civus
Hearing video

ZBA Hearing - December 14, 2022

Philadelphia Zoning Board of Adjustment (ZBA)Dec 14, 20224h 42m

Do you swear for him to tell the truth, the whole truth, nothing but the truth?

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i do could you identify your client a relationship to the property

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I do.

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Could you

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the owner of the property is my client fnf properties okay um i talked to our attorney

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beforehand we won't vote on this case today but we'll hear the case correct our uh our

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board secretary has a few questions for you ishmael shaheed okay

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Have you submitted all the appropriate documents other than the letter from the Zoning Board?

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Yes, we have.

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Okay. And you agree with what the complaint is and things of that nature, right?

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Excuse me?

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you you agree to um the refusals yes you agree to i agree with reading the refusals that's right

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that's right okay i'm with proceeds proceed sir okay so this is a uh rsa 5 it is a uh the refusal

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in question is uh not a use it's a dimensional it's uh there's a a portion of the rear yard

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where there's a required nine foot setback and then our proposed plans on a portion of the rear

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yard only seven feet is proposed for that portion it's a very odd shaped lot it's an undersized lot

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and it has 71 feet of lot frontage these are our postings just for the record here is

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hopefully you can see that it's a triangular lot so we have a lot of frontage not a lot of

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uniformity in depth so in trying to construct a single family home there there was you know

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that challenge of the unique nature of the lot dimensions

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so I'm going to just jump real quick to because I know you guys have been at it all day

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Okay, so here's what we're planning to do.

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The issue is over here on the left side of the screen,

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if you can see my mouse,

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there's a portion where the property

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is within seven feet of the rear yard.

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Much of it is more than seven feet

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and actually more than the nine,

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but we have this one little portion right here,

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and that's what we're requesting the variance for.

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I've included the plans.

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You know, for all three floors in our documentation, we have aerial photographs of the neighborhood right now.

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It's just traditionally been used as as parking for the neighbors.

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These are pictures of the street.

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This is a rendering of what we're planning to build.

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I have also with me today our architect, Gary Wolf, who can adopt my testimony and provide any specific questions regarding the nature of the challenges of this lot, if Gary could raise his hand.

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Gary?

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No, Gary?

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is he there hi can you hear me i just yes yeah i can't could you state your name and spell for

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the court reporter sure gary wolf g-a-r-y w-o-l-f-e right do you swear a firm to tell

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the truth the whole truth nothing but the truth i do all right uh council proceed why don't you

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It makes construction a little easier, and it makes the home itself a little more comfortable.

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But any other issues, that's really the only issue.

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Right.

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We know that we've had interaction with the Neighborhood Association.

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They're going to send a letter post this hearing, but they don't seem to have a problem with the variance request.

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the questions they've asked us have all had to do with and we've responded to a couple of them

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the sloping of the pilot house the color of the facade but I think the latest one they had

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and we really can't live with and that is that the property the building would have to be set

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back five feet from Moore Street and that would render the whole interior space

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I guess I don't want to call it uneconomical but not not what we're trying to build in this

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neighborhood and we're not required by the zoning code to bring the building back five feet we're

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not actually sure why they want that but that's the issue that uh results in they want to send a

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letter okay questions from the board no mr chairman no no mr chairman no questions or

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comments from the virtual audience i see no here chair planning commission so ron bednar city

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planning this property is indicated for residential on the city plan given the irregular size condition

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post it poses a clear hardship we recommend the quest for variance be granted thank you

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um council we're going to hold this for a month am i right hillary

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yes mr chair we'll hold this for 30 days um and it's going to be closed a letter from the

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rco exactly the record will be otherwise closed yes thank you mr chair thank you council okay

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thanks so you don't need us to come back for that 30 days correct

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no no mr hopper you do not need to come back for the vote unless you want to but you will get the

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result in email with your notice to decision. Okay. Thank you, Hilary. Thank you, Board.

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Okay. Okay. So number one, let's see, what is it here?

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MI 2022-003-184-780 South 2nd Street. Michael Matione is the attorney for the owner.

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Mr. Anastasio is also involved

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in the case for people who are protesting

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letter of opposition

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from the Queen Village Neighbors Association

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and letter of opposition from Council Member Squilla

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the applicant also the applicant also provided 53 pages of statements from residents neighbors

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in support of the requested variances Mr. Mattione good afternoon Mr. Chairman

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hi could you state your name and spell it please for the court reporter

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sure michael mattioni that's m-a-t-t-i-o-n-i right do you swear for him to tell the truth

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the whole truth and nothing but the truth i do mr anastasio good afternoon or good evening

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mr chairman of vern anastasio a-n-a-s-t-a-s-i-o 2016 spruce street philadelphia 1-9-1-0-3

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Did I swear to you once overnight today?

