CW Van Wirt on “the 2” (59)

(59th in a series of posts on 2 W. Market St.)

CW Van Wirt Dec 4, 2018 “No”

PVW shoots multiple reasons in rapid-fire for support of her opposition to the text amendment. She agrees with CM Colon that this is, in her words, an “end run” around the traditional legal process. There is no way really to know what will happen, but precedent is important. The Hill-to-Hill bridge digital sign decision is a good example. It was done for understandable reasons, and now we have a suit over a consequence we don’t want. “Precedent can be profound.” We don’t know how this amendment will affect the city; it has not been studied. We should be using the Comprehensive Plan to guide decisions. This corner will become more commercial not less. “Pressure to changing residential to commercial in the historic district is relentless.” This is a perfect example of that pressure, pressure that is felt particularly on the border, like here. “Borders of the zoning areas are the fragile places. That has to be the red line.” Continued commercial creep will change the character of the downtown. Cachet of historical district understandably draws businesses. Risks in giving in far outweigh benefits. Regrettably, the “Yes” votes on the Planning Commission were not explained. The Rij’s are nice people, good citizens. But “We’re not in the business of judging on the merit to a change in our city zoning code based on someone’s aesthetics, their wealth, their access to connected lawyers. We are in the business of judging the laws we passed are in the best interest of all the city and all of the citizens of the city. Someone’s personal characteristics and aesthetics and impact on that corner and all of that is honestly secondary to what are we doing for the whole of the city and how does this move past the litmus test ‘is this in the best interest of the city and its citizens’.” PVW fully understands why the petition is good for the Rij’s, but it doesn’t pass the litmus test of being good for the city. And that is the role of City Council as the representative body.

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Once more, let’s go into our test mode. Let’s enumerate PVW’s packed points supporting her “no” vote and push on them with our Skeptic hats on:

1) an “end run” around the legal system: Commonwealth court denied the petitioners, albeit the case was presented in a different way. How would one argue against the fact that the basic case was denied at the highest level? One way is the “Local knows better” attitude that we also considered in the MC discussion. It’s clearer at this very moment now more than ever (suspense! more on this later) that if this petition is approved, it will be litigated again, no doubt again to the Commonwealth court. It seems a stretch to think that the “local is better” argument would hold at state court. The second way is to recognize that this petition is a citizen-initiated change of law. In that case, the burden would seem to be very, very, very heavy to show that the proposed change is not self-serving but is a recognizable good for the city at large. Importantly, not that the house is a good for the city, but that the text amendment itself is a good for the city in its widest application (or, conversely, perhaps is of absolutely no consequence to the rest of the city). Atty Preston has provided evidence of minimal impact. Is that enough?

2) “precedent is important in the city”: That’s a truism. And the Hill-to-Hill example is current. Can one argue that precedent is not important? No, not likely. Can one argue that H-to-H didn’t set an unforeseen precedent? No, not likely. Can one argue that this text amendment will not set a precedent? Well, maybe. It looks like this is the point where the petitioners would have to focus. Enter Atty Preston’s evidence again.

3) “not advocated for by the Comprehensive Plan”: PVW says the Comprehensive Plan is the guide for zoning decisions. Logical. Petitioners would have to continue to ignore the Comprehensive Plan, keep it out of sight, as they have done so far or argue that it is non-binding in toto or need not be thought of as absolute in particulars.

4) “the entire corner will become more commercial not less”: the example of the cata-corner bed & breakfast is tricky and hard to get by, for the co-owners, perhaps the most vigorous supporters of the petition, have (so far unsuccessfully) sought permission to have an office there. It’s hard to think they do not have a selfish interest, especially since they volunteered joyfully that their property value went up significantly because of 2 W. Market renovations.

5) “borders of the residential zoning areas are the fragile places”: if something bad is happening or something bad is coming your way, it is natural to think that you take a stand at, that you defend yourself at the border. One might argue the notion of a soft border or an open border (Ha! are you thinking what I’m thinking?), in other words, a border that is not really a border. Somehow that doesn’t sound like a successful route. Or maybe one could create the concept of transition zones. Or – and I heard this in someone’s testimony – advance the notion that borders are “sensitive” spaces.

