civus
Hearing video

ZBA Hearing - August 19, 2026

Philadelphia Zoning Board of Adjustment (ZBA)Aug 19, 20266h 49m

If you have three lots lined up together in RSA 3, you can't, by footnote 8, you can't have a semi-detached in the middle.

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So that leaves two scenarios.

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You can have semi-detached, detached, semi-detached, which 9 speaks to, or you can have detached, detached, detached.

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And that's not addressed in 9.

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So, by default, you're then thrown back into the language of the table, which says, in

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RSA 3, unless 8 or 9 apply, and which they don't in this case, because you have three

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lots, all with single-family detached houses on them, you must have two 8-foot side yards.

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The plan that was approved by L&I at tab 6 allowed two 4-foot side yards.

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Our position is that they misapplied this provision of the code and that four-foot side yards are not permitted and eight-foot side yards are required.

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Okay.

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I'm sorry.

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I meant to also point out at tab seven, which I'll get to in a second.

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Give me a minute.

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at tab seven there's a widget if you will on atlas that's fairly new i guess but what it what it does

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is it's called the zoning summary generator and it's you know the department of planning and

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developments uh uh widget and it's and if you go on atlas on any property and you can pull up your

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own property any property in in in the city you can click on the link and it'll provide you with

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a summary of all the zoning ordinance provisions as they apply to your property and so this is the

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zoning summary generator for 109 hilltop okay and it and it and it shows

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that the minimum side yard depth required on all non-attached sides is eight feet thank you thank

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Thank you. Steve, we're just going to object to that exhibit because the use of the summary generator, this document expressly states that it's not legally binding.

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It does not represent an official opinion by the city.

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The enacted zoning code is what controls. So this is just sort of the illustrative exercise with this, and it's not legally binding, which it discloses itself.

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can i agree that the court the board can take it for the way that it gives i agree with you okay

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steve um now i know you will but please try not to repeat anything

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please try not to repeat anything like that's the same as what the other attorney did okay

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like that's the same as what the other attorney

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yes i i had i had the same idea mr chair oh well that's good we we agree

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yes i i think we we should agree a lot um so i wanted to share my screen

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okay

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um i anticipate that there's going to be some objections throughout my my testimony today um

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exhibit one is the challenged um

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BUY RIGHT PERMIT THAT WE'RE HERE FOR TODAY.

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THIS BUY RIGHT PERMIT IN THE PLANS SHOWS THAT THE SIDE YARD IS ONLY 4 FEET AND IT'S SITING

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A SECTION OF THE CODE NUMBER 9 BEFORE THAT MR. FUSCADO HAS ALREADY ADDRESSED.

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exhibit three um is the original um application for the first uh application in this matter this

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is going to be objected to by by opposing counsel um the reason that i'm i'm bringing this up is

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because before you even finish but go ahead yeah i i know she's she's kind of anxious about it but

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but maybe but maybe i can put a little bit of words in there so this is the same this is basically

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this is the same property this is the same owner he's allowed to put on testimony about i i'd want

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to hear it first and then i'll give you a shot right okay so we hear this is the same exact

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property this is the same owner um it's the same uh attorney for the owner and uh

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In the first iteration of this project,

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there were some refusals that were issued.

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Initially, there were two refusals issued

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and there was not any dispute as to those two issues.

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But there was a question as to why wasn't there

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a refusal issued for the lack of eight foot side yards

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and why was four feet side yards allowed

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since this was all detached, detached, detached.

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It should be eight feet. So my colleague issued a question to L and I to clarify what is the meaning of this code section.

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We're at the point. Go ahead.

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I want to object. So the matter that we're in front of the board today is a matter against L and I for the by right permit that was issued any prior application that was not appealed in front of this board by Mr. Masters or Mr.

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fiscal or their clients is not in front of the board today so it's irrelevant whether i was the

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attorney or anyone else was the attorney or that it was for the same property what mr masters and

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mr fiscaldo could have appealed that refusal same proper procedure within 30 days that was not done

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so what this hearing is about is the buy rate permit was issued so anything that went on in

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a prior application is irrelevant so can i explain mr mr chair very clearly we're here as to whether

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l and i made a mistake when they issued a buy right permit that's the issue here and we can

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look and see what did l and i do to to the same property go ahead so it was a different application

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for a different set of plans with a different plans examiner at a different time it's the same

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plans examiner so i agree with her i agree with her okay all right so why don't you continue and

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go on. All right. Um, the summary, um, the summary, uh, generator, uh, is clearly states,

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there's no ambiguity. The summary generator states that it understands the minimum lot width

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is 25 feet. But that's the one we talked about. No. It's not legally binding. Is that correct?

