Council Minutes

February 4, 2003 Meeting Minutes

BETHLEHEM CITY COUNCIL MEETING
Bethlehem, Pennsylvania
Tuesday, February 4, 2003 – 7:30 PM – Town Hall

1. INVOCATION
2. PLEDGE TO THE FLAG
3. ROLL CALL

President Gregory called the meeting to order. Mr. Callahan offered the invocation which was followed by the pledge to the flag. Present were Jean Belinski, John B. Callahan, James A. Delgrosso, Robert J. Donchez, J. Michael Schweder, Magdalena F. Szabo, and James S. Gregory, 7.

Citation – Honoring Lawrence Enstrom

President Gregory stated that the Citation honoring Lawrence Enstrom, on the occasion of his retirement from the Public Works Department after 40 years of service to the City, will be forwarded to him since he was unable to be present at the meeting.

4. APPROVAL OF MINUTES

The minutes of January 21, 2003 were approved.

5. COURTESY OF THE FLOOR (for public comment on ordinances and resolutions to be voted on by Council this evening)

Liquor License Transfer Request – From Lehigh Township to 1214 Stefko Boulevard

President Gregory pointed out that, as a result of Communication 7 E that will be read into the record later, Resolution 11 A, Approving a Liquor License Transfer Request from Lehigh Township to 1214 Stefko Boulevard, has been removed from this evening's Agenda.

Administrative Orders – Andrew Twiggar – Planning Commission and Sandra E. Figueroa – Board of Health

President Gregory noted that, later in the Agenda, he will accept a motion to remove from the Table the following two Resolutions that were tabled at the January 21, 2003 City Council Meeting: Administrative Order appointing Andrew Twiggar to the Planning Commission; and, Administrative Order reappointing Sandra Figueroa to the Board of Health.

Rezoning Request – Lehigh Valley Hospital - Muhlenberg Campus – CM - Office Research Center District to I - Institutional District

President Gregory stated that, in view of questions raised at the last City Council Meeting of January 21, 2003, he will recognize the representative on behalf of Lehigh Valley Hospital, Lou Liebhaber, to speak to the matter of the hospital's rezoning request.

Lou Liebhaber, of Weathersfield Drive, Allentown, Chief Operating Officer of Lehigh Valley Hospital, referring to a map of the Lehigh Valley Hospital (LVH) - Muhlenberg Campus location, explained the rezoning request, the recent improvements on the property, and the expansion plans. Mr. Liebhaber highlighted the campus location with Route 22 to the North, Westgate Drive to the South, Schoenersville Road to the East, and Route 378 to the West. Mr. Liebhaber informed the assembly that, over the five and a half years since the merger of Lehigh Valley Hospital with the former Muhlenberg Hospital, investments totaling $60 million have been made on the campus. He enumerated the building improvements including a psychiatric hospital, pediatric unit in conjunction with Children's Hospital of Philadelphia, medical office building, central utilities building, cancer center, in-vitro fertilization laboratory, new patient care equipment, technology, and information systems. A new hospital building with 188 beds is proposed, that would replace the current in-patient hospital that has 108 beds, to accommodate existing and growing demand, as well as an aging population. About 400 new employees will be brought to the campus. Additional new physician office space and potentially more parking will be available. Over a seven year period, approximately $120 million will have been invested on the campus, bringing jobs and health care. Mr. Liebhaber pointed out that the hospital buys locally wherever it can; e.g., B. Braun Medical for in-patient services.

