Council Minutes

November 19, 2002 Meeting Minutes

BETHLEHEM CITY COUNCIL MEETING
Bethlehem, Pennsylvania
Tuesday, November 19, 2002 - 7:30 PM - Town Hall

INVOCATION
PLEDGE TO THE FLAG
ROLL CALL

President Gregory called the meeting to order, and offered the invocation which was followed by the pledge to the flag. Present were Jean Belinski, John B. Callahan, James A. Delgrosso, Robert J. Donchez, J. Michael Schweder, Magdalena F. Szabo, and James S. Gregory, 7.
4. APPROVAL OF MINUTES

The minutes of November 6, 2002 were approved.

5. COURTESY OF THE FLOOR (for public comment on ordinances and resolutions to be voted on by Council this evening)

Bill No. 43 - 2002 - Amending Zoning Ordinance Section 1316.02 - Deleting Motor Vehicle Sales and Service Agency in the Light Industrial District

Robert Williams, 1207 Stanford Road, with reference to Bill 43 - 2002, read a statement on behalf of the No Mall group. In the statement, the No Mall group recounted some of the reasons why they opposed rezoning of the former Durkee site on Eighth Avenue including their position that a mall development would be bad for West Bethlehem and the City, traffic would be far worse than with any other development plan, it would pose several problems for several intersections along Eighth Avenue, and a "big box" shopping center was a bad idea for the City's economy. Remarking that Council's decision not to rezone the site seems to be characterized by some as a mistake, and an insinuation that a used car auction development, as is currently proposed, would be worse than the formerly proposed mall, the No Mall group expressed "fear [that] they are using the used car development to drive Council back to the commercial mall option." Mr. Williams related that No Mall would like to see the best use of the Eighth Avenue site and would like to see better development with more commitment to neighborhoods for all parts of the City. The statement continued on, as follows: "A used car lot does not raise the same profound problems for West Bethlehem and the City that the mall idea does. We understand that a car lot is a legal use under current zoning. But we don't understand why the current owner, the Administration, and one Member of Council are pushing a car lot on a $4 million property. The City, and the developer, clearly could find a better development for this site…[W]e would like to see the City Administration exercise the kind of leadership needed to bring a development to this site that can serve both the quality of life and long-term economic health of the City. We appreciate Council Members' efforts to this end…We hope and trust that the Members of Council will stay the course until this site is developed and used in a way that truly benefits the City and its citizens."

6. OLD BUSINESS

None.

7. COMMUNICATIONS

A. City Solicitor - Pennsylvania Game Commission Public Access Program Agreement

The Clerk read a memorandum dated November 13, 2002 from Joseph F. Leeson, Jr., City Solicitor, to which was attached a proposed resolution for a Public Access Program Agreement with the Pennsylvania Game Commission. The two major benefits are the Game Commission Officers will have authority to patrol the property and enforce regulations and the City will obtain the benefit of limited legal liability under the Pennsylvania Recreational Use of Land and Water Act.

President Gregory stated that authorizing Resolution 11 A is listed on the agenda.

B. Rezoning Request - Lehigh Valley Hospital - Muhlenberg Campus - CM Office Research Center District to I Institutional District

The Clerk read a letter dated November 15, 2002 from Attorney Dennis M. McCarthy, representing Lehigh Valley Hospital, to which was attached a petition to rezone property on the Hospital's Muhlenberg Campus, known as the 1770 Building tract, located adjacent to Route 378, from CM Office Research Center District to I Institutional District.

President Gregory referred the request to the Planning Commission.

Mr. Donchez and Mr. Delgrosso moved to schedule a Public Hearing on Tuesday, January 21, 2003.

Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. The motion passed.

C. Director of Community and Economic Development - Amendment to Use Permit Agreement - Christkindlmarkt

The Clerk read a memorandum from Tony Hanna, Director of Community and Economic Development, dated November 15, 2002, to which was attached a proposed resolution and Amendment to the Use Permit Agreement between Bethlehem Musikfest Association and the City for Christkindlmarkt 2002, deleting the provision for Bethlehem Musikfest Association to arrange and pay for a City EMS crew and ambulance on a "standby" basis since this provision is not necessary for Christkindlmarkt.

President Gregory stated that authorizing Resolution 11 E is listed on the agenda.

8 . REPORTS

A. President of Council

President Gregory announced the next Budget Hearing on Tuesday, November 26, 2002 at 7:30 PM in Town Hall.

B. Mayor

1. Administrative Order - Joseph E. Long - Bethlehem Housing Authority

Mayor Cunningham appointed Joseph E. Long to the Bethlehem Housing Authority effective until November 2007. Mr. Callahan and Mr. Donchez sponsored Resolution 13,951 to confirm the appointment.

Voting Aye: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. The Resolution passed.

2. Administrative Order - Harlan C. Hinkle - Police Civil Service Board

Mayor Cunningham reappointed Harlan C. Hinkle to the Police Civil Service Board effective until September 2006. Mr. Delgrosso and Mr. Donchez sponsored Resolution 13,952 to confirm the appointment.

Voting Aye: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. The Resolution passed.

3. Administrative Order - Darrell William Glass - Sister City Commission

Mayor Cunningham reappointed Darrell William Glass to the Sister City Commission effective until October 2005. Mr. Schweder and Mr. Callahan sponsored Resolution 13,953 to confirm the appointment.

Voting Aye: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. The Resolution passed.

4. Administrative Order - J. Ralph Lindgren - Sister City Commission

Mayor Cunningham reappointed J. Ralph Lindgren to the Sister City Commission effective until October 2005. Mr. Delgrosso and Mr. Donchez sponsored Resolution 13,954 to confirm the appointment.

