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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.

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David Harte describes site

For the third time, Bethlehem’s Zoning Hearing Board has shot down a drug and alcohol residential rehab center located near a school. At their December 10 meeting, following a five-hour hearing, zoners unanimously denied a “special exception” for a 47-bed facility located at 2349 Linden Street. That’s the site of the former Moose and Bug Florist, and is located approximately 400′ from Spring Garden Elementary School.

Nearly forty neighbors attended this hearing. Many expressed concerns about a diminished quality of life, increased traffic and a potentially dangerous situation.

In addition to neighbors, Bethlehem Area School District administrator Dean Donaher opposed the proposal on behalf of the school district. Spring Garden Elementary has an enrollment of 563 students, according to Donaher, making it one of the largest schools in the district. Between 60-65% of these children walk to school.

In two previous appeals, developer Abe Atiyeh was unsuccessful in pitching drug and alcohol rehabs near Bethlehem Catholic High School. In all three appeals, Attorneys Mark Malkames and Blake Marles, representing Atiyeh, insisted that there was no factual basis for these concerns. Marles called it speculation, while Malkames spoke of “inappropriate fears of the unknown.” But Diane Mason, at the December 10 hearing, offered several examples in which residents and employees at voluntary rehabs have stolen cars, broken into nearby homes, and used drugs.

After hearing this testimony, neighbor German Berrio told zoners he has twelve grandchildren who will no longer be able to play in the back yard next to the proposed facility. “That’s going to be the end of my children visiting my home,” he protested.

Representing several of the concerned neighbors, Bethlehem Attorney Jeremy Clark argued Atiyeh failed to submit a specific plan of operation. He added that the developer has no track record with drug and alcohol rehabs, and failed to reach out to school officials or neighbors.

“That’s a two-way street,” answered Malkames, who countered that nobody from the schools or neighborhood had reached out to Atiyeh. He also argued that since a rehab is already a permitted use, opponents would need to show consequences beyond what could be seen at a typical rehab. He has vowed to appeal this decision.

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(From left to right: Solicitor Erich Schock and ZHB members Gus Loupos, Bill Fitzpatrick, Linda Shay Gardner and Michael Santanasto. James Schantz is blocked, but he’s there.)

Two school principals and a psychotherapist spoke against Abe Atiyeh’s quest for a residential drug and alcohol rehab center during a 4 1/2 hour hearing before Bethlehem’s five-member Zoning Hearing Board (ZHB) on October 16. About thirty-five people attended this second night of testimony concerning this proposed facility, which would be located at 2110 Center Street. That’s just 380′ from Bethlehem High School, and right next door to Vitalistic Therapeutic Charter School.

At an earlier hearing in September, Atiyeh’s engineer, David Harte, outlined plans for a 28-bed facility, 2 1/2-story treatment center for drug and alcohol addiction, to be staffed by a maximum of 16 people at any one time.

Ron Deiaco, principal and acting CEO of Vitalistic Therapeutic Charter School, told zoners he had concerns about the possibility of inappropriate contacts between treatment center residents and the 100 elementary school children under his care. “As a principal, my first concern is the safety of my children,” he testified, noting that kids playing outside during recess could come into contact with residents taking smoke breaks outside.

Just that day, Deiaco testified, somebody wondered into the school, looking for the yet-to-be-built rehab center.

When ZHB member Bill Fitzpatrick asked whether a fence would address those concerns, Deiaco acknowledged that “it would certainly be a start.” He also admitted, in response to cross-examination by Atiyeh Attorney Mark Malkames, that he conducted no Megan’s law search before moving into his new school in September.

According to the Megan’s Law Website, two registered sex offenders live within a mile of his charter school.

Principal John Petruzzelli

Bethlehem Catholic Principal John Petruzzelli stated that, because of the “tremendous stigma” associated with narcotics addiction, his 745-student school would see its enrollment decline. It would also negatively affect its land value. “Please do not threaten our ability to interest parents and attract students,” he pleaded. “Please don’t threaten our viability.”

Petruzzelli conceded, under questioning by Attorney Malkames, that he had no evidence demonstrating that a treatment center would lead to increased crime or violence in the neighborhood.

But William Henry, a psychotherapist who can walk from his home to the proposed center in thirty seconds, claimed that there is a connection. Between 50-75% of people suffering from drug or alcohol addiction also suffer from an underlying mental disorder, said Henry. He insisted this could lead to “complete breakdowns,” resulting in violence.

For that reason, he argued that no rehab center should be built near a school. “I don’t think there could be a worse place,” he said.

He also ridiculed Atiyeh’s proposal because there “clearly” is no treatment plan in place.

When questioned about rehab centers like the Keenan House, located in Allentown, Henry responded, “I don’t like to go to Allentown. It’s a little dangerous.”

When Attorney Malkames asked Henry whether he really believed that a DUI offender is suffering from some kind of psychosis, Henry responded, “That’s an incompetent statement.”

Testimony in this case will continue, and hopefully conclude, in a hearing on November 20, 6 PM, at the Bethlehem Public Library.