Council Minutes

December 6, 2005 Meeting Minutes

BETHLEHEM CITY COUNCIL MEETING
Bethlehem, Pennsylvania
Tuesday, December 6, 2005 – 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 Darrell Johnson, of East Hills Moravian 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.

4. APPROVAL OF MINUTES

The Minutes of November 15, 2005 were approved.

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

Moravian House IV

Dana Grubb, 2420 Henderson Place, asked if City Council received the total development cost of Moravian House IV. Mr. Donchez responded it was over $1 million. President Schweder advised the exact figure is $1,982,238. Mr. Grubb, pointing out the importance of leveraging public funds to leverage almost $2 million of private development, thought it was money well spent.

Time Limits – Courtesy of the Floor

Mr. Grubb recollected that City Council limited public comment to 5 minutes at the Public Hearing and continued City Council Meeting pertaining to allowing casino gambling at the Bethlehem Works site in South Bethlehem in order to allow as much public input as possible on the issue. Mr. Grubb believed that if City Council reduced the present 12 minute time limit for Courtesy of the Floor to 5 minutes it would be erring on the side of unreasonableness. Mr. Grubb, enumerating his reasons, noted that, first, citizen comment at Council Meetings is not limited to a single topic. He continued on to enumerate that citizens are not experienced public speakers and it sometimes takes a few minutes for them to organize their thoughts. Mr. Grubb observed that 5 minutes may not be enough time for citizens to cover more than one topic. He said that a 5 minute time limit could be considered a step backward in view of the public participation promoted by City Council. He commented that the proposed 5 minute time limit may be a reaction to a minority of speakers who ramble or do not focus on their point. Mr. Grubb noted that the Council President already has the ability to direct a speaker to get back on track. He highlighted the fact that responses from City officials or Council Members could erode the 5 minute time limit. He thought that the possibility to extend the 5 minute time period for an individual speaker would open up Council to charges of favoritism or bias. Mr. Grubb recalled that the Members of City Council over the years have conducted Meetings with openness, access, and patience, and expressed the opinion this has set Bethlehem City Council apart from other legislative bodies. He thought that a further reduction would subtract from that tradition. Mr. Grubb affirmed he is in favor of keeping the time limit for Courtesy of the Floor at the present 12 minutes.

William Scheirer, 1890 Eaton Avenue, urged Council not to restrict the Courtesy of the Floor for citizen comment to five minutes at the beginning and end of each Council meeting. Recalling he has attended 63 of the 64 Council meetings before tonight, Mr. Scheirer affirmed he has spoken at the great majority of them, 25 times with a written statement, three of which have gone beyond five minutes. Stressing that he tries to be brief, Mr. Scheirer highlighted the fact that sometimes the complexity of an issue requires more time. He continued on to say that time must occasionally be added for answers to citizen questions, since the Chair has ruled that the time involved in such answers counts against the citizen. Pointing out it has been said that the success of the five minute limit at the casino hearings showed that such a limit could and should be applied to City Council meetings, Mr. Scheirer asserted there is a critical and crucial difference: the casino hearings at Broughal had 72 citizen speakers, all speaking on the same subject. Noting he was almost the last speaker, Mr. Scheirer said he found that all of his arguments had already been made, so he confined himself to reminding Council of his opposition to the casino, and asking for a second of silence for the annihilation of Broughal Middle School. Remarking that City Council may feel that listening at length to those who have nothing new or important to say is too much of a burden to bear, and that Council is willing to give up what they would learn in those fewer instances where a cogent exposition of a complex issue would be to their benefit, Mr. Scheirer asserted the issue is much larger than that. In fact, he remarked, it is inextricably tied to the degree of citizen engagement in the political process in the City of Bethlehem. The lack of opportunities for such engagement makes the public comment periods at Council meetings vastly more important. Mr. Scheirer communicated that a total of six indicators of citizen engagement occur to him repeatedly, although there are undoubtedly more. He pointed out that Washington, DC has a limit of five minutes, with testimony only allowed at hearings, which in turn are held on every piece of substantive legislation and are about as frequent as Bethlehem City Council Meetings. Another indicator of citizen engagement is the ease of sitting down with a Councilperson to discuss a substantive issue. He noted this is a little easier in Washington, DC because the Councilpersons are more full-time, and each of them has a staff of about five people. A third indicator of citizen engagement is the character of elections and the information they provide. He remarked that elections in Bethlehem are a little less substantive and a little more superficial than municipal elections in Washington, DC, even when compared to elections of ward councilpersons there, with each of the eight wards having roughly the same population as Bethlehem. A fourth indicator is citizen involvement in organizations whose primary focus is on local issues. There are about 100 such organizations in Washington, DC. He commented there are a proportionate number in Bethlehem but, for the most part, they have no constitutions, they take no votes on city-wide issues, and some do not even elect officers, and they function more like small focus groups and less as systematic purveyors of citizen analysis and views. Turning to the fifth and sixth indicators that he said involve the media, Mr. Scheirer noted it is easier for a citizen's remarks to be covered in the news sections of the Washington Post and a weekly newspaper than it is in the three papers in Bethlehem, probably because the local reporters here are spread too thin. Observing it is much easier for a citizen in Bethlehem to get a letter printed, Mr. Scheirer said Bethlehem at present leads in two of the six indicators, but Council is contemplating the creation of a tie in one of them. Acknowledging that Council’s time is limited, Mr. Scheirer stressed it is unfortunately part of Council’s job description to listen to citizen ramblings.

Peter Crownfield, 569 Brighton Street, said he was not aware that there was a problem with citizens talking too much or Council hearing too much of public input. Mr. Crownfield advised he would like to see more citizen input at Council Meetings, and was not aware it was being abused. Noting he has been to many City Council Meetings, Mr. Crownfield remarked that very few people have gone over the 12 minute limit, and very few go over the 5 minute limit if it were imposed. Mr. Crownfield stated there are things that are missed in some cases if public input is limited to 5 minutes. Mr. Crownfield stressed that the Members of Council do not know what was missed at the hearing held at Broughal Middle School on the proposal pertaining to casino gambling in South Bethlehem because they did not hear it. Mr. Crownfield continued on to point out that Members of Council will not know what was missed at the City Council Meetings if a 5 minute time limit is imposed. Mr. Crownfield, observing that the present 12 minute time limit is not creating a problem, highlighted the fact that there are not 500 or 600 people at City Council Meetings as there were at the hearing at Broughal Middle School. Mr. Crownfield added there a 5 minute rule was necessary because otherwise many people would not have had a chance to speak. Mr. Crownfield thought that a 5 minute time limit for Courtesy of the Floor is being proposed when it is totally unnecessary. Stressing that public input is very important, and citing the example of Mrs. Belinski who, before she was elected to City Council, addressed the Members for more than 12 minutes regarding information she had related to the proposed incinerator project, Mr. Crownfield noted there is a provision for Council to rule someone out of order who is rambling on and whose comments are irrelevant to the business at hand. Repeating his contention that the 5 minute rule is unnecessary, Mr. Crownfield asserted it strikes at a basic First Amendment issue which is the right of the people to address their government for redress of grievances. Mr. Crownfield said the point is to let the citizens see Council Members face to face and say what they have to say.

Karen Dolan, 55 Bridle Path Road, urged Council to vote no to a 5 minute time limit for Courtesy of the Floor. Ms. Dolan thought it is “a Draconian move to go from 12 minutes to 5 minutes.” Ms. Dolan suggested a compromise time limit of 8 minutes. Ms. Dolan said, as an English teacher, she believes in preparation and brevity. She commented that very few people speak for 5 minutes and even fewer speak for 8 minutes. Ms. Dolan did not believe that decreasing the time limit to 8 minutes would hamper the public’s ability to express their views for the main reason that it might increase the attention that each Member of Council might give to each listener, and might encourage more people to participate in the democratic process. She recalled attending a City Council Meeting in the past when there were no time limits at which someone spoke for 45 minutes while a group of boy scouts waited for their commendations. Ms. Dolan stated she did not believe that the time of City officials in answering citizens’ questions should not be counted as part of a citizen’s allotted time. She added that she has attended meetings at which the 12 minute time was occasionally abused. Ms. Dolan expressed the belief that the time in answering questions by City officials should not be counted as part of a citizen’s allotted time. Ms. Dolan again urged Council to vote no to a 5 minute time limit and to entertain a motion if a Council Member should chose to reach a compromise.

