it points you down to the provision right here.
It says detached intermediate lot, which is our property.
It says two slash eight each,
and then it includes section eight and nine.
so when you scroll down to eight as was read our property is semi-detached and so you scroll down
then to nine nine when you read it says 50 of the minimum semi-detached which would be four feet
it doesn't then say if if you don't then the minimum which is eight so then you end up going
back all the way to the top again to eight side with eight and nine and you read eight and nine
again so you're in this sort of back and forth as mentioned um our interpretation of this which
we didn't interpret l and i did was that it gave effect to both eight and nine which is why you see
the four foot side yards on our proposal which does not have a refusal and what is on the permit
um i want to mention about um ambiguity because if we all can agree that this is ambiguous and
confusing um the benefit both in the code and in case law is that it's to the benefit of the land
The benefit, both in the code and in case law, is that it's to the benefit of the land owner for the less restrictive use of the code in no situation. Is it to the benefit of an upset neighbor or a more restrictive reading?
It says in our code, and specifically the Philadelphia zoning code, it says, where the meaning of a restriction in the zoning code is ambiguous and the intent cannot be discerned through the usual rules of statutory construction.
the restriction shall be construed in favor of the landowner provided that the resulting
construction does not lead to irrationality in the zoning code so um accordingly if the board
is unable to harmonize notes eight and nine then and if both owners and appellants interpretations
remain reasonable the provisions are ambiguous if ordinary statutory discussion construction
does not resolve the ambiguity 142014 requires that the restriction be construed in favor of
the landowner i want to just mention the definition of ambiguity which is from a case that was in
front of the commonwealth court the commonwealth court and the citations to these cases are in
the memo of law so i will not read them to keep it brief the commonwealth court explained that
ordinance language is ambiguous when it is susceptible to more than one reasonable
interpretation or is vague, uncertain, or indefinite. So if the board does not necessarily
agree with L&I reading of it, which resulted in a permit with two four-foot side yards,
then it's ambiguous and it's to the benefit of the landowner. Before I allow my co-counsel,
if I missed anything, I just want to reiterate for this property in particular,
to the city's point, when you look at this site in particular, you have a 30-foot wide property
with that's 75 feet deep. The approved interpretation, which resulted in the zoning
permit, is two four-foot side yards with a 22-foot building. If we were to take the
appellate's interpretation, we've had two eight-foot side yards with a 14-foot wide building
envelope. That doesn't include walls. That's just the building envelope. So appellate's interpretation
would result in 16 feet of the 30-foot wide lot to remain inside yards, leaving only 14 feet of
potential building with, where the code admits competing reasonable interpretation prohibits
resolving the uncertainty through an implied enlargement of the restriction against the
landowner so you based on their interpretation you'd have over 50 percent of the lot would be
open space and yardage so in this particular instance if the board agrees it's ambiguous
it would be the four foot side yards which again ellen i did agree with and issued um the permit
co-counsel um very briefly well that's great go ahead i just want to add one one principle i think
would be helpful for the board to keep in mind as it's reading this code and that's that mr reuter
has now told us what l and i's interpretation is and this board has to defer to l and i's
reasonable interpretations they're the agency that's tasked with administering this code so
i just think that's an important point here their interpretation is entitled to death okay
you started to say something before yeah issue to wait to the end yeah so i think i mean mr reuter
just stated on the record that he agreed that L and I would agree that the strict reading of this
code would require two eight-foot side yards. That's not what he said. I think it is.
I can tell you what he said. He said he did say it, and sorry, it's your birthday. He did say it,
and he also qualified it and said, I think it creates a problem for this lot, to paraphrase.
Which I don't disagree, but that's what the variance process is for.
If the ordinance creates a hardship on a lot, then that's where this needs to go.
And by granting a buy-right permit, just because you don't think that the ordinance is doing right by a lot, bypasses the entire civic engagement portion of the code.
There's no RCO meetings. There's no discussions with the civic associations.
You're just given a buy-right permit, and there's no conversation.
So I think that Mr. Reuter is very good at his job, but I don't think he's allowed to legislate, right?
He's acting as a legislator right now.
He's saying, yeah, it says eight feet, but I'm just going to make it four feet.
And what that does, it makes it.
I didn't hear him really say that.
It makes it four feet, not only for this lot, but for every lot across the entire RSA 3 district, not just small ones, all of them.
