(15th in a series of posts on 306 S. New St.)

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 4^th 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 6^th . . . 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.

(14th in a series of posts on 306 S. New St.)

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.

1. The compromise idea to meet HCC’s concern about the height of the 306 building by recessing the 6^th 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.
2. 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).
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. Quadratus could weigh in significantly on the last several points but has not responded to three attempts for an interview by this inquirer.
12. 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?
13. 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?
14. The idea that the City might pay to correct its mistake was not considered.
15. 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.
16. 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?
17. 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.
18. 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.

(13th in a series of posts on 306 S. New St.)

Oops, Gadfly wanted to bring back these images as well as the text excerpts.

Now let’s really get to the real thing–

(12th in a series of posts on 306 S. New St.)

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 6^th floor of the already tall structure was predicated on a condition that the top floor be recessed 12 feet along West 3^rd 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 6^th floor, set it back 12 feet, and when you look at the building you would see the first 5 floors and the 6^th 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 6^th 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 6^th 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 6^th 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 6^th 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 6^th 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.”

(11th in a series of posts on 306 S. New St.)

Zest was a hard case. Council members called their position “difficult,” “impossible,” “terrible.” And they weren’t exaggerating.

Gadfly agrees. And he has said that, in his opinion, realistically and pragmatically, the decision to deny the HCC ruling was the only possible conclusion at that time, though you will find a strong dissenting view in the series of posts.

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.

(11th in a series of posts on 306 S. New St.)

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 4^th and Vine by the same developer
• April 1, 2014: City Council approves the 4^th and Vine plan
• Nov. 5, 2014: City Council approves a revised plan for a 9-story building at 4^th 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 4^th and Vine
• Dec. 21, 2015: a now 6-story building at 306 with recessed 6^th fl. is approved by the HCC
• Jan. 19, 2016: City Council approves the 306 COA
• Aug. 15, 2016: 3^rd 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 6^th 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 6^th 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 4^th 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 3^rd St. at least the weeks of Nov. 12 and Nov. 19, if not longer.

Ha! Is this set-up plodding enough for you?

Plod on to the next post!

(10th in a series of posts on 306 S. New St.)

Glenn Koehler, “Restaurant review: Zest delivers mouth-watering menu and eye-popping views.” Morning Call, February 12, 2019.

So Zest, the new restaurant atop 306 S. New St. that opened around Christmas/New Year’s is, for some, settling in to the Bethlehem scene.

For others it might never settle in.

The Call reporter says the food is “mouth-watering.”

For some the way the restaurant was built might forever leave a bad taste.

Do you remember the almost perfect storm that occurred on the verge of the restaurant opening? Gadfly covered it in some detail. There are 9 posts in the 306 S. New thread. You might want to refresh your memory. Gadfly will only provide a bare-bones account here.

306 S. New is in the southside historical district. The Historical Conservation Commission (HCC), concerned about the height of new buildings in the district, approved a 6-story building but with a recessed 6^th floor to diminish the sense of height. City Council approved HCC approval. Later, Zest, the 6^th floor tenant engaged by the building owner, submitted plans to the City encroaching on that recess. The plans should have been rejected, but the City mistakenly gave approval. Construction started and was somewhere in progress when the error was discovered, kicking the issue back to HCC. HCC denied the extension unanimously without any further recommendation of what to do or how to proceed. City Council then heard the case again. The owner/developer claimed ignorance of the recess provision, the restaurateur claimed ignorance as well as his large financial outlay and the planned upcoming opening, the City admitted its mistake. The Council was called upon to decide what to do – a decision framed as either support HCC’s denial or give permission for the originally unapproved design. Council voted 5-2 against the HCC decision and thus to allow construction to continue.

Now this was a hard case. If you will go back in the thread, you will see that Gadfly believed that, all things considered, realistically and pragmatically, there was nothing else Council could have done at that point. But you will find a strong counter-view there as well.

Move on, Gadfly, you’ll say. It’s water under the bridge. Zest is open, the food is mouth-watering, the view eye-popping, pitchers and catchers are heading to Florida, Spring is coming, the birds will be chirping. Move on.

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.

Candidates for City Council take note.

And another reason Gadfly hasn’t been able to let this case go is that several aspects of it just don’t seem right, just won’t be smoothed over.

