Thank you, Gadfly, for the long and thoughtful narrative and finally, the analysis. My stomach hurts. The developer is a master of dissembling, dodging and disrespecting. I feel ill every time I come across the bridge, drive down W. 3rd (yes, you can see the offending illegal structure from there), or contemplate what the developer will do next. This is exactly what might MAKE people into CAVE-ers, Mr. C. When our HCC tries to do the right thing (and COMPROMISES) this is what they get. Do you wonder that there is little trust, or appreciation for impending changes among those of us who live here and work here…. Every. Day…??
As Gadfly wraps up this mini-series, he asks you to remember what he’s been trying to do.
There are people who think about, wonder about, worry about, complain about City dealings involving developers.
There are other people who scoff at the first group as obstructers, as exaggerators, maybe even as liars.
It’s an important issue of public trust.
What Gadfly is trying to do here is lay out in detail his personal perspective on one specific case to support the position that there is a solid foundation for that worrying and complaining.
The 306 S. New case simply wouldn’t “settle” in his mind.
It just felt all wrong.
He has given you 18 troubling observations about the case in general.
Now he ends with a close look at the behavior of the developer.
Up to you to judge. Reactions and counter-views welcome.
At Council the developer introduces himself and the restaurateur in this manner: “I’m here tonight in a representative capacity to Grille 3502, it’s an LLC. With me tonight is ______. He’s the owner of that restaurant. I can tell you that _______ is not skilled in development work or building work” (5). The developer poses as a “representative” not as a person directly involved. He portrays himself as – as he is in real life – a lawyer representing a client, as if he has no personal responsibility for the violation that has occurred nor personal stake in how it is adjudicated. The developer seeks to shift focus to the restaurateur, whom he portrays as an innocent, inexperienced, hapless victim of sudden, unforeseen, and dire circumstance poised to ruin him. Surely this is not the true state of affairs. Which PVW immediately senses. And angrily denounces. The developer is without question a central figure here. He as well as the restaurateur will be in quite a gnarl if Council supports HCC and denies the COA. Can a lessee/tenant make a (I assume) permanent structural change to the building he leases without the full prior knowledge of and permission of the owner? If I am renting a house, can I knock out a wall and build an extension without informing the landlord? I don’t think so. So the developer has craftily attempted to stage the interaction with Council so that the focus is not on him but on an innocent person hard to “punish.”
But how does the developer portray himself? At Council the developer makes it sound as if he was not aware of the HCC recess stipulation (5,8). This is virtually impossible to believe. The building had three solid rounds of discussion before the HCC: 4/27/15, 12/21/15, and 8/15/16. Newspaper and City records show that the height of the building was a major subject of discussion at each meeting. HCC minutes show that both the architect and developer were present at the first two meetings; no records survive for the third. In the 4/27/15 minutes, we find: “The height of the building is the most incompatible feature of the new building in relation to its immediate surroundings. Most of the surrounding buildings are three story. However, the design has incorporated several features to reduce the impact of its height. As previously stated the upper 2 levels are set back to reduce their impact on the streetscape.” In the 12/21/15 minutes, we find: “The design still incorporates an upper level setback that helps to reduce the impact of the height on the streetscape.” Thus, the developer was present at important meetings in which this “most incompatible feature” of the proposed building was discussed/debated, and his architect was responding to the HCC concerns. City files show pertinent letters from the City Clerk to the developer after both those meetings.
Not only does the developer feign ignorance of the HCC stipulation itself, at Council the developer feigns ignorance of the reason for it when he became aware (5). After all, he says, it happened “way back” (two years before). But, to the contrary, incredibly, during this same formative design period – from March 2014 to May 2015, ending virtually at the same time as the 4/27/15 HCC meeting – the developer was involved in a very similar and very public dispute over the height of another building at 4th and Vine, a dispute that ended in a law suit. For instance, the newspaper reported one “very contentious, standing-room-only meeting that lasted more than five hours.” In March 2014 a member of the HCC felt “there has to be some approach to mitigating the feeling of some monolith sitting on the corner of Vine and Fourth,” and the suggestion offered was “setting the top floor back from the rest of the building.” The developer said that “while he will consider the suggestions and apply them where possible, he doesn’t think the building will look as big as it sounds.” The developer said the exact same thing about similar recess suggestions a month later, and then in November 2014 he produced a new design with a “tapered top floor” and “a rooftop garden to create an airy effect in an attempt to downplay the height.” Thus, the developer was not only well aware of HCC height concerns and the way to address them but publicly commenting on them and then implementing answers to them in a revised design. AW recognized the developer role of playing dumb here and pushed back against this guise of ignorance (8).
