Thursday, August 28, 2008

Bethlehem Township Zoners Kill County Work Release Proposal

Without listening to a word of testimony, Bethlehem Township's five-member Zoning Hearing Board has already dismissed Northampton County's application for a work release center. It did so unanimously after lawyers sniped at each other for about an hour in front of forty-five onlookers. Most burst into applause when the decision was announced, but it's a hollow victory. The application will simply be refiled.

If one thing is clear, it's that Bethlehem Township wants nothing to do with anything that houses prisoners. That's no surprise from a municipality that refused to contribute a dime towards homeless shelters.

If anything else is clear, it's that this dismissal was pre-ordained. Let me tell you how that happened.

Shortly before tonight's hearing, Bethlehem Township Commissioners authorized solicitor Tom Elliott to act as an objector. He sent the county a subpoena that essentially asked for the production of all documents since it was formed in 1752. Although the county responded with over 800 pages of documents, that wasn't good enough for Elliott. He also argued that, because there was no parking study or site plan attached to the application, it is void on its face.

Now the county intends to build a treatment center in Bethlehem Township, but does not own it. Who does? That would be Abe Atiyeh, dubbed the Rajah of Rezoning by Morning Call columnist Bill White. However loud-mouthed he may be on other occasions, he was strangely silent tonight. He sat quietly, munching on a bag of penny candy, while lawyers hurled terms like "equitable estoppel" and "ab initio" at each other.

Atiyeh's mouthpiece, Jim Preston, was actually pretty impressive. When Elliott complained about the inadequate response to his subpoena, Preston started ticking off some of the sixteen separate items requested. He also charged that deputy zoning officer Howard Kutzler had deliberately misled them and asked for a thirty-day continuance so he could supply the parking study and site plan.

This is when it became apparent that this result was arrived at in advance, not by the board, but its solicitor. Solicitor Larry Fox just happened to have a copy of an appellate decision concerning faulty zoning applications. That's just a little too much of a coincidence. "I'll be happy to supply a citation if you like," is what Fox told Preston.

While the board deliberated, you could see Fox was very hard at work, going from board member to board member, showing them the decision and making his points. Clearly, Fox had his marching orders.

I predicted the board would grant the continuance anyway. Northampton County Exec John Stoffa, who sat next to me in the cheap seats, said no. Stoffa was right.

Bethlehem Township won a round, but it's going to lose this war. The area proposed is zoned to permit precisely the kind of facility the county desires to build. It does have the power to regulate the types of prisoners allowed to occupy this treatment center, and should be focusing its efforts in that direction.

30 comments:

lighthouse said...

My understanding from the last Board of Commissioners meeting ( www.lehighvalleylive.com/bethlehem/index.ssf?/base/news-0/1219118747319310.xml&coll=3 ) is that not everyone is necessarily opposed to the concept, though still have questions on the specifics. However, the majority of the Planning Commission, Zoning Hearing Board, and Board of Commissioners do appear to be reacting to the public reaction against this plan.

It is unfortunate that Northampton County would not go along with the offer from Lehigh County, noted in your blogs earlier this year, in a "joint" expansion of a similar type of center that has no public resistance. From my understanding, Northampton County Judges want to keep the control of such a center within the county, so that proposal was DOA.

However, beyond the egos of judges, as a Bethlehem Township resident I must note that it is ironic that "society" wants the government to be "tough" on criminals, but NIMBY.

Enough said. Any more would be rambling.

Bernie O'Hare said...

Lighthouse,

I do think the ZHB was acting independently, but their lawyer was quite obviously steering them towards a pre-ordained result.

It's unfortunate bc the real question is exactly what kinds of people are going to be sent to this facility. The ZHB chair, Mr. Szy, seemed quite cognizant of that.

As far as the LC joint venture is concerned, I don't think the judges' objection is rational. Perhaps I'm wring, but it seems absurd to think that they lose control simply by sending an inmate to another county. They still have control over the sentence. I'd like to know thier reasoning and think they owe it to us.

gsbrace said...

sounds like the solicitor has a lot of power over this zhb. I can honestly say that I have never met allentown's zoning lawyer. I know we have one, but we only rely on his/her advice when we hold a decision over for consideration and need specific legal research.

