times relevant Mervin Martin was the partner
handling this issue.
62. On March 20, 2012, Solicitor Mincarelli sent the following email to David
Zimmerman explaining his methodology used for determining the open space fee
for the Wildflower Ridge development.
Dave,
Based upon the appraisal of $34,500 per acre in this development, the total fee in
lieu of dedicating park or open space is $60,582. 1 arrived at that figure by
multiplying 51 (the total # of units in the development) b 1500 sq ft the area
requird fr each unit). The resulting figure of 76,500 sq ft is then divided (the
sq ft to determine the number of acres required for dedication to open space. That
results in a total of 1.756 acres to be dedicated to park /open space. The payment
in lieu of dedication would be the value of an acre ($34,500) multiplied by the # of
acres to be dedicated (1.756) for a total fee in lieu of dedication in the amount of
$60,582. If this is a phased development with final plans recorded for each phase,
then the developer will need to make payment of 13.725% of the total fee, or
$8,315.18 before the Phase 1 plan is recorded, as 7 lots in Ph 1 is 13.725% of the
51 lot total. Let me know if you have any follow up questions on this. Frank"
a. The $34,500.00 appraisal fee per acre was provided to Mincarelli by David
Zimmerman.
63. Solicitor Mincarelli determined that the total open space fee due for fifty -one (51)
units would be $60,582.00.
a. Since the project was being done in phases, he determined that the fee due
for Phase I was $8,315.16 which included seven (7) of the proposed fifty -one
(51) lots.
Zimmerman, 15 -002
Page 25
b. The $8,315.16 open space fee was paid by Mervin M. Martin on March 3,
2012.
64. On April 3, 2012, Mervin Martin forwarded a check to the Township in the amount of
$8,315.00 representing the fee in lieu of park and open space.
a. Township Manager Connie Gross noted in the project file "all outstanding
issues have been met" as of April 3, 2012.
b. No Board action was recorded confirming the payment or that outstanding
issues had been resolved.
65. On April 5, 2012, the final project plans for Wildflower Ridge were filed with the
Lancaster County Recorder of Deeds Office, Instrument # 2012 - 0070 -5.
a. This filing permitted construction of the project to continue.
66. After the final project plans were filed within the County, settlement between
Michael H. Martin and his wife Linda H. Martin ellers) and Mervin M. Martin and
(s
David Zimmerman (buyers) occurred on April 1 , 2012.
a. At settlement, the 10 -acre parcel is identified as being transferred by Michael
and Linda Martin record owner) to Mervin M. Martin and David Zimmerman
(equitable owners to Wildflower, LLC.
b. Zimmerman was present at settlement and provided the sellers (Michael and
Linda Martin) with a check in the amount of $25,000.00 which represented
his share of the outstanding balance owed on the property.
67. At settlement, David H. Zimmerman signed the deed transferring his ownership
interest in the 10 -acre tract to Wildflower, LLC, as an equity owner of the property.
a. Signatures on the HUD -1 settlement sheet include the names of Mervin M.
Martin, Stephen J. Martin, Ivan H. Zimmerman and David H. Esh, as
Members of Wildflower, LLC.
b. David H. Zimmerman did not sign the HUD -1 settlement sheet.
68. Between 2006 and 2012, when the final plans for Wildflower Ridge were reviewed
and approved by the Township, Zimmerman's relationship to the development plan
was not made known to the other two (2) Supervisors.
a. Zimmerman never disclosed to the Board that he had a financial interest in
Wildflower Ridge at any time during the Township's review and approval of
the plan.
b. Zimmerman never disclosed to the Board that his brother had a 25% interest
in Wildflower Ridge.
C. Supervisors Kreider and Shriver only became aware of Zimmerman's
financial interest in the plan when a real estate transfer appeared in the local
newspaper which included David H. Zimmerman's name.
d. Zimmerman confirmed to Kreider that he was involved in the Wildflower
Ridge plan but that he was no longer involved.
e. After August 2010, Zimmerman had no interest in Wildflower Ridge, LLC.
Zimmerman, 15 -002
Page 26
69. Construction began on the approved Wildflower Ridge Project by or about the
summer of 2012.
a. Deed records on file with the Lancaster County Recorder of Deeds reflect
Wildflower, LLC has sold 12 properties between January 11, 2013, and
December 23, 2014.
b. Recorded sale prices for these properties ranged from $168,000 to
$196,000.
C. Since 2013, Wildflower, LLC has received gross income of approximately
$2,083,390.00 from the sale of these twelve (12) properties, all part of the
Wildflower Ridge Development.
70. Between January 12, 2007, and December 27, 2014, when the Wildflower Ridge
plan was being reviewed and a roved by the East Earl Township Board of
Supervisors, Zimmerman made 34 payments totaling $198,016.35 to Mervin M.
Martin individually and/or d /b /a Countryside Builders.
a. These payments represented payments for Zimmerman`s share, as a
partner, of the acquisition costs and site improvements to the Wildflower
project.
b. Zimmerman made thirty -one (31) payments totaling $191,997.28 from
various PNC accounts.
1. Four (4) payments totaling $10,452.91 were made to Mervin M.
Martin.
2. Twenty -seven payments totaling $181,544.37 were made to
Countryside Builders.
C. Zimmerman also made three (3) payments totaling $6,019.07 to Mervin M.
Martin from Bank of Bird-in-Nand account ending in number [number
redacted].
d. Between August 11, 2011, and March 5, 2014, Zimmerman received eight
(8) payments totaling $5,979.76 from Countryside Builders as reimbursement
for protect costs he paid.
71. During 2012, while he was initiating actions as an East Earl Township Supervisor to
advance the final approval for the Wildflower Ridge project, Zimmerman was
making payments toward lines of credit and loans for the project.
72. Zimmerman made payments from PNC accounts he controlled to the HomeTowne
Heritage Bank ($750,000.00 loan /credit line):
01/05/12
119
$557.02
01/30/12
122
$557.03
03/04/12
126
$521.09
04/04/12
134
$206.46
04/17/12
137
$557.03
04/17/12
136
$557.03
05/04/12
140
$539.05
06/04/12
458
$494.34
Zimmerman, 15 -002
Page e 27
07/01/12
468
$139.22
08/07/12
479
$95.03
08/07/12
480
$22,925.11
10/01/12
512
$96.63
05/02/13
400
$27,245.04
73. Zimmerman made payments from PNC accounts to Anabaptist Financial toward the
Mervin Martin $300,000.00 loan in 2012 while participating in the final approvals for
the project and continued making payments in 20 [2.
Date Check # Amount
01/05/12 120 $625.00
02/01/12 121 $625.00
03/04/12 125 $625.00
04/02/12 133 $625.00
04/30/12 139 $625.00
06/04/12 459 $625.00
08/04/12 478 $625.00
09/21/12 299 $625.00
11/01/12 380 $625.00
12/01/12 381 $625.00
$6,250.00
01/01/13
128
$625.00
01/30/13
493
$625.00
02/28/13
494
$625.00
03/28/13
391
$625.00
05/02/13
400
$625.00
06/03/13
601
$625.00
07/01/13
607
$625.00
08/02/13
611
$625.00
09/04/13
628
$625.00
10/01/13
615
$625.00
11/05/13
616
$625.00
12/03/13
621
$625.00
$7,500.00
02/28/15 739 $625.00
04/01/15 774 $625.00
$1,250.00
74. Zimmerman also made payments toward Anabaptist Financial /Stewardship
Resources and from the Bank of Bird -in -Hand after using his position to approve the
final approvals for the Wildflower project.
