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.

What’s new on 2 W. Market? (32)

(32nd in a series of posts on 2 W. Market St.)

Ok, did you use Gadfly’s “study guide” for your homework?

The December 4 Council meeting is just over a week away. Time to get crackin’.

There were the two long meetings on 2 W. Market. Planning Commission Nov. 8, City Council Nov 20.

Similar formats, and some of the same voices.

Gadfly covered the PC here pretty well (start at post #14 in this series). So, the first question he was thinking about is, was there anything new presented at CC?

As far as content/evidence, there were two major additions, one by Atty Preston and the other by Bruce Haines for those opposing the petition.

Here Atty Preston (the numbers are to the time on the meeting audio provided in post #31, of course – go listen) :

0:15:05: Here’s the new part. One of the objections to the text amendment at PC was lack of information about the impact citywide. Atty Preston provided information on that in material presented to Council. Bottom line is the claim that there are but 8 properties – an over-inclusive number – that might be impacted, according to research done by him and his team. Bottom line: impacts will be relatively minor.

Gadfly didn’t get the packet given to Council, but Atty Preston mentioned two specific properties (both food establishments) as examples: 1124 Linden and 834 Linden.

So, as Gadfly understands it, these properties (both food establishments) are examples of ones that could become office uses under the proposed text amendment.

Mr. Haines provided a spreadsheet on sales in the Historic District: HD Sales 3000+sqft 11-18 Update

2:48 Bruce Haines
HD resident. Hasn’t abided by ZB, has violations: fire escape + Green buildings still have retail use. So haven’t followed all rules. City inappropriately allowed them to do so. 27 sales in area between 2010-2018 were single family when sold and remained so. Consistent with other houses in HD, Way of life for new owners to come in with resources to update. Nothing new in what they did. All spend hundreds of thousands to renovate. Real estate agent Kelechava testified earlier to demand for houses. Backlogs. 17/27 needed updating. Only commercial there are grandfathered and dwindling. Prevent commercial creep. City should be standing up, not engaging in irresponsible city planning.

As far as content/evidence is concerned, Gadfly doesn’t remember being struck by anything else especially new.

But he was surprised by what to him were several new ways of looking at the issue.

Supporters of the petition boldly saw the owners as benefactors giving gifts to the City

2:16:58 Jim Kostecki
Bethlehem resident but not HD. Rij’s contractor. Has spent over 2 x estimate. Insisted to do right. Rij a “Benefactor” at work! Has presented a gift to the city. Remarkable. Stunning transformation. And he’s moving on to the Green buildings, which are in abominable shape. Will deteriorate. His commitment deserves to be recognized. Property values have gone up. Added impressive class to the HD. Dignity. Denial defies logic.

2:22:08 Jerry Kindrachuck
Allentown tax planner. Quality is unparalleled. Cost of $400, 000 to renovate Green Bldgs. Will be a gift to Bethlehem. Rentals wouldn’t pay this off. A gold nugget in the city of Bethlehem.

And the analogy of this situation to the football replay process rippled through several responders, for and against the petition:

1:45:05 Rick Penskie
Office in HD. State level overturned local decision. Higher level ruling made a controversial decision. Football analogy. Like replay. Need overwhelming evidence on the ground or ruling stands. This a replay. Made decisions locally at first (ZB). Unless overwhelming evidence not fair for you to overturn your decision. Pretty even. Controversial for sure. Not overwhelming, though. So decision should not be overturned. City made a commitment to them + they spent a mill $$$$. Should approve.

On the other hand, this cancer analogy was striking and also rippled later:

1:57:58 Stephen Antalics
A Bethlehem Gadfly. Quality of city based on residential community. Historical precedent with what happened in the Southside. For money interests, City defined a family as 5 students. Vibrant Southside went down house by house over the years. Quality of life done. Cancer. Started with one property allowed by Zoning. Precedent. Will cancer cross the bridge into Northside? Drives out single families. Precedent. Beware.

Ok, onward to more questions and analysis!

Gadfly’s Study Guide to the 11/20 Council Hearing on 2 W. Market (31)

(31st in a series of posts on 2 W. Market St.)

Nicole Radzievich, “Should Bethlehem allow this firm to stay in the historic home it renovated?” Morning Call, November 21, 2018.

The petition of the owners of 2 W. Market St. in the Northside Historic District to use that residence as a business office is up for a first vote at City Council December 4.

The petition had a multi-hour public hearing in front of the Planning Commission November 8. One Council member attended. The PC deadlocked twice 2-2. Gadfly covered this meeting extensively beginning here with post #14.

The petition had its second multi-hour public hearing (3 1/2hrs to be exact) before City Council November 20. 5 of 7 Council members attended. Gadfly’s coverage of that hearing begins now.

It’s important that the decision in the Council “Court” and in the court of public opinion be based on the widest range of relevant information.

To aid Council (ugh! I know that sounds condescending) and Gadfly followers in the court of public opinion understand the issues and form decisions, Gadfly provides here the following on the November 20 hearing:

1) an audio recording of the entire hearing

2) a “table of contents” file breaking the hearing down into its component parts with time marks for each part for easy reference to the audio to hear and review specific parts

3) the “TOC” file groups the public arguments for and against the petition for ease of assessing each side

Please take a listen and a look.

2 W. Market: Presentations before Council and Questions/Statements by Council —
Nov. 20, 2018:

2 W Market 11-20

Gadfly loves this stuff. Hope you do too! Democracy in action.

Here’s our groundwork of facts. Absorb it. Then we move to questions and analyses.

Once again, Gadfly hopes you will join the conversation on an issue that, at base, affects all of us.

Good conversation builds community.

All of us are rescuing historic district properties (30)

(30th in a series of posts on 2 W. Market St.)

Barbara Diamond enjoys retirement as Lehigh University Director of Foundation Relations by engaging in various activities and organizations hopefully for the betterment of the community. Her particular interests at the moment are preventing gun violence, local government ethics reform, and Bethlehem Democratic Committee work.

