Late Night at the Zoning Hearing Board

(83rd in a series of posts on 2 W. Market St.)

Market

It was tedious last night at the Zoning Board Hearing in which the Market St. neighbors are challenging the validity of the ordinance that enables a professional office at 2 W. Market.

Procedural stuff.

Even Gadfly’s video camera pooped out before the nearly 4-hour hearing was over.

A tip o’ the hat to a couple Gadfly followers who attended for some or all of the proceedings.

Gadfly stuck it out. That’s why gadflies get the big money.

But, actually, Gadfly found the issues interesting. He’s pretty nerdy, you know.

He’ll summarize what went on, highlighting the issues, and then you’ll find video links so that you can taste the action.

First, remember that there were four long hearings on “2 W. Market” — two at the Planning Commission, two at City Council — at which probably over two-dozen people spoke (gave “testimony”) multiple times — and these are well covered on Gadfly with transcripts, audio , and video.

The process was paradise for Gadfly. All that citizen commentary! Totally aphrodisiac. Empowered residents voicing their opinions. How sweet it was!

What the Neighbors attorney (Stevens) wanted to do was “streamline” the proceedings before the Zoning Hearing Board by introducing a transcript of all of that testimony directly into the record. The attorneys for 2 W. Market (Preston) and the City (Deschler) objected.

For two reasons.

First, none of it was given under oath, and there was no cross-examination.

Second, the testimony was irrelevant.

Huh?

Yes, because — forcefully argued the Marketers attorney — 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.

That Marketer attorney is pretty shrewd. Have seen him in action before.

The Neighbors attorney said their case was based on the fact that Council made its decision on irrelevant considerations and did not do due diligence on the impact of the amendment. So how will the Board know that without the transcript.

You will see Gadfly’s camera nodding yes at these points.

But the ZHB voted not to include the testimony, meaning that the Neighbors attorney now has to “recreate” that testimony before the Board by bringing people in now under oath and subject to cross-examination.

Gadfly will testify under oath.

In fact, perhaps a dozen people for the Neighbors case will be called back.

Yuck.

So much time elapsed with these procedural matters that the Neighbors attorney could call only one witness to begin his case: Mary Rose Wilson. She answered a few questions from the attorneys, Mrs. Vergilio from the public, and a Board member.

The hearing was continued till Oct 24.

It might be Christmas before this is over.

Was the opposition to accepting a transcript of prior testimony a legitimate legal concern or a stall tactic?

The wheels of justice . . .

But at least our words will get in there. Gadfly was very worried about that. You might remember that the core of Gadfly’s belief was precisely that the testimony on which it appeared Council made its decision was misguided — focusing on the character of the 2 W. Market people and the money and care they poured into the house. They are good people and they spent a lot of money, but that can’t be a reason to bend the law.

———–

Video 1: Neighbors attorney Stevens makes his case to bring the the transcript of testimony from four prior meetings into the record to streamline the process.

Video 2: See City attorney Deschler at min. 3:31 but especially see Marketer attorney Preston for 4 mins. at 11:35 making the case for the irrelevance of the public testimony. This makes all “our” ideas irrelevant for this phase of the legal process. Preston is reluctant to even call it testimony. And he says what might be quite true, that the Neighbors are “seeking to investigate the legislative motives and methodologies,” which he thinks is a “wildly irresponsible undertaking”: “focus on the amendment itself”; “it stands or falls on it own terms”; “It doesn’t matter if there was an impure motive”; “The ordinance speaks for itself”

Video 3: Listen to the first 3 mins. especially as attorney Preston continues his argument for the irrelevance of “our” words: he finds “bizarre” that the ZHB is asked “to engage in a critique of City Council’s actions.” “The presumption is that the legislation is valid.” It doesn’t matter why a Councilperson voted. The focus should not be on what they were thinking but the effects of the ordinance. And there are rules “out there” to evaluate ordinances. Neighbors attorney Stevens presents his objections to those ideas here as well.