Date
Check #
Amount
12/28/13
131
$625.00
Zimmerman, 15 -002
age_.... e—Zg--
75. Zimmerman began receiving payments from Stephen Martin d /b /a Cornerstone
Excavating in December 2012 as homes in the Wildflower Ridge development were
completed and sold.
a. The checks represented payment for David Zimmerman's 12.5% interest in
the Wildflower Ridge project.
76. Zimmerman received his first loan payment from Stephen J. Martin d /b /a
Cornerstone Excavating, in the amount of $39,062.50, on December 29, 2012.
a. Zimmerman received approximately seven (7) payments totaling $81,195.25
from Stephen J. Martin individually and/or d /b /a Cornerstone Excavating
between December 29, 2012, and January a, 2015.
b. The payments were required as part of an installment agreement entered
into in 2010 by David Zimmerman and Stephen Martin.
C. The agreement re uired payments in 2010 and 2011, but Martin withheld
these payments unil the Wildflower Ridge project was approved and homes
were built and sold.
d. Evidence suggests David Zimmerman was not involved in the land
development efforts of Wildflower Ridge LLC after August 2010.
The following findings relate to allegations that Zimmerman failed to file
complete and accurate Statement of Financial Interests ( "SFI ") forms in
connection with his service as a Supervisor for East Earl Township.
$625.00
01/06/14
132
$30,000.00
02/07/14
140
$625.00
03/01/14
141
$625.00
04/01/14
150
$625.00
04/28/14
156
$625.00
06/01/14
158
$625.00
06/26/14
161
$625.00
08/04/14
164
$625.00
08/28/14
191
$625.00
09/30/14
167
$625.00
10/31/14
171
$625.00
11/28/14
173
$625.00
12/27/14
173
$625.00
12127114
179
$625.00
$38,125.00
02/04/15
182
$625.00
$625.00
75. Zimmerman began receiving payments from Stephen Martin d /b /a Cornerstone
Excavating in December 2012 as homes in the Wildflower Ridge development were
completed and sold.
a. The checks represented payment for David Zimmerman's 12.5% interest in
the Wildflower Ridge project.
76. Zimmerman received his first loan payment from Stephen J. Martin d /b /a
Cornerstone Excavating, in the amount of $39,062.50, on December 29, 2012.
a. Zimmerman received approximately seven (7) payments totaling $81,195.25
from Stephen J. Martin individually and/or d /b /a Cornerstone Excavating
between December 29, 2012, and January a, 2015.
b. The payments were required as part of an installment agreement entered
into in 2010 by David Zimmerman and Stephen Martin.
C. The agreement re uired payments in 2010 and 2011, but Martin withheld
these payments unil the Wildflower Ridge project was approved and homes
were built and sold.
d. Evidence suggests David Zimmerman was not involved in the land
development efforts of Wildflower Ridge LLC after August 2010.
The following findings relate to allegations that Zimmerman failed to file
complete and accurate Statement of Financial Interests ( "SFI ") forms in
connection with his service as a Supervisor for East Earl Township.
Zimmerman, 15 -002
Page e 9
77. Zimmerman, in his official capacity as a Member of the East Earl Township Board of
Supervisors, was annually required to file an SFI form by May 15t reporting
information for the prior calendar year.
78. Each January Township Secretary/Treasurer Connie Gross distributes blank SFI
forms to East Earl Township officials to complete.
Completed SFl forms are maintained by her as part of the Township's
general course of business.
79. SFI forms were filed by David Zimmerman with East Earl Township and the State
Ethics Commission for calendar years 2009 through 2014:
David Zimmerman filed with the State Ethics Commission as a candidate for
the House of Representatives and as an incumbent House Member.
Calendar year: 2014
Dated: February 28, 2015, on form SECA REV 01115
Position: Former East Earl Township Supervisor, Lancaster County Planning
Commission, Current State Representative
Occupation: Roadmaster, Assistant Secretary/Treasurer, Storm Water
Specialist, State Representative
Real Estate Interests: None
Creditors: PNC Bank, 2.37 %; Bank of Bird -in -Hand
Direct/indirect sources of income: East Earl Township, State Representative
Office, directorship or employment in any business: Sharon Programs,
Chairman
Financial Interest in any business: Precision Diagnostics, LLC, 25 %;
Oldtown, LLC, Partner, 50 %; Family Dairy Farms, LLC, 25 %, Partner
All other financial interests: None
Filed by David H. Zimmerman, as a candidate for the Pennsylvania House of
Representatives, 99th District with the State Ethics Commission on March 6,
2014.
Calendar year: 2013
Dated: March 4, 2014, on form SEC -1 Rev. 01114
Position: East Earl Township Supervisor, Candidate General Assembly,
Lancaster County Planning Commission
Occupation: Roadmaster, Assistant Secretary/Treasurer, Storm Water
Specialist
Real estate interests: 557 Centre Avenue, Reading, PA 19601
Creditors: PNC Bank, 2.37%
Direct/indirect sources of income; East Earl Township, Sheldon Zimmerman,
Sharon Plank, Chantal Plank, Norman L. Graham, Inc., Cornerstone
Excavating, LLC, Sharon Programs
Office, directorship or employment in any business: Sharon Programs,
Chairman
Financial Interest in any business: Precision Diagnostics, LLC, 25 %;
Oldtown, LLC, Partner, 50 %; Family Dairy Farms, LLC, 25 %, Partner
All other financial interests: None
G. Calendar year: 2013
Dated: March 4, 2014, on form SEC -1 Rev. 01114
Position: East Earl Township Supervisor, Candidate General Assembly,
Lancaster County Planning Commission
Occupation: Roadmaster, Assistant Secretary/Treasurer, Storm Water
Specialist
Zimmerman, 15 -002
Page
Real estate interests: 557 Centre Avenue, Reading, PA 19601
Creditors: PNC Bank, 2.37%
Direct/indirect sources of income: East Earl Township, Sheldon Zimmerman,
Sharon Plank, Chantal Plank, Norman L. Graham, Inc., Cornerstone
Excavating, LLC, Sharon Programs
Office, directorship or employment in any business: Sharon Programs,
Chairman
Financial Interest in any business: Precision Diagnostics, LLC, 25 %;
Oldtown, LLC, Partner, 50 %; Family Dairy Farms, LLC, 25 %, Partner
All other financial interests: None
Calendar year: 2012
Dated: March 6, 2013, on form SEC -1 Rev. 01111
Position: East Earl Township Supervisor, Lancaster County Planning
Commission
Occupation: Roadmaster, Assistant Secretary/Treasurer, Storm Water
Specialist
Real estate interests: 557 Centre Avenue, Reading, PA
Creditors: PNC Bank, 2.37%
Direct/indirect sources of income: East Earl Township
Office, directorship or employment in any business: None
Financial Interest in any business: Precision Diagnostics, LLC, 25 %,
Partner; Old Town, LLC, Partner, 50%
All other financial interests: None
e. Calendar year: 2011
Dated: January 1, 2012, on form SEC -1 Rev. 01112
Position: Township Supervisor
Occupation /Profession: Roadmaster, Assistant Secretary/Treasurer, Storm
Water Specialist
Creditors: Hometown Heritage Bank, no rate listed
Directlindirect sources of income: East Earl Township,
Office, directorship or employment in any business: East Earl Township
Financial Interest in any business: Precision Diagnostics, LLC, 25 %, Partner
All other financial interests: None
Calendar Year: 2010
Dated: 03126111 on form SECA REV. 01111
Position: East Earl Township Supervisor
Creditors: HomeTowne Heritage Bank
Directlindirect Income: East Earl Township
Office, Directorship, or Employment in any Business: East Earl Township
Financial Interest in any Business: Precision Diagnostics, LLC; Partner
All Other Financial Interests: None
g. Calendar Year: 2009
Dated: 02/09/10 on form SEC -1 REV. 01110
Position: Township Supervisor
Creditors: HomeTowne Heritage Bank
Direct/indirect Income: East Earl Township
Office, Directorship, or Employment in any Business: East Earl Township
Financial Interest in any Business: Precision Diagnostics, LLC; Partner
All Other Financial Interests: None
80. Zimmerman failed to report all direct /indirect sources of income in excess of
$1,300.00 on SFI forms filed for calendar years 2009 through 2014.
