Council Minutes

February 17, 2004 Meeting Minutes

BETHLEHEM CITY COUNCIL MEETING
Bethlehem, Pennsylvania
Tuesday, February 17, 2004 – 7:30 PM – Town Hall

1. INVOCATION
2. PLEDGE TO THE FLAG
3. ROLL CALL

President J. Michael Schweder called the meeting to order. Reverend Edith B. Roberts of
St. Peter’s Evangelical Lutheran Church offered the invocation which was followed by the pledge to the flag. Present were Ismael Arcelay, Jean Belinski, Robert J. Donchez, Joseph F. Leeson, Jr., Gordon B. Mowrer, Magdalena F. Szabo, and J. Michael Schweder, 7.

CITATIONS

Honoring Joseph Baran and Wilfred Williams

President Schweder stated that the Citation honoring Joseph Baran on the occasion of his retirement after 20 years of service to the City in the Police Department; and, the Citation honoring Wilfred Williams on the occasion of his retirement after 28 years of service to the City in the Police Department will be forwarded to them since they were unable to be present at the meeting this evening.

PUBLIC HEARING

Intermunicipal Liquor License Transfer – 4200 Lehigh Street, Cherryville to 1214 Stefko Boulevard, Bethlehem

Prior to the consideration of the regular Agenda items, President Schweder called to order a Public Hearing to receive public comment on the Application for the Intermunicipal Transfer of Restaurant Liquor License Number R-7018 from Cherryville Restaurant, 4200 Lehigh Street, Cherryville, Pennsylvania 18035, Lehigh Township, Northampton County to JGD, Inc., 1214 Stefko Boulevard, Northampton County, Bethlehem, Pennsylvania 18017, as required under the Pennsylvania Liquor Code 47 P.S. Section 4-461 (b.3).

Attorney Paula Roscioli stated she is at the meeting as a representative for JGD, Inc., a Pennsylvania corporation. Attorney Roscioli explained that permission is being sought from the City of Bethlehem to transfer the liquor license that JGD, Inc. has purchased from the Cherryville Restaurant located in Lehigh Township, and would like to transfer it to the City of Bethlehem. Attorney Roscioli continued on to note that, if permission is received from the City of Bethlehem, then the client would be required to go through the regular licensing procedures through the Pennsylvania Liquor Control Board. Attorney Roscioli said the intention at this point in time is to transfer this liquor license to 1214 Stefko Boulevard where her client is currently involved in the Six Pack Shack that is a restaurant liquor license as well. The license that is at the Six Pack Shack would be placed in safekeeping. Attorney Roscioli explained this whole procedure is taking place because one cannot purchase and transfer a liquor license except to an open and existing licensed establishment. The client does not know what he will ultimately do with the license. Attorney Roscioli further commented “there has been a lot of development in the City of Bethlehem, a lot of wonderful restaurants that have opened, a lot of plans for the Bethlehem Steel property, and so my client’s intention is to keep this liquor license at the current time with the hopes of sometime down the road in the next several years opening or investing into a new restaurant business in the City or Bethlehem.

Ms. Szabo inquired why the client is applying for a second license.

Attorney Roscioli responded there is a license that is currently at the 1214 Stefko Boulevard location. Continuing on to reply that there cannot be two licenses at one location, Attorney Roscioli said “however, you cannot purchase and transfer a liquor license unless you have an open and existing business. So what we will be doing is transferring or placing the current license in safekeeping with Harrisburg so that we are able to transfer the license that is being purchased from Lehigh Township to the location at 1214 Stefko Boulevard. So, for purposes of this evening and this particular transfer at this time, it will not change any business that is currently in existence in the City of Bethlehem. But down the road what we are hoping to do is to open up a new business, or to invest in a new business, at which point we would transfer that license to another location and take the current license out of safekeeping and put it back into the location at 1214 Stefko Boulevard.

Ms. Szabo queried why the client has to have two licenses since both are not going to be used currently, and questioned why the client cannot work with the first license.

