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Tuesday, October 09, 2012

Can Judge Smith Break Legal Logjam at Center & Dewberry?

Judge Edward Smith is a U.S. Navy Captain
Dewberry Avenue and Center Street in Bethlehem, located near Bethlehem Catholic High School, is gridlocked. But it's not the traffic. Developer Abe Atiyeh, Bethlehem zoning and planning officials and numerous angry residents have created legal traffic jams over Atiyeh's seemingly Quixotic quest to establish a drug and alcohol treatment center somewhere ... anywhere ... in that vicinity. Northampton County Judges are now involved. Though they have the power to send someone to his death, it's by no means clear that they can resolve the legal war between the forces of Abe Atiyeh and Bethlehem. But Judge Edward Smith is trying, with an October 5 Order aimed at breaking at least a part of this legal logjam.

This all started when Atiyeh, who purchased 5-acres at the southeast corner of this infamous intersection, received permission in 2007 for an assisted living center on lands set aside for a cemetery. But when he was unable to market it, he asked zoners to let him build luxury apartments instead. Denied. He asked again. Denied again.

At the northeast corner, site of a vacant home, Atiyeh proposed relocating his business offices. Denied. So he proposed a drug and alcohol rehab, a la the Betty Ford Treatment Center. Denied. Just east of that, he proposed converting the vacant Calvary Baptist Church into a drug and alcohol rehab. Denied.

Back at the southeast center, Atiyeh decided to develop those 5 acres with Brookside Drug, Alcohol and Psychiatric Hospital, which unlike his proposed rehabs, is a lockdown facility. More importantly, it's a permitted use. He needed no approval from the Zoning Hearing Board. But his plans were tossed by the Planning Commission at a hearing attended by approximately 80 people, most of them opposed.

"I haven't heard a basis for a denial. Not a single one," said an astonished Blake Marles, a Bethlehem attorney representing Atiyeh.

Judge Smith agreed. He concluded that the Planning Commission "improperly invaded the province of the City of Bethlehem Zoning Hearing Board by making a determination of whether the use is a permitted use ... ." So he's sent the case back, but not to the Planning Commission. Instead, it's going to the Zoning Hearing Board, which has never heard the matter.

Zoners already have two special meetings scheduled on October 16 and October 18 to deal exclusively with other Atiyeh zoning applications. They're going to have to schedule a third.

So far, there is no light at the end of this legal tunnel. But Judge Smith also happens to be a Captain in the U.S. Navy.

Maybe he can order a missile strike.
Judge Edward Smith Remands a Planning Comm's Decision ... to Zoners


Anonymous said...

How about, it is not zoned for that. The Rajah of Rezoning, has a small problem with the rules. They don't apply to him.

Anonymous said...

Maybe the Captain can send the zoning terrorist to Gitmo?

Anonymous said...

"He needed no approval from the Zoning Hearing Board. But his plans were tossed by the Planning Commission at a hearing attended by approximately 80 people, most of them opposed."

What was the Zoning Officer's decision on the use, if there was one? The Judge is right on this. If the Zoning Officer agreed that the use was permitted, the Planning Commission can not over rule. If the Zoning Officer opined that the use was in reality not allowed, then Atiyeh could appeal to the Zoning Board for a decision. Bernie, you should find out this bit of information. It is key in this case. Not sure why it is not being reported?

Al Bernotas said...

If a legitimate hospital came into the area there would be no reason not to issue a permit. But when a conniving pariah comes into the area, who will lie about building a "hospital," your first line of defense is the zoning officer. If the zoning officer gets snookered, the whole city suffers, not just the neighborhood.

Bernie O'Hare said...

Al, Although I completely disagree with your personal attack, I applaud you for being willing to put your name out there and take personal responsibility for what you have written.

The notion of attacking the use is something that did not come up at the Planning Comm'n. That argument was not made until AFTER Atiyeh had filed his appeal, and was made only bc the Planning Comm'n knew it had a loser.

It is clearly not a rehab. These folks are going to be locked down, for one thing.

Ironically, Bethlehem neighbors are going to get something a lot more scary than a rehab or luxury apartments bc it is a permitted use. All of the concerns about the rehab, which I considered an understandable but fearful over-reaction, will be well-founded here. But you will not be able to stop this use. It is permitted.

Anonymous said...

Atiyeh iscrazy like a fox as he may have just snookered everyone.

Anonymous said...

These neighbors are being ridiculous..Abe, however, should have thought twice before purchasing this land..Eventually, if it is a permitted use, he'll win..Just that simple...That's why it's good to get a decision outside of the local boards..In the end, they'll vote with the neighbors no matter how unreasonable they might be.

Anonymous said...

This was a GROSS error from the bench, This is a use that is ALLOWED BY RIGHT in that district. the error was that of the planning commission who said no and have no legal reason to do so. To send this back to the zoning hearing board for review is the sign that this judge did not even read the briefs that where put in front of him.

What is Zoning supposed to do? It is an ALLOWED USE, they should not even see this case

Anonymous said...

I think the Judge wants to make sure that there are no zoing issues which seem to be concerns that were brought up by planning. Once the zoning board approves the use (if so) the applicant will have to go back to planning. Planning will have the last shot at the use and i think the site improvements (on-site & off-site will be so costly; the hospital will never be built. I also think Penn-dot will have some say in some of those off-site improvements and everyone knows how fast penn-dot moves. Also--a lot of traffic concerns (traffic study might be needed) storm water concerns; utility extensions, capacity concerns. Still gonna be a long road ahead to build even if approved by all concerned.

Anonymous said...

I Call bullshit on this. It did not need to go to zoning board, it is an AT-Right use for the zone. The judge should read the briefs that is what you pay all the money to the lawyers for...

Anonymous said...

And as far as traffic, storm water etc, it was done when the old folks home was approved but not built, so again you do not know what the hell you are talking about