Voting Aye: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. The Resolution passed.

C. Finance Committee

Mr. Delgrosso, Chairman of the Finance Committee, presented an oral report of the Committee's meeting held on November 19, 2002 on the following subjects: Transfer of Funds - Wastewater Treatment Plant - Operating Supplies; Transfer of Funds - Fire Department - Overtime; Transfer of Funds - Streets Bureau - Overtime; Transfer of Funds - Recycling Bureau - Temporary Help; Transfer of Funds - Housing Inspections - Overtime; Amending General Fund Budget - Local Law Enforcement Block Grant Equipment; Amending General Fund Budget - DUI Overtime.

9. ORDINANCES FOR FINAL PASSAGE

A. Bill No. 41 - 2002 - Amending Water Fund Budget - Guarantee Fee

The Clerk read Bill No. 41 - 2002, Amending Water Fund Budget - Guarantee Fee, on Final Reading.

Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 41 - 2002, hereafter to be known as Ordinance 4157, was declared adopted.

B. Bill No. 42 - 2002 - Bethlehem Authority - Interest Rate Swap - Emmaus General Authority Note of 1997

The Clerk read Bill No. 42 - 2002, Bethlehem Authority - Interest Rate Swap - Emmaus General Authority Note of 1997, on Final Reading.

Mr. Delgrosso recounted that, as had been discussed at the Finance Committee meeting, the purpose of the interest rate swap is to achieve net savings of $600,000. Mr. Delgrosso explained that the question raised was what would happen in the event that the $600,000 benchmark cannot be reached because the interest rates are not at that point after City Council passes the Ordinance. Mr. Delgrosso continued on to state that, as a result, the next question that came up is whether City Council should set a time frame within which to reach that benchmark; and, if not, should the Ordinance be tabled. Mr. Delgrosso affirmed that, in light of the questions raised at the Finance Committee meeting, he requested Attorney Peter Carlucci, Bond Counsel, to contact both Joseph Leeson, Jr., City Solicitor, and Christopher Spadoni, City Council Solicitor, regarding the matter. Mr. Delgrosso asked that Attorney Carlucci provide an update.

Attorney Carlucci, confirming he did not have the opportunity to consult with either Solicitor, explained that the Ordinance sets forth many parameters including that the interest rate that will be agreed upon under the interest rate swap arrangement by the Bethlehem Authority cannot exceed 4.67%. Attorney Carlucci continued on to say that as long as the fixed rate is at 4.67% or less it will generate the level of savings that Mr. Delgrosso has described. Recounting that, in the past, City Council has adopted parameter type Ordinances with respect to indebtedness, Attorney Carlucci affirmed this Ordinance is structured in a very similar way. Attorney Carlucci advised that, in the event the agreed-upon interest rate is unable to be delivered within 60 days, "it is our view that City Council should revisit the Ordinance and consider whether or not to extend the action." Attorney Carlucci added "that is the premise upon which we are here today."

Christopher Gibbons, of Concord Public Finance, informed the Members that at this point the interest rate is below the 4.67% target. Highlighting the fact that it is a very volatile market, Mr. Gibbons explained that is why a time frame is needed under which there can be reaction and bids obtained to achieve the interest rate swap.

Amendment to Bill No. 42 - 2002

Mr. Delgrosso, observing that $600,000 is a high benchmark with which he is pleased, affirmed that is the benchmark agreed upon by the Bethlehem Authority, Finance Committee, and the Administration. Mr. Delgrosso stated that he would like to amend the Ordinance to read that a 4.67% or less interest rate must be met within a 60 day period of time and a net savings of $600,000 reached, and Mr. Delgrosso so moved. Mr. Delgrosso continued on to state if that does not happen within 60 days then an extension can be requested and City Council can make a decision at that time. Mr. Delgrosso said if it does happen, then the process of solicitation can move forward and City Council can be informed that the benchmark has been reached. Mr. Donchez seconded the motion.

Mr. Gibbons and Attorney Carlucci expressed their agreement with the Amendment. Attorney Carlucci indicated that he will draft the updated language and forward it to the City Clerk's Office.

Voting AYE on the Amendment to Bill No. 42 - 2002: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. The Amendment passed.

Voting AYE on Bill No. 42 - 2002, as amended: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 42 - 2002, hereafter to be known as Ordinance 4158, was declared adopted.

10. NEW ORDINANCES

A. Bill No. 43 - 2002 - Amending Zoning Ordinance Section 1316.02 - LI District - Deleting Motor Vehicle Sales and Service Agency

The Clerk read Bill No. 43 - 2002, sponsored by Mr. Schweder and Mrs. Belinski, and titled:

AN ORDINANCE AMENDING ARTICLE 1316 OF THE ZONING ORDINANCE OF THE CITY OF BETHLEHEM, PENNSYLVANIA, AS AMENDED, ENTITLED L-I LIGHT INDUSTRIAL DISTRICT.
Mr. Schweder stated that several months ago when he first proposed the change one of the things he had discussed was bringing about some consistency not just in this zoning district but many others as well. Mr. Schweder commented that the Public Hearing held at the November 6, 2002 City Council Meeting was very insightful in what was presented to Council by car dealers and their representatives. Mr. Schweder continued on to say what became apparent to him whether or not the decision to change the Zoning Ordinance is made is that it still does not alleviate any number of problems with respect to the automobile dealers in the City and zoning as was presented two weeks ago. Mr. Schweder, while expressing the hope that the Ordinance will be passed on First Reading tonight, advised that he will present a proposal to Council in light of what has been presented by the car dealers to do what other cities have done, and that is, by right, automobile dealerships would be placed in the Zoning Ordinance under the CG General Commercial District. Mr. Schweder affirmed the proposal would be sent to the Planning Commission. Mr. Schweder explained that the proposal would take automobile dealerships that are in the various Zoning Districts either by special exception or some other reason and would provide the opportunity for their placement by right. It also would take the parts of the City where there are automobile repair shops or body shops and place them there by right. In addition, it would afford each of the automobile dealers in the affected area, currently LI - Light Industrial, the opportunity to continue to have that zoning designation by exception and be grandfathered, or to ask that the zoning be changed so that they are there by right. Mr. Schweder pointed out that the City of Allentown and/or the City of Easton prohibit automobile dealers in the LI - Light Industrial zoning district, but they are established in the commercial districts. Mr. Schweder thought that the discussions have shown they are commercial entities. Mr. Schweder stated that, if the original proposal as contained in Bill 43 were to pass tonight, he would await the decision from the Planning Commission on the proposal for automobile dealerships to be placed in the Zoning Ordinance under the CG General Commercial District by right, and for Council to take final action on the two ordinances combined. Mr. Schweder reiterated that going forward under the proposal the car dealerships that currently exist in the CG Zoning District would be there by right, and any others would have the ability to come back to Council and ask for the zoning of their properties to be changed. Mr. Schweder, recounting that one of the automobile dealerships had two different properties in two different zoning districts, noted the proposal would correct that situation and allow the opportunity for the zoning to be one way or the other. While commenting that his original reasons for making the change in LI still make sense, Mr. Schweder denoted he has listened to what people have said, and this proposal would solve some of the inequities that were brought to Council's attention at the Public Hearing. Mr. Schweder reiterated he would propose that the zoning text amendment to place automobile dealerships in the CG General Commercial District by right be sent to the Planning Commission, and to await the Planning Commission's decision before Council comes back and takes final action on the Bill before Council tonight. Mr. Schweder clarified he is not asking that Bill 43 be tabled tonight, but rather at the appropriate time he would offer to move the proposal he has described.
Mr. Callahan asked if the recourse for owners of property currently in LI that have an automobile dealership is to either remain in LI as a non-conforming use or apply for a rezoning of their property.

Mr. Schweder stated that, under the assumption that Council passes Bill 43 and a recommendation came back from the Planning Commission on the other change that also would be enacted by Council, then the automobile dealers could continue to be in LI as a non-conforming use, or they would have the option to request that their property be rezoned to CG, while those dealers who are already in CG would be there by right as opposed to by special exception.

Mr. Callahan recalled the major concern of two weeks ago was not that there were individuals in residential or commercial who were denied rights, but rather it was that people who are in LI currently were concerned about their rights being changed. Mr. Callahan stressed that non-conforming uses are still being created for those in LI if the proposal moves forward.

While acknowledging that in the strictest sense that would be true, Mr. Schweder explained that people would be given the opportunity to change that. Mr. Schweder continued on to observe in light of the fact that some of the larger dealerships are currently in CG this would make it uniform, except for those who chose not to do so.

Mr. Callahan asserted that, if the goal is to right the inequities of the dealerships that are in Residential or Commercial, then the goal would be to allow them to be there by right and not create seven or eight more inequities. He continued on to say the logical step would be to allow those who are in Residential or Commercial to be there by right just as the individuals are in LI. Mr. Callahan pointed out that one of the major concerns from the Planning Commission as well as from some of those who spoke at the Public Hearing was if the higher industrial areas are rezoned to office parks then essentially the Light Industrial zoning district would be eliminated as an option for car dealerships. Mr. Callahan, continuing on to note another point of the Planning Commission was that residential uses are allowed in commercial districts, said a concern of the Planning Commission was why would car dealerships which have some noxious elements such as painting and auto body work exist right next to residential areas. Mr. Callahan stressed a conclusion from the last City Council Meeting was that car dealerships have existed in Light Industrial for 50 and 60 years without complaint; and, the Administration has stated the only complaints received about car dealerships are about those in commercial areas that are close to residential. Mr. Callahan remarked that the consensus as he heard it at the Public Hearing was that Light Industrial is the perfect place for car dealerships. Commenting that he has a number of other reasons why he would not recommend moving forward with the proposal tonight, Mr. Callahan did not think that Mr. Schweder's proposal does anything to help anybody who expressed concerns at the last Council meeting and just complicates matters. Mr. Callahan restated the logical step would be to allow those that are in commercial and residential to be there by right.

President Gregory said his thoughts are not to combine the proposals, but rather to vote the Bill up or down, and go on from there. While acknowledging it was a surprise to him that car dealers were not in the Commercial General zoning district by right, President Gregory noted one of his concerns is that those who now have property in LI, even if they do not have a car dealership, would lose that right.

Mr. Schweder, indicating that he would be happy to consider Bill 43 separately, said he would propose that the additional change be considered later in the Agenda.

Ms. Szabo thought the best action tonight would be to table Bill 43 in view of the information presented and the fact that the proposal related to car dealerships in the CG area by right is not in writing. She added there should be a discussion on the proposal in order that there is time to evaluate the amendment and the entire issue.

Mr. Callahan remarked that the other proposal has nothing to do with the change that would be made to LI. Mr. Callahan said he sees no new information presented about the issue before Council this evening. Commenting that if Council wants to allow the other dealerships in residential and commercial to have the same rights as those in LI by right then it is up to Council to move forward with that, Mr. Callahan reiterated that is a separate issue and he sees no reason to stop moving forward with a vote on Bill 43 because the matter has been reviewed enough and interested parties would have to come back another night. Mr. Callahan, continuing on to highlight the fact that there are non-conforming uses for businesses throughout the City, asserted "this is not an issue that is crying out to be solved."

