Council Minutes

February 21, 2006 Meeting Minutes

BETHLEHEM CITY COUNCIL MEETING
10 East Church Street – Town Hall
Bethlehem, Pennsylvania
Tuesday, February 21, 2006 – 7:30 PM

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

President J. Michael Schweder called the meeting to order. Father John Little, of Saints Simon and Jude Church, offered the invocation which was followed by the pledge to the flag. Present were Jean Belinski, Karen Dolan, Robert J. Donchez, Joseph F. Leeson, Jr., Gordon B. Mowrer, Magdalena F. Szabo, and J. Michael Schweder 7.

Executive Session

President Schweder reported that City Council met in Executive Session this evening, Tuesday, February 21, 2006 at 6:00 PM in the Mayor’s Conference Room. The purpose of the Executive Session was to consult with the attorney or other professional advisors regarding information or strategy in connection with litigation or with issues on which identifiable complaints are expected to be filed.

PUBLIC HEARING

Establishing CM – LTN Landmark Conservation and Traditional Neighborhood Development Overlay District – Martin Tower – Eighth Avenue

Prior to the consideration of the regular Agenda items, President Schweder called to order a Public Hearing on the following Zoning Text Amendment to the Zoning Ordinance: Add Section 1314.A to establish a CM – LTN Landmark Conservation and Traditional Neighborhood Development Overlay District, to create an overlay in the CM Office Research Center District consisting of the specific tract of property in the City of Bethlehem, Lehigh County, known as the Martin Tower site located at Eighth Avenue and Route 378 containing approximately 52 acres.

Communication 7 A – Director of Planning and Zoning – Zoning Text Amendment – CM-LTN District – Martin Tower Site

The Clerk read a memorandum dated January 18, 2006 from Darlene L. Heller, Director of Planning and Zoning, in which it was stated that the Planning Commission, at their meeting of January 12, 2006, recommended approval of the Zoning Text Amendment as submitted to create a CM – LTN Landmark Conservation and Traditional Neighborhood Development Overlay District at the Martin Tower site on Eighth Avenue. Attached was their recommendation, application, the existing provisions of the CM Zoning District and a comparison between the CM provisions and the Overlay provisions.

Communication 7 B – Lehigh Valley Planning Commission – Zoning Text Amendment – CM-LTN District – Martin Tower Site

The Clerk read a letter dated January 27, 2006 from Olev Taremae, Chief Planner, Lehigh Valley Planning Commission (LVPC), in which it was stated that at their meeting of January 26, 2006, the Commission considered the proposed Zoning Text Amendment and voted to return the following comments. The LVPC supports the proposed zoning ordinance amendments as an instrument for the redevelopment of the Martin Tower site. The LVPC estimated that the proposed development depicted on the plan submitted with the zoning amendments will generate over 6,000 daily trips, a considerable amount of traffic. The City should consider the ability of the nearby roads to handle this traffic. A traffic study would be useful toward this end. Should the study identify deficiencies in the road network, improvements necessary to provide adequate service should also be identified so that they can be completed in a timely manner. The plan shows continued reliance on the road that joins the awkward intersection of Schoenersville Road and Eaton Avenue for site access. Thought should be given to changes to the internal and/or external roads in that area to provide safe and efficient traffic circulation.

Planning Director Comments

Darlene Heller, Director of Planning and Zoning, enumerated that City Council received a copy of the application, the current CM provisions, and a comparison with what is proposed in the Zoning Text Amendment. Ms. Heller highlighted the fact that the Martin Tower site on Eighth Avenue is a landmark property not just for the City but for the region as well. (The Martin Tower building with 21 stories had been the corporate offices for the former Bethlehem Steel Corporation.) However, Ms. Heller pointed out that the structure has been severely underutilized for several years, its assessed tax value has been decreased, it continues to fall into disrepair, and will continue to do so unless a viable alternative use is found for the site. Ms. Heller stated that the office market is clearly not strong enough in this area to support such a large office structure. In addition, it will take a significant amount of funds to successfully reuse the site because of asbestos, the need for sprinklers, and the general disrepair of the site. Ms. Heller communicated it is believed that the proposal presents a very creative alternative use to the site that remains compatible with the surrounding area. The current zoning, CM – Office Research, was created to facilitate research and development for the former Bethlehem Steel Corporation. The purpose of the CM zone is to provide for large-scale, and integrally planned and designed office facilities, research and similar uses, including testing and experimental laboratories and their necessary accessory facilities. The CM zone only exists in two areas of the City that is the Eighth Avenue area and on top of South Mountain where Bethlehem Steel’s research laboratories had been located. Ms. Heller continued on to say the existing CM zoning clearly does not provide the flexibility and zoning necessary for reuse of the site.

Ms. Heller, informing the Members that the amendment was presented as an Overlay rather than a map change, advised that the stated purpose of the Overlay is to promote the retention and reuse of a major landmark building for the Lehigh Valley, and to promote a mix of land uses that are conditioned upon the reuse of the landmark that is worthy of preservation. The Overlay district creates a system of incentives by allowing additional types of uses in order to promote the reuse of the landmark building. Because of renovation costs, the landmark building is in danger of demolition if appropriate redevelopment is not allowed for the tract. The provisions of the Overlay apply only if the 21 story Martin Tower building is retained, and if the tract continues to include at least 50 acres as a preliminary subdivision or land development. It includes a mix of residential uses, including multi-family dwellings, two family detached and semi-detached buildings, single family attached units, and hotels, along with retail and service uses not to exceed 50,000 square feet if they are not located in newly constructed buildings. Ms. Heller explained that as the Department worked with the developer in reviewing the proposal, several provisions were included to ensure that the site would be designed well, and would be compatible with the surrounding area. Some of those provisions include the fact that 10% of the land must be retained in open space, and a minimum 75 foot setback is required between Burnside Plantation and any new principal buildings that could be increased to 100 feet if the new structure is greater than four stories. Dwelling units are permitted at a density of 18 units per acre, similar to the current RM zoning for mixed use and RT zoning for multi-family use. An overall master plan will be required for the site, as well as architectural sketches for review and comment. To provide for neighborhood characteristics that are intended for a traditional neighborhood development, the Overlay allows for right of way and cartway widths that are narrower than those currently required by the Subdivision and Development Ordinance (SALDO) for streets not dedicated to the City. Typically, parking will be constructed behind or below the units. There are flexible requirements for on-street parking, and visitor parking will also be required.

Although the City does not typically require traffic studies for a rezoning proposal, the developer has done some preliminary analysis of the proposed peak hour traffic. Because the proposal is largely residential use, the proposed Overlay creates less peak hour traffic than what currently exists at the site. In addition, traffic improvements required in conjunction with the Lowe’s mixed used use development on the West side of Eighth Avenue already included traffic attributed to background growth and proposed nearby development including the Martin Tower site. Ms. Heller advised that all roadway improvements for the off-site intersection were designed to include the traffic associated with full occupancy of the Martin Tower office campus. The Overlay provisions will create up to 17% less traffic than what is currently generated by the Martin Tower site.

Noting that the Bureau also considered many other items including the Comprehensive Plan, Ms. Heller said the proposed Overlay supports the goals and objectives of the City’s Comprehensive Plan, and provides for a viable re-use of an abandoned former Bethlehem Steel Corporation property, and an additional opportunity for a variety of housing types. It also complies with the newly adopted comprehensive plan for the Lehigh Valley region. Ms. Heller observed it has become apparent that re-use of the building with its original office use is not practical, and re-use of the site with an alternate yet compatible use is much more likely. Residential uses combined with a mix of office, hotel, and/or retail are compatible alternative uses for the site. The lot is so large that a mix of uses will be necessary to help ensure the success and vitality of a new development.

Ms. Heller, notifying the Members that the Bureau also looked at open space and recreation, confirmed that the site abuts Burnside Plantation, the Overlay does include provisions to respect the existing site lines, and creates a buffer between the Martin Tower site and Burnside Plantation. The Martin Tower site also has immediate access to the Monocacy Creek and Monocacy Way which provides direct connection to the Industrial Quarter, the Lehigh River, Sand Island, and the Delaware and Lehigh National Heritage Corridor. Ms. Heller pointed out it is at a key location to link to the City’s natural resource network.

Ms. Heller affirmed that the Planning Bureau does recommend and support the Zoning Text Amendment for the Overlay as it is proposed this evening. Ms. Heller added that the proposal takes a site that is severely underutilized and allows for the creative reuse of the site.