Amending Zoning Ordinance – Section 1311.02 - Use Regulations – Paragraph (1) by Adding Paragraph (11) – Allowing Motor Vehicle Sales and Service Agency as a Use Permitted by Right in the CG District

Attorney Paul Florenz, representing Dick Milham, said he would like to remind the Members that the proposed amendment to the Zoning Ordinance Section 1311.02, Use Regulations – Paragraph (1), to add Paragraph (11) in order to allow Motor Vehicle Sales and Service Agency as a Use Permitted by right in the CG District is related to the proposed Zoning Ordinance Amendment to the LI District that would remove Motor Vehicle Sales and Service Agency as a permitted use in the LI District. Attorney Florenz added that proposed amendment to the Zoning Ordinance for the LI District has been tabled. Attorney Florenz continued on to state "it is our request tonight that the proposed amendment to the CG zoning district also be tabled along with the LI amendment so that, at some time in the future, both of these proposals can be taken off the table and dealt with together because I think Council recognizes that they evolved together and they should be dealt with together."

Rezoning Request – Lehigh Valley Hospital - Muhlenberg Campus – CM - Office Research Center District to I - Institutional District

Stephen Antalics, 737 Ridge Street, posed the following questions concerning the request to rezone property of Lehigh Valley Hospital-Muhlenberg from CM to Institutional: why it is being requested to rezone property of Lehigh Valley Hospital-Muhlenberg from CM to Institutional; why not leave it as it is; what is the long term effect to the City in terms of taxes of rezoning a large parcel to Institutional; and, is it a reversible process.

Tony Hanna, Director of Community and Economic Development, responded that the request to rezone the parcel from CM to I was an attempt to consolidate all of the zones on the Hospital campus. All of the property that the Hospital owned would then be in the Institutional zone to allow them to develop the property for hospital use. What was the former IBM corporate headquarters was then zoned CM because that was an appropriate zone for that use. The former IBM office building is currently utilized by the Hospital for administrative space that would speak to an Institutional zone for that property. Mr. Hanna affirmed that the Planning Commission and the Planning staff were supportive of the rezoning for consistency. Turning to the question about long term effects of the taxability, Mr. Hanna noted, as was stated at the Public Hearing, the County Assessor basically looks at the use of the building and not the underlying zone in determining whether or not a property is tax exempt from real estate taxes. Mr. Hanna highlighted the fact that there are properties on the Lehigh Valley Hospital-Muhlenberg campus that are zoned Institutional but on which real estate taxes are paid such as several of the medical office buildings. Mr. Hanna continued on to say if the building is occupied by physicians with private practices then the building will be taxed. Mr. Hanna exemplified that portions of buildings can be taxed, a prime example of which is Campus Square at Lehigh University. The 6,600 square feet of retail space that Lehigh University rents to outside retailers is taxed, even though the property is zoned Institutional. In further response to Mr. Antalics, Mr. Hanna explained that usually the Institutional zoning district is used to accommodate the needs of institutions such as a hospital, college, university, or public school. Restating that the uses of the buildings are reviewed, Mr. Hanna said there are a broad range of permitted uses. Mr. Hanna informed Mr. Antalics that the net gain of changing the zoning is consistency from a zoning standpoint, and facilitation from a planning and zoning perspective. Now it is a permitted non-conforming use in the zoning district. Mr. Hanna added that from a land use perspective it is better. Mr. Hanna confirmed to Mr. Antalics that almost the entire Hospital campus is zoned Institutional and this parcel was an anomaly in being zoned CM because of its previous use.

Mr. Delgrosso noted that rezoning the land to Institutional limits the Hospital's ability to market the land for something else under Commercial uses, and the Hospital's campus properties will be for hospital and related uses.

6. OLD BUSINESS

None.

7. COMMUNICATIONS

A. Bethlehem Authority – Gift of Land to Bethlehem Housing Authority – Clemente Field

The Clerk read a letter dated January 23, 2003 from Stephen R. Salvesen, Executive Director of the Bethlehem Authority, requesting Council's approval of the gift of land at Clemente Field from the Bethlehem Authority to the Bethlehem Housing Authority.

President Gregory stated it is anticipated that the authorizing Resolution can be placed on the February 18 Council Agenda, unless the Parks and Public Property Committee or Public Works Committee would like to review the matter

Mrs. Belinski, Chairwoman of the Parks and Public Property Committee, and Ms. Szabo, Chairwoman of the Public Works Committee, both confirmed neither Committee desires to meet on the matter, and Council can take appropriate action.