Zimmerman, 15 -O02
Page
a. Zimmerman failed to report $203,937.50 in income received from Ivan H.
Zimmerman on his SFI filed for the 2009 calendar year.
b. Zimmerman failed to report $1,619.81 in income received from Countryside
Builders and $5,250.00 received from Ivan H. Zimmerman on his SFI filed for
the 2010 calendar year.
C. Zimmerman failed to report $23,587.50 in income received from Ivan H.
Zimmerman on his SFI filed for the 2011 calendar year.
d. Zimmerman failed to report $132,970.00 in income received from Ivan H.
Zimmerman, $1,671.46 received from Countryside Builders, and $39,062.50
received from Cornerstone Excavating on his SFI filed for the 2012 calendar
year.
e. Zimmerman failed to report $1,400.22 in income received from Countryside
Builders and $6,882.77 received from Stephen J. Martin on his SFI filed for
the 2013 calendar year.
f. Zimmerman failed to report $33,500.00 in income received from Stephen J.
Martin on his SFI filed for the 2014 calendar year.
81. Zimmerman did not report HomeTowne Heritage Bank and /or Anabaptist Financial
as creditors on SFI forms filed for calendar years 2009 through 2014.
a. Zimmerman did not report the creditors fisted above as he was not a named
party to the credit transaction, and/or was not personally responsible for the
repayment of the loan.
82. Zimmerman failed to report his Financial Interest in a Legal Entity engaged in
Business for Profit in the Mervin M. Martin /David H. Zimmerman point venture
partnership on SFIs filed for calendar years 2009 through 2010.
83. Zimmerman failed to provide a response to Business Interest transferred to
Immediate Family Member on his SFI filed for the 2009 calendar year.
a. Zimmerman transferred a 25% interest in the Wildflower Ridge joint venture
partnership to his brother, Ivan H. Zimmerman, in January of 2009.
84. Zimmerman used the authority of his public position as Supervisor /Roadmaster for
East Earl Township to advance and /or expedite Township approvals of the
Wildflower Ride LLC development, a business with which a member of his
immediate family was associated.
a. Beginning in January 2012 and continuing throu h March 2012,
[Zimmerman] advanced the final approvals of the Wildflower Ridge
development:
1. On January 23, 2012, Zimmerman inquired of the Township Secretary
of the outstanding items to be completed on the Wildflower Ridge
plan.
2. In January 2012, Zimmerman advised the Board of Supervisors that
he was comfortable with approving the plan without requiring the plan
owners to put up an escrow for Phase II. He also stated he would
monitor the installation of the infrastructure improvements.
Zimmerman, 15 -002
Page 2
3. On February 9, 2012, Zimmerman participated in Board action
authorizing the plan to proceed once the remaining issues were
completed.
4. Between February 27, 2012, and March 3, 2012, Zimmerman, via
emails to the Township Solicitor, and without the knowledge or
consent of the Board of Supervisors, sought waivers on behalf of
Wildflower Ridge of Township ordinance requirements for escrow fees
and directed the Solicitor to draft a resolution to enable a lesser
payment.
5. In February 2012, Zimmerman provided the Solicitor with appraisal
figures to enable the Solicitor to calculate the escrow fee per acre of
the Wildflower Ridge plan.
6. In February 2012, Zimmerman concealed from the Solicitor his
brother's interest in the Wildflower Ridge plan when questions were
raised about ownership of the property.
7. Zimmerman, as Chairman of the Township Board of Supervisors,
signed the Stormwater Management Agreement between the
Township and Wildflower, LLC, on February 10, 2012, an agreement
based on a stormwater management plan previously approved by the
Township engineer.
8. Zimmerman, as Chairman of the Township Board of Supervisors,
signed the final project drawings on February 14, 2012.
9. Zimmerman was not a named partner after August 2010, having
previously agreed to convey his interest to Scott A. Guthridge.
85, In 2012, while the Wildflower Ridge project was before the East Earl Township
Supervisors, David Zimmerman and his brother maintained an interest in the
project, though David Zimmerman at this time had no ownership interest.
a. Ivan Zimmerman, David Zimmerman's brother, was a 25% owner of the
project.
b. In 2012, David Zimmerman was owed $150,000.00 by Stephen J. Martin for
the sale of 12.5% interest in the project.
1. Terms of Stephen J. Martin's sale agreement with David Zimmerman
required payments in 2010 and 2011.
2. Stephen J. Martin made no payments in 2010 or 2011 because the
Wildflower Ridge project did not have final approvals of the East Earl
Township Board of Supervisors.
3. Stephen J. Martin began making payments to David Zimmerman by
December 2012 after David Zimmerman in his public position voted to
approve the project.
86. Consistent with his responsibilities at the Township, Zimmerman advanced
approvals of the Wildflower Ridge project which involved a member of his
immediate family.
a. Zimmerman's actions as an East Earl Township employee and Supervisor in
2012 expedited the approval, thereby enabling him to receive payments
Zimmerman, 15 -002
Page 33
owed to him by Stephen J. Martin for the sale of Zimmerman's 12.5%
interest in Wildflower Ridge.
1. Stephen J. Martin owed Zimmerman $150,000.00 for the sale.
b. David Zimmerman was able to receive payments on the sale of his interest
after the final approvals for the project enabling homes to be built and sold.
C. Upon the sale of each home, Ivan Zimmerman received a portion of the
proceeds.
d. David Zimmerman maintains that he never rofited from the Wildflower
Ridge LLC project, and in fact, states that he lost money.
Ill. DISCUSSION:
As a Supervisor for East Earl Township ( "Township "), Lancaster County, from at
least 2006 until his resignation effective December 9, 2014, Respondent David
Zimmerman, also referred to herein as "Respondent," "Respondent Zimmerman," and
"Zimmerman," was a public official /public employee subject to the provisions of the Public
Official and Employee Ethics Act ('Ethics Act "), 65 Pa.C.S. § 1101 et seg.
The allegations are that Zimmerman violated Sections 1103(a) and 1105(b) of the
Ethics Act, 65 Pa.C.S. §§ 1103(a) and 1105(b):
(1) When he utilized the authority of his office for the private pecuniary benefit of
himself and/or a member of his immediate family and/or a business with
which he and /or a member of his immediate family is associated, namely,
Wildflower, LLC, when he participated in actions of the Township Board of
Supervisors ( "Board of Supervisors "), including, but not limited to,
recommending and /or voting to approve rezoning, subdivision, and storm
water abatement plans pertaining to certain real estate at a time when he
maintained equitable ownership in said property and /or he or a member of
his immediate family was associated with Wildflower, LLC; and
(2) When he failed to file complete and accurate Statement of Financial
Interests ( "SFI ") forms in connection with his service as a Township
Supervisor, specifically:
(a) When he failed to report: all direct/indirect sources of income in
excess of $1,300 on SFIs filed for the 2009 through 2014 calendar
years; creditors in excess of $6,500 on SFIs filed for the 2009 through
2014 calendar years; his office, directorship, or emplo ment in any
business for profit on SFIs filed for the 2009 through 2014 calendar
years; and his financial interest in a legal entity engaged in business
for profit on SFIs filed for the 2009 through 2014 calendar years; and
(b) When he failed to provide a response to "Business Interests
Transferred to Immediate Family Member" on his SFI filed for the
2009 calendar year.
Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a) Conflict of interest. ---No public official or public
employee shall engage in conduct that constitutes a conflict of
Zimmerman, 15 -002
ag�...—
interest.
65 Pa.C.S. § 1103(a).
The following terms are defined in the Ethics Act as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. The term does not include an action
having a de minimis economic impact or which affects to the
same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a member
of his immediate family or a business with which he or a
member of his immediate family is associated.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
"Immediate family." A parent, spouse, child, brother or
sister.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self- employed individual, holding company, joint
stock company, receivership, trust or any legal entity organized
for profit.
"Business with which he is associated." Any
business in which the person or a member of the person's
immediate family is a director, officer, owner, employee or has
a financial interest.
"Financial interest." Any financial interest in a legal
entity engaged in business for profit which comprises more
than 5% of the equity of the business or more than 5% of the
assets of the economic interest in indebtedness.
65 Pa.C.S. § 1102.
Section 1103(a) of the Ethics Act prohibits a public official /public employee from
using the authority of public office /employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official /public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure
that a person required to file the SFI form must provide.
Subject to certain statutory exceptions not applicable to this matter, Section
Zimmerman, 15 -002
Page 5�
1105(b)(4) of the Ethics Act requires the filer to disclose on the SF the name and address
of each creditor to whom is owed in excess of $6,500 and the interest rate thereon.
Subject to certain statutory exceptions not applicable to this matter, Section
1105 (b)(5) of the Ethics Act requires the filer to disclose on the SFI the name and address
of any direct or indirect source of income totaling in the aggregate $1,300 or more.
Section 1105(b)(8) of the Ethics Act requires the filer to disclose on the SFI any
office, directorship or employment in any business entity.
Section 1105(b)(9) of the Ethics Act requires the filer to disclose on the SFI any
financial interest in any legal entity engaged in business for profit.
Section 1105(b)(10) of the Ethics Act requires the filer to disclose on the SFI any
financial interest in a business with which he is or has been associated in the preceding
calendar year which has been transferred to a member of his immediate family.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are set forth above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
The Township is governed by a three - Member Board of Supervisors. Respondent
Zimmerman served as a Township Supervisor from at least 2006 until his resignation
effective December 9, 2014. While serving as a Township Supervisor, Respondent held
the positions of Roadmaster, Stormwater Specialist and Assistant SecretarylTreasurer.
From January 2006 through November 2014, the Board of Supervisors was comprised of
Respondent, Joseph Shriver (Shaver "), and Earl Kreider ( "Kreider ").
Ownership Interests in the Wildflower Rid a Project:
In a private ca acity, in or about October 2006, Respondent acquired a 50% equity
interest in a joint venture land development partnership project ' also referred to herein as
the "Project') which eventually was developed under the name Wildflower Ridge." From
2006 until approximately January 2009, the Protect was a 50150 joint venture partnership
between Respondent and an in named Mervin M. Martin ( "Martin "). Martin owns
and operates a business named "Countryside Builders." Respondent was a Member of the
Board of Supervisors at the time he entered into the partnership agreement with Martin.
On January 27, 2009, Respondent sold one -half of his 50% interest in the Project to
his brother, Ivan H. Zimmerman, for the sum of $350,000.00. As of January 27, 2009, the
ownership interests in the Project were as follows: Martin -50 %; Respondent -25 %; and Ivan
Zimmerman -25 %. No additional partners were added to the Project until or about August
1, 2010.
On August 1, 2010, an individual named Stephen J. Martin, who operates a
business named "Cornerstone Excavating," obtained a 25% ownership interest in the
Project consisting of 12.5% of Respondent's ownership interest and 12.5% of Martin's
ownership interest. Stephen J. Martin acquired the aforesaid ownership interest by
executing installment loan notes with both Respondent and Martin in the amount of
$150,000.00 each. Although Stephen J. Martin's agreement with Respondent required that
he make payments to Respondent be inning in August 2010, he made no payments to
Respondent in 2010 or 2011 because K Project did not have final approvals of the Board
of Supervisors.
Also on or about August 1, 2010, a builder named Scott A. Guthridge ( "Guthridge ")
verbally agreed to purchase a 12.5% interest in the Project from both Martin and
Respondent. No payments were made to Respondent by Guthridge at that time.
Zimmerman, 15 -002
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On August 1, 2010, an Operatin Aggreement for "Wildflower, LLC" was created,
identifying Martin, Ivan H. Zimmerman, tep lien J. Martin, and Guthridge as the members
of the LLC, with each having a 25% ownership interest. On October 4, 2010, a Certificate
of Organization for Wildflower, LLC was filed with the Pennsylvania Department of State,
Corporation Bureau. Respondent was not included in the Operating Agreement/
incorporating documents for Wildflower, LLC. Respondent was owed payments for a "buy-
out" of his financial interests in the Project.
In or about November- December 2011, an individual named David H. Esh ( "Esh ")
replaced Guthridge as a member of Wildflower, LLC. Esh executed an Installment Note
dated December 28, 2011, with Martin to purchase a 25% ownership interest in the Project
for the sum of $320,000.00. Esh's 25% ownership interest in the Project included 12.5%
from Respondent. However, the sale of Respondent's 12.5% ownership interest to Esh
was used to satisfy Project costs owed to Martin by Respondent.
Between December 31, 2015, and approximately February 1, 2016, Stephen J.
Martin sold his ownership interest in Wildflower, LLC to the three remaining members for
$225,000.00 ($75,000.00 each), such that each remaining partner's percentage of
ownership increased to 33 Y3 %.
Respondent's financial connection with the Project after 2010 was as follows.
Respondent continued to make payments on loans pertaining to two real estate parcels
discussed below that were involved in the Project. Respondent was owed $150,000.00 by
Stephen J. Martin for the purchase of Respondent's 12.5% interest in the Project.
Between 2011 and 2015, Respondent's brother owned a 25% interest in the Project.
Between December 31, 2015, and approximately February 1, 2016, Respondent's
brother's ownership interest in the Project increased to 33'/3 %.
Between 2006 and 2012, Respondent's relationship to the Project was not made
known to the other two Supervisors. Respondent never disclosed to the Board of
Supervisors that he had a financial interest in the Project at any time during the Township's
review and approval of the plan. Respondent never disclosed to the Board of Supervisors
that his brother had a 25% interest in the Project. Kreider and Shriver were not aware of
Respondent's financial interest in the Project/plan until after April 18, 2012, when a real
estate transfer appeared in the local newspaper which included Respondent's name.
The Real Estate Parcels Involved in the Project:
In or about October 2006, when Respondent first became a partner in the Project,
the Project involved a five -acre parcel ( "Property 1' for which a thirteen -lot residential
subdivision and land development plan had alrea y been submitted to the Board of
Supervisors.
On December 9, 2006, Respondent and Martin entered into an agreement to
ppurchase an additional 10 acres ( "Property 2 ") for $375,000.00. Property 2 was intended
to be used for a 51 -lot subdivision consisting of single family homes, duplexes, and
townhomes. The Agreement of Sale for Property 2 included contingencies related to
zoning changes and subdivision approvals needed from the Township, as detailed in Fact
Findinggs 11 a(1) -(3). Final settlement on the purchase of Property 2 did not occur until
April 18, 2012, when all the contingencies were met and approvals were granted by the
Board of Supervisors.
