Thursday, November 17, 2011

Judge Baratta: ZHB Made Right Call Against Atiyeh's Luxury Apartments

Despite a parade of five witnesses and 26 exhibits over two lengthy nights of testimony, Bethlehem zoners last October rejected Abe Atiyeh's request for a 102-unit "luxury" apartment complex on five acres located at the corner of Center Street & Dewberry Avenue. Immediately following a 2-1 vote in Bethlehem Library's Conference Room, an audience of about 25 opponents burst into applause. Atiyeh did have approval for an assisted living facility at the site, but argued that market has dried up, creating a hardship. According to Atiyeh himself, luxury apartments are "the only valid use on this site. We have a hardship here."

Representing Atiyeh, Allentown Attorney Bill Malkames appeal claiming a hardship.

But it appears there was another valid use after all. After being rejected by zoners, and despite filing an appeal, Atiyeh nevertheless filed plans for a 4-story, 125-bed, inpatient detox center and psychiatric center at the exact same site. A permitted use, Atiyeh needed no zoning approval. But Bethlehem Planners rejected Atiyeh's plan in August. At that time, Planner Steve Thode noted the inconsistency in Atiyeh's argument. "Now you're saying there is a permitted use which is viable. Which is it?" he asked.

Northampton County Judge Stephen Baratta has answered that question. In a ten-page Opinion released on November 16, there never was any unnecessary hardship to justify a luxury apartment complex. "The desire to maximize the value of its property, standing alone, with no other proof of hardship, does not establish the right to a use variance."

Judge Baratta's ruling affirms the Bethlehem Zoning Hearing Board's decision last year. But Ayiyeh will be back before zoners again on November 22, with a scaled-down plan for luxury apartments at Center & Dewberry.

39 comments:

Lighthouse said...

This property is certainly becoming a headache for Abe. Perhaps he should move to COB so Nemo can run for City Council to oppose the overdevelopment of Center St.

Joking aside, (not having seen the specifics of the new proposal)if I were COB I'd be interested in seeing what the new plan had to offer re potential changes in traffic and other concerns, as a residential use better fits the locale. Density is a concern however (I know "some" Atiyehs are opposed to increased traffic, and over-development), and the perception is that the detox center plan was the typical developer ploy of "see what I could try to do instead", but I'd still give it a fair look.

At the end of the day, though, from the MCall 11-9-11: "'The first chance I get to sell this property, I'll go bye-bye,' Atiyeh said Wednesday."....perhaps the cemetary should just keep filling in all the way to Center St.??

Anonymous said...

Here is an idea.
Extend the cemetery
Good business
People are dying to get in.

Anonymous said...

It is interesting. Many people thought that the cemetery owned the land and would just use it for plots.

I agree that there will be no slow down in that economy.

I have an idea for Bethlehem. Instead of subsidizing developers, casinos and musakfesters, why not help set this land aside for burial plots.

Zorn said...

What about a new EMT center?

Anonymous said...

Where is the "law is the law" guy on this? Cowering in shame I assume. I think he wanted the luxury apartments all along.

Anonymous said...

Now that the court decided this, I guess there is no stopping the hospital since its a permitted use. Serves those holier and richer than thou neighbors!

Anonymous said...

We will see. Law can be interperted very differently by different judges.

Anonymous said...

Here comes the Drug Hospital, they asked for a use allowed in the I zone and they are going to get it. What the hell is so bad with apartments across the street from other apartments? Come on people, you are just complaining to complain and the retired judge, stay the hell home or you will ruin the neighborhood you are trying to protect... talk about holier than though, this guy walks in like they should spread rose pettals under his feet so he does not have to hit the common ground, give me a break he is ONLY a retired Judge, he puts his pants on 1 leg at a time in the morning just like everybody else.

I like the apartments...

Anonymous said...

We will see. The law is in fact the law.

Anonymous said...

Baratta is a good friend of judge Moran, who opposed this project before zoning.are you really surprised by this.

Bernie O'Hare said...

Judge Baratta ruled against me on Gracedale. As much as I disagreed with his ruling, I never challenged his personal integrity. Had Abe felt that Baratta's friendship with Moran would keep him from being fair, he could have raised the issue and ask the bench to recuse itself. Pointing this out now, after the ruling, is sour grapes.

Anonymous said...

It's so funny to see that those who opposed the apartments will now have to deal with the unstoppable rehab clinic. Karma. Thank goodness for the law.

Anonymous said...

Drug rehab cannot proceed without special permission. Lack of action is leagal, therefore no drug rehab. The law is the law.

Anonymous said...

You apparently don't know crap about the law, can't read this decision, don't know PA Supreme Court precident, or a combination of the above. The law with which you are familiar is the one that governs your own fantasyland and not Bethlehem. Stop embarassing yourself.