President Gregory, expressing his agreement with Mr. Callahan's comments, commented that whether or not to keep automobile sales and services in LI is the same issue that was heard about at the Public Hearing. President Gregory added that Council can address the other proposal brought up by Mr. Schweder no matter how Bill 43 is voted on this evening.

Mr. Donchez expressed his agreement with President Gregory, and thought they were two separate issues that should be voted on separately. Mr. Donchez asked if Joseph Leeson, City Solicitor, and Christopher Spadoni, City Council Solicitor, would like to make any comments on the legal opinions they rendered.

Attorney Leeson noted he was asked for an opinion concerning Bethlehem Car Country and whether enactment of the initial Ordinance, Bill 43, would stop its construction. Attorney Leeson affirmed he has issued an opinion that it would not. Attorney Leeson continued on to say it was his opinion that the pending ordinance doctrine is not applicable to a land development situation. Attorney Leeson, turning to the definition of land development, read from Section 107 of the Pennsylvania Municipalities Planning Code (MPC) in which it was stated that land development consists of the improvement of two or more residential buildings, or a single non-residential building. Consequently, Attorney Leeson said the proposal of Bethlehem Car Country for development of the site meets the definition of the law, and the statute is clear in that one cannot stop that type of development. Continuing on to note one of the questions that arose has to do with the issuance of a building permit, Attorney Leeson stated both he and Attorney Spadoni explored that issue. Attorney Leeson, explaining his research leads him to believe that the focus of the case law concerning the building permit has to do with what is not in the definition of the statute, repeated the definition, and pointed out that is not what is being dealt with.

Attorney Spadoni, commenting that he would echo Solicitor Leeson's perspective on the matter, said he would join in that approach. Attorney Spadoni noted his memorandum was generated as a result of Mr. Donchez's request, and that he reviewed Attorney Leeson's opinion over the weekend. Attorney Spadoni said he thinks Solicitor Leeson is correct and he has opined in that regard not only in his memorandum today but previously in a memorandum to the file that, as to the land development process and the subdivision process, the pending ordinance rule would not apply. However, Attorney Spadoni stated that the focus of the inquiry specifically with reference to Bethlehem Car Country is whether a building permit would be required. Attorney Spadoni said it is his considered opinion after reading the Naylor case of the Supreme Court that if a building permit is required the pending ordinance rule would become operative. Attorney Spadoni stated that the Planning Commission is looking at a land development plan and the pending ordinance rule would not apply to that review process. Attorney Spadoni, with reference to the plans that he reviewed, noted there is a parking lot, there is demolition, and there is some rebuilding at the site, and said as he views the matter it would require a building permit. Attorney Spadoni continued on to say that early this afternoon he spoke with John Lezoche, Zoning Officer, and Craig Hynes, Chief Building Inspector, and he believes they indicated that building permits would be necessary. Attorney Spadoni restated that, as to the land development review, the pending ordinance rule does not apply, but as to whether a building permit would be required in this site and client specific review then the Naylor case would control as it is the most recent pronouncement by the Supreme Court.

Mr. Delgrosso recounted that, as was said by Attorney Florenz at the Public Hearing, if Council votes to take automobile dealerships out of LI they would have no rights because the only other place in which they could be located would be General Commercial by exception. Mr. Delgrosso felt that under every zoning law there should be places where uses can exist by right. Mr. Delgrosso observed that by Council voting to pass on Bill 43 on First Reading this evening it could lead to taking away automobile dealerships' rights which means they would have no where to go. Mr. Delgrosso commented that Mr. Schweder's other proposal to put them in General Commercial is an argument that is up for debate, and he would like to hear what the Planning Commission has to say about it. Mr. Delgrosso, observing there are six automobile dealerships in LI and the largest are in General Commercial which is not by right, commented it would be interesting to see how the dealers feel about it. Mr. Delgrosso, noting that under Mr. Schweder's proposal those in LI could remain there but could request a rezoning, expressed the belief that a General Commercial zoning designation may increase their property value. Mr. Delgrosso communicated that the issue is worth a debate. Mr. Delgrosso commented that, even if he were to support the Bill tonight, on Final Reading more clarification would be needed because he does not want to see a situation where people would not have the right to have their business anywhere. Mr. Delgrosso, focusing on the discussions this evening, communicated that time could be a favorable factor. Mr. Delgrosso questioned if Bill 43 is tabled, and Mr. Schweder's new proposal is considered, would that take away any litigation or problems; or, should Bill 43 be voted First Reading and then possibly table it on Final Reading to have input on Mr. Schweder's new proposal. Mr. Delgrosso thought then there would be a comprehensive debate and a better decision could be made.

Mr. Schweder inquired whether, with respect to the land use; i.e., Bethlehem Car Country, that will go before the Planning Commission on December 12, both Solicitors are in agreement that under the pending ordinance law action taken by the Planning Commission at that point would not in any way "kick in" the pending ordinance law of the Commonwealth of Pennsylvania.

Attorney Spadoni responded that is correct.

Mr. Schweder asked if, with respect to a building permit, it is the opinion of both Solicitors that a building permit would in fact "kick in" the pending ordinance law of the Commonwealth of Pennsylvania.

Attorney Spadoni replied "that is my opinion." Attorney Leeson responded that, if it is of a different type of development, possibly yes, but based on his examination of the plans no.

Mr. Schweder queried what type of actions would necessitate a building permit being issued by the City on this or any project.

Attorney Leeson replied an application to build a single family residence. Attorney Leeson, in further response to Mr. Schweder, said the definition of the MPC which he read clearly uses the words single non-residential building as being included as far as land development so that modifications and improvements can be made to a single non-residential building and not trigger the building permit document.

