Zest is on Gadfly’s plate again (10)

(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 6th floor to diminish the sense of height. City Council approved HCC approval. Later, Zest, the 6th 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.

The larger issue: building trustworthy relationships (9)

(9th in a series of posts on 306 S. New St.)

Dana Grubb is a lifelong resident of the City of Bethlehem who worked 27 years for the City of Bethlehem in the department of community and economic development, as sealer of weights and measures, housing rehabilitation finance specialist, grants administrator, acting director of community and economic development, and deputy director of community development.


I agree with Councilwoman Van Wirt’s assessment. While the immediacy of this matter was dealt with on December 18, improperly in my opinion, there is a much larger issue which we can call the “oops effect” and how future trustworthy relationships between residents, City Hall, and developers can expect to be built.

There are some elected officials in Bethlehem who regularly scoff at city ordinances, nearly always falling on the side of development with their words and actions. Often there is potential middle ground, but that point is ignored.

This isn’t a “CAVE” issue, it’s one of legality, fairness, and compliance so that development takes place that is compatible. Over decades I’ve watched as Monday morning quarterbacking has taken place over development projects in Bethlehem, where many have questioned what the thinking was or is.

The Southside CVS was built set back from the street as was the small strip mall in the 100 block of East 3rd Street. An oversized Rooney Building was plopped into the S. New Street neighborhood. An historic Broughal MS was demolished in favor of a modern over-sized school that doesn’t even have a regulation-size athletic field. The Armory on Prospect Avenue received an inordinate amount of variances with little respect shown to nearby residents. These are just a few examples of incompatible development, often where residents have questioned variances, scale, location, traffic and density. And in each case most public officials just rolled over.

We have zoning laws, historic district ordinances, and city planners in place to guide this process and define the end result, yet the laws and ordinances are ignored and circumvented, and city planners plan politically.

“Equal accountability under the law and true accountability” to residents is sadly lacking in this community.


The developer, not city, should have paid (8)

(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.


306 S. New St: just for the helluva it (7)

(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 3rd 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 6th 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.

306 S. New St: the decision (6)

(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.


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 heAWaldron 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 eitherJWReynolds 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 3rd St. side, it will have sliding windows and thus open in good weather, BCallahannothing 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, MColonsubstantial 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 6th floor seems important to his decision, since, with people visible there, it’s not a matter of not realizing that there is a 6th 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 “savvyVan Wirt 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, ONegron-Dipiniwe 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 BCallahan 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.

306 S. New St: fault-finding (5)

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


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 6th 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.

Council sends a bad message (4)

(4th in a series of posts on 306 S. New St.)

Dana Grubb is a lifelong resident of the City of Bethlehem who worked 27 years for the City of Bethlehem in the department of community and economic development, as sealer of weights and measures, housing rehabilitation finance specialist, grants administrator, acting director of community and economic development, and deputy director of community development.

Gadfly: I attended the November 2019 HCC meeting. Neither the owner of the building or restaurant owner attended. It was the contractor who was sent, who knew nothing about anything, other than that the work had started. Nobody representing the City attended either to speak to the City’s error in issuing a building permit. At least two HCC members commented to me prior to the meeting that they were not pleased at all with work advancing prior to HCC review.

Needless to say, members of the HCC were not happy about this at all, given the Certificate of Appropriateness conditions issued for the structure to be built, which included the terrace setback to minimize the impact of the approved 6 story height. In fact one member called for a “stop work” order to be issued by the City immediately, although that was not part of the motion to deny.

In my opinion, the building owner and possibly the restaurant owner had to know about the earlier conditions placed in the COA. The City certainly had to know as well. Oops, is not an acceptable response.

Council’s action made a travesty of the South Bethlehem Conservation District Ordinance, violated said ordinance, and undermined the citizen-filled Historic Conservation Commission, especially given the terrace setback condition of the original COA that had been worked out between the HCC and developer and that had been approved by City Council.

Even worse is the message that was sent, that of if you ignore City ordinances and processes to gain approval for a project, a majority of City Council has your back. That speaks to an aura of corruption at work when it comes to development projects in Bethlehem.

Historic District Ordinances in Bethlehem need to be applied equally to a homeowner, a small business, and a large developer, but they aren’t. If that isn’t corrupt, nothing is!