Anonymous said...

As the staus quo stands, without special action the proposal is a non-allowed use. Therefore, inaction is in fact denying what is not allowed in its current form. The law is the law.

Anonymous said...

After this case, you can no longer argue that the ZB's decision on the clinic is anything but perfunctory for this proposal, AND to deny it would be to spit on the law. ├Łou're arguing technicalities that don't mean squat in this debate because you're too prideful that after 20 or so subsissions (including insults of Bernie--claiming he can't have a legal opinion because he's an alcoholic), you and the retired judge were WRONG, and this judge and Bernie and the PA Supremes are right. I'm sure like a broken record you'll continue to repeat your contrarian argument to try and save face, but to those of us paying attention, it just looks sad and pathetic.

Anonymous said...

The important point, whether it comes from a disbarred alcoholic, or a non-disbarred drunk, is meaningless if it does not comply with the law. While "special action" may in fact allow for a usage. The law does not prescribe that an action "must" take place. You may blame poorly written law but that is part of the point. As it stands the board may do nothing, in which case the appellant may pursue court action. The board may resist taking an action not required as per the law. Eventually it may reach a level of court action that the appellant no longer wishes to pursue the matter.

Today, on its face, a drunk rehab clinic is not an allowed use without "special exemption".

You should not make this personal or get so angry. That is a problem with alcoholics and it clouds their judgement. This is no ones fault. It is merely a case of, the law is the law.

Bernie O'Hare said...

Look, after deriding someone for personal attacks, there is no reason to mount one against me. It's no secret my law license is suspended and that I'm an alkie. It's also no secret that I went thru a rehab. i wrote about it, and believe good people oppose this bc they are fearful, not because there is any legitimate basis.

But having said that, I have taken no part in this "the law is the law" debate, and frankly do not know enough about zoning law to do so. I resent the implication that I have been doing so anonymously. Unlike you, if I have something to say, you'll see my name attached to it.

Anonymous said...

More sad and pathetic arguments that are not germane to whether the rehab should be allowed. With this ruling the developer should just move ahead and ignore the ZB. Let them sue and lose (the case and tax payer money) if they want.

Anonymous said...

Without a proper building permit, the Bethlehem police will halt any activity. The builder or anyone involved in not abiding by the police will face possible citation.

This is not legalized anarchy, the law is the law. You do not get to change it because you want to recover a financial loss.

Without an action by the zoning board this project may not proceed. If the appellant wishes to pursue legal action he or she may do so. The board and or the city is not obligated to take any special action above and beyond the written law to make the developer financially whole. The burden is on the developer to make the case for a special action. Then the board may decide if an action is warranted.

The law is the law.

Anonymous said...

Excellent explanation. Attiyah wants to do another end run around zoning laws.

Anonymous said...

"While "special action" may in fact allow for a usage. The law does not prescribe that an action "must" take place. You may blame poorly written law but that is part of the point. As it stands the board may do nothing, in which case the appellant may pursue court action. The board may resist taking an action not required as per the law. Eventually it may reach a level of court action that the appellant no longer wishes to pursue the matter."

As was stated in previous posts on this matter and admitted to above, this is a political strategy that disrespects the spirit of the law. It is meant to put another timely and expensive lawsuit hurdle in front of the developer, not because it has merit but because of the loophole exploited by the opposers above. This strategy DOES disrespect the law and if it went that far, everyone knows the judge would admonish the ZB for wasting everyone's time and money (including taxpayers').

Anonymous said...

No one can force "special action" without just cause. No action is in fact abiding by law. Special action is action above and beyond the standing statute. The law was not written to protect the financial interests of developers or to make whole their bad investments. The law was written to protect all the citizens.

The law is the law.

Anonymous said...

Again, it's the PA Supremes vs. Anonymous "law is the law." Now I'm the broken record. I'm done here. Have fun posting to Bernie. Be nice.

Anonymous said...

As of now no court has "mandated" special action by the zoning board to hold harmless a developer.
The board has in fact abided by the law as delineated by the court. No court has forced any contrary action.

If the board does not grant a "special exemption" to the developer, he is entitled to seek remedy though the courts. The board and city may likewise continue to assert their right to make decisions as per the law and not take action "above and beyond", what is required.

There is no other argument really. Law was not written nor has it been affirmed by any ruling, demanding an action not required of the public board.

To think otherwise is to misunderstand the legal process and get into the realm of the supernatural 'spirit' of the law as opposed to the "letter' of the law.

Ultimately, as always, the law is the law!

Anonymous said...