6) “continued commercial creep will come in and completely change the character of our downtown”: money-making is aggressive by nature. If borders were soft or open or transitional, one would have to argue that there is some other very powerful dynamic in play that will ultimately control or constrain that appetite. One would have to identify a powerful counter-force. What would that be?

7) “no justification whatsoever”: The Commissioners who voted yes at the Planning meeting did not justify their votes. Feels inexcusable after several hours of testimony. Feels like an insult to the resident participants on both sides. One would have to argue that their silence doesn’t mean anything since their only job was to pro forma pass the petition on to Council. The Planning Commissioner who most thoroughly explained his vote based it on the Comprehensive Plan (see #3 above)

8) “is this in the best interest of the city and its citizens?”: PVW subordinates the person of Mr. Rij (see BC’s position, post 49) in the judgment process: “We’re not in the business of judging on the merit to a change in our city zoning code based on someone’s aesthetics, their wealth, their access to connected lawyers. We are in the business of judging the laws we passed are in the best interest of all the city and all of the citizens of the city. Someone’s personal characteristics and aesthetics and impact on that corner and all of that is honestly secondary to what are we doing for the whole of the city.” See BC (post 49) for the answer to PWV.

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Gadfly likes that we have “the tapes” to play over and over again.

Though he might be the only one doing that!

Gadfly likes that we can hear the voices not just read the texts or, worse yet, the excerpts in newspaper stories.

We are in a great position to participate in this important case, virtual participation to be sure, but participation it is.

And the invitation is open, of course, to attend next Tuesday’s Council meeting. Nothing like it.

Onward to JWR–

CM Martell on “the 2” (56)

(56th in a series of posts about 2 W. Market St.)

CM Martell Dec 4, 2018 “Yes”

The main issue for SM is protecting the neighborhoods – preserving the history of the downtowns and keeping the charm of the neighborhoods that everybody loves. The benefit in this particular case is that you know what you are getting. The house at 2 W. Market is done. It can be looked at. Remarkably, both sides on this issue – those for and those against the petition – agree on the positive impact that the “investment” there “is already having.” Even those arguing against the petition did not find “current detriments to the neighborhood.” There was concern about possible “externalities,” but that’s arguing in a counter-factual, domino theory, “what if” mode, and, “frankly, if you argue that way, you can argue against anything.” We’re looking at a specific issue right in front of us, seeing what it was and what it is now, and “we know that it is a positive, we know the neighborhood on net feels it’s a positive.” SM hears the opposition concerns about the house but feels that the “rather tight” text amendment has enough measures in it to mitigate their concerns about what would be allowed. And if there are any issues elsewhere in the city, the safeguard is that those issues would have to go before the Zoning Hearing Board.

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SM bases his position on the present state of the house. It is a position with strong appeal. From the beginning Atty Preston has said, just go up the street, there it is, you can see what we’re talking about here, you’re not buying a pig in a poke (ha! my words not his!). Were you worried about what the house would look like? Well, now we know. It’s almost as if we can see the house from where we are sitting in Town Hall. And it’s beautiful. Everybody who goes by says so. People from out of town can’t understand the fuss. Who would not want that house in their neighborhood?

Mr. Fitzpatrick, Zoning Hearing Board chair, said it well at the Dec 4 meeting. When the ZHB approves a petition, there is a “leap of faith” that conditions – and the ZHB most often attaches conditions – attached to their approval will be respected. Again, go up the street, look for yourself – no question but that the ZHB conditions were respected. They did what we asked them to do. We got what we wanted to get. This does not always happen.

Powerful argument. Testimony of your own eyes. No complex legal issue. No fancy shyster lawyer double-talk. Anybody can understand it.

SM is on good, clear, familiar ground for anybody who has listened to testimony, and, likewise cognizant of lingering legitimate opposing concerns, he sees reasonable safeguards in the future legal processes.

But, as we do here in each of these analyses, let’s push a bit on this position to see what we will see.

1) It might be said, for instance, that SM does not see the real issue here. For the opposers, the real issue is not the “look” of the house but law. For the opposers, the real issue is not the house but neighborhood community. For the opposers, the real issue is not the house but their say in the control (hmmm, not a good word, but best I can do for now) of their neighborhood. This is precisely why the opposers can be so positive about the look of the house, on which SM bases a major part of his position. The opposers can be so positive about the look of the house because it is NOT the issue. Opposition is not about the look of the house. That is not the issue for them. It might be said, then, that SM does not take a deep dive. It might be said that he does not understand the core of the controversy. It might be said he goes for the easy answer.