Gadfly:

Breena has made so many important points here, but a lot boils down to the ability of well-heeled people to bend people in power to their interests. You are correct that Attorney Preston has not answered the question of why this change would be beneficial to the community. (We understand the benefit to the property owners). The only thing presented is their claim that they are rescuing a historic district property, but we dispute that this is anything more than the rest of us who own these “money pits” do. What seems most at stake here is whether our public officials are willing to accede to the demands of a city benefactor that would impact the city & other property owners in unknown but potentially significant ways. The threat that the deliberative process that resulted in our current zoning regulations could be so easily undermined for political reasons has potentially negative consequences for trust in government. I understand that both sides believe they are standing for the preservation of the historic district. The opposition seems to feel it needs protection from apartment dwellers and has even heard threats of a drug rehab facility and even Section 8 housing. The side I support is more concerned about turning this residential neighborhood into a commercial zone. Diversity of residential offerings is more important to me in creating a healthy neighborhood than creating opportunities for businesses to cannibalize the residential neighborhoods.

Barbara

 

Bethlehem Moments: A Proposal (8)

(8th in a series of posts on Bethlehem Moments)

Taking a break from the big project of organizing the public hearing on 2 W. Market last Tuesday.

Remember that in these 8 posts, Gadfly is kind of drafting a proposal for Council to add a Bethlehem Moment to the opening of each Council meeting. Thinking out loud about all the components of such an addition.

So we have had 2 so far, one on the Hill-to-Hill bridge fund raising as a precursor to the joining of the boroughs that  gave us the single town of Bethlehem, the other on the death of 14 Bethlehem “boy” Army recruits in what was then the greatest air tragedy in Lehigh Valley history.

Too random? The scholar in Gadfly would start at the beginning way back in Europe and work up to the present over the next 50yrs of his life. But that wouldn’t work, would it? But is just bouncing around too random? Gadfly is reading and thinking about Bethlehem history in an unorganized way, and, as long as he is doing the Moments in this trial period, he will just wait to be struck by something interesting.

Gadfly’s Hill-to-Hill Moment came as a result of the billboard controversy (Whatever happened to that? Did Gadfly hear we did get sued?). The plane crash came out of studying Triangle Park and the presentation at Council on plans for the Rose Garden.

So Gadfly’s finding the Moments so far from what seems to be going on now.

Does that feel alright? Or should there be more structure?

So that’s one thing Gadfly is thinking about, Moment-wise.

A second is that he is not sure the Moments will really be meaningful unless they are ultimately incorporated at the very top of the meeting right after the prayer and the pledge.

To do them as part of public comment feels not right at all.

There they lose their isolated and high-lighted significance. There they get mixed in with business. When the meeting starts after the pledge, people go into work mode. The introduction is over, and now we’re focusing on the “meat” of the meeting.

If there is any future for the Bethlehem Moment idea, it has to be as part of the introduction to the meeting.

A third thing Gadfly is wondering about is the title. Would “Bethlehem Remembers” be better?

So that’s what Gadfly has been thinking about in regard to the “Bethlehem Moments.”

Shoot me some ideas, or do one in this trial period. What say?

Ok, back to 2 W.

Small is beautiful

Black Friday. Gadfly’s email bin is stuffed with invitations to buy.

Black Friday is followed by “Small-Business Saturday.” Well, you can call it “Small Business Saturday,” but the English prof twitches if that hyphen isn’t in there.

shop smallPart of me has always thought of SBS as a clever marketing ploy.

The brainchild of a big business.

But the “Neighborhood” thread that has naturally evolved over the two months of Gadfly life has fostered new eyes.

Even in all the convolutions of the 2 W. Market controversy, there have been several references to the importance of the fairly new Church Street Market to that “neighborhood.”

Gadfly doesn’t know that he needs to be nudged to patronize local small businesses – they are part of the fabric of his life. But it makes sense to take this occasion to appreciate the local SB’s.

Aykroyd’s Hardware jumps to mind. Been around forever. A clerk meets you at the door. Where does that happen? Have you ever drifted around in Lowe’s like one of the Walking Dead like Gadfly has?

Gadfly’s lucky to have two great food places within two blocks – Carl’s Corner and Fratelli’s Pizza. I get “Hey, Mr. G” in one and “Hey, brotha” in the other. Who can resist the hard-working Fratelli family? And Papa Fratelli cutting up melons for the grandkids?

One of the Bethlehem Facebook groups had a nostalgic stream running fairly recently about the disappeared local corner food markets. Sanitary Market was our staple. In a previous residence it was the Linden Market. Linden is still there, and Gadfly held his breath at a recent Planning or Zoning meeting when changes in that property were presented. But it will remain a food market, just enhanced. Phew.

Gadfly is like a kid in a toy store at Abe’s on W. Broad St.

And on and on.

Gadfly believes that most of his followers already recognize the importance of small businesses to our neighborhoods and don’t need a glitzy promotion to prod us to shop there.

But this just might be a good day to at least think for a moment about the value small businesses provide to the quality of our lives — and appreciate.

decisions can’t be based on likability (29)

(29th in a series of posts on 2 W. Market St.)

Breena Holland is an Associate Professor at Lehigh University in the Department of Political Science and the Environmental Initiative. She is a past and current director of Lehigh University’s South Side Initiative.

Gadfly, with all due respect, I disagree with part of what you are saying about the complexity of this issue. Specifically, you keep stating that “There are good people and good supporters on both sides.” Why would this be a criterion for evaluating whether or not we should change our zoning ordinance? This is a matter of law and planning. The minute it becomes about the quality of the people involved (i.e. how good they are), then we are opening a whole can of worms. What counts in determining if someone is a good person? Is someone good because they have complied with existing laws and been good community members? How do we know if that person is better than another good community member, say someone who is a fine upstanding citizen, but does make large donations to the city? If the person who makes donations to the city is “better,” then does one have to be rich enough to make donations to fall into this category of being deemed worthy of characterization as a good person? When government starts making decisions about planning based on the likability of people who want it to be done in a way that serves their own narrow interests, we have a real problem.

I watched the whole hearing last night too, and while I was indeed convinced by the petitioners that the guy who will benefit from this zoning ordinance change is beloved by many people who have benefitted from his business, I just don’t understand why the fact that people think he’s a great guy, or a good upstanding citizen who complies with all the laws everyone else complies with, or who is going to lose money if he doesn’t get the zoning change he wants, is remotely relevant. And do you really think he’s that good of a person if he’s so willing to put a drug rehab facility in the middle of the historic district if he can’t get what he wants? C’mon!

