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Bethlehem zoners close door on basement apt with erroneous occupancy certificates

Published On: Jun 27 2013 11:58:11 AM EDT

The owner of a Bethlehem basement apartment who erroneously had been given an occupancy permit several times over the last decade must tell his tenants to leave.

The Bethlehem Zoning Hearing Board ruled 4-1 Wednesday night that Richard Smith must no longer rent the basement apartment in a building at 311 East 4th St., which includes three other units.

The board also voted 5-0 not to legitimize the basement apartment by granting Smith relief from minimum lot size and off-street parking requirements and a special exception to expand a non-conforming use.


Map: 311 E. Fourth St., Bethlehem

A handful of people who live near Smith's property told the zoners that as many as 20 people have lived in the building at one time -- something Smith claimed to have no knowledge of -- and that the four units have worsened parking and trash problems in the area.

The case has its roots in a Jan. 22, 1997, ruling by the zoning board denying a request by a previous owner of the building that the basement be converted into an apartment.

That ruling was never enforced, however. Zoning officer Suzanne Borzak admitted that the paperwork on the ruling was found many years later stuffed behind a file cabinet drawer when a clerk retired.

Smith told the zoners that when he bought the building in 2004, it was listed by a Realtor and sold to him as a four-unit apartment house.

He also provided documentation showing he received certificates of occupancy from the city in 2009, 2010 and 2012 for a four-unit building, and that his city water bills were calculated on the basis of four units in the building.

On April 23, however, Smith received a letter from the zoning officer saying that the city intended to enforce the 1997 zoning board ruling barring the basement apartment.

"People are currently living in the basement. They have a lease," said Smith. "It would be a hardship on them to vacate."

Zoning officer Borzak disagreed. "I am not arguing that at some time [Smith] did receive a [certificate of occupancy] for a four-unit," she admitted.

But, she added, the safety issues that caused zoners to deny the basement apartment in 1997 "are still the same. ... It wouldn't be a burden to remove people from the basement."

Zoning board member William Fitzpatrick was puzzled by the sequence of events. "So, we are inspecting an apartment that shouldn't exist in the first place -- and approving it?" he asked.

Borzak responded, "What's worse, him [Smith] losing an apartment, or the hazardousness of the unit for the tenants?

"We all acknowledge we made mistakes," she continued. "We messed it up. ... But the layout of the apartment is hazardous."

In other business, the zoners approved variances for a V-shaped electronic sign that will be erected by Adams Outdoor Advertising on Lehigh Valley Industrial Park property along Interstate 78.

The sign will be visible from both the eastbound and westbound lanes of the highway, said Glen Wiebe, an applications engineer for Daktronics, who testified in favor of the variances.

The zoners allowed the sign to be 37 feet -- instead of the zoning code maximum 25 feet -- above the grade of I-78 because of a dip in the road.

The sign was also permitted to be only 260 feet -- instead of the required 300 feet -- from a residential zone.

Wiebe pointed out that the nearest residential zone's border extends to the middle of the eastbound lanes of I-78.

"It's not likely that there will ever be residences in the center of the eastbound lanes of I-78," he observed dryly.