Developer Comments

Attorney James Broughal, representing MTR Limited Partnership, the applicant, informed the Members that some data is being distributed to them in connection with the presentation. Attorney Broughal further notified the Members that he is joined this evening by two principals of the Partnership, Lou Ronca and Lou Pektor. Attorney Broughal listed the individuals who will be making presentations this evening. Fred Jackson and Mike Scott, planners and architects from the Martin Architectural Group, will review the vision of what the site would look like if the zoning amendment is passed. Ron Hoffman, of Traffic Planning and Design, traffic engineer, will present traffic study information. Lou Pektor will review a number of things including economics of the project, and reasons for the proposal. Attorney Broughal observed that when the developers began the process with the City Administration, the City’s consultants looked at what the developers envisioned for the site and the proposed Ordinance was modeled to provide for that. There were two overriding issues that were heard from the City, foremost of which was that Martin Tower had to remain, in view of the fact that it was a landmark of which the City was proud and is a part of its heritage. Attorney Broughal pointed out that the primary directive of the proposed Ordinance is “if you don’t save the Tower, we can’t use the Ordinance.” Turning to the traffic, the second point, Attorney Broughal explained that the proposed use of the property actually decreases the traffic counts and makes the traffic more palatable. Third, Attorney Broughal noted that displays will be shown this evening demonstrating visions of the site under the proposed Ordinance. Attorney Broughal, stating “they are our vision”, continued on to say “when the plans are finally thought out they may not look exactly the way that you see them tonight. One of the things we’re looking at is the annex. We’re not sure yet whether the annex is going to stay or go. Market conditions will drive that. What you are seeing tonight is our best guess. But the Ordinance was drafted in such a fashion that it doesn’t leave either my client or any other person who comes before you with a lot of latitude in terms of what that site is going to look like.”

Fred Jackson, planner with the Martin Architectural Group, pointing to a map of site, noted the site is bounded by Eighth Avenue to the West, Eaton Avenue to the North, and Burnside Plantation to the East. Mr. Jackson said the concept land plan proposes a traditional neighborhood design featuring tree lined streets with sidewalks linking shops, pocket parks, and a club facility, all within walkable distance. Mr. Jackson continued on to say the community contains 945 units at 18 units per acre of five different housing types. Stacked townhouses would face the tree lined streets and have garage parking in the rear. Low-rise flats, to be located adjacent to the Burnside Plantation, are three story buildings facing the street, with parking garages at the sides and rear. Mid-rise four story buildings have garages underneath with the village townhouses fronting on the street. The object is to create a pedestrian streetscape environment that will encourage livable streets. At the project entrance is a small-scale retail area across from a pocket park. The entrance at Eaton Avenue is a community recreation facility with fitness, exercise, and meeting rooms, and card tables. Focusing on the green area, Mr. Jackson explained the open space area will be in conservation and is greater than 10% of the gross site area. Turning to the three story low-rise flats buildings to be located adjacent to the Burnside Plantation, Mr. Jackson informed the assembly that the visual impact of the buildings was analyzed, and there is an approximate 34 foot slope differential. By maintaining the existing trees and vegetation, and enhancing the edge with evergreen plantings, the proposed buildings will not be able to be seen from Burnside Plantation.

Mike Scott, senior associate with Martin Architectural Group, explained one of the visions for the project was to create streetscapes with an intimate pedestrian feel. Utilizing sketch plans, Mr. Scott pointed out that all the buildings open out to the street, and parking is in the rear or under the building. The stacked townhouses that the Group is introducing is a three story unit adjacent to Martin Tower, with parking in an alleyway behind the units, leaving the main streets with wide sidewalks for pedestrian interaction. The low-rise buildings have elevators, parking in the rear, and are open to the street to create a pedestrian feel. On one side of the mid-rise buildings would be townhouses, with steps and stoops, parking underneath the building, a deck over the parking garage, and a landscaped plaza. The retail portion would be two stories, with specialty shops such as coffee shops, to support the area residents. The units in Martin Tower would be high-end on the upper floors with views. Mr. Scott communicated that the firm tried to create a traditional neighborhood design and link the units with pedestrian walkways to create activity in the streets.

Rob Hoffman, of Traffic Planning and Design, affirmed that the company provided traffic engineering services in conjunction with the project. He pointed out the first slide is a picture of the corridor. Mr. Hoffman observed that, in connection with the Lowe’s retail development across the street, a significant amount of roadway improvements were designed and will be implemented along the Eighth Avenue corridor. He confirmed that Traffic Planning and Design did the work on the Lowe’s project as well, and is responsible for the design of the corridor and associated roadway improvements. The design of those improvements accounted for not only the retail project across the street from the proposed Martin Tower site development but also accounted for a full occupancy of the Martin Tower site under the current office use. Mr. Hoffman noted there are about 570 peak hour trips during the morning and 800 in the evening, and pointed out there is significantly more traffic currently than what will be proposed. He continued on to say there will be about 40%-50% less than that what is there today. When future projections are factored in, it would be about 50%-60% less than that what is there today. Mr. Hoffman stressed the key point is that the improvements designed along the corridor will be more than adequate to accommodate the traffic associated with the Martin Tower site.

Lou Pektor, project developer, recounted he started to look at the Martin Tower project a few years ago as an office product. The two main current tenants in the Martin Tower complex, R&S company and Dun and Bradstreet, are both in the process of building new facilities and will vacate the building. Mr. Pektor informed the Members that his company tried its best both to retain those tenants and to find other tenants for the building. Based on the operation costs, ineffective configuration of the building, purchase price, asbestos abatement, and sprinkler requirements, Mr. Pektor advised it was decided it was not feasible to retrofit the building for offices and be competitive in the marketplace. Noting a lot of time was spent with real estate consultants and designers, Mr. Pektor explained the result has been a configuration to create a new marketplace for residential units in the Lehigh Valley in the price range of $200,000 per unit to about $1.5 million per unit. He continued on to say the design tried to take advantage of the tremendous views from the inside of Martin Tower. To see the amount of units needed to make the project integrated and to work, there were units priced at an affordable level up to what would be the ultimate in the Lehigh Valley. Mr. Pektor highlighted the fact there is not a building like Martin Tower in the Lehigh Valley that could compete with it. As a result, the company looked at the array of what could create economic value with a unit count for various types of units. Mr. Pektor added that the company is trying to redesign the Annex building and possibly add two more floors to create more units. Affirming the attempt is clearly not to remove Martin Tower, Mr. Pektor observed the proposed Ordinance does not allow that. Second, Mr. Pektor reiterated he will retain the Annex if that can be done effectively. Third, Mr. Pektor pointed out there is an array of housing that serves a lot of different purposes.

Mr. Pektor communicated that the net result of projected economic value would probably be in excess of $300 million of finished product. The assessment base is in the $450 million range, and the net increase in taxes as shown in Exhibit 5 is approximately $9 million of combined taxes for the Bethlehem Area School District, Lehigh County, and City of Bethlehem. The current combined taxes being generated on the property amounted to $360,000. Mr. Pektor noted the incremental change is about $8.7 million of tax revenue at the completion of the project as it is envisioned. Mr. Pektor remarked “we wouldn’t be risking the amount of capital we have to risk to do this project if we didn’t think these were obtainable. So they’re not numbers generated for you. They’re generated for us.” Mr. Pektor explained that the exhibit exemplifies the mix of product and how the revenue figures were derived based on an average sale price per unit. He added there will be about 20,000 square feet of retail on the site for the neighborhood such as dry cleaner, coffee shop, and salon. In addition, there will probably be one high end restaurant that will most likely be located in Martin Tower. The combined value of these categorical uses total about $309 million for the completed project, and about a $154 million assessment value.

Mr. Pektor, focusing on student generation from the project, explained that the urban land institute standards were applied for this use of housing. On a fully built-out basis, the projected student generation count was 425 students. Mr. Pektor advised that count based on the average estimated cost per student per year in addition to a $1,200 per student administration fee equates to a cost per student per year of $9,600, or about a $4 million potential cost to the school system, versus potential School District revenues of $5.4 million, for a net surplus of $1.3 million.

Turning to a rendering of the proposal for the Annex building, Mr. Pektor advised that the economic calculation is not completed. Mr. Pektor explained that two more stories with balconies would be added to the current two story structure.

Council Comments

President Schweder questioned the effective date language in the proposed Ordinance that states the Ordinance shall have an effective date of five days after passage. Recalling that City Council has never passed an Ordinance with that time frame in the nine years he has been a Member, President Schweder asked the rationale for the short time frame.

Ms. Heller replied it does not need to be five days. Ms. Heller, noting that typically the Law Bureau prepares Ordinances for City Council’s consideration, advised the Planning Bureau was working with the developer to package an Ordinance and that was the way it was set up. Ms. Heller added that she was not aware initially that it was any different than any other Ordinance sent to Council before.

