Thank you. Good morning, everyone. My name is Frank DiCicco. I'm the chair of the zoning board.
Yes. Could you give us a few minutes for people to come into the room, please?
I'm sorry. That's what I thought Jason was doing. I'm sorry.
No worries.
okay chair we can proceed
good morning everyone my name is frank di chico i'm the chair of the zoning board of adjustment
i'll be participating in today's hearing along with our vice chair ms carol tenere
board secretary confessor plaza and board members mr thomas holloman and mr james snell
board administrator jason hand and our board attorney ms sharon saletta are also in attendance
for those of you who haven't yet participated in one of our virtual hearings i'll go through
some of the basics of what you can expect pardon me first we will be administering oaths to
individual participants prior to their testimony. Second, we'd like to advise everyone that this
proceeding is being recorded, and that by participating, you acknowledge your agreement
to be recorded, and the recording will be available to the public on the web or otherwise.
For anyone participating by phone, if you wish to testify, you must raise your hand by hitting star
nine and then star six to unmute yourself. I'll repeat. For anyone participating by phone,
if you wish to testify, you must raise your hand by hitting star nine and then star six to
unmute yourself. Finally, to enter an appearance statement, call Google 267-270-5548 and leave
your email address and the address of the property at issue. And I'll repeat that.
To enter an appearance statement, call Google 267-270-5548 and leave your email address
and the address of the property at issue. And I'd also like to advise everyone,
please do not attempt to testify in the chat. Your comments should be directed to the board
Administrator, Mr. Hand. With that, I believe we can proceed. We'll leave anything out. I think
we're ready. Sharon, you want to lay out the format, please? Yes, thank you. This is Sharon
Saleta. At the end of the last hearing, we announced that this would be that the pending
appeal against L&I and the request for a special exception would be combined for purposes of the
hearing. These are still two distinct appeals that the board would consider the appeal against L&I
first, and then depending on the results of, depending on how it decides that issue,
would either proceed with the special exception case, if it grants the appeal against L&I,
or in the alternative, if it denies the appeal against L&I, discuss whether the applicant can
move forward with a variance request and what will have to be done procedurally for that.
Before we begin, I did have a few questions for the city if Mr. Reuter is here.
Mr. Reuter has been allowed to speak.
Good morning, Mr. Reuter.
Please identify yourself with a record, spell your full name, and I'll swear you in.
Good morning, Chairman.
Leonard Reuter, R-E-U-T-E-R, Senior Attorney for the City of Philadelphia.
you you swear and affirm to tell the truth the whole truth and nothing but the truth i do thank
you shall we please proceed um mr reuter in the memorandum that you submitted you suggested that
in the alternative the board proceed with the special exception case that was um the hearing
was started in december and that any um a decision on the special exception would render the legal
issue of whether there should be a refusal or referral moot. So there are a few things I don't
understand about the approach you're suggesting. So you are, you're suggesting that the board
So you are, you're suggesting that the board should proceed with the already started special exception hearing, despite L&I having reversed its position and in the interim issued a notice indicating that a variance, not a special exception, is required.
So, as it currently stands, the department's view is that a variance is required. Despite that, we would move forward with the special exception hearing, and we would not address the pending appeal against L&I that challenges the revision of the decision.
um the that somehow this would make the appeal against oni the legal issues moot because
quote presumably unquote someone will appeal this to the court and the court can consider
the legal issue de novo despite the issue having been presented to the board in a distinct appeal
and despite the issue being something that under the code the board is authorized to address
that we should just ignore that and let the court decide in case there is an appeal.
So some of the problems I have with this. First, can the board go forward based on an L&I position
that no longer exists? And second, what happens if it is not appealed? If the board goes forward,
if it grants a special exception, are you saying that L&I will then issue a zoning permit because
us that's what the board decided no i i think if i might um the suggestion that i had made in the
memo was really just one uh for practicality's purpose i mean i i guess i should have included
in that uh a presumption that they would simply again i i i think it's moot at this point because
it's i i would assume that the other parties wouldn't agree to it anyway at this point but
But it would have been, in effect, a stipulated decision.
Again, practically speaking, it doesn't really matter.
We can, you know, if the parties were to agree to a stipulated decision, you know, that the appeal, you know, either granting the appeal against L&I or not.
Because, again, the point being is that the issue of the appeal against L&I is strictly legal.
There are no facts in dispute.
Isn't that always true of an appeal against L&I?
No, many appeals against L&I, they're arguing that there was an error by the plans examiner.
So what would the stipulation be?
Well, again, I don't think it's going to happen, so it's probably moot. But the stipulation would simply be that the appeal against L&I, say, is denied. You proceed with the special exception case. And then the outcome of that, that's where the factual dispute is, is whether, you know, again, whether or not they meet the criteria for a special exception.
