During hearings before the Zoning Hearing Board, co-owner George Azar testified that the loading dock, as it exists, is unsafe and exposes his workers to injury. "We're basically working two or three times what we should be doing," he testified. "We're working like it's 1950."
Judge Bonnie Brigance Leadbetter, speaking for the Court, noted that Elias has a constitutional right to expand, reasoning that an "ordinance which would allow the housing of a baby elephant cannot evict the animal when it has grown up, since it is generally known that a baby elephant eventually becomes a big elephant."
Rejecting arguments that the proposed expansion would have an adverse impact on the neighborhood, Judge Leadbetter noted that the market existed before many of the homes surrounding it.
"Elias Market is not proposing to increase the size of the store to attract more customers. The proposed expansion will enable Elias Market to buy goods in bulk, thereby reducing the number of deliveries made to the store, and will no longer need to store goods at its Allentown facility and transport them daily to Elias Market. In addition, the access to the lot from S.R. 191 [Linden Street} will be eliminated."Zoners have approved this expansion three times following four hearings, a judicial remand and fourteen hours of emotional testimony before packed houses. Bethlehem City Council intervened in the dispute, on the side of neighbors Al Bernotas, Walter Ward and Guishu (Sue) Fang. These neighbors were represented by prominent Hellertown attorney David Backenstoe.
Bernotas declined comment on the ruling. "I am going to save all my pertinent comments for the courts," he said. "Nothing I say to the newspapers matters."
Gus Loupos, Chairman of the Zoning Hearing Board, stated he was happy they were upheld. "Everyone had their day in Court. It's time for the Elias' to get on with their lives."
Zoners imposed numerous conditions on the expansion: 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; no additional retail space is permitted; no future expansions of the warehouse will be permitted; and no trash pick-up before 8 AM.
Neither the Elias family nor their Attorney, Joe Piperato, were immediately available for comment.
Neighbors can petition the state Supreme Court for review, but that Court has no legal obligation to consider the matter.
20 comments:
OMG - a judge actually using common sense. This entire debacle has been a waste of time and money, harassment from snooty neighbors who moved in on the market and demonstrates once again that the dictatorial council has their collectives heads up and locked.
Thank goodness. I concur with above commentator. We shop at Elias often. It is a blessing to the neighborhood. What kind of idiots would not want the present situation behind the market cleared up, and a better storage facility for the numerous fresh foods we buy there. Micromanaging pests do more to damage a neighborhood than any market ever could. BTW, I was there the other day when the Bookmobile pulled into the Elias Market parking lot and appeared to be open for business! Hooray for Elias Market, boo for micromanaging pests!
Bernie, No comment on the way the court Spanked the NORCO judge Smith for improper rulings ? The same is going to happen on Center Street. How many times can a Judge make a bad decision and be kept on the bench?
Hence, it was unnecessary for the trial court to remand to Board to determine the applicability of the special exception requirement after affirming the Board's grant of variances.9
Accordingly, the trial court's orders are affirmed.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge
9 Even assuming, arguendo, that a special exception was required for the expansion, the record supports Applicant's entitlement to such relief. A use permitted by a special exception is a use which the municipal legislative body has determined to be appropriate in a zoning district, if specific requirements of the zoning ordinance are met. Mehring v. Zoning Hearing Bd. of Manchester Twp., 762 A.2d 1137 (Pa. Cmwlth. 2000). To establish entitlement to a special exception, the applicant must initially prove compliance with the specific, objective criteria of the zoning ordinance. Bray v. Zoning Bd. of Adjustment, 410 A.2d 909 (Pa. Cmwlth. 1980). The burden then shifts to objectors to establish a high degree of probability that the proposed use will substantially affect the health, safety and welfare of the community greater than what is normally expected from that type of use. Sunnyside Up Corp. v. City of Lancaster Zoning Hearing Bd., 739 A.2d 644 (Pa. Cmwlth. 1999). Applicant met all the specific and general criteria required for a special exception. The proposed expansion complies with the setback requirements, and the Board granted a variance from the building coverage limitation. The current use of Applicant's property is also consistent with the City's 2008 comprehensive plan which identifies Applicant's property as "[r]etail and other commercial." R.R. at 522a. As we have already concluded, the proposed expansion will not adversely impact the adjacent properties or be detrimental to the public health, safety and welfare. Moreover, the Board imposed 10 conditions to address the Objectors' concerns over the traffic, noises, fumes and trash collections.
The commenter is referring to the end of the decision, in which Judge Leadbetter concludes that a special exception, and the subsequent remand, were not needed. That is dictum, not the central ruling. If parties feel that Judge Smith erred, the remedy would have been an appeal, not an anonymous comment on a blog. Let me add that Judge Smith is considered among the finest legal minds in the state. You ask me to criticize a judge I admire and respect, while you lack the courage to identify youself.