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Say it again?

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Didn't I swear to you this morning?

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More than once, yes.

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Okay, all right.

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So, Mr. Matione?

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Mr. Chairman, we submitted in advance the required exhibits, and we agreed away the reading of the refusal.

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Okay.

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That's okay.

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I'd like to share my screen.

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And is that up? It is. I have a new configuration. That's why I just had to make sure it was up. Thank you. I represent 780 LLC. They're the owner of the Royal Sushi and Izakaya restaurant at 780 South Second Street.

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The owner of the building is bride of Frank and Simon's LLC, and the principles are largely the same in the two entities.

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um and i presented and it's up on the screen uh last friday the exhibits including the um

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showing a proof of payment of the taxes the refusal uh the cv of our expert jonathan deutch

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his report the letter from the rco a letter from alexandra gerber who is the accountant for

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The letter from the RCO, a letter from Alexandra Gerber, who is the accountant for the entity, the numerous support emails that you discussed, the chat room from the evening of the QVNA zoning committee meeting,

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over the years.

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a statement of expenses in comparison between 2019 and 2022 that was prepared by my client,

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the applicant, site plan, floor plans, a sushi bar plan, zoning map, photographs,

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a 2013 zoning approval and proviso letter, memorandum of law, and the lease and the deed

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as well. So I've submitted all that in advance. I do have three witnesses today.

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to present Justin Holden, David Frank, and Jonathan DeWitch.

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What we are seeking today, and it's in the refusal,

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which Royal Azakaya is a longstanding restaurant in Philadelphia,

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and we're seeking two things to be able to remove a proviso entered into in 2013,

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where windows on the one side of the building were to be inoperable and to be able to operate

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a takeout restaurant, mainly have people pick up their meals through the window on Fulton Street

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in question. Royal Izakaya has been operating a world-class James Beard-recognized Izakaya

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and Sushi Room since 2016. This site has long been a restaurant, probably predating the code

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in 1933. In 2013, new ownership was preparing to expand the existing restaurant and open a new

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restaurant at the site. So even though this was a longstanding restaurant, they had to go to the

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zoning board because they were expanding the footprint of the building and that required a

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variance. So they had to come back. The original expansion included a proposed row of windows in

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New Door on Fulton Street. The row of windows was modified and really had places for windows

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for three of them. They got rid of the row. And the proviso letter was entered into when the row

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windows and a new door were proposed. The new door in the middle of the building was never

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actually built. So that proviso regarding the door from 2013 is moot. The door that does exist

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is a longstanding rear door that is used primarily for the trash removal and access to the trash

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area. And that hasn't changed. And that doer was not subject to the proviso. As part of the approval,

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the owners of the real estate agreed to proviso prohibiting the opening of the windows on Fulton

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Street. And at the time of the expansion was completed, use of the windows on Fulton Street

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for takeout service or for any other use was not contemplated by the restaurant. So the proviso

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had no actual impact on the restaurant at that time. Royal Izekiah opened in 2016. When it opened,

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it was operating 63 hours per week, seven days per week, 5 p.m. till 2 a.m. every day.

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Royal Izakaya operates a traditional authentic izakaya, which has been described as being

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similar to a gastropub, where no reservations are taken in the front of the restaurant,

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and there is also a large bar. That's a traditional Japanese izakaya, where you don't

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have reservations. You have people show up. It's a very social type of restaurant. In the middle

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of the restaurant, there's another seating area in the Omikase room, which is an exclusive

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reservation-only, very small dining room with seating for eight people. This small area has

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two seatings per night, so it has 16 people that can get reservations on any night and accepts

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reservations. It's the only part of the restaurant that accepts reservations because it's an

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exclusive room. As with many restaurants, the start of the pandemic and closing in March 22

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caused many changes, and the city then permitted them to expand operations in ways that hadn't

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been contemplated to permit restaurants to survive. In this case, it including allowing

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a license for a temporary sidewalk cafe and takeout service. Royal Zacchaeus took advantage

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of these emergency orders and operated the sidewalk cafe and offered takeout service

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since indoor dining was prohibited when the restaurant service was first permitted in the

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summer of 2020. These emergency provisions permitted Royal Ezekiah to survive the initial

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phase of the pandemic. Other than during the emergency order, Royal Ezekiah cannot operate

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a sidewalk cafe as a sidewalk on Fulton Street is too narrow for any table seating. And the sidewalk

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on Second Street is also too narrow and complicated by a fire hydrant and utility pole. So there's no

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space for the people to walk if you have tables. In addition, given the lack of parking on Fulton

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Street. It's only six or seven feet wide. And the fire hydrant and utility pole that are on

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2nd Street, and the fact that there's no parking in front of Royal Ezekiah, and you have a 15-foot

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buffer from the corner anywhere you want to have a streetery, you cannot have a streetery at this

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You cannot have a streeterie at this location either.