The only way Gadfly knows to seek closure, to let a problem go, is to write it out.

So please bear with him for a couple posts. He’s a slow methodical thinker.

Maybe there something important to be learned in this review.

(8th in a series of posts on 306 S. New St.)

Paige Van Wirt is a Bethlehem City Councilwoman, physician, and small business owner.

Gadfly, I disagree with your assessment. It presumes the city would pay. This was a mistake generated between the developer and the restaurateur. The developer knew, after much hand-wringing in front of HCC, that the deck was NOT available for development of the restaurant. This would have been firmly decided-upon when restaurateur signed lease with developer. If it was not, this mistake is on the developer. We should have mandated seeing the original lease!. This developer knew what was allowed by law, and chose not to oversee the development plans of the restaurateur. The fact that erroneous plans were submitted to the city does not speak well of city’s competency, but this “mistake,” in any other city determined to operate within the confines of the law, would have been mandated to have been corrected at the developer’s expense. Developers are investors in our city. They are also partners, forming good, trusting working relationships with the cities in which they invest. If this developer knew he would be held to account for this mistake, which originated in his office, I doubt the “mistake” plans never would have been submitted to city. And now that we have let this one slide, how many more “oops” mistakes will be made, predicated on the city not requiring any remediation. 2 W. market tried to use this argument as well- “look how great it looks, he spent so much money!,” not addressing the fact that his decision to renovate was done WHILE a court-case was pending against it. It’s a pattern, only open to those with high-level connections, to assure that this matter will be taken care of, after the fact, an assurance that City Council has been more than willing to oblige. Finally, the city needs to clarify its own rules. If a restaurateur submits interior build-out plans, and includes exterior plans, such as this one did, then those “exterior” plans should not count under any approval. Interior build-out plan approval by the city should ONLY apply to interior plans. And so on and so forth. This is not rocket-science. These waters have been made muddy by all sides on purpose, and it speaks very poorly to all parties involved, including city council. The developer should have paid for the remediation of the error, which generated in his office through lax oversight, and future city deals with this developer should take into account this very poor decision-making.

In all these matters, I hear so frequently from those who do not look deeply at our city patterns, “what’s the big deal? It’s just a (insert mistake here) building, deck, armory, unsupportable garage”….and yes, in each of these items, the collateral damage may be considered small by some (not by me). But taken together, it shows a deep and ingrained pattern of shirking of municipal responsibility to the citizens — for equal application of the law, and for true accountability to our citizens.

Paige

(7th in a series of posts on 306 S. New St.)

Remember 306 S. New?

A quick recap:

Check out Deja-vu: 306 S. New St. (1) and 306 S. New St: deciding under less than ideal circumstances (3)

Plans for developing a 7-story building at 3^rd and New began in 2013. The height was always an issue. In 2016 the Historical Conservation Commission (HCC) and City Council finally approved a 6-floor building at 306 S. New St. with a 12’ terrace on the north side top floor to achieve a tapering effect, softening the feeling of height. The exterior of the building was completed with the 12’ terrace. That stipulation never got to the tenant of the 6^th floor, who designed a restaurant in late 2017 or early 2018 that included modifying the completed exterior of the building for an extension of the interior dining area onto the terrace, the plans for which were then mistakenly approved by the city. It was not until late October 2018 when the expansion work was ½ done and the planned New Year’s Eve restaurant opening hovering on the horizon that the mistake was discovered. Construction was halted, and the area secured against the weather. On November 20, the HCC stood by its ruling 8-0, denying the permission to expand that was already then ½ done. On December 4, City Council overruled the HCC 5-2, the expansion work was completed, the restaurant had a soft opening December 20, and opened on schedule.

When Gadfly last posted on this gnarled case, he said:

Let’s do a thought experiment next.

What would it look like if the vote was reversed?

What if the Council sided with the HCC?

For the helluva it, let’s try to think that through.

So here goes. “Play” along.

• HCC votes 8-0 to deny the Certificate of Appropriateness for completion of the dining room expansion contrary to the original COA
• City Council votes (let’s say) 4-3 to sustain that denial

Where does the scenario go from here?

