NORTH WHITEHALL TWP., Pa. — The township Planning Commission on Tuesday rejected a contention that its zoning ordinance relative to an auto repair shop on a 16-acre residential property is unconstitutional.
The claim was made by attorney Ari Bargil, with the Institute for Justice, who represents business owner Gene Weierbach.
“This is Pennsylvania law,” Bargil said.
The township board of supervisors will conduct hearings on the matter from 7 to 10 p.m. Dec. 8-10.
"I don't see the ordinance as unconstitutional and don’t see the curative agreement as appropriate.”Robert Korp, vice chairman of the North Whitehall Township Planning Commission
Weierbach has operated an auto repair shop in a garage at his residence for 24 years.
In September, after a complaint by one of Weierbach’s unsatisfied customers, the township determined his business was in violation of the zoning ordinance that does not permit use of the garage in the residential zone.
Weierbach subsequently submitted a curative amendment, saying the ordinance is unfairly restrictive.
A curative amendment is a legal process initiated by a landowner to challenge the validity of a local zoning ordinance or map that prohibits or restricts their land use.
Lehigh County Planning Commission recommended rejection of the amendment, as it could create inconsistencies throughout the township.
“Mr. Weierbach sits on 16 acres,” Bargil told the commission. “His closest neighbors can’t see him or hear him. He doesn’t advertise. There are no bad smells from the business. He has regular hours. He has a peerless record.
“A court will look at this and see that Gene is harmless.”
'That's rational'
Bargil urged the commission not to fall into the same mistake as the Lehigh Valley Planning Commission in advising rejection of the curative amendment.
“The government does not have an obligation to protect people from harms that do not exist,” he said.
"This sets the township up in a multitude of challenges into the future. I don’t see this as a way to resolve this.”North Whitehall Planning Commission Chairman Brian Horwith
Attorney Matthew Deschler, who represented the township, implored the commission to ask the board of supervisors to maintain the ordinance as written.
“You allow home auto repair in a lot of places, just not in residential districts,” he said. “That’s rational.”
Planning Commission Chairman Brian Horwith rejected the notion that the ordinance is unconstitutional.
“Calling it unconstitutional and drafting a curative agreement is wrong,” he said. “This is making substantive changes to the ordinance that takes away the burden of the landowner and puts it on the township.
"This sets the township up in a multitude of challenges into the future. I don’t see this as a way to resolve this.”
Added Commission Vice Chairman Robert Korp: “I don't see the ordinance as unconstitutional and don’t see the curative agreement as appropriate.”
Neighbors' support
Weierbach was supported at the meeting by several of his neighbors.
Addressing the planning commission, Weierbach called the case against him “discrimination.”
"I never considered myself to be anything more than a very small, home-based business. So because I’m seeking an income … I’m a commercial business because I seek to provide for my family the only way I’ve been trained.”Business owner Gene Weierbach
“We have a local government bent on discriminating against what you can and can’t do on your own property, [regardless] if you’re not causing an actual harm or nuisance to anyone,” he said.
“To be honest, I never considered myself to be anything more than a very small, home-based business. So because I’m seeking an income … I’m a commercial business because I seek to provide for my family the only way I’ve been trained.”
Weierbach said working from home is necessary to care for his son, who has special needs and was in attendance.
Also, the Weierbachs’ request for a zoning variance was denied by the township’s zoning hearing board. Their attorneys are appealing that denial in state court.