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Well, yeah. Yes. There, there, there is a disclaimer. On the other hand, um, we're going

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to hear um shortly from uh mr mr reuter for the city and i'm going to argue the same thing that

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he i just want to put on the record that mr reuter does not speak for the city of philadelphia he

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does not establish he he does not establish what let's go back to this is not legally binding i

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understand that so that's not legally binding so why don't we move on and tell me where you want

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to go next yeah we'll get leonard will come on once you're done okay i'll just say it looks like

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he wants to jump in here well in in in in our in in in the um in the applicants um

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In the applicant's exhibit binder, there is a letter from Mr. Reuter to Rachel Pritzker, basically asserting certain interpretations of the zoning code.

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Mr. Reuter also had a conversation with me, along with another-

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Basically, I can object to all of this.

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Yeah, you can shake his head no as you're talking.

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Well, attorney, you know, there's work product, there's settlement discussions or discussions in the nature of settlement discussions.

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All of that's clearly privileged, and the city would strongly object to it.

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I'm not going to disclose things that are privileged.

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I thought you said he told you.

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He did. He did. I want the board to know that there's ways to impeach your testimony.

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but but um i want the board to know that uh that mr reuter has given two different opinions to two

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different people on hearsay so the two different opinions one was before we're not going to go one

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was one was to one was was before this this application so and now and now the one that

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was current was the one where he said that he agreed that that it was eight feet again we're

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object to hearsay and this is irrelevant steve yeah move on please i'm not we're not going to

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go back there um okay

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we have um a group of photos showing the um how the the character of the block is is very wide

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side side yards um so this is 101 hilltop you can see um very yard very wide side yards on on each

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side yeah i mean i if if you would i think we want to concentrate on what a ellen i did right

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and that that's right we're here about so and i and i think i think you're i'm not going to call

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him co-counsel but your other council here he ran through and showed pictures of the neighborhood

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before so okay i don't think we need that so the the essence mr chair members of the board is that

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um there is no ambiguity here the the code is very specific that when you have when you have

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uh when you have all um all of the of the properties are completely detached

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there's a that that requires an eight foot setback and the code also shows that uh the the 25

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feet um minimum has been met here this this this property actually has more than the 25 feet

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uh minimum so it it clearly applies for that to the eight point setback there is no ambiguity um

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and uh um i i i i'm sorry to do this to len just because it's his birthday today but but um

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But here's the thing. I was an attorney for the city for 12 years. If someone asked me for my

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opinion, it would not bind me. You don't think the fact that you were a lawyer for the city for 12

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years is relevant? Okay. There are code bulletins that the city uses when they actually have

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official interpretations of the code that's the only way that the city can legally provide a code

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interpretation we all know that the board knows that very well back in the days of gene clinger

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that wasn't the case there were secret hidden files that were never revealed but now we have

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no hidden files so we're right now now now we have now we have a system yeah let's go back to

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l and i right what is it he had to say about that l and i has taken l and i has taken the position

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that this is an eight foot setback um required and that's why they and that's why they that's

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why they issued a refusal we're here and leonard's going to speak even though it's his birthday right

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and then we'll find out for the position that leonard has on his birthday i just want to object

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to the statement that he made so ellen i did not issue a refusal this is a buy right permit in which

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the plans provide for four foot side yards okay ellen and i did issue the refusal for the first

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application which was exactly the same property yeah okay all right all right yes all right uh

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so darian if we go with leonard first uh by the way we all want to wish you happy birthday thank

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you very much weird way to show it and if you would why don't you pull that a little closer to

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you we'll get that of course um so i the issue here and i think uh certainly with respect to

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all the permit application materials the site plans that were submitted you know well i think

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You know, I think everybody agrees that those are authentic and we don't need any testimony

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everybody agrees that those are authentic and we don't need any testimony about any of that.

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about any of that.

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So the question is, and I think also in terms of the dimensions of the property, the fact

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that the properties on either side are fully detached properties, again, I think we can

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all stipulate to those being facts.

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So the question is, you have, as Mr. Fiscaldo explained, you have a fully detached property

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property in between two fully detached properties and RSA, RSD3.

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So the question, I'm sorry, RSA3.

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So the question is, what does the code require?

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So again, 109, which is the property in question, is RSA3.

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It's bounded by the side yards of 101 and I think 111 Hilltop.

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Uh, both of those are attached structures. Again, I mean, the, uh, the detached structures, sorry,

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like I should put my glasses on. Right. So again, the code provision cited by Mr. Fiscaldo and Mr.

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Masters states that for lots bounded on both sides. So this is, uh, 701, 14701, sub two, sub B,

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uh, bracket eight. That's the note eight point B states for lots bounded on both sides by the

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side or rear yards of semi-detached or detached structures. So, again, this provision specifically

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cites detached structures as well. No, no, no, no, no, we're not doing that. We're not doing that.

