It’s been out of the news almost a month and won’t return till the decision of the Zoning Board February 26.
Gadfly was thinking about it because a new store opened in his neighborhood, a bakery — “Charlie’s Bakery” — at 1401 High, corner of High and Greenwich.
Why was Gadfly thinking about the majestic 2 W. Market in the historical district when a bakery opened in a modest location in the hinterlands?
Because it’s a corner store taking advantage of the relatively new corner-store ordinance specifically designed to return such properties to their former and original commercial use.
And because 2 W. Market is trying to take advantage of the relatively new corner-store ordinance to establish a business where there was never one.
Charlie’s Bakery is precisely the kind of use for which the corner-store ordinance was designed, a space historically commercial but turned residential being returned to its commercial use.
Gadfly’s 50-year-old kids still easily remember Miller’s store where a clerk who dispensed the candy was so much a “character” that she earned from them a (not so nice) nick-name.
One would think that anybody can see that the High St. building style (shaved corner entrance, side windows) on the left for which the corner-store ordinance was designed is not the same as the Market St. property. Anybody but our Zoning Board and City Council.
From all angles, the High St. building was obviously designed for first-floor commercial use.
We wish Charlie well. When Gadfly passed while taking his constitutional Saturday afternoon the store was closed, with two disappointed would-be patrons chatting outside.
Gadfly has downsizing work to do. He keeps hoping for resolution of the 2 W. Market case. At least at the local level. Whatever happens here, the case will no doubt fly into the court system. And we’ll lose sight of it for a while.
His eyes are focused on tonight. Can we get to closing arguments, please?
But Gadfly thinks there is one more piece that you will be interested in, you who see this case as important to such questions as whether you have any control over your neighborhood, whether zoning laws matter, whether City Hall is for or agin’ you.
And you who are kind of nerdy like he is.
Remember that in skeletal form what’s happening here in this phase of a longstanding argument is that neighbors are questioning the validity of an amendment to the zoning code that enables the owners of 2 W. Market to operate a financial service office in a residential neighborhood.
Now this case has generated a truck load of testimony.
You who are more recent Gadfly followers should look at this chart of testimony of just one meeting done when Gadfly was much younger and intoxicated with his power to help people come to a decision about the controversy: Chart of 11-20-18 testimony . It’s from a post entitled Gadfly’s Study Guide to the 11/20 Council Hearing on 2 W. Market. A post that won an honorable mention at the northeast regional conference of The Gaddies, our national organization.
So the neighbors’ attorney wanted to use a large portion of such testimony — our voices — in the attempt to invalidate the amendment favorable to the Marketers.
The neighbors’ attorney had a document of several hundred pages (Gadfly’s testimony itself took 12 pages) of transcribed testimony — our voices — over several Planning Commission and City Council meetings that he wanted to introduce into the ZHB record.
The marketers vigorously objected. And it would seem to Gadfly that the Zoning Hearing Board is on the side of the Marketers.
As Gadfly understands it, the Marketers want to exclude all (or as much as they can) of the negative testimony that led up to the approving vote on the amendment by City Council. That would exclude all (or mostly all) of the resident voices — our voices — testifying against the Marketers.
The past does not matter, say the Marketers, a past that the neighbors would argue is full of problematic aspects that call into question the very basis on which Council passed the amendment.
It does not matter whether the amendment was immorally or illegally passed, according to this position. It was passed. That’s it. Get over it. (Hmmm, where in the national dialogue has Gadfly heard that phrase before?) Move on to subsequent events.
The Marketers argue that the clock starts anew with the passage of the amendment, that the reasons and motives on which the amendment was passed are not relevant. The Marketers would start this case with the notion that the amendment as passed is valid.
Now we have seen in a recent post what the impact of such a ruling can have, the post in which we see Mr. Haines sparring with the opposition attorneys AND the ZHB over the relevance of the influential role the Mayor played in passage of the amendment. Such testimony is not acceptable according to this position.