What I find unacceptable about efforts to circumvent past decisions is that it disregards all the effort made by people who spent their time and energy to create a vision for the city. Why bother participating in these efforts to create historic districts, and comprehensive plans, or zoning codes, if they are just going to be circumvented at a later date? Why would a citizen want to participate if it all will be ignored later when many of the original creators are no longer around? But this is what we do in this city: we get a bunch of earnest citizens to work with planners and consultants and government officials to create rules that will promise to protect the city from the things we fear, and then we ignore these plans/guidelines/codes when someone with a lot of money comes in and wants a special deal. It does not matter if the guy who wants the deal is an angel or the devil. What does matter is that preferential treatment of that person blatantly disregards the community of people who were being good citizens before we arrived and who put a great deal of their life energy into trying to protect the community they were invested in. Does that mean anything? Do we just break the rules they created after a single public hearing, in order to make a change that solely benefits one person or business, because all the proclaimed supporters testify to that one person’s likability. I would like to live in a city that makes everyone abide by the same rules. Equal treatment under the law.

If people want to change the rules, they should provide reasons why the changed rules are good for everyone. No such reasons were offered last night. All we heard was why the rule change for the super great beneficiaries wouldn’t have a big impact on everyone else except for — most obviously — all those neighbors who spoke last night. They also invested in the same neighborhood based on what they understood to be in the current zoning code. I could not believe some advocates of this zoning change had the nerve to tell residents that if they did not like the changes that would commercialize what was intended to be a residential district, then they should just move to a real residential district. The opposing residents are probably also good people, but at least they behaved like that was not relevant. The zoning code isn’t there to benefit people who are popular, or rich, or who have a successful business. It’s there to protect all citizens from deviating from a plan for city development that was well-reasoned, proofed, and publicly adopted.

Dr Pooley’s testimony was important in explaining why the requested change is not a small change. It’s a significant change to the zoning ordinance, and, as such, it requires more than a single public hearing among a small number of people who have a stake in the immediate decision that is motivating the change. Of course, it would be par-for-the-course for city council to approve this and avoid the likely backlash for not showing favoritism to the one person and his friends who are requesting this change. I’m really sorry that the petitioners could not find another way to get around the rules, but I’m more sorry for the public officials who are being asked to make a decision that the mayor should have flatly rejected as reasonable from the beginning. How much time, energy, and money are we going to waste satisfying the interests of one person while all the things that this council should be working on are pushed to the side? If this is really in the interest of the city, it is my hope we will spend a lot more time publicly discussing the implications. In all the sympathetic and emotive appeals put forward by the friends of the zoning change last night, there was only one bit of testimony by the man from Easton who spoke near the end, who made me think we should spend further time on this issue. He had some suggestions for dealing with investments in historical structures that I’d be interested in hearing again. The other testimony on behalf of the zoning change seemed almost entirely beside the point.

Breena

Gadfly has always said he’s waiting for the whack upside the head. And here ’tis!

Now Gadfly’s going on break (28)

(28th in a series of posts on 2 W. Market St.)

 Thus sayeth the Gadfly: “So maybe one more post on 2 W., and then we’ll take a Thanksgiving break.”

Here ‘tis.

Lots of people talked at the public hearing last night on 2 W. Market.

There were points made big and small.

And almost every point had two sides.

Very confusing.

How to make order out of that randomness.

I wondered what I should say. We are on post #28 here. How was I going to boil all that down? Or what should I select out of all that on which to focus? (Notice how I craftily avoided ending with a preposition.)

What was the best approach to “help” Council make a decision?

My mind wandered to the front table.

How were they going to make a decision?

First of all, only 5 of 7 Council members were present for this 3hr meeting. And only 1 Council member was present at the similarly long recent Planning Commission meeting.

From questions asked, it didn’t appear to Gadfly that, except for Councilwoman Van Wirt, the Council was especially up to speed. How were they going to make sense out of all that randomness? How were the ones who missed this meeting as well as the previous one ever going to make up for what they missed? Would they be listening to audio tapes?

What I decided to do was try to offer a clearer suggestion for how to think about organizing all that random material so you could think about it more clearly and then ultimately make a decision.

A suggestion right out of my teaching playbook.

Put the purpose of the petition at the top of a page. Then make two columns, one headed “Why?” and the other “Why not?” Then go at it filling in both sides.

At the Planning Commission, Atty Preston said in sound-bite fashion the purpose of the petition was “adding an additional use to the zoning ordinance.” So put that at the top of a page.

Now, it seems to Gadfly that the next most logical question is why. “Atty Preston, why are you proposing adding an additional use to the zoning ordinance?”

And then Atty Preston would answer, “We are proposing to add an additional use to the zoning ordinance because __________________,” or “The main reason we are proposing to add an additional use to the zoning ordinance is __________________.”

Same with the opposition: “The main reason we are opposing adding an additional use to the zoning ordinance is _____________.

Gadfly would have loved to see the clarity of such succinct questions and answers.

Respectfully, Gadfly thinks Atty Preston’s presentation began off-point. At the more detailed presentation to the Planning Commission, his first major point was the text amendment v rezoning distinction. Which is “how” the additional use would be achieved. We got into the technical weeds very quickly.

So he told us “what” he was petitioning for and “how” it would be achieved but not “why” he was proposing this in the first place.

Gadfly thinks “Why?” is the first place.

Gadfly’s playing with the idea of asking the “why” and the “why not” questions and posing the answers side by side to see if that will clear the air a bit.

Gadfly said last night that this would be a tough decision for Council. There are good people and good supporters on both sides.

We must do all we can to make sure decisions are thoughtfully made.

See you after “break” on this and other Gadfly things.

Taking a break on 2 W. Market (27)

(27th in a series of posts on 2 W. Market St.)

It was a packed house last night at Town Hall for the hearing on 2 W. Market.

Were you there?

The Public Hearing lasted over 3 hours – and then the “regular” meeting went on after that.

Gadfly had bail out early in the regular meeting. Sigh.

But there was plenty of action for one night.

In many ways it was Gadfly’s Norman Rockwell fantasy of small-town life come alive.

Residents arguing passionately on both sides of the 2 W. issue just like at the previous Planning Commission meeting.

The only trouble was feelings are starting to get frayed and the conversation verged on going “low.”

For instance, Gadfly was working the lobby afterwards handing out Gadfly business cards, and his offer to one person (not one of the principals or otherwise directly involved as far as he knows) met his outstretched hand with a hard physical swipe and an angry, even menacing, “get that outta here.”

A clear indication that we have to try to look at this issue in as hard-headed a rational view as possible.

Announcement at the beginning of the meeting was that no vote would be taken but that the case would be scheduled again for the next meeting.

So Gadfly is going to go through his notes and tapes of the 3 hours last night and report on what seem to be new things.

And he will also spend the next post framing his thought process a bit differently than he has before – all in an attempt to get a handle on what is a complex argument.