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Semi-detached or detached structures, a semi-detached structure is not permitted.

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We all agree. So, in this situation, it has to be, this has to be also a detached structure.

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So, a detached structure must be constructed as stated in 14-701, sub 2, sub B, note 9.

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So, sub 14701, sub 2, sub B, sub bracket 9 or note 9, uh, applies to 109 Hilltop because

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it's bounded by side yards of fully detached buildings.

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note 9 says for lots bounded on both sides by the side yard of a semi-detached structure

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of a semi-detached structure any detached structure must be constructed with a side yard

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on both sides with it each with at least 50 percent of the minimum detached the minimum

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semi-detached side yard width required for permitted residential units so the problem is so in other

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In other words, if they, as Mr. Fiscaldo pointed out and as the diagram showed, if they were, if both of the properties on either 101 and 111 were, were not detached structures, they would have the four foot side yards, no ambiguity there.

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the problem is again they are detached structures so nine note nine on its face wouldn't apply but

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the problem is eight note eight sub point b expressly says that that has to apply it says

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you have to go if you are a semi-detached force detached structure you go by you have to go by

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note nine but note nine only references uh if there are semi-detached structures on either

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side so the problem is uh for l and i is that there is a l and i believes there's a conflict

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a strict reading and we agree and we've said this to everybody there's no ambiguity we've not told

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one person one thing and another person another a purely strict reading would be i guess they only

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they got to have eight foot side yards. The problem is that creates, for L and I, a problem,

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and given the fact that you can have a minimum lot width of 25 feet, 16 feet of side yards means

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that your structure can only be nine feet wide. So that's an absurdity, and the city's position

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is that you should try to interpret the code in a way that avoids absurdities and avoids a

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conflict. So, El and I made the interpretation that it's literally was just an error and that

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it should have said, because note eight applies to both semi-detached, references both semi-detached

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and detached structures, note nine should have also referenced both detached and semi-detached

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structures. It didn't. We admit that's a problem for what it's worth. You know, we're looking to

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address that but in the meantime because of the ambiguity or because of the conflict rather between

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those two sections and the fact that it could lead even here at eight foot side yards on both sides

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would limit this is a 29 foot 29 foot 20 29 30 foot wide lot you would have you know 16 feet of

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side yards then that would limit this property to what 13 feet which you know 13 foot property if

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you're talking about a center city or south philly row home it's still a little bit narrow for a row

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home but for uh an area that's you know rsa3 uh in this you know

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An area that's, you know, RSA 3 in this, you know, in this area where most of the properties, you know, obviously have pretty sizable, it just becomes impractical.

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So, again, it's the city's position that the plans examiner made the interpretation that emerged to the least restrictive use for the property owner, and that's the city's position.

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Again, we do agree that a super strict reading would require eight-foot side yards, but we believe that because that – the problem is because eight references both types of buildings,

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semi-detached and detached, but nine – note nine doesn't mention detached, that's a problem, and it creates the conflict here.

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Good thing.

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Right.

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Okay.

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Why don't – I think it would be easier – why don't we let the other attorneys go, and then we go to questions then, right?

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Of course.

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Okay.

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Rachel?

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You might want to get closer to the mic there if you could, which one is it?

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Hold that.

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A lot going on.

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I'm going to share my screen.

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So just for the purposes of the record, we want to preserve our object objection to appellant standing a request that each applicant establish the basis upon which he or she qualifies as an aggrieved person in Philadelphia standing to appeal a zoning decision is governed by section 17.1 of the first class city home rule act.

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the codes are in our memo of law which is attached as the supreme court pennsylvania supreme court

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has held that an agreed person must possess an interest at a substantial direct and immediate

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uh we want to make sure that each appellant identify on the record his or her relationship

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and proximity to when i held up and the specific interest alleged affected by the issuance of this

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permit the extent proximity is sufficient to establish standing standing and the merits

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remain separate issues so standing uh permits and permits an appellant to participate but does not

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establish the permit violates the zoning code um i want to just go through this same section very

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briefly um related to uh and neither attorneys addressed a portion of their arguments so i'll

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wait for for that to go through some of the other things you guys mentioned but um

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this i know that we saw uh views of this but just so we're clear this is 109 hilltop it's 29.9

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according to alicer 30 feet this is um mr fiscaldo's client's property um over to here

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uh 101 and then these two properties with one home on them are mr masters uh both are which

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double or three times the width of of this property just to go down to the code section

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because you don't you don't need to see the character of the neighborhood

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this is the buy rate permit the zoning posters that were on the property with the permit we've

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We've got through the plans.

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So again, just so that we put this on record,

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when you look at the chart 147011 for RSA 3,

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