You've got to take the law is the law guy with a grain of salt. I just checked my memory and indeed, s/he was the one arguing that the clinic didn't meet the standard for the special exception. Perhaps if they admitted they were wrong on that point their other arguments would mean something. But alas what we get from him/her instead is that this judge is wrong. The problem is that this judge agrees with the Pennsylvania Supreme Court.

Anonymous said...

The real problem(for developers) is that the city has written law and without special exemption, the law is in fact the law.

It means nothing more to the law if you are poor or a rich developer. There is no ruling from the Supreme Court on the Bethlehem law.

The law is the law.

Anonymous said...

Tell it to the Judge(s)! They've interpreted "Special Exception." Means the same in Bethlehem or Latrobe.

Stalling is a political strategy, not one that respects the law.

Does anyone really anticipate the solicitor successfully defending a challenge if the ZB doesn't allow the rehab project?

Anonymous said...

The zoning board is not required to take any action over and above their specified duties as per the law. City council is also so protected from wealthy landowners trying to subvert the law.
In the end a "special exemption" is just that, a special action that may or may not be initiated by the governing body.

The law is blind to privilege and money, it is the same for all. The law, is the law.

Anonymous said...

"Does anyone really anticipate the solicitor successfully defending a challenge if the ZB doesn't allow the rehab project?"

Good question.

Anonymous said...

It's a rhetorical question. The answer is, "No."
Law is the law suggests above that the developer sue for relief. But, if the township doesn't take up and allow the use, Bethlehem will lose (at taxpayer expense).
As explained, using their own justifications, Law is the Law and the retired judge hope the burden is too lengthy or costly for the developer to pursue--not that the courts won't interpret the law in his favor (and according to precedent) in the end.

Anonymous said...

There is a reason justice is blind. In the case of very wealthy individuals who feel they can outspend others the law provides relief. In this case of the Bethlehem dispute the law is clear. As to interpertation, it depends on who you talk too.
If the zb does it's job it is not required to take any "special action", since zoning exists for a reason the board is acting lawfully by not taking measures over and above what is legally mandated.

The city has a legal right to have all adhere to proper zoning regulations.

It is not the role of the city to make whole land specualtors who are unable to develop land as per their desires. Nor should the city bend to threats of endless and costly lawsuits. The role of the city in such a case is to defend the interests of its citizens.

The law, is the law.

Anonymous said...

This is the rationalization for wasting taxpayer money on a political play?

'It depends on who you talk to' ??
Talk to the PA Supreme Court for interpretation.

As despised as you sound at the developer, You'll learn what the law being blind really means if he takes your challenge and files suit.

Anonymous said...

The board has ruled. The request is for "special action" by the board. The law does not require special action. The threat has been made to the city that the developer will sue. That is his right, as it is the right of the city to maintain its position that it is acting lawfully in executing the "letter" of the law.

If a "developer" or anyone else wishes to try and waste taxpayer money on frivolous lawsuits in order to get what they want, that is their right. The city can likewise, spend taxpayer money to protect the citizen against such frivolous lawsuits, that is what citizens expect.

Wealth in and of itself is not evil, how one uses their wealth to advance their cause on the backs of the people may be.

At no time has the zb or the city acted improperly. The zb is correct in its action and inaction on the request for "special action".

All of this brings us back to the inevitable point that enrages those who prefer to intimidate and buy their justice.

The law, is the law.

Anonymous said...

Let's get this straight and on the record. Are you saying that you believe Bethlehem would prevail in said lawsuit?

Anonymous said...

The only record that counts is that which is the ultimate truth. The only belief that counts is in God the almighty.

In the realm of human existence in America we are a nation of laws, not beliefs. When it comes to men, I put my faith in law, not belief. In a nation of laws we have prescribed bodies that exist to ensure the fair and unbiased application and enforcement of said laws.

In the case of the zb and the city, they are required to abide by law as are individuals, without regard to status or personal wealth.

At this time the law is clear and the responsibility of the affected bodies is even clearer. In the law is clarity. "Special Actions, are the less clear aspects of the application of law, dependent on actions above and beyond the requirements of said bodies. That in fact is the law.


The law, is the law.

Anonymous said...

I didn't think so.
Fortunately, in America, what the law means is interpreted by the court, not us anonymous commenters.
Game Over.

Anonymous said...

The people benefit from the American legal system. No one can be forced to break the law.
In the case of the zb and Bethlehem their duties are clearly enumerated. It is their decision whether or not to take a "special action". At this point in time they have fulfilled their mandate as per the law.

The citizenry expect, nay demand the city in which they reside ensure those who wish to conduct business within its borders follow the law. If a builder wants to change the law or demands a "special exception" to use land in a way not specified, they are within their responsibilities and the law to decide what is best for the people. As always, the law is the law.

Anonymous said...

Again, you disagree with the courts on what a "special exception" is. There's a credibility gap here.
Game Over. See above.