And that's not what the code says.
okay thank you steve yeah i would just emphasize that um we're here
thank you yeah i would just emphasize that um we're here on on this is a buy right permit and
there is no ambiguity mr reuter clearly stated that the the strict reading which means a correct
reading of the of the code is that it requires eight feet he he then elaborated that he thought
that that was it would cause a hardship and misfortune to the property owner but that's
for this board to decide when it's properly if before you as as a as an uh an appeal from from
a denial by lni so uh that's why we're that's why we appealed against lni because this this basically
is the wrong way to do this process that that lni needs to to receive back this application
lni needs to receive the this this application back issue a refusal and then it goes through the
the normal appeal process but but by short-circuiting here it destroys the the whole the whole um
fabric of what we're trying to do rachel so i just want to object um so in uh the in steve's
and the appellants uh appealed that he did there was no mention of this new issue he's bringing up
where we need to go through a variance process you cannot add on issues you have to plead them
initially we have to have a chance to defend them so there's you mentioned the eight foot side yards
you mentioned the two-year rule you did not mention anything about circumventing the the
variance process for this case and also uh i would object to mischaracterization of mr reuter's
testimony the board heard mr reuter's testimony so if he wants to repeat it he can but and then
the the last uh thing i just wanted to you know mention is that again the there's from a court
perspective and legal precedent perspective you have to look at all and and mr fiscaldo beautifully
said is you have to give meaning to all the words of the statute and the words include
eight and nine it doesn't say eight or nine is it doesn't say eight or doesn't say nine if you're
you can't only cherry pick eight you can't only cherry pick nine has to look at eight nine and
eight sends you to nine and nine doesn't send you back to the chart so wait wait wait leonard sure
uh and again just to clarify a couple things uh first of all i mean i understand that the board
whereas in attorneys, but strictly speaking, this is art, at least right now, for the most
part, this has been argument, not testimony. And secondly, I don't want to repeat myself
too much here, but again, so first of all, it's not Leonard Reuter's interpretation of
the code that matters. It's what L and I did, and I'm explaining what L and I did, and what
L and I did is they made a determination. Again, maybe when I said strictly read, I should
mean the plain language plain language again i again we've made this clear to both parties here
both sets of parties that nine doesn't reference nine doesn't address the situation of a detached
property of a property that is in between detached properties even mr fiscal though agreed it does
it doesn't address it they so yeah a strict reading of if you just read that section by itself
you would say guess it's got to have eight foot side yards the problem is
note eight says when you're between two properties and you're facing the side yards of two different
properties whether those are detached whether those are semi-detached or fully detached you
have to go by nine so it's saying if you know you're red and blue you got to do what nine says
and you get there and nine only talks about blue, what's red supposed to do? That's the problem
that's here. So yes, nine by itself would appear to require eight foot side yards. The problem is
eight requires L&I to apply nine if the property's detached property. Again, they can say,
they can interpret what I'm saying, which is what they're doing. They're interpreting what I'm
saying and that's fine but what i'm saying is what i did and that's the that's what uh the the board
is supposed to be looking at it okay so this is this is a and i agree with um mr ferris this is
a purist with him well on this point oh okay what what that is this is a pure statutory construction
discussion i agree and and so um you need to you need to give import to all the words and so
where it says two eight foot side drives are required that's that's the default and eight
and nine are carve outs and so it's it's a funnel and it takes you down so it's so there's there's
four scenarios there's four scenarios that eight and nine allow in terms of how properties are
aligned there's there's two with semi-detached in the middle but eight strikes those out that
that says so you can't have that and then it throws the other two into nine where you have
says so you can't have that and then it throws the other two into nine where you have
Thank you.
detached in the middle and semi-detached or detached on the sides and then and then it
carves out one of those so the funnel gets narrower but it leaves one and that one is what's left in
in the in the in the chart where it's two eight foot side yards because otherwise that language
has no meaning and i'd ask mr mr reuter to if if every side yard is four feet and of course you
know, as you interpret it, why is it to say two eight-foot side yards? The language is there for
a reason. Okay, we don't ask questions. Yeah, but I mean, that's the question. Why is it there?
Again, this provision only applies when the property in the middle is surrounded by side
yards. So, it only applies in that situation. And I guess one would also ask, like,
I mean, the whole idea of this provision was to prevent what some people used to call twingles, where you would have half of a semi-detached property and forcing that to be on the boundary so that you would have a sidewall on the party line that would have no windows, and you see this weird situation now and then.