2) Did the petitioner take a risk performing construction when they did? Testimony on this is not as clear in some details as one would like. But, as proof that they acted honorably, petitioner testimony is clear that they waited for the favorable (to them) ruling at the County court level to begin construction “very late 2016” for occupancy “June of 2017”:

We were overjoyed, excited, and relieved. We awaited the legal approval from the Court of Northampton County on the Zoning Board’s decision. Once that legal approval was rendered, we then began restoration work on the house in very late 2016. We moved in on June of 2017, over three years after we had become the stewards of the parcel containing 2 W. Market. (Kori Nov. 20)

Now, could the petitioner reasonably expect that a case argued vigorously for three years by that time would be dropped by the opposition in mid-2016? Is it reasonable for the petitioner to expect that there would not be an appeal to a higher court and thus it was ok to begin construction? In any event, it should have been obvious that the appeal window was open and that there was always a possibility that the opposers would follow that route. And might win. In any event, again, the petitioners have presented Council with a fait d’accompli, presenting Council with an excruciatingly difficult situation, and, if one were cynical, this might be thought of as crafty strategy on the part of the petitioners.

(Note: the same situation presented itself to Council later in the Dec 4 meeting. The roof-top restaurant at the new 3rd and New building completed an expensive piece of construction in violation of “law.” What did Council do? What could Council do? Go along. Gadfly will take this up later.)

3) SM focuses strictly on the house. Not on what he calls the “externalities.” He dismisses the much-discussed negative effects of a positive ruling here as counter-factual, domino theory, “what if” thinking that will enable you to argue against anything. Do we understand what he is saying here, and is it true? It might be said that more explanation is needed here. It is not clear what “fact” is not true. It is not clear what “fact” is “counter-factual.” The point of reference to the domino theory seems to be the kind of analogical thinking that we saw in CW Negron’s position. But domino theory is quite different than analogical thinking. In analogical thinking there are two parallel tracks. One has actually happened, and the second is posited to be true because of its parallel to the first. Domino theory (Cold War stuff) is one track and is hypothesis not fact. If one thing happens, then a second will, and so forth down the line. It is easier to discount Domino theory, as it certainly was by politicians in its day. But Domino theory and analogical thinking are quite different, and the truth is, as we said in the CW Negron post, that “Analogical reasoning is one of the most common methods by which human beings attempt to understand the world and make decisions.” Domino theory is easier to dismiss than good analogical argument.

4) It might be said it is totally wrong to say that the opposers do not see any “detriments” in the current situation. And wrong to say that the neighborhood feels that there is a “net positive.” Such bold language might apply if the look of the house were the only issue or if it were the root issue. But it isn’t. The core issue is not the look of the house. Again, it might be said that SM does not dive deeply into the controversy.

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Whew! Gadfly says he wants intelligent, thoughtful followers capable of objectively handling several layers of complex issues. Followers interested in and appreciating discourse several levels above Facebook and those kinds of social media.

But even he wonders if he isn’t over-taxing you!

Are you out there! (Any of you remember when Johnny Carson would tap the microphone?)

Anyway, onward to CW Van Wirt–

CM Callahan on “the 2” (49)

(49th in a series of posts about 2 W. Market St.)

CM Callahan Dec 4, 2018 “Yes”

BC’s approval of the text amendment has three legs. The first is the deeply rooted and still existent commercial presence in the neighborhood. In fact, it’s impossible to define a residential neighborhood on that block. Not only is 2 W. Market a mixed-use property, but the neighborhood is mixed use as well. The street – “Market” St. – has always historically had businesses operating there. The commercial use of that specific lot predates incorporation of the city, predates the zoning plan, and should govern in this decision. BC’s second basis for approving the text amendment is the character of Mr. Rij — whom he mentions by name and wishes success — and of business people like him, that is, investors in the city. Mr. Rij has done “as much as he could to be a neighbor.” He’s a “good citizen.” He’s bent over backwards to do the right thing, even to the point of remodeling a piece over the front door to restore the original design. BC worries that we are pushing away investors like Mr. Rij. In fact, he knows business people who have gone elsewhere. Mr. Rij could have gone too and had nicer office space, say in Allentown, at less cost. But he chose to stay. We can’t keep pushing away businesses. The third factor in BC’s affirmative decision is the sense of community he experienced in the neighborhood. BC lived on Market St. for four years apparently in the 90s, met his wife there, had a child there, leaving when the child was two. His favorite times and memories are of neighborly gatherings during snows/blizzards, of going down to 7-11, down to Ripper’s, of bonding with Jimmy Broughal. BC “knows the neighborhood well. . . . It’s a great neighborhood and hasn’t changed.” Is the text amendment good for the city? It “absolutely is.”

