Hellertown mayor David Heintzelman (seated second from right, above) took advantage of a little-known and seldom-used mayoral power to veto a controversial rezoning decision–Ordinance 834–by borough council at Monday night’s meeting.
Opponents of a controversial rezoning decision made by Hellertown Borough Council Jan. 21 celebrated its reversal Monday night, which occurred when Mayor David Heintzelman took advantage of a seldom-used mayoral power to veto a new ordinance.
Borough council then tried–but failed–to override the veto.
Heintzelman was deliberative in telling council he was “uncomfortable” with its 5-1 decision to rezone a property owned by Michael and Sarah Chaffier at 1527 Easton Road.
In spite of vocal public opposition and against the recommendation of the borough’s seven-member planning commission, council had voted to rezone nearly 5 acres of a parcel that extends into adjacent Lower Saucon Township from R-1 to R-2 zoning.
The rezoning decision meant that in the future the potential would exist for townhomes or other high-density housing to be built there, at least in the borough.
Legal representatives for the Chaffiers–who have not appeared or spoken publicly about their rezoning request–previously told council they have no specific plans to develop it.
Many opponents of the rezoning have taken a dim view of that assertion, however.
One of them–de facto leader of the public opposition to the rezoning, Morning Star Lane resident James O’Brien–told council Monday its decision was rushed and made without enough information.
Lower Saucon Township resident James O’Brien (right) addresses Hellertown Borough Council at their meeting Monday night. O’Brien, of Morning Star Lane, has been a vocal critics of council’s decision to rezone a property at 1527 Easton Road, which borders his home. He directly appealed to Hellertown mayor David Heintzelman to veto the rezoning decision.
Addressing council and the mayor during the meeting’s public comment period for non-agenda items, O’Brien pointed to an online petition he and his wife created last month; a petition which has since garnered nearly 500 signatures by opponents of the rezoning also known as Ordinance 834.
“There are 5,900 people in the borough and thousands are against this,” he claimed. “There’s not one person other than the property owner who wants this to happen.”
O’Brien told council he had consulted with an attorney about the rezoning decision and was advised that “you cannot sue a government body for not changing a law.”
Thus from a legal standpoint, he said he believed rezoning the land could only open the borough up to a greater threat of future lawsuits, because once rezoned, denial of any development plans that met the new zoning requirements could be grounds for a lawsuit.
Another neighbor and vocal rezoning opponent, Kevin Gough, said he reached out to a Hellertown Planning Commission member following council’s Jan. 21 meeting to request information about why the commission voted 4-3 against recommending the rezoning to council in October. Gough did not say with whom he spoke, and planning commission meeting minutes do not provide a roll call tally of the votes that were made that night.
Gough told council he was told there was a concern among some planning commission members that the rezoning of 1527 Easton Road might constitute “spot zoning.”
Definitions of spot zoning can vary, but according to a 2015 article published on the website of Avallone Law Associates of Philadelphia, the Pennsylvania Supreme Court has ruled that it is the “‘singling out of one lot or a small area for different treatment’ under the zoning code even though the lot receiving different treatment is indistinguishable from surrounding parcels with respect to physical characteristics and potential uses.”
“As such, Pennsylvania courts have ruled that spot zoning is an arbitrary exercise of the municipality’s ‘police powers’ and is therefore unconstitutional,” the article states. “Spot zoning typically becomes an issue when the (a) the owner asks the municipality to change the zoning classification only for his property or (b) the owner opposes such a change after it has been proposed by the municipality.”
Gough said planners were also reportedly concerned about the fact that the Chaffier property currently has no approved roadways entering it.
“The reality of it is, ‘follow the money,'” he said, predicting that “they’re going to try to maximize the profitability on the property.”
Gough told council that assuming a current average annual cost of $19,000 to educate a Saucon Valley student–and using the current average of $5,800 in property taxes paid on a home assessed at the district average of $225,000–he calculated a deficit of approximately $13,000 per student should the property be developed with new housing.
“You’re looking at a potential for–conservatively–fifty families (to move into the borough),” should the land be developed with high-density townhomes, O’Brien stated.
He said that based on a statistical average of two children per household, that could mean another 100 students would be enrolled in the district, which utilizing Gough’s figures would lead to a budget deficit for the school district of roughly $1.3 million.