• The ½ completed expanded part (approx. 47’ x 12’) needs to be torn down and that area restored to its original condition
• Somebody needs to pay: either the city (who made the permitting mistake), or the builder (who should have known about the stipulation), or the restaurateur
• Nobody wants to pay
• Since the city made the operative mistake, let’s say the city has to pay
• Even if the city agrees to pay, the proposed opening of the restaurant would surely be postponed, causing the restaurateur (who may be an innocent victim of circumstance) to lose momentum and revenue
• The restaurateur will sue the city immediately as an innocent victim, arguing substantial loss of customer capacity from the original design (lost space) and irreparable harm from loss of timing — and therefore arguing to continue construction
• It is not likely that the suit could be settled in the restaurateur’s favor and in time enough not to destroy his business schedule, so he would eventually sue for substantial damages
• The decision would generate enormous negative reaction and bad press and even ridicule for the city
• Some people would feel that a victory for historical district guidelines and the important work of HCC commission members had been achieved and was worth the ensuing legal, financial, and reputational mess

Many people were more than unhappy at the 306 S. New St. resolution, especially after the wrestling bout with 2 W. Market that same night.

But in Gadfly’s thought experiment there really was no even remotely satisfactory option.

You might argue with the reasoning behind some of the affirmative votes to overrule the HCC, but Gadfly cannot see the issue practically concluding in any other way than denial of HCC.

Siding with HCC would have been a Pyrrhic victory.

Does anybody’s thought experiment generate a different scenario? One with a better outcome?

So what’s important for Gadfly is that steps are taken to insure that the city mistake doesn’t happen again. That’s why you can see Gadfly in public comment at the beginning of last week’s meeting (Jan. 2 Council video, min. 10:25) asking for a report from the city (not just verbal assurance) on the review of permit procedures and steps taken to obviate repetition of the error.

But there is still something bothering Gadfly about this whole set of circumstances. He can’t quite put his wing on it. But you might see him post about it again.

(6th in a series of posts on 306 S. New St.)

Audio of the 306 S. New St. portion of the December 4 City Council meeting:

Finding fault, assigning blame, as we discussed in the last post, is one thing – and emotionally satisfying — but there is still a practical decision that must be made.

Rather craftily, Gadfly thinks (is he wrong to see conscious strategy here?), the developer has made the restaurant the focus of attention not him. The developer describes himself as a “representative” of the restaurant whose job it is to ask Council to hear from the restaurateur who, “not skilled in building or development work,” is someone innocently caught in a perplexing bureaucratic gnarl. That seems a bit ingenuous to Gadfly. Gadfly cannot understand why the developer is not the central figure here. Surprising to Gadfly, it was the contractor who applied for the Certificate of Appropriateness for the dining room extension and appeared before the HCC on Nov. 19. What standing does the contractor – an employee — have? Why wasn’t the owner of the building the “applicant” for the COA? And even the restaurateur would seem a more logical applicant for the COA than the contractor. But that leads to the question – can a lessee/tenant make a (I assume) permanent structural change to the building he leases without the full 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 it seems to Gadfly that the developer has craftily hidden himself behind several layers of camouflage.

Anyway.

In front of you, there’s a restaurateur, who may be innocently caught in this situation,  who has a $2.5m investment in a business at 306 S. New. He’s close to opening, basically begging for mercy, claiming that an adverse decision will “ruin” him, will be “catastrophic” (this last term Prez Waldron’s, agreed to by the restaurateur).

The city admits the mistake in authorizing the permits.

Even the HCC chair said that because of the structural steel involved, going “backwards” would be very difficult.

Do you make him go backwards?

Do you follow the HCC rules or break them?

Like with 2 W. Market, the need to make this tough decision tells us a lot about how our elected officials think, how their minds work. Which is one of the goals of the Gadfly project. Let’s take them in order of their involvement in the dialogue. Always remember that Gadfly wants you to hear and see your elected officials when you can, so the numbers in parentheses refer to the pertinent minute in the above audio of the meeting. You can learn a lot about someone from tone of voice.

Prez Waldron (21:07): votes to approve the extension of the dining room to the edge of the building.

