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Nazareth, Pa., United States

Thursday, December 22, 2016

Atiyeh's Kabuki Dance

Though most of Bethlehem was celebrating Christmas early, its Zoning Hearing Board must be on Santa's naughty list. The Board, minus Linda Shay Gardner, conducted three hours of hearings on December 21. This included a new zoning application from colorful developer Abe Atiyeh for a controversial five acre tract along the southeast corner of Center Street and Dewberry Avenue.

It's cemetery land, and is zoned institutional. When he first purchased it, Atiyeh thought it would be perfect as an assisted living facility. Residents could look out the window and see their future home. Zoners gave him a rare use variance, but Atiyeh never followed through.

Instead, he proposed a 102-unit "luxury" apartment complex at the site. This time, zoners said No. Their decision was affirmed by both President Judge Stephen Baratta and the Commonwealth Court.

Beaten but unbowed, Atiyeh kicked things up a notch. "Psychiatric Hospital Coming Soon" signs soon sprinkled the lot. Hospitals are a permitted use in an institutional zone. Atiyeh proposed a 4-story, 125-bed inpatient drug and alcohol detox center, along with a psychiatric hospital and 46 parking spaces.

Detox Platz.

At the same time, he submitted new apartment plans. Instead of 102 apartments, there would be only 96. Attorney Steve Goudsouzian, representing a collection of neighbors that include retired Judge Bill Moran and educator Greg Zebrowski, argued that the matter is res judicata, i.e. has already been decided by zoners. They agreed.

Claiming a change of circumstances, Atiyeh lawyer Mickey Thompson argued that res judicata no longer applies and is supposed to be used sparingly in zoning cases.

In testimony Atiyeh engineer David Harte testified that Planning Director Darlene Heller had actively interfered with attempts to develop a hospital. He and Thompson both claimed they had emails that would demonstrate that Heller insisted that the hospital operator meet privately with neighbors. According to Thompson, the hospital operator "vanished into the ether." Goudsouzian was skeptical, especially when Thompson and Harte failed to produce this evidence. They also never subpoenaed Heller, who could confirm or deny their accusations.

"This is a Kabuki dance," Greg Zebrowski complained when zoners retired to deliberate.

When they returned from a brief executive session, zoners invited both sides to brief the issue of res judicata. They will decide whether it applies at their next hearing on January 25.

In other business, zoners voted 4-0 to approve dimensional variances for Jie Floyd, enabling her to build a small home at 2023 Boyd Street.

Neighbor Dorothy Fornaro complained that most of this neighborhood is owner-occupied. "We do not want a rental property there," she complained.

There won't be. Floyd testified that she could "guarantee" that the home she builds will be sold, noting that the home will be too small to rent.

Finally, zoners granted a special exception that will permit New Jersey police officer Patrick Lilavois to establish a personal care home for a maximum of four people at 1028 W Lehigh Street. "This is not a halfway house," said Lilavois, who also denied would be a drug rehab center. He explained that the home would provide a long-term residence for personals with who are intellectually challenged. He indicated that one staffer will be on duty at the home at all times when it is occupied. If one or more residents have an appointment, another staffer will drive and accompany them. Lilavois stated that he and his brother have prior experience in running these homes, and he hopes to get more involved when he retires as a police officer in three years.

"Thank you for what you do," said Bill Fitzpatrick.


Anonymous said...

If Abe would give half as much to charity as he spends on attempts to circumvent laws to his advantage, there would be a lot of happy charities.

Anonymous said...

Can municipalities counter sue to recoup legal costs?

Bernie O'Hare said...

Under our American system, the courts frown on efforts to retrieve legal costs because it discourages people from resorting to the courts to achieve justice. Those are awarded only in very limited circumstances. Under the English system, it is my understanding that the losing side usually has to pay the winning side's legal costs. I would oppose any effort to impose attorney fees on someone who unsuccessfully sues in a municipal matter. It would make a mockery of the First Amendment right to petition your government to redress grievances.