B. Deputy Director of Community Development – Transportation Enhancement Program Grant – South Side Improvements

The Clerk read a letter dated January 24, 2003 from Dana B. Grubb, Deputy Director of Community Development, requesting consideration of a resolution to authorize the execution of the contract for a Transportation Enhancement Program Grant, Contract No. 050541, from the PA Department of Transportation, which will provide an additional $250,000 towards lighting and streetscape improvements within the Sasaki Master Plan study area of the South Side Business District.

President Gregory stated that authorizing Resolution 11 C is listed on the Agenda.

C. Rezoning Request – Eighth Avenue (Former Durkee Plant) – LI - Light Industrial to IR - Industrial Redevelopment District (19.77 Acres) and RG - Residential (12.87 Acres)

The Clerk read a letter dated January 29, 2003 from Attorney Ronald J. Reybitz representing Tiger Den Partners, LLC, containing the request to amend the zoning map for approximately 34 acres located on Eighth Avenue, the site of the former Durkee Plant, from LI Light Industrial to IR Industrial Redevelopment District (19.77 acres) and RG Residential District (12.87 acres).

Mrs. Belinski, referring to a letter that Members of Council received from the Lehigh Valley Economic Development Corporation (LVEDC) in which LVEDC expressed its agreement with the rezoning request, asked that Mr. Hanna inform Council, for the benefit of and in the interest of people who live in West Bethlehem, who are the Board of Directors of LVEDC, and is the organization public, private, or a combination.

Mr. Hanna agreed to make the list of the Board of Directors of LVEDC available to the Members of Council. Mr. Hanna added that LVEDC is a private, not for profit corporation, of which some of its directors are public officials, and most are private individuals.

Mrs. Belinski further requested the data used by LVEDC in support of the rezoning request. Mrs. Belinski asked what are the allowable uses in the RG Residential District and the IR Industrial Redevelopment District. Mr. Hanna noted that the IR zone is a very flexible zone, primarily intended for industrial property owners who wanted to redevelop what was a former Brownfields site. Mr. Hanna expressed the belief that the petitioners feel they have an appropriate site for that zone. Mrs. Belinski requested a list of the allowable uses in the RG Residential District and the IR Industrial Redevelopment District.

President Gregory referred the rezoning request to the Planning Commission and the Lehigh Valley Planning Commission.

Scheduling Public Hearing

Mr. Donchez and Mrs. Belinski moved to schedule a Public Hearing on the rezoning request at a Special City Council Meeting on Tuesday, April 8, 2003 at 7:30 PM in Town Hall.

Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. The motion passed.

D. City Solicitor – Lease Agreement – Golf Course Clubhouse Restaurant – Mali’s Café, LLC

The Clerk read a memorandum dated January 31, 2003 from Joseph F. Leeson, Jr., City Solicitor, to which was attached a proposed Lease Agreement for the operation of a restaurant with liquor license at the Golf Course Clubhouse by Mali’s Cafe, LLC, according to the terms and conditions of the Agreement.

President Gregory referred the proposal to the Parks and Public Property Committee.

President Gregory requested that the Clerk read additional Communication 7 E into the record.

E. Liquor License Transfer – From Lehigh Township to 1214 Stefko Boulevard - Withdrawal of Request

The Clerk read a letter dated February 3, 2003 from Attorney Gene Roscioli in which it was stated that the application submitted by JGD, Inc. in connection with the transfer of Restaurant Liquor License Number R-7018 from Lehigh Township, Northampton County, Pennsylvania to 1214 Stefko Boulevard, Bethlehem, Northampton County, Pennsylvania is hereby withdrawn.

President Gregory affirmed that, as a result of the withdrawal, Resolution 11 A has been removed from this evening's Agenda.

