Marles: ZHB Has No Jurisdiction To Decide on Psychiatric Hospital

Att'y Blake Marles tells zoners they have no jurisdiction

A 5-acre vacant tract at the southeast corner of Dewberry Avenue and Center Street is without doubt the most litigated property in Bethlehem. At one time it was the site for future expansion of Memorial Park Cemetery. Nobody minded. But since Abe Atiyeh acquired the property in 2007, you need a road map to figure out what's going on there. A large "Hospital Coming Soon" sign decorating the property has annoyed the neighbors, so now there's three of them. That hospital, which does not appear to be coming anytime soon, was the subject of a Special Zoning Hearing Board meeting on May 7. Over thirty residents, many of them familiar faces from numerous Atiyeh hearings, sacrificed a beautiful Spring evening for a meeting that lasted about forty minutes. No testimony was taken because Atiyeh's Attorney, Blake Marles, told zoners they have no jurisdiction.

Atiyeh's contentious relationship with the Zoning Hearing Board actually started on a positive note, when he originally bought the property. Though the property is zoned for institutional uses like schools and hospitals, he successfully sought a variance for an assisted living center. But when he was unable to market it, he asked zoners to let him build luxury apartments instead. They said No. He asked again. They said No again. Northampton County and Commonwealth Court judges said No, too.

So Atiyeh responded with a plan for a use that is permitted under the zoning ordinance - the Brookside Drug, Alcohol and Psychiatric Hospital. Though a permitted use, this lockdown facility for the mentally ill would be just a few yards from Bethlehem Catholic High School. 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.

Att'y Blake Marles reviews paperwork with Abe Atiyeh

Judge Smith, on appeal, agreed with Marles. 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 ... ." But instead of sending the case back to the Planning Commission, he remanded it to the Zoning Hearing Board. They had never heard the matter.

At the May 7 hearing, everyone was lawyered up. In addition to Blake Marle, Atiyeh had Mark Malkames on standby, Professional Engineer David Harte and a videographer recording everything. Bethlehem residents, led by Greg Zebrowski and Stewart Early, had Easton barrister Steve Goudsouzian. Given the number of lawyers and experts on hand, nothing got done.

Blake Marles threw a legal monkey wrench into the mix. "What the Judge has asked the Zoning Hearing Board to do, they do not have the legal authority to do," he argued. He noted that the Municipal Planning Code provides eight ways in which zoners can assume jurisdiction, from a substantive challenge to the ordinance to special exception. But a Zoning Hearing Board has no authority to issue an "advisory opinion" on a land development application.

Goudsouzian countered that whether Judge Smith is right or wrong, this is "the law of the case" and it must be followed. "Whenever a decision is made in a case, that is the law that must be followed," he argued. "If you don't hear the case, you've essentially defied a court order."

Marles pointed out that it;s unclear what zoning issues, if any, are out there. So he asked zoners to review the entire file of the Planning Commission before ruling on his request.

After a brief executive session, zoners agreed to review the Planning Commission's file. "We will look over the Planning file to make the right decision," explained Special Solicitor Erich J. Schock, who represents the Zoning Hearing Board in all matters Atiyeh. "We need to have the right information."

Zoners will meet again on Tuesday, June 4, 6PM, at the Town Hall rotunda, to decide whether they can even hear this matter.