So maybe one more post on 2 W., and then we’ll take a Thanksgiving break.

Needed!

That will be me you see in the Weiss check-out line in a short while.

Bethlehem Moment 2: Bethlehem Mourns

Bethlehem Moment 2
City Council
Nov 20, 2018

Ed Gallagher 49 W. Greenwich

A Bethlehem Moment: November 8, 1961

In Berlin August 1961, the Communists built a wall, and in Bethlehem November 1961 fourteen young men joined a U.S. Army expanding to meet an escalating international crisis. Before these “boys” touched a uniform, much less a weapon, they were dead, incinerated in a tragic plane crash near Richmond on the way to basic training. Their deaths hit the town hard. They were our neighbors, living on Broad St, Center, Brodhead. Though aged 17-22 – yes, one was 17 — they were “boys” to us. Their high school class pictures stared at us from the obituaries. They lived at home with Mom and Dad, had nicknames from cowboy heroes, pets that followed them everywhere, girls they didn’t want to leave, careers on hold. Some had never flown before. We gasped at the terror of the phone that rings in the dead of night. We watched helplessly as hope drained away. We grieved with mothers who ran shrieking from houses, never to be the same again. We shrugged shoulders with fathers who had premonitions of disaster. We were reminded through our shared mourning that we are a town not just a geographically framed collection of individuals. We were reminded that there is no such thing as a “cold” war. Lest we forget these valuable lessons, we erected a monument, which now resides in the Rose Garden.

For a more detailed description of this event, see the “Bethlehem Pays the Price for Freedom 1961” post dated Nov. 18.

Crunch time! (26)

 (26th in a series of posts on 2 W. Market St.)

Here we are.

Decision-time on 2 W. Market.

Gadfly has tried to model here a decision-making process.

Gathering all information.

Opening to all sides.

Taking time to think.

Gadfly’s ready to make a decision.

How about you?

And will you come tonight to see Council engaging in activity at the core of its role in City government?

And, like Gadfly, test your thoughts against theirs.

So: Gadfly thinks Council should deny the petition of the owners of 2 W. Market.

Why?

  • All things considered, it is hard for Gadfly to see that this is anything else than “relief” for one party. There is no claim that there is any demonstrable need to do this from anybody else. There is no claim that this will do any demonstrable good for anybody else.
  • The petitioner’s claims seem more on the order of there is no reason that you can’t do this for us if you want to: it’s not spot zoning; it will only have limited applicability, so you aren’t going to get overrun; it won’t look like a business, so it’s not going to change the appearance of the neighborhood.  Negatives.
  • If there were general demonstrable need from others, if there were general demonstrable demand from others, if there were general demonstrable good that could be done for others, Gadfly assumes the City would be aware of all of that and initiating changes in the normal order to things.
  • Instead, in Gadfly’s mind, the City, in the combination of written and verbal testimony, has made a case for denying the petition.
  • The owners of 2 W. Market are not aggrieved. They initiated the renovating while the case was still in a court time frame. There are commercial district opportunities for their business. Testimony indicated the property was saleable.
  • The “aspirational” nature of zoning codes is a genuine and legitimate basis for the passionate opposition of some of the neighbors of 2 W. Market.

Gadfly will leave it at that for now.

Would anyone like to agree or disagree with Gadfly?

How do you see it?

Opposed to 2 W. Market (25)

(25th in a series of posts on 2 W. Market St.)

The position of those advocating denial of the proposal to permit a business operation in 2 W. Market was concisely summarized by Atty Tim Stevens. As Gadfly has done before, he will list those points and add some commentary.

Attorney Tim Stevens: key reasons to deny the petition:

  • 1) it’s self-serving interest, and that’s spot zoning

Gadfly is not sure that the “self-serving” part is so determinative in establishing spot zoning. He thought that Atty Preston did a satisfactory job of establishing the petitioner’s right to some self-service, if you will. Remember that Atty Stevens was jamming a lot into his 5 minutes of comment time, so he may not have had sufficient time to explain this point here, and, of course, Gadfly may not be representing his position correctly. We must remember, too, that Atty Preston has thrown a shadow over the whole spot zoning argument by asserting that rezoning is a necessary component. So Gadfly is not inclined to see this point as strong.

  • 2) it’s unclear how many other properties would be affected

Remember that Gadfly dealt with this point in a previous post regarding the City’s input into this deliberation. Yes, this is a strong point. Both “no” votes on the Planning Commission thought so too. Mr. Scheirer suggested the petition be tabled until more information could be gathered. But the City had already said it was not sure how that information could be gathered.

  • 3) it’s contrary to the corner lot provision that is specifically tailored for those architecturally unique corner properties such as the food place across the street from City Hall

Remember that Gadfly also dealt with this point in the City post. Yes, this too is a strong point. In that previous post, Gadfly collected some photographs that starkly show that 2 W. Market is nothing like the properties envisioned in this section of the Ordinance.

  • 4) there’s nothing unique about this property being on a corner

In style and appearance, the residence of 2 W. Market is indistinguishable from its neighbor houses on that block, as Gadfly tried to show from other photos in that previous post relating to the City’s input. Gadfly sees this as a strong point.

  • 5) it flies in the face of section 1323, where we see the whole theory of non-conforming uses is to bring them back into conformity (gave 5 examples of non-conforming use brought into conformity lately. The trend over the last 15yrs is to make mixed-use into residential properties

Here is the preamble to section 1323:

PROCEDURES AND CONTROLS GOVERNING NON-CONFORMING USES

1323.01 Purpose

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 uses are generally permitted to continue, these regulations are designed to restrict further investment in such uses, thereby keeping them from becoming more permanent establishments in appropriate locations.

These regulations are thus designed to preserve the character of the districts established in this Zoning Code in the light of their peculiar suitability to particular uses, and thus to promote and protect health, safety, and general welfare.

This idea of an “aspirational” zoning plan, as Paige Van Wirt named it, struck Gadfly hard. He had not thought in these terms and had not heard this argument before in the deliberations over 2 W. Market. He feels it a very strong point. See below for elaboration.

  • 6) it violates Bethlehem’s Comprehensive plan, such as fostering smart-growth and fostering a sense of place

Remember that here too, Gadfly dealt with this in the City post. As Gadfly said there, he could not understand why the City was not taking a position but suggesting caution when it was making such a strong case for denial of the petition. One would think that a change of this nature would have to be vigorously argued as aligned with the City’s Comprehensive Plan. Another strong point for the opposition.