President Schweder, focusing on the severability language in the proposed Ordinance, again said in the nine years he has been a Member of Council he has not seen that language in a proposal. President Schweder, noting he has copies of five former Overlay Ordinances passed by City Council, pointed out that severability language never appears in those Ordinances. President Schweder queried can someone answer why that severability language is contained in the proposed Ordinance.

Attorney Broughal, affirming he is also a municipal solicitor and drafts zoning ordinances on a regular basis, explained the language of an effective date of five days after passage is standard in almost every ordinance he does and just means the ordinance takes effect not when passed but within five days thereafter, with a 30 day appeal period. Attorney Broughal continued on to advise that Second Class Township Code provides for the ordinance to be effective five days after passage.

President Schweder highlighted the fact that in Bethlehem, an Optional Third Class City, it is twenty days.

Attorney Broughal, while stating he has no problem with whatever it is, commented the five days provision is something he was used to and it may have been included in his draft of the proposed ordinance that was sent to the staff. Attorney Broughal noted that is how it came to pass. Turning to the severability provision, Attorney Broughal explained it means that if any provision of that ordinance is found to be unconstitutional for whatever reason it would not effect any other provision of the ordinance, and would not make the entire ordinance unconstitutional.

President Schweder, expressing he understands the provision, asked what is the rationale for having it in the proposed ordinance.

Attorney Broughal responded for exactly the reason he said in that if in the future for whatever reason a provision of the ordinance is found to be unconstitutional then the entire ordinance would not be unconstitutional.

President Schweder pointed out that a severability provision is already included in the City’s Zoning Ordinance, with language that is somewhat different. President Schweder said he is curious why there is different language in the proposed Ordinance when the City already has a severability clause in the Zoning Ordinance currently.

Attorney Broughal replied that the severability provision in the proposed Ordinance would not overrule the severability clause in the City’s current Zoning Ordinance. Attorney Broughal continued on to say it is only for this particular amendment.

President Schweder, reading the severability language in the proposed Ordinance, expressed it would appear to him that the language strikes him as a way that there are provisions the developer is being asked to be held to that perhaps are turned over and the City would end up with part of the Ordinance and not with other parts. President Schweder communicated if the determination were made that the City could not hold the developer to what is being said with respect to Martin Tower and that was challenged, the City could then end up with the language that goes beyond what is currently on the books where the developer would have all of the positive aspects of the Ordinance but the signature feature would not be part of it. President Schweder queried would it not be better letting the language remain as it exists in the City’s current law.

Attorney Broughal observed the result would be the same. In further response to President Schweder, Attorney Broughal stated he would not have a problem with that.

President Schweder, focusing on the traffic study, noted it was stated that, while the facility is underutilized, having more utilization of the facility would result in 60% less traffic. President Schweder, referring to Ms. Heller’s report, observed it says that is not a concern. President Schweder continued on to point out that the Lehigh Valley Planning Commission’s letter to Council states there will be considerable increase in traffic and the number of vehicles, and also raises concerns about the inadequacy of the entrance at Eaton Avenue and Schoenersville Road. President Schweder recalled that over the last five years there have been discussions about traffic studies done by developers, and the fact that the City was going to have independent traffic studies that are paid for by the developer. President Schweder observed that was not done.

Ms. Heller affirmed that is part of the Subdivision and Land Development Ordinance, and it is required as part of the Subdivision and Land Development plans when they are submitted. Ms. Heller added that the number cited in the Lehigh Valley Planning Commission’s letter is for daily trips versus the number in the developer’s report that is for peak hours.

President Schweder, pointing out that the historic structure of the Martin Tower is the key point of the proposal, advised that the Pennsylvania Historical and Museum Commission was contacted today and Martin Tower does not qualify as a historic structure because it is not old enough.

President Schweder, focusing on the proposed alleys, noted that the width would be more narrow than the City requires for a driveway on a property, and asked the rationale.

Ms. Heller, confirming that the elevations were reviewed with the Traffic Bureau, Public Works Department, and Fire Department, advised it was felt the widths are reasonable. Ms. Heller explained that the right of way width required in the Subdivision and Land Development Ordinance are for more suburban streets. Ms. Heller, continuing on to advise the proposal calls for more of an urban style development, said having more compact streets with on-street parking is more appropriate for this type of development that is walkable and denser.

President Schweder observed the requirements for driveway widths are more stringent for someone building a single family than the width of streets in this development.

President Schweder asked how many 12 story buildings could be built on the property.

Ms. Heller, while responding that she cannot give a number, explained the proposal allows for flexibility in design and development. Ms. Heller continued on to reply that the taller a building becomes, the more interior to the lot it is required to be built. She added it allows for flexibility in the number of housing units of each type. Ms. Heller, in further response to President Schweder, noted the developer said their proposal could change if they submit a formal plan.

President Schweder, noting Mr. Pektor is not owner of Martin Tower at this point, observed Mr. Pektor is aware that in 37 days the building will be in violation of the City’s fire protection Ordinance and sprinkler protection. Mr. Pektor said yes. President Schweder asked whether Mr. Pektor would be able to give assurances tonight that the very first thing he would do in the development of the property is to see it is outfitted with what Bethlehem’s law requires with respect to sprinklers.

Mr. Pektor said “we intend to demo[lish] the Tower…[to] refurbish it for residential. We have to build a new fire suppression at that time, and asbestos removal. It doesn’t make any sense for us to come in and try to do fire suppression now, and go back and do what we need to do once the tenants vacate. The tenants that are in there now are asking for an accommodation to try and stay until about December. We aren’t the current owner of title. We would ask for some consideration [to] have the building stay in the state it is in until we get in to demo the building. We’re willing to live with an edict to go ahead, and I think we’ve actually been in front of…a hearing…for an extension that lasts until the end of the year to defer this sprinkler requirement. For us it makes no sense to go in and try to address the sprinkler issue addition when we intend to virtually reconstruct the interior of that building.”

President Schweder, observing the answer would be no, noted Mr. Pektor would be seeking to have the City defer the Ordinance. Mr. Pektor stated “we would seek some consideration based on our business plan to reconstruct this site.”

Attorney Broughal advised “we have already gone before the Code of Appeals Board and asked for a delay of putting in the sprinklers until the end of this year, and we were granted that request by the City’s Board of Appeals.”

President Schweder queried if it would be Attorney Broughal’s position at that point that the City could be assured that process would begin on January first of next year.

Attorney Broughal said, if Council would vote in favor of this Ordinance tonight and then at the next Meeting would vote in favor of the Ordinance so that closing could take place on the property with the owner and with the bank, then “yes I think we could assure you that as of the end of this year, the first thing that we would do would be to, and I assume as soon as the tenants would leave…”. Mr. Pektor entered the conversation to say if the tenants would leave in June he could start in June, but the problem is the tenants who are requesting an extension. Attorney Broughal observed without the Ordinance passing the improvements would not be able to be made.

Mr. Mowrer expressed his understanding that the ultimate concept is that the use will be condominiums and will be owned by the people who live there.

Mr. Pektor, replying yes, said it will be a condominium project. Continuing on to say “we intend to condominiumize the entire Tower, and Annex if we keep the annex, and likewise the townhouses. There will not be rental properties on the property. These will be for ownership, whether they be some fee simple, or whether they be all condos…”. In further response to Mr. Mowrer, Mr. Pektor advised there will be a condominium association. He continued on in response to Mr. Mowrer that the condominium association will maintain and be responsible for all maintenance of the roads, snow removal, and anything off-site. Mr. Pektor explained one of the reasons why he was looking for consideration of cartway width was because the roads will not be municipally owned roads but will be privately owned roads.

Ms. Dolan stated she is very excited and enthusiastic about the project, and added she wants to see the project happen well. Ms. Dolan, communicating that the traffic concerns her, advised she worked at Nitschmann Middle School for eleven years. Ms. Dolan, pointing out it is a very dangerous road for pedestrians because the sidewalks are in poor condition and it is difficult to cross the on and off ramps at Route 378, asked if the traffic improvements were part of the agreement with Lowe’s or in addition to other work that will be done.

Mr. Hoffman replied the whole corridor is being redesigned in conjunction with the Lowe’s project. Mr. Hoffman pointed out everything has been designed to account for the traffic associated with full occupancy of Martin Tower.