Proiect Delays:
Between November 2009 and January 2012, no substantial advances were made
toward completing the outstanding items required by the Township on the Project's
conditional approval. Reasons for the delay included obtaining a National Pollutant
Zimmerman, 15 -002
Page
Discharge Elimination System ( "NPDES ") Permit from the Pennsylvania Department of
Environmental Protection, a poor economy, and weak building market.
At the March 8, 2011, meeting of the Board of Supervisors, the Board agreed,
without a vote, to forward to the Lancaster County Planning Commission ( "LCPC ") Martin's
request to keep the Wildflower Ridge plan active. Respondent was present at this meeting
but did not offer any comments on the Protect.
While the Project was stalled, Respondent was making payments on the loans
pertaining to Property 1 and Property 2.
Respondent's Actions Involving the Pro `ect:
Beginning in January 2012 and continuing thro% March 2012, Respondent
advanced the final approvals of the Wildflower Ridge development through actions
including the following.
On January 23, 2012, Respondent inquired of Township Secretary Connie Gross
Gross) regarding the outstanding items to be completed on the Wildflower Ridge plan.
Respondent contacted Gross in his official capacity as Chairman of the Board of
Supervisors.
On January 23, 2012, Gross emailed a response to Respondent noting that the
following items remained outstandingg: (1) a Storm Water Ownership and Maintenance
Agreement had not been provided; (2) an easement for dealing with discharge of storm
water with downstream property owners had not been provided; and (3) escrow had not
been established nor were there proposed escrow amounts. No building could be
commenced until the plan was recorded with Lancaster County, and the plan could not be
recorded until the outstanding items outlined in Gross's January 23, 2012, email were
addressed and approved.
Around this same time in January 2012, Respondent provided Kreider and Shriver
with a narrative update of the Project set forth at Fact Finding 42. As part of the update,
Respondent informed Kreider and Shriver that he was very comfortable permitting the
Wildflower Ridge developers to proceed without placing funds in escrow for Phase II.
Respondent also stated he would monitor the installation of the infrastructure
improvements. Respondent's update to Kreider and Shriver was an attempt to influence
the Supervisors to waive escrow fees and to permit the Project to move forward.
In a January 30, 2012, email to Gross, Township Solicitor Frank Mincarelli
( "Mincarelli ") expressed his opinion that the Project developer violated the Township's
zoning and subdivision /land development ordinances by proceeding without final plan
approval. Gross forwarded Mincarelli's email to Shriver on January 30, 2012.
Between February 1, 2012, and March 3, 2012, Respondent participated in email
exchanges detailed at Fact Findings 47 a -b with Township officials addressing questions
and/or concerns relating to final approvals of Wildflower Ridge and advocating that the plan
should move forward.
At the February 9, 2012, meeting of the Board of Supervisors, the Board of
Supervisors, with Respondent participating, unanimously voted that the Wildflower Ridge
Elan could proceed once all outstanding items were completed. Items listed as needing to
e completed were identified as follows: "Receiving [Township Engineer] ELA's review
comments, a signed storm water ownership and maintenance agreement, submission of
the $131,527.00 improvement guarantee, recording of the Storm Water Discharge
agreement with downstream property owners and addressing the dedication of land for
park and open space or fee in lieu of, along with any issues raised by ELA's review letter."
Fact Findings 48-48 b.
Zimmerman, 15 -002
ag13 ,T----
On February 10, 2012, Gross informed the Board of Supervisors that Martin had
provided a signed and notarized Storm Water Management plan. That same day- -
February 10, 2012 -- Respondent signed the Stormwater Management Agreement between
the Township and Wildflower, LLC in his official capacity as a Member and Chairman of the
Board of Supervisors. Respondent was the only Township official to sign this agreement.
The signed agreement was returned to Mincarelli's office for filing with the Lancaster
County Recorder of Deeds Office. The Project could not have continued without this
approval and filing with the Lancaster County Recorder of Deeds.
At the February 14, 2012, meeting of the Board of Supervisors, Respondent
participated in actions of the Board of Supervisors approving matters related to the Project,
including the release of credit escrow agreements and storm water management plans,
which enabled the Project to proceed. The Board of Supervisors also discussed the
remaining issues needing its approval, including fee in lieu of for park and open space,
receipt of verification that the storm water discharge easement was recorded, and receipt
of the improvement guarantee. The Board of Supervisors approved the Project plans on
February 14, 2012. These plans were signed by all three Supervisors, including
Respondent as Chairman of the Board of Supervisors. The final approval of the Wildflower
plan as to be considered when alI outstanding issues were fulfilled.
On February 23, 2012, Respondent filed a Storm Water Discharge Easement
Agreement dated June 30, 2009, with the Lancaster County Recorder of Deeds Office.
This agreement was required by the Township to be filed with the Lancaster County
Recorder of Deeds Office as part of the outstanding issues needing to be resolved before
the Project plan could be finalized. It was the responsibility of the Wildflower Ridge
developers to file the agreement with Lancaster County.
On or about February 27, 2012, Respondent, in his capacity as Chairman of the
Board of Supervisors, submitted a handwritten request to Mincarelli to determine a fee in
lieu of park/open space for the Project. Between February 27, 2012, and March 3, 2012,
Mincarelli and Respondent engaged in a series of emails regarding Respondent's
aforesaid request. Respondents emails to Mincarelli sought waivers on behalf of the
Project of the provisions of the Township resolutions relating to the requirement of payment
of the full in lieu fee prior to recording of the final phase of the Project. Respondent
directed Mincarelli to draft a new resolution to enable the lesser payment. Respondent
emailed Mincarelli on behalf of the Project without consulting any other Member of the
Board of Supervisors. Respondent did not advise the Board of Supervisors of his plans to
amend resolutions in favor of the Project developers. Respondent did not advise the
Board of Supervisors or Mincarelli of Respondent's brother's financial interest in the
Project. The texts of the emails between Respondent and Mincarelli are detailed at Fact
Findings 52 a j.
On February 29, 2012, Shriver forwarded an email to Respondent questioning
Respondent's direction to Mincarelli to change the Township resolution for the benefit of
Wildflower Ridge, stating in part: "I do not recall the board approval for Frank to work on
alternate resolution or amendment for this .... I know your [sic] trying very hard for some
reason to help these projects move forward with some shortcuts that the board has not
approved.... Fact Findinq 53 a.
On March 2, 2012, Shriver emailed Kreider questioning Respondent's March 1,
2012, email to Mincarelli (see, Fact Finding No. 52 h) which asserted that Respondent
discussed the fee in lieu with the Board of Supervisors and Gross. Shriver's email included
the following: "Dave did not speak to me about this, did he speak to you ?" Fact Findinq 54
c. Kreider responded to Shriver on March 3, 2012, advising that he never spoke to
Respondent.
Zimmerman, 15 -002
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On March 20, 2012, Mincarelli sent an email to Respondent explaining his
methodology used for determining the open space fee in the total amount of $60,582.00 for
the Wildflower Ridge development. The $8,315.16 open space fee for Phase I of the
Project was paid by Martin on March 3, 2012.
Per the Township's Project file, all outstanding issues had been met as of April 3,
2012.
On April 5, 2012, the final Project plans were filed with the Lancaster County
Recorder of Deeds Office. This filing permitted construction of the Project to continue.
After the final Project plans were filed, settlement between Respondent, Martin, and
the sellers (hereinafter collectively referred to as the "Seller ") of Property 2 occurred on
April 18, 2012. At settlement, Property 2 was identified as being transferred by the Seller
to Martin and Respondent (equitable owners) to Wildflower, LLC. Respondent was present
at settlement and provided the Seller with a check in the amount of $25,000.00, which
represented his share of the outstanding balance owed on Property 2.
