Last September, Judge Edward Smith ruled that the Zoning Hearing Board was correct in allowing the expansion, but remanded the matter for more testimony about "the use of the property and the impact of that use on the surrounding neighborhood."
After two nights of emotional testimony in November, the Zoning Hearing Board approved the proposed expansion again, but with strict limitations: use of the warehouse for wholesale distribution is banned; idling by any vehicles or storage of any buses or trucks not already owned by Elias is prohibited; no refrigerated trucks may run on the property; compressors must face Linden Street, away from residences; buffering and landscaping is required; no expansion in hours of operation is permitted; no additional retail space is permitted; no future expansions of the warehouse will be permitted; and no trash may be picked up before 8 AM.
As they did before, a group of Bethlehem residents appealed the approval to Northampton County Court. Arguments scheduled in both April and May were continued because there was no transcript, There was a dispute about a high, $4 per page, fee being charged by stenographer Cliff Lathrop to appellants Al Bernotas, Walter Ward and Guishu (Sue) Fang. But something else was going on, too.
A transcript for the November 10 hearing is missing.
Bethlehem zoners had been told that the computer diskette of that hearing was corrupted, but Lathrop told them he would use the "paper tape" on the steno machine to prepare the transcript. After repeated inquiries, Lathrop finally told the Zoning Hearing Board, after their June meeting, that he had lost both the paper tape and an audio recording, and was unable to retrieve data from the diskette used at that hearing.
After that, zoners had the disk analyzed by a computer expert. It's blank.
As a result, zoners will be forced to redo the lost hearing and will revote on the proposed expansion.
In a written statement, the Zoning Hearing Board apologizes. "Ultimately, it is the Board’s responsibility to preserve the record. We are deeply embarrassed and have taken affirmative measures, along with the City of Bethlehem, to make certain that this situation never happens again. This includes hiring a new stenographer with modernized recording devices and multiple levels of redundancy. We sincerely regret the inconvenience that this has caused to all of the parties involved and will do everything humanly possible to expedite this matter."
In his eleven years as ZHB Solicitor, Mickey Thompson states he's never seen anything like this. Nor can he find any case law that provides guidance when only a portion of a transcript is unavailable.
Al Benotas, who is also a Republican candidate for City Council, is dubious. "Seems like Elias is getting more than two bites of this apple," he states. "Strange happenings in Bethlehem. Please stay aware."
This is bad news for Elias, too. With no firm approval in hand, every step they take is at their own risk.
But the biggest loser is the embattled Bethlehem Zoning Hearing Board, which has been under attack over this matter. It appears to be the never-ending case.
As they did before, a group of Bethlehem residents appealed the approval to Northampton County Court. Arguments scheduled in both April and May were continued because there was no transcript, There was a dispute about a high, $4 per page, fee being charged by stenographer Cliff Lathrop to appellants Al Bernotas, Walter Ward and Guishu (Sue) Fang. But something else was going on, too.
A transcript for the November 10 hearing is missing.
Bethlehem zoners had been told that the computer diskette of that hearing was corrupted, but Lathrop told them he would use the "paper tape" on the steno machine to prepare the transcript. After repeated inquiries, Lathrop finally told the Zoning Hearing Board, after their June meeting, that he had lost both the paper tape and an audio recording, and was unable to retrieve data from the diskette used at that hearing.
After that, zoners had the disk analyzed by a computer expert. It's blank.
As a result, zoners will be forced to redo the lost hearing and will revote on the proposed expansion.
In a written statement, the Zoning Hearing Board apologizes. "Ultimately, it is the Board’s responsibility to preserve the record. We are deeply embarrassed and have taken affirmative measures, along with the City of Bethlehem, to make certain that this situation never happens again. This includes hiring a new stenographer with modernized recording devices and multiple levels of redundancy. We sincerely regret the inconvenience that this has caused to all of the parties involved and will do everything humanly possible to expedite this matter."
In his eleven years as ZHB Solicitor, Mickey Thompson states he's never seen anything like this. Nor can he find any case law that provides guidance when only a portion of a transcript is unavailable.
Al Benotas, who is also a Republican candidate for City Council, is dubious. "Seems like Elias is getting more than two bites of this apple," he states. "Strange happenings in Bethlehem. Please stay aware."
