The city zoning hearing board Monday night again continued businessman Abraham Atiyeh's much-delayed legal challenge of Allentown's zoning law.
The board agreed to yet another delay in order to give all parties two weeks to try to settle the case, if not, the board will rule on it in March.
The case has been dragging on for nearly seven months.
Although the case was on the agenda Monday night, Atiyeh did not show up at the meeting nor did his lawyer or representatives from any of his companies.
Zoning hearing board secretary Joan Fritz heard nothing but silence when she announced the case, then asked: “Is the appellant present?”
Atty. Frances Fruhwirth, an assistant city solicitor, announced the city was requesting a postponement and said none of the other parties involved objected to that postponement.
Fruhwirth said that included Atty. Michael Savona, Atiyeh’s lawyer, as well as lawyers for two intervening parties in the case – Whitehall Township and Premiere Media.
When zoning board chairman Dan McCarthy asked the reason for the postponement, Fruhwirth said: “We are in the process of discussing some type of resolution. We’re not entirely optimistic, but we thought for the benefit of all the parties concerned, we should attempt it.”
Fruhwirth assured McCarthy all parties are negotiating in good faith.
She asked for two more weeks. “It will come to a conclusion one way or another in two weeks,” she told the zoning board.
McCarthy and zoning board member Juan Camacho agreed to the two weeks “in hopes that this matter concludes itself.”
But McCarthy warned if the case is not settled in two weeks, it will come back before zoners for a ruling at a meeting that will be scheduled in March.
On that date, he told Fruhwirth, “We’re going to conclude this case, whether you’re in the middle of negotiations, at the end of negotiations, whether witnesses are available or not available or whatever. We’re going to make this thing happen.”
Camacho agreed, saying: “We have to conclude this case.”
Added McCarthy: “We have to have a certain respect for the process.”
The case first came before the zoning hearing board on July 22, when testimony was taken for nearly three hours. Testimony was taken for another three hours on Aug. 19.
The case was supposed to continue with more testimony on Sept. 23. That night, Atiyeh intended to call city witnesses, including Mayor Ed Pawlowski, to testify. But Pawlowski was not available for at least one meeting, because he was campaigning for governor.
At some point, Atiyeh might have testified as well.
The case was rescheduled for Oct. 21, but postponed again.
“We’re now at Feb. 10, 2014,” noted McCarthy.
McCarthy said if the issue is settled in two weeks, it no longer will be before the zoning hearing board.
If not settled, it might be heard by zoners on March 17 or 24. “Even if we wanted to book it today, we’re booked up for the next three or four Mondays,” said McCarthy.
Because the case has gone on so long, he stressed it needs to be resolved, settled or withdrawn “without further continuance.”
“This is probably our longest standing case,” said McCarthy. “We heard testimony in 2013. We’re now in 2014.” He said the zoning hearing board met 33 times in 2013 and ruled on 67 cases.
Atiyeh actually has two related appeals before the zoning board that challenge an exemption built into the city’s zoning ordinance.
He is challenging a section added to the city’s rewritten zoning law in 2010. It states the zoning ordinance itself does not apply “for a use authorized by the mayor or city council by virtue of a lease of other contract.”
Atiyeh’s representatives have testified that Pawlowski used that section to circumvent other requirements of the city’s zoning ordinance 17 times in the last three years.
That included contracts for digital billboards, cell phone towers and even the controversial waste-to-energy plant planned along the Lehigh River.
In August 2012, City Council approved a 15-year contract with Premiere Media Allentown LLC -- now Clinton Street Media -- to erect an outdoor network of digital billboards.
Since then, the mayor has authorized exemptions for the construction of several of those billboards, according to testimony before the zoning board.
Atiyeh, who has his own billboard companies, objected. He argued that section –1311.17---- undermines the rest of the zoning ordinance. He wants the zoning board to declare 1311.17 void and invalid.
Through his lawyers and business associates, Atiyeh has argued projects granted such exemptions are not reviewed to assure zoning compliance and that no public hearings or public notification is required before those exemptions are authorized.
After Monday’s meeting, McCarthy said this is the longest-running case he’s seen since he got on the zoning hearing board in 2006.
He said Monday night was the first time he had heard the parties are talking to try to resolve the case. “I’m hoping they've been talking since Oct. 21, 2013,” he said.