AW remembers well the original discussion of the parameters of the building, remembers the “point of contention,” remembers the position of the HCC as “very clear.” Since the restaurateur comes on scene well after the original HCC decision, AW agrees he has what the theologians call invincible ignorance, what the politicians call plausible deniability about that decision. But AW does not let the developer off that knowledge hook. The developer should have known about the HCC stipulation, AW indicates. Looking at the proposed extension itself, however, AW finds de minimis impact, pointing to an already existing bump-out on the northeast corner, a fin already adding additional height, and the unremarkable look of the addition from the main vantage point on the Fahy bridge. AW’s conclusion is to “respectfully reverse” the HCC decision.

CM Reynolds (7:07) (28:30) (40:35): votes to approve the extension of the dining room to the edge of the building.

JWR strikes Gadfly as a careful, process kind of guy. He questions the city rep and the HCC chair to make sure he is “clear” on the nature and sequence of events. He references another process and decision as context. He frames the options of a decision as either take down the work authorized by permit or approve since the applicant was not told to do what he got the permit for. He highlights the difficult situation, the “impossible position” Council is in because of lack of guidance from the city and the HCC. He sees “no other choice” but to approve the work done. JWR feels it’s hard to support the HCC, he even feels that HCC recognizes there is nothing else to be done outside of scuttling the project. He sounds a bit frustrated by and resigned to the position in which Council has been put.

CM Callahan 1 (11:54) (36:54) votes to approve the extension of the dining room to the edge of the building.

BC immediately judges the extension work itself. It is not protruding, it went through the city permit process, it was the city that made the mistake, it does not extend even ½ way along the 3^rd St. side, it will have sliding windows and thus open in good weather, nothing was improperly done – all in all there is minimal change. BC also, as is his wont, strokes the developer: “Thank you, Mr. Benner, for investing in our city.” It’s an unbelievable project, the view is spectacular, it will be a very successful restaurant. There’s been a “lot of compromise,” you have “bent over backwards.” $25m has been invested in a lot vacant and not tax productive for 10 years. The issue of the plants [there was a garden on the vacant lot] was the first attempt to stop the project. Why do we make it so difficult to get anything done here? (see below for another BC comment)

CM Colon (13:50) (26:40) votes to approve the extension of the dining room to the edge of the building.

 MC is typically on the quiet side of the Council audio spectrum, along with CM Martell (who did not speak during this discussion). But he asks a key question about responsibility on the part of both the city and of the applicant. He draws a long, substantial response from the city rep. The development community is generally well versed in city ordinances, but she does feel a “sense of responsibility” for the mistake that occurred here. His question about the patio on the 6^th floor seems important to his decision, since, with people visible there, it’s not a matter of not realizing that there is a 6^th floor.

CW Van Wirt (16:38) (30:58) votes to side with the HCC and deny the extension

PVW questions the city about whether an exterior modification is usually on an interior fit-out, and, if not, then she can’t assign the city full blame. PVW is anxious to focus on the responsibility the developer has in this instance. The city rep describes a “savvy development community” but still takes responsibility. PVW is “completely lost” about how this “huge mistake” happened between two good, strong, smart businessmen.  Negotiation should have been about squarely what was covered. Set-back was required with “great thought and intent.” Building owner has a role in overseeing how the restaurant would be outfitted. Hard to go against HCC.

CW Negron (33:09) (44:12) votes to side with the HCC and deny the extension

Frustrated. Disappointed. Against this building from the beginning – too tall, unhistorical. Feels there is still time for a conversation between the developer/restaurateur and the HCC, the conversation that normally happens after a denial but didn’t here. For instance, we could do what other Bethlehem places do – have tables and chairs outside, and heaters in the chill weather. So she offers an option that would work with HCC guidelines. Sees the similarity with 2 W. Market. “But this is Southside, who cares, right?” HCC has an obligation, a role, and this issue should go back to them. Don’t make the building uglier than it is. We have the HCC, we have rules, and we’re not supposed to break them. What’s the point of having an historic area? Average people must abide by the rules but not those who have big money in their pockets. This is so wrong. Ridiculous. (ON’s passionate statement was answered by AW pointing out that Council had today and had always supported the vast majority of recommendations of the HCC.)