This is bad news for Elias, too. With no firm approval in hand, every step they take is at their own risk.
But the biggest loser is the embattled Bethlehem Zoning Hearing Board, which has been under attack over this matter. It appears to be the never-ending case.
44 comments:
just another example of the corrupt administration of johnny casino.
where's the tape, where's the money, where's the leadership. the joke is on the fools that support this including the union loving, asleep at the wheel council. note that all zoning board members are appointees of either cunningham or callahan can you spell this STINKS TO HIGK HEAVEN?
No you can't spell - but it still stinks. Most corrupt administration of the City since the Moravian founded the place.
This is just as embarrassing as the City's screw up on the gay rights bill. Are the mayor's puppets stupid, inept or just lazy on how they manipulate the system for their own good?
Ok, let me get it right...the stenographer is unable to produce a transcript of the 11/2010 zoning hearing, and the zoning board must re-convene all over again?
Who pays the the legal bill for this mistake?
I'll never agree with 90 percent of zoning board decisions because it is difficult to see their reasoning on most issues. However that aside.....did you ever buy some of the so called fresh produce at the Alias Market. My wife and I bought there on several occasions. We don't buy there anymore because the produce is Questionable. Rotten Grapes, soggy strawberries, sour and way past fresh cherries, and the list goes on. They sell garbage for produce. For that reason I hope they lose the zoning bill. I live in Nazareth so it doesn't affect me. Sorry, I felt compelled to say that just like you may feel compelled to tank my comments. I understand.
Well Anon 7:09, I disagree with you completely. Our family stoped buying at Giant and Wegmans because of high prices. Elias has same produce, same quality, even better selection of certain items and I've never had any problem. Perhaps the problem is you either can pick god produce.
Due to the fact the ZHB erred and conveniently lost the transcript which is needed for the appeal, will they be paying for all the lawyers fees for the retake of the meeting? Only right for both parties in this case because I am sure it has cost the residents a lot of money to appeal twice in this case. The ZHB has erred from the beginning in this case when they omitted the articles in the original appeal letter that was sent to the residents. If that hadn't have happened it is very possible that the residents would have been more prepared for the first meeting and/or had their lawyer there and there would have been a different outcome. ZHB members are just puppets for Mickey Thompson who is best friends with all the Elias's is not objective in this case and neither should be removed.
CORRECTION to "Anon 8:20" - at the end it should read:
Mickey Thompson who is best friends with all the Elias's is not objective in this case and SHOULD be removed.
He is an Officer for one of the largest Development/construction companies in the area and that is a conflict of interest because he is ALWAYS on the developers side and he should also let the ZHB members run the meeting and keep his mouth except when asked to speak by the ZHB members. He should take lessons from Chris Spadoni and learn from the City Council meetings and speak only when spoken to at the meetings when there is a legal question.
Like I said, he is the "PUPPETEER" and the ZHB are his "PUPPETS". Of course, the MAIN puppeteer is Johnny Casino!
APPELLANTS SHOULD WIN BY DEFAULT!!!
This is bull....
Actually, Mickey Thompson does not know the Elias family at all. He was raised in Maryland, did not come to Bethlehem until his college years and has never even shopped there. So pretty much everything you say is garbage.
As for the appropriate remedy, the ZHB has consulted with the parties and I believe (I might be mistaken) that all attorneys agree that the solution is a repeat of the testimony from the day that is missing, plus a re-vote.
Giving the appellants exactly what they want as a remedy would be unfair to Elias, who has rights, too.
"Who pays the the legal bill for this mistake?"
When I spoke to ZHB chair Gus Loupos about this, he took full responsibility for what happened, saying the buck stops with him. He refused to condemn anyone else.
This was an error by the court reporter, who compounded his mistake by not telling anyone until late June, probably hoping he could find it. I suppose the court reporter could be forced to pay, but doubt he is covered for this kind of liability.
Re 8:20 am
The zoning board has nothing to do with sending out articles in the original letters that were sent to the residents. The letters are to nitify you of the appeal: and if they are interested in the case, all they need to do is go to city hall and can get all the info regarding the case as was submitted by the applicants. From there they can decide if they want to appear or have their atty appear as well to either object or concur with what the aplicant is appealing.