Robert Pfenning, 2830 Linden Street, highlighting the fact that gambling was not legalized in Pennsylvania at the time he was picking a governmental representative, queried how could he pick a representative when he had no idea what Council’s future ideas would be on the issue that was very important to him. Consequently, Mr. Pfenning pointed out he needed some way of coming to Council and expressing his opinions. Mr. Pfenning related that in the past six months he has been attending City Council Meeting he has garnered three things: a better knowledge of how the City operates and who the “players” are; a better knowledge of the Council Members and has become a more intelligent voter; and it has given him a feeling of being involved as a citizen, being able to express himself, and having a chance to influence his own destiny within the City. Mr. Pfenning said he does not know why citizen input needs to be restricted because there are relatively few who are willing to give it. Mr. Pfenning stressed that under a 5 minute time period one can perhaps make two, three, or at best four points well. Mr. Pfenning pointed out that 5 minutes was almost impossible for him to address what he wanted to concerning the issue of gambling. Mr. Pfenning communicated that “citizens need warm and fuzzy experiences, not overly constrained, and they need these experiences to offset the feelings they have when they open up their rising tax bills, and increased sewer or water bills.” Mr. Pfenning stated he has found that the public comment sections of Council Meetings are very informative, and he can learn from his fellow citizens. Mr. Pfenning urged Council “to buy a couple more pillows…and keep the 12 minute limit.”

Mary Pongracz, 321 West Fourth Street, remarked that brevity is not the soul of being able to communicate the things that people need to say to one another. Ms. Pongracz highlighted the fact that as an American citizen she has the right to speak freely. She continued on to point out the Bills of Rights or any of the amendments does not say “you have the right to speak for 5 minutes or 12 minutes.” Ms. Pongracz stated she is guaranteed the right to speak intelligently, and she is allowed to speak as long as it takes her to make her point clear. Ms. Pongracz asserted that for Council to sit there and to say there shall be a 5 minute limit on citizen input is “ridiculous.” Ms. Pongracz stressed she has sat at City Council Meetings many times until midnight and did not complain or go home but sat and listened to the Members of Council. Ms. Pongracz said Council’s responsibility is to govern the City to the best of their knowledge, and to listen to the people who live in the community, and who have different viewpoints and needs. Ms. Pongracz stressed there should be no comparison to the time limit at the public hearing on the issue of the casino because it was once and done. She added that President Schweder handled the meetings beautifully by saying that, because of the number of people who wanted to speak, the time period allotted to each speaker would be shortened. Ms. Pongracz observed that if everyone at this evening’s meeting spoke for 12 minutes she would still get home before midnight. Ms. Pongracz expressed that the Members of Council owe it to the citizens the time it takes them to tell the Members what they want them to hear, and many times to tell Council what they need to hear. Ms. Pongracz expressed the belief that, as an American, she is entitled to her 12 minutes of time.

Roy Gruver, 415 New Street, communicated that if citizens are not given time to speak then “we, in fact, fail each other. Without hearing the whole story, neither you nor others will understand why I feel the way I do.” Mr. Gruver advised he has always found the Courtesy of the Floor to be critical to his understanding of being a responsible citizen. Informing the Members that in 5 minutes he can say 750 words, Mr. Gruver noted that trying to express a complex idea takes him longer than many people, especially on a topic that has not been introduced or exposed before. Mr. Gruver felt that if there is an exception it should be planned for as Council did very well when there was the single issue meeting concerning the issue of the casino gambling proposed on the South Side. Adding he did not hear any citizen disapproval at that meeting, Mr. Gruver thought it was an appropriate thing to do. Based on his observations, Mr. Gruver suggested that while many citizens may spend more than 5 minutes he doubts that few spend the entire 12 minutes. Mr. Gruver expressed the belief that limiting the Courtesy of the Floor to 5 minutes will cut valuable input that, in his opinion, is essential to maintaining the dialogue that he feels makes Bethlehem the place that people like to live.

Stephen Antalics, 737 Ridge Street, expressed the hope that all Members of Council have not made the final decision on their vote on the time limit and what citizens are saying is rhetorical. Mr. Antalics, communicating that a 40 minute dissertation provoked the issue, said it should not have happened because the Council President should have gaveled the speaker. Mr. Antalics stated that, as a result, the Courtesy of the Floor was limited to 12 minutes. Mr. Antalics pointed out that, in reality, it has worked since then. Referring to information he previously submitted to Council, Mr. Antalics restated that 343 people spoke under 110 Courtesies of the Floor or an average of 3 people at each meeting. He continued on to say at the present 12 minute time limit that means 36 minutes per Council Meeting for Courtesy of the Floor. Mr. Antalics noted at one Council Meeting, Karen Dolan spoke beyond 5 minutes with a well-organized presentation on open space. Dana Grubb also spoke over 5 minutes when he presented a well-researched presentation on solid waste collection and affordable housing. Mr. Antalics stressed “this could not have happened in 5 minutes.” Mr. Antalics noted if Courtesy of the Floor is limited from 12 to 5 minutes, it is adding 21 minutes of time that Council has to sit at a meeting. Mr. Antalics queried if substantive input is valuable enough for Council to spend 21 more minutes of their time on average, excluding the issues concerning development of the former Durkee property or the casino at which he said the President of Council very wisely limited the Courtesy of the Floor to 5 minutes. Referring to a recent article written by Mr. Hilton in which he said local government works when citizens get involved, Mr. Antalics observed it is infrequent that citizens address local officials en masse depending on the issue. Mr. Antalics remarked that such behavior encourages elected officials to become cynical and dismissive to the public. Mr. Antalics expressed that the 5 minute limitation gives a wrong message and, as mentioned earlier, people may be inexperienced at public speaking, are nervous, and have a problem expressing their views in 5 minutes and so may not come to a Council Meeting for that reason. Mr. Antalics related that if someone calls the Administration regarding issues or problems and does not receive redress then City Council is the only medium the person has to address their complaint and to act on their behalf as their public servants. Communicating that people come to City Council Meetings because they are concerned citizens, Mr. Antalics stated that is exactly what makes good government. Mr. Antalics queried why deprive people of coming to Council by giving them a 5 minute rule which is very negative. Mr. Antalics further posed the question “is citizen input worth 21 minutes of your time based upon historical precedent rather than emotional reaction to a 40 minute speech of one person.” Mr. Antalics stressed that Council should base its decision on the facts. Mr. Antalics asserted that by voting for the Resolution to set a time limit of 5 minutes the Members are doing a disservice to those who elected them by not hearing those citizens.

Dean Bruch, 555 Spring Street, referring to comments that the public will be restricted to 5 minutes because perhaps they do not speak as eloquently as an educated college person, or a more professional speaker, thought that sometimes those individuals get points across more so than very well educated people because they look at things in different ways. Mr. Bruch remarked that a lot of educated people look at things by the book and have to go through an internship to learn their job. Mr. Bruch expressed that he likes to put across his opinions and he opposed the 12 minute time limit. Mr. Bruch felt that the individuals who spoke for almost 12 minutes spoke very well and to the point, and had something to say that was not of Council’s opinion. Mr. Bruch communicated they want Council to think over what they have concluded as the only way to do things. Mr. Bruch, commenting that adjustments need to be made to what is right, pointed out that higher authorities than at the City level do not even get it right.

Eddie Rodriquez, 436 Pawnee Street, said he has learned a lot from coming to City Council Meetings. Mr. Rodriquez commented that if someone comes to the Meeting frustrated about something they should keep it to themselves, and not ramble on. Mr. Rodriquez pointed out that speakers should come to the Meeting to direct themselves to City Council. Mr. Rodriquez also expressed that speakers should stick to the issues and be to the point. Mr. Rodriquez communicated it is up to the President of Council to address the situation if someone is out of line.

6. OLD BUSINESS

A. Right to Know Law Request – Denial

Mr. Arcelay moved to direct the City Council Solicitor to file an appeal with the Northampton County Court of Common Pleas as a result of the denial of the Right to Know Law Request of Council Member Ismael Arcelay for Police Staffing information for January, February, July, and August 2005. Mrs. Belinski seconded the motion.