——————–

Gadfly would now like to return to bullet #5 and Van Wirt’s public comment.

Coming toward the very end of a long meeting, Van Wirt’s labeling the residential zoning code “aspirational” illuminated this whole process for Gadfly. Put it into perspective.

Because there are non-conforming uses in a district does not mean that they were approved that way and are precedents for others. As Gadfly understands the history of zoning ordinances, they sometimes (most times?) come later than the areas they zone, and certain non-conforming uses are grandfathered in.

But the “aspiration” of the zoning ordinances is to return non-conforming uses to conforming when they become available to do so, not to proliferate non-conforming uses.

Van Wirt’s brief “history” of her neighborhood, and her view that it is now struggling to come back from a past era in which certain negative things were perhaps necessarily allowed, rang true, made sense.

My analogy: the neighborhood is “in recovery.” Which explains the vigorous passion on the opposition side not to step back.

And Gadfly can say that he saw this “aspirational” rationale (without calling it such) for zoning expressed by the courts several times as he – amateurishly – tried to research court decisions when looking for information about spot zoning relative to Atty Preston’s presentation.

Van Wirt made strong points about the need for commercial entities to be in our hurting commercial districts, but this “aspirational” label helped me understand the oppositional neighbors.

Nobody denies the quality of the people or the building, but they/it are in the wrong place and violating basic zoning principles.

Gadfly found this, virtually the last major point made at the PC meeting, a tipping point for him.

————————-

So there’s the end of Gadfly’s flyover of the different perspectives on this case.  He’ll come back one more time to wrap up before tonight’s meeting. What are your thoughts on this matter? What should Council do tonight?

Now The City (24)

(24th in a series of posts on 2 W. Market St.)

Which brings us to “testimony” by the City.

The City – in verbal testimony — is “not taking a position” on the petition, but, regarding a text amendment designed for a particular property, says, “we do suggest some caution.”

Gadfly is surprised that the City did not take a firm position on the petition. But he does not have much experience in these hearings. And thus a middle position might be a familiar one.

Gadfly was surprised because he felt that the City outlined a forceful case against the petition.

So strong did the points seem to Gadfly, that they seem self-evidently true, needing no elaborate explanation.

Here are the key points from the City’s presentation that Gadfly presented several posts back.

  • 2 W. was not originally built with a commercial store front.

This intent of section 1304.04 was specifically to offer some flexibility to properties originally housing a store but now vacant or turned into (probably awkward) apartments. These are properties architecturally designed as corner properties – nothing like 2 W. Market.  See below for some examples.

  • Text amendments are not written for the relief of one party.

The City says there are other options for relief for owners of single-properties.

  • It is unclear which or how many properties would be affected by this text amendment.

This seems commonsensically crucial knowledge, and which it is the responsibility of the petitioner to provide. This point was cited by both Planning Council members who voted “no.”

  • There is no connection with the City’s Comprehensive Plan (which is linked on Gadfly’s sidebar – very interesting – take a look)

Seems almost to go without saying that the petitioner is responsible for positioning the proposal precisely in context with the Sacred Scripture on planning in Bethlehem.

———————

Refresh yourself on the “corner store” ordinance that is the subject of the proposed amendment:

1304.04. Reuse of Corner Commercial Uses Allowed in the RT and RG Districts. The following uses shall be allowed in addition to uses allowed under Section 1304.01:

(a) As a special exception, uses that are small in scale, such as but not limited to a professional office, barber/beauty shop, retail store, nail salon, coffee shop, retail bakery, art gallery, real estate office, photography studio, green grocer, cafe, or antique store may be approved by the Zoning Hearing Board (“the Board”) provided all of the following requirements are met:

(1) The lot shall be at the corner of 2 streets. The primary building shall have an existing storefront character. This shall include such features as large first floor commercial window(s) and a main entrance at the corner or along one of the street facades abutting the commercial windows.

Is that anything like 2 W. Market both in original use and architecture?

Sesame Street used to have a “Which of these things belong together? Which of these things doesn’t belong?” segment. Still, Gadfly wonders?

Play that game here with corner properties, and ask yourself which was not the subject of this ordinance.

 

 

Gadfly thinks the City has made a proper case for not only slowing down with caution on this proposal but putting the brakes on and stopping completely.

Other Support for 2 W. Market (23)

(23rd in a series of posts on 2 W. Market St.)

Gadfly believes that we can consider the testimony of Kori Lannon and the many witnesses that supported 2 W.’s petition all together.

And fairly quickly.

Frankly, though it pains Gadfly to say this, and though he very much appreciated the sincere positive unanimity, he thinks that testimony off-point in this context.

This testimony was in the nature of character witness, both to the owners themselves as well as the quality of workmanship performed on the house.

But these things were, frankly, as much off-point as they were never in doubt.

The 2 W. Market people are good people. Granted. Never in doubt. God be praised.

The 2 W. Market house is a great house. Granted. Never in doubt. God be praised.

But the issue here is not a popularity one nor a referendum on workmanship.

It’s a knotty legal issue.

And that’s where the focus must be.

And, truth be told, Gadfly feels that almost no light was shed on the important legal issue by Kori and the other supporters.

It pains Gadfly to say that because this meeting was much a page out of his Norman Rockwell fantasy of small-town life in which respected citizens turn out to resolve an issue in a civil manner.

But the love of the owners for the house and Bethlehem and the love of others for them and the house are not primarily pertinent here.

Of course, the neighbors opposed to 2 W. are good people too, though they were out in smaller numbers.

Gadfly notes that he shares this feeling with Planning Commission member Malozzi, who gave the most detailed statement at voting time.

The closest pertinence to the central issues here that Gadfly found were the protestations that 2 W. would have no residential buyers, a claim effectively answered, Gadfly thought, by testimony of the Real Estate agent, who had no discernible stake in the controversy.

So when it comes to making a decision, Gadfly feels that we must be thankful for it but put this loving testimony on the side.

Atty Preston, Part 2 (22)

(22nd in a series of posts on 2 W. Market St.)

So let’s focus on that 3rd bullet. There are 2 parts there to Atty Preston’s argument:

1) this petition is not spot zoning

Atty Preston is anticipating that his opponents will argue that the proposal represents spot zoning, defined as “the singling out of one lot or a small area for different treatment from that accorded similar surrounding land indistinguishable from it in character for the economic benefit of the owner of that lot or to his economic detriment.”