After clouding his awareness both of the HCC stipulation and a reason for it, at Council the developer not only disputes the rationale for the HCC decision but says that what the City did was not an error but good judgment! “There is only one place that you can even see this piece of construction and that’s coming over the bridge and when you come over the bridge you see the entirety of the 6th . . . When this is completed, and when the tarps are off, it’s going to look like it’s been there forever. And you don’t see dimension when you look at it from the north coming to the south. It looks like it’s been designed right along with the building. . . . I think [the City] was right in doing what they did [in approving the plans]” (5). Unbelievable. The approved 6-story height of the building was a compromise by the HCC to begin with, but that does not stop the developer from disputing the judgment of the group duly appointed to make such judgments. An argument he could not engage, much less win, with the HCC, so he did not even bother to go to the November 19 meeting, but an argument that could sway elected officials who were in a difficult-impossible-terrible position and who march to a different drum. Think of it – the real error here according to the developer was the HCC’s!
By two weeks after Council, a total of $3000 from the developer and members of his company appears in the coffers of one of the Council persons. Legal. One would hope innocent and/or coincidental. But, at the very least, optically lethal.
Gadfly began this miniseries on 306 S. New St. in post 10.
The long prologue is finally over.
Let’s see if he can demonstrate what’s kept this case fresh in his mind.
Gadfly followers will recognize that he has been troubled by the tension and contention surrounding developers and development for a long time.
In post 10, he formulated it this way: “The reason Gadfly can’t let this ‘case’ go is that it highlights so well the recurring tension between development and history in the City, and a sense that many have that developers are shady, that developers get their way, that Council tends to buckle under to developers (and worse things are intimated), that historical ordinances aren’t worth the paper they were printed on and the breath with which they were conceived, that what the ‘people’ want doesn’t matter. So this is an important case.”
Gadfly’s dis-ease goes way back to a post on the 2 W. Market case in which he ruminated over the “Great Divide” between CM Callahan and CW Negron’s visions of the Southside.
Especially to CM Callahan’s typifying critics of development as “CAVE people”: “Some people call them CAVE people, Citizens against Virtually Everything. No matter what you do, no matter what you say, it’s always, there always a group that comes out of the woodwork.”
That’s a harsh view, an indictment of the entire race of Gadflies, and deserves some defense.
Here and especially in the next post, Gadfly will try to see 306 S. New through Gadfly eyes.
Here is a list of observations that, Gadfly feels, can help explain why some people have good reason to feel troubled by the way the case was handled.
The numbers in parentheses refer to the excerpts from the audio recording of the Dec. 4 meeting compiled in post 12.
The compromise idea to meet HCC’s concern about the height of the 306 building by recessing the 6th fl. came from the building architect (1). That very same architect did the plans for the restaurant that violate the agreement with HCC. That architect should have known the restaurant plans were in violation. That architect should be called out.
The developer professes lack of knowledge of the HCC stipulation and a complete laissez-faire posture about lease negotiations and arrangements with the restaurant (5,8). This seems quite disingenuous and will be the sole subject of the next post. There was no doubt in the mind of Council and the HCC that height was an issue and recess a condition (1,2,7,8,11).
Approval of design plans by the City green-lighting construction occurred two weeks before the violation was discovered. But we do not know exactly when construction of the restaurant began. And we do not know exactly when work on the exterior portion began. So it’s hard to judge how far construction had progressed before the violation was discovered.
Image 4, one of 2 images presented to Council for deliberation at the Dec. 4 meeting, indicates that the roof was done before the violation was discovered. It is not clear if construction on the visible exterior of the building (probably even visible from City Hall) could have gotten that far without discovery of the violation.
A “stop work” order was not issued when the violation was discovered. Why? So it is not clear exactly when work stopped. Apparently, work in other areas of the restaurant never stopped. It is not clear whether a “stop work” order, if issued, would have covered the whole project, not just this portion.