Mr. Schweder asked if Attorney Leeson is saying that a demolition on this given property would not trigger a requirement for those individuals to seek a building permit.

Attorney Leeson responded, no, it would not trigger the building permit document. Attorney Leeson explained, in other words, the MPC is written so that land development cannot be stopped by a pending ordinance when one is dealing with a non-residential building. One can make improvements to it, can demolish it, and can make alterations to it, and none of that is prohibited.

Mr. Schweder wondered why the City of Bethlehem requires every other contractor to obtain a building permit.

Attorney Leeson explained in this instance with the pending ordinance doctrine it would still require that a permit be applied for and issued; however, the City could not invoke the pending ordinance doctrine to stop the development from occurring. In further response to Mr. Schweder, Attorney Leeson advised this is a discussion that really focuses on the issue of whether it is appropriate to use the vehicle of a change of zoning on multiple properties to stop a development on one property. Attorney Leeson explained that, years ago, the legislature recognized it can be done for the public benefit sometimes, and sometimes it can also be done for other reasons. Consequently, in 2000, the State legislature amended the Municipalities Planning Code and, recognizing that sometimes there were occasions when the pending ordinance doctrine should not apply, the state legislature wrote in that the building permit concept would not apply with respect to the pending ordinance doctrine on a land development involving a non-residential structure.

Mr. Schweder communicated it is interesting that the City requires a building permit by every contractor to do anything that is currently being proposed under this project, and it is in fact called a building permit.

Mr. Callahan did not think there is a need to send these issues back to the Planning Commission, and did not think the Planning Commission could be any clearer in their opinion that was a unanimous vote. Mr. Callahan expressed he does not know what sending the issue back to Planning would accomplish other than to try to get a different opinion. Mr. Callahan insisted that to say if this change were made the owners of property in LI who currently use their properties as a car dealership or a service station would have the same rights and be grandfathered to have the same rights "is just completely false." Mr. Callahan, reading from Article 1323 of the Zoning Ordinance addressing procedures governing non-conforming uses that "…these regulations are designed to restrict further investment in such uses", stressed the provision restricts the ability of that property owner to invest in their own business. He pointed out that the motor vehicle sales and service agencies have existed in these locations for 50 years without complaint. Mr. Callahan highlighted the fact that these uses are, however, affected if they choose to expand, they abandon their business, or if their business is destroyed by greater than 60% they are not allowed to rebuild it. Reiterating that anyone who sits at Council's table and thinks that these business owners can just go about their business and continue their operations is just false, Mr. Callahan asserted what is being proposed is unfair to these individuals as well as any owner of property in the LI zoning district right now. Turning to the former Durkee spice plant site on Eighth Avenue, Mr. Callahan communicated he is not in favor of its development as a car auction any more than anyone on Council. However, Mr. Callahan remarked that the fact is the owner spent $3 million for the property, has the right to put a car auction there, and the rules should not change halfway through the game. Denoting there are conflicting opinions from solicitors, Mr. Callahan asserted "we are very quickly going to send ourselves into litigation. We're going to spend taxpayers money to argue a bad decision to start with…". Mr. Callahan, continuing on to stress it is not just the former Durkee site, stated "we are denying a potentially lucrative use of every LI property owner in the City, and why. We've yet to hear a good, salient argument for why we're doing this." Mr. Callahan felt that Council should move forward with the vote and vote the Ordinance down.

Ms. Szabo pointed out a suggestion has been made that merits attention and she thought there should be discussion on it. Ms. Szabo, highlighting the fact that if the Ordinance is not tabled tonight there are only two weeks until Final Reading, wondered when would Council get all the information and be able to discuss the matter. Ms. Szabo asserted that Council should discuss things thoroughly.

Mr. Schweder explained he is suggesting that Council vote tonight on Bill 43 - 2002, which is an amendment to the Zoning Ordinance Section 1316.02 to delete motor vehicle sales and service agencies in the LI Zoning District. Mr. Schweder continued on to say that the additional proposal he will make as a motion later in the meeting this evening is to send to the Planning Commission the proposed amendment to the Zoning Ordinance to place automobile sales and service agencies in the CG General Commercial District by right. Mr. Schweder, noting that the Planning Commission would probably review the proposal at its meeting in January 2003, stated that the Planning Commission's recommendation would be forwarded to City Council, a Public Hearing would be held, and Council would make a determination on the proposal. Mr. Schweder, expressing his agreement with Ms. Szabo that it would take time to discuss, communicated if Council concurs then those needs would be met as well.

Mr. Callahan explained that his comments referred to Mr. Delgrosso's idea that the matter be looked at in a more comprehensive way and send it back to the Planning Commission. Mr. Callahan thought that the Planning Commission was very clear on the issue before Council tonight. Mr. Callahan elucidated that what he said earlier has nothing to do with the additional information brought out tonight and any additional changes that would be made to the CG or residential zoning districts with respect to car dealerships. Mr. Callahan stated that everything he said this evening in relation to the restrictions that would be placed on LI users is not anything new, does not require any more discussion, and Council should move forward and vote on the Bill.

Mr. Delgrosso pointed out that the three largest car dealers; i.e., Bethlehem Suburban Ford, Jack Jones, and Straub, are restricted and cannot do certain things if the proposed changes are made in the LI District. However, if automobile sales and service agencies would be allowed by right in the CG District, then the three largest dealers would have the opportunity to change things and would be given different rights. Mr. Delgrosso communicated that in his mind the LI - Light Industrial District is for fixing, repairing, and manufacturing while the Commercial District is for the selling of items. Mr. Delgrosso expressed that perhaps the zoning of the past designated it in the wrong site. Mr. Delgrosso, stating that he will vote on the Ordinance without prejudice and noting that he does not think he can accept the dealers having no rights in any district, commented that he would like to hear the debate on why automobile sales and service agencies should be in LI rather than a Commercial zone. In the meantime, Mr. Delgrosso noted there would be no effect on the dealers until something would be done.