The leadership is there. I have watched the video's, I have seen the press releases and how many governments or zoning boards have you ever seen step up to the plate and say they were wrong when clearly it was the stenographer? I respect the fact that they are taking ownership, most officials do not. Give them that credit at least. I would re-elect all of them again they are working with a mistake that happened not of their making. This is another attempt at the media needing something to right about today and over dramatizing situation that can and will be rectified.
Renee,
It would be very difficult for you to re-elect them as they were not elected in the first place. They are appointed by the Mayor with the consent of Council. But I'm sure your heart is in the right place
Thanks Isa and I want to correct my statement I meant Write instead of right, I just got angry. But the Mayor and the rest were elected or appointed and I think they did a great job. I have looked up Mickey Thompson whom is under attack. He is a homeowner and has two sons in Bethlehem and I am sure every decision he makes his family will feel personally; what better representation could you ask for?
I love zoning hearings. Sometimes, I read the legal notices, and just go to hang out...its my new pass-time. I never went to one in Bethlehem though. I'll have to put this one on my calendar.
Trish
To: 1:25 PM
The only equitable thing to do in this case is to do what Mr. Gus Loupos, chairman of the Zoning Hearing Board, says: make a decision based upon the facts and the evidence, and obey the law.
The public notice for the Elias appeal contained no articles from which variances were requested. This was contrary to the detail provided in every public notice prior to the appeal of Elias Farmers Market, and contrary to the detail provided in every public notice since. This violates the spirit of the law, and quite possibly the law itself. Was this just an inadvertant error, or was it done purposely?
The market had years to prepare their appeal. They started this process in 2006. The appeal hearing was in 2009. The residents had 10 days to get their information together. The chairman of the ZHB, Gus Loupos, refused a request to allow a continance. He insisted on an instant decision. Was this just an oversight, or was it done purposely?
The law states that a nonconforming use SHALL be limited to a 50% expansion over the life of the nonconforming use. It does not say MAY, it says SHALL.
In 1970, the main building was less than 5,700 sqft. A 50% expansion would allow it to go to approximately 8,500 sqft, not 19,279 sqft. Currently, the building is 11,067 sqft, 2,500+ sqft over the legal limit. Despite these facts, and in the opinion of the resident appellants, the Zoning Hearing Board exceeded their discretion, and committed an error of law, when it granted the dimensional variances. Was this just an inadvertant error, or was it done purposely?
The original zoning officer either ignored these facts, or was ignorant of them, or for some inexplicable reason, made a conscious decision to avoid the truth. Has the Zoning Hearing Board and their stalwart attorney also consciously avoided the truth, or is this just another inadvertant error, or was it done purposely?
The Zoning Hearing Board Stenographer seems to have totally misplaced, destroyed, or corrupted all records from which he could have created a transcript for the November 10, 2010 remand hearing. Was this just an inadvertant error, or was it done purposely?
This is a strange case of one inadvertant error after another, or is this sloppiness done on purpose? Either excuse is totally unacceptable. And the second excuse is illegal.
This case will not be settled in this blog. But, I thought I would just shed a little light on the subject.
to: Re: 8:20 @1:25pm
You are 100% wrong about the articles not given to the neighbors in the letters sent out. The only one in 6 years who didn't get them in their letter was the Elias project. See example below and check them out for yourself Mr or Ms know-it-all:
ALL APPLICANTS MUST APPEAR AT THE MEETING
1. 2017 Stefko Boulevard
Appeal of applicant Anna DiConstanzo for a change in operating hours at a day care center which was granted a Special Exception to operate in December 2008. [Articles 1312.02(a)(1), 1308.02(c)(1), 1306.02(c)(2) and 1325.07].
Record Lot – 10,400 SF CG – General Commercial District
Cliff Lathrop is an independent registered court reporter and would not risk his professional reputation or his business to purposely lose a transcript. To suggest that this is anything more than an unfortunate error is scurrilous
The original court date for the appeal was suppose to be in April. ZHB was suppose to submit the transcripts to the Northampton Court for that date. They had from November 30th until at least March to get it to the court. How come the missing tape wasn't found out until June 22nd meeting? How come Elias's lawyer didn't request the transcripts? Also, how come in December they had the Nov. 29th transcript in hard copy in the Zoning Officer's file @ City Hall? Wouldn't you transcribe the Nov. 10th meeting at the same time or before the Nov. 29th meeting? Another thing, how did Mickey Thompson write his brief in January if he didn't have both the transcripts? Something just doesn't add up.