Ms. Dolan commented that, as much as that is a very interesting fact, she does not think it is as germane because even though the numbers will go down the type of use from a business with peak traffic being the primary traffic will be very different from residential use. Noting she spoke with Joe Gurinko of the Lehigh Valley Planning Commission, Ms. Dolan denoted that is something that a traffic study will address, and she was assured by Ms. Heller that will be required. Ms. Dolan, focusing on ingress and egress onto Route 378, asked if the lights indicated on the schematic are pedestrian friendly lights where all traffic stops and students can cross.

Mr. Hoffman, responding he is not sure if it is set up that way, said it will be set up with pedestrian accommodations, there will be crosswalks as required by the State, and there will be pedestrian indications.

Ms. Dolan stated she would appreciate seeing something before the next Meeting to answer her question. Mr. Hoffman affirmed to Ms. Dolan that the permits for the signals were issued before this was a proposed residential use. Ms. Dolan pointed out that when the plans were made for Lowe’s full development of Martin Tower did not take pedestrians into consideration, and the increase in children going to Nitschmann Middle School on the eastern side of the road. Stressing she thinks that needs to be addressed, restated her request to receive the information, and asked for some assurance that the residential use would be taken into consideration.

Mayor Callahan entered the conversation to note that Michael Alkhal, Director of Public Works, has been working closely with PennDot and the developer of Lowe’s, and may have some further information.

Mr. Alkhal advised that, in connection with the Lowe’s project, the corridor was reviewed very closely along with pedestrian and traffic issues. It was felt that, with this proposal that considered the impact from the Martin Tower site as well, significant improvements were made for both traffic and pedestrian safety. Mr. Alkhal continued on to explain the corridor will have all the amenities in terms of pedestrian crosswalks and lights. To the extent possible, Mr. Alkhal noted things such as all traffic stopping will try to be incorporated. Commenting if it could be managed and permitted the Department would push for that, Mr. Alkhal communicated in that corridor it would be very challenging and difficult, if not impossible, because both traffic flow congestion and pedestrian safety must be balanced. Mr. Alkhal added it will be looked at again when the site plans are issued. Noting the City is putting out a contract to demolish the pedestrian overpass and to construct pedestrian sidewalks on the east side of the corridor, Mr. Alkhal pointed out at the end of the project there will be additional lights that would allow for safer crosswalks for pedestrians, and there will be continuous pedestrian accommodations throughout the corridor from Schoenersville Road to Nitschmann Middle School and beyond.

Ms. Dolan, pointing out the development has a significant neighbor that is Burnside Plantation, observed the residents will have a beautiful park in their backyard. Ms. Dolan inquired whether a relationship has been established with the Burnside Plantation Board to talk about their use of the Martin Tower property for parking or the impact on their property. Ms. Dolan added it seems there will be more impervious surface.

Mr. Pektor said “I don’t know what we can do about your parking for the blueberry festival after this year.” Mr. Pektor stated that most of the site is impervious today. Mr. Pektor explained part of the reason for the stacked townhouses is not to have unit counts spread out horizontally and to create more green space and less impervious surface, with parking under and behind the units. Mr. Pektor stated he does not know the impervious count because the land development plan is not yet completed. Mr. Pektor, noting that one of the concerns expressed by Ms. Heller was the viewscape from Burnside Plantation looking up towards the Martin Tower property, advised there are height restrictions that would not affect the viewscape of Burnside Plantation, and the mid-rises are limited to three stories maximum and would not been seen from Burnside Plantation. Mr. Pektor communicated he has every intention of being a good neighbor as with the other projects he has done in the City.

Ms. Dolan observed a benefit to Burnside Plantation would be increased use of their property.

Ms. Dolan stated at some point it will be important to know the environmental impact on Monocacy Creek.

Mr. Pektor, noting that the land development plan will require traffic, economic, and environmental impact studies, commented those types of questions will be answered and he is sensitive to that. Mr. Pektor added that the storm water management will to some extent be underground retention also, it will not be unsightly, and it will not be on the downslope near Burnside Plantation. Mr. Pektor said “we’re sensitive to the aesthetics that we have to create to get the dollars we need to get to make the project make sense.”

Mrs. Belinski inquired whether the School District will have to build an addition and if they will be able to handle the additional students from the Martin Tower development.

Mr. Pektor, acknowledging there was some concern about the impact on Nitschmann Middle School, expressed the belief that in the next four to five years there would be about a 20% reduction in their anticipated enrollment. Mr. Pektor added he does not know whether there would be an increase or decrease at Clearview Elementary School. He observed that the ages of 400 students in the complex would be spread over all the schools. Mr. Pektor commented the initial estimates are that it would not be stressful, especially on Nitschmann Middle School.

Mr. Donchez expressed surprise that there would be a decrease in students at Nitschmann over the next few years.

Mr. Pektor stated the 2008-2009 enrollment projections done by the Bethlehem Area School District showed a 22.2% net decrease in enrollment at Nitschmann school, so there would probably be an even balance given the number of students from the complex, if there is not any other growth around the area. Clearview Elementary school shows for 2008-2009 a 23.3% decrease. Mr. Pektor observed it looks like a student neutral case.

Mr. Donchez, highlighting the fact that Eighth Avenue is one of the most heavily used roads in the City, stressed that everything must be done at the intersection to make it as pedestrian safe as possible.

Mr. Donchez asked the cost of the project with the renovations.

Mr. Pektor responded about $200 million. In further response to Mr. Donchez, Mr. Pektor said based on market conditions it would be a four to five year build-out.

Mr. Donchez, noting there were about 4,000-4,500 employees in Martin Tower at the height of Bethlehem Steel Corporation operations, asked how many residents are estimated.

Mr. Pektor replied if there are 945 living units with 3 people per unit there would be about 2,200-2,400 people.

Mr. Donchez asked how much retail there would be.

Mr. Pektor noted the plan provides for about 20,000 square feet of neighborhood retail, or about 5 to 7 establishments.

Mr. Donchez inquired what would be the responsibility of the City since it would be a condominium association.

Mayor Callahan advised there would be no maintenance responsibility on the part of the City.

Mr. Mowrer queried how would this differ from Moravian Village.

Mr. Alkhal replied it would be very similar.

Mr. Donchez, saying he is excited about the project, stated he would like to see some of the questions answered in two weeks. Mr. Donchez thought it was a remarkable project because it probably would be more economically feasible to a point to implode the building and start from ground zero. Mr. Donchez observed that the developer would take the building and spend over $200 million to renovate it and to bring to the City millions of dollars in tax money. Mr. Donchez, pointing out that the developer has a record of vision and of first class projects in the City, said he would expect no less with this property. Communicating he is very supportive of the project, and is very enthusiastic about it, Mr. Donchez restated he wants to see the questions of Council responded to in two weeks.

Mr. Leeson, remarking this is creative, commendable, and a constructive reuse of a difficult property, commented he is definitely leaning in favor in granting the zoning change. Mr. Leeson, affirming that he toured the property from top to bottom, observed that to have someone come in with a creative reuse is very exciting, important to the City, and he wants to be supportive of it. Mr. Leeson asked if there would be 2,200 to 2,400 additional citizens living on site with full build-out and occupancy.

Mr. Pektor responded he thinks that is a fair assessment.

Mr. Leeson, stating he also shares some of the observations made by other Members of Council, communicated he is glad Mr. Pektor is involved in the project who has a good reputation, is cooperative, and builds good, solid, quality products. Mr. Leeson observed that, the marketplace being what it is and with the constrictions in zoning, the developer really cannot influence or control a lot of the things that have been discussed tonight. Mr. Leeson continued on to say the only way to do that is to ask the developer to go through the land development process at the Planning Commission to address the various issues brought up tonight, get final approval, sign a land development contract with the City, and then come back to City Council on a second and final vote. Stressing he has confidence in Mr. Pektor and wants to see him do this project, Mr. Leeson commented although there are partners Mr. Pektor is the individual the Members know and know he will do the job right. Mr. Leeson said his concern is that happens, and that the property not get rezoned and then flipped to some other developer. Mr. Leeson stated he wants to see the project happen as has been represented. Mr. Leeson asked if the developer would be willing to go through the land development process and then come back to City Council for a second and final vote, knowing that Council is going to ask the Administration and the Planning Bureau to put this at the top of their priority list to work with the developer in the planning approval process.

Mr. Pektor replied yes, “we’re not going anywhere. We’re here. We’re investing in Bethlehem. This [project] is part of a reputation…We can’t fall down on this one. It’s a big project for us. It’s important. That’s a reasonable request…”.