8 . REPORTS

A. President of Council

President Gregory stated that, with Council's concurrence, he will send a memorandum to Darlene Heller, Director of Planning and Zoning, to have the Planning Commission make a formal recommendation on Definitions of Repair Garage and Auto Body Shop, and adding Auto Body Shop to the LI District. Council previously received a memorandum dated January 13, 2003 from Ms. Heller regarding this matter in conjunction with the Planning Commission's recommendation not to add motor vehicle sales and service agencies as a use permitted by right in the CG District.

Vacancy In Office Of The Mayor - Appointment on Tuesday, January 21, 2003 of Mayor Donald T. Cunningham, Jr. as Acting Secretary of the Pennsylvania General Services Administration

President Gregory addressed matters associated with a vacancy in the Office of the Mayor as a result of the appointment on Tuesday, January 21, 2003 of Mayor Donald T. Cunningham, Jr. as Acting Secretary of the Pennsylvania General Services Administration by Governor Ed Rendell. In turn, Mayor Cunningham appointed Dennis W. Reichard, Business Administrator, as Acting Mayor effective January 21, 2003. Mayor Cunningham had stated that he will be tendering a letter of resignation as Mayor as soon as the State Senate confirms his appointment as Secretary of the General Services Administration.

Focusing on the issue of the filing deadline associated with a vacancy in the Office of the Mayor, President Gregory noted that, initially, Christopher Spadoni, City Council Solicitor, had indicated two dates of March 4 and March 11, 2003, but today it was heard the two dates are February 18 with the possibility of March 4, 2003. President Gregory asked if Joseph Leeson, Jr., City Solicitor, could provide clarity regarding the matter.

Attorney Leeson responded that the matter of election of municipal officials is governed by State Election Law. There are several provisions of the election law that have application to this situation. Attorney Leeson said the first one is that State law requires that the City Clerk certify no later than February 18 which municipal offices will be open this year for election. From a management standpoint, Lehigh County and Northampton County request that certification be filed in advance of February 18, and the City Clerk has complied with the requests and the certifications have been filed in accord with the timetable requested by the two Counties. However, if Mayor Cunningham is confirmed and resigns before February 18, the City Clerk will be in position to file and amended certification, and then there will be an election. Advising there is another State statute that also has application, Attorney Leeson said statute indicates that on or before March 4 each County must publish an advertisement listing all of the municipal offices that are to be elected this year. That advertisement must appear no later than March 4 in the newspapers. As far as the details of the turnaround time between when the half page display ad is submitted, Attorney Leeson expressed he does not know what the Morning Call and Express Times require administratively. However, in any case, Attorney Leeson stated that is the deadline that publication must be made; i.e., March 4. The State election law does not prohibit, after that ad is filed and published, someone from circulating a petition between March 4, the date of the ad, and March 11 which is the absolute deadline for filing the nominating petitions. Consequently, Attorney Leeson pointed out it is theoretically possible that Mayor Cunningham could be confirmed and resign March 1, for example, in which case the City Clerk is notified, the City Clerk notifies the County, and the County gets the ad in by March 4. Attorney Leeson explained it is the view of the Northampton County attorneys for the Election Bureau, and noting he researched the matter on his own independently and he believes that their interpretation is accurate based on a fair reading of the law, that if the vacancy occurs and the ad is published on March 4 listing the Office of the Mayor, the petitions can circulate in that one week period between March 4 and March 11, and then an election can be held. Attorney Leeson continued on to say if the ad does not get in listing the Office of Mayor by March 4, then the matter is closed, and there will be no Primary Election. Then, it will fall to the two political parties to make the respective nominations for Mayor, and there will be a General Election in November for Mayor between the Republican and Democratic candidates.

