New Hope Borough Council at its Nov. 19 meeting approved a proposal to create a special business zone that would allow the Bucks County Playhouse to expand its back deck a into a full bar and convert the former Club Zadar into a hotel/restaurant/bar. The proposed “riverfront cultural overlay district” now goes to the planning commissions of New Hope and Bucks County.
Conspicuously absent from all the action is the Zoning Hearing Board, a powerful and sometimes controversial group that is mandated by state law to adjudicate zoning ordinance issues. The apparent sidelining of that commission may or may not have been intentional, but its implications may well prove far-reaching.
Asserts Borough Manager John Burke, “Planning and zoning are the prerogative of Council and the Planning Commission, not the Zoning Hearing Board.”
Back in 2012, Playhouse officials quickly ran afoul of Zoning Board members who said they expected greater variance detail up front, and were putting the request for ordinance relief through their typically protracted approval process. Playhouse representatives seemed to want a more streamlined process in deference to the amount of time and money spent to save the Playhouse from near extinction. The process ultimately degenerated into an infamous verbal argument at Borough Hall and the negotiations foundered.
As first reported in these pages last August, in stepped Borough Council President Claire Shaw, Solicitor T. J. Walsh, Borough Manager John Burke, Zoning Officer Bob Larason, and Executive Director of the Bucks County Planning Commission Lynn Bush, who negotiated directly with Bucks County Playhouse owner Kevin Dougherty to accommodate the Playhouse’s need for a restaurant/bar-based funding mechanism. Their initiative appears to have supplanted the Zoning Hearing Board role in this case, rather than augmenting it, and in fact, the zoning group seems to have been left largely in the dark about the proposal.
So while many in New Hope are pleased and relieved that the iconic Playhouse has been able to join together with Borough Council on a workable riverfront development plan, the process by which the special “overlay” was created raises serious questions for others: Why did Borough Council which, more often than not, defers to its own advisory group, appear to circumvent Zoning involvement completely in this situation? Why was it necessary to create an entirely new business district, and what precedent does that set? And does Borough Council intend to continue diminishing the role of the Zoning Hearing Board?
Members of that board are notoriously silent when it comes to public commentary, citing its quasi-legal nature and potential litigation. But a source familiar with New Hope planning procedures who requested anonymity said, “The Playhouse would have gotten the same deal from the Zoning Planning Board. How much money was spent to start over from scratch? They still have to wait for FEMA anyway.”
The FEMA part pertains to that agency’s repeated denial of Playhouse requests for revisions to their flood map — in short, the Playhouse has to get FEMA to grant them a “map revision” so it looks like they’re not building in a flood plain, and that probably won’t happen for quite some time, say most observers.
Bucks County Playhouse owner Kevin Dougherty explained, “The next step is for FEMA to either accept their own 2010 maps or to approve a map revision that merely aligns the existing maps with the more accurate 2010 version. We have been attempting to get this done since early 2012 and have no idea how much longer it will take to get this LOMR (letter of map revision) application processed. We have revised our application with FEMA at least four times now and they continue to change both the required information and the people assigned to handle the application. Unfortunately, these delays continue to prevent the economically important riverfront development envisioned by the Borough back in 2008.”
Nonetheless, Dougherty is clearly pleased with the borough’s proposal, saying, “This is a positive step that Borough Council has taken in helping to realize a key element of the Borough’s strategic planning. The Riverfront Revitalization Plan was adopted in 2008, but the local ordinances had never been adjusted to allow the revitalization to actually occur. This overlay district harmonizes the plan with the rules and was handled in the way that it should be – through the elected officials.”
Borough Hall’s Burke also points to the town’s 2008 riverfront revitalization plan as a driver for the creation of the special business district. “Borough Council has sought to revitalize the Playhouse and its surrounding area since developing the Riverfront Revitalization Strategic Plan in 2007-08,” he said. “Council’s goal was to produce a strategic plan to allow greater public access to the Delaware River through the revitalization of the last remaining large parcel within the Central Business District, while incorporating design elements that would achieve a strong public/private partnership centered on a restored Bucks County Playhouse and an enhanced waterfront experience for residents and visitors.
“Starting in 2010, the Borough began work on a new Comprehensive Plan,” continued Burke. “The development of the Plan followed a very open and public process, which culminated in a series of public meetings by the Borough Planning Commission and Borough Council and the adoption of the Plan in July 2011.
“The next logical step was to incorporate this vision into the Borough’s zoning ordinance, which was last revised and updated in 2006.” he added. The 2006 zoning ordinance simply continued the existing zoning for the riverfront area surrounding the Playhouse. It classified the Playhouse as a non-conforming use, meaning that the theater use was not currently a permitted or allowable use in the Central Business District, although it had been at some time in the past. A nonconforming use is permitted only if the use was legally established, but now violates a zoning ordinance because the property was rezoned or the law was changed. Consequently, the options for utilizing the site in ways to continue and sustain the Playhouse in the future were limited. In addition, the 2006 zoning of the Playhouse site conflicted with the goals of the Riverfront Revitalization Strategic Plan and the new Comprehensive Plan,” concluded Burke.
Business owner and former Borough Council member Bob Gerenser was less sanguine about the proposed “cultural overlay district,” saying, “They’re not just bypassing the Zoning Hearing Board, but also bypassing community involvement. You’re not going to recognize this Frankenstein five years from now. There are checks and balances that have been established forever and ever, and now they’re questioning Zoning? I hate Zoning, but it’s been a fair game until now.”
Burke disagreed that the Zoning Hearing Board had been sidestepped, asserting, “Once we recognized the breadth and depth of the variances required to transform the Playhouse into a going concern, we recognized that this was not a case where ‘an adjustment in zoning’ would make any sense. This was clearly a policy, planning and zoning issue and it was simply not fair to expect the ZHB to perform that role. Policy, planning and zoning are Council prerogatives , not rightful matters for the ZHB under PA law.”
Business owner, former Chamber of Commerce President and Revitalization Committee Member Herb Millman, said, “The Zoning Hearing Board are advisors to Borough Council, and under current procedures, it’s a bipartisan decision, because it’s going through a zoning board, and then it goes back to Council, and it’s discussed. By bypassing Zoning, it becomes a very partisan decision and I think it was done in error.”
Business owner Peter Markowicz agreed, saying, “We support the Playhouse of course, but I would be more comfortable if Zoning were involved.”
Fellow merchant Eric Lee said that while there was precedent for the Playhouse and Inn serving food and liquor, “Zoning and HARB (Historic Architectural Review Board) should be involved and need to work together in a non-partisan way.”
Area resident and businessperson Bryan Montgomery didn’t mince words: “The Playhouse, unlike many other businesses, is open all the time. They practically saved this town. They should get what they need to survive.”
A public discussion of the proposal is being scheduled for January, 2014.
As a citizen and a zoning board member who did not sit on the hearing for the playhouse, it is amusing to see the slant the reporter has taken on this story. Zoning operated according to the zoning laws on the books. When the playhouse indicated that their plans went well beyond the scope of the variance request presented at that first meeting, Zoning Hearing Board rightly instructed them to return with a completed request. That the boro council pursued a new district overlay isn’t sidelining zoning. The Boro Council is doing their job. And bottom line, everyone has to wait until FEMA approves the revised map – no matter what the status of the district overlay or zoning variance. Let’s not stir up trouble where there is none.