Construction began on the approved Project by or about the summer of 2012.
Since 2013, Wildflower, LLC has received gross income of approximately $2,083,390.00
from the sale of 12 properties.
The parties have stipulated that Respondent's actions as a Township employee and
Supervisor in 2012 expedited the approval of the Project, thereby enabling him to receive
payments owed to him by Stephen J. Martin for the sale of Respondent's 12.5% interest in
Wildflower Ridge. Respondent was able to receive payments on the sale of his interest
after the final approvals for the Project enabling homes to be built and sold. Upon the sale
of each home, Respondent's brother, Ivan Zimmerman, received a portion of the proceeds.
Respondent maintains that he never profited from the Project, and in fact, states that he
lost money.
Payments Made by or on Behalf of Respondent and Payments Received by
For Property 2, Respondent and/or Martin tendered $28,000.00 representing
rollback taxes specific to the Clean and Green program.
Between November 3, 2008, and October 1, 2012, Respondent made at least 60
payments totaling $63,671.47 to HomeTowne Heritage Bank toward a $750,000.00
loan /credit line used to secure Property 1.
Between April 16, 2009, and April 18, 2012, Respondent issued at least four
payments totaling $37,875.00 to the Seller of Property 2.
Between January 29, 2010, and April 1, 2015, Respondent made approximately 62
payments totaling $68,538.90 to lender "Anabaptist Financial" as part of his 50%
repayment obligation of a loan obtained by Martin in December 2009 for $300,000.00,
which amount had been transferred to the Seller of Property 2.
Between January 12, 2007, and December 27, 2014, Respondent made 34
payments totaling $198,016.35 to Martin individually and /or d /b /a Countryside Builders.
These payments represented payments for Respondent's share, as a partner, of the
acquisition costs and site improvements to the Project. Between August 11, 2011, and
March 5, 2014, Respondent received eight payments totaling $5,979.75 from Countryside
Builders as reimbursement for Project costs Respondent paid.
During 2012, while he was initiating actions as a Township Supervisor to advance
the final approval for the Project, Respondent was making payments toward lines of credit
Zimmerman, 15 -002
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and loans for the Project. On November 20, 2012, loan satisfaction documents were filed
with the Lancaster County Recorder of Deeds Office for loans /lines of credit previously
secured by Martin and Respondent for land development. The loans were able to be
satisfied following the Township's approvals of the plan - -in which Respondent participated -
-and which enabled lots and homes to be sold.
Between January 27, 2009, and April 27, 2012, Respondent's brother, Ivan H.
Zimmerman, made twenty (20) payments totaling $365,745.00 to Respondent towards the
purchase of 25% of the Wildflower Ridge proJect. Early in 2016, Ivan H. Zimmerman also
made a payment in the amount . $75,000.00 to Anabaptist Financial, satisfying
Respondents share of the balance owed on the aforesaid $300,000.00 loan.
Respondent began receiving payments from Stephen J. Martin dlb /a Cornerstone
Excavating in December 2012 as homes in the Wildflower Ridge development were
completed and sold. The checks represented payment for Respondent's 12.5% interest in
the Project. On December 29, 2012, Respondent received his first loan payment from
Stephen J. Martin dlbla Cornerstone Excavating, which �aym ent was in the amount of
$39062.50. Respondent received approximatelyy seven (payments totaling $81,195.25
from Stephen JMartin individually andlor dlbla Coerstone Excavating between
December 29, 2012, and January 5, 2015.
Respondent's SFIs:
As for Respondent's SFIs, Respondent failed to report: (1) Ivan H. Zimmerman as a
source of income on his SFIs filed for calendar years 2009, 2010, 2011, and 2012; (2)
Countryside Builders as a source of income on his SFIs for calendar years 2010, 2012,
and 2013; (3) Cornerstone Excavating as a source of income on his SFI filed for the 2012
calendar year; and (4) Stephen J. Martin as a source of income on his SFIs filed for the
2013 and 2014 calendar years. Additionally, Respondent failed to report on SFIs filed for
calendar years 2009 through 2010 his financial interest in the Project as a financial interest
in a legal entity engaged in business for profit. Respondent failed to disclose on his SFI
filed for the 2009 calendar year the transfer of his 25% interest in the Wildflower Ridge joint
venture partnership to his brother, Ivan H. Zimmerman, in January of 2009.
Respondent did not report HomeTowne Heritage Bank and /or Anabaptist Financial
as creditors on SFI forms filed for calendar years 2009 through 2014 as he was not a
named party to the credit transaction(s) and/or was not personally responsible for the
repayment of the loan(s).
Having highlighted the Stipulated Findings and issues before us, we shall now apply
the Ethics Act to determine the proper disposition of this case.
The parties' Consent Agreement sets forth a proposed resolution of the allegations
as follows:
The Investigative Division will recommend the following in
relation to the above allegations:
That a violation of Section 1103(a) of the Public
Official and Employee Ethics Act, 65 Pa.C.S. §
I I03(a), occurred when Zimmerman participated
in official actions as a Supervisor of East Earl
Township resulting in the approval of the
rezoning, subdivision, and storm water
abatement plans of certain real property, at a
time when he was owed monies reciarding said
land. His uses of office facilitated in the land's
development and subsequent sale, which
Zimmerman, 15 -002
Page 41
allowed a pecuniary benefit to be realized by
himself and/or a member of his immediate
family.
That a violation of Section 1105(b)(9) of the
Public Official and Employee Ethics Act, 65
Pa.C.S. § 1105(b)(9), occurred when
Zimmerman neglected to report his financial
interests in a joint venture with Mervin Martin,
during the 2009 and 2010 calendar year(s). For
the purposes of this consent agreement only,
Zimmerman was not required to report any
financial interests concerning the joint venture,
for calendar years 2011 -2014, as the venture
was incorporated into Wildflower, LLC as of
August 1, 2010.
C. That a violation of Section 1105(b)(5) of the
Public Official and Employee Ethics Act, 65
Pa.C.S. § 1105(b)(5), occurred when
Zimmerman neglected to disclose all reportable
sources of income in excess of $1,300.00 upon
Statements of Financial Interests filed for the
2009 through 2014 calendar years.
That a violation of Section 1105(b)(10) of the
Public Official and Employee Ethics Act, 65
Pa.C.S. § 1105(b)(10), occurred when
Zimmerman neglectedd to report the 2009
transfer [of] business interests to a member of
his immediate family, namely his equitable
interests in the joint venture with Mervin
Martin....
e. That no violation of Section 1105(b)(8) of the
Public Official and Employee Ethics Act, 65
Pa.C.S. § 1105(b)(8), occurred concerning a
non - reporting of any Office, Directorship, or
Employment, for calendar years 2009 through
2010, in that Zimmerman held no reportable
position within Wildflower, LLC.
That no violation of Section 1105(b)(4) of the
Public Official and Employee Ethics Act, 65
Pa.C.S. § 1105(b)(4), occurred by Zimmerman's
omission of reported creditors in excess of
$6,500.00 upon Statements of Financial
Interests filed for the 2009 through 2014
calendar years, in that he was not a named party
to the credit transaction, and /or was not
personally responsible for the repayment of the
loan. This determination has been made forthe
purposes of this consent agreement only.