After disposing of the “economic benefit” part of the definition to Gadfly’s satisfaction, Atty Preston poses what he himself calls the “real question”: “does [the proposal] single out a single lot for treatment and is that lot indistinguishable from surrounding properties.” And he cites a case (Appeal of Kates 393 A. 2nd 499) in which a non-conforming use was allowed to exist: “because the ordinance does not rezone any property but merely permits the expansion of existing buildings if they meet certain criteria set forth in the ordinance. . . . Spot zoning is a concept of land classification. The ordinance here does not alter the zoning classification of land on which the use is located and does not therefore spot zone any property.”

Atty Preston’s conclusion is that “In order to have spot zoning, you actually have to rezone the particular piece of property.” And that is not the case here.

Say again using Kates language: the proposed amendment “does not alter the zoning classification of [2 W. Market] and does not therefore spot zone [it].”

Does Gadfly have that right?

If so, Atty Preston has a strong point.

You can find the “Appeal of Kates” here: https://www.casemine.com/judgement/us/5914c55cadd7b049347d3b86

The pertinent paragraph seems to be:

The appellants first argue that the Ordinance permitting the expansion of nursing homes was designed 150*150 for the benefit of four specific landowners and that it, therefore, constitutes unlawful spot zoning. We find no merit in this argument because the Ordinance does not rezone any property but merely permits the expansion of existing buildings if they meet certain criteria set forth in the Ordinance. Spot zoning is defined as “`”[a] singling out of . . . a small area [of land] for different treatment from that accorded to similar surrounding land. . . .”‘” Mulac Appeal, 418 Pa. 207, 210, 210 A.2d 275, 277 (1965). Spot zoning is nevertheless a concept of land classification. The Ordinance in question here does nothing to alter the zoning classification of the land on which nursing homes are located and it does not, therefore, spot zone any property.

In response, Atty Tim Stevens for the opposition said: “it does alter the classification; we’re speaking a brand-new use, an office use, and putting it into a residential property, and is doing so in one particular property that is serving this particular property owner.” Atty Stevens was operating under the 5-minute time limit of the Commission, was trying to pack in several points, thus, unfortunately, there is no extended rebuttal of this specific point by Atty Preston that would help us judge the quality of Preston’s argument.

Kates seems to equate “land classification” with zoning. Stevens — though, again, to be fair, he had no time to elaborate — seems to say a new use, without re-zoning, would be a change in classification.

Does Gadfly have that right?

It seems to Gadfly that, absent stronger rebuttal, Atty Preston has made a strong point here. The petition does not rezone the property, as Gadfly understands it. According to Kates, spot zoning can not be applied here.

Gadfly is thinking of several things, almost all of which are above his pay grade.

1) Is Kates truly a precedent?  Gadfly found this in regard to Hines Nursery v Plumstead Tp (2004): “Van Wingerden’s spot zoning argument has no merit primarily because spot zoning is a concept of land classification. Appeal of Kates, 393 A.2d 499, 501 (Pa.Cmwlth. 1978).” If “land classification” = “zoning,” then it seems like Kates was a precedent in 2004. Gadfly doesn’t know how to find other cases.

2) Why isn’t Kates and this land classification/zoning criteria for spot zoning in such guides for planners as:

https://www.crcog.net/vertical/sites/%7B6AD7E2DC-ECE4-41CD-B8E1-BAC6A6336348%7D/uploads/Zoning_Validity_Challenges_Handbook.pdf

http://plannersweb.com/2013/11/understanding-spot-zoning-2/

For instance, the first link is to a Pa. guide. You would think it would be “gospel.” But it does not mention Kates and has this checklist:

Is it Spot Zoning?

Although a Planning Commission is not qualified to make a legal determination of spot zoning, it should review any zoning amendment with scrutiny to identify whether or not such an issue may exist. The following questions should be considered when reviewing any zoning amendment to help identify whether or not it may constitute spot zoning:

  • Is the requested amendment consistent with the Comprehensive Plan?
  • Is the requested use or zoning district significantly different from the surrounding area?
  • Will the use or district benefit a few landowners while creating negative impacts to surrounding landowners?
  • Will the amendment affect a small area and provide private, rather than public benefit?

The “use” in the 3rd bullet would seem particularly pertinent here. It looks to Gadfly that these considerations would work against Atty Preston’s case.

Gadfly is REALLY puzzled by this omission of Kates. What is he missing?????

3) Atty Preston is assuming that the opposition will use spot zoning as an argument. But what if it doesn’t? Are there strong arguments to deny the petition without citing spot zoning? Could denial avoid mentioning spot zoning?

As Gadfly says, all above his pay grade.

Gadfly cannot help but be puzzled and can go no further except to say again that Atty Preston may have a strong point.

————————————–

2) the property is distinguishable from others

Atty Preston indicates he won’t need this argument since the first point here is strong enough. His argument has to do with the mixed-use of the lot. No other in 2 W. Market’s neighborhood has this residential/retail combination, he says. In that respect, it is distinguishable, and thus the proposed change would not be spot zoning according to Atty Preston.

But to Gadfly that argument is a stretch. Gadfly believes that any jury in the land (ha! but it’s probably a learned judge we should be thinking about!) would be thinking of appearance, and clearly 2 W. Market is indistinguishable in appearance and style with, say, the 6 next houses to the west in its block.

But focus would be on the phrase “in character” in the definition of spot zoning:  “the singling out of one lot or a small area for different treatment from that accorded similar surrounding land indistinguishable from it in character . . . .”

What does “in character” mean? My dictionary says, “in accord with a person’s [thing’s] usual qualities or traits.” Is a mixed-use lot indistinguishable “in character” from a single-use lot? In applying the “in character” standard, should we consider the whole lot or just the residence part of the lot? Whew! Above Gadfly’s pay grade as well.

But, again, Gadfly would lean to defining “in character” to the style and use of the residence of “2 W. Market,” not the technical classification of the lot as a whole and separate from the commercial buildings which front on another street and don’t even appear connected to the residence.

But it seems to me that legally Atty Preston has a potentially strong point here as well.

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Ok, Gadfly followers, I have brought you far into the weeds. Gadfly loves this stuff. Ha! How about you? Would you care to comment? Help shed some light?

Atty Preston, Part 1 (21)

(21st in a series of posts on 2 W. Market St.)

So let’s go back to the petitioner’s claims. The 2 W. Market case was presented by 1) Atty Preston and then by 2) Kori Lannon, a partner in the business housed there. And then the petitioner was supported 3) by a baker’s dozen and more of witnesses.