Attorney Roscioli explained the reason is because the new license cannot be purchased without having an open business establishment to transfer it to. So, what the client would have had to do would be to purchase a new location, get it up and running, and then transfer the license to that new location. In addition, sometimes licenses are not available for purchase.

Ms. Szabo asked, since there is not a second business, why buy a second license. Ms. Szabo questioned why the client does not wait until there is a business since it may be years down the road.

Attorney Roscioli, while acknowledging that certainly makes sense, explained that licenses are not always available, and at this particular time there was a license available from the Cherryville Restaurant because of a death, it was available through an estate, and it was a good opportunity for her client to purchase that license in view of the fact that liquor licenses are not always available. Attorney Roscioli exemplified that some restaurants, known as BYOB’s, may be looking for liquor licenses to purchase. Reiterating that liquor licenses are not always available, Attorney Roscioli acknowledged that a business person such as her client has to look at that opportunity. Since they do not know the exact location to which they would like to transfer the liquor license down the road, the client is looking to transfer it to this location at the current time.

Ms. Szabo observed it would seem to be manipulating a financial situation rather than an actual need.

Attorney Roscioli pointed out that the standard is whether or not the license being moved to the City of Bethlehem will in any way adversely affect the health, welfare, morals, and well being of the City of Bethlehem. Attorney Roscioli affirmed that the license that is there currently is a license in good standing. Attorney Roscioli continued on to say that the sole shareholder of JGD, Inc. is James G. Dieter, of Dieter Brothers Fuel Company. Attorney Roscioli stressed he is an upstanding member of the community, a strong business person, and has never had any problems with the license that is currently at that location. Attorney Roscioli stated “it’s not a manipulation as much as a legal maneuver in order to transfer a license to a location that we would not otherwise have the opportunity to take advantage of.”

Ms. Szabo commented that she still sees it as a financial investment.

President Schweder questioned whether it is correct that if Attorney Roscioli’s client were to purchase this license they would not have to have this as part of an ongoing business that exists in the City of Bethlehem or anywhere else.

Attorney Roscioli responded “once you…conduct an intermunicipal transfer you cannot transfer it to another municipality for a period of five years.”

President Schweder, affirming he understands that, observed “you could park this legally somewhere else other than an existing location where there is a liquor license, could you not?”

Attorney Roscioli replied “other than a location where there is currently a liquor license, yes you could, but you would have to have a location that would meet all the requirements of the Liquor Control Board and therefore go through a process where you either purchased another location. You can’t simply transfer a liquor license to a warehouse or to any other location.”

President Schweder noted it could be transferred to somewhere that would meet the zoning requirements and the specifications of the Liquor Control Board.

Attorney Roscioli said conceivably yes, if there was that opportunity at the current time.

President Schweder noted that City Council would have the right either to approve or disapprove this request at the March 2, 2004 City Council Meeting, as established. Assuming the request is approved, President Schweder highlighted the fact that the City “would then forego all of its rights to have any say really over the location of this license once it’s established in the City of Bethlehem because once it’s in this municipality the Liquor Control Board then determines the approval.”

Attorney Roscioli stated that the City still has the rights under zoning requirements.

President Schweder pointed out that the City would not have the same rights it has under the Liquor Law that it does now. President Schweder stressed this is open-ended because the City is then passing on its ability to have any say if and when this new business, whenever that might be, comes into place.

Attorney Roscioli said “you are absolutely correct that once you have agreed to permit this new license to come into the City of Bethlehem you will not be approving under this procedure the license being transferred to another location. However, you would still have all the rights that you do under zoning and other approvals that the City normally has.”

President Schweder, advising the City would have those rights regardless, asserted the City would have less, though, after this transfer.

Attorney Roscioli stated “the only decision that you’re making tonight is whether or not to permit a new license to come into the City of Bethlehem, and I would certainly suggest that the City of Bethlehem is the very city where we are opening up new restaurants. It’s a great place to come to downtown Bethlehem to go to all the fine restaurant establishments that we have here. And, therefore, I think it can only benefit the City, especially with all of the development that we’re looking to accomplish in the next few years to have those opportunities. There may be a big chain restaurant, like a Bennigan’s or a TGI Friday’s that we may wish to attract to the downtown Bethlehem area or the industrial area once the development occurs. That will be a license that may be available then for an investment purpose to transfer to that location.”