Al Bernatos: u a re just showing what kind of city councilman you would be, no facts, no substance, no sense of reason and absolutely unable to grasp any situation and understand what it is you are reading. I hope you keep posting... You make a fool out of yourself every time and your true colors come out more and more.
"how many governments or zoning boards have you ever seen step up to the plate and say they were wrong when clearly it was the stenographer"
Very well said. When I spoke with Gus Loupos yesterday, he refused to point the finger at anyone but himself. Very classy. ZHB members and I may not see eye to eye on everything, but I have nothing but the highest respect for Loupos, Mickey Thompson and the other board members.
I also feel very bad for Clif. He is a very nice and diligent person who made a mistake and probably was afraid to admit it.
Same tired argument from al... It didn't work the last 5 times so why should it work now???
Oh that's right if you tell a lie often enough to some people it becomes the truth... Keep it up al, you have at least 3 people buying your bullshit
"I love zoning hearings. Sometimes, I read the legal notices, and just go to hang out..."
ditto. They are very interesting I sometimes write four different stories from one hearing.
"This case will not be settled in this blog."
You got that right, Al. If it were to be decided here, it would be in litigation for 1,000 years.
Folks, Jim Fiorentino is the new Chair of the Planning Comm'n. He and I also went to grade school together, although he denies it.
How come Bernie you always give lectures for people who bash people on here and yet you let them say what they want about Al Bernatos? Your showing your partiality for the ZHB and all your buddies in City Hall which is what is wrong with Bethlehem government. I have a feeling from the meetings I have attended that Al is the one who attends City Council meetings and says the truth for the way it is (Dana Grubb too) and not the way the Mayor or most of City Council say it, except for DeGiacinto and Dolan. Bernie, stop the personal attacks and mud-slinging - just isn't right!!!
I allow a certain amount of bashing once people are in the public eye, from Al to Karen Dolan to Angle to Stoffa to Willie Reynolds. I delete comments that go too far. For example, anti-Semitic or sexist remarks will be deleted. Blatantly false comments will be deleted. Repeated use of certain words like "teabagger," which is offensive to some, will be deleted.
As far as the ZHB is concerned, I have allowed attacks directed at both their competence and their honesty. I do not agree with those attacks.
As for Al, I will allow attacks that accuse him of having no substance, etc. I do not agree with those attacks, either.
The more public the person, the more I will allow some bashing to go on. And I do not consider those personal attacks.
As for my partiality, I freely admit to a bias against Callahan because I think he is largely responsible for Bethlehem's financial morasse. I believe Dennis Reichard should be fired, nice guy or not. I do not consider these personal attacks.
I have a healthy suspicion of all levels of government. But generally speaking, I believe Bethlehem City Council tries to get it right, perhaps more than other municipal governments. I respect their members.
I also respect the 3 Rs running for three seats. They have very good ideas, too, are very committed, and any one of them would be an excellent addition to Council.
Thanks Bernie for clearing up the attacks on Bernatos. The sorry thing about it all is Al really knows what he is talking about regarding the Elias Market. Too bad other people who say things don't do their research. I guess its just easier to say he doesn't know what he's talking about. Oh well, thanks again :)
It's easier to say because it's true, HE DOES NOT KNOW WHAT HE IS TALKING ABOUT, but he believes his interpretation of the events, hell he isn't even a Bethlehemite he is a Carpet Bagger... Move back to the gated community you came from Al and stop telling Lies
to 1:31pm
Tell us exactly what Bernotas said in his blog that you say "is not true" (lies according to you). Bernie knows the facts.... come on big shot, what isn't true???? Al's got all the records to back up his story! Do you????
I'm reading these comments and I'm thinking, "Lies" you want to talk about lies. The former Zoning Officer JLZ admitted under oath he made a big mistake with the size of the Elias market!!!! Was it by accident or on purpose. Was it truth or lies????