First, Atty Preston.

Here are the 6 key points listed earlier that Gadfly culled out of Atty Preston’s presentation along with some of Gadfly’s decidedly non-legal thinking. Come along as Gadfly tries to think this through.

  • this is a “text amendment,” not rezoning property

Gadfly is not sure he fully understands the distinction that Atty Preston is getting at here, but it is clear that he sees that if only a specific property was being rezoned, it would mean the end of his case. Gadfly thinks he understands – maybe it’s because of the taint of spot zoning – he doesn’t want this petition to be seen as aiming at one landowner.

But Gadfly is not sure that seeing his proposal as a “text amendment” is ultimately beneficial to his case. Gadfly thinks the City’s (Darlene Heller’s) explanation of “text amendment” drains Atty Preston’s focus on it of any power:

“Additionally, the City typically proposes amendments to address overall goals and objectives of the Comprehensive Plan or other planning documents. It is not the City’s practice to initiate text amendments that are written for specific, individual properties. If individual properties need relief from the zoning ordinance text, that relief would be sought through the Zoning Hearing Board.”

Atty Preston makes no connection with the Comprehensive Plan.

  • it will apply only to mixed-use residential/retail properties not any single-family dwelling

Gadfly thinks there are two problems with this argument. First, as, again, the City points out, there is no way of knowing how many properties across the City would be affected, knowledge, everybody agrees, that the petitioner is responsible for providing. Second, the ordinance is written specifically regarding corner lots with storefronts, which is absolutely not the case here. Gadfly will come back to this when dealing with the City’s position, but he does not think Atty Preston has a strong point here.

  • it is not spot zoning: there’s no reclassification of land, and the property is distinguishable from others

There are 2 parts here. First, this petition is not spot zoning. Second, the property is distinguishable from others. Gadfly sees this bullet as Atty Preston’s strongest point and will address it separately in the following post at more length.

  • you can see the property shows no appearance of being a business

Then, by Atty Preston’s own admission, the property is not distinguishable from its neighbors. In fact, the petitioner has repeatedly stressed the desire not to make property look business-like. So this point runs counter to the previous one.

  • you are only authorizing the owner to go before the Zoning Board where conditions can be set

Gadfly thinks this a minor point of little significance made just to lubricate a positive decision from the Commission. Gadfly feels Atty Preston is saying to the Commission feel easy. Pass it own. Don’t bother your heads. Don’t get a headache. Let Zoning bear responsibility. Gadfly doesn’t see that this point should be given argumentative weight at all.

  • you can help provide the owner with financial resources to maintain the property

A real throwaway, Gadfly thinks. It’s not the City’s role to assist or guide homeowners in this way. No argumentative significance at all.

So the 3rd bullet is the key one to Gadfly’s thinking, the one to which we must focus deeper thinking.

Agree? Comments welcome.

Follow Gadfly to the next post.

The Planning Committee rationales (20)

(20th in a series of posts on 2 W. Market St.)

It’s time now that we are getting into decision-mode to see what the Planning Commission did at the end of the 2 ½ hr hearing on Nov. 8.

The job of the PC is to make a recommendation to City Council. Council has the final say.

The Planning Commission is a volunteer body made up of 5 members. 4 members were present for this hearing.

Council chairperson Rob Melosky made a motion to approve the submitted text amendment as written and to pass it on to City Council with a positive recommendation.

The voting split 2-2.

Mr. Melosky and Mr Stellato voted for.

Mr. Melosky supported the petition but did not overly elaborate on his position. Gadfly gathered that he was making his decision on “local” evidence – the support of local long-term and reputable residents and decisions by the local Zoning Board and local County Court.

Mr. Stellato did not elaborate on his position at all.

Ms. Joy Cohen and Mr. Matt Malozzi voted against.

Joy Cohen

“Although I applaud the clients being good neighbors, maintaining the property, renovating the property, and supporting other arts and other events in the community, I am very concerned how this is going to impact other portions of Bethlehem . . . There are other areas . . . that might be severely affected.

Matt Malozzi

“It’s easier when someone is here that is not of the sterling character, the long-time charitable giving and all the other attributes and superlatives that have been heaped upon the current owners . . . the owners have public standing, but I feel it is our duty to cut that away and not be emotional. We are looking at plans that were put into place following the municipalities code in the state with lots of public involvement, that are reviewed and updated over time . . . allows for exceptions . . . an office is not one of them . . . The uncertainty about what this does to other areas is a concern . . . The preservation of the neighborhood character and the compatibility between commercial uses and adjacent uses specifically on the edge of a residential district makes this even more of a concern, not knowing the unintended consequences. There are other commercial properties available . . . what is not available [land for luxury apts, etc.]. We had a realtor saying the same thing here. [Cutting some stuff away] and weighing this in terms of our Comprehensive Plan.”

Key points for:

  • support of local residents
  • affirmative decisions at the local level by the Bethlehem Zoning Board and the Northampton County Court in previous legal processes and actions before the State Court’s rejection
  • local level knows best

Key points against:

  • unknown impact on other areas of Bethlehem
  • the character of the petitioners, while remarkable, is not pertinent
  • an office is not an allowable exception
  • preservation of the neighborhood character
  • the office could be in the commercial district
  • residential properties are in demand
  • decision should be weighed in terms of the City’s Comprehensive Plan

Ok, Gadfly says it’s time to stop absorbing and to begin weighing.

You’ve seen how four of your fellow residents voted and supported their votes on precisely the same information as you have.

Do you agree or disagree with your fellows? And agree or disagree for the same or different reasons?

Follow Gadfly as he tries to sort it out for himself and chime in.

Alert! 2 W. Market back on center stage

Good Followers:

Gadfly left you Thursday after moving through a handful of information chunks on the 2 W. Market issue that comes to City Council Tuesday night for resolution.

Gadfly is trying to model good critical thinking. Don’t jump to conclusions. Gather all info. Listen to all sides.

Take time.

Then form and back up your conclusion.

Always be ready to listen to others.

The path he followed (follows, because it is not over) in the parking issue.

You were to be thinking about questions and about where you were leaning.

Remember that this is a significant issue but a knotty issue.

But we have ample information from all perspectives.

Where do you think you stand?

Council is probably thinking about this right now too.

Tonight through tomorrow night, I will share with you my analysis.

Weigh in.

And remember my invitation to come to Council to see what might be the last inning here.

We will pretty much know everything Council does.

Let’s see how our thinking compares.

