Professional Documents
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PHONE: 717 -783 -1610 STATE ETHICS COMMISSION FACSIMILE: 717- 787 -0806
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613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120 -0400
ALLEGATIONS:
IL FINDINGS:
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.
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 ").
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
Page 3
6. Mervin M. Martin owns and operates Countryside Builders, 540 Countryside Lane,
New Holland, PA 17557.
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.
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.
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.
the Buyer shall be responsible for any clean and green rollback taxes
as a result of the subdivision."
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.
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.
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].
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.
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 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 permit 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.
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
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.
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.*
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.
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.
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.
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
TF
a
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.
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.
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.
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
Pa--
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.
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.
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.
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,
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.
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.
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
Page
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.
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."
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
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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 orwillbe 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.
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.
52. The texts of the Zimmerman and Mincarelli emails are as follows:
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
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.
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
Dave,
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.
Dave,
I want on
used
to clarifX-one aspect of your email: the fee in lieu does not need to be
an ' adjacent" site; it must, however, be used " for purpose of
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
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
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
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.
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.
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.
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
a. This agreement was filed with the Lancaster County Recorder of Deeds
Office, Instrument # 5981512.
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
the area
requird fr each
unit). The resulting figure of 76, 500 sq ft isthen d
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.
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.
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.
b. Zimmerman never disclosed to the Board that his brother had a 25% interest
in Wildflower Ridge.
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.
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.
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):
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.
7, 500. 00
1, 250. 00
625. 00
38, 125. 00
625. 00
75.75. ZimmermanZimmerman beganbegan receivingreceiving paymentspayments fromfrom StephenStephen MartinMartin dd/ / bb/ / aa Cornerstone Cornerstone
ExcavatingExcavating inin December December 20122012 asas homeshomes inin thethe Wildflower Wildflower RidgeRidge developmentdevelopment werewere
completed completed andand sold.sold.
a.a. TheThe checkschecks representedrepresented paymentpayment forfor DavidDavid Zimmerman'Zimmerman' ss 12.12. 5%5% interestinterest inin
thethe WildflowerWildflower RidgeRidge project.project.
76.76. ZimmermanZimmerman receivedreceived hishis firstfirst loanloan paymentpayment fromfrom StephenStephen J.J. MartinMartin dd/ / bb/ / aa
CornerstoneCornerstone Excavating,Excavating, inin thethe amountamount ofof$ $ 39,39, 062.062. 50,50, onon DecemberDecember 29,29, 2012.2012.
a.a. ZimmermanZimmerman receivedreceived approximatelyapproximately sevenseven $ $ 81,81, 195.195. 2525
( ( 7)7) paymentspayments totalingtotaling
fromfrom StephenStephen J.J. MartinMartin individuallyindividually and/and/ oror dd/ / bb/ / aa CornerstoneCornerstone ExcavatingExcavating
betweenbetween DecemberDecember 29,29, 2012,2012, andand JanuaryJanuary a,a, 2015.2015.
b.b. TheThe paymentspayments werewere required required asas partpart ofof anan installmentinstallment agreement agreement enteredentered
intointo inin 20102010 byby DavidDavid ZimmermanZimmerman andand StephenStephen Martin.Martin.
C.C. TheThe agreementagreement rere uireduired paymentspayments inin 20102010 andand 2011,2011, butbut MartinMartin withheldwithheld
thesethese payments payments unilunil thethe WildflowerWildflower RidgeRidge projectproject waswas approvedapproved andand homeshomes
werewere builtbuilt andand sold.sold.
d.d. EvidenceEvidence suggestssuggests DavidDavid ZimmermanZimmerman waswas notnot involvedinvolved inin thethe landland
developmentdevelopment effortsefforts ofof WildflowerWildflower RidgeRidge LLCLLC afterafter AugustAugust 2010.2010.
TheThe followingfollowing findingsfindings relaterelate toto allegationsallegations thatthat ZimmermanZimmerman failedfailed toto filefile
completecomplete andand accurateaccurate StatementStatement ofof FinancialFinancial InterestsInterests
(" ( " SFISFI
") ") formsforms inin
connectionconnection withwith hishis serviceservice asas aa Supervisor Supervisor forfor EastEast EarlEarl Township.Township.
Zimmerman, 15 -002
Page
e9
77. Zimmerman, in his official capacity as a Member of the East Earl Township Board of
15t
Supervisors, was annually required to file an SFI form by May 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.
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.
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
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:
b. In 2012, David Zimmerman was owed $ 150, 000. 00 by Stephen J. Martin for
the sale of 12. 5% interest in the project.
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.
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 ( " Boardof 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
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
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.
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.
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.
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 2 - 5 %. No additional partners were added to the Project until or about August
1, 2010.
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
Page 36
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.
In or about October 2006, when Respondent first became a partner in the Project,
1' for which a thirteen -lot residential
the Project involved a five -acre parcel ( "Property
subdivision and land development plan had alrea y been submitted to 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:
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.
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 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
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.
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 - i-n 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.
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 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
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.
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.
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
30th)
Commission by no later than the thirtieth ( day after the mailing date of this
adjudication and Order.
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_
30th)
Commission, by no later than the thirtieth ( 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.
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 Zimmerman ") was a public official /public employee suUect to the
rovisions of h' Ethics Act "), 65 Pa. C. S.
e Public Official and Employee Ethics Act ( "
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
b)(
Section 1105( p
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.
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
30th)
to the Pennsylvania State Ethics Commission by no later than the thirtieth
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
Sot'')
Township, through this Commission, by no later than the thirtieth ( 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 •