Video 4: And here look especially at mins. 4:05-6:14 for Preston’s reference to “standards the Court has developed” for judging such cases that do not include this testimony.

Video 5
Video 6
Video 7: Interesting that here you can get a bit of a taste about what those testifying will face. Mary Rose Wilson was, of course, a Neighbor witness. Look at the rather lame efforts of attorney Deschler to make her look inadequate. And the bit of a head-to-head with a neighbor holding the opposing view.

Neighborhoods are worth fighting for

(82st in a series of posts on 2 W. Market St.)

Zoning Hearing Board, Wednesday, September 11, Town Hall, 6PM
PLEASE BE THERE!

Gadfly finally with a little more time to go through the “history” of the 2 W. Market case in the 80+ posts and refresh himself on the details in case he should speak tonight at the hearing.

He encourages you to browse the posts. This is really a very interesting, informative, and widely relevant case.

Lots of citizen comments are recorded here — text, audio, video — democracy in action!

Gadfly himself was not in on the beginning of the case, which goes back 5-6 years and has been through the Courts at least twice (ultimately resulting i rulings against the Marketers).

There’s an epic battle of wills going on here.

Always remember, “Neighborhoods are worth fighting for.”

Here’s the spot where Gadfly enters the history.

The 2 W. Marketers seek to amend the “Streetcorner ordinance” (1304.04) to permit the use of their property as a professional office. 1304.04 then read, in part, thus:

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.
(2) At least a portion of the proposed business space shall have been occupied at one time by a principal lawful business use. This subsection 2 may allow a business use to be established even when a nonconforming use has been considered to have been abandoned.

The ordinance, as Gadfly understands it, was to enable corner properties such as the one on the left with once storefront commercial uses (which abound in our town when you think about it) to become commercial again (most have been turned into living space). The ordinance was not meant to apply to corner properties like 2 W. Market on the right.

The difference in the properties is obvious, isn’t it?

The 2 W. Marketers proposed an amendment to 1304.04 to make a commercial use there legal. Council approved the amendment. Then the Zoning Hearing Board ruled that the new amended ordinance applied to 2 W. Market and their business therein.

Not game-set-match yet. The neighbor group has filed a “Validity Challenge”: Validity Challenge redacted-filed JAN-19-10–hearing 9-11-2019-3 (always go to the primary source and see for yourself in Gadville).

Here are some of the points in the challenge. The amendment:

  • has no rational relationship whatsoever to the corner store provision,
    1304.04 of the Zoning Ordinance which pertains only to those corner
    properties that have an existing store front character and other unique
    architectural characteristics
  • has no rational relationship whatsoever to the spirit and intention of the
    corner store provision of 1304.4 to “Reuse” a former commercial use of a
    property; rather the Zoning Amendment impermissibly introduces an
    entirely new use of commercial office space into the RT and RG
    residential districts
  • reverses the progress in the historic neighborhood of converting commercial and multi-family dwellings to single family residential uses and otherwise violates the spirit and intention of the Comprehensive Plan

The legal challenge of course throws everything including the kitchen sink (tired x-English prof depending on cliches) at the Marketers, but to Gadfly the key points are a charge of a quid pro quo, a split between the City Planning Staff (withholding approval) and the Mayor (approval), serious deficiencies in the amendment of which the Council was aware (successfully fighting an end proposition — good work, Gadfly!) but voted anyway, and — the big gun — illegal “spot zoning” (the placing of a small area of land in a different zone from that of neighboring property).

Gadfly can not speak of a quid pro quo from any knowledge (though he would love to — how sensational!).

But the other points of the challenge make perfect sense to him.

Hence his position on the side of the neighbors.

There might be new Gadfly followers who weren’t here when the original thread was playing out — would you want to make comments?

2 W. Market at Zoning Board tonight — can you be there?

(81st in a series of posts on 2 W. Market St.)

Zoning Hearing Board, Wednesday, September 11, Town Hall, 6PM

Gadfly writing in haste again . . .

