Approaching “Crunch Time (2)” on 2 W. Market (37)

(37th in a series of posts on 2 W. Market St.)

Gadfly’s taken 2 days off from this issue. Letting thoughts settle. Getting some distance.

The last thing we did was, as best we could, make the case for both sides. Laying it all out there as objectively as possible.

See posts 35 and 36.

(And as a result of follower comments, Gadfly tweaked the case for twice and the case against once.)

So we should be in a position now to move toward what for Gadfly will be his second decision. See post #26 for his first decision.

Here are some new things bubbling in Gadfly’s mind as he’s moving toward his decision #2:

  • Gadfly’s been wondering about the “Why” question. Gadfly has noted in post #28 a sense that Atty Preston focused on “What” and “How” but did not go to the root of things and argue why the amendment was a good thing for the petitioner and, especially, the City. That part of the argument was left to Kori and their supporters. That led Gadfly (not an atty) to wonder if that was conscious recognition that the “character witness” type evidence was not strong legally. Atty Preston used the term “rationale” – the why — for the text amendment as opposed to a zoning request not for the petition in the first place. See Gadfly fussin’ over this in post #28.
  • Gadfly’s been wondering about a legitimate “standard,” some principle against which to make a judgment. That’s what sent him to the Comprehensive Plan and further into the Zoning Ordinance. A legitimate standard seems crucially important to him. The decision should not be made on insignificant or peripheral details, even if there is a cluster of them. See Gadfly fussin’ over this in post #33.
  • Gadfly’s been wondering – allied to both of the above – what the proper balance between good for the individual and good for the city should be in the decision. It’s been argued that the petitioners have a right to amend for their own benefit. But that cannot be absolute. What’s the balance? If the petitioner were directly aggrieved by a zoning act, Gadfly could see an outcome for the petitioner’s sole benefit. But that is not the case here. Gadfly wonders if the petitioner is not under obligation to show that the amendment does positive good for others not just that it does minimal or no harm.
  • Gadfly’s been wondering about the argument that local knows best. The highest court in the state ruled against the petitioners, albeit  in a case no doubt presented differently.  Normal thought would be that the “distant” court would be in the position of being the more objective, and thus would know better.
  • Gadfly’s been wondering about the place of emotion in the decision. Both sides have expressed a strong “love” element (ha! not for each other). A “sentimental” quality runs through both positions. The “cup of sugar” has been a contested point. How does sentiment balance with logic and law?
  • Gadfly’s been wondering about the “cancer” analogy – the analogy to the self-evident dissolution of the concept of neighborhood in areas of the Southside as a result of a poor zoning decision. This analogy made a striking impact on him.

So there’s a bit of what Gadfly is pondering.

How about you? Where’s your mind?

We’re still in the weighing time but should be tightening the focus.

Frankly, Gadfly is not seeing more things that would change his first opinion to deny the petition and is worried that he is locked in.

Contrary views welcome. Contrary views needed!

Live-Streaming Council in Easton

Kurt Bresswein, “Lights, cameras, legislative action! Easton to begin live-streaming council meetings.” lehighvalleylive.com, November 29, 2018.

“Easton Mayor Sal Panto Jr. announced toward the start of the agenda Wednesday night that city council’s meeting was being audio- and video-recorded. It was a dry run for live-streaming of council meetings set to begin Jan. 9, 2019, on the city website, easton-pa.com. Easton is joining Allentown in live-streaming city council proceedings, something Bethlehem City Council President Adam Waldron said earlier this month he’d be looking into, as well.”

Whattaya think, Gadflyers?

Gadfly has been posting some video and audio to make meetings come and stay “alive” for you.

In hopes of spreading knowledge of, interest in, and participation in civic affairs.

Apparently we’re close to joining Allentown and Easton.

Upsides are pretty obvious.

Do you see any downsides?

The Case against the 2 W. Marketers (36)

(36th in a series of posts on 2 W. Market St.)

So now let’s make the case for the other side.

Opposers:

Why should the Court refuse to authorize use of this residence as a business office through a text amendment?

Answer:

  • we recognize the high quality, quite expensive renovations to the house
  • but businesses belong in zoned business spaces, such as Broad St.
  • this house is incontrovertibly in a residential zone; an office is not a residence
  • the renovated building is beautiful, but it is not a home
  • the essence of a residential neighborhood is a sense of community
  • community means people sharing life together day and night, all week, all year – a lifetime
  • businesses do not add community to a residential neighborhood
  • the demonstrable trend in our neighborhood is to convert buildings back to residential use
  • a trend identified in and fostered by Bethlehem’s Comprehensive Plan
  • we want to avoid opening a door, setting a precedent, embarking on a slippery slope that will reverse that trend
  • in doing so, we are aligned with the vision for the City offered in the introduction to the Bethlehem Comprehensive Plan
  • in doing so, we are aligned with the intention of section 1323 of our Zoning Code, often affirmed by the courts, to remedy incompatibilities when the opportunity arises
  • on the contrary, this amendment offers no connection with the Comprehensive Plan
  • on the contrary, this amendment violates the spirit of the specific “store front” Zoning Code text it amends
  • no reason has even been given to expect any good for anybody but the homeowner
  • this amendment is illegal spot zoning
  • this amendment is contrary to the aspirational direction of a zoning code
  • the highest court in the state has already spoken on this issue
  • Neither the city planning commission nor the administration are explicitly recommending this change
  • only 2 of 13 testifying in support of the petitioner at City Council were neighbors
  • those speaking in support of the petition mainly included principals, employees, clients of the petitioner, local business people, and past owners of the house
  • virtually all testimony was on the character of the people and quality of the renovations not on the legal issues
  • renovating houses in this area at high cost is normal, routine, not unusual
  • we are people of good character too and have likewise spent thousands and thousands of high quality dollars on our houses
  • renovation occurred during an appeal period and thus was done at the owner’s risk
  • expert testimony, not anecdotal evidence, showed there is an unfilled demand for these Historic District houses as residences
  • if the petition is approved, we will sue, causing the City to incur yet additional legal fees and wasted time

Once again Gadfly needs you to weigh in. He has already made two tweaks on the case for the Marketers as a result of comments.

Is this a fair representation of the testimony we have heard against the petition over the two long meetings? Is this a good summary of the opposition case? Are there points wrong? Are there points missing? Are there signs of bias?

Is this, for instance, a handy checklist for Council members to be considering as they prepare to make a decision?

Gadfly will again modify this list based on appropriate comments. Weigh in.

Still not time to argue. Make sure we understand both sides first.

The Case for the 2 W. Marketers (35)

(35th in a series of posts on 2 W. Market St.)

Gadfly believes his followers are thoughtful, intelligent people who recognize the general significance of the 2 W. Market issue for everybody and who like to feel they are participating – if only from a distance – in important affairs of the City.

Ha! Thus, Gadfly hopes he hasn’t lost you as he tries to wrestle the many details in this complex case into a shape conducive to making a decision.

Followers have seen me fussin’ over a “standard” against which to judge the petition in the last couple posts. Hold that thought for a bit. We’ll come back to it.

“We” heard a lot of testimony (and Gadfly reminds you that extensive audio of both the Nov 8 Planning Commission and the Nov 20 City Council meetings can be found in recent posts).

We are ready for concluding statements.

Imagine we are in a courtroom before a judge.

And that the judge asks each side to submit one page of bullet points in answer to these respective questions:

Why should the Court authorize use of this residence as a business office through a text amendment?

Why should the Court refuse to authorize use of this residence as a business office through a text amendment?

Play along with Gadfly. Have some fun.

He will try to sum up both sides in a concise manner. (Not an easy thing to do, he says.)

First, of course, the petitioners, on whom logically it rests to “make their case.” Then Gadfly will next do a similar bullet list for the other side.

So, here goes.

Petitioners:

Why should the Court authorize use of this residence as a business office through a text amendment?

Answer:

  • citizens have a right to initiate a zoning amendment
  • that right implies it is reasonable to seek personal benefit
  • the range of the amendment is quite limited
  • the impact of the amendment citywide will be relatively minor
  • the amendment causes no harm to others, may even be good for others
  • subdivision of the lot to solve the complex mixed-use is not possible
  • though the state court ruled against us, we feel local jurisdiction knows best
  • experience shows that the house was not readily saleable as a family residence
  • we saved a decaying house, investing thousands and thousands of dollars
  • we modestly feel that our work on the house improved the neighborhood
  • we restored the house to its original condition in a far, far greater degree than usual
  • we are not visibly a business, have had no negative external effect on the neighborhood
  • our roots are in Bethlehem, we plan to be here for the next 30-40 years
  • we are “involved,” we are active participants in and financial contributors to Bethlehem activities
  • we are ready to invest $400,000 in further renovation of the historic Green buildings
  • the neighborhood people have spoken in our behalf through a recent survey
  • supporters have called us “benefactors,” giving a gift to the City
  • the family of the long-time previous owners marvel at what we did
  • close neighbors have noted that their property values have increased
  • if our petition is denied the residence will most likely become a group/rehab home
  • especially with such negative outcomes likely, we think approval is commonsense
  • bottom line: we love the house, love the historic district, love Bethlehem

Ok, now Gadfly needs you to weigh in. Is that a fair representation of the testimony we have heard over the two long meetings? Is this a good summary of the petitioner’s case? Are there points wrong? Are there points missing? Are there signs of bias?

Hold off on arguing against the points. Not time for that now. Now is time for trying to concisely understand each side.