5. Zimmerman agrees to make payment in the amount of
$14,000.00 in settlement of this matter as follows:
Zimmerman, 15 -002
Page 42
Zimmerman agrees to make a payment of
$12,000.00 payable to the Commonwealth of
Pennsylvania and forwarded to the Pennsylvania
State Ethics Commission within thirty (30) days
of the issuance of the final adjudication in this
matter.
Zimmerman . agrees to make a payment of
$2,000.00 representing a portion of the costs
incurred by the Commission in the investigation
and enforcement of this matter, which shall be
made payable to the Pennsylvania State Ethics
Commission.
Zimmerman agrees to not accept any reimbursement,
compensation or other payment from East Earl Township
representing a full or partial reimbursement of the amount paid
in settlement of this matter.
To the extent he has not already done so, Zimmerman agrees
to file amended Statements of Financial Interests with East
Earl Township through the Pennsylvania State Ethics
Commission, for 2009 through 2014 calendar years within
thirty (30) days of the issuance of the final adjudication in this
matter.
The Investigative Division will recommend that the State Ethics
Commission take no further action in this matter, and make no
specific recommendations to any law enforcement or other
authority to take action in this matter. Such, however, does not
prohibit the Commission from initiating appropriate
enforcement actions in the event of Respondent's failure to
comply with this agreement or the Commission's order or
cooperating with any other authority who may so choose to
review this matter further.
Consent Agreement, at 2 -3.
In considering the Consent Agreement, we agree with the parties' recommendation
for the finding of a violation of Section 1103(a) of the Ethics Act.
Beginning in January 2012 and continuing through March 2012, Respondent
repeatedly used the authority of his public office to advance the final approvals of the
Wildflower Ridge development Project. The actions taken by Respondent in his official
capacity occurred at a time when Respondent was owed monies for the ownership interest
he was selling to Stephen J. Martin and Respondent's brother held a 25% ownership
interest in the Project.
The specific actions taken by Respondent in his official capacity to advance the final
approvals of the Project included: (1) contacting Gross in his official capacity as Chairman
of the Board of Supervisors on January 23, 2012, to inquire regarding the outstanding
items to be completed on the Wildflower Ridge plan; (2} in or around January 2012,
providing Kreider and Shriver with a narrative update of the Project in an attempt to
influence the Supervisors to waive escrow fees and to permit the Project to move forward;
(3) between February 1, 2012, and March 3, 2012, particippating in email exchanges
detailed at Fact Findings 47 a -b with Township officials addressing questions and/or
concerns relating to final approvals of Wildflower Ridge and advocating that the plan
should move forward; (4) at the February 9, 2012, meeting of the Board of Supervisors,
Zimmerman, 15 -002
Page
participating in a unanimous vote that the Wildflower Ridge plan could proceed once all
outstanding items were completed; (5) on February 10, 2012, siggning the Stormwater
Management Agreement between the I ownship and Wildflower, LLC in his official capacity
as a Member and Chairman of the Board of Supervisors, (6) at the February 14, 2012,
meeting of the Board of Supervisors, participating in actions of the Board of Supervisors
approving matters related to the Project, including the release of credit escrow agreements
and storm water management plans, which enabled the Project to proceed; (7) on
February 14, 2012, participating in the Board of Supervisors' approval of the Protect plans
and signing such plans; (8) on or about February 27, 2012, in his capacity as Chairman of
the Board of Supervisors, submitting a handwritten request to the Solicitor to determine a
fee in lieu of park/open space for the Project; and (9) between February 27, 2012, and
March 3, 2012, engaging in a series of emails with the Solicitor seeking waivers on behalf
of the Project of the provisions of the Township resolutions relating to the requirement of
payment of the full in lieu fee prior to recording of the final phase of the Project, and
directing the Solicitor to draft a new resolution to enable the lesser payment.
By advancing the final approvals for the Project, Respondent facilitated the Project's
development and his own receipt of monies owed to him for his prior interest in the Project,
as well as the receipt of monies by his brother, Ivan H. Zimmerman.
With each element of a violation of Section 1103(a) established, we hold that a
violation of Section 1103(x) of the Ethics Act, 65 Pa.C.S. § 1103(x), occurred when
Respondent participated in official actions as a Township Supervisor resulting in the
approval of the rezoning, subdivision, and storm water abatement plans of certain real
property, at a time when he was owed monies regarding said land. His uses of office
facilitated in the land's development and subsequent sale, which allowed a pecuniary
benefit to be reakized by him andlor a member of his immediate family. Cf., G.L. v. State
Ethics Commission, 17 A.3d 445 (Pa. Cmwlth. 2011), allocatur denied, 6 3 Pa. 648,T92
A.3d 1279 20
We agree with the parties and we hold that a violation of Section 1105(b)(9) of the
Ethics Act, 65 Pa.C.S. § 11 05(b)(9), occurred when Respondent neglected to report his
financial interests in a joint venture with Martin, during the 2009 and 2010 calendaryear(s).
The parties have agreed that, for purposes of the parties' Consent Agreement only,
Respondent was not required to report any financial interests concerning the joint venture
for calendar years 2011 -2014, as the venture was incorporated into Wildflower, LLC as of
August 1, 2010.
We agree with the parties and we hold that a violation of Section 1105(b)(5) of the
Ethics Act, 65 Pa.C.S. § 1105(b)(5), occurred when Respondent neglected to disclose all
reportable sources of income in excess of $1,300.00 upon SFIs filed for the 2009 through
2014 calendar years. Specifically, Respondent failed to report Ivan H. Zimmerman as a
source of income on his SFIs filed for calendar years 2009, 2010, 2011, and 2012.
Respondent failed to report Countryside Builders as a source of income on his SFIs for
calendar years 2010, 2012, and 2013. Respondent failed to report Cornerstone
Excavating as a source of income on his SFI filed for the 2012 calendar year. Respondent
failed to report Stephen J. Martin as a source of income on his SFIs filed for the 2013 and
2014 calendar years.
We hold that a violation of Section 1105(b)(10) of the Ethics Act, 65 Pa.C.S. §
1105(b )(10), occurred when Respondent neglected to report the 2009 transfer of business
interests to a member of his immediate family, namely his equitable interests in the joint
venture with Martin.
Respondent's failure to make the aforesaid required disclosures on his SFIs
concealed Respondent's and his brother's connections to the Project.
Zimmerman, 15 -002
ag�—
The parties' Consent Agreement recommends that we find no violation of Section
1105(b)(8) of the Ethics Act -- requiring disclosure of any office, directorship or employment
in any business entity - -as to Res on ent's SFIs for calendar years 2009 through 2010 for
the stated reason that Respondent held no reportable position within Wildflower, LLC.
Without adopting any particular reasoning of the parties, we hold that per the Stipulated
Findings and Consent Agreement of the parties, no violation of Section 1105(b)(8) of the
Ethics Act, 65 Pa.C.S. §� 1105(b)(8), occurred concerning the alleged non - reporting by
Respondent of any office, directorship, or employment in a business entity.
We further hold that per the Stipulated Findings and Consent Agreement of the
parties, no violation of Section 1105(b)(4) of the Ethics Act, 65 Pa.C.S. § 1105(b }(4),
occurred by Respondent's omission of reported creditors in excess of $6,500.00 upon SFis
filed for the 2009 through 2014 calendar years, in that he was not a named party to the
credit transaction, and/or was not personally responsible for the repayment of the loan.
This determination has been made for the purposes of the instant Consent Agreement
only.
As part of the Consent Agreement, Respondent has agreed to make payment in the
amount of $12,000.00 payable to the Commonwealth of Pennsylvania and forwarded to
this Commission within thirty (30) days of the issuance of the final adjudication in this
matter.