Gadfly’s approaching his one-year anniversary. The quick look back at the 80+ posts on “2 W. Market” shows his attempt for balance in disputes and some of his best thinking and writing.

If he doesn’t say so himself.

Gadfly did take a position for the neighbor group and against the owners of 2 W. Market.

But only after balanced reflection.

And laying out his reasons in detail.

As he said, “One can deny the petition [of the 2 W. Marketers] without impugning the character, good intentions, and good work of the [2 W. Marketers].”

And he continued to listen carefully to all sides and consider and reconsider his position.

If he doesn’t say so himself.

Though not everyone agreed.

Take a look at these posts from early on in the controversy.

Crunch time! (26)

The Case for the 2 W. Marketers (35)

The Case against the 2 W. Marketers (36)

Crunch Time (2) (39)

Can you attend tonight?

Need butts in the seats — Zoning Hearing Board meeting tomorrow Wednesday Sept 11 Town Hall 6PM

(81st in a series of posts on 2 W. Market St.)

Important meeting tomorrow night. Replete with issues essential to the Gadfly project.

  • Citizen participation
  • Control of your neighborhood

Do you remember the “2 W. Market” case? Gadfly did 80 posts on it!

80 posts

See “2 W. Market St.” on the sidebar.

Gadfly will refresh you in a post or two later tonight and/or tomorrow, but the purpose of this post is to get you notice as quickly as possible so that you can clear time to attend.

A skeletal summary: The owners of 2 W. Market in the residential Northside historical district want to use the house as an office. A group of neighbors object. There is a long history of adjudications. But in the most recent our City Council approved and our Zoning Hearing Board approved. A group of citizens has appealed. Tomorrow night these citizens are challenging the Zoning ordinance on which the approval was based, a necessary step before the case goes to Northampton County Court.

The Zoning Hearing Board needs to feel the pressure from City-wide citizens supporting local control of neighborhoods.

But here’s what rubs Gadfly’s nerves raw.

The City is opposing the inclusion of citizen commentary in the record that will go before the Court.

Here’s (the legal reason) why.

There was voluminous citizen commentary (pro and con) in the various meetings on this case. Gadfly even made comments. Gadfly tried to cover it all in the 80-post thread, as you can see. But none of the commentary was under oath. You simply speak your piece and sit down. On the other hand, Zoning Hearing Board hearings are “judicial.” Citizens giving testimony are sworn in and subject to cross-examination.

The City will move to disallow all that “oathless” prior testimony/commentary.

Citizen voices may disappear.

Supporters of the challenge may have to repeat their testimony under oath tomorrow night and perhaps face cross-examination in order to have it included in the record presented to the Court.

Here’s a group of citizens who refuse to give up the fight for the control of their neighborhood. Their issue pertains to us all. They deserve our support.

They deserve butts in the seats!

Gadfly writing in haste . . .

2 W. Market: de novo (80)

(80th in a series of posts on 2 W. Market St.)

Charles Malinchak, “On and off again plan to allow office at Bethlehem’s 2 W. Market St. back on again.” Morning Call, June 14, 2019.

Q: How do you [Quadrant Wealth] occupy the property?
A: As an office use.

Forget that there are 79 posts on 2 W. Market before this one.

Forget that the 2 W. Market controversy goes back maybe five years now.

Let’s look at this neighborhood conflict de novo (amazing how much Gadfly attention is given to neighborhood issues, so everybody, no matter where you live, listen up!) .

De novo: Gadfly loves to play lawyer. (But probably not very well!)

The case:

Quadrant Private Wealth operates its business in a house at 2 W. Market St. in a residential district.

Neighbors want to keep their residential neighborhood residential.

Quadrant seeks permission to legally operate its office at 2 W. Market under an ordinance that allows properties in a residential district to become businesses if they meet three conditions:

1 – the house is at the intersection of 2 streets

2 – the property has some form of commercial use in combination with

3 – a single-family dwelling

There is no issue with conditions 1 and 2.

The issue is condition 3.