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Let’s think about and ask questions of each of the parts of BC’s position in turn

1) Rejecting the residential

The striking thing about BC’s first point is his total disregard for the zoning ordinance! Right off the top, it’s out the window. Replaced by his own vision of the 2 W. Market neighborhood. Wild!

Trust me – look at BC’s identification of the “main question”:

I think what it comes down to is, the main question is this, where does the residential neighborhood begin and where does it end? And the bottom line is it doesn’t. It doesn’t. There’s nobody that can tell me where the residential community in that neighborhood on that block begins and ends.

The zoning code says 2 W. Market is in an area zoned residential. BC says, in effect, there is no residential area there. And nobody can tell me any different!

BC makes a powerful assertion of his superiority, his primacy to the zoning code in this first leg of his thinking. Zoning authority resides “in his eyes” not in the researched, studied, debated, discussed, voted upon, published, and litigated city ordinances.

So, for BC, if there is no residential area there, then there is no issue with 2 W. Market being a business.

Problem solved.

BC does not only disregard the specific city zoning ordinance, but he has a – shall we say – somewhat unconventional comprehension of the nature and function of a zoning ordinance in general. He sees the 2 W. Market neighborhood as it was and as it is – mixed use – while one of the functions of a zoning ordinance is to foster the gradual movement of a neighborhood to where we want it to be.

Normally, one thinks of zoning areas not simply as static definitions of what they are now but aspirations for what we want them to be. In probably more cases than not, zoning maps come after existing neighborhoods are formed, even after they are well and long formed, and are not necessarily simply a mirror of the current “is.” Zoning maps are a projection of can be, want to be, will be. BC apparently does not see them that way.

Wow! What are we to make of this iconoclastic train of argument?

Is such an extra-legal, independent attitude exciting, freeing, liberating, refreshing – enabling us to do, without compunction, what we consider a good thing when we feel/know we have good reason to do so?

Or is it that that way madness lies?

Is it ok for a Councilperson to be a zoning-denier? What happens if zoning classifications are subordinate to the personal views of one or another or a combination of Council persons who change on a regular basis? What is the consequence of subjective disregard for lawful, established zoning areas? Should you base legal decisions on your heart or your head?

2) Mr. Rij is a good guy

Over the course of the three meetings we’ve had on 2 W. Market, a line of worshipful witnesses longer than autograph seekers at a Carson Wentz book signing filled Town Hall with praise for Quadrant Wealth. In his vote-supporting statement, BC put himself unabashedly at the head of that line. BC canonizes Mr. Rij, patriarch of Quadrant Wealth and symbolic representative of a class of investors Bethlehem needs but, BC fears, is losing. Yes, BC canonizes Mr. Rij. We must please him, hold on to him, and others like him. Not that he doesn’t deserve our gratitude and admiration, of course. He is truly a good guy.

But should the “good guy” rule trump all other considerations? How far does the “what’s good for business is good for the city” principle go? Should the era of good feeling Mr. Rij generates be determinative in a legal proceeding? Is it ok to single him out for special treatment? Are not the people on the “other side” good guys too? They have as well done the right thing, renovated their houses, spent big money, adhered to historical design, paid their taxes, and so forth. How do you choose the good guys? Might it be an insult to the “other side” to so visibly focus a wish for success (business success) on Mr. Rij instead of, say, Mr. Haines or Mr. Diamond? Might it look like blatant favoritism – that you are in cahoots with the business class? (The reference to buddying with the co-owner of Atty Preston’s firm is likewise somewhat awkward.) What should govern in a decision like this – the individual personalities or the rules/laws? Isn’t law blind? Should law be the paramount consideration? Aren’t residential neighborhoods good for the city?  Are “we are really pushing away people who want to invest in the city”? Are there no fine locations in Bethlehem business districts for investors like Mr. Rij? Would there be no suitable option for him but a move to Allentown or Easton?

