Small Business Pitted Against Residents in Bethlehem Zoning Dispute

When you think of Elias Farmers Market, located at 3131 Linden Street, the thought that comes to most people's minds is fresh produce at reasonable prices. But instead of tossing salad, four different lawyers tossed legal terms like "use variance," "dimensional variance," and different legal precedents during oral arguments in Northampton County Court last week. They were arguing about Elias' proposed expansion, previously approved by Bethlehem's Zoning Hearing Board in August.

Beneath all this legal parlance, Judge Edward Smith is being asked to weigh a busy produce market's desire to operate more efficiently and safely against Bethlehem homeowners concerned about the impact of a business in their backyard. Can they peacefully co-exist? Judge Smith, during the course of lengthy oral arguments, suggested several times that neighbors and Elias sit down and talk to each other. "It seems neighbors and owners have different views of what is going on," remarked Judge Smith.

Bethlehem residents Al Bernotas, Walter Ward and Guishu Fang have appealed the Bethlehem ZHB expansion approval. They, along with other expansion opponents, occupied two rows of the courtroom. On the opposite side sat several members of Bethlehem's beleaguered Zoning Hearing Board, including Chairman Gus Loupos, along with several members of the Elias family.

Ms. Fang, whose bedroom is located next to this produce market's dumpsters, previously told zoners she is awakened each morning by the alluring aroma of decaying produce. She is also disturbed by the fumes and dust of delivery trucks, and is concerned conditions will only worsen if Elias expands operations.

Pat Ward, Walter's wife, told The Bethlehem Press that this expansion is really being sought so that Elias can build a distribution center, pointing to its jump from 12 to 25 feet and three loading docks instead of just one. "They want a distribution center, and that's not allowed in a residential neighborhood. They should go up the road for that," she said, referring to the industrial park. Elias does market Middle Eastern pastries online, both to the Lehigh Valley and other U.S. regions.

Attorney David Backenstoe, speaking on behalf of these vocal expansion opponents, stressed the "horrific impact" that would be caused by a proposed 25' high building, nearly twice its current height. He also insisted this expansion would actually increase the size of the business by 200%, well beyond the 50% currently permitted. Instead of using one loading dock, there will be three. He also told Judge Smith that the two outbuildings used as a basis for computing the proposed expansion were never really used as part of the produce business. One had been rented out to a landscaper and the other had burned down.

Attorney Chris Spadoni, there at the direction of City Council, stressed this is in the "most restricted residential zoning" in Bethlehem. He argued that neither City Council nor neighbors received adequate notice of the zoning hearing, and complained that Elias actually wants to expand its business 300%.

ZHB Solicitor Mickey Thompson argued that numerous neighbors were given the chance to make their concerns known during a three hour hearing, but because they had no representation at that time, they tended to ask irrelevant questions about lottery ticket sales or whether Elias sells meat. Thompson's remarks infuriated expansion opponents, who began scribbling notes to their attorney and signaling a tipstaff.

Thompson also argued that Elias has no desire to increase the size of his business, but wants this expansion only to make the area safer. When questioned by Judge Smith about the ZHB's duty to analyze the impact of this expansion on the neighborhood, Thompson noted that they did impose conditions limiting when trash could be removed and insisting on less debris.

Attorney Joseph Piperato, representing Elias, insisted all they want to do is come out of the 40's and 50's, and that the expansion will help create a safe and efficient environment. He explained products must currently be unloaded by hand. He denies any desire to sell more products. Conceding that the market is located in a residential neighborhood, Piperato noted it is "on the fringe" and located next to Linden Street, a busy state road. He described what was occurring as part of the natural expansion that happens in business. Judge Smith stated a natural expansion is a mule path that becomes a dirt road and later, a larger road for more traffic.

"This is the same," said Piperato.

"Is it?" asked Judge Smith.

After the hearing, expansion opponents disputed a claim in the Elias brief, prepared by Attorney Piperato, that "the loading dock is so unsafe that it is not used by [Elias]." Bethlehem resident Yong Hao countered that with a video, shot the day before the hearing, showing the loading dock in operation. That video has been posted to Youtube.

The Elias' are currently out of the country, but Najwa Azar, speaking for the family, disputed many of the claims raised at last week's hearing. She denied any intention to turn the market into a distribution center. "We are not planning on storing stuff for our Allentown store," she said, adding, "We have talked to our neighbors many times. We invite them to walk inside our store and see how we work every day."

Ms. Azwar acknowledged they do continue to use the loading dock. "It is unsafe. But we use it. We have no choice," she admitted. She explained that the loading dock is located at the end of an incline, where water pools and ices up in the winter, making conditions unsafe. Five workers are required to unload one truck, holding skids "so nothing slides on us." Even with water pumps, there is always an accumulation. "We want to enclose and cover the ramp so that neighbors do not see or hear us," she noted. She added that the extra loading docks are there in case two trucks arrive at the same time.

"We are trying our best to make this building look presentable and clean. We can't do much until we improve operations," concluded Ms. Azwar.

Not all neighbors oppose this expansion. Next door neighbor Kathy Capuano, who resides at 3139 Linden Street, supports the Elias expansion. "They are nice people trying to do a good thing. I don't understand how so many neighbors can be against this. It's a shame," she stated.

Ms. Capuano worked at the market under previous previous owners and confirmed that the loading dock was unsafe even then. "What they are trying to do would only be an improvement," added Ms. Capuano.

Ironically, the Farmers Market seeking expansion is actually much smaller than it was in 1929. That's when Ms. Capuano's grand-father, John Jamon, bought an 18 acre orchard that sold apples, cherries, peaches, plums, and pears that were locally grown. His market, called Jamon Orchards, was sold to the Pichel family after his death in 1978. In 2006, the Elias family took title, minus the orchard. Many of the homes surrounding the market were originally part of that orchard.

Judge Smith gave parties a week to supplement their briefs, after which he will weigh the competing claims of a business against residents.