I don't say this often about Allentown gov't, but the zhb is amongst the most professional that I've witnessed across the commonwealth. Looks like Beth Twp's isn't so interested in even the basic fact finding function that should be required before a decision is made.

gsbrace said...

I posted my comment seconds after you posted your last one, Bernie. I'll defer to your observations of the dynamics in the room this evening.

Bernie O'Hare said...

Geoff,

How can the Allentown ZHB be anything but independent when you are an alternate member?

What happened was obviously pre-ordained. Now I think the ZHB acted independently, but the lawyer had no business participating in their deliberations. And the fact that he just happened to have a copy of that decision was just a little too convenient.

gsbrace said...

"How can the Allentown ZHB be anything but independent when you are an alternate member?"

Am I missing something?

gsbrace said...

"And the fact that he just happened to have a copy of that decision was just a little too convenient."

Oh! Wow! I missed that in the article. If I was one of the zhb members I'd be livid right now. That takes some presumption.

Bernie O'Hare said...

"Am I missing something?

Yes, I'm complimenting you. I know, it's rare.

gsbrace said...

oh... *coughs* Thank you! *takes a bow*.

In the meantime, buenos noches.

Seriously, I hope the county gets a better shake in the future. I also wish the bi-county cooperation would be given greater attention. At least study it to see if money could be saved.

Anonymous said...

O'Hare sat with Stoffa and of course defends this dumb idea. The Township will never allow this and will go to Court if necesdsary.
O'Hare only likes democracy when it is his and Stoffa's democracy.
Score one for the people.

Anonymous said...

"sounds like the solicitor has a lot of power over this zhb. I can honestly say that I have never met allentown's zoning lawyer. I know we have one, but we only rely on his/her advice when we hold a decision over for consideration and need specific legal research.

I don't say this often about Allentown gov't, but the zhb is amongst the most professional that I've witnessed across the commonwealth. Looks like Beth Twp's isn't so interested in even the basic fact finding function that should be required before a decision is made."

Dear Massive Ego/Political Appointee Brace: Don't even try to compare the bungling incompetence in Allentown to the high level of service provided to residents in Bethlehem Township. What is happening in Bethlehem Township, is that the Township is pro-actively serving the best interests of it's residents. This doesn't happen in Allentown. Considering all the screw ups in Allentown over the years, I'm not the least bit suprised that a ZHB member has never met the City Solicitor.

Dave said...

The clapping and mock cheers after the dismissal tells me these people view this as a personal victory over the county they live in! Thing is..were all in the boat! This situation at the prison is not going to go away like they think this project is done! The county will be back and they will have to ante up or pay the freight the lawyers will charge them to defend their untenable position! Do the right thing! It's an industrial park for cripes sake!

Anonymous said...

"Although the county responded with over 800 pages." and just how enviornmentally-sound was this idea?

gsbrace said...

I should note that the zhb chair in allentown is a lawyer with tons of zoning experience. We have adequate council at these meetings.

tinkerbell said...

the idea behind this "treatment center" is to fix the prison overcrowding problem and lower the rate of recidivism, right? and if the county would do things the right way, treatment for prisoners could even save the county millions of dollars, as the warden lowe of pike county has done.

warden lowe sets an example that everyone should follow. he reduced the rate of recidivism from whatever 60 or 70% it was down to 10% and saved the county millions in the process.

he did this INSIDE an already existing correctional facility...one that is a DECENT SIZE...unlike the one in easton...one that is NOT LEASED from some private individual ($$$$$)...and where all the INMATES are under strict control of CERTIFIED CORRECTIONAL OFFICERS...who know how to handle situations that may arise.

if this mini-prison gets set up and is categorized as a "treatment facility" then it might not be required to be run by certified correctional officers...am i right?

so how does anyone expect this to work and save the county money by completely deviating from an already existing example of how to do it the right way? warden lowe has clearly done it, and he is very nice and is very willing to help other counties do the same. he even sent me a huge package with dvds and booklets on how his programs work and how to implement them.