TO Jim Fiorentino
If it was just a simple unfortunate error, why did ZHB fire him? So many little errors combined can make a big error, right?
to 3:51
I called it an unfortunate error but not a simple one. It was a serious mistake and the Board was justified in hiring a reporter with a modern recording system.
How about some perspective? This is a transcript not an irreplaceable piece of evidence.
When politicians are attacked in this blog they can not complain as they willingly entered the public world when they ran for office. The Court reporter was not a part of the administration and to suggest that this was anything more than a mistake is a low blow.
The more I think about the more I wonder why his name was even necessary in the original piece. The Express article i read doesn't name him. Bernie?
Why do u keep calling him Johnny casino? You know the Majority of people in the city wanted the casino... I don't understand, is it you are just a hater?
And this Al b. Guy, what's up with his long dissertations ?
Didn't the courts say he was wrong every time he took it there?
I am missing something here. You people are really a bunch of haters.
Jim, if you'd like to start your own blog and report on things the way you want, be my guest. I noticed that the Express Times did not name Lathrop, and I did. As far as I am concerned, his identity is very much a part of the story. As you yourself recognize, this was a very serious error, and Clif should have been more upfront. Clif is also paid by the public for his services. I named him and think I should have named him. It's part of who, what, where, when and why. If we start protecting people instead of telling the story, I think we do a disservice to the public.
For the record:
THIS IS JUST MY PERSONAL OPINION:
This transcript that you all make light of IS an irreplaceable piece of evidence (that the Northampton Appeals Court wants for the appeal that was filed) to some nobodies but you wouldn't know that because you are a big somebody in the legal world and can dismiss it all because your lawyer fees wouldn't amount to what those people are paying! If this small Roadside Farmer's Market Stand (that's a laugh) had a bigger effect on your two big houses (garbage, noise, traffic, diesel fuel pollution, woken up at 1am in the morning, etc.) and you didn't have the means to fight appeals on your own, you might be able to be more objectionable. People have been misled and put off by this nice stenographer for about 7 months now (according to ZHB) and it has cost citizens who care about the neighborhood (not you) a lot of money to lawyers (cha ching you like that) because of it and everything was put on hold because of those misleading facts. The ZHB was aware of the appeal since 12/2010 and should have known about this lost transcript back in at least January not June 22nd, 2011.
This guy also charged the City of Bethlehem residents $4.00 a page and that is an outragous rate when Northampton County transcripts are only $1.50/page and he also only charges the City of Beth $1.00/page. Once its transcribed, its done so why charge a ridiculous $4.00 to residents and why can't the residents obtain it from the "Right to Know" law anyway once the city has had it done and it is part of the record? The transcript fees range from $1 to $2 per page, according to the Rules of Judicial Administration.
Who in our City Hall signed that contract with him? Give me a break!!!! Did the ZHB ever think about the residents? I doubt it.
BTW, you can't do a rewind and redo that Nov. 10th meeting again - that night is gone forever.....
I sometimes call Mayor Callahan Johnny Casino bc I think it's funny.you satiate that a majority of Bethlehem supported the casino,so as nicknames go, it's relatively benign.
The appeal by the neighbors wasn't filed until February 2011. The Board wasn't required to order the transcript until that time.
Even if they didn't file the appeal until Feb. 2011, why did it take until June 22nd for anyone to find out that 4 different viable ways of transcribing the Nov 10th meeting was either corrupted and/or missing! How can this happen?
There were three methods, by my count. Paper tape, computer disk and audio recording.
Lathrop told zoners that the disk was corrupted. He failed to tell them that the audio and paper tape were also missing. He did not reveal until after the 6/22 meeting that he had simply lost them. Before that, they had been hounding him for a transcript, and were put off.
So that's how this can happen. It was a serious mistake, compounded by stonewalling the board.
Bernie re: This includes hiring a new stenographer with modernized recording devices and multiple levels of redundancy.
I heard that Cliff Lathrop has not been let go! Did ZHB lie to you or did you get it wrong? Where is their written statement?
I have spoken to several board members who read my account and have been told me it is accurate. The language you have cited comes verbatim from their news release. It's possible they could have changed their minds, but I have not heard that from anyone.
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