 

Bethlehem Pays the Price for Freedom 1961

See also the “Veterans Day, Bethlehem, 2018” (Nov. 11) and “Developers, leave this park alone” (Nov.16) posts. Gadfly stumbled on to this story while researching Triangle Park. Thanks to Dana Grubb.

On November 8, 1961, 14 Bethlehem “boys” died near Richmond, Virginia, in what was described as the “Lehigh Valley’s worst toll” in a plane crash, as “the greatest single air tragedy ever to affect the Lehigh Valley,” and as “the second worst for a single non-military aircraft in U.S. history.” The 14 boys —  young men, really, ages 17-22 — were part of 29 from the Lehigh Valley and 77 overall who died — new Army inductees and crew members headed to basic training at Fort Jackson, South Carolina.

Albert W. Andreas, Robert S. Bedics, Barry A. Brandt, Donald F. Doyle, Thomas D. Gasda, Richard W. Jones, Joseph J. Kobli, Stephen M. Kobli, Leroy Kranch, Jr., Thomas A. Motko, Michael Placotaris. Albert J. Rice, John D. Schuler, Charles D. Yeakel

The “happy-go-lucky” Bethlehem residents gathered early morning at the Salvation Army, bused to Wilkes-Barre where they were inducted in the afternoon, then boarded a plane, which after a stop in Baltimore to pick up more recruits, crashed near Richmond shortly after 9pm. All died in the fire subsequent to the crash except only two crew members. News reports described “the fuselage [of Imperial Airlines’ Lockheed Constellation], looking like a crushed cigar, gaping gash in its top, mired in the muck” on the outskirts of the airport.

The tragedy hit our town hard. There were stories of joking at departure about heading to “warmer southern temperatures,” of promises to be home for Christmas, of last words to mothers like “I love you, Mom.” It was the first plane ride for some. Two brothers and their next-door neighbor – life-long buddies — were among the victims. One victim lived “a few doors away” from Mayor Earl Schaffer. Some had joined the service because “unable to find steady work.” One had two jobs, supporting a struggling family. One was engaged. One had a girl whom he liked a lot and didn’t want to leave. One had a girl who loved him like a sister. One had enormous hands and was nicknamed “Duke” like John Wayne. One had a pet dog, his “pride and joy,” who “cried pitifully all morning” after the news.

The father of the brothers regretted turning down a last drink with his sons: “I would give anything to be able to have one last drink with them.” A grieving mother ran from her house — a doctor had to be called. She was never the same. There were reports of premonitions of disaster among the parents.

Communication about the tragedy was chaotic. Many families were awakened from sleep in the early hours of November 9 by phone calls from reporters. Because of the fire, identification of the incinerated bodies was difficult. One was identified only by a class ring. Telegrams from the Army were slow in coming. After agonizing waits, some families weren’t notified officially till 8am. 6 listed as dead turned out not to be so. They had not made the trip.

These Bethlehem men were victims of our Cold War with the Communists. The Berlin Wall was erected in August 1961. President Kennedy increased the draft in response. The Bethlehem Globe-Times editorial provided the larger political frame around this tragedy:

The lives which these young men gave before they ever donned a uniform is one of the ironic tragedies of the Cold War. While they were headed for duty as part of a tactical military build up which is destined to save us from a hot war, their death is a grim reminder that there is no such thing as a “bloodless war.”

To the families, no words can be written that will ease their pain and suffering. To the rest of us, no incident could illustrate with more impact the price which we as a nation must pay in the protracted struggle between the free world and the Communist world.

In a bitter punctuation to this local tragedy, however, the death of these young un-uniformed soldiers has been described as a “useless sacrifice.” The horror of the crash triggered a national investigation of the way U.S. military were transported on substandard, unregulated private airlines called “supplemental carriers.” The Civil Aeronautics Board soon issued a report that was as devastating as the crash. Time magazine reported, “it seemed a wonder that Imperial’s Constellation had got off the ground in the first place.”

The Time article cited the following problems: the pilot had failed some of his flight tests, and Imperial Airlines planes regularly had so many problems they routinely took up half the time of a Federal Aviation Inspector who reported hydraulic leakages, faulty fuel indicators, improper rigging of fuel mixture controls, bald tires, and fuel seeping out of the plane and onto the ground.  In addition, Time noted the doomed plane’s fuel was contaminated with rust, that the crews couldn’t determine the condition of the plane because the logbooks were not up to date, and the confusion in the cockpit that lead to the loss of the fuel-starved engines.  Perhaps the revelation most indicative of the miserable quality of airplane maintenance was that of the Chief Flight Engineer, who recounted not having a part for a motor on an Imperial Airlines plane and substituted a piece taken from a 1954 Mercury automobile.

It’s small but at least some solace that the “useless” deaths of these Bethlehem residents and others led to useful reforms in military transport operation that would protect the lives of similar young “boys” into our day.

004Our town marked the tragedy with a monument dedicated June 8, 1962, that for a long time resided at Triangle Park, 3rd and Wyandotte, was rededicated June 8, 1986 (State Senator Fred B. Rooney and Mayor Gordon Payrow presided), and now resides on the edge of the Rose Garden near the corner of 8th Avenue and Union Boulevard, and can be readily seen there and, more importantly, reflected on as you drive by.

The monument was meant to serve as a reminder. Sometimes we have to be reminded about the reminder.

This event will be the subject of the next Bethlehem Moment at City Council.
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See:

“29 Area Army Recruits Killed in Fiery Virginia Plane Crash.” Bethlehem Globe-Times, November 9, 1961: 1.

“A Few Discrepancies.” Time, December 15, 1961.

Monument Honors 14 Plane Victims.” Bethlehem Globe-Times, June 9, 1962: 13.

Jennifer Rittenour, “25 Years Later, Pain Of Air Crash Lingers.” Morning Call, November 9, 1986.

Frank Whelan, “1961 crash brought regulatory changes.” Morning Call, December 2, 2001.

Daniel Patrick Sheehan, “When the Lehigh Valley lost its youth in a Virginia marsh.” Morning Call, November 7, 2011. 

Kauffman, Louis R. “50 years later, airplane crash stirs memories of best friend.” Morning Call, December 12, 2011.

Seldon Richardson, “Richmond’s Worst Airplane Disaster: Flight 201/8 – November 8, 1961.” The Shockoe Examiner, November 14, 2013. 

David H. Stringer, “Non-Skeds: The Story of America’s Supplemental Airlines Part III.” Airways, May 26, 2016.