Mr. Arcelay stated he has a deep respect for any person who decides to wear a Police uniform. Mr. Arcelay noted that over his term while serving as a Member of Council he has had the opportunity to know and to value the many men and women who wear the Bethlehem Police uniform. Mr. Arcelay communicated that respect was reinforced more so after he recently completed the Citizens Police Academy. Mr. Arcelay explained that in his search for information his obstacle has not been the Police Department Officers. It has been with the Administration and the Police Commissioner who have decided not to share relevant information and allow any Council person to effectively do their job. Mr. Arcelay read his memorandum containing the information he requested dated February 3, 2004, as follows: Can you please provide me with the following Police staffing numbers for December 2003, January 2004 and February 2004; and, if possible, also March 2004: 1. Number of Police Officers during the day shift. 2. Number of Police Officers for the TAC shift from 7:00 pm to 3:00 am. 3. Number of Police Officers for the night shift from 11:00 pm to 7:00 am. 4. For the TAC shift and night shift, respectively, how many Police Officers are actually out patrolling and how many are manning station activities.
Mr. Arcelay, affirming it took a week for him to get a reply, noted he also got replies from five other Third Class Cities so that he could effectively try to do his job, in exchange for citizen complaints. Mr. Arcelay explained it beehoved him to ask for the same information in his memorandum dated September 23, 2005 and highlighted the fact that the request mirrors word for word the requested information he just read contained in his memorandum dated February 3, 2004. This time, however, he was turned down for the requested information initially because it took too long to compile. Then, the Administration decided it was proprietary information and dangerous to put in people’s hands. Mr. Arcelay explained, as a Councilperson, when he requests information it is to do a job as he listens to the constituents of the City. Mr. Arcelay said, “as you were denying needed information, you were effectively denying the constituents of who you have decided to serve.” He further communicated the Administration has decided to set a very dangerous and bad precedent in the denial. During the Third Budget Hearing last week when the Police Budget was reviewed, Mr. Arcelay pointed out that Council asked the Police Commissioner what are his three biggest problems to which Police Commissioner Donchez replied number one is citizen complaints, number two is limited resources, and number three is staffing. Mr. Arcelay stressed the very points the Police Commissioner identified as the biggest problems are the very points that he was making an attempt to try to work through in the system of checks and balances. Mr. Arcelay reiterated that the Administration is not denying him but is denying the citizens of this information. Mr. Arcelay stated that he moves to direct the City Council Solicitor to file an appeal with the Northampton County Court of Common Pleas as a result of the continued denial of the Right to Know Law Request for the Police Staffing information for January, February, July, and August 2005.

Mayor Callahan expressed the belief that in some ways perhaps the real dangerous precedent would be to provide Mr. Arcelay with that information. Mayor Callahan noted the Administration did provide Mr. Arcelay with that information to the original request last year as a courtesy. Mayor Callahan, explaining the Administration believes it has answered Mr. Arcelay’s question, read the response to Mr. Arcelay’s memorandum of September 2005 to which Francis Donchez, Police Commissioner, responded within a week, as follows: “We have reviewed your request for Police staffing numbers for shifts during the aforementioned months. Please be advised that the shifts during those months were adequately staffed. As we have discussed in the past the Police Administration takes into account the needs of the community we serve when deploying manpower. The Bethlehem Police Department provides services to our citizens that many other Police Departments do not; for example, investigating non-reportable accidents, and providing funeral escorts. The Bethlehem Police Department consists of 146 sworn Officers. They are divided into Patrol, Investigative, Community Services, Traffic, and Administrative Divisions. Each day, middle, patrol platoon consists of 14 Officers and 4 Supervisors. Night shift platoon is divided into three squads, two of which work each night while the third is off. Each squad consists of 6 Officers and 2 Supervisors, and an additional Officer who works a steady 7:00 p.m. to 3:00 a.m. shift. The other divisions, including Community Services, work a variety of shifts throughout the day. The Police Department will continue to deploy manpower based on the needs of the community and the safety of our Officers. Please do not hesitate to contact me with any other questions or concerns.” Mayor Callahan said “we believe we’ve answered your memo. You unfortunately do not believe we have. So, therein, lies…the dispute. We feel that Councilman Arcelay’s request is unreasonable. It would require hours of Police manpower that quite, frankly, I think would be better spent protecting the residents of the City of Bethlehem. I’d rather have Officers out on the street than spending time performing paperwork requests. We pay our Police Officers to be cops and not clerks. The City of Bethlehem Police Department has limited resources. We’ve tried to streamline as much as possible in order to have as many Officers on patrol, and these types of requests are counter to that effort, and require more from an Administrative standpoint. Scheduling of Officers and shift strength is an Administrative function. We view Mr. Arcelay’s request as an attempt to micro-manage the Bethlehem Police Department. And, again, this is Administrative function. We do not feel that Mr. Arcelay’s request falls under the Right to Know provisions. We want to protect our Police Officers. We do not want that type of…detailed and sensitive information made public, and we are going to fight to prevent that in an effort to protect our Police Officers.” Mayor Callahan continued on to advise that, subsequent to an article in the newspaper, a number of months ago he was contacted by the Northampton County District Attorney’s Office and he suggested that the Administration not release this information as well to Mr. Arcelay for the very same reasons that he stated previously. Mayor Callahan, commenting “we have responded to your Right to Know request,” said he will not read the entire legal opinion from Solicitor Spirk to Attorney Spadoni or to City Councilman Arcelay. Mayor Callahan read the final two paragraphs, as follows: “The denial of your appeal notwithstanding, the City wants to take this opportunity to remind you that Commissioner Donchez offered to meet with Councilman Arcelay in his legislative capacity as Councilman after he provided him a detailed memo responding to his request. Even today, Commissioner Donchez remains willing to discuss any further questions or concerns from Councilman Arcelay. Despite the open-ended invitation to meet with Commissioner Donchez, Mr. Arcelay has yet to contact him to arrange a meeting. We again encourage Mr. Arcelay to accept Commissioner Donchez’s invitation in the spirit of cooperation between branches of government, and in the spirit of concern for the safety of our Police Officers on the street. And, if you wish to appeal this decision, you must do so in the Court of Common Pleas or a Magistrate District Judge within 30 days.” Mayor Callahan, reiterating “we feel we’ve answered your question. Again, we feel that this request does not fall under the Right to Know.”

Mr. Leeson observed whenever litigation between the Executive Branch of government and the Legislative Branch of government is being contemplated there has been a breakdown somewhere. While noting it is not his purpose to get into where the breakdown was other than to say that somewhere along the line there has been a breakdown, Mr. Leeson stated whenever litigation occurs between branches of government there are no winners. The level of difficulty in cooperation and communication is exacerbated, the resources of the Executive Branch, the Legislative Branch, and the Judicial Branch of government are expended when there are much more important priorities and business to do. Mr. Leeson communicated that he sees two policy issues, both of which are important. On the one hand, Mr. Leeson said he agrees completely that the security and safety of the City’s law enforcement personnel is paramount and cannot be sacrificed under any circumstances. Mr. Leeson continued on to say the Legislature and the Executive Branch at the Federal level, as well as the State level, works this type of a problem out. In Washington, the legislature is granted access to confidential information on terms and conditions by which the information is released only in such a fashion that no one’s safety or integrity is in jeopardy, and the same is true with the Pennsylvania legislature in Harrisburg when it comes to issues involving law enforcement either with the Attorney General or with the Pennsylvania State Police. Mr. Leeson, denoting these problems get worked out, commented they get worked out in a manner that no one is hurt in the process. The right of a legislative body at the Federal, State, and Local level to get information is also paramount because if the legislative body cannot get the information that it thinks is relevant to a pertinent policy issue then its ability to do its job is frustrated. Mr. Leeson pointed out in this particular instance he thinks it has been demonstrated that Mr. Arcelay received identical information previously and, as far as Council knows, handled it in a responsible manner that did not jeopardize anyone’s safety or anyone’s integrity. Observing that accusation has not been made against Mr. Arcelay, Mr. Leeson said if it has not by this point in time then it is not going to be made against him. Mr. Leeson commented he is sure there is some way in which issues of safety and security can be handled. As far as the argument about the time that is going to be spent to gather this information, Mr. Leeson advised he has seen the information when he sat in the Executive Branch of government, it exists, and it does not take that much time, although it will take some time, but it is available and so he rejects that argument. Communicating that even to the extent that some time is necessary in terms of gathering the information it is another illustration of the deficiency in the City’s computer system, Mr. Leeson said he knows it is not that bad. Mr. Leeson, affirming he is willing to consider enforcing Council’s right to get the information, suggested before that point is reached he would like to see the main principals sit down and make an effort to try to work out the matter. Mr. Leeson asked if everyone would be willing to sit down and try to work out the issue before it has to be put to a vote to go to litigation. Mr. Leeson, stating he would turn initially to the Administration, asked if Mayor Callahan would be willing to sit in on such a meeting to try to get the matter worked out, and commit his own time to do it.