I sat in many hours of this testimony while on the Zoning Board. It is nice to be declared to be right after we where vilified by a certain group of individuals. I wonder if the city will now listen to the Board when we make a correct decision.
Re: "Moreover, the Board imposed 10 conditions to address the Objectors' concerns over the traffic, noises, fumes and trash collections."
I guess Elias better conform to the 10 conditions now or there will definitely be more goings on in his neighborhood. I have heard Elias has been developing a wholesale business during this litigation period. I hope that isn't true or they will go broke with fines from the city.
Elias's warehouse can only store food/flowers/shrubs there for that location only and that food, etc. must be sold ONLY through the FRONT DOOR of that store. "NO DELIVERING OF FOOD TO ANY CUSTOMER WHICH WOULD THEN MAKE IT A WHOLESALE BUSINESS AND NOT ALLOWED". (quoted from the Zoning Hearing Board and John Lezoche). Let's all ponder this!!
If Elias's intent was to become a distribution center he has now been stopped forever from becoming one.
Kudos to the Zoning Hearing Board. Elias can't even store food/produce for his other store. I personally think he is nuts for wanting to incur such costs to build a monster warehouse which won't bring in any more money for him then he get's now because he can't increase his retail business and he doesn't run out of food now. Just doesn't make sense to me. Go figure...... Hope it makes sense to him! See below:
Zoners imposed numerous conditions on the expansion:
1. use of the warehouse for wholesale distribution is banned;
2. idling by any vehicles or storage of any buses or trucks not already owned by Elias is prohibited;
3. no refrigerated trucks may run on the property;
4. compressors must face Linden Street, away from residences;
5. buffering and landscaping is required;
6. no expansion in hours of operation;
7. no additional retail space is permitted;
8. no future expansions of the warehouse will be permitted; and
9. no trash pick-up before 8 AM.
Amen!
I believe Elias is concerned about employee safety and efficiency. Every time it rains, that loading dock becomes a lake.
Bernie, I think there is a cheaper way to accomplish that problem without adding all the other expense that he is going to incur doing what he is proposing but that is his business. If he was really concerned about public safety, he would fix his parking lot problem. It's a madhouse there with lots of cars/people and near misses in the parking lot itself and also in the exits with people coming in and out of Linden Street and also Johnston. What's with the pallets of flowers taking up a lot of parking spots and causing more clutter. Can he turn parking spots to retail? Is that legal? I get the impression he thinks he can do whatever he wants to do. I go there all the time and see all the craziness, do you?
I said he was concerned about employee safety and efficiency. I said nothing about the madhouse in the parking lot, but would suggest that you not shop there if it bothers you so much. As to the flowers, it is a roadside stand and those are permitted.
I do not shop there often. Maybe once a month. Never crowded, though I imagine it can get busy.
Bernie, just saying, after reading your responses to some issues you do sound "biased"! So let the madness continue or get worse and your response is don't shop there! duh!!! "Just saying" if it sounds like a duck, it is a duck..... he he
I don't really give a shit what you think, but I freely admit I am biased against pompous assholes who come on this blog anonymously to run down a business at which they claim they shop all the time.
Folks, You have to admit that this gets funnier with each post. A 19,000 sq foot "roadside" stand? Bizarre, really bizarre. Is this a hardship case
Yes, It is a 19,000 sq. ft roadside stand. Why? Because that is what the Commonwealth Court said in its opinion on Friday. That is how the business started and that is why it is allowed to place produce and flowers along the side of the road. You know what kills me? This is a small business that hires local people and does not screw its customers, but you are intent on besmirching it and can't even identify yourself. Give it a rest already.
I will identify the Poster, It is Al Bernatos and The Fang lady.
Al Bernitas signs his name and Sue Fang is just too nice a person to say that.
re. Bernie O'Hare said...
I said he was concerned about employee safety and efficiency.
If he was so concerned about his employee safety and had such a water problem, why didn't he do some kind of a fix a long time ago? He has a very successful business and I think plenty of money. Hasn't this been going on for 4 years or so with the neighbors? What about the problem in all the years prior to that to the present and how did Mr. Pichel deal with it for so long? I am sure Elias could have done some kind of repair job but just didn't care enough and chose not to. You are so gullible it sickens me. Also, you must be drinking too much Koolaid and you don't have your stories straight. Pichels used to hire local teenagers, Elias only hires his own ethnic employees and not local kids. Are you kidding me? You have nothing but excuses for all of them. Do you work for him or get free food or drinks or something? And no, I don't have an agenda for posting this. Just my own private opinion which I am allowed to do. I don't mud sling any person like you do. I am just a concerned person who has friends who live in the City of Bethlehem and I don't want it to start looking like his place in Allentown. Now that looks like the ghetto!
Nice of you to be so concerned.
Do you have any grey poupon?
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