Quadratus Construction filed the application to HCC for Certificate of Approval (COA) after the violation was discovered. What standing does the contractor have to do this? Shouldn’t it have been the developer? The line of true responsibility for the design that produced the violation is not clear.
Quadratus attended the HCC meeting and not the developer. The developer attended the Council meeting and not Quadratus. Both should have been present at both meetings so that a full range of questions could be answered and a full range of possible solutions considered. All key parties were not “at the table.” The absence of Quadratus at Council suggests that the developer was not even considering a construction compromise or construction reversal when he went to Council.
The exact state and nature of the work performed before the violation was discovered is not clear. AW says the work was more than half-done (3), but that’s a judgment better made by the contractor. Before Council minds were made up, it should have been authoritatively determined exactly what had been done and what was left to do.
Though the HCC chair said that “going backward” would be “difficult” (4), the possibility of reversing the work in violation was not explored fully. AW got close but backed away (10). It was his feeling that deconstructing at this point was not something anybody on Council would ask.
The strong implication/impression was that the work in violation was somehow now irreversible, had progressed beyond the point of no return (4,9). But there is nothing concrete to demonstrate definitively that was so. And, on the surface, without explanation, it does not make good sense. Going backward may have been difficult, but that’s not to say it was impossible.
Quadratus could weigh in significantly on the last several points but has not responded to three attempts for an interview by this inquirer.
The City accepted responsibility for a mistake but provided no guidance about a solution. One wonders how the City handles cases (there must be some) in which a developer/homeowner violates a building permit, even to the point of completing the project in unauthorized fashion. More to the point, one wonders how the City handled projects (it must have happened!) in which it mistakenly issued a permit and the project was in process or even complete. In other words, what previous experience or precedent relevant to this specific situation could the City offer to Council?
The restaurateur was not directly asked an obvious key question. He was not asked what he would do if Council backed HCC and denied the COA. If he had to operate without that extension, would the impact of the extra expense to deconstruct be destructive? But no even ballpark estimate of “repair” cost was given. So, ok, what if the City paid the expense for its mistake – would that be ok with him? Or would he then argue the irreparable loss be indoor seating in his business plan (Gadfly figures roughly 30 seats in that area)? Or is the problem timing – he aimed at opening in the holiday season, and he would miss the opening surge of business that would bring? The restaurateur says he would be pretty much “ruined” if Council didn’t approve (6). Why? In what way?
The idea that the City might pay to correct its mistake was not considered.
This claim of imminent ruin is connected with an odd piece of dialogue between AW and the restaurateur in which “catastrophic” is used to describe the impact of a denial on the restaurateur. AW gives the restaurateur this powerful word to describe his own situation – puts it in his mouth (10). CM Waldron: “Ok, that’s fair, but it would be easy to say that to take that area out would be catastrophic.” Restaurateur: “That’s a very exact, perfect statement.” CM Waldron: “There you go.” Maybe this inquirer watches too much Perry Mason (dating himself), but this feels like “leading the witness.” Without more specific explanation, “catastrophic” seems melodramatic.
ON does not make a motion but she does make a suggestion that would escape the horns of the either/or dilemma formulated by AW and JWR (12). It’s been assumed all along that there will be service on the terrace. Is it agreeable – even keeping the new roof perhaps – having outdoor service there with heaters as with restaurants elsewhere in the City as ON suggests? Could more conversation with HCC effect such a compromise?
There seemed to be a need Dec. 4 to rush to judgment. The planned restaurant opening is imminent, etc., etc. But it was 3 weeks from discovery of the violation to the HCC meeting and then another 2 weeks to the Council meeting. Is there no provision in various guidelines to permit a compression of time to meet the need for an urgent decision? There was a lot of dead time that might have been used to take the heat off Dec. 4. On Dec. 4 a feeling of “too late” to do anything else but approve was in the air.
Several Council members were quite perturbed by the City mistake that put them in such a “difficult, impossible, terrible” position. And certainly a segment of residents were/are quite angry at how the historical district guidelines and decision played out. The City promised to amend its procedures to eliminate a repeat of the situation. The City evaluation and procedural revisions should be publicly shared with Council and residents as an act of good faith that steps have been taken to ensure that this kind of error does not happen again.
