CW Van Wirt has a way of zeroing in on the essential issues and for me #8 is it (post #59). The city went through an extensive process revising the zoning code in 2012. It involved a diverse group of community members including several people who currently oppose passing this amendment. This community input in concert with the city is important because it established a broadly agreed upon standard (recalling here your desire for a standard to aid judgment) by which zoning decisions should be made along with the comprehensive plan. There is plenty in the current zoning code that should guide council to oppose this amendment especially 1323.08 “No non-conforming use shall be extended to displace a conforming one.” That would be the outcome if the amendment is supported. Any change in the zoning code should only be made with ample evidence based on sound analysis that it is in the interest of the city. The interest of an individual, as PVW said, is secondary.
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.
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.
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.
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.
Although I was unable to attend, I have been following the Gadfly’s analysis and postings, as well as being privy to other communications. Besides Councilman Reynolds’ demeaning move to the suburbs pitch and Councilman Callahan’s lack of understanding of what this neighborhood block is actually comprised of, I was equally aghast at Councilman Martell’s reflection about Council not being concerned about domino effects and what ifs, I would suggest that on every vote any City Council takes they should always be concerned about the potential impact, both short and longer term. It would be irresponsible to do anything other than that. After reading the various statements of positions, it seems that the three no votes were standing for principles and that the four yes votes were struggling with excuses for making their political votes.
Bruce Haines is a Lehigh graduate who returned to Bethlehem after a 35-year career at USSteel. He put together a 12-member Partnership to rescue the Hotel Bethlehem from bankruptcy in 1998 and lives in the historic district.
Interesting developments from the First Vote meeting including Mayor Donchez finally admitting that he in fact has been behind this project for several years as outlined in Myth #7. He comes out at the 11th hour to officially throw his support for the project but only after Darlene Heller poisons the entire vote by declaring that no other property in the city will be impacted by this approval.
So while Myth #7 was now admitted to and verified by the Mayor, we now have Myth #8!!
Myth #8) No other property in the city is impacted by this text:
+Darlene Heller writes a clandestine email to council outlining a complete fabrication of the facts to assure the Council that their vote won’t impact any other property in the city because there are no other properties that have Single Family “detached” dwellings and non-conforming commercial other than 2 West Market.
+Heller therefore even went so far as to discredit Atty Preston’s exhibit submitted at the hearing of 7 other properties in the city that would be impacted.
+Heller used words like “separate” and “detached” in her comments at the prior hearing and also in her memo that don’t exist in the amendment nor in our zoning ordinance for that matter. She has completely fabricated something to distract the council away from the pervasiveness of this resident-originated zoning change across the city.
+This then provided the cover for the Mayor to now come public on his long time behind the scenes push to get this property approved for a major donor to an affiliate of the city Police Department. It then gave the same cover for 3 other council members subsequent dialogue and vote.
+Councilman Reynolds took that ammunition to focus the discussion to only spot zoning in one neighborhood and in his question to solicitor Spirk. It also gave councilman Martell the same cover for his preordained vote with his comment about No Domino Theory. Councilman Callahan focused his whole discussion to his recollection of the first block of West Market Street that in his mind is not a residential area.
This leads us to Myth #9.
Myth #9) The first block of West Market Street is not residential:
+The RT district begins at Heckewelder Place with the first block abutting the CB district going to east to New Street. In that block there are 26 buildings in addition to 2 West:
22 residences—18 single family/4 multifamily
2 office buildings (non-conforming grandfathered)
2 school buildings (permitted uses in RT)
+Clearly Councilman Callahan is mistaken about the character of the block where he formally resided, and his “No one can tell him differently” with respect to that neighborhood is characteristic of someone preordained on their vote for this major city donor.
Myth #10) City zoning should be based upon what individual council members think should be in their neighborhood:
+Councilman Reynolds’ deliberation comments included his personal preference for having commercial in his neighborhood as this is the city. Therefore, implying that those residents living in the Historic District should move to the townships if they want to live in residential-only neighborhoods.
+Serious disconnect by an elected official with the city zoning ordinance that clearly defines separate residential and commercial neighborhoods and section 1323 that directs nonconforming properties toward conforming with specific provisions against expansion of nonconforming uses.
+Serious disconnect with the electorate that purchased property in areas of the city based upon such zoning ordinances and the city responsibility to uphold such ordinances. Total disregard for the residents of the historic district that care about their neighborhood and who spoke out 4:1 against this ordinance at the Hearing.
Myth 11) The neighborhood is equally divided on this issue:
+While at the hearing the speakers were reasonably equally divided on this issue, the vast majority of the speakers on behalf of the petitioner were either paid employees, contractors, clients, or family members that don’t live in the Historic District. The actual count of residents speaking that night was 8-2 against the amendment.
+The petitioner speaks about a 3-year-old petition for a completely different amendment where neighbors were threatened if they didn’t sign with low-income housing apartments if Quadrant didn’t get approval. This petition is irrelevant to the decision in front of Council today and should be completely discredited.