Mayor Callahan replied “I would, and I think we’ve made that offer, Commissioner Donchez has made that offer, and the offer still stands.”

Mr. Leeson asked Mr. Arcelay if he is willing to sit with the Mayor and the Police Commissioner to try to get the matter worked out that accommodates the security and safety needs but yet gets him the information he needs.

Mr. Arcelay responded “as long as when we sit down during the session I actually see the information. All too often what is said and what is on paper are two different things. And, that is my concern about sitting down in a meeting.”

Mr. Leeson, while commenting he does think the Administration needs to listen to what Mr. Arcelay just said, observed if it is going to be a productive meeting the Administration needs to take that into careful consideration.

Mr. Arcelay said “at this point that has not happened. The request is a simple request. It is not what it is made out to be. And I find no other…solution other than to continue the path I’m going.”

Mr. Leeson stated he is supportive of Mr. Arcelay’s goal to get the information, but he will not be supportive of that goal unless all avenues are exhausted on a cooperative basis. Mr. Leeson communicated that, in his opinion, it is something that needs to be exhausted before the ultimate step is taken of going to litigation.

Mr. Arcelay advised “my goal is to walk away with paper copies so that I can…, not in an hour meeting or in a half an hour meeting, have discussions. We just had a budget meeting. If I could have had paperwork then I could have sat down and tried to analyze to contribute to the three biggest problems that the Commissioner himself has stated would have been vital. I hate to go down the path that we’re going because it is a waste in a sense, and we shouldn’t have to go through that. But I have felt that it has taken approximately three or four months and we should not be at this point. There should not be a discussion…”.

Mr. Leeson said he heard a yes answer from both sides that they are willing to sit and talk and try to work the matter out. Mr. Leeson suggested that the matter be tabled for two weeks, and at that point if the matter is worked out so much the better, it is better for the City, it is better for the citizens. And, if it is not then take the appropriate action at that point in time.

Christopher Spadoni, City Council Solicitor, noted it is his understanding that the final determination given by Attorney Spirk was December 1 and the rules require under the Right to Know Law that the action be filed either in the Magistrate’s Court or in Northampton County Court within 30 days, so there is a window. Attorney Spadoni affirmed to Mr. Leeson that Council has until December 31, 2005.

Mr. Donchez endorsed the comments made by Mr. Leeson and said he agrees with his comments completely. Mr. Donchez communicated that from personal experience going back about eight years ago when the City was involved in an IRS dispute regarding the Wastewater Treatment Plant, he made the request for information from the Administration dealing with how much the City was spending on legal bills. Mr. Donchez recounted that, at first, he was not receiving any of the information, and he had an Ordinance drafted that the information must be given out. Mr. Donchez explained his point is that after several meetings with the Administration and the Solicitor the information was provided to Members of Council, names were blacked out for reasons, and it was found out the City spent approximately $200,000 in legal bills. Recalling that at first there was resistance, Mr. Donchez affirmed that after meeting with the Administration the information was provided to Members of Council and to the press. Mr. Donchez expressed he would hope, before legal action would be taken in Northampton County Court, that in a spirit of compromise the Administration would meet with Mr. Arcelay or Mr. Arcelay would meet with the Administration and try to find some middle ground. Mr. Donchez stressed he feels very strongly that City Council as the Legislative Branch has the right to have questions responded to by the Administration. Mr. Donchez noted whenever he has made a request over the past ten years information was always provided to him by all Mayors and in the incidence he just made reference to. Mr. Donchez restated he would hope that before Council would move to take this matter to County Court both parties would meet and try to find some middle ground so Council does not have to take the radical step of going to Northampton County Court.

While expressing he can appreciate what both Mr. Leeson and Mr. Donchez have said, President Schweder stated there would have been no accommodations made tonight toward Mr. Arcelay by the Administration if the threat of this legal action was not over their head. President Schweder expressed what it comes down to is in almost 40 years that he has been going to Council Meetings he has never seen where Council was ever put into a position where they were going to have to do something like this. President Schweder communicated he is prepared tonight to vote for this, and in two weeks if Mr. Arcelay is agreeable to that, and stated he would hope the meeting would take place tomorrow morning if that suits the schedules of Mr. Arcelay and the Police Commissioner, but certainly no later than the end of this week in view of the fact that it has been three and a half months since the request was made. President Schweder noted what concerns him is that this issue is not about the Police Department. President Schweder explained from his perspective what this is about is whether Council as the elected representatives of the people in the City are allowed to receive any information they deem appropriate to do their job, to make decisions on the Budget, and to make any other decision before them. President Schweder pointed out that Mr. Arcelay asked in the exact same language for this information previous to the present request and was granted it. Then, Mr. Arcelay sent a second memorandum and asked for the exact information again and is denied it. President Schweder continued on to highlight the fact that Mr. Arcelay sent a request to other Third Class Cities and he was provided with the requested information in numbers that his own Administration refuses to give to him. President Schweder observed there is a disconnect somewhere through the whole process. Recalling that over the last several years there was a pledge for full information from the Administration, President Schweder said “obviously those words are hollow and dishonest in this precedent, and the question I ask Members of City Council is who’s next, and what Department, and who gets to decide whether you want to know how many Policemen are on duty, or how many Firemen, or what’s being spent in a given program somewhere else. And, someone else determines in the Administration that that’s information that’s not worthy of you knowing. That is a very dangerous precedent…[T]he response that could have come back from the Administration when we wouldn’t be faced with this brinksmanship at the eleventh hour is they could have offered to Mr. Arcelay the opportunity to redact the information, as Mr. Leeson suggested, or that there be some confidentiality agreement reached with him. None of that was ever offered. And so this behavior I consider boorish and dangerous to the whole process…And, I would hope that if we’re going to resolve this that it is done within the next two days, or that when we come back here on…the 20th that we will enact this action and take it to the Court. Because this again I state, all of us understand how important it is to protect our Police Officers, but at the end of the day that’s not what this issue is. It’s the question is who and…at what time does the Administration decide unilaterally when information isn’t appropriate to be sent to City Council.”

Mrs. Belinski noted in the recent past she was getting information from the people at the Wastewater Treatment Plant, and she referred the information to the Director of Water and Sewer Resources. Soon thereafter a memorandum was sent to the employees that they are not allowed to speak to Members of Council. Mrs. Belinski explained when she sent a memorandum to the Mayor he said it is a matter of privacy, and it is personnel. Mrs. Belinski stated it was not personnel. Rather, it was what was going on in the operations at the Wastewater Treatment Plant. Mrs. Belinski pointed out the attempt was made in her case also, but she still gets the information.

Mr. Arcelay, stating he is not open to a meeting, said it is going in the wrong direction. Mr. Arcelay stressed the point of the matter is “I wanted paperwork so that as I sit and review the Budget book I can compare it and make comparisons. That is something that cannot happen during a meeting without me seeing documentation. My ultimate goal is to receive paper copies so that through my time schedule when I am available to review the Budget book…I could make good decisions. It’s not something that you can offer me a meeting in the next day or two [and] it will be resolved. I’m seeking to walk away with paperwork so that I can make a conclusion…”.

Mr. Leeson, with reference to Mr. Donchez’s comments, noted it was not the IRS but the EPA with the Wastewater Treatment Plant under Mayor Smith.

Motion – Tabling the Filing of an Appeal with the Northampton County Court of Common Pleas as a Result of the Denial of the Right to Know Law Request of Council Member Ismael Arcelay for Police Staffing Information

Mr. Leeson moved to table the matter for two weeks for the reasons previously discussed. Mr. Mowrer seconded the motion.

Voting AYE: Mr. Donchez, Mr. Leeson, Mr. Mowrer, and Ms. Szabo, 4.
Voting NAY: Mr. Arcelay, Mrs. Belinski, and Mr. Schweder, 3. The motion passed.

B. Foulk Warehousing - Sprinkler System Installation

President Schweder stated that he would accept a motion for an extension from December 31, 2005 to June 30, 2006 for Foulk Warehousing to either install a sprinkler system or to relocate, with a penalty of $250 per day thereafter for each and every day that Foulk Warehousing has not relocated their business from the A-Y Building, and to authorize the City Council Solicitor to enter into the appropriate stipulation for Court approval.

Mr. Mowrer so moved. Mrs. Belinski seconded the motion.

Mr. Donchez, noting this issue has been discussed quite a few times over the past few years, and extensions have been granted over the past few years, asked what is the position of the Fire Commissioner on the issue.

