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Fighting for Elliott Heights
by: Peter Christine
A little over a year ago, my mother, father, cat and I moved from our north side of a double on 10th Avenue to an old farm house with a 3/4 acre yard at the end of Mount Airy Avenue, in the Elliott Heights Neighborhood. We called it the little farm on the big switchyard, since our closest neighbors are the 6-7 tracks of railroad at the tail end of the hump yard between Allentown and Bethlehem. I'd venture to say the location (despite the shaking, and strange noises in the night due to the close proximity to the making and breaking of trains) is just about perfect, we are within walking distance of downtown, there is easy bus access and (when there aren't any trains) you can even cross the tracks, and take a walk along the towpath. In addition to these conveniences, we have plenty of space for gardening, and are surrounded by trees. Right next door is a 21/4 acre property, which used to belong Bruce Wilson and Annie Prince. The yard is mostly woods, and provides a haven for birds, deer and other wild life.
On April 23rd a sign appeared in our next door neighbor’s yard, announcing that a zoning hearing board meeting regarding the property would take place that evening. Strangely, we had never received written notification about the meeting by mail, but our neighbors had and filled us in. Kevin Horvath, who had bought the property a couple months prior, wanted to reinterpret the ruling on the slope. Many portions of the property have steep slopes, prohibiting a developer from making lots any smaller than one acre. Mr. Horvath wanted to take advantage of an ordinance that rendered man-made slopes exempt from the normal slope ordinance, so long as the original slope was under 15%. No one was sure exactly what Mr. Horvath had in mind for the property -- some said townhouses, other condos -- but it was reasonably certain that he wanted to build more than one extra house on the property. And if you do the simple calculation of dwellings per acre for the zoning, disregarding setbacks and access and similar limiting factors, you come to 22 units. Ouch!
There was a sizable turnout from the neighborhood at the meeting, It was obvious from the expressions on the faces of the board that they were unused to such a crowd at their meetings. I’m no local government expert, but I’ve been to several city council meetings regarding zoning, and I thought I had a reasonably good idea of what to expect. I was in no way prepared for the zoning board hearing however. A zoning board, for the uninitiated, operates as a court of law, with the zoning board solicitor, Mickey Thompson, acting as Judge. The task before the zoning board on that particular evening was to interpret the slope ordinances as they pertain to the property in question, to determine whether or not the slopes were man made, and whether or not the original slope was under 15%. Mr. Horvath sat with his lawyer at a table before the zoning board, and the lawyer carefully guided Mr. Horvath through his testimony. Once he was finished, neighbors were given an opportunity to cross examine Mr. Horvath and present any opposing testimony, but since no one from the neighborhood was a civil engineer (or a lawyer) no one could provide significant evidence to dispute any of Mr. Horvath's claims. As it happened there were some valid counterarguments. One man (while not a surveyor) had borrowed surveying equipment from work, shot a couple elevations, and found the slope 16%; a woman who worked for a local landscaping company claimed that Mr. Horvath's assertion that fill had been dumped on the property was false. However, without any legal experience, neighbors were easily intimidated by Mickey Thompson, who was eager to correct, and dismiss any citizen who tried to give testimony when he should have been cross examining, and the testimony came out garbled, or not at all. It is not very hard to imagine that the Zoning board went for the concrete evidence and the lawyer on Mr. Horvath’s side, 2-1.
Later inspection by an engineer revealed that the evidence was not as concrete as it seemed. Many of the historical topographic maps Mr. Horvath presented were worthless, they were of too large an area and presented only a general idea of the slope on the property, and maps of the existing slopes (which were prepared by Mr. Horvath himself) did not bear an engineer’s seal, or detailed information explaining where the information had come from. However, in the arena of a zoning hearing it is the the burden of the opposing party to disprove the evidence; the zoning board, as a legal body, has the right to believe whomever they choose.