But it’s the developer on which we must focus most attention. Next post.
So here are key excerpts from the audio recording with time stamp for further reference if you want.
In later posts, Gadfy will try to keep long quoting to a minimum but refer just to the excerpt number here.
Long foreplay by Gadfly — but the real thing begins next post.
Excerpt 1 – 0:20
HCC chair: “The denial for the porch addition [by HCC on Nov. 19] . . . . I think that our historic officer Jeff Long summed it up best by saying in his minutes that HCC members specifically recall the approval of a 6th floor of the already tall structure was predicated on a condition that the top floor be recessed 12 feet along West 3rd St and have a thin projecting roof to diminish its visibility from street level. When the building was originally designed the owner/developer came to us at least 4 times, 3-4 times. During that 4 times, we took a lot of information and distilled it down to the building that’s there today. I think one of the provisions we were looking for was a building that didn’t look as tall as a 6-story building. So what the architect came back with was, he would take the 6th floor, set it back 12 feet, and when you look at the building you would see the first 5 floors and the 6th floor would look almost maybe like a penthouse or a tall parapet in the background. And that’s what we achieved. That’s what everybody agreed upon. And . . . hence the denial.
Excerpt 2 – 3:25
CM Waldron: “I remember when this was originally approved and the COA came to us that was a real sticking point, recessing the 6th floor so to try to diminish the height of the building in its appearance.”
Excerpt 3 – 4:40
CM Waldron: “Clearly there was a miscommunication, because I don’t know what percentage done, but I would say more than half-way done with this construction “. . . HCC chair: “the construction did begin well before we asked them to bring it before the Board.”
Excerpt 4 – 8:30
CM Reynolds: “Was there a conversation [between the HCC and the contractor] about how there was supposed to be a remedy here?” HCC chair: “There wasn’t. Other than to stop any additional work outside. And my comment, actually prior to that, when I first asked the contractor to come in to have it reviewed, I understood that the building was open to weather, which is a term we use in the construction industry when you take a roof off a building or you open up a wall that you either have to close it in quickly because the weather’s going to come into the building or you leave it open and risk more damage to the building. I said at least get it weatherproofed, and that’s what they did?” . . . HCC chair: “Going backwards at that point because of all the structural steel involved would be very difficult.”
Excerpt 5 – 18:00
Developer: “I’m here tonight in a representative capacity to Grille 3502, it’s an LLC, with me tonight is ______, he’s the owner of that restaurant. I can tell you that _______ is not skilled in development work or building work. . . . It’s not like ______ just went out and did something wily-nily. . . . When I read the correspondence from HCC to City Council or whoever it was, I’m not exactly sure what the reason was. I suspect that a component of it was that way back in the day when this was built or approved as a 6 story building, one of the reasons that [HCC chair] suggested has to be set back was to make it appear like it was not 6 stories, but there is only place that you can even see this piece of construction and that’s coming over the bridge and when you come over the bridge you see the entirety of the 6th floor . . . when this is completed and when the tarps are off, it’s going to look like it’s been there forever. And you don’t see dimension when you look at it from the north coming to the south. It looks like it’s been designed right along with the building. . . . I think [the City] was right in doing what they did [in approving the plans].
Excerpt 6 – 21:00
Restaurateur: “We’re this close to opening up in about a month, and I’m asking you guys to approve this because again I have $2.5m in it and I’ll pretty much be ruined if it doesn’t happen. . . . There was no ill intent. We didn’t try to sneak anything by. I don’t know the difference between a fit-out or [garbled], we just wanted to build a restaurant with that enclosure, and I ask you guys to approve it, please.
Excerpt 7 – 22:35
CM Waldron: “Obviously it wasn’t known to you . . . that that 6th floor had a 12ft. set-back.” Restaurateur: “The only thing I knew was that that terrace up there was extremely attractive. . . . I just found out about this recently when the Historical Board told us . . . in the past few weeks.” CM Waldron: Unless you really know the rules of the HCC, it wouldn’t necessarily be on you, but it would be on the City and building owner to know what the HCC requires . . . . It was very clear that the HCC did not want this to protrude out to the edge. . . . This is a pretty difficult situation that Council’s been put in because multiple people missed the opportunity to get it right the first time.