President Gregory, commenting it seems that the deadline of the beginning of the petitions, i.e., February 18, is the solid one, said then after that somebody would have to say there would be time in which to get the advertisement, and restated he would think that first date is the one that seems rather solid. President Gregory observed that after February 18 one gets into a gray area as far as interpretation. President Gregory, continuing on to say the Clerk has to submit the names, remarked if they are not there by the 18th then he is not sure how the County can allow names between February 18 and March 4 to appear in an advertisement.

Attorney Leeson responded at the present they are. Attorney Leeson added the position the County announced to him is the one they announced to the press, and he believes it is correct.

President Gregory said the question he has with respect to that is the Election Board is the one that makes the determination, not the Solicitor for the Board. Attorney Leeson said that he does not know; however he would consider it to be extremely unlikely that they would go against the advice of the attorney based on reading of the law which, in his opinion, is a fair interpretation, and is an interpretation that favors the rights of the citizens to give them as much an opportunity as possible to allow an election to occur. Attorney Leeson added the courts have been very clear and consistent for in excess of 100 years that whenever there is an opportunity to hold an election rather than to allow the political parties to make the nomination, the courts always come down in favor of allowing the electorate to have the choice. Having said that, Attorney Leeson stated "let's see what the resignation date is, we'll evaluate the facts and the law at that time, and we'll see where things stand."

Attorney Spadoni, expressing his agreement with Attorney Leeson, said they had a telephone conversation yesterday and that is the understanding they had from Attorney Treadwell, the solicitor to the Election Commission, and they thought he was correct.

President Gregory said if the Interim Mayor chosen by City Council happens to be a Council Member and then that Member of Council has to be replaced that process will be a little longer and will last until after March 4. Consequently, President Gregory queried whether it is being said that after March 4 most likely the County Committee would then replace the Council person if that person became the Interim Mayor.

Attorney Leeson replied the key date is March 4 in getting the vacancy of the particular office advertised.

Looking at the schedule, President Gregory remarked he would venture a guess that the Mayor's issue might be resolved but the Council Member issue would most likely after March 4 go to the parties. While Council would certainly have someone sit in for the rest of the year, President Gregory stated he would assume after March 4 that would go to the party committees to decide the candidates. Attorney Leeson commented that, as far as timing, President Gregory's guess is as good as anyone's.

B. Mayor

None.

C. Finance Committee

Mr. Delgrosso, Chairman of the Finance Committee, presented an oral report of the Committee’s meeting held on January 27, 2003 on the following subjects: Amending General Fund Budget and Transfer of Funds – Health Bureau; Transfer of Funds – Housing Inspections – Overtime; Amending Non-Utility Capital Budget: (A.) COOP Grant – South Side Business District and (B.) PA Department of Transportation Grant – South Side Business District; Transfer of Funds – Street Landscaping – East Fifth Street; Revising Justification – Health Bureau – Temporary Help; Amending Water Fund Budget – Bethlehem Authority Operating Expenses; Amending Sewer Fund Budget – Sewer Capital – Act 537; Amending Community Development Fund Budget – Steak Swale; and Transfer of Funds – Advertising and Printing – City Clerk’s Office.

9. ORDINANCES FOR FINAL PASSAGE

None.

10. NEW ORDINANCES

A. Bill No. 1 – 2003 – Rezoning Lehigh Valley Hospital – Muhlenberg Campus – CM to I

The Clerk read Bill No. 1 – 2003, sponsored by Mr. Delgrosso and Mrs. Belinski, and titled:

AN ORDINANCE AMENDING PART 13 OF THE CODIFIED ORDINANCES OF THE CITY OF BETHLEHEM, PENNSYLVANIA,
AS AMENDED, KNOWN AS THE ZONING ORDINANCE OF THE
CITY OF BETHLEHEM, PENNSYLVANIA, BY AMENDING THE
CITY ZONING MAP.

Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 1 – 2003 was declared passed on First Reading.