CM Callahan 2 (46:06) response to CW Negron

CW Negron tapped what Gadfly has called in a previous post the Great Divide with CM Callahan over the Southside, and we quote him in full: “We are following the rules. They [HCC] are advisory. And 99.999% of the time we do follow their advice. Sometimes we don’t because maybe we have a different opinion. You obviously were against this project from the beginning, and the majority of Council was, and that’s the way Democracy works, and to state that we are not following the rules, and someone is trying to get by the rules or slide by the rules is false. And I wanted to leave it at that, but I do want to make a couple things. Number 1, I’m getting a little tired of, and I wish Mr. Antalics was here, you know, this idea that the Southside is this disgusting place to live is beyond me. I grew up here, I spent time on the Southside, way before you [CW Negron] moved here, ok, and you’re telling me right now that the Southside is worse now than it was 25-30 years ago, you don’t have a clue. The investment in that Southside, the Arts, the Charter Schools, the restaurants, it’s alive, it’s alive down there, and it’s in beautiful condition, a lot better condition – you don’t think it’s in better condition than it was 25 years ago? I had a property on Hayes St. If you talked to Alan Jennings, they did at least 10-12 properties all new on the outside. Hayes St. was not in good condition. But if you drive up Hayes St. now, it’s starting to get revitalized. So to keep on hammering, we’re ruining the Southside, it’s beyond me.”

********

So the decision went 5-2 to approve the extension in opposition to the HCC decision. Smart money was not surprised.

December 4. What a night. 3 hours on 2 W. Market. Another hour on 306 S. New. Nothing easy. There were some bleary eyes next morning.

But something here will not quite settle with Gadfly. So, while he seeks some further information on some things, let’s do a thought experiment next.

What would it look like if the vote was reversed? What if the Council sided with the HCC?

For the helluva it, let’s try to think that through.

(5th in a series of posts on 306 S. New St.)

Fault-finding.

The blame game.

Who’s at fault here? Who’s to blame?

The Zesters? or the City?

As Prez Waldron said, “Somewhere along the way, somebody dropped the ball.”

Who? the City?

• The city official threw herself on her sword. She appreciated suggestions by CW Van Wirt and CM Colon that there was shared blame. But she did not duck. She accepted accountability. The “mistake is on us.” She felt a “sense of responsibility.” It was a “highly unusual situation.” A half-dozen people missed it. The closest she came to an excuse was the quantity of work — 2500 or so such files to go through. Seems no doubt the city did mess up.
• The city official pledged to review the process with the goal of improving it. I think Council is owed a detailed report on her evaluation and changes that have been instituted to prevent such a thing from happening again. And a public report – public perception of city fairness was wounded here and needs to be repaired. We need to be assured that concrete steps have been taken to avoid this kind of thing happening again.

Who? the developer?

• At the very beginning of the meeting, the HCC chair, quoting minutes from the Nov. 19 HCC meeting, says that the approval of the 6^th floor was “predicated” on the set-back. Predicated. No weak word. Meaning the foundation, the basis. The developer will go on to make light of the HCC stipulation, when, in fact, it is the essence of the HCC decision.
• The developer makes it sound as if this is the first time he’s hearing of the HCC stipulation and that he must depend on the HCC chair’s explanation to understand it. He talks of reading the correspondence from HCC to whomever. As if he/his company were never directly notified of the HCC ruling and got a copy of it. And when he understands the stipulation through the HCC chair’s explanation, he doesn’t understand it. He questions HCC thinking. But could he not have been aware of this from the beginning? I was barely paying attention to city matters in 2015 and 2016, but even I knew the height of the building was a problem just from the newspaper coverage.
• There were 4-5 meetings with the HCC apparently prior to approval in which the compromises and negotiations for final approval were worked out. Was the developer there at those meetings? Who was at those meetings? I won’t know unless minutes can be obtained. But even if he wasn’t, he’s the boss, and it’s hard to believe he didn’t receive a detailed report of everything, especially since changes had to be made to gain approval. So it’s very, very hard to accept his feigning ignorance, and it is not his place at this moment to question that original judgment of the HCC.
• And the developer passes the buck to his leasing/management agent. Why weren’t all relevant details transmitted to his agent? Does Council have something like subpoena power? I’d like to have served one on the agent and heard his “sworn” story. Why wasn’t he at the meeting with Council to answer questions? But, in any event, the boss can’t pass the buck. If your “agent” made a mistake, you made a mistake.
• It’s also hard to believe that somewhere, sometime the restaurateur didn’t talk to the developer about what would be a highlight of his business – that dining area with a fabulous view. It may just be “the” special place in the room. It had to come up.
• So it seemed to me that the developer was playing Council. And I would like him to pay a price of some sort. To be held accountable. If only it is a kind of public reprimand that he should have known better, which, actually, Prez Waldron came close to giving him when answering his “we didn’t know” about the stipulation with HCC’s belief that he should have known. He should have known.