President Schweder observed “the other side of that coin is that you would not have to come to downtown Bethlehem or to the industrial area with this liquor license once it’s here. You could place it anywhere that met any zoning requirements that the City had.”

Attorney Roscioli responded “provided it met the zoning requirements, yes, we could. And that’s why I think you have to look at the particular individual involved, and the fact that he as the sole shareholder of the corporation already has a liquor license in the City of Bethlehem, and it has not been a problem for the City of Bethlehem. He’s been responsible, he has not been cited by the Liquor Control Board, and he has been the kind of person and the kind of corporation that the City of Bethlehem would want being a licensee.”

Mr. Leeson, while acknowledging he does not know whether or not it would be legal, and commenting that if Attorney Roscioli’s client would want to go along with something like this then the opinion of Attorney Spadoni would be requested, said “let’s assume hypothetically that we said to your client that we would grant the approval subject, however, to him coming back at a later date and seeking the approval of Council to where it was he wanted to transfer or sell it within the City. Is that the kind of thing that you feel your client would accept. Would you need to consult the client?”

Attorney Roscioli replied “I think that my client would accept that provided that would still permit him to get confirmation and approval from the Liquor Control Board…We don’t get to that process until there’s been an approval from the City of Bethlehem…We don’t even go to the Liquor Control Board until that point in time. Once there’s been a Resolution passed, then we can apply to the Liquor Control Board for the transfer. So, I think it would be something that my client would be amenable to, but we would need to make sure that it would actually allow us to go through with the transfer. There’s significant funds that are involved when you’re purchasing a liquor license, and certainly he would not want to make that investment because it cannot then be transferred to another municipality for an extended period of time. So if, for example, he were to purchase this license, provisionally, knowing that he would have to come back to the City of Bethlehem, and then the City of Bethlehem would say no we don’t want you to transfer it to this particular location, that could tie up the license for a period of five years. I’m not suggesting that he wouldn’t, but I think we would need to confirm with the Liquor Control Board that that could, in fact, occur without being a problem.”

Mr. Leeson said the reason he raises this as a question is obviously some important questions have been asked and some issues have been raised. Mr. Leeson continued on to say that, without suggesting, he has no idea ultimately how this might come out. Mr. Leeson communicated that, if Attorney Roscioli had any thoughts along the lines of Mr. Leeson’s suggestion, it be researched, the research be furnished to Attorney Spadoni, and consider submitting something assuming that it meets all the legal requirements.

Attorney Roscioli commented certainly and expressed that she appreciates the suggestion.

Public Comment

William Scheirer, 1890 Eaton Avenue, said it strikes him that this legal maneuver is asking for what is in effect a blank check to put a liquor license anywhere in the City. Mr. Scheirer remarked that he would extend Mr. Leeson’s suggestion one step further and that City Council now could say it agrees “provided that the license is going to go here and not there, and be this kind of place and not that kind of place…You might want to refer it to committee and work out some conditions under which you would accept this transfer and then go ahead on that basis, assuming, of course, this could be done legally.”

President Schweder stated that the appropriate Resolution will be placed on the March 2 Council Agenda.

The Public Hearing was adjourned at 7:51 p.m.

4. APPROVAL OF MINUTES

The minutes of January 8, 2004 and February 3, 2004 were approved.

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

None.

6. OLD BUSINESS

None.