Bernie O'Hare said...

Anon 6:53,

I've never seen A-town's ZHB so I have no perspective. I think the Beth Tp ZHB acted very professionally. But there is also very little doubt in my mind that its solicitor edged them in the direction he intended them to go.

Anon 7:29,

Refusing to obey a subpoena bc it might be bad for the environment? That would not work very well.

Anon 2:37,

Ths was not an exercise in democracy. It was a ZHB meeting, a quasi-judicial proceeding.

Tinkerbell,

You are absolutely right. Stiffa wants to start implementing those programs and is doing so inside the prison. The problem is that the prison is at capacity right now. About half are housed in the old prison, built in 1871, and that is actually a law suit waiting to happen. They need to go somewhere.

The LC solution for work release was the best option, but the judges weree adamantly opposed. I don't undertand their reasoning.

Zoners can control the kind of prisoners treated at the Beth Tp facility. Chairman Szy seemed to know that, and is interested in hearing details about that. That's where your concerns can be addressed. You'd want to be certain that the facility houses people not likely to escape and cause harm.

The current NC work release facility, located on a postage stamp, sends 300 people out every day. It is across the street from homes with children. A nursing home is a block away. A senior highrise is two blocks away. There are never any problems.

Anonymous said...

"And the fact that he just happened to have a copy of that decision was just a little too convenient."

I disagree with the above. If the ordinance requires a site plan and traffic study as part of the application, the fact the such materials are missing from the ZHB appliation exists well before the hearing. Any good attorny would come prepared with cases knowing that the defect exists in the application and record. I expect the solicitor prepare cases on both sides of that issue. I'd also expect the solicitor to agrue any point to prevent the Board from acting in a way that contravenes its own municipal zoning, such as to grant an incomplete application. After all, a good solictor will not want to write a bogus ZHB decision unless the decision is well grounded in the law. The ZHB makes findings of fact and law, but the solictor's role is to provide sound advise on the law. You've got to look at the provisions in the Zoning Ordinance to see what is required in the application, i.e. a traffic study and site plan, and whether those provisions were indeed met by the applicant. If the ordinance requires it, and they were absent, the application can not be granted, and the applicant must refile. NLV

Bernie O'Hare said...

NLV Logic, You may very well be right and I may very well be wrong. But I rarely see a ZHB Solicitor anticipate argumnents that might be made and come in with case law directed right at a last minute motion that takes an applicant by surprise. It's all just a little too coincidental for me.

Anonymous said...

Actually, when I am "presiding" at a ZHB, I'll preview the application, research any issues known in advance, and I'll sometimes write a pre-hearing memorandum. At the hearing, I'll expect the applicant to enter evidence which negates any pre-hearing issues, supplement the application, etc. That is, unless its a plain vanila request with no issues, (never happens that way). nlv

Bernie O'Hare said...

NLV, That's my point. No one knew this was an issue until Elliott made his motion. POerhaps I should say the applicant did not know this was an ussue until the motion was made. How could the solicitor have anticipated this unless he was talking to one party, ex paret, before the hearing? The whole thing is very suspicious.

Perhaps I am wrong. I'd like to be wrong.

Anonymous said...

I can't say you are wrong. But I can't also say that you are right. I was not there. But speaking generally, the burden is on the applicant. The applicant makes his initial showing by way of an appeal to the ZHB and an application. The outcome could be "preordained" because the application was incomplete, and no-one need point that out to the applicant because the applicant is the movant, or it could have been pre-ordained, as you suggest, because of politics. Nonetheless, the applicant's burden is to make a complete application. One must look to the local ordinance before one can judge whether the decision was preordained. It may very well have been preordained on incompleteness, or on politics. The solicitor's job is to help the Board reach a correct outcome as to matters of law. Questions of fact (and politics) are left to the Board. So if, indeed, the application was incomplete as a matter of law, because of missing items, site plan, traffic study, the solicitor must be prepared to point that out strongly (after all, the solicitor writes the decision). On the other hand, if the issue was a question of fact (or politics), that should be left to the Board. BTW: One of the ZHB members, is himself, a municipal lawyer, would likely cause the solicitor to anticipate legal questions, as other members (think that the solicitor will not want to look dumb) The issue in making a public observation should be, whether a site plan and traffic study, were required as a matter of law, before one can question the solicitor's actions in saying one way or another. Same thing I've been writing on my blog about Allentown. Does the building on Hamilton St. comply with the law. Thats it, period. Here its a request for zoning. BTW: You did not write whether the application was for a special exception, variance or conditional use, which certainly has a big affect on the outcome, because the burden is greater or lessor. NLV