(3rd in a series of posts on 306 S. New St.)

So the process of building 306 S. New in the Southside Historical District, bumpy to begin with, ended in a wreck.

Check out Deja-vu: 306 S. New St. (1) again.

In short, the Historical Conservation Commission approved 306 S. New St with a 12’ terrace on the top floor (6^th) to achieve a tapering effect, softening the feeling of height. That message never seemed to get to the tenant of the 6^th floor, who designed a restaurant with a portion of the terrace covered, the plans for which were then mistakenly approved by the city. It was not until the work was about ½ done and the planned restaurant opening hovering on the near horizon that the mistake was discovered. The HCC stood by its ruling. And the imbroglio landed in City Council’s lap. What would you do? What should they do? What’s fair in a situation like this?

Let’s look at the timeline:

• April 2015: newspaper story says the developer submitted plans for a 7-story building. The submission would probably have been to the Historical Conservation Commission (HCC), but no details have been found yet. The developer has said that original plans were for the building to be even taller, with apartments on the top, but they decided that was not a good idea and scaled it back themselves. The HCC was concerned about height in this historical district.
• Dec. 21, 2015: a 6-story building was approved by the HCC. The HCC chair has said that the owner/developer met at least 4 times with HCC, but meetings do not appear elsewhere on any HCC agenda. I have requested the city to search records. The idea was a design that didn’t make the building look so tall. The architect “came back” with the design to recess the 6^th floor to diminish the sense of height of the building. The newspaper report clearly speaks of a “set back” and a “garden” on the 6^th floor: “The top floor of the building will have a mostly glass facade and will be set back from the other floors to allow for a rooftop garden. The garden will extend across the roof of a building bridge to the top floor of the new parking deck. The office building will actually connect to the parking deck on four levels. Commission members said the new plan submitted by developer Dennis Benner and his architect, Howard L. Kulp, was a significant improvement over an earlier plan they reviewed. The original plan called for a seven-story structure and included a residential component.” Height was a prominent, well known, well publicized issue. The newspaper cites an activist critic who “acknowledged that the new design was a ‘vast improvement’ over the original. He nonetheless complained that even one story shorter, the building will be ‘inappropriately tall’ for the neighborhood, with twice the number of stories and three times the height of the typical buildings around it.”
• Jan. 19, 2016: City Council approved the Certificate of Appropriateness. There is nothing of significance relating to this issue in the minutes, but Prez Waldron specifically remembers the height issue as an issue at that time. Again, height was no hidden concern among all concerned.
• 2016? 2017? into 2018: construction on the building begins and is completed per the HCC stipulation. The completed building looked like this. Except for the left-hand corner, the 6^th floor is set back 12 feet per the stipulation by HCC.