7. COMMUNICATIONS

A. City Council Solicitor – Zoning Appeal (Former Durkee Property) – Lehigh County Court of Common Pleas

The Clerk read a letter dated February 10, 2004 from Attorney Christopher T. Spadoni, City Council Solicitor, as follows: “Enclosed please find Notice of Land Use Appeal as filed in the Lehigh County Court of Common Pleas by Attorney Miles filed February 5, 2004. You will note that the appeal is from the January 16, 2004 Decision of the Zoning Hearing Board and I would specifically direct your attention to Paragraph 15 (a-f) inclusive wherein the Appellants allege the action of City Council to be ‘contrary to law, arbitrary, and an abuse of discretion, and not supported by substantial evidence.’ Note that further the appellants allege the legislative action of City Council to be ‘irrational, arbitrary, and unlawful’ and given these averments, it is my strong suggestion that this matter be listed for City Council review and action to intervene in the appeal as filed in Lehigh County. Currently the Zoning Hearing Board, the City, and the developers are parties to this action; however the allegations against City Council mandate City Council intervening in this matter.”

President Schweder stated that authorizing Resolution 11 A is listed on the Agenda.

8 . REPORTS

A. President of Council

None.

B. Mayor

1. Administrative Order – Dr. David G. Beckwith – Board of Health

Mayor John B. Callahan appointed Dr. David G. Beckwith to the Board of Health effective until January 2009. Mr. Donchez and Mr. Arcelay sponsored Resolution 14,293 to confirm the appointment.

Voting AYE: Mr. Arcelay, Mrs. Belinski, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. The Resolution passed.

9. ORDINANCES FOR FINAL PASSAGE

None.

10. NEW ORDINANCES

None.

11. RESOLUTIONS

A. Authorizing City Council Intervention – Land Use Appeal - 1001 Eighth Avenue (Former Durkee Property) - Lehigh County Court of Common Pleas

Mr. Donchez and Mr. Arcelay sponsored Resolution 14,294 which authorized Christopher T. Spadoni, Esq., City Council Solicitor, to file a Notice of Intervention in the Notice of Land Use Appeal docketed at Lehigh County Term No. 2004-C-329 and to file such other and further documents and/or pleadings as are deemed necessary or related to the intervention of Bethlehem City Council in the Appeal.

Voting AYE: Mr. Arcelay, Mrs. Belinski, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. The Resolution passed.

Considering Resolutions As A Group

Mr. Donchez and Mrs. Belinski moved to consider Resolutions 11 B through 11 F as a group.

Voting AYE: Mr. Arcelay, Mrs. Belinski, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. The motion passed.

B Certificate of Appropriateness – 132 West Fourth Street

Mr. Donchez and Mr. Arcelay sponsored Resolution 14,295 that granted a Certificate of Appropriateness to install a 3’ x 4’ wide externally illuminated sign at 132 West Fourth Street.

C. Certificate of Appropriateness – 821-829 East Fourth Street

Mr. Donchez and Mr. Arcelay sponsored Resolution 14,296 that granted a Certificate of Appropriateness to install Therma-Tru doors instead of restoring the existing wood doors at 821-829 East Fourth Street.

D. Certificate of Appropriateness – 509 Main Street

Mr. Donchez and Mr. Arcelay sponsored Resolution 14,297 that granted a Certificate of Appropriateness to replace existing projecting sign at 509 Main Street.

E. Certificate of Appropriateness – 58 East Wall Street

Mr. Donchez and Mr. Arcelay sponsored Resolution 14,298 that granted a Certificate of Appropriateness to construct a carport at 58 East Wall Street.

F. Certificate of Appropriateness – 446-450 Main Street

Mr. Donchez and Mr. Arcelay sponsored Resolution 14,299 that granted a Certificate of Appropriateness to replace the existing slate front roof at 446-450 Main Street.

Voting AYE on Resolutions 11B through 11F: Mr. Arcelay, Mrs. Belinski, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. The Resolutions passed.

12. NEW BUSINESS

Proposed Development – Broad and New Streets

Mr. Leeson complimented the Administration on the great news involving the development at Broad and New Streets. Recounting it is a corner of the City that has been vacant for many years, Mr. Leeson recalled before that the American Hotel, which had become run down, was at the site.

Mr. Leeson, referring to the newspaper article in which the proposed development was announced, questioned whether there was another bid for the property.