Kevin Moyzan, Fire Commissioner, replied “with recent review over many different issues with this, especially considering the changes in the Intermodal, the relocation of that, the difficulties when you went from Bethlehem Steel land to ISG, and then to Lehigh Valley Industrial Park land, there hasn’t been pretty clearly an opportunity in the last year to make the land sale. So, I think at this point, this is something that actually has existed since back in the [19]90’s. We are passionate about fire protection. It’s existed for so long, I think it’s appropriate in the next six months that they begin this extension and be able to get the other settled land and to be in line with the Intermodal changes, and to make something that works and stays in Bethlehem. To put some perspective though, too, with fire safety, we’ve had other things that exist such as Martin Tower for its entire existence without a sprinkler system, and there’s large risk of life in such a situation. I do believe in the recent sale, that’s going to get squared away. But, there are situations that exist that are under change. This is one of them, and from everything that’s happened in the past, I think it’s at a point where [that] could get done in the next six months, and giving them an extension that makes sense.”

Mr. Donchez asked how many extensions Foulk Warehousing has received over the years.

Fire Commissioner Moyzan, while noting he does not have the paperwork in front of him, explained “we’ve had a long going relationship with this situation that goes back into the [19]90’s.

Mr. Donchez queried, if the extension is granted with the “drop dead” date of June 30, 2006, what must Foulk provide or be fined $250 a day, and what must the City receive from them by June 30.

Fire Commissioner Moyzan, stating he does not have the agreement in front of him, noted basically Foulk must provide that they will have a building and they will move into that building with sprinklers, and they must submit a sprinkler plan. He added they must have engineering approval, and go through the normal approval process with the City.

Mr. Donchez inquired is it the plan or the sprinklers that must be in place by June 30, 2006.

Fire Commissioner Moyzan replied the entire plan, the building, and the sprinklers, and the movement of Foulk out of the existing building into a code compliant building that is sprinklered.

Mr. Donchez asked the Solicitor if Foulk does not meet the deadline by June 30 what is the fine.

Christopher Spadoni, City Council Solicitor, advised he has talked with Attorney Backenstoe who represents Foulk Warehousing and the fine is at $250 a day.

Mr. Donchez asked Attorney Spadoni what is his position on the issue.

Attorney Spadoni responded he has indicated this was an action that was instituted by City Council premised upon the concerns of the non-compliance of the action, and the parties negotiated before Judge Smith a period of time that he thought at the time was more than sufficient for that to be accomplished, and that did not occur. Attorney Spadoni continued on to say he indicated early on that this needs to be brought into compliance, and there was communication with the Administration and with the Chief, and he believes through Mr. Novak as well. Attorney Spadoni stated that, frankly, it needs to be done, and it should have been done. Attorney Spadoni noted if he recalls correctly the drop dead date previously was mid-2005. Fire Commissioner Moyzan said that is correct, and it is six months past. Attorney Spadoni commented at some point there needs to be finality, and remarked time will tell if the June 30 date will be met.

Mr. Donchez inquired whether there is an agreement of sale.

Attorney Spadoni advised that Attorney Backenstoe has indicated to him in a telephone communication that the agreement of sale is drafted but it was not signed, as of a week ago.

Mr. Mowrer asked if Foulk Warehousing does or does not have plans to build the new facility.

Fire Commissioner Moyzan replied that plans have not been submitted at this time. He added that would probably be contingent on the sale of land, they would still need to bring a site plan before the Planning Commission, and usually after that plans are submitted for building.

Mr. Mowrer communicated it does not sound very realistic to him that in the next six months all this is going to happen. Mr. Mowrer, while commenting he would like to see the company stay and be a part of the Lehigh Valley Industrial Park, said but if there is no way that is going to happen “are we fooling ourselves, are we fooling them.” Mr. Mower queried is there someone in the Administration that can make sure they understand, or is this totally left up to the Fire Department.

Mayor Callahan stated he thinks the fact that there is a $250 per day fine levied beyond the deadline is a certain understanding of the seriousness of accountability.

Mr. Mowrer queried “then they understand that we are serious and they’re not going to come back for another appeal.”

Mayor Callahan observed that might be a better question for Attorney Backenstoe or Foulk Warehousing.

Mr. Mowrer stated it does not seem realistic.

Tony Hanna, Director of Community and Economic Development, said he thinks the time line is tight but there will be some finality. Mr. Hanna advised the Department has been working with Foulk lumber for several years on resolution of the issue. Mr. Hanna explained the plan is to move them to a site that is currently being prepared by LVIP (Lehigh Valley Industrial Park) in LVIP VII just off Easton Road. Mr. Hanna continued on to advise there are two building sites there, and one company is currently occupying space in the auxiliary yard in the AY Building that will be moving in 2006. There is a financing plan in place for the site under agreement for Foulk. Mr. Hanna, advising it is not a complicated building that Foulk is moving into, noted some Members of Council saw the current building occupied by Foulk which is essentially a shed structure. Mr. Hanna, commenting he thinks there is strong possibility they will make it, said “if he doesn’t make it, he’s going to be fined, or he’ll have to cease operation. I would think that would probably be the solution if he doesn’t make it. He’ll have to cease operation in the auxiliary yard in the AY Building. That was the significant concern that the Fire Department has is continued operations in the current building…It isn’t a question that they want to stay in the current building. They’d have to sprinkler it, and retrofit it, and candidly LVIP VII has other plans for that structure. So, they would like to tear that building down once Foulk lumber moves. I think Kerry Wrobel [, President of LVIP,]…made that clear on a tour we took of the site with Members of Council that there were lots of movable parts on this…And, we’ll work very, very hard to ensure that they do meet that deadline.”

Mrs. Belinski asked how does this connect with the Intermodal unit.

Mayor Callahan confirmed that Members of Council did have an opportunity on the economic development tour to look at the facility and see the type of activity that is going on. Mayor Callahan thought there was between 6 and 10 employees in the entire building which is a steel structure that would “take a blow torch to burn it down.” Mayor Callahan continued on to note that on the tour the Members had the opportunity to hear from Kerry Wrobel, President of LVIP, who talked a little about the complexities of Foulk Warehousing’s move in that some of the issues were beyond their control. Mayor Callahan advised what was required was the relocation of the current Intermodal facility on the LVIP VII tract to a different site. Pointing out that the difficulties in that process hampered Foulk Warehousing’s ability to move to another site, Mayor Callahan communicated “they’re sort of hostage, in a sense, at their current site until the Intermodal is moved.”

Mrs. Belinski queried what is the time line on the moving of the Intermodal.

Mayor Callahan replied “that’s ongoing. It’s almost complete…” Mayor Callahan advised that Foulk lumber company is a major customer of Lehigh Valley Rail Management, formerly known as Beth Intermodal. Mayor Callahan continued on to say the loss of Foulk lumber as a customer for Lehigh Valley Rail Management would be a severe blow to their business. Referring to a recent newspaper article about the importance of the Intermodal facility to the viability and marketability of the acres of property at LVIP, Mayor Callahan stressed all want Bethlehem Commerce Center be a success and added there is a lot riding on Foulk’s ability to continue to function, and Lehigh Valley Rail Management and the Intermodal being such an important asset to all of LVIP VII. Mayor Callahan stated “I think we’ve been accommodating for that reason.”

Mrs. Belinski commented “but I think we’ve come to the end of our patience, and if we put their feet to the fire maybe they’ll start cooperating and get it done.”

Mayor Callahan explained that Foulk lumber company “would have liked to have moved yesterday, but they can’t until the Intermodal facility is relocated, then they can.”

President Schweder communicated if the Fire Commissioner’s “position tonight is that this is okay, you probably are going to have real debate with what your Department said to Council five years ago because Council became involved in this issue because the Fire Department came to City Council and alerted us to what they considered to be a very serious fire hazard at this warehouse, that the amount of wood that was stored there, no sprinkler system, and no hydrants anywhere in the vicinity.” President Schweder noted it was at the request of the Fire Department that Council set a deadline which expired six months ago. President Schweder asked if Foulk lumber company ever did any of the work that Council or the Fire Department requested to bring the facility up to code.

Kevin Moyzan, Fire Commissioner, responded “they did numerous things such as install new hydrants, and they even had a new water line hooked up for an upgrade of what the flow is that we could get out of the hydrants because there were some hydrants around but the flow was deficient, and that was taken care of.”

President Schweder recalled he thought the information received from the Deputy Fire Commissioner was that was not the case for the flow and what had to be put in.

Fire Commissioner Moyzan advised Foulk Warehousing did not put in a sprinkler system, but they did make some improvements, and they did do some things as far as putting extinguishers within the building, and separating the piles in a more organized way.