• Dec. 2017-Jan. 2018: the restaurant “Zest” enters into a lease agreement for a restaurant on the 6^th floor. The developer/owner is not involved in lease negotiations, and, in any event, seems not to be aware of the set-back stipulation. The negotiation is handled by the owner/developer’s leasing agent/marketing company. According to those involved, the HCC stipulation is not mentioned at all in this negotiation. It is not clear if the leasing agent/marketing company knew about the stipulation. The restaurateur claimed to have no knowledge of the set-back stipulation at that time. There was no design for the restaurant at the time the lease was signed.
• Early 2018, exact date uncertain: The restaurateur proceeds to engage his architect, tells him he wants a dining area on the terrace, the architect draws up the plans, the final design includes a dining area 45’ long on the east end of the terrace. Including the already constructed bump-out on the plan as shown in the picture above, the enclosed area would now be a little less than half of the terrace.
• Later 2018, date uncertain: the restaurateur submits plans to the city for an “interior fit-out” including the covered area on the terrace. The city runs it through a half-dozen hands in its normal interior fit-out routine, approves the plan, issues permits. Nobody in the city process notices exterior component. Nobody notices the violation of the HCC stipulation.
• Later still in 2018. date uncertain: construction begins to enclose that outside area. Construction proceeds till it is more than ½ done, when the HCC chair observes the violation. Since the area is open to weather, he asks that construction be stopped, the area weather-proofed, and an appeal be filed with HCC. This is the first time the restaurateur has heard of the setback stipulation. The owner/developer does not seem to have been aware either. They are caught by surprise at this late hour problem.
• Nov. 19, 2018: HCC hears the appeal and denies it 8-0 based on the original set-back stipulation. No minutes are yet available. Apparently, no negotiation occurs during or after the hearing. No remedy for the problem is offered.
• Dec. 4, 2018: City Council is presented with the case. The city accepts responsibility. The owner/developer/restaurateur deny responsibility. Time is short. A soft opening for the restaurant is planned for Dec. 20 and then a major opening at New Year’s. As one Councilman put it, there seemed but two options: scuttle the work done or approve it.

What would you do? What should Council do? This is truly, as the HCC chair and CM Reynolds agreed, deciding under “less than ideal circumstances.”

(1st in a series of posts on 306 S. New St.)

Ryan Kneller, “ZEST, Grille 3501’s upcoming sister restaurant, to feature spectacular views of Bethlehem.” Morning Call, September 24, 2018.

We think of December 7^th as the “day which will live in infamy.”

For some people in our town, it will be December 4^th.

On December 4, 2018, there was a 3hr. City Council meeting on the 2 W. Market St. controversy, which the Gadfly, as you know, has covered in the range of 70 posts.

When Council finally voted 4-3, virtually all of the packed house swept up what little was left of their shredded emotions and headed for watering holes or wailing walls, depending.

Little did they know Council was playing a double-header that night. There was a whole other game to be played.

The drama moved from 2 W. Market St. to 306 S. New St. – from West to Zest (the new restaurant atop the new building). But the drama tasted like deja-vu. Council was again tasked with making a decision on a deal that was done.

One of the key factors in the 2 W. decision was that the property was already beautifully renovated – it was there, you could see it. For many the legal issue paled because of that.

Now, though not quite as definitively, a similar circumstance obtained at Zest, the restaurant on the 6^th floor (top floor) of 306 S.

O, my. Lucky Council.

Take a look at these two photos (I believe the one on the left is a photo not an artistic rendition). Can you see the difference between the two on the 6^th floor facing you. (Bigger photos at bottom.)

Then                                                                              Now

As always in Gadflyville, let’s lay it all out first then come back and discuss. Gadfly doesn’t like to influence opinion in the first inning. Let’s all think about what’s going on here. Who’s in charge of neighborhoods? Who makes decisions? How are those decisions being made?

You can listen to this entire portion of the City Council meeting here. Since there is back and forth dialog, it is not easy to cut the file into meaningful chunks as Gadfly often does.

Gadfly always suggests that you go to the source. So please listen if you can. Start to recognize the voices of your elected officials as well as the way they think. But here is a summary of the discussion. See if Gadfly got it right. Anything left out or misrepresented?