Respondent has further agreed to make payment in the amount of $2,000.00
payable to the Pennsylvania State Ethics Commission, representing a portion of the costs
incurred by the Commission in the investigation and enforcement of this matter.
Respondent has agreed to not accept any reimbursement, compensation or other
payment from the Township representing a full or partial reimbursement of the amount paid
in settlement of this matter.
To the extent he has not already done so, Respondent has agreed to file amended
SFIs with the Township, through this Commission, for calendar years 2009 through 2014
within thirty (30) days of the issuance of the final adjudication in this matter.
We determine that the Consent Agreement submitted by the parties sets forth a
proper disposition for this case, based upon our review as reflected in the above analysis
and the totality of the facts and circumstances.
Per the Consent Agreement of the parties, Respondent Zimmerman is directed to
make payment in the amount of $12,000.00 payable to the Commonwealth of
Pennsylvania, with such payment forwarded to this Commission by no later than the
thirtieth (30th) day after the mailing date of this adjudication and Order.
Per the Consent Agreement of the parties, Respondent Zimmerman is directed to
make payment in the amount of $2,000.00 payable to the Pennsylvania State Ethics
Commission, representing a portion of the costs incurred by the Commission in the
investigation and enforcement of this matter, with such payment forwarded to this
Commission by no later than the thirtieth (30th) day after the mailing date of this
adjudication and Order.
Per the Consent Agreement of the parties, Respondent Zimmerman is further
directed to not accept any reimbursement, compensation or other payment from the
Township representing a full or partial reimbursement of the amount paid in settlement of
this matter.
To the extent he has not already done so, Respondent Zimmerman is directed to file
amended SFIs for calendar years 2009 through 2014 with the Township, through this
Zimmerman, 15 -002
ag_ 4T_
Commission, by no later than the thirtieth (30th) day after the mailing date of this
adjudication and Order.
Compliance with the foregoing will result in the closing of this case with no further
action by this Commission. Noncompliance will result in the institution of an order
enforcement action.
IV. CONCLUSIONS OF LAW:
1. As a Supervisor for East Earl Township ( "Township "), Lancaster County, from at
least 2006 until his resignation effective December 9, 2014, Respondent David
Zimmerman �h'e Zimmerman ") was a public official /public employee suUect to the
rovisions of Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S.
1101 et seg.
2. Zimmerman violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when
he participated in official actions as a Township Supervisor resulting in the approval
of the rezoning, subdivision, and storm water abatement plans of certain real
property, at a time when he was owed monies regarding said land. His uses of
office facilitated in the land's development and subsequent sale, which allowed a
pecuniary benefit to be realized by him and/or a member of his immediate family.
3. A violation of Section 1105(b)(9) of the Ethics Act, 65 Pa.C.S. § 1105(b)(9),
occurred when Zimmerman neglected to report his financial interests in a joint
venture with Mervin Martin, during the 2009 and 2010 calendar year(s).
4. A violation of Section 1105(b)(5) of the Ethics Act, 65 Pa.C.S. § 1105(b)(5),
occurred when Zimmerman negllected to disclose all reportable sources of income
in excess of $1,300.00 upon Statements of Financial Interests filed for the 2009
through 2014 calendar years.
5. A violation of Section 1105(b)(10) of the Ethics Act, 65 Pa.C.S. § 1105(b)(10),
occurred when Zimmerman neglected to report the 2009 transfer of business
interests to a member of his immediate family, namely his equitable interests in the
joint venture with Mervin Martin.
6. Per the Stipulated Findings and Consent Agreement of the parties, no violation of
Section 1105(b)(8) of the Ethics Act, 65 Pa.C.S. § 1105(b)(8) occurred concerning
the alleged non- reporting by Zimmerman of any office, directorship, or employment
in a business entity.
7. Per the Stipulated Findings and Consent Agreement of the parties, no violation of
Section 1105(b)(4) of the Ethics Act, 65 Pa.C.S. § 1105(b)(4), occurred by
Zimmerman's omission of reported creditors in excess of $6,500.00 upon
Statements of Financial Interests filed for the 2009 through 2014 calendar years, in
that he was not a named party to the credit transaction, and /or was not personally
responsible for the repayment of the loan.
In Re: David Zimmerman, File Docket: 15 -002
Respondent Date Decided: 10/23/18
Date Mailed: 10/31/18
As a Supervisor for East Earl Township ("Townshi " ), Lancaster County, David
Zimmerman (`.Zimmerman ") violated Section 1103 a) of the Public Official and
Employee Ethics Act "Ethics Act"), Pa.C.S. 113 a when he participated in
official ctions as a Township Supervisor resulting in the approval of the rezoning,
subdivision, and storm water abatement plans of certain real pro perty, at a time
when he was owed monies regarding said land. His uses of office facilitated in the
land's development and subsequent sale, which allowed a pecuniary benefit to be
realized by him and/or a member of his immediate family.
2. A violation of Section 1105(b)(9) of the Ethics Act, 65 Pa.C.S. § 1105(b)(9),
occurred when Zimmerman neglected to report his financial interests in a joint
venture with Mervin Martin, during the 2009 and 2010 calendar year(s).
3. A violation of Section 1105(b)(5) of the Ethics Act, 65 Pa.C.S. § 1105(b)(5),
occurred when Zimmerman neglected to disclose all reportable sources of income
in excess of $1,300.00 upon Statements of Financial Interests filed for the 2009
through 2014 calendar years.
4. A violation of Section 1105(b)(10) of the Ethics Act, 65 Pa.C.S. § 1105(b)(10),
occurred when Zimmerman neglected to report the 2009 transfer of business
interests to a member of his immediate family, namely his equitable interests in the
joint venture with Mervin Martin.
5. Per the Stipulated Findings and Consent Agreement of the parties, no violation of
Section 1105(b)(8) of the Ethics Act, 65 Pa.C.S. § 1105(b)(8)p occurred concerning
the alleged non -- reporting by Zimmerman of any office, directorship, or employment
in a business entity.
6. Per the Stipulated Findings and Consent Agreement of the parties, no violation of
Section 1105(b)(4) of the Ethics Act, 65 Pa.C.S. § 1105(b)(4), occurred by
Zimmerman's omission of reported creditors in excess of $6,500.00 upon
Statements of Financial Interests filed for the 2009 through 2014 calendar years, in
that he was not a named party to the credit transaction, and /or was not personally
responsible for the repayment of the loan.
7. Per the Consent Agreement of the parties, Zimmerman is directed to make payment
in the amount of $12,000.00 payable to the Commonwealth of Pennsylvania and
forwarded to the Pennsylvania State Ethics Commission by no later than the thirtieth
(30th) day after the mailing date of this Order.
8. Per the Consent Agreement of the parties, Zimmerman is directed to make payment
in the amount of $2,000.00 payable to the Pennsylvania State Ethics Commission,
representing a portion of the costs incurred by the Commission in the investigation
and enforcement of this matter, with such payment forwarded to this Commission by
no later than the thirtieth (30th) day after the mailing date of this Order.
Zimmerman, 15 -002
ag7--
9. Per the Consent Agreement of the parties, Zimmerman is directed to not accept any
reimbursement, compensation or other payment from the Township representing a
full or partial reimbursement of the amount paid in settlement of this matter.
10. To the extent he has not already done so, Zimmerman is directed to file amended
Statements of Financial Interests for calendar years 2009 through 2014 with the
Township, through this Commission, by no later than the thirtieth (Sot'') day after the
mailing date of this Order.
11. Compliance with paragraphs 7, 8, 9 and 10 of this Order will result in the closing of
this case with no further action by this Commission.
a. Non - compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
Nicholas •