B. Fowler v. City of Bethlehem

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Beall Fowler, Estate of Robert Romeril, : Martin Romeril, Barbara Diamond, : Steven Diamond, and Bruce Haines, : Appellants : : v. : No. 834 C.D. 2022 : SUBMITTED: May 7, 2024 City of Bethlehem and City of : Bethlehem Zoning Hearing Board, : 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, affirming the decision of the Zoning Hearing Board of the City of Bethlehem to deny Appellants’ substantive validity challenge to an amendment to the City’s Zoning Ordinance.1 We affirm.2

1 City of Bethlehem Zoning Ordinance, Ordinance No. 2210 (1970), as amended. 2 This case was considered seriately with related cases 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), and Beall Fowler, Estate of Robert Romeril, Martin Romeril, Barbara Diamond, Steven Diamond and Bruce Haines v. City of Bethlehem and Morning Star Partners, LLC (Pa. Cmwlth., No. 836 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, Bethlehem, Northampton County, Pennsylvania. Board’s Finding of Fact (F.F.) 9. The Board described the property as

contain[ing] a former single[]family residence building located on the corner of West Market and New Streets; two smaller buildings that are connected fronting New Street used for retail space on the first floor and an apartment on the second floor[;] and a detached garage with an apartment above.

F.F. 31. The property is located within the RT-Residential Zoning District where commercial use is not permitted. F.F. 32. As such, Morning Star made several previous attempts to obtain variance relief in order to conduct a business office use out of the single family residential portion of the property. See Fowler v. City of Bethlehem Zoning Hearing Bd., 187 A.3d 287 (Pa. Cmwlth. 2018).3 While its first two zoning applications failed, the Board granted Morning Star’s third application. Id. at 292. This Court ultimately reversed that decision, id. at 298, and Morning Star was subsequently issued a cease and desist order. Morning Star then filed a petition for a map change but later withdrew that petition. On September 27, 2018, Morning Star filed a petition to City Council seeking to amend4 Article 1304.04 of the Ordinance. F.F. 28. Morning Star

3 As the Fowler Court also 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. 4 As the Board notes, Article 1326.02(c) of the Ordinance permits, inter alia, a landowner to file a petition proposing an amendment to the Ordinance. F.F. 29.

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 [] 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) 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.

Reproduced Record (R.R.) at 466a-67a (Amendment). The Amendment was submitted to the Lehigh Valley Planning Commission and the Planning Commission of the City of Bethlehem for review and both entities submitted their recommendations to City Council. F.F. 38-45. Following public hearings, wherein 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. F.F. 47.

Appellants then appealed to the Board raising a substantive validity challenge to the Amendment. F.F. 3-4. Morning Star was granted intervenor status as the property is affected by the Amendment. F.F. 11. Following public hearings spanning multiple days, the Board voted unanimously to deny the appeal and a written decision was issued thereafter. F.F. 14-15. The Board determined, inter alia, that the Amendment is not ambiguous or void for vagueness, does not constitute spot zoning, and does not violate the principle of nonconforming uses. Board’s Decision at 23-37. The Board found that the Amendment is substantively valid and that Appellants failed to meet their burden. Board’s Decision at 22, 37. Appellants appealed to the trial court which affirmed without taking additional evidence. This appeal followed.5 Appellants argue that the Board erred in determining that the Amendment is not invalid spot zoning. More specifically, Appellants maintain that the Amendment is unreasonable, arbitrary, and not substantially related to the police power interest that it purports to serve. Appellants further argue that the Amendment is invalid because it violates the principle of nonconforming uses and because it was not thoroughly examined to determine its impact on the general health, safety, and welfare of the public. Finally, Appellants assert that the Board and the trial court both erred in precluding certain evidence from the record, evidence which Appellants claim demonstrates that the Amendment was predicated upon an illegal zoning contract.6

5 Because the trial court did not take additional evidence, our review is limited to determining whether the Board erred as a matter of law or abused its discretion. Fowler, 187 A.3d at 294 n.8 [citing In re Thompson, 896 A.2d 659, 666 n.4 (Pa. Cmwlth. 2006)]. 6 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. (Footnote continued on next page…)

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 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 City of Bethlehem Zoning Hearing Board (C.C.P. Northampton, No. C-48-CV-2020-03074, filed July 6, 2022) (appended hereto).

BONNIE BRIGANCE LEADBETTER President Judge Emerita

See Reproduced Record (R.R.) at 776a-90a. “[I]t is within the trial court’s discretion to decide whether to take additional evidence,” id. at 780a [quoting Wilson v. Plumstead Township Zoning Hearing Board, 894 A.2d 845, 849 (Pa. Cmwlth. 2006)], and we discern no abuse of discretion here. Moreover, 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 it would not afford Morning Star the ability to cross-examine adverse witnesses. See R.R. at 781a [citing Section 908(5) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 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.”)].

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Beall Fowler, Estate of Robert Romeril, : Martin Romeril, Barbara Diamond, : Steven Diamond, and Bruce Haines, : Appellants : : v. : No. 834 C.D. 2022 : City of Bethlehem and City of : Bethlehem Zoning Hearing Board, : 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