Tony Hanna, Director of Community and Economic Development, advised that the City received two proposals. Mr. Hanna, noting it was not a public bidding, explained there was an advertisement for the property. Mr. Hanna stated that the City selected the Pektor proposal over the other proposal that was received based on both price and the nature of the development. Mr. Hanna added that the developer paid the asking price. The Redevelopment Authority board approved it at a public meeting.

13. COURTESY OF THE FLOOR

Truck Engines Running - Sure Fit Building – East Broad Street

Dean Bruch, 625 Hawthorne Road, informed the Members that truck engines are running overnight again at the site of the Sure Fit Building on East Broad Street. Mr. Bruch advised that two to three trucks are parked there in the early evening, remain parked there all night, and keep their diesel engines running. Mr. Bruch suggested that the City could have the shipping department of the offenders tell the delivery drivers that they cannot park in town with their engines running. Highlighting the fact that the site is located near the residential area, Mr. Bruch pointed out that many residents do not like the situation but he is the only one who comes to Town Hall to complain about it.

Mayor Callahan, recounting the situation was brought to the City previously, questioned whether it was corrected but now is occurring again.

Mr. Bruch, responding in the affirmative, observed it is not a problem in the summer and he feels badly for the truck drivers in the winter. However, Mr. Bruch pointed out it is an EPA problem as well in view of the black smoke coming from the trucks that pollutes the air. Mr. Bruch asked that something be done about the situation.

Zoning Hearing Board Meeting – Milham Property – East Broad Street

Mr. Bruch, affirming that he received notice of the Zoning Hearing Board meeting of February 25, 2004 about the former Milham car dealership property on East Broad Street, said he does not have any objection to what would be going there but objects perhaps to the parking. Noting that he wants to know if the religious order is going to pay taxes, Mr. Bruch thought that was an issue the City should look into. Mr. Bruch, stating he does not want the parking to be off-street, communicated he is asking for the City’s consideration to make that point in view of the homes in the area.

Mr. Hanna affirmed that the use as proposed is a permitted use by special exception. The Zoning Hearing Board will review the use and the application. Mr. Hanna confirmed that Mr. Bruch as an affected property owner is entitled to present testimony at the Zoning Hearing Board meeting, and noted that the Board wants to take input from the neighbors. Mr. Hanna added that the Board will be dealing with several issues such as the use and its impact in the neighborhood, and the Board can place conditions on it including the parking conditions that Mr. Bruch raised. Mr. Hanna highlighted the fact that, however, one of the conditions that cannot be placed on the use is that the owners must pay taxes. Mr. Hanna continued on to say that is an issue that will be determined by the tax assessor’s office based upon the use. Mr. Hanna commented that if the use meets the test under State law they could be granted tax exemption and there is not a lot the City can do about it. Mr. Hanna further informed Mr. Bruch that the applicant must come before the Planning Commission for the land development plan after zoning approval.

Street Light Outage

Mr. Bruch advised there is a problem with a street light in the neighborhood for about the past two months. Mr. Bruch expressed the hope that something can be done about it, and stated he will call the City tomorrow with the pole light number.

Handicap Sidewalks

Mr. Bruch observed that ice forms on the handicap sidewalks in the winter because there is no curb and the water freezes at night. Mr. Bruch pointed out that a simple solution to the problem would be for the owner of the adjacent property to shovel the area where the curb rises.

Zoning Hearing Board Meeting – Milham Property – East Broad Street

In response to Ms. Szabo, Mr. Bruch advised that the date of the Zoning Hearing Board meeting on the former Milham car dealership property on East Broad Street is February 25, 2004 in Town Hall. Mr. Hanna notified Ms. Szabo that the time of the meeting is 7:00 PM.

President Schweder was informed by Mr. Hanna that the current zoning of the property is CG – Commercial General. Mr. Hanna restated that the use proposed is a permitted use but requires a special exception.

14. ADJOURNMENT
The meeting was adjourned at 8:07 p.m.
ATTEST:

City Clerk