And again, this is presuming that there would be an appeal. I mean, I think to me, it seems pretty obvious that there's going to be appeal to the courts and therefore the legal issue of the appeal against L&I is going to be heard de novo because on local agency appeals, legal questions are always heard de novo by the courts.
so isn't the board obligated to this isn't well they have isn't the board obligated to consider
this on its merits why would they accept a stipulated decision by the parties in an appeal
against lni because there's no facts in dispute and it's a purely legal question that would be
heard de novo but again i i don't think i i think it's fine to just go forward it was just simply a
suggestion because again and also mind you it was my understanding at the time that the applicant
would not going to be was would not seek a variance now that now seems to be up in the air
but at the time that we submitted the memorandum last week it was my assumption and I thought
and again Mr. Matione can speak for himself but it was my assumption and my recollection that Mr.
Mattione specifically said that they were not seeking a variance. They were only seeking the
appeal against L&I. So if the special exception were denied, then the entire case is moved because
there's no variance. They're not seeking a variance. It doesn't make any difference what
the outcome of the appeal against L&I is. But I don't understand why, assuming you can stipulate
to it that the appeal against lni is denied um yeah i mean wouldn't that render the special
exception case mode no if the appeal against if the appeal against l lni is if if we stipulated
that the appeal against lni is denied then they're then then the decision stands it is a refusal
Then there then then the decision stands. It is a refusal, not a referral. And there is no special exception to be decided. Right. OK. OK. I think that the board will proceed as as planned. Consider the appeal against L and I initially make a ruling on that and then we can determine where to go from there.
And again, the other thing that I was considering was, again, if the appeal against L&I is granted, or let's say it's denied, that gets appealed, and then the court reverses, now you've got to get a rematch, and then you're going to have to go through the special exception case.
I'm sorry, because you've already had three hearings on that.
it it just that's why it seems to make sense that we would combine the two that there will
be first a ruling on the appeal against lni if the special exception um right goes forward then
you'll have both decisions same appeal period but right but we're not taking a position on this
the city's not taking any position i i'm not speaking for planning by the way i'm just saying
like you know we have the i'm not taking any position on the special exception if that you
know so again i mean i think this is all kind of moot because the other parties are not going to
agree to any of this anyway so it was just a suggestion i was trying to find a way to streamline
the process to avoid a remand but and and i just wanted to be sure i understood what you were
suggesting thank you sure and then i guess chair we can move forward with the um appeal against
l and i well i think that's still leonard correct yes all right all right because we left off i
think uh last hearing you you testified but i don't know if you concluded i um i what happened
is that um the matter was essentially continued uh we were asked to present uh briefs or memoranda
of law on the again the purely legal question of the appeal against ellen i so uh mr maddie
messrs miss matione and bonnie and i all submitted uh that uh those briefs um well i believe
everybody submitted theirs on time uh on march 2nd so again all the legal the legal issues are
preserved um so again to be honest with you uh it wasn't clear like how we were going to proceed
this morning so um you know uh obviously i think i can't see who the who's oh wait now i can see
who's in the lobby um it does appear that uh mr matione is here and mr boney are both here so
I just didn't know where, and maybe it's a, correct me if I'm wrong, Sharon, but Mr. Reuter, have you, did you, we have their briefs, all board members have briefs from all parties.
Do you need to add anything to what your testimony was?
uh no again we we want we we raised the issues last time and now i think the issues have been
fully briefed and i think with respect to the appeal against ellen i we're just i i think if
you you know again i i think it'd be fair for you know the board to say you don't need to hear any
oral argument you have the briefs you can either decide it now on the briefs or you can hold it
over for a decision or whatever if you want to have oral argument then i think it would be
um you know and an appeal against l and i um it would be mr matione i guess would go first
yes i would suggest that we allow each party to mr matione mr bonnie and mr reuter if he chooses
to um make a statement well yeah i was just gonna do you have any further uh comments um
mr reuter uh since we left off and in regards to your brief as i said i read it and sure but
the board members we spoke about this earlier we all read this uh so do you have anything else you
want to add to your prior testimony uh to the prior statements i made no if you want um argument
based upon what was raised in the briefs um you know that that would be different but i don't have
anything to add facts again there's no factual issue um on the appeal against lni everybody i
think agrees and stipulates to the um to the layout of the proposed uh paramutual and sports book uh
at 1526 packer i don't there's no facts and dispute there i i mean again i i'm just speaking
for myself i don't think there's any critical facts and dispute um uh in in terms of like how
how the place is going to be laid out and what pari-mutual betting is and what sports wagering
or sports book is. It's literally just the question of whether this constitutes a casino
as defined in the Philadelphia Code. Sharon, this is Sharon Slidig. And since
Right. I'm sure. This is this is Sharon Slidig. And since the parties have submitted briefs, but not had an opportunity to respond to each other's briefs, if we could call Mr. Mattione first and then.
the parties have submitted briefs,
I do have a question for Mr. Reuter, and maybe you can answer it. Maybe you can't. Are you aware of any other sports book gaming venues in Philadelphia?
The current Turf Club at 700 Packer since, and Mr. Mattione can correct me if I'm wrong, but I believe since winter of 2019, I think, has been offering a sports book.