Bernie O'Hare said...

NLV Logic,

The application was for a special exception use. The zoning code permits a treatment center as a special exception. As you know, the township is going to have a hard time stopping this. But people, rightly or wrongly, are very upset and concerned. So there is immense public pressure and it appears the township is doing what it can to knock the county out.

Anonymous said...

As special exception, reasons for denial (i.e. the conditions to meet) must be spelled out very clearly in the ordinance, as opposed to a variance. Another question will be whether a work-release facility is a treatment center or if its a prison. Again, if a treatment center is allowed by special exception, the definition should defined in the ordinance, otherwise, I doubt a treatment center will get the same treatment under the ordinance (bad pun) as a prison work release, they're not the same. Most applications will argue that the subject fits as a special exception, and in the alternative, a variance. Must look to the ordinance for both SE and variance I'm afraid. NLV

Anonymous said...

We had a similar quandry in Lynn Township from the County. The proposed emergency detoxification center and meth clinic was not the same as an alcholhic counseling treatment center, this back during the Ervin admin. There is a CCP case and appeal on it. NLV

Anonymous said...

KIng Stoff admits that 100 or a third of the inmates won't be delinquent payment fathers or DUI's. They will be addicticted crimminals getting treatment.
Dispite all the unicorn riding liberals pronouncements there are no real treatments for dead beat dads.
This is a poorly planned prison facility in a poor location and it was handled appropriately by Bethlehem Twp. The Stoff haze may blind O'Hare and Carpenter but thankfully not the Township.

Dave said...

The only one in a haze..is you sir! This is the correct way to re-hab first offenders and non-violent felons. You'll get used to it! It's called progress..ever heard of it?

Anonymous said...

Ah, dave; on a little place we call Earth progress is not defined by one mans stubborn desire to prove his relevence.
If you like the taste of Stoffa's kool-aide why not start the 'adopt a con' program on behalf of good old John.
I will take my crimminals locked up you can let them stay in your house down the hall, now we are both happy.

Anonymous said...

Wow. So much misunderstanding. The ZHB decision was not "preordained" by its solicitor, but was required as a matter of law. The traffic study and the site plan were required to me submitted with the application -not afterword - and they were not. End of inquiry. What you missed was that the Township solicitor distributed copies of the motion to dismiss and the accompanying case law to the lawyers for Atiyeh and the County, and to the ZHB solicitor, as the meeting commenced and they presumably read them promptly. When you complain that "Solicitor Larry Fox just happened to have a copy of an appellate decision concerning faulty zoning applications. That's just a little too much of a coincidence. "I'll be happy to supply a citation if you like," is what Fox told Preston.

Well, it wasn't too difficult for Fox to provide a citation, since the County and Atiyeh's lawyer was handed a copy of the appellant decision. as was Mr. Fox, at the commencement of the hearing.

Bernie O'Hare said...

If the motion was handed by Fox at the commencement of the hearing and not by the township, that does little to make assuage my concerns. Morover, Fox related he had discussed the case that afternoon w/ the ZHB chair. Was this an ex parte discussion? I am by nature very suspicious of back room dealings by government, and this one has a few of the indications. Also, why did Fox participate so heavily in the deliberations? That's really none of his business. On the other hand, I don't think the board itself was anything but independent.

Anonymous said...

Atiyeh and Stoffa back room meetings are OK. Hang in there Bethlehem Township, this is a manure truck disguised as a Ambulance .