Excerpt 8 – 25:00
Developer: “When ______ and my company entered a lease, the restaurant wasn’t even designed so we didn’t know.” CM Waldron: “The HCC would make the argument that you should have known that the 6th fl. couldn’t be expanded out because that was the point of contention. Several of us were on Council at the time when that came forward and they made that explicitly clear that . . . they wanted that set-back. . . . I would respectfully say that I understand the HCC’s perspective. . . . I would probably be in favor of supporting this addition. . . . It is a small impact. . . . My perspective is that we respectfully reverse the HCC.”
Excerpt 9 – 28:30
CM Reynolds: “If HCC denies something and not to have anybody offer a possible solution until it gets to this point between the Administration and the HCC puts City Council in an almost impossible position at which we are up here trying to decide what we think should be done with something that HCC voted no on but didn’t necessarily give any guidance about how it gets remediated. That’s an impossible position. I don’t think that we are in a position here from a practical point of view to uphold this after the work’s been done and no other solution has been provided. . . . I don’t think that there’s another choice, because what’s our other choice?
Excerpt 10 – 29:45
CM Waldron: “The other choice would be to tell them to tear it down, which obviously is not a small ask. And I don’t think anybody here would want that or ask that to do. The big question that hasn’t even been asked, ______, is what is the cost of this fit-out, this additional area that’s been constructed. . . . It wouldn’t be easy to cut that out and say this little area here cost x number of dollars.” Restaurateur: “I have no idea.” CM Waldron: “Ok, that’s fair, but it would be easy to say that to take that area out would be catastrophic.” Restaurateur: “That’s a very exact, perfect statement.” CM Waldron: “There you go.”
Excerpt 11 – 30:57
CW Van Wirt: “We’re in this terrible position . . . The setback on the 6th floor was done intentionally and with great thought and intent and to understand that there was a negotiation between you two that didn’t squarely cover what was allowed and what was not allowed, I have such a hard time with that. . . . I don’t understand how two good, strong, smart businessman can neglect to discuss the square footage of a big restaurant like this. Developer: “Well, I didn’t even negotiate it, my marketing people did.” CW Van Wirt: “Whoever is responsible.” Restaurateur: When I talked about it with the leasing agent, I said I definitely wanted to do that. The architect drew it up, put in for the building permit . . . CW Van Wirt: “I think the building owner has a role in overseeing . . . within the confines of the HCC.”
Excerpt 12 – 33:10
CW Negron: “There should have been a conversation . . . and I think there’s still an opportunity to have that conversation . . . and I think that it should still happen . . . they can still have a space in there with tables and chairs like many other restaurants in downtown Bethlehem, even Southside, have tables and chairs outside and when it snows or is cold or is raining . . . they put a heater, we can sit down . . . just have the tables and chairs and not that roof.”
But, especially now that the case is decently in the rear-view mirror, there may be still something we can learn. And Gadfly would like to make some observations and conclusions. And thus, in typical Gadfly fashion, he is being careful to lay the groundwork in plodding way so that you can make your own observations and conclusions.
Thus, here again, is the audio recording of the 306 S. New section of the December 4 Council meeting (50 mins.), but with it this time (coming in the next post) is a series of excerpts that will be pertinent to his observations and conclusions (you will find that last time Gadfly provided helpful summaries of each CP’s position).
Listen to the recording. It is really very interesting.
Gadfly wants you to know your elected officials. Some are running for re-election right now. Some, no doubt, have their eyes on higher office. We need to be informed about them to cast the best possible vote we can. It’s the only way we get the best city government we can.
Perhaps you can identify the pictures of each Council person. Now let’s associate a voice and a style of thinking with each. Since Council meetings are now on television, all this “recognition” will be easier if you take advantage. But the Zest case presents them all on display in a valuably compressed way. This “hard case” brings some essential qualities to the fore.
After listening to the recording, how would you characterize each Council member here? Objectively as much as possible. Not slanted. Not critical. Join me. Let’s compare notes.