Is this, for instance, a handy checklist for Council members to be considering as they prepare to make a decision?

Gadfly will modify this list based on appropriate comments. Let’s hear from you. Especially those siding with the petitioners. Meanwhile he’s off to try to boil down the opposition case.

Gadfly does some homework (34)

(34th in a series of posts on 2 W. Market St.)

“What is the standard against which a citizen petition is judged?”
Gadfly post #33

Gadfly’s focus on a “standard” in his previous post sent him – for the first time, really – to read deeply in our Zoning Ordinance and Comprehensive Plan this morning, assuming that these documents would be/should be touchstones in the 2 W. Market controversy.

Gadfly is not a lawyer, of course, just an average citizen like most of his followers, but he shares with you here some sections from these Constitution-like documents that seem to be relevant to this petition.

ZONING ORDINANCE

[A standard: “promote the public health, safety and general welfare.” Sections (i) and (j) specifically.]

1301.03 Purposes. The purposes of this Zoning Ordinance are to promote the public health, safety and general welfare by:
(a) Encouraging the most appropriate use of land.
(b) Preventing the overcrowding of land.
(c) Conserving the value of land and buildings.
(d) Lessening the congestion of traffic on the roads.
(e) Protecting important natural features.
(f) Providing for adequate light and air.
(g) Securing safety from fire, flood and other dangers.
(h) Facilitating the adequate provision of transportation, water, sewerage, schools, parks and other public facilities.
(i) Giving reasonable consideration, among other things, to the character of districts and their peculiar suitability for particular uses.
(j) Guiding and regulating the orderly growth, development, and redevelopment of the city in accordance with the adopted Comprehensive Plan of the City of Bethlehem, and to serve the objectives and principles of such Plan.
(k) Carrying out the authorized purposes of a Zoning Ordinance, as provided in the Pennsylvania Municipalities Planning Code, as amended.
(l) Carrying out the purposes of the Pennsylvania Floodplain Management Act, as amended.

[The intention of the entire 1323 to “provide a gradual remedy for incompatibilities” relates to the opposition view that the purpose of zoning is aspirational, that is, to turn non-conforming uses into conforming ones when possible. It is not clear to me whether 1324.04 would include “office use” as “use,” but it does seem like a “new nonconformity.” The language of 1323.08 sounds applicable here.]

1323.01 Purposes. The regulations governing existing non-conforming uses are set forth in this Article and are intended to provide a gradual remedy for the incompatibilities resulting from such non-conforming uses. While such lawful uses are generally permitted to continue, these regulations are designed to avoid changes that could increase nuisances and hazards. These regulations are thus designed to preserve the character of the districts established in this Zoning Code in light of their peculiar suitability to particular uses, and thus to promote and protect health, safety, and general welfare.

1323.04
(c) Any expansion of a nonconforming use or structure shall meet all required setbacks and all other requirements of this Ordinance. No new nonconformity shall be created.

1323.08 Displacement. No non-conforming use shall be extended to displace a conforming use.

[Establishes right of the individual petition.]

1326.02 Who May Initiate. Proposals for amendment or repeal may be initiated by City Council on its own motion, by the Planning Commission, or by petition of one or more citizens, subject to the following provisions:

COMPREHENSIVE PLAN (2008/2009)

[The introduction to the CP is relevant to the opposition position of aspirational planning and zoning — a look to a future different than conditions that existed in the past.]

What is a Comprehensive Plan?

Bethlehem’s new comprehensive plan charts a course for the future. The plan describes how Bethlehem should continue developing over the next decade. The plan also highlights what should not change – those community features the City should strive to preserve.

A Timely Update

Bethlehem last updated its citywide comprehensive plan in 1991. At that time, Bethlehem Steel was the City’s largest employer and landowner. Since Bethlehem Steel closed in 1998, the City has attracted millions of dollars of commercial and residential development. Bethlehem was a recent Money Magazine choice for one of America’s most livable cities. Today, the former Bethlehem Steel site is home to a prosperous business park with construction underway or planned for a variety of other uses. Numerous adaptive reuse projects have brought new life to both the City’s North Side and South Side downtown business areas. New housing, new cultural attractions and growth of the City’s major educational institutions continue to reshape Bethlehem. The next steps in Bethlehem’s growth promise to attract more new people and new investment to Bethlehem. The City looks to its updated comprehensive plan to help guide this ongoing renaissance.

The Zoning Ordinance is not an exciting read, but Gadfly recommends the Comprehensive Plan. Note that both are linked from the Gadfly sidebar for always easy access.

The Heart of the Matter (33)

(33rd in a series of posts on 2 W. Market St.)