This can of worms that voting on likability opens is such a tricky issue that I am going to republish Breena Holland’s provocative past post (#29) precisely on this subject.

3) It’s a great neighborhood

BC does a curious thing in this third leg, though one totally consistent with the attitude we see in his take on the zoning ordinance. He sets himself up as an authority on the quality of present life in a neighborhood in which he hasn’t lived for almost a generation. BC “knows the neighborhood well,” he says, “It’s a great neighborhood and hasn’t changed.” One wonders how people on both sides of this issue feel about BC as spokesman for, as definer of their neighborhood.

For this controversy started back around 2013. Side v. side has been literally pitted against each other over microphones and maybe over front porches and back fences for as long a time as it took my oldest granddaughter to graduate high school, finish college, get a job, and max out her credit cards. There will be four marathon meetings just in this month. There were two or three court cases – who can keep track? There have been veiled threats of continuation of one kind or another on both sides regarding the outcome of this decision. It feels like a war in the Middle-East or something like that. One testifier cogently said, “nobody’s going to quit until they feel a victory.” Which might not be until the other side is dead. Sigh.

So BC remembers kumbaya moments in the past on Market St., and not once but twice he hopes for such moments to happen again after the decision in the current instance. But these feel-good sentiments are tricky without providing some mechanism for their achievement. Has BC offered an olive branch to those opposing the petition? Has he recognized them in his commentary? Is there a basis for peace if the petitioners win? Without a bridge of some kind such kumbaya sentiments, well intentioned as they are, run the risk of sounding empty or shallow.

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This is our third deep dive into the votes and position statements of Council members, something you probably have not seen done before, but certainly a good way to know your Council members in a way completely differently than before.

Gadfly has the story of this Dec 4 meeting in today’s Bethlehem Press in front of him right now, comparing the coverage with what we are doing. Big difference.

So, you know the drill!

On to CM Martell–

EAC and CAP (4)

(4th in a series about Bethlehem’s Climate Action Plan)

Note: see “our” Kathy Fox (“We can work for an improved environment.” Morning Call, December 9, 2018), a member of Bethlehem’s Environmental Advisory Council (EAC), reporting on the recent CAP progress meeting as well as also calling attention, as we noted Martha Christine did in our last post, to The Energy Innovation and Carbon Dividend Act (H.R. 7173) , which will “drive down America’s carbon pollution and bring climate change under control, while unleashing American technology innovation and ingenuity.”

“There is no reason why good cannot triumph as often as evil.
The triumph of anything is a matter of organization.”
(Kurt Vonnegut)

If we are going to have a Bethlehem Climate Action Plan, we are going to need some (a lot of) organized activity.

Gadfly is just happily reviewing a slice of the past history of the planning for a CAP plan to give a sense of motion and progress – and a sense of faith that good might triumph over evil.

In the last post, Gadfly brought us up to the formation of a CAP working group, which, as CM Reynolds outlined in his mission statement included in that same post, would include “representatives of the Administration, City Council, the Environmental Advisory Council, and members of the community.”

So, linked here you will find “City of Bethlehem – Climate Action Plan,” an April information document from the Bethlehem Environmental Advisory Council (EAC), chaired by Lynn Rothman, a wonderful group that Gadfly has been “auditing” (which means he doesn’t have to take the exam) for several months.

The EAC looks like it will be the key partner for CM Reynolds, and, for the record, the EAC “consists of Bethlehem citizens appointed by City Council to provide recommendations to City Council and the Administration on environmental issues relating to the City.”

The EAC web page will fill you in on members and their activities and includes a copy of the Green Bethlehem Initiative Survey done as part of CAP planning.

A key part of the EAC’s information document is a timeline showing proposed activities for 2018-2019.

There’s nothing like a timeline to keep you organized, to keep you honest.

The EAC meets the first Thursday of every month, 7PM, at Illick’s Mill. Visitors welcome. I just dropped in one night and have never left.

Coming up to the present. Info on the Dec 4 meeting coming next–

It’s Wednesday, December 12, do you know where your local Climate Action Plan is?