Other than the parks at 7th and Packer, are you aware of any other venues, sports betting venues in Philadelphia?
uh well again uh the rivers casino formerly known as sugar house has a sports book um
let me let me rephrase that not including category one licenses i am not aware of any others there
used to be a turf club in center city that's no longer in operation so i i think it was 17th and
market that's right yeah um that's no longer an operation i don't think they ever offered sports
book, because I think that changed hands into something else before sports wagering was
legalized by the state. But I'm not aware of any. But Mr. Matiani would certainly be a better
position to answer that. Can I ask one question, Mr. Reiter? The existing location,
the sports betting was added in 2019. Did that require a variance? Or should the permit be
revoked um i would we have looked into that i would say that if i'm not mistaken the paramutual
betting which has been going on there for quite some time uh that i believe was by variance
so yeah there was no new so the addition of the use that would make it a casino wouldn't require
a variance um there was no use permit there was no use permit or no application for a new use
permit or an amended use permit for second 700 packer that was ever submitted to the city so the
reality is that i don't know if uh licenses and inspections was even aware that sports wagering
was taking place at that location until this case came up um so i and i'd rather not prejudge what
was happening there the this zoning classification of that property is different also the that
That operation, if I'm not mistaken, that is the non-primary location there for off-track
betting, I believe is by variance going back, I think, to the mid-90s.
So, you know, again, I don't have all that in front of me.
I don't know all the details of what might be permitted under that variance.
So I'm not going to say that the sports wagering at that location is not lawful.
I don't know.
I just know that there was no amended use permit or no new use permit that was ever submitted to
the city when they added the sports wagering I'm not saying they had to I don't you know it would
depend upon you know it wouldn't be up to me Illinois somebody would have to look at it and
see what what fits within the permitted uses under you know again the old variants or whatever it was
that allowed the off-track betting there in the first place and again I think that goes back
at least to the mid 90s so i don't think what the city did or didn't do there
provides any precedent one way or another for the outcome of this case
well i don't know about that i mean it's not it's to me it sounds like the same argument i mean
you can make the argument that seventh and packer um if they want to call it a casino because it
has sports betting i mean that's that goes pretty much to the crux of what this argument is in my
opinion well it's you know uh you know we'll get into i'm sure we'll get into with mr money
money and mr uh bonnie uh as we did a couple weeks ago uh it requires a a a special uh exception
and um it would not allow for slot machines and table games right but but again um well two things
first, whether or not the city has enforced, like, let's say for the sake of argument, the sports
wagering would not be legal at that location at 700 Packer. The fact that the city might not have
issued a violation for some activity at one location doesn't mean that they're precluded
from issuing a violation at another location. So again, LNI hasn't gone back to look at what's
going on at 700 Packers. So it's, again, it's not a precedent. We haven't done anything about it
because I don't think the city was even aware officially that sports wagering was taking place
at 700 Packer until this case. Because no, it is clearly an additional use.
uh because no it it is clearly an additional use regardless of whether it's law it's a casino or
not it was an additional use that was different from the the the use at the 700 packer is
explicitly for that for that particular unit now again there's other activities that take place at
that location ironically the state lottery is also in that same building on the side
but for this for that unit where uh the turf club is there is a specific use for that and that is
explicitly and limited to paramutual bedding and then you know i guess accessory bar restaurant
so on that basis alone any additional use would have required a use a new use permit so the none
of that was never submitted to the city for that activity so irrespective of whether it's a you
know whether the sports wagering would or wouldn't constitute a casino on that basis alone if i had
to offer an opinion i would say that it's it's currently in violation because we don't have
sports wagering on the use permit for that location so here they've actually applied for it
do you have special assembly and entertainment on that permit it's it's i believe it's by variance
okay the and the variance is explicit to paramutual to paramutual betting uh so
um you know so again that's that's why i think that is a different situation uh at 700 packer
and you know again i don't want to be locked into saying it is a violation or it isn't a violation
l and i it's not up to me it's up to l and i they have to look at that you know and certainly i
think after this case, they will take a look at what's happening at 700 Packer. Although I think
that probably winds up being moot anyway, because my understanding is that they're closing that
location anyway. But, you know, again, it's not something that I want to lock the city into a
position on that because that is a it's a different locations, different zoning classification, I
believe. And it's also by variance. So all of those things distinguish it from this matter.
thank you for that i think mr mattione may be able to shed some light on that when we get to
him all right thank you leonard uh any the board have any questions for mr reuter no no
um what we up next is mr mattione
good morning please identify yourself for the record and i'll swear you in
sure michael mattioni uh federal reserve m-a-t-t-i-o-n-i federal reserve bank building
100 north independence mall suite 5a northwest philadelphia 19106 we're in the firm to tell the
truth the whole truth nothing but the truth i do mr chairman thank you before you begin uh
you heard our last conversation with mr reuter yes did you shed any light what i'm getting at