96th in a series of posts on 2 W. Market St.

Gadfly spent another long night Wednesday at the Zoning Hearing Board at which the owner of 2 W. Market St., the neighbors of 2 W. Market St., and the City are locked like Middle East countries in a feud of such longstanding duration that it’s almost impossible to remember anymore what the core issues are.

Those issues are lost in the legal weeds. Gadfly invites you to peek at the last 45 minutes of Wednesday’s meeting (begin around min. 4:15:00), for a mind-numbing City-lawyer-led tour of city properties by a civil engineer, who, rather amazingly, was permitted to testify as an expert witness on zoning.

Gadfly assumes this kind of thing was necessary for the City to make its case and the attorney to earn his keep, but it was not spectator-friendly. God bless the Board members. One of whom appears to be looking for divine intervention during this punishing latter testimony. One could better hope that he has discovered the beauty in the Town Hall ceiling that Dana Grubb has just revealed to us.

There was no resolution Wednesday night. We look forward to another try at such next Monday night.

“Some people may wonder why this matters so much and see it as a tempest in a teapot,” neighbor team member Barbara Diamond says in yesterday’s explanatory post in this series.

Yes, some of you Gadfly followers ARE wondering that. Couldn’t we all be making better use of our time, you ask?

Yes, Gadfly hears that.

So what is the City/Marketer case?

Gadfly has done exhaustive presentation of the Marketer position in past posts when as many as 12 or 15 residents testified in their favor at previous meetings. See here for one example among many posts.

But the City/Marketers only presented one testifier this time.

So — since in Gadville we always try to present all sides — let’s look at the testimony of Suzanne Virgilio, owner of the Bethlehem Inn Bed & Breakfast catercorner from 2 W. Market, the sole resident witness put on by the City.

But, first, let’s familiarize ourselves with the 2 W. Market “neighborhood.”

2 W. Market is at the corner of New and Market. Gadfly bets we all have passed it scores if not hundreds of times.

But let’s try to “see” it right now before listening to Virgilio. If the technology works, click here for the google map in (I hope) the mode that will enable you to travel east and west on Market as well as north and south on New. (If the link doesn’t work, you can google-map 2 W. Market yourself and maneuver around in the street view.)

The idea is to see what Virgilio sees as she stands at the intersection of New and Market.

Ok, now listen to her testimony.

Gadfly apologizes that his camera position and YouTube’s choice of image make Mrs. Virgilio look like a mob informant secretly testifying before a Congressional committee

• “Our objective in purchasing the property was to run a bed & breakfast at that location.”
• “We did so specifically at this location because it was a great business location.”
• “If we were looking to buy a home to raise our children in, we would not have chosen this location.”
• “But it was ideal for business.”

How would you characterize the nature of the neighborhood?

• “Obviously we’re within the historic district, but within the historic district there’s many different personalities.”
• “That’s what makes it very appealing . . . in a downtown area you can live on a residential street, but you also can live in a more commercial area.”
• “Which is how I characterize the neighborhood at the corner of New and Market.”
• “It’s a very commercial area. It has a 4-way traffic light. It has double yellow lines which indicate a heavily traffic’d area.”
• “Up until this year we had a LANTA bus stop directly in front of our home. I don’t think residential areas necessarily have that.”
• “We have a school directly across the street, with drop-offs, pick-ups, school buses, parents, etcetera.”
• “While maybe some areas in the historic district pose a more residential feel, certainly that’s not the case at the corner of New and Market.”
• It’s an area in which there are parking meters, already existing offices, and there has been no increase in traffic as a result of the 2 W. Market business.

Have you observed any negative effects in the neighborhood?

• “Absolutely not.”
• Quite the contrary, I thing the improvements made to that property have upped the bar.”
• “Our own property value has increased since that property has been renovated.”
• “On New St., two houses on New St. from us, sold for very, very high amounts and sold quickly.”
• “On Market St. two doors down from us another property sold very quickly.”
• “And I think that has a great deal to do with what has been done to 2 W. Market St.”
• “It’s improved the neighborhood. It’s improved property value. It’s been a great improvement overall.”

Have you noticed any creeping commercialization in, say, the past five years?

• “In my immediate 4-corner area, I can’t think of anything that has become commercial.”

Ok, so here is the only testimony by a resident put on by the City/Marketer to defend against the claim by the other neighbors that the zoning amendment permitting a business use at 2 W. Market in a residential district is invalid.

What are you thinking?

to be continued . . .

95th in a series of posts on 2 W. Market St.

Barbara Diamond enjoys retirement as Lehigh University Director of Foundation Relations by engaging in various activities and organizations hopefully for the betterment of the community. Her particular interests at the moment are preventing gun violence, local government ethics reform, and Bethlehem Democratic Committee work.

