Zoners Nix Basement Apartment Despite City's Clerical Error

Bethlehem zoners have ruled against a South Side property owner who relied on the City's own assurances that he owned a 4-unit apartment building. Following a contentious June 26 hearing, they upheld an Enforcement Notice requiring Richard Smith to discontinue leasing a basement apartment at 311 E. 4th Street. "The layout of the apartment  is hazardous," argued Zoning Officer Suzanne Borzak. "If there's a fire in the apartment, people will die."

Smith was represented by Bethlehem Attorney Steve Shields. He established that when Smith first bought the property in 2004, it was listed as a 4-unit apartment building. He received a certificate of occupancy for a4-unit building. After that, the property was inspected on several occasions, and was identified as a 4-unit building. Smith also pays water bills and recycling fees for a 4-unit building  Then in May, he received an enforcement notice from the zoning office, telling him he had to evict his basement tenants. He called this a hardship to them and to him, and Shields argued that Smith had every right to rely upon Bethlehem's previous assurances.

Zoning Officer Suzanne Borzak acknowledged that the City had mistakenly listed the property as a 4-unit building. " The reason there's erasers on pencils is because we all make mistakes," she explained. .

A 1997 Zoning Hearing Board decision denied the basement apartment over parking concerns. But the decision was misplaced in the back of a file drawer and was only recently discovered.

Over Shields' objections, Housing Inspector Rich Oscavich was allowed to testify that there are "continuing issues" over the building. Shields argued that code questions are totally irrelevant to zoning, but Oscavich was allowed to go on and state that the property had been condemned three times.

"If it wasn't an approved apartment, why were you inspecting it?" Shields asked. He also lashed out at Borzak, who had sent the enforcement notice. "If you had been doing your job, we wouldn't need this," he told her.

Borzak, herself a former inspector, explained she has only been the City's zoning officer for a year.

Neighbors Santiago Rivera and Jill Lutz spoke against the fourth apartment, citing the demands it would place on parking. But Shields pointed out that his client only wants to continue doing what the City has already allowed him to do since 2004. In addition, his client testified that conditions have changed since the 1997 zoning decision, and there is a huge parking lot only 80 yards from his building.

Following testimony, zoners voted to uphold the enforcement notice in a 4-1 vote. Michael Santanasto dissented. Then zoners unanimously to deny the variances that would make a 4th apartment possible.

Smith and Shields are mulling an appeal.

In other business, the Zoning Hearing Board unanimously granted dimensional variances to Lehigh Valley Industrial Park for a billboard near Route 78. A variance was needed because the sign will be only 260' from a residential district. Attorney Jim Preston argued that residential district was along the center line of a four-lane highway.

Preston had an unusual ally - Planning Director Darlene Heller. "Had we taken closer look, it would not go down the middle of the highway," she conceded. "We feel the request is appropriate."

Zoners also allowed a 37' high sign instead of the 25' high signs authorized by the zoning ordinance because a dip in the highway obstructs the line of sight.

Finally, the Board voted, 3-0, to authorize Bill Shafer to replace a porch at his 111 E Washington Ave. home, which he told zoners was first built in 1895, before there was a zoning ordinance. The porch was done in by Hurricane Sandy. Att'y Santanasto recused himself because Shafer is a client. ZHB member Jim Schantz also declined to participate in the matter.