And this provision was intended to prevent that.
The problem is it's just between this eight foot, you know, this what side yard applies
and it's just a problem with the language.
It really, you know, I think for purposes of planning, whether it's eight feet or four
feet probably doesn't make a whole lot of difference, but it makes no sense for it to
be four feet in most instances like this, especially when the lot sizes for RSA3 are
typically not that wide.
I just wanted to respond to Rachel's argument that that I don't have standing and that and
that I didn't ask that my clients don't have standing and and that I don't have I didn't
I didn't plead the proper grounds for for the appeal in our in our in my appeal which
is in in exhibit uh two um it clearly states that uh in addition to the two-year rule which
we argued um that this um there was no lawful basis um to grant the second application it
was it was directly contradicts all the prior rulings by lni of the lni determination and
amended refusal so that's why this permit should be immediately revoked by the zba there's only
one way one reason why somebody would take an appeal against lni of a bri right permit and
that's because it was wrong to have a buy right permit so it's that that's um that's what we
argued and so we definitely have claimed that um so just for a point of clarification what i
objected to was you adding in a new argument about asking for us to do a variance i agreed with the
things that you already laid out here and I did not object to any of those things, just so we don't get off topic and I just want to.
comment on one last one last point I don't know how I don't have screen sharing again but.
But I think it's important if we're giving weight to all the words that if you look at
note 8B, it says, for lots founded on both sides by the side or rear yards of semi-detached
or detached structure, a semi-detached structure is not permitted.
Any detached structure must be constructed as stated in 14701 to B9, must be constructed.
not could be not if you want to must be and so that is the exact reason why it was 50 percent
of the full of the eight feet which gives you four feet the language is any detached structure
must be construed as stated in nine so there is no uh question whether you go to nine or not it
says it must be and so if we're giving weight to all the words must is as strong of a word
as anybody could rely on for this provision.
So I think we've heard from all sides of this, right?
Lynn, what I'm thinking about doing is a final,
maybe they give us a little,
there are final position papers, right?
Correct.
Maybe two weeks?
How long would it take to write up this case?
Two weeks is fine for me.
Two weeks is fine by me.
I'll actually be out for a while.
Could we make it three weeks?
We'll make it three weeks.
Because it's your birthday.
i mean it's your it's a belated birthday party right so we'll make it three weeks that it should
be in and then we're going to vote in three weeks i just wanted to ask len to um put her out there
is does l i just you didn't mention does l and i have any um plans to revoke the permit i think
Plans to revoke the permit. I think it's important if that that be mentioned before. Yeah, I mean, no, I mean, the department, you know, again, I think you laid out exactly where the department, we wouldn't, we wouldn't revoke. And I, I see where the two of you are, right? Right. So, well, Mr. Chair, we, we, we should get our clients to, to adopt our testimony so that they can, um, they can demonstrate that they have standing. I don't, I don't believe there was any testimony.
I think it's important that that be mentioned before.
I mean, there's only been oral argument.
That's right.
I mean, I don't, you know.
Rachel, Rachel objected to my client's standing.
I just wanted them to put that.
I understand the standing position.
So you, Grant, standing by my client?
We understand it.
And I don't want to bring people in
because this is really about L&I, what happened.
Right?
Okay, but they are here and they are willing to testify.
They're on your every word.
I'm sitting here watching.
So we'd like to vote on this in three weeks.
chair what to you wanted the papers in three weeks i think we should delay it more than okay
all right so then so the the vote will then be on september 16th at 9 30 a.m right and this is
closed this is we're done we're closed are those i'm sorry just first time i'm back since covid
are those those memos submitted by email in the portal how do you want those delivered
email's fine email to everybody all parties okay uh and what's the date for the board council
what's what's the date the board council later than the date they want to have the ninth
the ninth september 9th it would be three weeks out and then oral argument as ian indicated would
be the 16th which would be the next i'm sorry uh vote excuse me the vote would be the next week
the 16th. So thank you to everybody. Thank you. Leonard, have a good birthday. And as maybe
nobody else, everybody else knows, this is Steve's last day. Basically, he's retiring. And
well, we thank you for your service. You've been a very good advocate for your clients.
Thank you. Right. What a lawyer does. Thank you, everybody. All right. Thank you. All right. And
we have one more right that's right sir
all right oh that's right why you don't want to come back
let's see let me see here what what one do i have