Thank you Gadfly for reporting so extensively on 2 West Market St. Some people may wonder why this matters so much and see it as a tempest in a teapot. In fact this has a far-reaching impact that could adversely affect property owners in residentially zoned neighborhoods in the city. It is also about using the levers of government to dispense favorable treatment to a well-connected benefactor.

The simple facts are that the Marketer, as you call him, decided to move his business from the commercial district on Broad St to a house in the historic district. The ZHB declined a variance twice to do so but granted one not long after he made a substantial gift to build the mounted police stable. He commenced renovations knowing that litigation was ongoing and the ZHB’s favorable decision might be overturned — and it was, unanimously, by the Commonwealth Court.

Endeavoring to get his way nonetheless, he decided to get the city to alter its zoning ordinance so that his property would fit in. This was done by a tortured amendment to the corner store provision in such a way that he could operate his business in a residential neighborhood. No analysis was done by the city as required to determine how many other properties might be affected, and no property owners were notified before the city council approved it. Darlene Heller, Director of Planning and Zoning, acknowledged in a memo to the Bethlehem Planning Commission (BPC) that the amendment clearly benefits the business owner, and that the potential impacts on the city are unknown: “this amendment is specifically written to provide relief for one individual’s property, but there is no information about the overall number of properties that will be affected. . . . the end result of the amendment is unclear.” The BPC did not approve the amendment, but the city council did. With their favorable vote, Councilmen Waldron, Callahan, Martell, and Reynolds failed to abide by the intent of their zoning code to preserve residential neighborhoods throughout the city for the benefit of one special interest business promoted by the Mayor.

We are before the ZHB as part of the appeal process, but because of city politics we suspect that they will rule in favor of the Marketer. You only have to look at the table where the city’s attorney (who is paid by tax-payers) sits beside and confers with the marketer’s attorney to know the outcome.

Nevertheless we believe this is a fight worth the time, effort, and money. When individuals use their influence to get favorable treatment that materially has a detrimental impact on others in the community, it should be challenged.

Barbara

As always, Gadfly invites opposing views.

94th in a series of posts on 2 W. Market St.

Here’s another interesting head-scratcher.

In the 2 W. Market case, what constitutes evidence?

Gadfly thinks you will find this 5 minutes of Steve Diamond’s testimony provocatively relevant to that question.

Part of Mr. Diamond’s testimony on the economic impact of a vague zoning amendment on the large investment he and others have put in their historic area properties is dismissed as speculative, and the bottom line in his testimony about the physical and financial stress generated by uncertainty is dismissed as providing no evidence, no facts.

Your own mental state is not a fact, not evidence.

Are you seeing the kind of personal and legal swamp you might have to wade through in order to protect your property, your neighborhood?

to be continued . . .

93rd in a series of posts on 2 W. Market St.

The Zoning Hearing Board meets on 2 W. Market again tonight. Might be the last time. One can hope that we will hear closing arguments.

So Gadfly is kind of rushing to come up to speed and to point out to you interesting elements from the December 11 meeting.

So let Gadfly start with the testimony of Bruce Haines for the neighbors. It will give you a stark understanding of the difference between public commentary at a City Council meeting meant to influence a Council decision and the quasi-legal format of the Zoning Hearing Board.

Simply stated, there are things you can say to Council that don’t “count” at an appeal hearing like this before the ZHB.

Let Gadfly ask you a question.

Do you think a Mayor’s position on an issue can have influence on his Planning Director and City Council members?

Gadfly would say yes. How about you?

Certainly this was an issue in the meetings on 2 W. Market before the Planning Commission and City Council. The Planning Director did not endorse/approve the Marketer proposal. The Mayor weighed in on the side of the Marketer — and did so late in the game. So neither the City Planning Director nor the City Planning Commission approved the Marketer petition. But the Mayor — who, of course, had no formal vote at any time — overrode his Planning Director, and his position favorable to the petition was well known to Council members, some of whom might be thought to be his allies, and the public. There was suspicion that the Mayor’s favorable position was a favor to a prominent financial contributor to the City and that the Mayor’s favorable position was a factor in Council’s approval.

Hmm, has Gadfly characterized that fairly?

So, Gadfly would say that in the mind of followers of the local proceedings the beliefs and actions of the Mayor were quite relevant to the passing of the Marketer petition.

But not so in front of ZHB.

Take 5 minutes and follow Mr. Haines sparring with the City attorney and the ZHB solicitor over the Mayor’s involvement.

You will hear that there is no relevance to what the Mayor felt, said, did. It doesn’t matter if the Mayor was for or against. You will hear that the Board doesn’t care if the Mayor endorsed or not. It doesn’t matter if the Mayor contradicted his Planning Director.

The ZHB solicitor ends this exchange by saying he’s “missing the point” of Mr. Haines’s recurring references to the Mayor’s role.