O’Brien said he was troubled enough by the potential effect a high-density housing development could have on the district’s bottom line that he contacted school board members following the Jan. 21 meeting at which the rezoning was approved.
He did not identify them, but indicated they were supportive of his opposition to the rezoning.
Two Saucon Valley School Board members were in attendance at Monday’s meeting, although neither spoke publicly about the issues raised by O’Brien.
“If we have more kids go to school you’re absolutely going to raise school taxes,” he predicted.
O’Brien said he isn’t anti-development or against the rights of a property owner to develop his land as long as doing so will not negatively impact the landowner’s neighbors.
“We have a chance to get it right,” he told council.
After borough council solicitor Michael Corriere explained the legal grounds on which the mayor can veto an ordinance adopted by council–essentially by refusing to sign the ordinance–Heintzelman shared his views.
Calling the matter “a no-win situation,” he said he ultimately reflected on the fact that he ran for and was elected mayor in 2017 “to represent the people.”
“I am going to veto this decision under Borough Code because I am uncomfortable with how it is written,” he said.
He also defended borough council against what he said was unfair criticism on Facebook, and criticized the angry rhetoric used by some rezoning opponents on that social media platform; rhetoric which at times included exhortations to “vote them out” on Saucon Source’s Facebook page and elsewhere.
“I wouldn’t want anyone else (on council) other than who we have here,” Heintzelman said.
Following Heintzelman’s announcement of his decision, council had to decide whether it would attempt to override the veto.
Corriere said that by law, council has 10 days to override a mayoral veto by a majority-plus-one or a supermajority vote.
That effort failed when a roll call vote to override the veto was subsequently taken, with councilmen Phil Weber, Earl Hill, Gil Stauffer and Mike McKenna voting in favor of overriding it.
Councilman James Hill and council president Tom Rieger voted against overriding it, which meant the override failed, and once that became clear applause erupted from the opponents of the rezoning.
James Hill had voted against the rezoning at the Jan. 21 meeting, but Rieger had not.
In a statement following the meeting, Rieger explained his decision to allow the mayor’s veto to stand and why he voted to ensure that “Ordinance 834 is dead.”
The Borough Code requires the mayor to sign and approve all legislative actions classified as ordinances within 10 days of such actions being voted upon by council. This is different than how townships pass legislative acts. That being said this is our process as a borough, and it ensures all sides have a voice and can be heard.
I believe the vote two weeks ago was just and had more benefits as a whole than not, while understanding the law and supporting factors. That is why I voted for the ordinance as presented.
However, my respect for the mayor’s prerogative to veto this ordinance and the community’s input over the last two weeks prevailed and justified my choice in voting tonight to allow the mayor’s veto to stand, which resulted in the ordinance passed nine days ago to fail with the lack of a majority plus one.
The detriment to this vote tonight is it takes it out of our hands as a borough government and opens us up for possible legal challenges and puts this solely in the hands of the courts.
What everyone has learned over the last three monthsis that it’s our duty as citizens to stay informed, volunteer and most importantly participate in the community we all say we love.
Commenting on social media–while a great asset for communication in times need or tragedy–has at times been shown to become a divisive instrument that creates hurtful accusations, half-truths, misinformation and in some cases representations that are less than factual.
I made a clear promise to you every time I asked for your support and placed my name upon on the ballet. That promise was to make sure tomorrow is better than today. I always try and do what’s best for everyone and not just a few few.
Following the meeting, O’Brien said he does not expect the mayor’s veto as well as council’s subsequent vote to go unchallenged by the Chaffiers and their legal representatives.
However, he said he was happy with the decision and grateful that Heintzelman took the time to listen to residents who opposed the rezoning, ultimately agreeing with them.
“I feel like he’s a guy who cares about the citizens of Hellertown,” O’Brien said. “He listened to the residents of this community. That was a brave move.”
Borough council’s next meeting will be held Tuesday, Feb. 18 at 7 p.m. at Hellertown Borough Hall, 685 Main St., Hellertow, Pa. Meetings are ordinarily held the first and third Monday of each month, however because borough offices will be closed Feb. 17 in observance of Presidents Day, the next meeting is being held the following day.
