ALLENTOWN, Pa. - Is Allentown's entire zoning law being undermined by one short phrase within that law?
On Monday night, representatives of local businessman/developer Abe Atiyeh argued that it is, during nearly three hours of testimony before the Allentown Zoning Hearing Board.
The controversial phrase is within Section 1311.17 of the city's zoning ordinance. It states the ordinance does not apply "for a use authorized by the mayor or city council by virtue of a lease or other contract."
Officials from several of Atiyeh's 50 "or so" companies want the zoning hearing board to rule that 1311.17 is invalid. They said it violates state law.
They also argued it is a discriminatory and unconstitutional "get out of jail free" card. They said anyone entering into such contracts with the mayor or council is exempted from following any of the other provisions in the city's zoning ordinance.
"If we wanted to do something outside the purview of the zoning ordinance, I'd have to go to the mayor of Allentown or city council and have them sign a contract with me outside any public notice proceeding," said Atty. Mickey Thompson, who works for Atiyeh. "I find that to be patently unlawful."
Thompson, who said he is the solicitor for Bethlehem's zoning board, said that section of Allentown's ordinance allows the city "to contract out of zoning."
He said the inequity and illegality of Section 1311.17 is "offensive to our system of justice. The City of Allentown is picking winners and losers."
Monday night's hearing will continue on Aug. 19, when up to eight more witnesses will be called -- including Mayor Ed Pawlowski and other city officials, and possibly Atiyeh -- as testimony continues. Atiyeh did not attend Monday.
Zoning board chairman Daniel McCarthy said it probably will not render a decision that night.
Atty. Michael Savona, who represented Atiyeh, told the zoning board Pawlowski has used 1311.17 to sign at least four exemptions since the zoning ordinance was rewritten in 2010.
Thompson maintained it was used to develop the city's hockey arena as well as properties around it. He claimed a multitude of properties were exempted from following any codes. "It's staggering," he said. "I don't know how it ever got to that point. They were given carte blanche to do whatever they wanted to do because they had a letter from the mayor."
"Seems like this will be a case mostly controlled by the law rather than the facts," predicted McCarthy.
Atiyeh's representatives are bringing two appeals before the zoning board to challenge that section of the city's ordinance.
On paper, at least, the case involves three properties: 1201 N. 6th St., 1902 Lehigh St. and 2038 Hamilton St.
Most of the testimony focused on digital billboards, although Atiyeh wants to put a self-storage business at 1201 N. 6th St., next to Jordan Park. "We can't get a permit from the city to do it," said Thompson.
Thompson identified himself as chief operating officer and in-house counsel for several of Atiyeh's companies, including Pennsylvania Venture Capital, St. Elmo Development LLC, Pennsylvania Media LLC and Affordable Digital Advertising, Inc.
Atty. Francis Crowley cross-examined the witnesses on behalf of an intervener in the case: Clinton Street Media Allentown LLC, formerly known as Premiere Media.
On Aug. 1, 2012, Allentown City Council unanimously approved a 15-year contract to erect what was billed as a "digital outdoor network" with Premiere Media.
Savona argued that Clinton Street Media had no standing in the case, but McCarthy did not agree.
Assistant City Solicitor Frances Fruhwirth told zoners the interests of the city and Clinton Street Media are aligned in defense of the city's zoning ordinance.
That ordinance entirely was rewritten in 2010, said Fruhwirth, and that included Section 1311.17.
The following year, a request for proposals –RFP -- was issued by the city for companies interested in winning the city contract for the digital advertising network.
Atiyeh's companies chose not to try to win that contract, said their reps, because that RFP specifically stated they would have to comply with all city zoning requirements.
They said they were not aware of Section 1311.17 at that time but questioned why the RFP stated there must be compliance with all zoning requirements if the exemption in that ordinance stated they did not have to do so.
If they had known about that exemption, they would have submitted a proposal, said David Harte, a professional engineer who is vice president of land development and vice president of business development at Atiyeh's Pennsylvania Venture Capital, Inc.
Harte said he's never seen such a zoning exemption anywhere else in the Lehigh Valley, adding he has worked in practically every local municipality.
Harte said the city eventually plans to have Clinton Street Media erect at least 22 digital billboards. He testified all but one of those locations are in areas where digital billboard are not permitted under zoning, because they must be 300 feet from the nearest residential areas and 1,000 feet from the nearest existing digital billboard.
Thompson said Mayor Pawlowski signed exemptions that Clinton Street/Premiere Media does not have to meet zoning ordinance requirements when it erects its digital billboards around the city.
Harte said his company determined To comply with city zoning, Harte said his company determined it would need to seek a zoning use variance for most of those locations. He said such a variance is very hard to get and very expensive to seek --$10,000 to $20,000 with no guarantee of winning approval.
Monday's testimony revealed the city will be getting 20 percent of gross advertising revenues from the first three digital billboards installed and eventually will get 25 percent. Other testimony by Harte revealed such leases can generate $50,000 to $100,000 a year in revenue.
Zoner Juan Camacho told Harte: "You haven't suffered any economic harm or any type of harm you can crystallize."
Said Savona: "The city has complete and utter discretion to hand out those exemptions -- and only to those parties they choose."
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