Public Comment

William Scheirer, 1890 Eaton Avenue, recalling one of the arguments against the Lowe’s project was the impact it would have on the surrounding residential areas, remarked there will be a lot more residential there. Mr. Scheirer asked whether the estimated number of students took into account the fact that there would be stacked townhouses and some highrises. A representative of the developer replied yes, and added the numbers are an aggregate total that are more restrictive. Mr. Scheirer, expressing his opinion that in the City the pedestrian should be accommodated, stressed there should be a way to solve the problem of Route 378 so each student could feel comfortable walking to Nitschmann Middle School. Mr. Scheirer inquired whether a condominium could be bought by an investor and leased. Mr. Pektor stated the reality is that some of the units could be bought by investors. Mr. Pektor noted there are some investor-buyers at the Riverport project who are buying for their young professional children who cannot afford such a unit, or for retired parents. Mr. Pektor explained his experience is that the number of investor-buyers is not that high and he does not try to encourage that.

Eddie Rodriquez, Pawnee Street, observing there currently is traffic in the Schoenersville Road and Eighth Avenue area, pointed out that the construction of the project will congest the area more. Mr. Rodriquez asked is there a possibility to take the narrow roads and have an alternate route that is wide enough in the area so there would not be traffic congestion that affects the Nitschmann Middle School area.

Rebecca Bieber, 814 Eaton Avenue, referring to the current three entrances from the property, asked how much more traffic will be fed onto the small section of Eaton Avenue. Expressing she does not want more traffic problems, Ms. Bieber pointed out that with a residential development there will be traffic constantly. Ms. Bieber also noted there will be buses for the students which should be kept in mind.

Dave Sanders, 69 East Goepp Street, stated this is a wonderful project for the City, and it is fortunate to have a developer like Mr. Pektor. Mr. Sanders asked City Council and the residents to embrace the project, and join together to make the project work.

Dana Grubb, 2620 Henderson Place, recognized the success of Ashley Development, and Mr. Pektor’s commitment to cities as opposed to tearing up fields. Mr. Grubb expressed his dismay that 600-900 jobs will be lost at Dun and Bradstreet and did not think it is a good tradeoff at the site. Mr. Grubb was happy that the goal is to create less impervious surfaces. Mr. Grubb, stating his calculation for the potential 2,200 residents at the site is six times the average for the population density in the City, expressed his concern about the density and effect on City services. He questioned whether the return on the project covers those costs. Mr. Grubb said he is concerned about overlay districts as opposed to updates to the Zoning Ordinance. Observing that as more people come to Bethlehem the density and congestion will increase, Mr. Grubb thought some of the community appeal will be lost. Mr. Grubb said he is glad to see the developer is going to try to retain Martin Tower, but noted others have talked about imploding it. Mr. Grubb commented he is happy to see a buffer between the development and Burnside Plantation. Mr. Grubb, while expressing that overall he likes the concept and the project has one of the best development teams, reiterated his concerns about the impact of density and long term effects.

Dean Bruch, 555 Spring Street, echoed most of the concerns, thought the issue of sewerage has to be looked at, and wondered where it will go. Mr. Bruch thanked Mr. Pektor, and said what he is doing for the City is very commendable. Mr. Bruch did not know if it is a wise idea to remove the overhead pedestrian walkway. Mr. Bruch communicated he would like to see everything come into play so that there is more tax money. He added that the City will not have responsibility for the streets.

Council Comment

Ms. Szabo asked if consideration was given to retaining the name Martin Tower for historic purposes.

Mr. Pektor commented he would probably retain the name.

Mr. Leeson, referring to President Schweder’s earlier questions about the severability and effective date language, advised he used similar language on other occasions when he was the City Solicitor.

Developer Comment

Attorney Broughal said, despite what his client may have indicated tonight, he has some reservations about waiting until land development approval and signing of the agreements. Attorney Broughal observed there is a significantly good chance that the Planning Commission could take the position that because the zoning is not in place they will not review the plans. Attorney Broughal, advising a lot of time was spent with the City in drafting the proposed Overlay Ordinance, said the City hired a consultant to work with them on it. Noting the question was raised what are the plans for the site, Attorney Broughal affirmed those plans were shared and are the basis for the proposed Ordinance. Attorney Broughal explained there is not a lot that will be able to be done on the site with the Overlay Ordinance except what has been seen tonight. While acknowledging there could be higher buildings, Attorney Broughal pointed out the density is set, the retail is restricted to 50,000 square feet, and there is not a lot of variation in terms of how the site can ultimately be developed. Attorney Broughal stated the most telling is the fact that the developer could go along with the process, and Council could pass the Ordinance tonight on First Reading, the developer could get approval of the land development plan and sign all the agreements, and then could sell the project to another developer who could abandon the plan in favor of a new plan. Attorney Broughal highlighted the fact that there is nothing in the law that says that cannot happen. Attorney Broughal asked that Council reconsider and act on the Ordinance as they have done on every other Zoning Ordinance that is have a First Reading tonight, and at the next Meeting have Final Reading.

President Schweder, pointing out this recommendation idea is not unique to this property, read a quote from the minutes of the December 12, 2001 City Council Meeting as it pertained to rezoning the property across the street, as follows: “The second thing that City Council could do is after the public hearing they could take the initial vote on rezoning. If it is defeated we all go home. But if it passes, City Council could insist that before the second and final vote is taken that the developer file development plans with the City Planning Commission, the developer receive the final approval of the City Planning Commission conditioned upon the final vote of City Council on the rezoning. And after all that was accomplished, City Council could then have the final passage.”

Attorney Broughal, affirming he said the quote, explained a critical difference with the rezoning of the former Durkee property across the street is that it had about $1 million of off-site traffic improvements that Council and the City could not require the developer to provide. The only way that could have been provided was through contract zoning that is illegal in Pennsylvania. Attorney Broughal advised what he outlined at that meeting was how to get around contract zoning. Attorney Broughal confirmed the proposed Overlay zoning for the Martin Tower property does not carry such baggage, there are no off-site improvements that would be required in terms of traffic, so there is no need to worry about the contract zoning issue.

President Schweder communicated he would disagree with that, and noted comments of Ms. Heller with respect to traffic are relevant.

The Public Hearing was adjourned at 9:15 p.m.

4. APPROVAL OF MINUTES

The Minutes of February 7, 2006 were approved.

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

Non-Utility Capital Bond

William Scheirer, 1890 Eaton Avenue, wondered if it would be possible to combine the Non-Utility Capital Bond with the $2 million bank loan for LED traffic lights and the Homestead Avenue Sewer Project in order to save money on the fees.

99 West Broad Street

Art Schmidt, 99 West Broad Street, advised he has the property next door to the former Alpha Graphics building that is being rebuilt after a fire. Two windows on his building adjacent to the former Alpha Graphics structure are proposed to be covered up by Ashley Development. Mr. Schmidt explained he requested a Certificate of Appropriateness to put a dormer on the back of his building as an alternative means of egress if Ashley Development covers up his two windows that are the only current means of egress and light. Mr. Schmidt, stressing he is upset about the fact that his windows would be covered, said he has been trying to work out something with Ashley Development but had almost no communication from them. Mr. Schmidt asked that Ashley Development pay for the cost of the dormer since they are covering the windows. Mr. Schmidt said if he cannot work something out then he does not want his windows covered and wants to exercise whatever rights he has to prevent that from occurring.

President Schweder, while noting that tonight’s vote would not necessarily impact Mr. Schmidt’s legal remedies going forward, said he would talk with the Historic Officer about the matter.

6. OLD BUSINESS

None.

7. COMMUNICATIONS

C. Director of Human Resources – Engineers’ and Electricians’ Civil Service Rules and Regulations

The Clerk read a memorandum dated February 3, 2006 from Jean Zweifel, Director of Human Resources, requesting that the language that appears in Resolution No. 14,724 adopted by City Council on November 1, 2005 be changed to include paragraph “6: Different minimums may be adopted when circumstances warrant it.”

President Schweder stated that the Resolution can be placed on the March 7, 2006 Agenda.

D. Director of Water and Sewer Resources – Central Park West Development

The Clerk read a memorandum dated February 6, 2006 from David Brong, Director of Water and Sewer Resources, in which it was advised that the City has been approached by a developer regarding property known as Central Park West that is a 5.39 acre tract of land on the western border of Bethlehem adjacent to the City of Allentown. The development project that is expected to be 12.9 million dollars involves the construction of fifty-four twin homes, which is in accordance with present zoning. The annual tax revenues are projected to total $ 299,842. The challenge for this development is the provision of water service. Extension of the existing mains is not technically feasible without an estimated $650,000 of improvements. The most cost effective means of providing water to this area would be to purchase water from the City of Allentown, whose lines are within seventeen feet of Bethlehem’s corporate boundary. The construction of in-ground infrastructure would be commissioned to and maintained by the City of Bethlehem. It is the Director’s belief that the best way to implement the commercial arrangement of purchasing water at a resale rate, and then reselling it to the customer is to define this area as a separate water district, and establish rates according to the specifics of this system.