I’ll start. CM Waldron acts as the investigator, as befits a Council president, drawing out information. He pushes back against the developer and a fellow Council person even, couching his vote as a respectful reversal of HCC. CM Reynolds is slow, and careful, and you can see him in logical fashion trying to make sure he understands everything in order to frame the situation, structure it, in as clean a way as possible to facilitate his decision. You can almost “see” him outlining the problem in the air. CW Van Wirt is fiery, passionate, worked up – she’s got a burr under her saddle – she’s full of “piss and vinegar” as they say. Illogic and lack of commonsense bother her greatly. CM Callahan champions a side that he seems personally involved in and sees this case as part of a bigger picture. His vote is an easy one. There is no hesitation. CM Colon, never one to talk overmuch, asks clear, respectful incisive questions and comes to a clear, untroubled conclusion. CW Negron is exasperated, “history” weighs on her. She speaks on the soft side, you lean in to hear her as you would to a person in a sick bed. She’s in pain. She speaks from the heart, a heart that’s been stabbed many times before.
Gadfly looks on 306 with almost a director’s eye. There’s a rich diversity of characters here. They show important sides of themselves. We know a lot about them from how they respond to this “hard case.”
Gadfly invites you to share your notes on the “characters” in this “play.”
And then to move on to consider the series of excerpts on which he’d like us to focus.
In the last post in this thread Gadfly described himself as a “slow methodical thinker.”
Some might say plodding.
For he likes a timeline.
And the timeline in this case is important.
It will help us learn some things.
So let’s review the timeline, a timeline leaner but broader than the version in post 3.
(Information gathered from review of Morning Call files, City documents online, and City documents obtained via Right-to-Know law.)
2013: a building at 306 is a gleam in the developer’s eye
Nov. 18, 2013: City Council approves sale of community garden adjacent to 306 to developer
Dec. 30, 2013: 306 is approved in the new CRIZ program, an incentive for development
March 17, 2014: HCC approves a 7-story building at 4th and Vine by the same developer
April 1, 2014: City Council approves the 4th and Vine plan
Nov. 5, 2014: City Council approves a revised plan for a 9-story building at 4th and Vine
April 13, 2015: the developer submits application to HCC for a Certificate of Appropriateness (COA) for demolition of existing buildings and erection of a 7-story building at 306
April 27, 2015: HCC discusses the 306 COA without decision
May 26, 2015: a Judge dismisses a suit over the 9-story height at 4th and Vine
Dec. 21, 2015: a now 6-story building at 306 with recessed 6th fl. is approved by the HCC
Jan. 19, 2016: City Council approves the 306 COA
Aug. 15, 2016: 3rd version of plans for 306 approved by HCC
Sept. 6, 2016: City Council approves this final 306 COA
2017-2018: in this period construction occurs, and the building is completed at 306
Jan. 2018: Zest signs lease for the 6th fl. at 306
Aug. 20, 2018: Zest architect submits design plans to the City
Oct. 15, 2018 (Monday): City approves design plan, construction of Zest can begin
Oct. 29, 2018 (Monday): City advises contractor that exterior changes in progress at Zest require HCC approval
Oct. 29-Dec. 4: somewhere in this period CMs Waldron and Callahan separately view the Zest site
Nov. 12, 2018, and Nov. 19, 2018, weeks of: crane known to be in operation from 3rd street to the 6th fl. (might have been before and after as well)
Nov. 19, 2018: HCC hears the appeal to approve the exterior work and denies it 8-0
Dec. 4, 2018: City Council reverses the denial 5-2, with assurance that City will review and correct its authorization procedures
Dec. 20, 2018: Zest has soft opening
Some important points to note for elaboration later:
306 had 3 discussion/approvals by HCC/City Council — building height a discussion point each time
the same developer had a property at 4th and Vine go to court precisely over the issue of height during the same time period
The error at 306 was discovered two weeks to the day from the first day construction could have begun (though when construction actually began is not known)
3 weeks elapsed between discovery of the error and the HCC meeting; 5 weeks elapsed between the discovery of the error and the City Council meeting
2 weeks elapsed between City Council approval and the soft opening
No work should have been done on the exterior between Oct. 29 and Dec. 5, though no “stop work” order was issued by the City, and cranes, perhaps but not certainly indicating outside work, blocked a travel lane on 3rd St. at least the weeks of Nov. 12 and Nov. 19, if not longer.