ALLENTOWN, Pa. - Seventeen times in the last three years, Allentown Mayor Ed Pawlowski has authorized exemptions that circumvent requirements of the city's zoning ordinance, according to testimony before the Allentown Zoning Hearing Board Monday night.
In some cases, the mayor has used his legal exemption power to authorize digital billboards, cell phone towers and even a waste-to-energy plant to be built on city-owned land that is zoned for parks.
The legality of a short section of the city's zoning law that allows the mayor or City Council to bypass all other requirements of that ordinance is being challenged before the zoning hearing board by representatives of businessman Abe Atiyeh.
Atiyeh is challenging Section 1311.17 of the zoning ordinance, which states that ordinance does not apply "for a use authorized by the mayor or City Council by
virtue of a lease or other contract."
"It's a policy change without public notice," charged Atty. Michael Savona, Atiyeh's lawyer.
Testimony generated by Savona from two city officials showed Allentown does not review plans to assure zoning compliance before the mayor authorizes such exemptions. Nor are any public notifications or public hearings required before such exemptions are authorized.
"In the instances where you have uncertainty regarding some of these exemptions what, if any, authority do you have under the zoning ordinance to limit the application for the exemption?" Savona asked City Zoning Supervisor Barbara Nemith.
She replied: "Providing they meet the requirements of 1311.17, I would have to say I have none."
Savona said the mayor has issued exemptions without identifying specific uses, beyond "billboard site lease," and without identifying specific properties. One billboard exemption was granted for Genesee Street, for example. He said another was for Hamilton Street/West Union Street.
Nemith testified that billboards already exist at some of the exempted locations where new ones will be erected. But she said she also wondered about some of the specific properties.
Savona said the mayor continued authorizing exemptions even after Atiyeh's companies filed the "substantive challenge to the zoning ordinance" with the zoning hearing board on June 7.
The zoning board first heard testimony on the case for nearly three hours on July 22.
On Monday night, two city officials testified for another three hours.
The case is scheduled to continue on Sept. 23, with another full night of testimony.
Mayor Pawlowski is scheduled to be the first witness that night. Atiyeh also may testify.
Atiyeh attended Monday night's meeting but did not offer testimony.
Savona predicted the mayor will testify for 60 to 90 minutes.
Assistant City Solicitor Frances Fruhwirth will call three witnesses, but promised their testimony will be relatively brief. They are City Controller Mary Ellen Koval, City Communications Superintendent Michael Hilbert and City Chief Surveyor Brian Borzak.
"I would like to conclude this at the next hearing, if at all possible," said Daniel McCarthy, chairman of the zoning board. "That will complete three nights of testimony."
Digital billboard in Jordan Park
In August 2012, City Council unanimously approved a 15-year contract with Premiere Media Allentown LLC to erect what was billed as a "digital outdoor network" of electronic billboards.
Since then, the mayor has authorized exemptions for the construction of several of those billboards -- including one that could be 10-by-30-feet in size and up to 30 feet off the ground along MacArthur Road in the city's Jordan Park.
Nemith testified a billboard would not be permitted in that area without the zoning exemption signed by the mayor. She said she has no ability to restrict the erection of such a billboard because of that exemption.
Nemeth testified that applications for such exemptions do not come to her office. And she said after an exemption is authorized, she has no right to review it to ensure it complies with the zoning ordinance because it is exempt from that ordinance.
She said she learned the digital billboards are being exempted from the zoning law from the mayor's office and the city solicitor's office. Nemith testified she does not receive copies of contracts, only exemption notices.
Atty. Francis Crowley, who represents Clinton Street Media Allentown LLC -- formerly Premiere Media -- argued that details such as the size of signs and specific property locations are in signed contracts and that city officials can see those contracts.
Savona objected, suggesting the leases should be entered into evidence so everyone involved in the case can verify what's in them.
Planning director testifies
The controversial Section 1311.17 was added when the city's zoning ordinance was updated in 2010.
City Planning Director Michael Hefele, who also testified Monday, said he was part of an ad hoc zoning task force that drafted the 2010 zoning ordinance. He said the group did not offer exact language, but agreed to the concept of a standard municipal exemption clause.
Hefele said the portion of 1311.17 being challenged was not in the previous version of the zoning ordinance.
Hefele explained there are two tests to the current zoning ordinance's exemption clause. The first is whether it's a municipal use on city-owned property, such as the city building a new police station or its parks department adding a new swimming pool or tot lot. He said: "Those activities are clearly exempt under the municipal provision, in my opinion."
Hefele argued the debated section of 1311.17 only applies to city-owned properties. But he agreed with Savona that the ordinance does not specifically state the mayor and council are limited to giving exemptions only for city-owned properties.
Hefele said City Council must approve the sale of any city property or any lease that goes beyond five years.
Early NIZ plan exemption withdrawn
Savona revealed that one of the zoning exemptions signed by the mayor was for Delta Thermo Energy's waste-to-energy plant next to the city's waste water treatment plant at 112 W. Union St.
Testimony revealed the mayor also used his exemption power for 34 properties in the block surrounded by N. 7th, Linden, N. 8th and Hamilton streets—the heart of the city's Neighborhood Improvement Zone development, which includes a hockey arena.
That exemption was granted to ACIDA—the Allentown Commercial and Industrial Development Authority.
But Nemith testified that original plan was withdrawn, as was the exemption.
Hefele confirmed: "That plan was withdrawn and a revised plan was submitted that was totally compliant with the zoning ordinance." Nemith said the approved plan includes the hockey arena, hotel, office building and parking deck.
Allentown, PA 18102