The 2 W. Market case goes south (geographically, that is)

logo 87th in a series of posts on 2 W. Market St logo

Note: The Zoning Board Hearing tonight is at Southside campus Northampton Community College, room 605.

The latest chapter in the 2 W. Market case unfolds tonight.

Posts on this recent phase of a controversy that is almost as long as our national involvement in the Middle East wars begin at post #80. Click on the sidebar link if you want to refresh or catch up.

Let’s call it the Neighbors v. the Marketers.

The Neighbors are challenging the validity of a text amendment favoring the Marketers.

The Neighbors are in process of re-introducing witnesses (Gadfly testified last time) from at least 4 major Planning Commission and City Council meetings, re-introducing them under oath so that they can be cross-examined.

The neighbors have about 17 witnesses to put on as well as a few “expert” witnesses. Since the last meeting was dominated time-wise with testimony of the City Planning Director, only three other witnesses were put on.

The ZHB goal is for the Neighbors to finish their case tonight, but one wonders how that will happen given how slow past testimony has gone.

Gadfly suggests turning the heat off in the NCC classroom in order to move things along.

The ZHB members were visibly impatient last time, which does not seem to bode well for the Neighbors’ case.

For those closely following the legal arguments, here is the Neighbor’s attorney outlining at the last meeting the 9 issues that form the basis for the validity challenge of the ordinance.

Now that last meeting was 4 hours long, and Gadfly reported from the equally long meeting before it that one aspect of the Marketers’s position was “what led up to the text amendment approved by Council doesn’t matter. All that matters is the amendment itself, and the effect it has or will have. The basis of Council’s approval does not count, only the fact of that approval embodied in the text amendment itself. The Zoning Hearing Board should not look backward, only forward.”

This position feels very strange to Gadfly, but at the last meeting it was validated based on a 2009 case that Gadfly could not catch the name of.

The basis on which the Council made its decision, what the motives of Council were, what was in the minds of Council — do not count.

Hear discussion of this point between the Board solicitor and the Neighbor’s attorney at the last meeting:

The state of mind of the Council members who voted for the text amendment does not matter.


For this was not — in Gadfly’s opinion — Council’s finest hour. Councilman Martell is not here any longer, so let’s skip him. But Councilman Callahan disputed the validity of the Zoning map itself and cozied up to the Marketer. Councilman Reynolds was impatient with the proceedings and made the famous remark that people who didn’t want commercial nearby should move to the townships. And President Waldron gave no reason at all.

Aiiii — Gadfly remembers well feeling that the “yes” votes were all flawed.

But that doesn’t matter legally.

The challenge has to be based on what they approved not why or on what basis.


Now another issue, related but somehow different, still seems in play.

Remember there was a question before Council about how many other properties would be affected by the text amendment.

The idea was that a decision shouldn’t be made till that was determined.

The Marketers presented a study involving 8 properties, the City did one on 140 properties.

The City study did not become available till the morning of the Council meeting, and Councilwoman Van Wirt reasonably moved to delay a decision to provide time to study the study.

That motion was denied. And the vote approving the text amendment was taken.

Whether that’s a flaw in the approval process (which it sure sounds like it should be) seems to be still in play.

Onward — Gadfly will report on tonight’s doin’s.

Gadfly hopes someone will go to the first tax hearing tonight or watch it live and post thoughts.

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