President Schweder referred the matter to the Public Works Committee.

E. President of Council – Insurance Coverage

The Clerk read a memorandum dated February 17, 2006 from J. Michael Schweder, President of Council, to which was attached Resolution 14,330 adopted April 6, 2004 requiring that the Administration report to City Council, in writing, the types of insurance coverages maintained by the City, the amount of coverages, name of the insurance company, name of the insurance agent and/or broker, if any, and the cost of such coverage, by not later than the second Monday in each year. Since the annual term of the City’s insurance policies begins in July, it is requested that Resolution 14,330 be amended to read: …"such report to City Council to be not later than the second Monday in July of each year".

President Schweder stated that the Resolution can be placed on the March 7, 2006 Agenda.

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

The Clerk read a memorandum dated February 9, 2006 from Darlene Heller, Director of Planning and Zoning, which provided additional information requested by City Council at the January 17 Public Hearing on the zoning amendment for personal care facilities about the opportunities for development of personal care facilities within the Institutional, Residential Retirement Complex or Limited Commercial zoning districts. It also seemed that some Council Members were concerned about visual impacts of such a development to a neighborhood. Because assisted living is not one model, but rather a concept of residential housing for the elderly that includes many variations, the trends in the design of assisted living facilities can vary considerably. The Planning Bureau agreed that, if such facilities are proposed within an existing residential neighborhood, any new facilities should be of a scale and design in keeping with the surrounding neighborhood. It does appear to be appropriate to allow personal care facilities in any zoning district where garden apartments are permitted and that is exactly what the original amendment does. The Planning Office does not recommend a revision to the current zoning amendment regarding where the personal care facilities should be located, but agrees that an additional provision could be added to the amendment as a part of the special exception review to read as follows: 1325.08(L) (7) The location, design, and operating characteristics of the use shall be compatible with and not adversely affect adjacent properties and the surrounding area. The proposed development shall be harmonious with surrounding buildings with respect to scale, architectural design and building placement. (8) In a residential zoning district, assisted living facilities are limited to a maximum of 30 residential units.

President Schweder stated that Bill No. 8 – 2006 relative to this matter is listed on Council’s Agenda this evening on First Reading.

G. Director of Planning and Zoning – Zoning Text Amendment – Nonconforming Uses

The Clerk read a memorandum dated February 8, 2006 from Darlene Heller, Director of Planning and Zoning, which provided additional information requested by City Council at the January 17 Public Hearing on the zoning amendment for Nonconforming Uses. In order to compromise on the matter, the Planning Office would recommend that the limit of expansion of a nonconforming use could be lowered to 35%, but would not recommend lowering the limits of expansion below 35%. If this change is made, then the proposed section 1323.04(a) should read as follows: (a) The total building floor area or total land area occupied by the nonconforming use or structure, whichever is more restrictive, shall not be increased by greater than 35 percent beyond the area that existed at the time the use or structure first became nonconforming. (1) The 35 percent maximum shall be measured in aggregate over the entire life of the nonconformity. Therefore, for example, if a use became nonconforming in 1971 and was expanded by 20 percent in 1980, then one 15 percent expansion would be permitted today. Attached to the memorandum was a survey of local municipalities and other Third Class Cities showing the percentage expansion allowed for nonconforming uses. The Planning Office also reviewed other ordinances to see whether or not the nonconforming chapters addressed economic hardship or floodplain issues, and could not find another community that addressed either issue within their chapter on nonconforming uses. If a land owner believes they have a “hardship” on any issue related to nonconforming uses, then the land owner would pursue an appeal to the zoning hearing board for a variance, just as they would with any other request related to hardship. Economics typically is not a reason for the granting of a variance, but the zoning hearing board would review such a case as they would any other variance request.

President Schweder stated that Bill No. 9 – 2006 relative to this matter is listed on Council’s Agenda this evening on First Reading.

H. City Solicitor – Street Vacation Ordinances – Portion of Raspberry Street between Dellwood Street and Park Place and Portion of Raspberry Street between Hawthorne Road and East Broad Street

The Clerk read a memorandum dated February 16, 2006 from John F. Spirk, City Solicitor, stating that the Solicitor's Office is in receipt of Easement Agreements signed by El Shaddai Bethlehem Ministries for the Verizon utilities and the City utilities located in the portions of Raspberry Street to be vacated, and therefore, the Ordinances can be placed on the agenda for Final Reading.

President Schweder stated that Bill No. 67 – 2005 and Bill No. 68 – 2005 are listed on Council’s Agenda this evening on Final Reading.

I. City Solicitor – Use Permit Agreement for Public Property – American Association of University Women – 2006 Book Fair

The Clerk read a memorandum dated February 17, 2006 from John F. Spirk, City Solicitor, to which was attached a proposed resolution and the Use Permit Agreement between the American Association of University Woman, Bethlehem Branch, and the City of Bethlehem for use of the Memorial Pool Building for the 2006 Book Fair for the time period March 20, 2006 to May 1, 2006, according to the terms and conditions of the Agreement.

President Schweder stated that the authorizing Resolution will be placed on the March 7, 2006 Agenda.

J. City Solicitor – Use Permit Agreement for Public Property – St. Luke's Hospital & Health Network – 2006 Boutique at the Rink

The Clerk read a memorandum dated February 17, 2006 from John F. Spirk, Jr., City Solicitor, to which was attached a proposed resolution and the Use Permit Agreement between St. Luke's Hospital and Health Network and the City of Bethlehem for use of the Municipal Ice Rink for the 2006 Boutique at the Rink for the time period April 8, 2006 to May 21, 2006, according to the terms and conditions of the Agreement.

President Schweder stated that the authorizing Resolution will be placed on the March 7, 2006 Agenda.

K. City Solicitor – Records Destruction Resolution

The Clerk read a memorandum dated February 17, 2006 from John F. Spirk, Jr., City Solicitor, in which it was requested that City Council authorize the destruction of records for the Police Department as listed in the attached Exhibit under the provisions of the Municipal Records Retention Act that was adopted by City Council.

President Schweder stated that the authorizing Resolution will be placed on the March 7, 2006 Agenda.

L. Director of Parks and Public Property – Amending Resolution 14,752 – Golf Season Passes

The Clerk read a memorandum dated February 17, 2006 from Charles A. Brown, Director of Parks and Public Property, requesting that Resolution 14,752 adopted December 20, 2005 be amended to show that Season Pass dates are effective March 15 through November 15, not March 1 through October 31.

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

8 . REPORTS

A. President of Council

None.

B. Mayor

None.

9. ORDINANCES FOR FINAL PASSAGE

A. 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, on Final Reading.

Voting AYE: Mrs. Belinski, Ms. Dolan, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. Bill No. 67 – 2005, hereafter to be known as Ordinance 4366, was declared adopted.

B. Bill No. 68 – 2005 – Street Vacation – Raspberry Street between Hawthorne Road and East Broad Street

The Clerk read Bill No. 68 – 2005, Street Vacation – Raspberry Street between Hawthorne Road and East Broad Street, on Final Reading.

Voting AYE: Mrs. Belinski, Ms. Dolan, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. Bill No. 68 – 2005, hereafter to be known as Ordinance 4367, was declared adopted.

C. Bill No. 3 – 2006 – Amending General Fund Budget – Traffic Bureau, Mechanical Bureau, Health Bureau, and Police Department

The Clerk read Bill No. 3 – 2006, Amending General Fund Budget – Traffic Bureau, Mechanical Bureau, Health Bureau, and Police Department, on Final Reading.

Voting AYE: Mrs. Belinski, Ms. Dolan, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. Bill No. 3 – 2006, hereafter to be known as Ordinance 4368, was declared adopted.

D. Bill No. 4 – 2006 – Amending Non-Utility Capital Budget – Parks and Public Property Department and Public Works Department

The Clerk read Bill No. 4 – 2006, Amending Non-Utility Capital Budget – Parks and Public Property Department and Public Works Department, on Final Reading.

Voting AYE: Mrs. Belinski, Ms. Dolan, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. Bill No. 4 – 2006, hereafter to be known as Ordinance 4369, was declared adopted.

E. Bill No. 5 – 2006 – General Obligation Note – Sanitary Sewer and Traffic Signal Projects

The Clerk read Bill No. 5 – 2006, General Obligation Note – Sanitary Sewer and Traffic Signal Projects, on Final Reading.