The Penultimate Budget Meeting (3)

(3rd in a series of posts on the Budget)

Here’s the proposed 2019 budget

Nicole Radzievich, “What Bethlehem taxpayers can expect from next year’s budget?” Morning Call, December 10, 2018.

Council President Waldron quipped about the full house at Town Hall on the 2 W. Market meetings compared to the 1 spectator at a $78m budget hearing.

So it goes. (Who recognizes that Kurt Vonnegut is still on Gadfly’s mind?)

There were five scheduled meetings of the Administration and City Council to discuss the 2019 budget.  One was snowed out. The last meeting was last night, and the sequence is well reported on in the above article by Nicole. Penultimate tinkering was done last night. The final, official budget will be voted on next Council meeting December 18. Some changes could occur before the vote. Here are some bullet points Gadfly plucked from Nicole’s article

  • $78m budget
  • 3.8% increase
  • + $34 for the average homeowner
  • a non-emergency call center will replace 911 service taken over by the county
  • city work force is down but pension payments rising
  • more road work will be done than in previous years
  • makeover at Memorial Pool
  • improvements to the Rose Garden
  • possible contribution to a feasibility study for a pedestrian bridge
  • uncertain amount but a one-time large tax income from Casino sale on the horizon
  • new fiscal plans for the Golf Course

Ho, hum, some people would say. But Gadfly found his very first experience with budget hearings very interesting. Here are a couple quick notes:

  • the interchanges were not only civil, but light and even humorous
  • no hassles like we hear about, for instance, in Allentown
  • it was good to hear and “recognize” department heads, people before mainly faceless
  • you can learn a lot when ideas are or have to be linked with money
  • neat seeing resident-based requests got into the budget

Gadfly’s antennae (he thinks he has more than one) were especially attuned to this last point. CM Reynolds introduced a request for Rose Garden money. CM Callahan pushed to increase it and to add funds for a pedestrian bridge feasibility study (funds for that seem to be imminently possible from the county and another granting agency as well). Rose Garden money was proposed out of the city budget, and additional money for the Rose Garden plus money for the bridge study were put on the list for consideration when that Casino tax income is definite. All of Council, as far as Gadfly could tell, were supportive of both the Rose Garden improvements and moving forward on study of the pedestrian bridge.

But what do the budget hearings look like? How does the process work?

Gadfly videographer Owen Gallagher took some video. We don’t have video editing software, so the following three clips are not focused on key moments or highlights but simply present the routine linear process (which had many twists and turns) monitored by President Waldron on the Rose Garden insertion into the budget. You can see CM Reynolds introduce the idea, then CM Callahan move to augment the idea. During the process you can see the mayor, especially Public Works head Mike Alkhal, and other Council members interact.

It would take NFL films to make this visually “exciting,” but exciting things are happening nonetheless.

Proponents of the Rose Garden should get a thrill. Looks like $$$$ flowing your way.

Pedestrian bridge is also on the radar.

Here’s your local government operating in perhaps the most important thing they do.

Budget Hearing 12=4=-18 Rose Garden 1
Budget Hearing 12=4=-18 Rose Garden 2
Budget Hearing 12=4=-18 Rose Garden 3

As Gadfly wrote in post #1, there is a feeling among Council that the City is doing a good budget job (A+ credit rating), and that was reflected in final comments last night. Shown here is CM Reynolds’s offering of appreciation to the City, which were followed by equally gracious remarks by President Waldron that unfortunately we didn’t film.

CM Colon on “the 2” (48)

(48th in a series of posts about 2 W. Market St.)

CM Colon Dec 4, 2018  “No”

This is MC’s “hardest vote” so far on Council, for he sees “both sides” equally. He’s diligently done his homework: he’s reviewed files and newspapers; he’s walked the neighborhood, taking its “temperature,” seeking the backstory; he’s met with Mr. Rij, toured the property; he’s consulted with realtors. He’s taken notes, he’s reviewed them, he’s kept an open mind. And, sounding the note of a bit of frustration, where has all this collecting of data and information gotten him? Nowhere but to a point of virtual paralysis: “almost like 50-50,” he says!!! MC recognizes the remarkable people and their remarkable house. But the “hump” he can’t get over is the past judicial history of denial of the case. MC looks to the fixed, standard, traditional judicial systems to rule on such complex issues. You can see that in his initial conclusion that this was a case for the Zoning Board to decide. You can see that in the implication that the denial by the highest court in the state lifts his toe over the fence from 50-50 to feeling 51-49 for denial. “[2 W. Market] went through the more traditional motions for this relief, and that’s the hump that I can’t get over now,” MC says, “I’ll be voting against this today based on the history of denials for relief through the other mechanisms that this process usually goes through.” MC’s hard, close decision — clearly articulated here — turns on his belief that this case has run the normal judicial course and ended in denial. This text amendment is “a way around” all that preceded.