On a final note, the petitioner and their employees continued to spread misinformation related to Myth #4 regarding the property sale process as languishing on the market for 2 years (Ms. Lannon). The facts are that this property was put under contract by Morningstar in less than 4 months and closed in less than 1 year. Hardly a test of the market for use as a single-family home during a very weak market in 2013/14.
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.
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.
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?)
Mr. Rij exhausted judicial avenues and now seeks to alter the zoning code to accommodate his demands to be permitted to ooerate his business where it is not permitted. Mr. Rij has found that he could not win playing by the rules so now seeks to change the rules in his favor. Darlene Heller pointed out in her memo to the city planning that this amendment clearly benefits Mr. Rij but with unknown consequences for the city. Is this the way a city should operate? When in doubt side with the law. I commend MC for his wise decision.
Beall Fowler is a retired professor and long-time resident of Bethlehem.
Gadfly: About 15 years ago Ralph Schwarz was honored at the Historic Bethlehem holiday dinner. He began his remarks by saying, “The reason we are all here is that we all love Bethlehem.” That phrase has stuck with me since, and I have used it myself on a number of occasions. The long and passionate debate at Council rekindled that phrase in my mind: we were all there because we all love Bethlehem! Why else spend 3 hours in that packed chamber and engage as we all did? Yes, we all love Bethlehem — we just have disagreements about what is best for this wonderful city. As you say, democracy in action!
This piece was published 4 years ago in the Bethlehem Historic District Newsletter soon after the Zoning Hearing Board first denied the variance petition for 2 W. Market St., a denial that was upheld by both County Court and Commonwealth Court.
Because zoning issues seem to arise in our neighborhood every year or so, a brief outline of Bethlehem’s zoning code as it pertains to us may be useful. For those wishing to learn more, the entire code and accompanying map are available on the City of Bethlehem website by clicking : departments; planning, zoning & permits; zoning office homepage.
Within the Central Historic District, both sides of Main Street and a portion south of Walnut Street from Main to New Streets are zoned commercial (CB), while the Colonial Industrial Quarter, the Moravian Church and Academy area, and most of the area south of Church Street are zoned institutional (I). The focus of this article is on the remaining residential portion, which is zoned RT.
The issues to consider here are the allowed uses in the RT zone, and who decides? Section 1304.01 of the zoning code tells us that there are three possibilities: P, permitted by right (zoning decision by the Zoning Officer), SE, special exception (zoning decision by the Zoning Hearing Board), and N, not permitted. There also may be current non-permitted uses that pre-dated zoning and are “grandfathered;” these are called non-conforming and are allowed to continue.
Our RT zone has a number of permitted uses, most involving various types of residences; we can see this as we walk through the neighborhood. Other permitted uses include places of worship, schools, and minor home occupations, along with some others. These permitted uses may still face requirements, such as external appearance (HARB) and safety issues as required by law.
Special Exceptions (SE) are potentially allowed uses which require particular scrutiny in their effect on the neighborhood and may require special provisions such as off-street parking. This is why the application for a special exception must come before the Zoning Hearing Board (ZHB). ZHB meetings are advertised and open to the public, and citizens may testify at these meetings. ZHB decisions may be appealed to Northampton County Court. Several of the SE uses in RT zones include bed and breakfast home, funeral home, day care center, and major home occupation. There is also a special provision for reuse of buildings of corner storefront character (1304.04). Only one of these is known to exist in the District, at the northeast corner of New and Church Streets.
What is a home occupation? This is spelled out in 1302.53 and 1322.03(z). Briefly, it is an accessory occupation conducted in a residence that does not impinge on the neighborhood while preserving the residential character of the dwelling. A minor home occupation (also known as a no-impact home-based business) involves only family members residing in the dwelling, while a major home occupation allows at most one employee who is not a family member, in addition to residents who are family members. The code furnishes further details and additional requirements, but essentially a home occupation is one carried out exclusively or largely by family members who are resident in the home and whose activity is largely invisible outside the home. In other words, the building is still fundamentally a family residence.
What if the owner of a residence desires to convert it to a use that is not included in permitted or special exception categories? It is then necessary to apply to the ZHB for a use variance. (The term “variance” is general and describes any characteristic that is not allowed in the zoning code. Within this category, the most common ones are area or signage variances; if a property owner, for example, wishes to construct an auxiliary building that is closer to a property line than allowed in the code, then he or she applies for an area variance. )
Because a use variance involves the use of a property that is forbidden in the code, stringent conditions are applied to any such application. These are stated in 1325.06 of the zoning code: five conditions are listed, all of which must be met for the ZHB to grant a use variance. One of these is most telling: “ — there is no possibility that the property can be developed in strict conformity with provisions of the Zoning Ordinance — “
In a recent denial of a use variance by the ZHB (which was upheld in Northampton County Court) it was stated “A variance should not be granted to allow an owner to obtain a greater profit, and economic hardship short of rendering the property valueless does not justify its grant.” Perhaps it may be argued, then, that no residence in the Central Historic District, and perhaps few in the City, would qualify for a use variance under the law. And the law, after all, is what the ZHB and the Courts must use to arrive at their decisions.