Thinking the Nov. 20 meeting was “Crunch Time,” Gadfly ventured how he would vote on the 2 W. Market petition. Denial. With reasons. (Post #26)

Ahhh, but Nov. 20 was not Crunch Time. The petition will get a first reading Dec. 4 and a second reading Dec. 18. (Gadfly is not sure if, except for public comment, there will be time set aside for further testimony.)

Let’s call Dec. 4 “Crunch Time (2).”

Some more time for Gadfly (and you) to rethink, consider new evidence, decide again —  while City Council is heading for its first decision.

As d’poet says, “time yet for a hundred indecisions, / And for a hundred visions and revisions, / Before the taking of a toast and tea.”

There are many details in this controversy. Gadfly’s trying to separate wheat from chaff, major from minor, determinative from non-determinative. Gadfly doesn’t see that this “case” should be decided on such details as the future of the Green Buildings or the accuracy of the interior wall paper or how big the backlog of potential buyers in the HD is.

Do you catch my drift?

Mr. Malozzi of the PC said, in supporting his decision, you have to “cut away” some things. Well said.

You have to cut away a lot of things to focus on the heart of the matter.

That’s hard.

But that’s what Gadfly is trying to do: focus on the heart of the matter.

So here are two things Gadfly really hadn’t thought about before and, he believes, are trails not followed so far. And that, he thinks, live around the heart of the matter.

1)  The City has said several times that a text amendment is not the usual way to go for a single petitioner, but an appeal to ZB is the usual way. Gadfly doesn’t believe anybody has followed up on that. Why isn’t the petitioner going to the Zoning Board if that is the usual option? Is it that they have burnt their bridges there? Or is that truly now still an option? If there was a fork in the road that is clearly less unclear in the extent of impact on other properties, why didn’t the petitioners take that one? The City has pointed out the unusual fork that the petitioner took, but I don’t believe the City has attempted to “force” or even “urge” them in that direction. Why? If there was a “usual” path, wouldn’t it make sense to take it first and to take the “unusual” path if denied at ZB and unwilling to end the matter there? Shouldn’t the “unusual” path be absolute last recourse?

2)  This one seems closer to the heart of the matter. Atty Preston has argued that it is perfectly ok to petition for your own benefit:

“One of the contentions is that because it’s a landowner proposed amendment, that it benefits a landowner, somehow it smells.  But, as you know, citizens have an absolute right to petition their government for a legislative change. And those laws are incorporated in our land use laws and so forth, and of course they are incorporated in your zoning ordinance at article 1326. Which says that ‘Proposals for amendment or repeal may be initiated by City Council on its own motion, by the Planning Commission, or by petition of one or more citizens, subject to the following provisions.’ And I would respectfully suggest that it would be the rare case where someone would propose a zoning ordinance amendment that detrimentally affects their property, the fact that someone would propose a zoning ordinance amendment that would benefit their property should not come as a surprise to anyone.”

Gadfly previously quickly accepted Atty Preston’s point in his analysis of the PC meeting. But now Gadfly would like to see some examples of these citizen petitions and how they were decided. What were the petitions for – sole benefit of owner? City benefit? dual benefit? – and on what basis were these petitions adjudicated – good for the owner? good for the City? (It is possible to imagine a scenario in which an individual is petitioning for something he/she sees as good for the City with no direct personal benefit) good for both?
—————
Let’s poke at Gadfly’s #2 a bit. The more important of these two points.

Section 1326 – correctly quoted by Atty Preston above (the zoning ordinance is handily linked on the Gadfly sidebar if you ever want to check the source) – gives no rationale for permitting the citizen to directly initiate a petition that has to be acted on and acted on relatively immediately. What is the rationale? Gadfly could not introduce a petition that City Council was mandated to act on almost at once in any other area. (Hmmm, is Gadfly right saying this?) Why here?

What prompts a process in zoning that is not available to citizens in other areas except through official channels? (Again, if Gadfly is right.)

Let me put this another way: what is the standard against which a citizen petition is judged?

Hmmm, I think that is the concise question I have been struggling to articulate.

What is the standard against which a citizen petition is judged?

Gadfly does not believe he has heard the petitioner articulate such a standard.

He does believe he has heard the opponents to the petition do so.

Ms. Van Wirt, for instance, said the key question “is this move in the best interests of the city of Bethlehem and its residents?”

Mr. Stevens said that the petitioners have not established good for the City.

Mr. Yoshida also invoked a “standard.”

Can we agree that the heart of the matter is whether this amendment in “in the best interests of the city of Bethlehem and its residents?”

Or should there be some other standard?

Without a standard, I don’t know how there can be judgment.

A standard provides necessary focus in this case with a blizzard of details.

Gadfly has been very rambly. Too rambly. You have watched him think out some things in real time. But he has gone on too long. And will return to this point after a bit of a rest.

As usual, comments, especially contrasting or contradictory, always welcome as we try for a fair conclusion here.