President Schweder inquired if Fire Commissioner Moyzan’s position is that the building is safe today.

Fire Commissioner Moyzan replied his “position is that it should be sprinklered as per code. But we’ve been in something that’s existed since the 90’s, and since we have that amount of time span where we’ve allowed this to exist…, we feel that another six months is appropriate at this point to keep this business [in operation].”

President Schweder asked is there any other business in the City that is in violation other than Foulk Warehousing.

Fire Commissioner Moyzan informed him that Martin Tower is not sprinklered.

President Schweder questioned why that is not enforced.

Fire Commissioner Moyzan, noting there was originally a time line for Martin Tower from the original retrofit Ordinance that would run out this coming March, commented he does not believe that deadline will be met for sprinklering that building. Fire Commissioner Moyzan, exemplifying if one is trying to look at something that existed in the past that did not meet a deadline and the City did negotiate an extension it is the case of the Hotel Bethlehem where something was worked out for an extension since the deadline was not met.

President Schweder recalled when Council passed the requirement for sprinkler systems, a deadline was given where everyone had to have a plan in place filed with the City within five years, and the agreement that it had to be completed within seven years.

Fire Commissioner Moyzan, noting it was something along that line, said “but they did not meet deadlines.”

President Schweder, querying why that was not enforced, and questioning why is this not being enforced, wondered whether economic development takes precedence. President Schweder continued on to ask is there some reason why the City does not enforce the Ordinance passed by City Council, or what the Fire Department thinks may be deficient or that did not meet the requirements.

Fire Commissioner Moyzan affirmed that originally the Department pushed the matter hard as far as enforcement goes, and the matter even went to the Code Board of Appeals. He explained when the Code Board of Appeals makes a decision “it takes off for extensions or if they allow something that’s different that’s contrary to the Code which they did as far as the extension goes, there is no longer a burden of actually with enforcement by the Fire Department at that point. You’re going by that decision by the board of code appeals. So that was the last thing that’s been done. And that’s existed and the enforcement then becomes upon that timeline. With that timeline, as we got to the end of it,…it was a difficult situation as far as them completing a deal with land, and then there was an agreement that was put together and agreed upon for an extension of another six months.” In further response to President Schweder, Fire Commissioner Moyzan replied it was by the Administration.

Mayor Callahan, noting the question approaches some legal grounds, asked Attorney Spirk to respond.

John Spirk, City Council Solicitor, explained the company sought relief from the Appeals Board, and in that process Council asked to intervene and they all appeared in Court in front of Judge Smith. Attorney Spirk advised he thinks that is where the extension was worked out to a July 1, 2005 deadline, and then in the event that the parties needed more time, they could either work out a position, or extension, or come back to the court, because Judge Smith retained jurisdiction in this matter. At any point, either party could go back in front of the Judge and ask for any further relief.

President Schweder, observing he thinks what is before Council tonight is whether or not they will be given another six months, stated he is not prepared to vote for this. President Schweder said
he is sure in six months there will be another extension to review.

Mr. Donchez explained what troubles him about the issue is that Council has been dealing with it for five years, and it was really at the request of the Fire Commissioner and the Deputy Fire Commissioner asking Council to move on the matter which is what City Council did, and that is why the matter ended up in court. Mr. Donchez, noting an extension was granted before, said if he remembers correctly over the period of time he does not think the company submitted plans, and stated he will not support this because he has not seen anything over the course of five years from the company or from the Fire Department’s office where they have complied or submitted forms to the City. Restating it was at the request of the Fire Commissioner and Deputy Fire Commissioner who came to City Council, Mr. Donchez affirmed the matter was taken to court, and “now we’re here with another extension,” Mr. Donchez said “so I just cannot support this extension at all.”

Mr. Leeson recounted when this issue first came up five years ago, and affirming he did visit the site, observed “this is an isolated building in the middle of no where”, and asked the Fire Commissioner if he is correct in saying that.

Fire Commissioner Moyzan noted the building is constructed of steel.

Mr. Leeson, continuing on to say the only flammable material in it is the wood itself which is the product that the company sells, observed so even if the product burns, it is a steel structure and there are no surrounding structures, and there are no residential areas a mile away if not farther. Mr. Leeson, recalling the assessment when the issue first came up five years ago is that they are in violation, queried “but are we going to chase them out at this point in time pending their good faith effort to try to relocate when even if the place burns it doesn’t pose a hazard to anybody other than that tenant itself.”

Mayor Callahan pointed out other than the Firefighters. Mayor Callahan said Fire Commissioner Moyzan has made it clear that there will be no attempt on the part of the Fire Department to save the building, and that a fire would be fought from a defensive standpoint, in other words, let it burn, and the Firefighters themselves will not be put at risk.

Mr. Leeson communicated that, under the circumstances, this appears to be a problem the consequences of which will be born by Foulk lumber company and nobody else, because the City is not going to put anybody at risk to save the place. Mr. Leeson stated he will support this. Acknowledging “we are trying to get development…in the [Bethlehem] Commerce Center,” Mr. Leeson expressed the belief that the company is asking for an extension of time, and is not asking for an indefinite waiver. Mr. Leeson said he is “going to cooperate with my vote by voting in favor of it, particularly since the Fire Department is endorsing it.”

Mr. Mowrer, saying he will also support this, commented it is a way of showing LVIP in a very unique area that Council wants to be supportive. Knowing that the deadline is going to be in six months, and the circumstances, Mr. Mowrer expressed it makes sense to him “to give them a break this time, and let them know that’s it.”

Ms. Szabo recounted the last time “we went through this routine…about extending their time, and right from the start I’ve been very, very concerned about that area because even though they’re not right on top of the neighborhood residential areas, I’ve seen on the South Side what an awful wind does. It carries the fire quite a distance, and quite often a few homes go. And, the way it was described about the building and the tons of wood in there, I have visions of all we need is a high wind and a fire in there with all that wood, and it could spread into the residential areas. But when we went on our tour and saw the building, and the building…it’s immense, it’s much bigger than what I anticipated it would be, and the wood was set with big spaces in between. That still can be a great, great hazard, I don’t stop my worry about that, but I think more worried about the tons, and tons, and tons of wood outside back against each other that I thought was a greater hazard, things that were ready to be shipped out. But, the building is immense and there is space in between the work areas, and what is our alternative. What can we do if we don’t say wait until June. I hate to wait another day because, you mentioned the Hotel Bethlehem, all of the Hotel Bethlehem unit was one fire and five people, so I hate to say let’s wait and pray that they’re not going to have any catastrophe, but what is the alternative.”

Mayor Callahan said his understanding is that if Council voted not to grant this extension, it would go before the Judge, and it would be up to the Judge who would determine ultimately whether the extension is granted or not. Council can, through agreement, agree with the other party or it can go before Judge Smith and he can determine what he wants to do.

Christopher Spadoni, City Council Solicitor, stated it is his understanding that what the Mayor says is partially correct. Attorney Spadoni continued on to say whatever is decided needs to go back to the Judge because he has retained jurisdiction under the court order. “If you do or don’t agree, it needs to go back to the Judge.”

President Schweder explained a yes vote on the motion “would send an affirmative action by Council back to the court which says yes we want to extend this for six months. If you voted no on this, what we’re saying is we will be directing the Council Solicitor, Mr. Spadoni, to go back to the court and say that Council no longer believes there should be any extension for this facility, and it’s our intention that the court act accordingly which I assume would be to close it.”

Ms. Szabo, observing if Council says no and the Judge goes along with that and there is no extension, asked then what happens to the business.

President Schweder thought it would be what would happen to any business that was not in compliance with Ordinances of the City and it would not exist.

Ms. Szabo queried what happens to the company’s future plans.
Mayor Callahan added, “and equally important, what happens to Lehigh Valley Rail Management.”

Mr. Leeson pointed out not only is it dealing with one business and putting them out of business essentially and laying people off potentially, but it is also dealing with Lehigh Valley Rail Management that is dependent on the Foulk lumber operation. Mr. Leeson continued on to say the other factor to consider is if the Ordinance is going to be enforced with Foulk lumber right now, he would suggest for the purpose of consistency, the next one to address is Martin Tower, and to evacuate that building. Mr. Leeson said “I submit to you that’s not what we want to do in the midst of the efforts that were announced last week that look very promising to try to get that property developed for the benefit of everyone, for the community, for local government, for the owner of property. There are occasions in government where you need to take a look at a problem and say…we’re going to enforce the Ordinance but we’re going to give you a little time to bring yourself into compliance if you can show you’re making a good faith effort to comply, assuming that health, and safety, and life, is not put in immediate jeopardy. And, if I understand the Fire Commissioner he’s giving us those assurances and under the circumstances I think that’s something that we need to seriously consider and vote in favor of this.”