Shortly before the meeting, I wrote an e-mail about the situation and sent it to Mary Toulouse. Mary is the Co-president of the Mount Airy Neighborhood Association (MANA) which represents the entire west side, but focusses more on the central Prospect and Market Sts. area. I hoped she would send the e-mail out to the MANA e-mail list, thinking that community minded west side residents would be interested in coming to the hearing. Mary came to the hearing and met with the neighbors briefly as they came out of the rotunda. I personally was giddy with anger and disappointment, and many other people were in a wild mood as well. It wasn’t a good time for strategizing, but Mary recommended we organize and appeal the verdict. She suggested we see Michael Shay, the lawyer who helped MANA Holy Family Manor from expanding Trexler Pavilion.
So why try to prevent development in the West Side anyway? After all, the potential site is within walking distance of the bus stop, and easy bicycling distance from downtown. Why not encourage development within the city instead of tearing up farmland? Are we just greedy, NIMBYs? Perhaps. But consider this: the 21/4 acre property is farmland. This section of the West Side was farmland until fairly recently. The property in question was in active farming when the house was build in 1906. In fact, the previous owners (Bruce Wilson and Annie Prince) informed me that at one time they attempted to run a CSA on the property. The urban farm was flop: Relations with the farmer were strained, ground hogs got most of the produce, and there was even trouble with the neighbors, who complained of the bee droppings defacing their property. But the possibility remains. If we want to make Bethlehem independent of fossil fuel, or even simply a more livable city, we must protect greenspace within the city a well as without.
Nothing short of divine intervention is likely to keep the property together as a 21/4 acre potential homestead, but the community is pursuing several avenues to try to limit the development and preserve as much open space as possible.
As the only adjacent property owners besides Norfolk Southern, Martha and Bill Christine (my parents) have lead the charge to limit development at 1801 Elliott. On June 18th we all went to Michael Shay’s office to get an idea about what it would take to appeal the decision. Mr. Shay explained the workings of the Zoning Board, and cleared up some questions Bill and I had about the meeting: Why didn't the zoning officer or city engineer testify, why wasn't the city engineer given time to review evidence that was presented at the last minute. The actions of Zoning Board and the City were, it seems, completely legal (if not particularly fair), but there was a possibility that we could appeal the decision on the grounds of not having sufficient time to prepare evidence, since the notification for the meeting was not properly displayed on the property, and the closest adjacent property did not receive a letter. Probably the District court wouldn’t bother taking on the case, and simply require another zoning board hearing. The chances of preventing the development this way would still be rather slim. We would need an engineer to refute all of Mr. Horvath’s claims, assuming they were false in the first place, and present evidence more convincing than what Mr. Horvath had already submitted. Even then it would still be up to the zoning board to decide whom to believe.
The evening after the meeting with Mr. Shay we held out first neighborhood meeting. We had leafletted the houses of all the people who had attended the zoning hearing, and about 10 people got back to us saying they were interested in coming. We figured a couple wouldn’t show, and made 8 copies of notes from our meeting with Mr. Shay. Thirty people came; we ran out of chairs. There were a couple of people standing, others were forced to spill out into the kitchen. The big crowd brought a lot of energy, but it was difficult to focus. We didn’t have an agenda, and people were eager to share their insights about the zoning meeting, the zoning board, developers and the condition of the neighborhood. After the first meeting, we arranged to get a room at Rosemont Lutheran Church.
Working with my neighbors has been a learning experience. While we are all united in the goal of limiting development, our rationales can be disparate. I sometimes cringe when a neighbor asks: “What sort of people are going to live in these condos?” At times I wonder if I am hearing an undercurrent of classism, or even racism. Often the distrust of authority is frustrating. I hate to generalize my neighbors, but the “Wild West” of Bethlehem is sort of a sidewalks and building permits optional neighborhood. People move here to do their own thing and be left alone. They’re nervous about getting into politics, and don’t care for lawyers.
After much searching for an engineer not affiliated with Keystone, the firm the Mr. Horvath works for, we got a hold of Bryan Bollinger from MKA Associates. By this time the findings from the zoning board hearing had been released. Incidentally the findings misrepresented the final vote as unanimous, and even had the name of the street: Elliott Ave. misspelled repeatedly. They were written on a Saturday, so none of the Zoning Board members were available for verification. Flawed as the document may have been, the date of its completion (June 7th) marked the beginning of our 30 day window to appeal. Mr. Bollinger's comments on the evidence Mr. Horvath provided suggested that we would have sufficient argument for an appeal. But the appeal would be useless if we couldn't prove that the slope was over 15% originally. Hiring the lawyer to file the appeal and the engineer to survey the property would cost somewhere around $20,000. Then if it turned out Mr. Horvath was in fact wrong about the slope, the Zoning Board would still have ample reasons, valid or otherwise, to uphold their original decision. After a meeting between the engineer and Michael Shay, and neighborhood meetings, we decided not to appeal, but the struggle isn’t over yet.