B. Bill No. 2 – 2003 – Zoning Text Amendment – Section 1311.02 – Adding Motor Vehicle Sales and Service Agency as Permitted Use – CG – General Commercial District

The Clerk read Bill No. 2 – 2003, sponsored by Mr. Schweder and Mrs. Belinski, and titled:

AN ORDINANCE AMENDING ARTICLE 1311
OF THE ZONING ORDINANCE OF THE CITY
OF BETHLEHEM, PENNSYLVANIA, AS
AMENDED, ENTITLED C-G GENERAL
COMMERCIAL DISTRICT.

Tabling Bill No. 2 - 2003

Mr. Schweder moved to Table Bill No. 2 - 2003. Mr. Donchez seconded the motion. Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 6. Voting NAY: Mr. Callahan, 1. The motion passed.

C. Bill No. 3 – 2003 – Amending General Fund Budget – Health Bureau

The Clerk read Bill No. 3 – 2003, sponsored by Mr. Donchez and Mr. Delgrosso, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM,
COUNTIES OF LEHIGH AND NORTHAMPTON,
COMMONWEALTH OF PENNSYLVANIA, AMENDING
THE GENERAL FUND BUDGET FOR 2003.

Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 3 – 2003 was declared passed on First Reading.

D. Bill No. 4 – 2003 – Amending Non-Utility Capital Budget – COOP Grant and PA Department of Transportation Grant – South Side Business District

The Clerk read Bill No. 4 – 2003, sponsored by Mr. Donchez and Mr. Delgrosso, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM,
COUNTIES OF LEHIGH AND NORTHAMPTON,
COMMONWEALTH OF PENNSYLVANIA, AMENDING
THE 2003 CAPITAL BUDGET FOR NON-UTILITIES.

Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 4 – 2003 was declared passed on First Reading.

E. Bill No. 5 – 2003 – Amending Water Fund Budget – Bethlehem Authority Operating Expenses

The Clerk read Bill No. 5 – 2003, sponsored by Mr. Delgrosso and Mrs. Belinski, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM,
COUNTIES OF LEHIGH AND NORTHAMPTON,
COMMONWEALTH OF PENNSYLVANIA, AMENDING
THE WATER FUND BUDGET FOR 2003.

Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 5 – 2003 was declared passed on First Reading.

F. Bill No. 6 – 2003 – Amending Sewer Fund Budget – Capital Appropriation

The Clerk read Bill No. 6 – 2003, sponsored by Mr. Delgrosso and Mrs. Belinski, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM,
COUNTIES OF LEHIGH AND NORTHAMPTON,
COMMONWEALTH OF PENNSYLVANIA, AMENDING
THE SEWER FUND BUDGET FOR 2003.

Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 6 – 2003 was declared passed on First Reading.

G. Bill No. 7 – 2003 – Amending Sewer Capital Budget – Act 537

The Clerk read Bill No. 7 – 2003, sponsored by Mr. Delgrosso and Mrs. Belinski, and titled:

AN ORDINANCE OF THE CITY OF BETHLEHEM,
COUNTIES OF LEHIGH AND NORTHAMPTON,
COMMONWEALTH OF PENNSYLVANIA, AMENDING
THE 2003 CAPITAL BUDGET FOR SEWER
UTILITIES.

Voting AYE: Mrs. Belinski, Mr. Callahan, Mr. Delgrosso, Mr. Donchez, Mr. Schweder, Ms. Szabo, and Mr. Gregory, 7. Bill No. 7 – 2003 was declared passed on First Reading.

11. RESOLUTIONS

B. Authorizing Execution of Use Permit Agreement – American Association of University Women – Bethlehem Branch – Memorial Pool Building – Book Fair

Mr. Donchez and Mrs. Belinski sponsored Resolution 14,000 which authorized the Mayor and the Controller to execute a Use Permit Agreement between the City and the American Association of University Women, Bethlehem Branch, for use of the Memorial Pool Building for the 2003 Book Fair for the period March 17, 2003 to April 28, 2003, according to the terms and conditions of the Agreement.