Another example of this view of the restricted legal basis of neighbor testimony — our voices — is what happened to Gadfly #2 Bill Scheirer.
Scheirer was “precluded” from testifying. Precluded! He came to the big dance dressed up with a prepared statement and was refused admission at the door.
A usually gentle and calm but now exasperated Mr. Scheirer (you know him, you’ve seen him in action) had one word for the proceeding as he exited the arena! One word! Click here to find out what it was.
The neighbors have Baker v. Chartiers Tp. Zon. Hearing Bd., 677 A.2d 1274 , in which we find as a reason an amendment was invalidated “the failure of the Board of Supervisors to provide a full and fair examination of the impact which the rezoning would have on adjacent properties.”
Which will the ZHB go with? Gadfly feels the ZHB has already shown strong leaning to the Marketer’s case.
Gadfly finds this back-and-forth legal arguing fascinating and invites you to hear the lawyers lay out their cases. In the following video clip, the ZHB solicitor raises the question of what kind of testimony the ZHB should listen to, and then the attorneys for the City/Marketers and for the neighbors respectively make their pitches.
What did you think of the testimony of Mrs. Virgilio, the sole resident witness put on by the City/Marketers?
If I were to boil her testimony down, I’d say Mrs. Virgilio feels it’s ok for a financial service office to operate out of 2 W. Market even though it’s in an area zoned residential because it’s a commercial area and because it has raised property values.
Would you agree with the way Gadfly put it?
Last post I asked you to use Google to “see” what Mrs. Virgilio sees. Now see the area through the City zoning map. (Have you ever seen the zoning map. Pretty interesting.) Yellow is residential; the other (pink?) is commercial.
Now Mrs. Virgilio “sees” the New and Market intersection as commercial even though 3 of the corners are zoned residential. Councilman Callahan said basically the same thing at a key Council meeting long ago and even extended his purview of the commercial area west on Market toward Main, saying something like “you can’t tell me W. Market St here is residential.”
Here is the audio of the cross examination of Mrs. Virgilio by the neighbors’ attorney.
The attorney makes several points in that cross examination:
Though there was a dentist office in the Virgilio B&B before they bought the property, it would not be allowed now by law.
Verizon is in the business district, and Glemser bldg and the law offices are grandfathered, so they have no legal bearing on 2 W.
Though there is a longstanding law office near the B&B, a new one would not be allowed there now by law.
Though Mrs. Virgilio testified that there was no “commercial creep” in the neighborhood, the recent opening of a financial service office at 2 W. itself is indeed an example of commercial creep.
Valid points, Gadfly thought.
But, climatically, the neighbors’ attorney focused on what for Gadfly was precisely his big takeaway from Mrs. Virgilio’s testimony when he asked, “You have a financial interest in this, don’t you?” Go back to the last post and look at her stress on increased property values under examination by the City attorney. Did you notice that?
For Mrs. Virgilio the touchstone is money, thought Gadfly. Hmmm.
Her answer to this question of whether she had a financial interest in the approval of the Marketer’s presence — delivered with emphasis and urgency as if it was a stupid question — almost jolted Gadfly out of his seat with its dollar-sign clarity:
Isn’t that the whole idea of buying property?
A rhetorical question. As if the answer could be nothing but a “yes.” But Gadfly, sitting in the cheap seats, was about ready to shout “NO.”
The principal purpose of buying property is to make money? Not always.
Mrs. Virgilio is a businesswoman. Ok, you buy a property as a businesswoman, and you hope to build on your investment.
She was answering with honesty and complete transparency.
But if you are buying a “home,” you have a lot of other values in mind, the kind of things a long line of neighbors talked about in meeting after meeting embodied in references to a sense of community, eyes on the street, borrowing cups of sugar, shoveling sidewalks, watching each others’ kids, and so forth.
A “neighborhood” for a prospective home owner and for a prospective businesswoman would mean two different things.
Mrs. Virgilio admits of such when she says if she was looking for a place to raise kids, she wouldn’t have bought there.