Really?

Makes Gadfly feel like a country rube.

But you will enjoy Mr. Haines braving the legal dragons.

to be continued . . .

92nd in a series of posts on 2 W. Market St.

So the neighbors’ expert witness Karen Beck Pooley made, as we saw last time, two conclusions about the text amendment relating to a business at 2 W. Market St. in a neighborhood zoned residential.

1) “The amendment didn’t clearly articulate the planning priorities set out in the Comprehensive Plan.”

Doing the course of the long series of meetings on this case that has generated 92 posts dating back before The Flood, Gadfly realized something about himself. He’s a “strict constructionist,” a “constitutionalist.” He saw the City Comprehensive Plan and the Zoning code as “constitutions” and wanted arguments to be based in them, to flow from them. He did not see that from the 2 W. Marketers.

2) “It was very unclear as to how the recommended adjustment would affect properties throughout the City.”

The Marketers presented a list of 8 properties that would be affected by their amendment, the City 142 properties. And there was no duplication! The lists had no properties in common! What the *!*!? To Gadfly, it was obviously unclear to what properties this amendment would apply. One wonders how the amendment could have passed the hurdles it did without clarity on this matter. Unbelievable.

Now it’s one thing to make such unchallenged public comments at City Council, quite another to face cross-examination by lawyers from the City and from the Marketers in the trial-like proceedings before the Zoning Hearing Board. Gadfly knows. He did not do particularly well under his cross-examination two meetings before. Ugh.

Not so with Beck Pooley. Gadfly invites you to sample the skill she showed under cross-examination. In Gadfly’s opinion the cross-examining attorneys succeeded only in giving her the opportunity to once again and more strongly state and elaborate her position.

In this following clip of cross-examination by the City attorney, note, for instance, how Beck Pooley avoids the attempt to make confusion about the amendment her problem. No, she says, it is not my confusion but the confusion of others that is clearly on the record, and as a specific example she cites again the lack of commonality in the property lists submitted by the City and by the marketers. Precisely one of her main points. To which the attorney can only say, “Ok.” In fact, he says it twice.

Note also what Gadfly would consider a crude lawyerly attempt to discredit Beck Pooley as an expert witness by testing her, by asking her the meaning of “text amendment”: “Do you understand what a text amendment is?” Rather than give a definition that the attorney could worry her over, Beck Pooley replies that’s it’s not her term but one used by others to describe the amendment in question — thus eluding a potential trap by avoiding the need to define it.

In this next clip from her cross-examination, Gadfly invites you to see Beck Pooley avoid similar traps set by the Marketer attorney in questions about the definitions of “spot zoning” and “non-conforming,” as well as her ability to avoid answering key questions “yes” or “no” as the attorney urges — rather, turning her answers into mini-lectures that effectively amplify her conclusions and show her grasp of the subject.

Thus, in Gadfly’s opinion, the cross-examination did not “touch” the two main conclusions in the testimony of the neighbors’ expert witness.

Now the testimony of other neighbor witnesses (with whom Gadfly followers will be familiar) the night of December 11 did not go as well for reasons that might surprise you.

to be continued . . .

91st in a series of posts on 2 W. Market St

So — trying to keep things simple for you — this controversy begins with the “corner-store ordinance” on the books as part of the revision of the City Comprehensive Plan and Zoning code revisions about a decade ago.

The purpose of the corner store ordinance was to permit those properties originally designed to have a first-floor store but which had been converted into living spaces over time to be used again as stores.

Once this particular architectural configuration (the punched-in corner entrance) is pointed out to you, you, like me, will see they are abundant throughout the City.  They are distinctive architecturally.

Gadfly could probably find 5-10 without any trouble within a half-hour walking radius of both his home and work place.

The thrust of the owners of 2 W. Market’s efforts, including the text amendment now under fire, is to make this below kind of building originally designed to be a home equate with those originally designed as a store — and to allow a business use there.

If you put the four pictures together and played the Sesame Street “which one doesn’t belong” game, the young ‘uns wouldn’t strain. Yet Commission and Council members did.

At the December 11 Zoning Hearing Board meeting, the first witness  — an “expert witness” — for the neighbors was Gadfly follower Karen Beck Pooley.

What conclusions did expert witness Beck Pooley reach?

1) “The amendment didn’t clearly articulate the planning priorities set out in the Comprehensive Plan.”

2) “It was very unclear as to how the recommended adjustment would affect properties throughout the City.”

Where does thinking about zoning begin, according to expert witness Beck Pooley? The City Comprehensive Plan.

“The new Comprehensive Plan was updated in 2009. That’s where the community’s priorities, vision, how it wants to see properties used . . . what it’s overall priorities are for how the City’s going to function and how people are going to interact in different spaces throughout the City. That’s set out first, established by that Comprehensive Plan, and the zoning ordinance is the tool the City has to control the way development happens . . . to be in accordance with the priorities set out in that Plan.”