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location either. Streetery is being allowed now in the city.

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Streeteries being allowed now in the city, but they cannot take advantage of that.

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Outdoor seating is prohibited at the restaurant due to its unique location and dimensions and cannot be offered in the future.

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So this helps to create an unnecessary hardship to Royal Izakaya.

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When indoor dining was prohibited, Royal Izakaya utilized the window it added to the rear of the restaurant nearest the kitchen for pickup of takeout meals.

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In 2022, Royal Ezekiah permitted, applied to be permitted to operate the takeout window and have the proviso regarding the takeout window removed.

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Although during the pandemic, the takeout window had been utilized, it is not presently being utilized and has not been utilized since April 16th.

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The violation, they received violation for operating the window and it's been timely appealed and the hearing will be scheduled at some point in time before the Board of License and Inspection review regarding the notice of violation.

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but that violation was properly appealed and there's been no decision on it the restaurant

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industry has changed and the new and the unique physical confines of the building and severe

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limitations combined to create an unnecessary hardship to the land that make it impossible

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for royal izakaya to operate without the takeout service through the window at the rear of the

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property nearest the kitchen as will be shown takeout amounts to approximately 18 to 19 percent

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of Royal Izakaya's revenue. As will be explained by both Royal Izakaya personnel and our restaurant

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industry expert, John Deutsch, changes in the restaurant industry have mandated that restaurants

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that before COVID would have never offered takeout or now that they have to offer takeout

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and serve their customers. Many of these customers refuse to eat in restaurants but desire the

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ability to continue to purchase prepared meals from restaurants such as Royal Izakaya.

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prior to covid royal izakaya operated seven days a week 63 hours per week into until 2 a.m daily

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for many reasons as will be explained by our witnesses royal izakaya now operates five days

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a week until 10 p.m weekdays and 11 p.m weekends only 27 hours per week which is 60 percent less

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than they operated prior to the pandemic expert in late testimony will explain why the takeout

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window is the only way for royal izakaya to offer takeout service and why the takeout service is

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necessary for Royal Izakaya to remain profitable. Royal Izakaya has received in excess of 100

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support emails from nearby neighbors, all personally written. This is not a petition

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that somebody signed that a neighbor banged on the door and asked them to sign and they weren't

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sure what they were signing. These are personally written emails. Royal Izakaya also attached

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comments from the QVNA chat room from the night of the RCO meeting and note that the vast majority

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of the comments from the chat room support the takeout window. QVNA did not provide a summary

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sheet showing the vote of attendees at the meeting. It stated it doesn't poll attendees to determine

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the sentiment of those attending regarding an application. The letter submitted by QVNA is

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solely a determination by the QVNA zoning committee and doesn't necessarily reflect the sentiment of

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those who attended the QVNA meeting. We have also included some financial information showing the

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increase in cost, dramatic increase in costs, despite the significant reduction in hours

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and a letter from Royal Izakaya's accountant, which explains why Royal Izakaya really is not

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profitable without the takeout service. The testimony will show that there is an unnecessary

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hardship to the land unique to this property that justifies the granting of the variance.

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With this background, Mr. Chairman, I would like to call my first witness and that's David Frank.

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Frank? David?

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Mr. Frank, could you state your name and spell, please, for the court reporter?

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Excuse me.

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I'm sorry, Chair. There's no hands up right now.

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Sorry, Chair. Here goes Mr. Frank. Please unmute yourself.

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Could you state your name and spell for the court reporter, please?

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Yes. David Frank, D-A-V-I-D-F-R-A-N-K.

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Right. Do you swear for him to tell the truth, the whole truth, and nothing but the truth?

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Yes.

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Proceed, counsel.

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Thank you, Mr. Chairman. And David, are you a principal in the Royal Izakaya restaurant?

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Yes.

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How long have you been involved with Royal Izakaya?

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About 12 years.

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And did Royal Izakaya ever offer pickup or takeout service prior to the pandemic?

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No, we did not.

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and why not? I was never part of our business model. That wasn't something that would have been

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operationally very difficult, and we weren't really interested in doing takeout. We wanted

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to focus on the guests inside. And why did Royal Ezekiah offer pickup and takeout service starting

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