Mayor Cunningham, inquiring about the procedure involved in a change within the Zoning Ordinance, noted there would be review by the Planning Commission and a Public Hearing prior to a First Reading vote on an Ordinance.

Mr. Schweder affirmed that the motion would be to send the request for the change to the Planning Commission, as any citizen could do.

Mrs. Belinski expressed her agreement that Council should vote on Bill 43 - 2002 tonight without prejudice, and send Mr. Schweder's suggestion to the Planning Commission.

President Gregory, remarking that simply voting down Bill 43 would remove the confusion, thought that if the Bill is passed "we're going to beg for litigation". President Gregory continued on to say if automobile sales and service agencies are taken out of the LI District people who have the right now are going to have a property value loss. Turning to the issue of development of the former Durkee site, President Gregory noted that is another matter and one on which the City Council Solicitor and City Solicitor disagree. President Gregory, focusing on Bill 43 - 2002, asserted "we should vote it down because it's right to do so." President Gregory stressed he does not think there is any reason to take automobile dealers out of the LI District. President Gregory stated no matter what Council does with the issue related to the proposed change in the CG District "this issue tonight needs to be voted down." Posing the question why does Council want to do this, President Gregory expressed his agreement with Mr. Callahan that Council should not vote without prejudice tonight and reiterated that instead Council should vote Bill 43 down tonight. President Gregory added that, if Council desires, it can still deal with the issue related to the proposed change in the CG District either way.

Voting AYE: Mrs. Belinski, Mr. Delgrosso, Mr. Schweder, and Ms. Szabo, 4. Voting NAY: Mr. Callahan, Mr. Donchez, Mr. Gregory, 3. Bill No. 43 - 2002 was declared passed on First Reading.

B. Bill No. 44 - 2002 - Establishing New Article 905.02 - New Developments - Curb, Gutter, and Sidewalk Requirements

The Clerk read Bill No. 44 - 2002, Establishing New Article 905.02 - New Developments - Curb, Gutter, and Sidewalk Requirements, sponsored by Mr. Callahan and Mrs. Belinski, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM, COUNTIES OF LEHIGH AND NORTHAMPTON, COMMONWEALTH OF PENNSYLVANIA, AMENDING ARTICLE 905 OF THE CODIFIED ORDINANCES ENTITLED "STREET IMPROVEMENTS; ASSESSMENTS."
Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 44 - 2002 was declared passed on First Reading.
C. Bill No. 45 - 2002 - Adopting the 2003 General Fund Budget

The Clerk read Bill No. 45 - 2002, Adopting the 2003 General Fund Budget, sponsored by Mr. Callahan and Mr. Donchez, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM, COUNTIES OF LEHIGH AND NORTHAMPTON, COMMONWEALTH OF PENNSYLVANIA, ADOPTING THE GENERAL FUND BUDGET FOR 2003.
Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 45 - 2002 was declared passed on First Reading.
D. Bill No. 46 - 2002 - Adopting the 2003 Water Fund Budget

The Clerk read Bill No. 46 - 2002, Adopting the 2003 Water Fund Budget, sponsored by Mr. Delgrosso and Mr. Callahan, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM, COUNTIES OF LEHIGH AND NORTHAMPTON, COMMONWEALTH OF PENNSYLVANIA, ADOPTING THE WATER FUND BUDGET FOR 2003.
Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 46 - 2002 was declared passed on First Reading.
E. Bill No. 47 - 2002 - Adopting the 2003 Sewer Fund Budget

The Clerk read Bill No. 47 - 2002, Adopting the 2003 Sewer Fund Budget, sponsored by Mr. Delgrosso and Mr. Callahan, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM, COUNTIES OF LEHIGH AND NORTHAMPTON, COMMONWEALTH OF PENNSYLVANIA, ADOPTING THE SEWER FUND BUDGET FOR 2003.
Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 47 - 2002 was declared passed on First Reading.
F. Bill No. 48 - 2002 - Adopting the 2003 Golf Course Enterprise Fund Budget

The Clerk read Bill No. 48 - 2002, Adopting the 2003 Golf Course Enterprise Fund Budget, sponsored by Mr. Donchez and Mrs. Belinski, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM, COUNTIES OF LEHIGH AND NORTHAMPTON, COMMONWEALTH OF PENNSYLVANIA, ADOPTING THE GOLF COURSE ENTERPRISE FUND BUDGET FOR 2003.
Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 48 - 2002 was declared passed on First Reading.
G. Bill No. 49 - 2002 - Adopting the 2003 Liquid Fuels Fund Budget

The Clerk read Bill No. 49 - 2002, Adopting the 2003 Liquid Fuels Fund Budget, sponsored by Mr. Callahan and Mr. Donchez, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM, COUNTIES OF LEHIGH AND NORTHAMPTON, COMMONWEALTH OF PENNSYLVANIA, ADOPTING THE LIQUID FUELS FUND BUDGET FOR 2003.
Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 49 - 2002 was declared passed on First Reading.
H. Bill No. 50 - 2002 - Adopting the 2003 Capital Budget for Non-Utilities