• The controversy over 306 S. New goes way back before Gadfly got his wings, just like 2 W. Market did; in like manner, a heated history over the building precedes this episode that Gadfly is not privy to and not involved in.
• The property is in the Southside Historical district and therefore had to first secure approvals from the advisory, all-volunteer citizen Historic Conservation Commission (HCC), and such approvals were ratified by City Council.
• Among many other things, of course, the HCC is concerned with the height of new construction in this district and approved a 6-story building with the 6^th floor set back 12ft proposed by the architect in order to soften the appearance of height.
• That’s the “then” picture you see above; the 12ft setback is a patio; there is a covered area on the left (New St.) side.
• The total closed area in the “now” picture not set back 12ft is, I would say, approximately 50% of the 3^rd St. length of the building; the “new” at-issue area has sliding windows and will be open in good weather.
• The Zesters submitted plans for an “interior fit-out,” which was reviewed per normal by the City, permits were issued, construction began.
• At some point while construction was under way (dates not certain), it was noted by the HCC chair that the HCC guidelines for the 12ft setback were not being followed, and after consultation with the contractors, the chair asked for work to halt but that steps be taken to protect the area from the weather.
• The issue went back to HCC which voted 8-0 to deny the Certificate of Approval because of this violation of the original terms and without discussion of a remedy or some option or solution to provide a path forward.
• That brought the issue to Council December 4 after the lengthy discussion on 2 W. that we all weathered.
• The city admitted dropping the ball: the interior fit-out review went through several hands without noting the impact on the exterior, the city – though admitting when pressed that the development community is “savvy” about procedural matters and shouldn’t be let off the hook entirely – feels responsible for permits issued inadvertently, and the city will review its internal process for the future, giving assurance that they will be evaluating the process, they do thousands of permits a year.
• The owner pleaded not guilty, did not seem aware of the HCC decision (not clear), said the restaurant owner was not pulling a fast one, he has spent $2.5m, said the change could only be seen from the bridge (I guess saying he didn’t understand the HCC rationale), had followed proper procedure, the leasing agent did the negotiating not him, the architect drew up the plan.
• The restaurant owner pleaded ignorance too: wife a long-time resident, he’s “this close” to opening, will be “ruined” if it doesn’t happen ($2.5m spent), is a finalist for an “Opening Night” tv show that will be good for everybody, had no bad intentions, was not doing anything sneakily.
• What’s Council to do? Have the work already done taken down? Or approve the work, reversing the HCC, now that the work is (almost) done?
• General consternation: “less than ideal circumstances” in which to decide, hard going back, no roadmap for going forward.
• CM Callahan: not extruding, minimal change, developer went through process, mistake on city part, work already done, didn’t do anything improper, give thanks to owner for investing in city and spending $25m, lot empty for 10 years, only city income minimal taxes, unbelievable project, congratulate you, unbelievable how difficult we make it, there were so many meetings, owner was kind enough to move the plants that were there, there was a lot of compromise, has bent over backwards, the city will have internal discussions about the oversight, Council follows HCC 99% of the time, false to say that we are sliding past rules, “getting a little tired” of negative talk about Southside, Southside worse now than 25 yrs ago?, you have “no clue,” Southside is “alive” (arts, charter schools, restaurants), Hayes St. revitalized, negative stuff “beyond me.”
• CM Colon: asked about responsibility, City?, was there something the applicant should have known?, people will be standing out there on the patio.
• CW Van Wirt: ticked, has a “problem with the problem,” if the developer should have been aware, then the City is not totally to blame, should have been discussion between owner and restaurant guy on HCC guidelines, no conversation about what was allowed — hard to believe, the set back was intentional by HCC, tough to go against them.
• CM Waldron: can’t see it from front of building, only from across the street, restaurant guy not responsible for knowing about HCC, building bumps out anyway (that section on the left in parallel with bump-out on other floors), problem results from miscommunication, lot to ask to tear it down, not easy to cut out the section at issue, change is de minimis, normal thing is to approve HCC, this is unusual case and Council must act responsibly.
• CM Reynolds: HCC denial without further conversation an option makes this an impossible decision, nothing to do outside of scuttling the project, City needs to provide more help for the decision, no other decision to make but approve, not given alternatives.
• CW Negron: against building from the beginning, now this, will it never end, very disappointed, but there is still an opportunity for conversation, just like 2 W. Market, who cares about Southside, why have the rules, HCC has an important role, this is so wrong.
• Again: What’s Council to do? Have the work already done taken down? Or approve the work, reversing the HCC, now that the work is (almost) done?

This is the point where you pause, reflect, and give your answer!!!!!!!!! What would you do?

• Vote 5-2 to “respectfully reverse” (CM Waldron) the HCC and to approve the Certificate of Approval (Van Wirt and Negron in the negative).

A perfect storm. Everybody throws up their hands. And throws the issue into Council’s lap. December 4 would have been a good day to call in sick.

We still need to have final discussion on 2 W. Market, but 306 S. New is so similar in content and in its demonstration of Council decision-making that I’d thought we’d lump them together.

Is 306 S. another category 5 or just a tempest in a teapot?