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Shay, Santee & Kelhart


DiruABnI. cawtei: th
(610)' 691-7000
JOANNE p. shay December
UeCeiXlDer 8O, 2017
ZU1/ .http^/www.ssk-law.com
fax (610)691-3529

Via Email: eschock@flblaw.com

Eric J. Schock, Esquire

4001 Schoolhouse Lane
Center Valley, PA 18034

RE: Bethlehem Armory Zoning Application

Dear Solicitor Schock:

At the second hearing on November 30,2017, it was announced that the record in
this zoning appeal would remain open for deliberations and the announcement of the
Decision of the Zoning Hearing Board on Tuesday, December 12,2017. Since the record
is still open, and a Decision has not yet been rendered, Iwould like the opportunity to
present a motion atthe hearing on December 12,2017, prior to the deliberations of the
Zoning Hearing Board. The Motion would be to strike the testimony of Darlene L.
Heller, Director of Planning and Zoning, near the conclusion of the hearingon
November 30, 2017, and to have the ZoningHearing Boarddisregard her testimony.

Darlene Heller wasclearly an advocate and witness on behalf ofthe Applicant.

Although I did, during my closing statement, state that Darlene Heller's acting as
alegal and expert witness on behalf of the Applicant was improper, Iwould like the
opportunity to put my objection to her testimony on the record, for potential appeal

The Pennsylvania Municipalities Planning Code, at 53 P.S. 10908(3) delineates

who and what entities are parties to a zoning hearing. Specifically, that section
provides: "The parties tothe hearing shall be the municipality, any person affected by
the application who has made timely appearance of record before the board, and any
other person including civil orcommunity organizations permitted to appear by the
board. The board shall have power to require that all persons who wish to be
considered parties enter appearances inwriting onforms provided bythe Board for
that purpose/'
Eric J. Schock, Esquire
Page 2
December 8, 2017

Clearly, Darlene Heller did not qualify for standing as a person affected by the
application or a civic or community organization. Although the Code provides that the
"Municipality" is a party, Darlene Heller does not qualify as a "Municipality". Clearly,
the City of Bethlehem, or City Council, could have had itsSolicitor appear on behalf of
the City as a party at the zoning hearings. Although it would be highly unusual for the
City as a municipality to encourage the Zoning Hearing Board to disregard its own
zoning ordinance, and the interests of affected citizens, the Pennsylvania Municipalities
Planning Code would have permitted that participation by a Solicitor on behalf of the
City. Although Darlene Heller is not an attorney, she was attempting to make legal
arguments in support of the zoning appeal. Clearly, that was improper.

My client, the Mt. Airy Neighborhood Association, should be entitled to make

this Motion to Strike the Testimony of Darlene Heller, and to have the Zoning Hearing
Board disregard it in its entirety, before the Zoning Hearing Board has further
deliberations, and renders its decision. No harm will be caused to the Applicant and its
attorney because this Motion will be presented, if the Zoning Hearing Board permits it,
at a public hearing and counsel for the Applicant can have the opportunity to make
arguments in opposition to this Motion, and otherwise respond to it.

Although I would like to have a further opportunity to cross-examine Darlene

Heller on the issues relating to the timing of her statement at the conclusion of the
second hearing, and possible coordination with the Applicant concerning the
presentation of her testimony, I will not ask the Zoning Hearing Board to reopen the
evidentiary record. Rather, I am simply asking for the opportunity to present this
Motion and to have it ruled upon prior to the Zoning Hearing Board's deliberations and
announcement of its decision at the hearing on December 12, 2017.

Thank you for your consideration.

Very truly yours,


Michael P. Shay

cc: Seth Tipton, Esq. Via Email: stipton@fpsflawfirm.com
Suzanne Borzak, Zoning Officer Via Email: sborzak@bethlehem-pa.gov
Ms. Mary Toulouse Via Email: touIousm@lafayette.edu
Ms. Christine Roysdon Via Email: cmroysdon@gmail.com