The Clerk read Bill No. 50 - 2002, Adopting the 2003 Capital Budget for Non-Utilities, sponsored by Mr. Callahan and Mr. Donchez, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM, COUNTIES OF LEHIGH AND NORTHAMPTON, COMMONWEALTH OF PENNSYLVANIA, ADOPTING THE 2003 CAPITAL BUDGET FOR NON-UTILITIES.
Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 50 - 2002 was declared passed on First Reading.
I. Bill No. 51 - 2002 - Adopting the 2003 Capital Budget for Water Utilities

The Clerk read Bill No. 51 - 2002, Adopting the 2003 Capital Budget for Water Utilities, sponsored by Mr. Callahan and Mr. Delgrosso, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM, COUNTIES OF LEHIGH AND NORTHAMPTON, COMMONWEALTH OF PENNSYLVANIA, ADOPTING THE 2003 CAPITAL BUDGET FOR WATER UTILITIES.
Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 51 - 2002 was declared passed on First Reading.
J. Bill No. 52 - 2002 - Adopting the 2003 Capital Budget for Sewer Utilities

The Clerk read Bill No. 52 - 2002, Adopting the 2003 Capital Budget for Sewer Utilities, sponsored by Mr. Callahan and Mr. Delgrosso, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM, COUNTIES OF LEHIGH AND NORTHAMPTON, COMMONWEALTH OF PENNSYLVANIA, ADOPTING THE 2003 CAPITAL BUDGET FOR SEWER UTILITIES.
Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 52 - 2002 was declared passed on First Reading.
K. Bill No. 53 - 2002 - Adopting the 2003 Community Development Budget

The Clerk read Bill No. 53 - 2002, Adopting the 2003 Community Development Budget, sponsored by Mr. Callahan and Mr. Donchez, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM, COUNTIES OF LEHIGH AND NORTHAMPTON, COMMONWEALTH OF PENNSYLVANIA, ADOPTING THE COMMUNITY DEVELOPMENT BUDGET FOR 2003.
Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 53 - 2002 was declared passed on First Reading.
L. Bill No. 54 - 2002 - Adopting the 2003 9-1-1 Fund Budget

The Clerk read Bill No. 54 - 2002, Adopting the 2003 9-1-1 Fund Budget, sponsored by Mr. Callahan and Mr. Donchez, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM, COUNTIES OF LEHIGH AND NORTHAMPTON, COMMONWEALTH OF PENNSYLVANIA, ADOPTING THE 9-1-1 FUND BUDGET FOR 2003.
Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 54 - 2002 was declared passed on First Reading.
M. Bill No. 55 - 2002 - Fixing the 2003 Tax Rate for All City Purposes

The Clerk read Bill No. 55 - 2002, Fixing the 2003 Tax Rate for All City Purposes, sponsored by Mr. Callahan and Mrs. Belinski, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM, COUNTIES OF LEHIGH AND NORTHAMPTON, COMMONWEALTH OF PENNSYLVANIA, FIXING THE TAX RATE FOR ALL CITY PURPOSES FOR THE YEAR 2003.
Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 55 - 2002 was declared passed on First Reading.
N. Bill No. 56 - 2002 - General Obligation Note - Municipal Street Lighting System

The Clerk read Bill No. 56 - 2002, General Obligation Note - Municipal Street Lighting System, sponsored by Mr. Callahan and Mrs. Belinski, and titled:

AN ORDINANCE OF THE COUNCIL OF THE CITY OF BETHLEHEM, NORTHAMPTON AND LEHIGH COUNTIES, PENNSYLVANIA (THE "CITY"), AUTHORIZING AND DIRECTING ISSUANCE OF A GENERAL OBLIGATION NOTE, SERIES OF 2002, IN THE PRINCIPAL AMOUNT NOT TO EXCEED $5,500,000; DESCRIBING THE PROJECT FOR WHICH SAID DEBT IS TO BE INCURRED; DETERMINING THAT SUCH DEBT SHALL BE NONELECTORAL DEBT OF THE CITY; DETERMINING THAT SAID NOTE SHALL BE SOLD AT PRIVATE SALE BY NEGOTIATION; ACCEPTING A PROPOSAL FOR PURCHASE OF SAID NOTE, AT PRIVATE SALE, AND AWARDING SUCH NOTE AND SETTING FORTH RELATED PROVISIONS; FIXING THE SERIES, SUBSTANTIAL FORM, DATE, MATURITY DATE, INTEREST RATE, INTEREST PAYMENT DATES, REGISTRATION PRIVILEGES, PLACE OF PAYMENT OF PRINCIPAL AND INTEREST AND PREPAYMENT PROVISIONS OF SUCH NOTE; PROVIDING THAT SUCH NOTE, WHEN ISSUED, SHALL BE A GENERAL OBLIGATION NOTE OF THE CITY; PROVIDING COVENANTS RELATED TO DEBT SERVICE APPLICABLE TO SUCH NOTE AS REQUIRED BY THE LOCAL GOVERNMENT UNIT DEBT ACT, 53 Pa.C.S.A. § 8001 ET SEQ., AS AMENDED AND SUPPLEMENTED, AND THE PENNSYLVANIA CONSTITUTION AND PLEDGING THE FULL FAITH, CREDIT AND TAXING POWER OF THE CITY IN SUPPORT THEREOF; SPECIFYING A REASONABLE ESTIMATE OF THE USEFUL LIFE OF SAID PROJECT; AUTHORIZING EXECUTION, ATTESTATION AND AUTHENTICATION OF SUCH NOTE; CREATING A SINKING FUND IN CONNECTION WITH SUCH NOTE AS REQUIRED BY SUCH DEBT ACT; APPOINTING A PAYING AGENT, REGISTRAR AND SINKING FUND DEPOSITORY; PROVIDING A COVENANT TO INSURE PROMPT AND FULL PAYMENT OF ALL OBLIGATIONS OF SUCH NOTE WHEN DUE; RATIFYING PRIOR ADVERTISEMENT AND DIRECTING FURTHER ADVERTISEMENT; AUTHORIZING AND DIRECTING THE PREPARATION, EXECUTION AND FILING OF A TRANSCRIPT OF PROCEEDINGS, INCLUDING A DEBT STATEMENT AND A BORROWING BASE CERTIFICATE, WITH THE DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT; DECLARING THAT THE DEBT TO BE INCURRED TOGETHER WITH OTHER INDEBTEDNESS OF THE CITY, NOT TO BE IN EXCESS OF ANY LIMITATION IMPOSED BY SUCH DEBT ACT UPON THE INCURRING OF DEBT BY THE CITY; SETTING FORTH CERTAIN COVENANTS RELATING TO THE NON-ARBITRAGE STATUS OF SUCH NOTE; DESIGNATING THE NOTE AS A QUALIFIED TAX-EXEMPT OBLIGATION UNDER SECTION 265 (B)(3) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED; CREATING A PROJECT ACCOUNT; AUTHORIZING THE PAYMENT OF EXPENSES; PROVIDING GUIDELINES FOR PERMITTED INVESTMENTS; AUTHORIZING AND DIRECTING APPROPRIATE OFFICERS OF THE CITY TO DO AND PERFORM CERTAIN SPECIFIED, REQUIRED OR APPROPRIATE DEBT ACTS AND THINGS; ADOPTING THE FORM OF NOTE; PROVIDING FOR SEVERABILITY OF PROVISIONS; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES INSOFAR AS THE SAME SHALL BE INCONSISTENT HEREWITH; AND PROVIDING WHEN THIS ORDINANCE SHALL BECOME EFFECTIVE.
Mr. Delgrosso queried if this is similar to a line of credit from a bank. Attorney Peter Carlucci, Bond Counsel, replying yes, explained it is structured as a draw, and there would be certain draws made at certain times. Mr. Delgrosso asked why the full amount of $5 million is being requested, instead of requesting $1 million, for example, and rolling that amount into a larger financing at a later date since only a portion of the total amount would be used for about six months to a year.
Attorney Carlucci responded his understanding is that the overall project cost is presently estimated to be approximately $5.5 million or less, and the overall project is estimated to take about 18 months to reach completion. At that time, the City would be in a position to roll in the amount into a more permanent long-term financing with a principal amount that is definitive based upon actual project costs.