What did expert witness Beck Pooley see comparing the text amendment to the Comprehensive Plan and Zoning Ordinance?

“I was taken aback at how different it was from the original intent of the ordinance. . . . The previous ordinance clearly stemmed from the City contemplating mixed uses, thinking about how a variety of uses existed in neighborhoods, harkened back to historical uses of properties in those neighborhoods . . . . The amendment operated in a very different way to actually allow non-conforming uses to expand which is sort of the opposite of what the typical zoning ordinance does.”

Makes sense to Gadfly. Throughout the long controversy Gadfly wondered about the silence surrounding the Comprehensive Plan in the proposer’s arguments, a Plan that Gadfly began to think of as analogous to a constitution. How could the amendment be good if it is not in accord with the constitution, thought Gadfly.

And, yes, the range, the impact of this amendment tailored to one property on other properties was never, never settled, so how could one vote for its passage?

Are you with me?

Seems a good start for the neighbors challenging the amendment.

Let’s see where the argument goes.

89th in a series of posts on 2 W. Market St 

Kate McVey is a concerned citizen, 30-year resident of Bethlehem, professional organizer, dog owner, mother of two children, been around, kosher cook . . . explorer.

So Gadfly,

I have never understood the hubbub about this property. It looks so much better than it did, and it does bring people in and out of the neighborhood unlike the Verizon building and the fortress that used to be a bank. To my knowledge, I guess we could count the dead people in the cemetery there as residential (?). But the school surrounds that property, there is a B and B across the street, and a lawyer’s office, and there was a small shop farther down Market. There is an old folks home next to the cemetery and only one residential property on the south side of Market street. And what about the one story building behind it on New St.? There is a business in there.

As stated in the other blogs, the zoning board changes the rules constantly to please new projects. At least the 2 Market St kept the old building and the character of the area. Going down New there is the Kemerer Museum and a shop on the other corner of Church and New.

The residents have even admitted that 2 Market people are good neighbors.

Historic Bethlehem needs to sometimes get over themselves. So what am I missing? Also further down on Market there are law offices, a boarding house. Come on, what am I missing?

Let’s focus on tearing down the Judd building and what the new development being proposed will do. Not to mention the Airbnb issue, what happened to that?

Kate

89th in a series of posts on 2 W. Market St

Fighting for one’s neighborhood. Always a good thing in Gadfly’s book.

Yesterday Gadfly focused on the forceful testimony of Paige Van Wirt before the Zoning Hearing Board on November 12 as a model of good citizenship.

Gadfly does the same today with the example of Martin Romeril.

The issue in the 2 W. Market case is the insertion of a business in a residential neighborhood.

Unbelievably, from the beginning of the recent chapter of this case, the nature of the neighborhood as “residential” has been questioned, despite what the zoning map says.

Go back to post 49 in this (so-far) journey of 89 posts with Gadfly, the post “CM Callahan on ‘the 2’.”

Here’s what Councilman Callahan had to say about a year ago: “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.”

As Gadfly said back in December, “The zoning code says 2 W. Market is in an area zoned residential. [Callahan] says, in effect, there is no residential area there.”

That subjective suspension of the zoning code by a Councilman bowled the then innocent Gadfly over.

Now around the same time the City — which supported the owner of 2 W. Market and is now vigorously opposing the validity challenge — produced a map that also seemed to have the same effect, the downplaying of the residential nature of the West Market neighborhood and thus minimizing the impact of the inserted business.

Enter Romeril.

And his production of a color-coded map that shows the neighborhood 87.3% residential!

Here is Romeril testifying about his work at the November 12 Zoning Hearing Board meeting:

But Romeril’s investigative work didn’t end there.

When the City attorney posed this question — “Mr. Romeril, you expressed some concern about the impact of 1304.4b throughout the City, have you been able to identify other parcels where 1304.4b might apply?” —  he seemed surprised that Romeril’s “Yes” answer was embodied in a 3-page chart, done with the help of a friend, based on evidence offered by the 2 W. Market attorney:Gadfly invites you to note the long silence at the end of the following clip with which the City attorney responded to Romeril’s work:

Romeril didn’t just accept the study done by the City.

Romeril didn’t just accept the research done by the 2 W. Marketers.

He challenged both and provided data that supported the neighbors’ position.

It is, of course, by no means clear that the neighbors will win this latest round before the Zoning Hearing Board in this marathon controversy (everyone seems to feel resolution in the courts will be necessary), but Gadfly is pleased to help disseminate these examples of active citizen involvement as models for us all when we need to struggle for the quality of our neighborhood life.

The Hearing Board meets again on this case December 11.