EASTON, Pa. — A zoning hearing on a proposed six-story apartment building intended for 70 N. 4th St. will continue in February after stretching over four hours Thursday night.
Developers behind the mixed-use structure, which plans show will hold 34 apartments and 1,190 square feet of commercial space, appeared before Easton’s Zoning Hearing Board to challenge an ordinance restricting building heights and sizes or seek a variance.
Zoning solicitor Robert Nitchkey explained prior to the hearing that while the appellant was entitled to present cases for both the challenge and the variance requests, the board would vote on the matters separately.
“We believe that the ordinance as applied by Mr. Tillman is valid, and we would encourage the board to make that same decision, but it is your decision to make at this point, and then the legal process will do what it is going to do on the other side of that."Easton Assistant Solicitor Jeremy Clark
Developers also sought variances to permit building right up to the line, and a 45% façade window surface area.
According to the city’s zoning code, structures greater than or less than 15% of the height and size of structures on adjoining properties require a variance.
Attorney Chad DeFelice, representing Post Road Management’s Borko Milosev, the owner of 70 N. 4th St., tried to challenge the ordinance by comparing his client’s project to several other buildings throughout downtown Easton.
He argued application of the ordinance was not fair.
'Actual validity of the ordinance'
DeFelice started the hearing dispelling rumors about the project, saying “We are not your enemy.”
He said Post Road Management had not developed anything in the city from the ground up outside a small property on Northampton Street.
He also said the proposal was permitted by right, that the developer had only contracted to lease 19 spaces from the city garage to accommodate tenant parking, and other small matters.
“The reason we're here tonight, and the reason that this this challenge came up the way it did, where we're challenging the actual validity of the ordinance, is because all we want is to be treated just like every other developer," DeFelice said.
"Just like every other person that has become before this board requesting the exact same relief. That's all we want. No more, no less."
DeFelice then interrogated city Planning and Codes Director Dwayne Tillman about which of three properties adjoining the one in question was used to determine the 15% difference delineated in the ordinance.
“You were over the 15% on all three of them," Tillman said. "So I just picked the one that was in the middle of all three” — 74 N. 4th St.
DeFelice suggested that the 15% difference could be made on the aggregate square footage of all adjoining properties.
Solicitor Robert Nitchkey replied, “I don’t think using the aggregate would make it compatible" with the surrounding buildings.
Erroneous interpretations
DeFelice also questioned city Planning Administrator Carl Manges about a sizing variance for a building on South 6th Street in 2020, when he served as the zoning officer.
Attorney Gary Asteak, representing a homeowner near the proposed site, asked Manges about the South 6th Street project, characterizing it as “much different in complexion and development, much different than North Fourth Street.”
Manges agreed.
When DeFelice asked about Manges using a lumber company building not directly adjacent to the plot in question as a point of comparison for the South 6th Street matter, it opened a can of worms over the interpretation of the ordinance.
“I agree there are many erroneous ways of interpreting that,” Asteak said.
DeFelice then provided other examples of similar situations in the area.
“This is a substantive validity challenge based on the disparate treatment of our particular project versus all of these other projects that have had to get zoning relief for this particular ordinance,” DeFelice said.
Both Nitchkey and Zoning Hearing Board member Pamela Panto spoke out on the notion that Manges’s interpretation during his time as a zoning officer should be considered as a sort of precedent for similar situations.
“I happen to think, with all due respect to Mr. Manges, that he was in error when he interpreted the ordinance to allow the use of the property down the block which is not adjoining," Nitchkey said.
"And therefore consistent with the actual written word within that provision.
Panto replied, “If there was an error in the past, not saying that there wasn't or wasn't, that's in the past, we need to move forward.
"And we need to work with Mr. Tillman, who is our zoning officer, and he's the one we look toward to do the calculations and correct it."
Assistant city solicitor Jeremy Clark said that “just because a mistake was made once does not mean that now… you have to throw everything out.”
“We believe that the ordinance as applied by Mr. Tillman is valid, and we would encourage the board to make that same decision," Clark said.
"But it is your decision to make at this point, and then the legal process will do what it is going to do on the other side of that."
Sizing limitations
DeFelice’s next witness, USA Architects’ Anthony Civitella, touched on the need for the build-to-line variance, which requires sidewalks on all sides of new construction.
Civitella said they were requesting that variance because of an alleyway on the property that only would be used as a driveway access, and placing a sidewalk there would not be advantageous.
Civitella also said the window sizing variance was needed “so that the windows and the transparency of the scale is closer, and in kind, to the adjacent buildings.”
DeFelice showed a map depicting several buildings in the downtown that exceed the 15% metric for adjoining properties, then asked Civitella if the 70 N. 4th St. structure would conform to the neighborhood.
He replied that it would.
According to Civitella, using other nearby properties as a comparison for the 15% ordinance would severely limit the size for 70 N. 4th St.
“I mean, the footprint is small enough where just by factoring in basic building code, items that you need, stairs, elevator, fire sprinkler room," Civitella said.
"You literally have the size of the Peace Candle left over for occupiable space."
Nitchkey later asked whether, in Civitella’s opinion, “regardless of how you interpret [the ordinance], is what you’re proposing consistent with the language of" the ordinance with the “broadest interpretation?”
Civitella replied, “No.”
Asteak questioned Civitella if there were any other potential uses for the lot, he said there were.
Asteak responded, “You would just like to develop it to a greater extent than that which the current zoning officer interprets the ordinance to allow you to.”
An attempt by DeFelice to suggest the city’s need for housing as part of an argument was unsuccessful, with Nitchkey saying, "that still doesn’t mean that [the apartment] needs to go here.”
Civitella was later asked if smaller builds, with fewer units, would be feasible for this lot in particular. He said no.
When Asteak asked about the need for the 70 N. 4th St. property to be 400% larger than adjoining lots, DeFelice jumped in to clarify their proposal was only 267% larger, eliciting laughs from the audience.
Compatibility
Lumen Strategy owner and former Zoning Hearing Board Chairman Stephen Nowroski detailed the history behind the 15% ordinance when it was developed over about two years and adopted in 2020.
Asked whether the language in the ordinance was ambiguous “at this point,” as per DeFelice, Nowroski said “Yes, [but] at the time, I did not think so.”
Nowroski said that at that time, Manges’s view on the ordinance was that “we were looking at the entire neighborhoods for compatibility, and not necessarily adjoining structures.”
“And the purpose for that is a very small lot could have control over a larger lot for a variety of factors, such as footprint size,” Nowroski said.
Asked whether using a total aggregate of adjoining buildings to determine the 15% ordinance could be used, Nowroski said “potentially,” though that was not necessarily the intent.
The board voted to resume the hearing on Feb. 10.