Those opposing the applicant argue that 2 W. Market is not now a single-family dwelling. It is being used as an office. And thus the request fails to meet condition #3.

Those opposed to the petition argue that the house needs to be used as a single-family dwelling, at which time Quadrant could re-apply under the terms of the ordinance for permission to use it as an office.

Those opposed to the petition argue that just because the house has in the past been used as a single-family dwelling or that it can now be used as a single-family dwelling does not meet the conditions of the ordinance.

Petitioners (and seemingly the Zoning Hearing Board) argue that it would violate commonsense, it would be an absurd waste of resources, it would be hairsplitting, it would be pro-forma adherence to the blackletter of the law to require vacating the office, moving a family in, moving them out again, and reapplying for permission to operate as an office.

The City attorney, after saying at the beginning of the hearing that he would not be involved, stepped forward toward the end of the hearing to say that “the City administration is fully supportive of the project here as a matter of something that benefits the City and promotes the interests of the City.”

The Zoning Hearing Board voted 5-0 in favor of the petitioner.

Gadfly loves a good argument. This hearing lasted four hours. There was good argument.

Gadfly would especially call your attention to the testimony of Beall Fowler arguing against the petition. (He will want to call attention to the Romerils in a later post.) Beall’s testimony is yet another example of the high quality resident rhetoric that continually impresses Gadfly. Beall shows himself thoroughly a master of the Zoning code, and a man whose convictions are strong because solidly based. The interplay between Beall and the petitioner’s attorney and ZHB members should be listened to.

Frankly, Gadfly thought the opposers had the better of the argument. To argue that the letter of the law should not be followed was strange indeed. And indicates the kind of latitude our Planning and Zoning Boards — and even our Council — have that can cause trouble.

And Gadfly thought completely out of bounds the City attorney — out of nowhere —  putting his foot on the scale at decision-time.

Beall took his underlying beef about the flawed nature of the ordinance directly to City Council last Tuesday in an effective challenge to “immediately repeal” the “potential minefield for further exploitation” created by the “rogue” Zoning Hearing Board.

One suspects that this de novo doesn’t mean c’est fini. We’re probably going to hear yet more about 2 W. Market.

Neighborhoods are worth fighting for.

Final observations on 2 W. Market – Part 5: the favoritism factor (78)

(78th in a series of posts on 2 W. Market St.)

The 2nd round of supporting statements on 2 W. (69)

One more observation about the 2 W. Market proceedings before we move to 306 S. New.

One more observation that will, in fact, be a bridge to discussion of 306 S. New.

An observation about charges of

favoritism

rubber-stamping

pay-to-play

developer pockets

Heavy duty charges. We must be very careful about such charges. We must not throw them around lightly.

Gadfly has only had his wings three months. He has no history, no personal knowledge about such activity involving Mr. Rij or other investors/developers. He is a clean slate as far as stupid or unethical or criminal behavior of this type between elected officials and business people is concerned.

But you heard Mr. Clean Slate (or you can hear him for the first time by accessing the video in post #68) express worry December 18 over fairness, impartiality, and objectivity in the 2 W. Market decision – explicitly referencing CM Callahan’s very warm regards for Mr. Rij, very eager desire to please investors, and what felt like a chummy reference to petitioner attorney Preston’s boss “Jimmy” Broughal, who has been described to Gadfly as a power player in local politics..

Gadfly found such remarks perhaps innocently spontaneous but totally insensitive to a situation in which CM Callahan was acting as judge. The optics and the otics (good SAT word that I just learned) were bad even if there were no bad behavior.

In Gadfly’s opinion – Ha! speaking boldly as if he knew something about lawyering — Mr. Rij and the whole train of character testimony that followed him over the course of the three marathon meetings had absolutely no relevance to the core issue. If Jack the Ripper (retired) owned the property at 2 W. Market, the case should have been handled in exactly the same way! Justice is blind. To Gadfly, the character of the owner is irrelevant. If the opposition brings suit, I doubt the character of Mr. Rij will be considered at all in legal deliberations up the court chain of command.

