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Bethlehem zoners delay judge-ordered review of Atiyeh's hospital

By Randy Kraft, WFMZ.com Reporter, RKraft@wfmz.com
Published On: May 08 2013 07:03:10 AM CDT
Bethlehem Zoning Board

Bethlehem Zoning Board

BETHLEHEM, Pa. -

Bethlehem’s Zoning Hearing Board has been derailed – at least temporarily – from determining the fate of a long-proposed and controversial psychiatric hospital in the city.

“The zoning hearing board doesn’t have jurisdiction over this matter,” Atty. Blake Marles, representing developer Abe Atiyeh, told zoners Tuesday night. “I’ll ask you to rule that you don’t have jurisdiction and that we end this process now.”

Atiyeh proposes building the four-story, 125-bed hospital on five vacant acres at 1838 Center St., an area with institutional zoning that permits hospitals.

Atiyeh said it will be for drug and alcohol patients as well as psychiatric patients.
“We’re going to get it approved,” he predicted.

When Atiyeh’s plans for the hospital were rejected by the city planning commission, he appealed to Northampton County Court.

Judge Edward Smith sent the land development plan to the zoning hearing board “for consideration of zoning issues presented by the proposed land development plan.”

Marles said the zoning board does not have the legal authority to do what the judge has told it to do “and there’s case law that says that.” He said if the zoning board proceeds as the judge directed, the result will be many hearings creating a procedural problem “that will result in appeal after appeal after appeal.”

But Atty. Steven Goudsouzian, representing neighbors who oppose the proposed facility, told the zoning board: “If you don’t hear the case…you’ve essentially defied a court order telling you what to do. I think you have to hear this case.”

Atiyeh and his lawyer argued the judge should have sent the matter back to the planning commission, not the zoning hearing board.

Atiyeh said the planning commission rejected his plan for zoning reasons, which it had no right to do: “They can reject it for planning issues, not for zoning issues. We don’t have any zoning issues. There are no zoning problems.”

Marles offered zoners the same explanation, saying the plan was presented to the planning commission for land development approval, not zoning approval.

“The planning commission said, in so many words, that they believe there are zoning issues and they denied it principally on zoning grounds,” said Marles. “Judge Smith kicked it back to you. The problem with that is the zoning hearing board can’t render opinions on land development applications.”

Marles said planning commissions often identify zoning issues in land development plans, but they don’t rule on those issues.

Goudsouzian said the judge ruled the planning commission may have overstepped its bounds on what really is a zoning issue. But he explained judges outrank local municipal bodies: “Judge Smith said the case has to come back here. Therefore I believe you have no choice but to hear the case at some point.”

Marles argued the state legislature determines the authority of zoning hearing boards “and the court is not over the legislature.”

The zoning board did not go along with Marles’ suggestion that it does not have jurisdiction. But it did agree to his suggestion that both the board and lawyers review the city’s file on Atiyeh’s land development application so zoners have more information before taking any action.

Marles wants them to have enough information to understand what zoning issues arose before the planning commission “and how they arose.”

“To make the right decision, we have to have the right information,” said Atty. Erich Schock, the zoning board’s solicitor.

Schock said the board will have those city documents in time to have another hearing on the case on June 4 in Bethlehem Town Hall.

At least 40 people attended Tuesday’s 6 p.m. zoning board meeting on the second floor of Bethlehem’s library. Goudsouzian said Atiyeh’s project is opposed by almost everyone in the audience “if not all of them.”

“If this application is a residential treatment facility called a hospital, we certainly oppose it,” explained Goudsouzian. “If it is a hospital, which is permitted, we want to be sure it’s done correctly.”

No testimony was taken during the hearing. Atiyeh was seated in the audience, casually dressed in shorts and a yellow Rainforest Café T-shirt and wearing an Eagles visor.

Goudsouzian indicated the key issue is a question of use, which makes it a zoning issue. He said that use is supposed to be a hospital, but maintained the applicant told the planning commission “you may call it a hospital, but we really think it’s a treatment center or something else.” He said it is the duty of the zoning board to make sure the applicant meets a series of requirements if the proposed facility really is a hospital.

“Who else better than the zoning hearing board would be the appropriate entity to determine what a use is?” asked Goudsouzian. He added the judge has determined it is a zoning issue, not a planning issue.

Said Marles: “The underlying question of whether this is a hospital, which is the big issue here, isn’t what was in the order that was appealed to Judge Smith.”

Atiyeh said he’s been trying to get the hospital approved for about two years.
He initially wanted to build a personal care/assisted living facility on the property, which he purchased for $1.4 million in 2007.

That use was approved by the city, said Bethlehem zoning officer Suzanne Borzak, but Atiyeh then decided he wanted to build apartments instead.

The zoning hearing board denied Atiyeh a variance to build 102 apartments in four buildings on the vacant property, because apartments are not permitted in that zoning district. He appealed that decision, but lost in court.