BIG Lawyer Makes Accusations of Intimidation During Closing Arguments

Bartkowski Investment Group’s (BIG) attorney Marc Kaplin accused Haverford Township Solicitor Jim Byrne of intimidation during closing arguments at the township’s Zoning Hearing Board meeting Thursday night.

During Byrne’s closing arguments, he mentioned by name some of the Haverford Township commissioners who were in attendance, saying that they did not want billboards because one of their reasons was based on the state constitution in Section 27, which states that people are allowed the right to preserve the “esthetic values of the environment,” among other things.

Kaplin took issue with Byrne mentioning the commissioners.

“I will say this for the record and … I’m going to be making a lot of people unhappy. It is in my opinion that (it is) totally and completely inappropriate for Jim to call out the names of all of these commissioners, who appointed (him) and have him say to you and have all of these guys (commissioners) sitting here, saying, ‘We should defend our ordinance because we adopted it.’ That is a violation of my client’s right to due process,” Kaplin said.

After a recess immediately after Kaplin’s accusations, Robert Kane, chairman of the zoning hearing board, addressed Kaplin’s claim, saying that no one on the board has ever been coerced by a Haverford commissioner and that commissioners have a right to express their views, which are equal to a resident’s view.

“No member of this board is so concerned with being appointed or reappointed to this board that they would compromise their own personal integrity or the integrity of the board in order to appease any commissioner,” Kane said, adding, “I have absolutely no fear whatsoever of not being reappointed. In many ways I feel it may be a favor, but I enjoy participating in my community and that’s why I serve on this board.”

Kane continued that the board did not interpret Byrne’s reference to the commissioners as a threat or that the board should decide the case in Byrne or the township’s favor. Kane asked if the board agreed with him, and they all did.

Kaplin stated that he was happy to hear that the board was not intimidated by the commissioners and stated that his comments were not aimed at the zoning hearing board. But he did stress his concerns. 

“We have a process where a zoning hearing board is appointed by a board of commissioners and in a case like this, the board of commissioners takes a position against the application so the people appointed by them have to make a decision and it’s pretty tough. And the Supreme Court has recognized that there is a due process issue,” Kaplin said. “And the better choice would have been not to mention the commissioners being here. … What other implication is there? It wasn’t necessary. I have to put that down on the record. …”

But Kaplin’s words did not smooth things over with Byrne, who got up and angrily said that he was insulted by the BIG lawyer’s implications.

“I have not ever and never will as an officer of the court threaten anybody. I have not tried to use any of these folks as leverage about anything. I think it’s insulting and I think it insulting to me as a professional and I think it insults my integrity and I wouldn’t do that and didn’t do that tonight,” he said, shaking his finger.

Kaplin maintained that there was no reason for Byrne to mention the commissioners in his closing arguments and he felt that it was improper and it did not need to be done.

“I have to defend my client’s position,” he said, adding that he has been in a similar position before where there was alleged intimidation between a lawyer and an official.

Once the hearing was adjourned, Kaplin quickly left and could not be reached for comment.

Byrne told Patch that he was insulted by Kaplin’s allegation, but said that despite the claims made he is looking forward to the board’s decision.

Steve D'Emilio, 1st Ward commissioner of Haverford Township, told Patch that he was furious he said that Kaplin would make such an accusation against him and his fellow commissioners who were also there. Jim McGarrity, Jeff Heilmann, Jane Hall and Chris Connell were present at the hearing.

“We are here supporting our residents,” D’Emilio said, who is also the vice president of the Board of Commissioners. He added that he comes to zoning hearing board meetings when there is an issue that will affect either the 1st Ward or the township.

But D’Emilio said that to him, only an attorney who is losing a case would make such strong accusations.

The 7th Ward’s McGarrity told Patch that he trusts all of the members of the zoning hearing board and said he does not question their integrity. Heilmann was upset with Kaplin’s accusations.

“I’m insulted that he insulted us,” the 5th Ward commissioner said, adding that he knows Kaplin outside of the hearings and was surprised by his comments.

The Meat of The Closing Arguments

BIG is fighting to have five 672-square-foot billboards placed in Haverford Township—two of the billboards would be located along Lancaster Avenue in Haverford Township overlooking Bryn Mawr in Lower Merion Township, and three signs along West Chester Pike in Haverford Township. 

Kaplin started the closing argument proceedings, saying that Haverford Township cannot prohibit billboards, adding that it is against the state’s constitution.

In addition, he said that Byrne and Lower Merion Township Solicitor Bill Kerr’s argument that the billboards will create a distraction and cause accidents are not justified.

“A pretty woman walking down the street can cause a distraction,” Kaplin stated.

And just because one billboard falls down does not mean that all of them will fall, the attorney for BIG reasoned.

But during his closing arguments, Byrne said some billboards have fallen down, citing a 50-ton billboard that fell in Queens, N.Y., last month as a recent example.

However, BIG engineer Michael Tantala stated in that some townships have taken down billboards during strong storms, like Hurricane Irene, as a precautionary measure and not a necessary one. He did admit under cross-examination by Byrne that it was possible for billboards to fall during strong winds. 

Byrne also added at Thursday night’s meeting that the U.S. Supreme Court stated that if a township feels that billboards will create a hazard and is unattractive to the area, then the township has the right to prohibit billboards. 

He also said that even if the commissioners wanted the billboards, the size of them and the use of land did not meet current zoning ordinances.

Comparing Lower Merion and Haverford townships, Kaplin said that Lower Merion regulates billboards and allows them along the Schuylkill Expressway.

But after the hearings, Ward 10 Commissioner of Lower Merion Scott Zelov told Patch that his township only allows billboards in non-residential areas and said it is against state law for Haverford Township to place billboards along the Blue Route.

“Making a comparison (between how Lower Merion can regulate billboards and Haverford prohibiting them) is a weak case,” he said.

During Kerr’s closing hearings, he said that Lancaster Avenue in Bryn Mawr has the right to preserve its “history and character.”

Both Kaplin and Byrne attacked each other’s expert witnesses from past hearings, with both claiming that the witnesses were not qualified or that they contradicted themselves, such as BIG expert Ronald Gibbons, a lead lighting research scientist, who testified that billboards were not a distraction in an , but Byrne presented him with an article that he wrote in which he stated billboards could be dangerous to drivers.

During a second round of closing arguments, Kaplin again urged the zoning hearing board that the township does not have the right to "totally prohibit" billboards.

Four residents from Haverford and Lower Merion townships also spoke out against the billboards during closing arguments. Sandi Donato, who with other residents, launched No Billboards to protest BIG's request to have the signs in various townships. She provided the residents' closing arguments to the zoning hearing board.

"Billboards do not belong in this township," she told the zoning hearing board, who was representing the other residents who oppose BIG's sign request.

She told the board that the billboards are an issue to everyone and that she wants residents to be included as parties to the case should the board votes in favor of the townships and the ruling is appealed by BIG.

During a recess, Kaplin declined to speak to Patch and once the closing arguments were made Kane said the zoning hearing board will give its verdict in its Thursday, Feb. 16 meeting.