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What should we say about MC’s position? Is his thinking logical? Has he a solid basis for his position?

There is certainly an obvious strong case for saying yes. 2 W. Market went to the court of last resort. It followed the route our society has set up to settle such tough matters. That’s the way we do things. So be it.

But how test MC’s position? His position is the default position. What could be wrong with such a mainstream, conservative position? How would others argue to disregard the finding of the highest court in the state? One would think the counter arguments would have to be very, very, very strong to subvert the default.

1) A key counterpoint made several times throughout the course of the hearings might be phrased something like “Local knows better.” Trust the (final of multiple) local decision of the Zoning Board and Northampton County Court rather than the decision of distant judges in Harrisburg. Is local better? If it is, why do we have a court system based on the reverse? Are you more likely to find objectivity and fairness in people involved in a situation or detached from it? What would happen if local disregard of higher court rulings became accepted?

2) Atty Preston was asked at least twice why the state court denied the case. Once by MC himself because this was a key issue for him (listen to the short audio below). Atty Preston’s answer – answering carefully because of his position as an officer of the court — revolved around the belief that the Court did not make the distinction between house and property.  That’s “where the wheels came off,” that was “lost in translation.”

If the Court clearly made a mistake, then, yes, there is reason to counter MC’s position. So, attached here is the Court ruling. Take a look at especially the Court’s “analysis” beginning on p.12.

Commonwealth Court Order and Opinion dated 5-22-18

The Court dismissed several objections by the opposers to this petition. But here is the point that decided denial by the Court (p. 18-19):

Applicant is also seeking to convert the only fully conforming structure on the property – the single family dwelling — to a non-conforming one. Moreover . . . Applicants want to do this at significantly greater cost than maintaining the conforming single-family dwelling as residential. The ZHB acknowledged that the house can still be used as a residence, including a multi-family residence, as of right under the Ordinance; yet it concluded using it as commercial office space was more desirous. This is not the standard [Atty Preston reads only the next 5 lines in the ruling in the above audio clip in answer to MC’s question].

The Court sees the request for a use variance on the house as a step backward. Is there any error here? Is MC wrong to trust this ruling of the high court? Did Atty Preston persuade that he knows better than the high court? Is there a court “mistake” or just a different perspective?

3) If nothing else works, you can change the law. Pertinent here is the 12/4 interplay between Mr. Carpenter and Atty Preston that can be found on post 45. Listen. Mr. Carpenter says what the petitioners are asking is against the law. Mr. Preston says, ok, let’s change the law. But in doing so, he pretty much acknowledges that the reason for such a change is just for the benefit of 2 W. Market: “This is about 2 W. Market, the fact that there’s a unique situation there that has fallen through the cracks judicially.” Should MC suspend his basis in law and traditional legal process to help enact a law that favors one person?

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Provocative, isn’t it? Gadfly loves this stuff.

Once again, Gadfly asks, whether you agree with MC’s vote or not, what do you think of the quality of his thinking. And then how does it square with your thinking about the place of the traditional legal process here? And, then again, how does it fit in to your opinion on the case as a whole?

Comments always welcome to sharpen Gadfly’s focus.

On to CM Callahan–

CW Negron on “the 2” (47)

(47th in a series of posts about 2 W. Market St.)