But kids have been raised in the 2 W. Market house. The previous owner Schadts had one or maybe two children there. One testified several times, and Gadfly believes another may have done so once.
The Romerils (Martin testified last meeting) were raised on the block. Ms. Van Wirt, also a prior testifier, is now raising kids on the block.
More importantly, by her own admission at the beginning of her testimony, Mrs. Virgilio herself raised three sons at the intersection of New and Market.
So, children can and have been raised at the intersection of New and Market. One can have a home there.
New and Market is residential.
The fact that a street has double yellow lines, the fact that a street has parking meters, the fact that a street has a bus stop does not make an area commercial to Gadfly’s way of thinking.
So Gadfly was no more moved by Mrs. Virgilio’s testimony here than he was similar testimony by many more people during the original stages of this controversy.
And he doesn’t see that she goes anywhere to rebutting the two main conclusions of the neighbors’ expert witness.
Here’s the full interchange between the attorney and Mrs. Virgilio:
Attorney: You have a financial interest in this, don’t you, in that a financial service office has been placed diagonally across from your property that has now increased the value of your property?
Mrs. Virgilio: Isn’t that the whole idea of buying property?
Attorney: Well, isn’t the whole idea of when you buy into a residential neighborhood that it remains residential?
Mrs. Virgilio: I think I stated up front that when we purchased our property we purchased it with the idea of putting a business in there. It was already a business when we purchased it, and we purchased it with the intent of continuing it as a different type of business, but it would still be a business. I already said if we were looking to buy a home as a residence to raise our children, we would have never looked at New and Market.
Gadfly spent another long night Wednesday at the Zoning Hearing Board at which the owner of 2 W. Market St., the neighbors of 2 W. Market St., and the City are locked like Middle East countries in a feud of such longstanding duration that it’s almost impossible to remember anymore what the core issues are.
Those issues are lost in the legal weeds. Gadfly invites you to peek at the last 45 minutes of Wednesday’s meeting (begin around min. 4:15:00), for a mind-numbing City-lawyer-led tour of city properties by a civil engineer, who, rather amazingly, was permitted to testify as an expert witness on zoning.
Gadfly assumes this kind of thing was necessary for the City to make its case and the attorney to earn his keep, but it was not spectator-friendly. God bless the Board members. One of whom appears to be looking for divine intervention during this punishing latter testimony. One could better hope that he has discovered the beauty in the Town Hall ceiling that Dana Grubb has just revealed to us.
There was no resolution Wednesday night. We look forward to another try at such next Monday night.
“Some people may wonder why this matters so much and see it as a tempest in a teapot,” neighbor team member Barbara Diamond says in yesterday’s explanatory post in this series.
Yes, some of you Gadfly followers ARE wondering that. Couldn’t we all be making better use of our time, you ask?
Yes, Gadfly hears that.
So what is the City/Marketer case?
Gadfly has done exhaustive presentation of the Marketer position in past posts when as many as 12 or 15 residents testified in their favor at previous meetings. See here for one example among many posts.
But the City/Marketers only presented one testifier this time.
So — since in Gadville we always try to present all sides — let’s look at the testimony of Suzanne Virgilio, owner of the Bethlehem Inn Bed & Breakfast catercorner from 2 W. Market, the sole resident witness put on by the City.
But, first, let’s familiarize ourselves with the 2 W. Market “neighborhood.”
2 W. Market is at the corner of New and Market. Gadfly bets we all have passed it scores if not hundreds of times.
But let’s try to “see” it right now before listening to Virgilio. If the technology works, click here for the google map in (I hope) the mode that will enable you to travel east and west on Market as well as north and south on New. (If the link doesn’t work, you can google-map 2 W. Market yourself and maneuver around in the street view.)
The idea is to see what Virgilio sees as she stands at the intersection of New and Market.
Ok, now listen to her testimony.