Mrs. Belinski inquired what would Mr. Leeson consider a good faith effort on the part of Foulk lumber company.

Mr. Leeson responded June of 2006.

Mrs. Belinski queried if they are not in compliance by that time then what would happen.

Mr. Leeson noted then it needs to be found out if it would be one more day or another six months, and evaluate it at that point in time. Mr. Leeson, observing circumstances change, said one needs to be flexible to examine the facts and circumstances that present themselves at that point in time. In further response to Mrs. Belinski’s comment that the prediction is there will be a lot of snow which will not help the cause, Mr. Leeson did not think that has a bearing on the matter because the briefing from Kerry Wrobel of LVIP is they are trying to move ahead with the subdivision, and with the sale of the lots, and if they sign the agreement of sale it is a big step forward. Mr. Leeson further stated “if we get to June 2006 and they haven’t signed an agreement of sale, at that time, I’m going to throw in the towel and say now we’ve reached the end of the line.”

Ms. Szabo asked “what legal agreement do we have…with this company that we have extended the time against our better judgment for safety. They have a big bonfire and employees get hurt, do we get sued because we extended that time.”

Mayor Callahan, observing this is an issue that Council brought to court to appeal the decision of the Board of Appeals, said he would ask Attorney Spadoni to comment.

Ms. Szabo restated she “asked the Administration whether or not the City has an agreement with Foulk that we are not responsible, or whoever you have to have agreement [with], that we are not responsible for what happens.”

Mayor Callahan explained he is responding by saying that agreement was worked out between Council and another party.

President Schweder, asking whether he can rephrase the question, inquired why did the Fire Department change its mind and why is the Administration and the Fire Department 180 degrees from where they were when the issue came before City Council previously.

Mayor Callahan commented he thinks Mr. Leeson said it best that circumstances change, and there needs to be a reevaluation based on the current circumstances, and based on the improvements that were made on that site, and the extenuating circumstances that exist today with the difficulty of Foulk to move because of the delay in the relocation of the Intermodal facility, and the importance of Foulk to the overall viability of Bethlehem Commerce Center. Mayor Callahan stated, as Mr. Leeson pointed out, the judgment was made that this is the appropriate way to go forward. Mayor Callahan, affirming “we are all trying to get projects done in Bethlehem…The redevelopment of the…[Bethlehem] Commerce Center is the number one priority of this Administration, and it’s been our number one focus, and I don’t want to do anything that’s going to put that in jeopardy.”

President Schweder said “and perhaps Council’s first priority is public safety.”

Mayor Callahan responded he has been assured by Fire Commissioner Moyzan and he can only go by the expertise of the Fire Commissioner.

President Schweder remarked the two statements he finds even more frightening about this is that “we not going to move to save it…, that steps would not be taken to save the structure if it caught on fire. “

Mayor Callahan advised it is a steel shed.

President Schweder, noting he has been at the site, pointed out that one of the members of the Fire Department said to him “so were the World Trade Center towers.”

Ms. Szabo said she is not satisfied with the answer she got about being liable for a lawsuit. Ms. Szabo stressed that Attorney Spadoni does not make those decisions, the Administration does. Ms. Szabo remarked from that she concludes that there is no such agreement.

Attorney Spirk, commenting the agreement looks like it was made January 31, 2003, noted it was signed by Acting Mayor Reichard, the Codes Board of Appeals Chairman, Bethlehem Steel Corporation, the railroad, and Foulk Warehousing. Attorney Spirk continued on to say apparently the parties in 2003 must have anticipated that perhaps July 1, 2005 might not have been enough because there is a long paragraph about “what if they can’t get this done. And it says in the event that they can’t the parties are directed to try to negotiate an extension. But if the parties can’t negotiate an extension, then either party can send it back to Judge Smith and he will determine whether best efforts and substantial progress has been made in development of another site for Foulk to move. And, if so, the court may then extend the deadline by such duration as the court decides is appropriate. It’s sort of the thing where there is no agreement that was reached in 2003 that says anything about liability. But, by the same token, the Judge has kept this under his continuing jurisdiction and has sort of taken on ultimate responsibility for this. “

Mr. Donchez, with reference to a few of his questions and President Schweder’s, noted Fire Commissioner Moyzan used the term once or twice “we”. Mr. Donchez asked does “we” mean the Administration or does “we “ mean you and the Deputy Commissioner, Mr. Novak.

Fire Commissioner Moyzan replied he is speaking of the Fire Department and the Administration.

Mr. Donchez inquired what is the position of the Deputy Commissioner.

Fire Commissioner Moyzan replied “he does hold a stronger opinion about that it’s been long overdue. Fire Commissioner Moyzan, turning to the building, and safety, and circumstances, said “I think that’s the major thing that has me convinced to go another six months. I think it is a hazard when you have a building of such that isn’t sprinklered and could collapse. That is a reality of a fire in such a building. Yet, at the same time it’s existed for over five years. It is something that we are passionate to try to get it changed, and we think the change is going to happen. But yet, at the same time, I have a better understanding about…it was almost impossible for this person to get a piece of land and have it attached in some way to the use with the Intermodal system. And, it had to do with Bethlehem Steel’s bankruptcy, the sale of ISG,…there was…I believe, an argument…[about] how the land could be developed, and then finally something was done with LVIP…I’m recognizing the difficulties that they had. They worked within five years to begin with, and it seems like when you look at how long it did exist, another six months make sense at this point to work it out. And, so maybe it’s some compassion for their building and the use within the City of Bethlehem, and the economic development in that area to help try to support it, that’s true. But, by the same token, let’s go back to the building. We talk about how in the Fire Department we have operational procedures and we…have a very aggressive attack, an offensive attack, on the building when there’s a structural fire. But another tactic that is part of the book is a defensive tactic, and it’s been widely discussed within the Department that if anything happens in that building, including for the last five years that did exist, we would have a defensive posture. But another six months, that doesn’t change that. We would still have a defensive posture…and make sure that no one is inside the building because a fire in a…. building with a steel structure, there’s a good chance it’s going to collapse and come down on the wood stock that’s in there. So, the real danger is to make sure you stay out of the building…And, we have standing orders for that…”
President Schweder recalled when the agreement was released before the court five years ago it had nothing to do with Foulk moving, and the question was whether they were in compliance and whether they were going to come into compliance.

Fire Commissioner Moyzan explained it was his understanding that it was a part of it, and that is why the extension was given, so the company would have time to buy a piece of land, and to move. Fire Commissioner Moyzan confirmed to President Schweder that it was also to bring them into compliance.

Mrs. Belinski queried if they are not in compliance and they do not put the sprinklers in, and the business is shut down, will they be paying $250 a day if they are no longer in business. President Schweder noted they would not at that point. Mrs. Belinski questioned when does the $250 a day fine begin.

Fire Commissioner Moyzan replied his understanding would be that if the building is being built and they have another day or week to finish it, but they have not done it yet, and they have not moved, or then need a week to move the lumber, they will be fined $250 a day until they get into the new building.

Voting AYE: Mr. Arcelay, Mr. Leeson, Mr. Mowrer, and Ms. Szabo, 4. Voting NAY: Mrs. Belinski, Mr. Donchez, and Mr. Schweder, 3. The motion passed.

7. COMMUNICATIONS

A. Director of Planning and Zoning – Zoning Text Amendment – Personal Care and Assisted Living Facilities

The Clerk read a memorandum dated November 29, 2005 from Darlene L. Heller, Director of Planning and Zoning, advising that the Planning Commission, at their meeting of November 10, voted unanimously to recommend approval of the attached proposed zoning text amendment to address Personal Care and Assisted Living Facilities. The proposal defines the uses, allows them as by right uses in the Institutional and Residential Retirement Complex (RRC) zoning districts and allows them by special exception in all residential districts except the Rural Residential (RR) zoning district. The proposal also creates special provisions for the uses and outlines parking requirements.

President Schweder referred the matter to the Lehigh Valley Planning Commission.

Mr. Donchez and Mrs. Belinski moved to schedule a Public Hearing on Tuesday, January 17, 2006 at 7:30 PM in Town Hall.