Mr. Delgrosso restated his question is why the City should go to the bank for the total amount of the project when that total amount is not needed for the start-up phase of the project.

Attorney Carlucci said his understanding is that this is a one time borrowing in order to fund the project through completion which is an 18 months period. Attorney Carlucci continued on to say it is a two year note during which the full project cost could reach $5.5 million. Attorney Carlucci restated that, by putting the line of credit in place, once the project gets underway there are the funds available in order to accomplish it.

Mr. Delgrosso inquired whether it would be advantageous at some point when the project is moving forward for the City to undertake a bond issue in light of the current low interest rates.

Attorney Carlucci explained that once the project is at a stage where the costs can be more definitively estimated it certainly would be timely to move whatever is the amount outstanding in the short term financing into a long term financing.

Dennis Reichard, Business Administrator, expressed his concurrence with moving to a long term bond issue at that time.

Mayor Cunningham highlighted the fact that the City must negotiate a purchase price with PPL for the street lights. He added that, obviously, if the City cannot get the price it wants then the scenario does not work out.

Mr. Delgrosso queried if the City enters into a short term note for the full amount it would only incur the costs up to that time; e.g. three or four months, and the City could cancel the remainder of the note at that certain point in time. Mr. Reichard said that is correct.

Mr. Delgrosso, observing that the project life is listed at 30 years, noted that does not preclude the City from entering into a bond issue for less time. Attorney Carlucci said that is correct.

Attorney Carlucci, in response to Ms. Szabo, affirmed that the word even on page 3, in section 5 will be corrected to event.

Mr. Callahan commented that although the City is getting approval for the line of credit to cover the entire project the City would pay interest only on the amount of money used. Mr. Reichard affirmed that the amount of money used is the amount on which interest would be paid.

Mr. Delgrosso communicated that, if Council is interested, there are firms that would review the proposal. Mr. Delgrosso added that such a review would need to be done through Council's Professional Services account.

In response to Ms. Szabo, Attorney Carlucci advised that 4.67% is a ten year rate versus the 4.04% rate which is a short term rate.

Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 56 - 2002 was declared passed on First Reading.

Motion - Adding Bill No. 57 - 2002

Mr. Schweder and Mrs. Belinski moved to add Bill No. 57 - 2002 to the Agenda. Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. The motion passed.

O. Bill No. 57 - 2002 - Amending 2002 General Fund Budget - Local Law Enforcement Block Grant Equipment and DUI Overtime

The Clerk read Bill No. 57 - 2002, Amending 2002 General Fund Budget - Local Law Enforcement Block Grant Equipment and DUI Overtime, sponsored by Mr. Callahan and Mr. Donchez, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM, COUNTIES OF LEHIGH AND NORTHAMPTON, COMMONWEALTH OF PENNSYLVANIA, AMENDING THE GENERAL FUND BUDGET FOR 2002.
Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 57 - 2002 was declared passed on First Reading.
11. RESOLUTIONS

A. Authorizing Execution of Public Access Program Agreement - Pennsylvania Game Commission

Mr. Donchez and Mr. Schweder sponsored Resolution 13,955 which authorized the Mayor and the Controller to execute a Public Access Program Agreement with the Pennsylvania Game Commission, and such other agreements and documents as deemed necessary or related, for the Bethlehem Authority property at the watershed.