B. Fowler v. City of Bethlehem & Morning Star Partners, LLC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Beall Fowler, Estate of Robert : Romeril, Martin Romeril, : Barbara Diamond, Steven Diamond : and Bruce Haines, : Appellants : : v. : No. 836 C.D. 2022 : SUBMITTED: May 7, 2024 City of Bethlehem and Morning : Star Partners, LLC :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE LEADBETTER FILED: June 10, 2024

Appellants, Beall Fowler, Estate of Robert Romeril, Martin Romeril, Barbara Diamond, Steven Diamond, and Bruce Haines, appeal from the order of the Court of Common Pleas of Northampton County, denying their procedural validity challenge to Ordinance No. 2018-40, brought pursuant to Section 5571.1 of the Judicial Code, 42 Pa.C.S. § 5571.1. We affirm.1

1 This case was considered seriately with related cases Beall Fowler, Estate of Robert Romeril, Martin Romeril, Barbara Diamond, Steven Diamond, and Bruce Haines v. City of Bethlehem and City of Bethlehem Zoning Hearing Board, and Morning Star Partners, LLC (Pa. Cmwlth., No. 834 C.D. 2022, filed June 10, 2024), and Estate of Robert Romeril and Gwendolyn- Jane Romeril v. City of Bethlehem Zoning Hearing Board and Morning Star Partners, LLC (Pa. Cmwlth., No. 835 C.D. 2022, filed June 10, 2024).

At the center of this long-running dispute is the property owned by Morning Star Partners, LLC (Morning Star) and located at 2 West Market Street in the City of Bethlehem, Northampton County, Pennsylvania. Trial Ct. Op. at 3. The property is within the City’s RT-Residential Zoning District and is a mixed-use parcel, containing a single family dwelling, rental units, two apartments in accessory buildings which also house retail uses, and a detached garage. Id. at 3 n.3. Morning Star made three previous attempts to obtain variance relief in order to conduct a business office use out of the single family dwelling portion of the property. See Fowler v. City of Bethlehem Zoning Hearing Bd., 187 A.3d 287 (Pa. Cmwlth. 2018).2 All three attempts were ultimately unsuccessful. Morning Star then filed a petition for a map change but later withdrew that petition. At issue here, in September 2018, Morning Star filed a petition to City Council seeking to amend Article 1304.04 of the City’s Zoning Ordinance.3 Trial Ct. Op. at 1-2. Morning Star specifically sought to add subsection (b) to Article 1304.04, the pertinent part of which provides as follows:

(b) As a special exception, the conversion of a single family dwelling to an office use may be approved by the Zoning Hearing Board [] provided all of the following requirements are met:

(1) The lot shall be at the corner of [two] streets and shall contain some form of a nonconforming retail or commercial use in combination with a single family dwelling.

2 As the Fowler Court noted, retail is not a permitted use in the RT district, but because the retail uses on the property predate the Ordinance they are lawful nonconforming uses. 187 A.3d at 289. 3 City of Bethlehem Zoning Ordinance, Ordinance No. 2210 (1970), as amended. Article 1326.02(c) of the Ordinance permits, inter alia, a landowner to file a petition proposing an amendment thereto.

(2) This subsection [two] may allow an office use to be established in the single family dwelling even while the nonconforming commercial or retail use on the same lot continues. The office use shall be limited to within the existing single family dwelling, and may not involve building expansions for the use, other than as may be necessary for fire safety or handicapped access.

....

(7) The office uses to be permitted under this section shall be limited to those of medicine, law, architecture, engineering, art, religion, music, insurance, real estate, psychology, accounting, and financial services.

Id. at 2-3 (Amendment). The Amendment was then submitted to the Lehigh Valley Planning Commission and the City’s Planning Commission for review, and both agencies presented their recommendations to City Council. Id. at 3. Following public hearings, at which time Appellants voiced their concerns, City Council voted 4-3 to approve the Amendment and it was signed by the City’s Mayor in December 2018. Trial Ct. Op. at 4. Appellants then filed their procedural validity challenge in the trial court,4 alleging that City Council failed to comply with the notice requirements of both the Zoning Ordinance5 and Section 609(b) of the Pennsylvania Municipalities Planning Code (MPC).6 Prior to commencement of the non-jury trial, the parties stipulated that proper notice was given if the Amendment qualifies as a text amendment, and that notice was deficient if the Amendment is instead a map change. Trial Ct. Op. at 8. Also prior to trial, Appellants moved for the admission into evidence of certain transcripts of meetings

4 Morning Star filed a notice of intervention in the matter. 5 Ordinance Art. 1326.03(a). 6 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10609(b).

of City Council and the City’s Planning Commission pertaining to the Amendment. The City opposed the motion and the trial court directed that the issue be submitted on briefs. After reviewing pertinent case law, the trial court determined that the Amendment is a text amendment rather than a map change and, pursuant to the parties’ stipulations, proper notice was provided. The trial court explained that “the Amendment does not cause such substantial change to the [pertinent zoning districts] as to be deemed a comprehensive zoning scheme, nor does it single out a discrete parcel creating an island.” Trial Ct. Op. at 13. In addition, the trial court denied Appellants’ motion seeking admission of the transcripts, specifically referring to a prior interlocutory order addressing the same issue. Id. This appeal followed. Appellants raise the same arguments herein as they did before the trial court; namely, that the Amendment constitutes a map change rather than a text amendment and therefore is invalid as the proper notice procedures were not followed. Appellants further maintain that the trial court abused its discretion by failing to admit into evidence transcripts from meetings of City Council and the City’s Planning Commission.7 Upon review of the record, the parties’ arguments, and the law, we conclude that the trial court ably addressed and resolved the issues raised by Appellants. Accordingly, we affirm on the basis of the thorough and well-reasoned

7 This last issue is dealt with more fully in the trial court’s interlocutory order and opinion denying Appellants’ purported motion for leave to take additional evidence, issued May 14, 2021. As the trial court notes, much of Appellants’ proffered evidence was either not relevant to the ultimate issues in the case or not appropriate because the “testimony” was not taken under oath and would not afford Morning Star the ability to cross-examine adverse witnesses. See Trial Ct. Op., 5/14/21 at 6 [citing Section 908(5) of the MPC, 53 P.S. § 10908(5) (“The parties . . . shall be afforded the opportunity to respond and present evidence and argument and cross-examine adverse witnesses on all relevant issues.”)].

opinion of the Honorable Craig A. Dally in Beall Fowler, Estate of Robert Romeril, Martin Romeril, Barbara Diamond, Steven Diamond, and Bruce Haines v. City of Bethlehem and Morning Star Partners, LLC (C.C.P. Northampton, No. C-48-CV- 2019-00436, filed July 6, 2022) (appended hereto).

BONNIE BRIGANCE LEADBETTER President Judge Emerita

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Beall Fowler, Estate of Robert : Romeril, Martin Romeril, : Barbara Diamond, Steven Diamond : and Bruce Haines, : Appellants : : v. : No. 836 C.D. 2022 : City of Bethlehem and Morning : Star Partners, LLC :

ORDER

AND NOW, this 10th day of June, 2024, the Order of the Court of Common Pleas of Northampton County is hereby AFFIRMED.

BONNIE BRIGANCE LEADBETTER President Judge Emerita