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

B. Director of Planning and Zoning – Zoning Text Amendment – Non-Conforming Uses

The Clerk read a memorandum dated November 29, 2005 from Darlene L. Heller, Director of Planning and Zoning, advising that the Planning Commission, at their meeting of November 10, voted unanimously to recommend approval of the attached proposed zoning text amendment to address nonconforming uses, structures and lots.

President Schweder referred the matter to the Lehigh Valley Planning Commission.

Mr. Donchez and Mrs. Belinski moved to schedule a Public Hearing on Tuesday, January 17, 2006 at 7:30 PM in Town Hall.

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

C. Director of Planning and Zoning – Grant for Comprehensive Plan and Zoning Ordinance

The Clerk read a memorandum dated November 29, 2005 from Darlene L. Heller, Director of Planning and Zoning, attached to which was a resolution in support of the City’s grant request for $80,000 for LUPTAP (Land Use Planning and Technical Assistance Program) funds for the comprehensive plan and zoning ordinance.

President Schweder stated that the authorizing resolution will be placed on the December 20 Council Agenda.

D. City Solicitor – Amending Article 913 – Water Rates and Charges

The Clerk read a memorandum dated December 2, 2005 from John F. Spirk, Jr., City Solicitor, to which was attached a proposed ordinance to amend Article 913, Water Rates and Charges, at the request of Jeffrey A. Andrews, Superintendent of Water Supply and Treatment, by increasing water rates.

President Schweder stated that Bill No. 66 – 2005 is listed on the agenda for First Reading.

E. Assistant City Solicitor – Street Vacation - Portion of Raspberry Street between Dellwood Street and Park Place

The Clerk read a memorandum dated December 1, 2005 from Joseph M. Kelly, Assistant City Solicitor, to which was attached a proposed ordinance to effect the vacation of a portion of Raspberry Street between Dellwood Street and Park Place.

President Schweder stated that Bill No. 67 – 2005 is listed on the agenda for First Reading.

F. Assistant City Solicitor – Street Vacation - Portion of Raspberry Street between Hawthorne Road and East Boulevard

The Clerk read a memorandum dated December 1, 2005 from Joseph M. Kelly, Assistant City Solicitor, to which was attached a proposed ordinance to effect the vacation of a portion of Raspberry Street between Hawthorne Road and East Broad Street. The Planning Commission recommended denial of this proposed vacation primarily due to the fact that neither the Applicant nor the abutting property owners were present to resolve questions the Commission had about the vacation. Since the Planning Commission meeting, counsel for the Applicant has provided a signed Agreement by the abutting landowners and resolved the concerns raised.

President Schweder stated that Bill No. 68 – 2005 is listed on the agenda for First Reading.

8 . REPORTS

A. President of Council

President Schweder stated that City Council will meet in Town Hall tomorrow evening, December 7, as a Committee of the Whole at 6:00 PM to review the Five Year Capital Plan, followed by the Fourth Budget Hearing at 7:00 PM.

B. Mayor

1. Administrative Order – Judith L. Aronson – Fine Arts Commission

Mayor John B. Callahan appointed Judith L. Aronson to the Fine Arts Commission effective until April 2008. Mr. Donchez and Mrs. Belinski sponsored Resolution 14,733 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.

2. Administrative Order – Barbara H. Diamond – Fine Arts Commission

Mayor John B. Callahan appointed Barbara H. Diamond to the Fine Arts Commission effective until April 2008. Mr. Donchez and Mrs. Belinski sponsored Resolution 14,734 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.

3. Administrative Order – William G. Meila – City Planning Commission

Mayor John B. Callahan appointed William G. Meila to the City Planning Commission effective until October 2010. Mr. Donchez and Mrs. Belinski sponsored Resolution 14,735 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.

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

Mayor John B. Callahan reappointed J. Ralph Lindgren to the Sister City Commission effective until October 2008. Mr. Donchez and Mrs. Belinski sponsored Resolution 14,736 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.

State-Wide Economic Development Summit – Bethlehem KIZ

Mayor Callahan informed the assembly he took part in a State-wide economic development summit entitled, Creating Pennsylvania’s Future, a higher education, economic development, and community development summit, designed to talk about the State’s KIZ (Keystone Innovation Zone) program, what the State is doing in relation to technology transfer and working with institutions of higher education towards economic development. Mayor Callahan advised he had the honor of participating in a panel along with Lehigh University, the president of Franklin and Marshall College, and an executive vice president of the University of Pennsylvania. Mayor Callahan pointed out that all should be proud of the fact that Bethlehem was the first city designated as a KIZ, and noted that all of South Bethlehem is designated as a KIZ, and Bethlehem is recognized throughout the State as not only the first city, but as a model State-wide for what other communities should do in relation to harnessing technology and driving economic development through good jobs in conjunction with a University. Mayor Callahan, noting it was very well received, restated it was an honor to be part of the panel, and that Bethlehem and its KIZ is very well thought of.

C. Community Development Committee

Ms. Szabo, Chairwoman of the Community Development Committee, gave an oral report of the committee meeting held on Tuesday, November 15, 2005 on the following subject: Elm Street Proposal – North and West Side Neighborhoods.

D. Finance Committee

Mr. Donchez, Chairman of the Finance Committee, gave an oral report of the committee meeting held prior to this evening’s City Council meeting on the following subjects: Transfer of Funds – Parks Department – Buildings - Heating Oil; Transfer of Funds – Water Treatment Plant – Filter Replacement Project; Transfer of Funds – Fire Department – Overtime; and Transfer of Funds – Water Bureau – Overtime.

E. Human Resources and Environment Committee

Mr. Arcelay, Chairman of the Human Resources and Environment Committee, gave an oral report of the committee meeting held Tuesday, November 29, 2005 on the following subjects: City Council - Assistant City Clerk – Reclassification; Department of Community and Economic Development - Director of Community and Economic Development; Department of Parks and Public Property - Director of Parks and Public Property; Bureau of Parks Maintenance - Maintenance Worker I – Deletion; Department of Fire - Bureau of Emergency Medical Services - Paramedics – Adding Four; Department of Water and Sewer Resources/Bureau of Supply and Treatment - Division of Collection and Treatment - Maintenance Worker II – Deletion, Maintenance Mechanic Worker III/Operator I – Addition; Division of Laboratory Services - Water Quality Manager – Reclassification; and Golf Course Enterprise Fund - Maintenance Worker I – Deletion.

9. ORDINANCES FOR FINAL PASSAGE

A. Bill No. 53 – 2005 – Amending Article 1113 – Food Establishments – Fees

The Clerk read Bill No. 53 – 2005, Amending Article 1113 – Food Establishments - Fees, on Final Reading.

Voting AYE: Mr. Arcelay, Mrs. Belinski, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. Bill No. 53 – 2005, hereafter to be known as Ordinance 4350, was declared adopted.

10. NEW ORDINANCES

A. Bill No. 65 – 2005 – Amending Community Development Budget – Comprehensive Planning and BEAR Program

The Clerk read Bill No. 65 – 2005, Amending Community Development Budget – Comprehensive Planning and BEAR Program, sponsored by Mr. Mowrer and Ms. Szabo, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM,
COUNTIES OF LEHIGH AND NORTHAMPTON,
COMMONWEALTH OF PENNSYLVANIA, AMENDING
THE COMMUNITY DEVELOPMENT BUDGET FOR
2005.

Voting AYE: Mr. Arcelay, Mrs. Belinski, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. Bill No. 65 – 2005 was declared passed on First Reading.

B. Bill No. 66 – 2005 – Amending Article 913 – Increasing Water Rates and Charges

The Clerk read Bill No. 66 – 2005, Amending Article 913 – Increasing Water Rates and Charges, sponsored by Mr. Mowrer and Mr. Arcelay, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM,
COUNTIES OF LEHIGH AND NORTHAMPTON,
COMMONWEALTH OF PENNSYLVANIA, AMENDING
ARTICLE 913 OF THE CODIFIED ORDINANCES
ENTITLED WATER RATES AND CHARGES

Voting AYE: Mr. Arcelay, Mrs. Belinski, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. Bill No. 66 – 2005 was declared passed on First Reading.

C. Bill No. 67 – 2005 – Street Vacation – Raspberry Street between Dellwood Street and Park Place

The Clerk read Bill No. 67 – 2005, Street Vacation – Raspberry Street between Dellwood Street and Park Place, sponsored by Mr. Mowrer and Mr. Arcelay, and titled:

AN ORDINANCE AUTHORIZING THE VACATION,
DISCONTINUANCE AND STRIKING FROM THE CITY'S
GENERAL PLAN OF STREETS OF A PORTION OF