Bill Schirer a member of MANA and City Council regular attended one of the early meetings. He suggested we pursue rezoning the neighborhood. Most of the Westside is zoned R-S, but 13th Ave. west and Spring St. south is zoned R-G. The difference is subtle. Both allow the same basic housing types, but R-S has stricter requirements for setbacks, only allows multifamily dwellings (e.g. row homes) on certain sized lots, limits these buildings to 2 1/2 stories as opposed to 8 stories in R-G, and allows for lower density. Mr. Schirer suspected that this peculiar zoning pattern may have been due to some underhanded maneuvering sometime in the past half century, and we should be justified in requesting the neighborhood to be integrated into the larger zone.
The idea of rezoning raised a great deal of concern. Some houses in the area have very small lots, and people were afraid that the new zoning would prohibit them from building additions or garages. Also, neighbors were disappointed to see that townhouses would be permitted in R-S. The only zoning to prohibit town houses is R-R, which is very exclusive, and intended for rural areas. To answer our questions about zoning, we invited John Lezoche to come to a meeting with the neighborhood on September 8th. He backed out at the last minute, but Darlene Heller, the city planner, came in his stead. Ms. Heller explained the rezoning process. This can be initiated by City Council, or by a citizen petition. The request goes to the Planning Commission, which drafts a plan, then the plan goes to City Council for approval. Even if the process goes through without opposition, it take several months to complete.
If Mr. Horvath intends to develop the property himself, rezoning will do nothing to limit the development. As long as he submits a plan be fore the issue is advertised – at least a month into the process – it will be grandfathered. The purpose of rezoning is thus mostly to protect the many other large lots that could be developed in the neighborhood. If, however Mr. Horvath hasn’t the means or intention to develop the property, and simply hopes to sell it to a developer, we might have enough time.
Ms. Heller was hesitant to recommend rezoning. She said the Planning Commission would be skeptical of rezoning a neighborhood in such a way that would create noncompliant properties. It is possible that many of the properties that would be rendered noncompliant are already noncompliant under the current zoning, but that would have to be researched. To prevent this problem, we could identify the areas which have the most undeveloped land and carve out a zone from the neighborhood. That does, however, carry the risk of being dismissed as spot zoning. As an alternative to rezoning, Ms. Heller recommended we instead work on getting the most out of the development. She suggested we meet with Mr. Horvath to explain our concerns. It may be in the best interest of the developer to preserve as much open space, mature trees and community character as possible anyway, as this will make the finished product more valuable.
The neighborhood hasn’t met since we spoke with Ms. Heller. We must decide whether or not to pursue rezoning, and how/if we should work with Mr. Horvath. In the mean time we are trying to make out presence known at city council meetings. So far Guillermo Lopez, Joanne Huertas, and Martha Christine have all spoken during the open floor at the end of each meeting. Councilmembers Michael Schweder and Karen Dolan have both expressed interest in the issue.
Before the project can go through, it must be cleared through the planning commission. This body is responsible for making a value judgment about whether or not the development is a good idea for the site. Thus it is (theoretically) more attuned to the views of the neighbors than the zoning board, which simply interprets the laws based on the facts of the case. We are trying to find out whatever we can about 1801 Elliot Avenue so we will be prepared for the planning commission hearing.
For me this project has been a revealing, if sometimes disheartening, introduction to city politics. Furthermore it has been a great way the meet the neighbors, and build community. The struggle in Elliott Heights is just one episode in city wide trend of communities fighting to preserve their neighborhoods from developers. The outcome of this particular battle is still unclear, but I hope the experience will help the neighborhood be more prepared for future developers. For more information or to get involved, please feel free to e-mail: oldcdogs@yahoo.com.
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