Amendments to Bill No. 5 – 2006

Mr. Donchez and Mrs. Belinski moved to accept the following financing proposal: Fixed Rate of 3.92% from Lafayette Ambassador Bank; and, to insert the aggregate principal amount of the General Obligation Note as $1,739,000, and insert the purchase price for the General Obligation Note of $1,739,000, with the purchaser Lafayette Ambassador Bank, and insert the debt service, interest rates, and payment dates.

Voting AYE on the Amendment: Mrs. Belinski, Ms. Dolan, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. The Amendment passed.

Mr. Leeson, affirming that a Finance Committee meeting was held February 3, 2006 on the matter, continued on to say that, as part of the review of financing proposals he is committed to scrutinize the costs and charges being proposed by professional services providers. Mr. Leeson advised he was not satisfied at the time of the February 3 Finance Committee meeting because he felt the charges were excessive for the General Obligation Note. Stating this is essentially a ten year bank loan, Mr. Leeson said he could have negotiated it on his own on behalf of the City at no cost, and any Member of Council could have done similarly. Recounting that the fees in connection with the General Obligation Note were initially quoted at $50,000, then at $32,000, Mr. Leeson noted now they are quoted at $23,500 and said it is “still way out of line for this type of a project.” Mr. Leeson informed the Members that, of the $23,500, the only problem he has is with the financial advisor fees quoted at $13,500. He added that all of the other fees are satisfactory and have been documented adequately. Mr. Leeson recalled that, historically, the City has always had written agreements or some type of documentation quoting services to be provided and charges for those services. However, Mr. Leeson commented he had the impression there was no written agreement or proposal with the financial advisor. Mr. Leeson requested, in lieu of a written agreement, an itemization of the work that was done in connection with the General Obligation Note, the dates, description of work, and time associated with it. Mr. Leeson advised he received a letter from the financial advisor basically stating “we don’t do things that way.” Mr. Leeson stressed that, when it comes to spending public money, “we are going to do things that way.” Mr. Leeson, acknowledging that the firm is entitled to reasonable compensation, recounted that on First Reading of the Ordinance the sum of $32,000 was escrowed pending documentation from all of the professional services providers. Mr. Leeson notified the Members he is proposing that the escrow amount be reduced to the sum of $13,500 to be set aside to cover this professional service provider that is Concord Public Finance. While stating he does not believe it is owed, Mr. Leeson said if they can come up with the documentation to show it is fair and reasonable then the expenditure can be authorized at a future date. However, Mr. Leeson advised he does not believe Council is in a position to authorize the expenditure tonight. Restating that the Ordinance on First Reading was passed with the escrow arrangement, Mr. Leeson expressed there needs to be a further amendment to reduce the escrow from $32,000 to $13,500.

Mr. Leeson read the proposed language of his Amendment, as follows: that an escrow would be created in the amount of $13,500 on account of professional services not to be spent without prior approval of Council. All other professional fees for Note counsel expenses and bank fees are approved as submitted in the Concord Public Finance memorandum of February 15, 2006.

Mr. Mowrer seconded the Amendment.

Voting AYE on the Amendment: Mrs. Belinski, Ms. Dolan, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. The Amendment passed.

Voting AYE Bill No. 5 – 2006, as Amended: Mrs. Belinski, Ms. Dolan, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. Bill No. 5 – 2006, hereafter to be known as Ordinance 4370, was declared adopted.

F. Bill No. 6 – 2006 – Street Vacation – Service Road #2

The Clerk read Bill No. 6 – 2006, Street Vacation – Service Road #2, on Final Reading.

Voting AYE: Mrs. Belinski, Ms. Dolan, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. Bill No. 6 – 2006, hereafter to be known as Ordinance 4371, was declared adopted.

G. Bill No. 7 – 2006 – Amending Article 927 – Sewer Charge Increase

The Clerk read Bill No. 7 – 2006, Amending Article 927 – Sewer Charge Increase, on Final Reading.

Voting AYE: Mrs. Belinski, Ms. Dolan, Mr. Donchez, Mr. Leeson, Ms. Szabo, and Mr. Schweder, 6. Bill No. 7 – 2006, hereafter to be known as Ordinance 4372, was declared adopted.

10. NEW ORDINANCES

A. Bill No. 8 - 2006 – Zoning Text Amendment – Assisted Living Facilities and Personal Care Centers

The Clerk read Bill No. 8 - 2006, Zoning Text Amendment – Assisted Living Facilities and Personal Care Centers, sponsored by Mr. Leeson and Mrs. Belinski, and titled:

AN ORDINANCE AMENDING ARTICLE 1302, 1305, 1306, 1307,1308, 1308A, 1309, 1319, and 1325 OF THE ZONING ORDINANCE OF THE CITY OF BETHLEHEM, PENNSYLVANIA, AS AMENDED, ENTITLED DEFINTIONS, R-S RESIDENTIAL DISTRICT, R-G RESIDENTIAL DISTRICT, R-T RESIDENTIAL DISTRICT, R-M RESIDENTIAL DISTRICT, R-RRC RESIDENTIAL RETIREMENT COMPLEX, I INSTITUTIONAL DISTRICT, OFF-STREET PARKING AND LOADING, AND SPECIAL CONDITIONS AND SAFEGUARDS FOR SPECIAL EXCEPTION USES. TO DEVELOP PROVISIONS FOR PERSONAL CARE FACILITIES AND ASSISTED LIVING FACILITIES

Voting AYE: Mrs. Belinski, Ms. Dolan, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. Bill No. 8 – 2006 was declared passed on First Reading.

B. Bill No. 9 – 2006 – Zoning Text Amendment – Nonconforming Uses

The Clerk read Bill No. 9 - 2006, Zoning Text Amendment – Nonconforming Uses, sponsored by Mr. Leeson and Mrs. Belinski, and titled:

AN ORDINANCE AMENDING ARTICLE 1323 OF THE
ZONING ORDINANCE OF THE CITY OF BETHLEHEM,
PENNSYLVANIA, AS AMENDED, ENTITLED PROCEDURES
AND CONTROLS GOVERNING NON-CONFORMING USES

Voting AYE: Mrs. Belinski, Ms. Dolan, Mr. Donchez, Mr. Leeson, Mr. Mowrer, Ms. Szabo, and Mr. Schweder, 7. Bill No. 9 – 2006 was declared passed on First Reading.

C. Bill No. 10 – 2006 – Zoning Text Amendment – Creating CM-LTN Overlay District (Landmark Conservation and Traditional Neighborhood Development Overlay District) – Martin Tower Site – Eighth Avenue

The Clerk read Bill No. 10 – 2006, Zoning Text Amendment – Establishing CM-LTN Overlay District – Martin Tower Site – Eighth Avenue, sponsored by Mr. Leeson and Mrs. Belinski, and titled:

AN ORDINANCE AMENDING ARTICLE 1314
OF THE ZONING ORDINANCE OF THE CITY OF
BETHLEHEM, PENNSYLVANIA, AS AMENDED,
TO ESTABLISH A NEW CM-LTN OVERLAY
DISTRICT AND TO CORRECT A TYPOGRAPHIC
ERROR IN THE CM DISTRICT

Mayor Callahan advised that the developer has offered some concerns about the restriction that Mr. Leeson talked about during the Public Hearing and the impact on the ability to execute on the project.

Mr. Leeson commented that in ordinary circumstances he would say that clearly Council should proceed as outlined by President Schweder who affirmed that under Council’s rules the developer would not address City Council at this point in the meeting. However, Mr. Leeson did not feel these are ordinary circumstances given the scope and size of the project and its potential impact, and requested to ask a question of the developer.

Suspending Rules of Council

Mr. Leeson, stating that he would like to have a full airing of whatever has to be said about the project, stressed it is of great importance to the public. Mr. Leeson moved to suspend the Rules of Council. Mrs. Belinski seconded the motion.

Voting AYE: Mrs. Belinski, Ms. Dolan, Mr. Donchez, Mr. Leeson, Mr. Mowrer, and Ms. Szabo, 6. Voting NAY: Mr. Schweder, 1. The motion passed.

Mr. Leeson, noting Mr. Pektor had approached the podium, expressed the assumption Mr. Pektor had something to say that he considered to be sufficiently important to interrupt Council’s proceedings, said he will give Mr. Pektor the opportunity to do so because of the reasons that have been stated.