CW Negron Dec 4, 2018  “No”

ON speaks from her lived experience as a Southsider over a long period of time, lamenting that it’s not the same anymore. She invites us to share her sadness as we imaginatively drive with her from Hayes to 5 points. She speaks from the other side, as it were, as a kind of victim in soul and spirit, looking back at a dramatic transformation of her neighborhood caused by the change of one word in the zoning ordinance. She has a melancholy “then” and “now” perspective, a fracture caused by a small but non-trivial language change for business reasons. She doesn’t speak long (the shortest of the seven Councilpersons). She speaks with feeling, emotion. She’s been “touched” by Stephen Antalics’ commentary. She’s nostalgic. She’s in a kind of pain. Her voice is withdrawn, restrained, hushed — comes from deep inside. She does not specifically mention the Antalics “cancer” analogy, but the inference is clear that she is projecting what has actually happened on the Southside to what could happen on the Northside and voting “no” out of that fear and concern. Implicitly, this amendment is bad for the city.

1) Antalics as ON’s “heart of the matter”:  Since ON clearly identifies the great impact SA had in her decision, we judge him to judge her.

Here’s SA’s audio clip from Dec. 4:

SA introduced his cancer analogy previously at the Sept 4 City Council meeting in the conversation about Airbnb in the same Northside Historical District. See Sept. 4 minutes, p. 13.

2) The “one-word” zoning change:  Since ON fixes on the “one-word” change in the Zoning Ordinance, we should see if it’s true. Gadfly has not been able to trace all the permutations of the definition of family (finding that first change would be a historian’s dream!) but found these three recent pertinent texts. Gadfly suspects SA’s point is true.

1739.01 B. 20.       Regulated Rental Unit – A DWELLING UNIT occupied by three or more, but not more than five, unrelated PERSONS under one (1) RENTAL AGREEMENT. (Ord. 2017-15. Passed 5/2/2017)

2) 2.19     All OCCUPANTS of REGULATED RENTAL UNITS shall use the PREMISES as a single family dwelling.  There shall be one lease and all OCCUPANTS shall sign said lease.

3) 1302.43 Family. One or more individuals who are “related” to each other by blood, marriage or adoption (including persons receiving formal foster care) or up to 5 unrelated individuals who maintain a common household with common cooking facilities and certain rooms in common, and who live within one dwelling unit. A family shall also expressly include numbers of unrelated persons that may be allowed by the Group Home provision of this Ordinance residing within an approved group home.

3) Transformation of the Southside:  Are ON and SA right about the transformations in the Southside? This might be an important consideration since one other Councilperson has an opposing view. As evidence on the ON/SA position, consider the “A Lost Neighborhood” section of this “Still Looking for you” web project.

4) Argument by analogy: ON argues by analogy. For instance, the Southside was once a good place, but a small zoning change for a commercial reason triggered its degradation. The Northside is a good place, a similar small zoning change for a commercial reason is proposed, and that is likely to cause similar degradation. That is argument by analogy.

First to consider: is analogy a legitimate form of argument? This is pertinent since one other Councilperson seems to hold a negative view, and it’s obvious that the idea of precedent itself is not held in high regard by many supporters of the petition.

Wikipedia isn’t the source you would use in your term paper, but this (quoth the prof) is an accurate statement: “Argument from analogy is a special type of inductive argument, whereby perceived similarities are used as a basis to infer some further similarity that has yet to be observed. Analogical reasoning is one of the most common methods by which human beings attempt to understand the world and make decisions.”

Second, is the ON/SA analogy true or false? Does that analogy work? How do you test an analogy?

You can test an analogy says Wikipedia on these three criteria:

  • The relevance of the known similarities to the similarity inferred in the conclusion [do we know enough about the neighborhoods – susceptibility to decay, power to withstand corrupting forces, etc? Maybe most importantly, is that a reasonable reason why the Southside went downhill?]
  • The degree of relevant similarity between the two objects [are Southside and Northside both neighborhoods? are the zoning changes the same?]
  • The amount and variety of instances that form the basis of the analogy [does it weaken the ON/SA case that they have only one negative example?]

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So, has Gadfly given you something to think about? Whether you agree with ON’s vote or not, what do you think of the quality of ON’s thinking. This is crucially important to Gadfly. In assessing my elected officials, I’m as much interested in the quality of their thinking as an outcome, which, in fact, is an outcome I might disagree with. Are my elected officials intelligent? Are they thoughtful?

Do you see where ON is “coming from”?  Can you respect her opinion whether you agree with her or not?

In thinking ON’s supporting statement through, Gadfly has formed an opinion. How about you? He’ll share at the end. Suspense.

In the meantime, comments welcome! Just please note Gadfly’s cautions in the last post.

CM Colon next–