Gadfly apologizes that his camera position and YouTube’s choice of image make Mrs. Virgilio look like a mob informant secretly testifying before a Congressional committee
“Our objective in purchasing the property was to run a bed & breakfast at that location.”
“We did so specifically at this location because it was a great business location.”
“If we were looking to buy a home to raise our children in, we would not have chosen this location.”
“But it was ideal for business.”
How would you characterize the nature of the neighborhood?
“Obviously we’re within the historic district, but within the historic district there’s many different personalities.”
“That’s what makes it very appealing . . . in a downtown area you can live on a residential street, but you also can live in a more commercial area.”
“Which is how I characterize the neighborhood at the corner of New and Market.”
“It’s a very commercial area. It has a 4-way traffic light. It has double yellow lines which indicate a heavily traffic’d area.”
“Up until this year we had a LANTA bus stop directly in front of our home. I don’t think residential areas necessarily have that.”
“We have a school directly across the street, with drop-offs, pick-ups, school buses, parents, etcetera.”
“While maybe some areas in the historic district pose a more residential feel, certainly that’s not the case at the corner of New and Market.”
It’s an area in which there are parking meters, already existing offices, and there has been no increase in traffic as a result of the 2 W. Market business.
Have you observed any negative effects in the neighborhood?
Quite the contrary, I thing the improvements made to that property have upped the bar.”
“Our own property value has increased since that property has been renovated.”
“On New St., two houses on New St. from us, sold for very, very high amounts and sold quickly.”
“On Market St. two doors down from us another property sold very quickly.”
“And I think that has a great deal to do with what has been done to 2 W. Market St.”
“It’s improved the neighborhood. It’s improved property value. It’s been a great improvement overall.”
Have you noticed any creeping commercialization in, say, the past five years?
“In my immediate 4-corner area, I can’t think of anything that has become commercial.”
Ok, so here is the only testimony by a resident put on by the City/Marketer to defend against the claim by the other neighbors that the zoning amendment permitting a business use at 2 W. Market in a residential district is invalid.
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.
Thank you Gadfly for reporting so extensively on 2 West Market St. Some people may wonder why this matters so much and see it as a tempest in a teapot. In fact this has a far-reaching impact that could adversely affect property owners in residentially zoned neighborhoods in the city. It is also about using the levers of government to dispense favorable treatment to a well-connected benefactor.
The simple facts are that the Marketer, as you call him, decided to move his business from the commercial district on Broad St to a house in the historic district. The ZHB declined a variance twice to do so but granted one not long after he made a substantial gift to build the mounted police stable. He commenced renovations knowing that litigation was ongoing and the ZHB’s favorable decision might be overturned — and it was, unanimously, by the Commonwealth Court.
Endeavoring to get his way nonetheless, he decided to get the city to alter its zoning ordinance so that his property would fit in. This was done by a tortured amendment to the corner store provision in such a way that he could operate his business in a residential neighborhood. No analysis was done by the city as required to determine how many other properties might be affected, and no property owners were notified before the city council approved it. Darlene Heller, Director of Planning and Zoning, acknowledged in a memo to the Bethlehem Planning Commission (BPC) that the amendment clearly benefits the business owner, and that the potential impacts on the city are unknown: “this amendment is specifically written to provide relief for one individual’s property, but there is no information about the overall number of properties that will be affected. . . . the end result of the amendment is unclear.” The BPC did not approve the amendment, but the city council did. With their favorable vote, Councilmen Waldron, Callahan, Martell, and Reynolds failed to abide by the intent of their zoning code to preserve residential neighborhoods throughout the city for the benefit of one special interest business promoted by the Mayor.
We are before the ZHB as part of the appeal process, but because of city politics we suspect that they will rule in favor of the Marketer. You only have to look at the table where the city’s attorney (who is paid by tax-payers) sits beside and confers with the marketer’s attorney to know the outcome.
Nevertheless we believe this is a fight worth the time, effort, and money. When individuals use their influence to get favorable treatment that materially has a detrimental impact on others in the community, it should be challenged.