CM Reynolds cut Mr. Rij out of his decision-making process – rightly so, Gadfly thought – and called for others to do so, but Mr. Rij-the-person factored in 3 of the 4 yes votes.

The optics and the otics (have you looked this word up yet?) were not good.

Let’s listen to the passionate voices of CW Van Wirt and CM Callahan December 18 on either side of this issue of favoritism. (Remember that you actually can and should listen to them in the flesh – there’s nothing like “being there” — by following the link at the top and the bottom of this page.)

CW Van Wirt:

I left the most previous City Council meeting feeling absolutely just sick in my heart, and it was because our Council meeting was capped off by a vote that allowed an illegal terrace on a restaurant in South Bethlehem [306 S. New: we’ll discuss this in the next post]. . . . There is a constant to decisions that have been made by this Council now and before my time, and it’s based on a woefully outdated concept that any development is good development. We have been told that the building at 3rd and New St. is better thanVan Wirt a vacant lot, as if that’s all the choice we have. . . . The rules in Bethlehem have become muddy. We give $800,000 grants to developers inappropriately. We let developers build an illegal terrace when they knew exactly what was allowed. We gave them 11 variances on the Armory project with no safeguards that the Armory would ever be protected and built. . . . So on this road where one or two developers get to blow out the red lights, we are in control, not the developers, and good community developers, people who want to invest in our city, stay away because the rules are ever changing, because the rules favor a few investors — be they developers, businesses, or home buyers, they want to know that the rules are clear, applied equally, and that their investment will be safe from changing rules. This Council and the administration has created an environment in which investors stay away due to exactly the thing we are talking about tonight, breaking the rules for a connected guy with the Benner terrace vote or the 2 W. Market vote. . . . This is our limited, parochial, swampy future we are creating here by eviscerating the rules that keep us on the road. We don’t have to accept just what the developers hand us; we can build our tax base by giving them straight rules to follow.

CM Callahan (combining selected parts from his two Dec. 18 comments):

The thing that’s upsetting me is that every time we have a debate or discussion there’s always people that have the opposite opinion and the thing that I find offending is that there’s accusations that we are rubber stamping, municipal ethics are being violated, that Mr. Rij is violating something, that he’s doing something illegal. . . . We got a letter from a resident saying it was pay-to-play. I barely know Mr. Rij, I’ve never taken a dimeBCallahan from him, nor would I, especially after this. But I’m making this decision based on what I see. . . . Nothing shady’s happened, there’s not this pay-to-play scheme that everybody’s trying to present. . . . There are some developers in the city. We are very fortunate that we have about six of them. I know Mr. Pektor, Mr. Ronca, Mr. Benner, Mr. Petrucci, Mr. Perucci – they’re two different people — and another developer with a property on Center and Dewberry [Atiyeh]. We don’t rubber-stamp like some people assume we do. Or accuse us of doing. We try to look at every single development on its own merits. And to accuse us of being in the pockets, or this was illegal. . . . We’ve tried to do our best with Mr. Rij’s property. . . . I think it’s a shame that developers are being attacked, Council people are being attacked, we’re on the take, there’s pay-to-play going on. . . . Stop it. It’s nonsense.

Claims of unethical or criminal behavior by elected officials may indeed be nonsense. And such claims, even innuendoes, should not be made capriciously.

But it is not nonsense – it is far from nonsense – to be wary of a vigorously stated position that could look or sound (optics and otics!) like it is willing to do just about anything to favor investment/development, using increased tax dollars as rationale.

It comes down to examination of behavior in specific cases.

Gadfly was ill-at-ease with the optics and otics (I’ve fallen in love with my new word) of the investor-friendly behavior in 2 W. Market.

Now let’s look at 306 S. New.

The actual words from the December 18 meeting on which these observations are based can be found in The 2nd round of supporting statements on 2 W. (69). Gadfly always suggests that you go to the unmediated source and make your own observations. Gadfly’s reflections on the first round of supporting statements can be found in Critiquing the votes (65)