Mr. Pektor, notifying the Members that he and the representatives went into the hallway to talk about timelines, advised the critical element to the success of the project is timing. Pointing out that the cost to carry the building is substantial, Mr. Pektor explained in order to consummate the financing they need to have the site zoned. He continued on to advise that closing on the property triggers the ability to start to move ahead in a timely manner to not lose what is believed will happen if the site is not under construction in a short time. The cost of holding and operating the site even with the current tenants are substantial and in the range of $5 to $8 million. Mr. Pektor informed the Members that if there is the ability to get the zoning vote he has the ability to close on and own the property. At that point, Mr. Pektor said “we’re entirely tied to this deal. We’re entirely at your mercy from that land development point of view…The reason we’re willing to take that step is it gives us the ability to move ahead, start to do some of the abatement…so we don’t lose any time on our side from the cost of carrying standpoint, and also on your side of getting the tax revenue benefits in shorter order than you would if you waited for this process to go on. Our fear is that if we get into land development planning [that is] a five, to six, to eight month process, [and the tenants are vacated]…that gets to be a deal point. I know economics is not your problem but in this case they are our problem, and they’re not numbers that are small numbers. They’re numbers that really make or break this deal. I don’t think we’re asking for anything out of the ordinary to have you look at the zoning request, vote on the zoning request, and faith in your ability to review our land development plan, and approve or disapprove that. Once we own the property, we’re going through your land development process. We can’t walk from it. There should be some comfort in that. We will have to live with you to get that land development plan in a form that you would approve.”

Mr. Leeson, noting it was mentioned that one of the conditions of financing is to get the property rezoned, asked if that is correct.

Mr. Pektor replied it is not a condition of the seller, but it is a condition of the lender.

Mr. Leeson observed that the developer would not be able to take out financing until after the second vote of Council on the zoning. Mr. Pektor responded that is correct. Mr. Leeson continued on to note therefore the developer would not incur debt until after the second vote of Council. Mr. Pektor replied “our fuse is so short that we need that window, [and] get the second vote before we close…If we had the luxury of waiting six months it would be a different issue. The process of planning could wait…We don’t have that luxury.” Mr. Pektor continued on to explain to Mr. Leeson that there is an agreement of sale with a date certain that gives time to close. Pointing out the property is virtually obsolete as an office building, Mr. Pektor advised the lender is working to a solution as a source of repayment being the business plan to develop it as a residential site, and wants to know that he has the right to do that. Mr. Pektor informed Mr. Leeson that under the agreement of sale he is required to close in early April. Mr. Leeson asked if there are any contingencies to extend it. Mr. Pektor replied no. Mr. Leeson queried if Mr. Pektor has asked. Mr. Pektor, pointing out it took a year and a half to get to this agreement, answered no he has not asked for an extension recently. Mr. Leeson stated that, as a co-sponsor of the Bill, he does not like to do business this way and needs to find out what Mr. Pektor is telling Council. Mr. Leeson asked if Mr. Pektor is telling Council that if Council passed the Bill and then puts the matter in the Planning Commission then he is going to walk. Louis Ronca, a principal with the group, responded potentially not by choice. Mr. Ronca said “if we cannot convince a lender to provide the funds we need…absent that zoning in place we’re not sure where we stand.” Mr. Leeson observed the answer is “you’re not telling us you’re going to walk from the project…” Mr. Ronca responded he is saying “we don’t have a solution here today. When Mr. Pektor said yes, we can do that, earlier in the proceedings…I was squirming in my chair…because I was thinking about things and of the ramifications of that. The building has a substantial [cost] that we couldn’t begin to carry personally.”

Mr. Leeson, remarking he feels very uncomfortable about the way this was handled tonight, pointed out that first Mr. Pektor said yes, and now he is hearing maybe. Mr. Leeson observed it has become something of a common practice with major developments in Bethlehem to secure for the benefit of the City the verbal promises that developers make to make them go through the land development process. Mr. Leeson highlighted the fact that almost all of the concerns raised tonight the City cannot lock the developers into unless they go through the land development process. Mr. Leeson acknowledged it is not because of this developer, or this project, but it is because that is the way the City started to do business the last two years. Reiterating he made comments about having confidence in Mr. Pektor and the product he produces, Mr. Leeson restated that this kind of handling of this matter at the eleventh hour makes him feel very uncomfortable.

Mr. Ronca said logically the developer does not have any other reason to ask what they are asking for other than what he just pointed out. He continued on to say “if this was a purchase of a
$1-$2 million project, [and] it didn’t have a $5 or a $6-$7 million bleed over a 6-8 month period, we wouldn’t be having this conversation at this late hour. I appreciate what you’re saying…I’m not trying to fault Mr. Pektor for saying yes, but we had a long conversation out in the hall and I explained to him point blank [that] I’m not sure how or if we can move forward under those circumstances. I don’t know that we can go to a lender and say well we have half a vote theoretically.”

Mr. Leeson queried whether it is being said that a lender is not lined up to provide financing at this point in time.

Mr. Ronca, responding there are several lenders, advised they are all predicated upon the redevelopment process, and are not predicated upon the developer moving forward and using the building in the future as an office. Mr. Ronca continued on to say “we could never justify that we would be able to lease up this building, based upon our purchase price, based upon the operating costs…It costs $9 a square foot to operate.”

Mr. Mowrer asked are there any other alternatives, either from Council’s standpoint or the developer’s standpoint, and whether it would be appropriate to discuss them.

President Schweder stated that he came to the Meeting tonight fully prepared to vote for the project, and intends to do so. President Schweder noted he was invited by Attorney Broughal to meet with Mr. Pektor in mid-October and was told then that this would be forthcoming in a matter of weeks. Continuing on to note he was called by Attorney Broughal last week and was asked to make the unprecedented move of having First Reading on the proposal this evening, the same night as the Public Hearing, which is something that City Council does not traditionally do, President Schweder advised he agreed to that. President Schweder, explaining it was his intent to pass the proposal, pointed out that it is back on the developer’s timetable and he can come back as quickly as he can with proposals to the Planning Commission. President Schweder remarked that a tour can be conducted showing where Council was baited with one thing and then it was switched to something else. President Schweder, highlighting the fact that Council does not have any jurisdiction over the developer’s plans when they come back, expressed his belief that the Department that would have responsibility over that would accede to whatever the developer wishes. President Schweder, observing that the project probably has a margin of profit of at least $50 million, commented he does not see many people walking away from opportunities like that. President Schweder pointed out there are many times when people ask for extensions from lending institutions. President Schweder stated, if there was not a track record over the last several years of events such as this when Council was told one thing and something else then appeared, or the property was flipped to some other developer after that, he did not think that a number of Members would be feeling the way they do this evening.

Mr. Pektor affirmed that he builds his projects and does not flip them. Mr. Pektor advised that when President Schweder met with him in October he did not have a signed agreement, and Mittal Steel held the agreement for 90 more days, so he was able to come before Council with equitable interest. Mr. Pektor added it took 90 days for Mittal Steel to sign the completed agreement. Mr. Pektor, communicating “we’re here…we’re willing to move ahead with the program. If we can get a quick review in Planning that’s probably the best we can ask for.”

President Schweder, explaining that Council gives up all ability to do anything about a proposal when it is passed on Final Reading, stressed that is what has been going on for too long. President Schweder communicated that Council would like to see some teeth and legitimacy to what is being proposed.

In response to Ms. Szabo, Mr. Pektor noted that a project of this size could take 4 to 6 months to come back from Planning.

Mayor Callahan pointed out that among the items discussed tonight were environmental impact, traffic impact, and pedestrian safety that are all reviewed in the Planning review process. Mayor Callahan added that surely a project of this magnitude would require proper review.

Ms. Heller, while informing the Members that the Planning Office can make this a priority, advised there are outside agency reviews over which the Planning Bureau has no control including PennDot and DEP. Ms. Heller explained that even if the review process is expedited this is a very significant project and will not be a quick review since it will involve a lot of time and detail.

President Schweder highlighted the fact that nevertheless Council is being asked to do a quick turn around and approval with First Reading on the night of the Public Hearing, and Final Reading in two weeks. In response to the Mayor’s comments that Council’s delaying Final Reading until after Planning Commission review is highly unusual and may be the first time it has happened, President Schweder commented the reason is because of acquiescence on the part of the Administration. President Schweder exemplified that motels were built where office buildings were supposed to be, Wawa was built in an area where other things were first approved, and other things were flipped. President Schweder communicated he has no faith left in the process.

Attorney Broughal asked when would Final Reading take place.

Mr. Leeson explained his thinking was, under the assumption that the Bill passes on First Reading, he would make a motion that the matter be reviewed by the Planning Commission, and upon final approval and execution of the land development contract then Final Reading would take place at the next regularly scheduled City Council Meeting. Mr. Leeson said it would be combined with a message to the Administration to proceed to make this a top pr