the pool would be right where most of the people let kids off go to the pool right to the left of
Slocum, what they call Slocum Street, is the entrance to the playground building, the playground
equipment is right in that same area as well as a spray area, and people go in and go out,
go in and out to egress the field itself. It would be causing all kinds of, I think with that kind
of travel and things of that nature, would be causing all kinds of... Can you talk a bit more
about your concerns with the shading of the pool?
How that would affect the...
Well, it shades the pool.
In this day and age, I don't know if people feel
easy about having people looking down
into a pool of kids or whatever,
but leaving that,
it would sort of black out the sun
in the area of the pool where there's sunlight
on the pool and things of that nature.
In fact, they would consider, and they had
a special event for a pop-up pool
where people, you know, they actually had
booth chairs and things
that way for people to sit and read and things of that
nature. And I think that would be
an infringement upon
that activity.
I just think
that it would sort of be cutting out part of
the area. The area was
sort of set up. We're not on a big street
or anything. It was sort of set up as a community
situation, a community
pool. And I don't think they ever envisioned
when they built it to have something like
an apartment building sitting right on the edge
over top of it great okay uh thank you mr dixon those are all my questions thank you um um as i
told you i'm waiting i have to go right into a hearing for a um sentencing a homicide case thank
you i have a couple questions okay no i'm sorry that's okay no no no problem i just um i'm just
curious if you you mentioned that the pool would be in shadow um i don't know if you saw the uh
shadow study that your attorney um uh submitted into the record i i thought um
and um i'm just trying to pull that we're not we're not using a shadow study for okay but you
put it into the record um and you submitted that as evidence and i just saw it and i think it was
pretty clear um that during the months that the pool was open um there is no shadow on the pool
I just want to know if you saw that.
Okay, I started the shadowing study, you know, last time I did it, when we first had
the first meeting, I was a little more familiar with it than I am now.
If that's what you, if that's your statement, you know, I'm not here to dispute that.
I just, you know, my overall thing is that the shadow and the urban people are just looking
down on the pool.
I just have some issues with that.
Thank you.
yeah i mean i i just um the exhibit that um that council put on um it's 550 pages here but
there was a shadow study included in that um i believe it was um
let's see um
yeah mr dixon is not is not here to testify about the shadow he did he did testify about the shadow
though so i just want to the concerns that he has about the building shading the pool that's right
but not the exhibit specifically if i can just if i may um share my screen here and put the uh
study that uh uh that council put on the record here um this shows just want to be clear here um
Let's see, let's get to when the pool is open.
I don't feel comfortable with Mr. Griegos summarizing our...
I don't feel comfortable with Mr. Griegos summarizing our exhibits here. I would have
someone available to discuss this shadow study, but I don't think he is the person that we want.
Well, he put evidence on the record that...
I mean, you're not the person that we want representing the exhibit.
If you want a witness to testify and explain the exhibit, I can arrange for that.
Well, that's fine, but he did testify that the pool was in shadow, and I'm showing here July 1, 9 a.m., 11 a.m., 3 p.m., and at 5 p.m., you know, based on, you know, the sun rises in the east and sets in the west, this building from your shadow study would not have shadow in the summertime when the pool is open.
That's just July 1st.
Okay, and here's August 1st, and then here's September.
September. And then I guess September 1st at 4 p.m. there is light shadow but I believe after
Labor Day. And at 5 p.m. the entire pool is shaded there on September 1st. At 5 p.m. and
at Labor Day I believe the city pool is closed. So I just wanted to put that on. And also I just
wanted to ask
Mr. Dixon
if he was aware, if he saw the plans
that the Slocum Street entrance had been
changed and removed
so there is no
ingress and egress on our revised plans
on Slocum Street.
But there's
egress and ingress on Chu, am I correct?
Just on Chu, correct.
Just on Chu? That still doesn't cause a problem.
If you've seen how those streets
to sit up it'll cause a problem because really um where you ingress and egress is really the
other side of slogan street that street empties right into that would empty right into that
building it's not a continuous um street in that sense but again i'm not there to argue
i'm just there to give you what my views are okay now go to my courtroom
i have no more questions thank you sir thank you thank you mr dixon
another witness yes i have one more witness uh mr kevin smith
mr smith has been allowed to speak madam chair
and mr smith can you put your name and address on the record spell your last name my name is
kevin smith my address is three zero uh smith smith my address is three zero one east vernon
road philadelphia pennsylvania 19119 you swear for me to tell the whole truth and nothing but
the truth yes thank you you may proceed miss hyman okay great um so mr smith can you tell
us where you live and how close your home is to the 6717 chew avenue site sure uh i live uh
well my house is the adjacent property to 6717 i live um right on the corner of chew and vernon
Okay. And if I may pull up some exhibits. So is this, this, which has been marked exhibit
14, is this a fair and accurate representation of your home?
Can you see that? I'm sorry. Okay. And is that your house here on the left side with
the with the red detail on the windows yes that's my house and now i'm gonna pull up what's been
marked um exhibit 13 is this the back of your property here yes okay um
and how far is your house set back from the front of your house how far is your
the front of your house set back from the street um it's about 50 feet from uh vernon road and
25 from Chewass. Okay. Um, and how tall are the buildings that are around your house? Um, all of
the buildings are two stories. Um, my house included even, I think that apartment building
across the street is two stories. Um, everything's about the same height for the most part. Okay.
And, um, can you tell us how far is it from the back of your house currently to the
exists to the to the wall um that's that's the closest side of the existing building on the on
the lot currently sure so uh from that wall from like the property to my fence is about 30 feet
to my sense, is about 30 feet, and then it's like another 40 feet to my back door.
and then it's like another 40 feet
Thank you.
Okay. And have you had an opportunity to review the proposed site plans?
So I'm just going to pull up those plans, which have been labeled Exhibit 12.
So this is your house over here, is that right?
Right.
okay and so how far back would um what would the distance be from your property line to the
proposed to the proposed building uh so it looks like zero like there's zero setback there like it
would basically be like right on my property line okay like maybe like even like impeding on my
fence i don't know what that's about um and given that and given the height of the proposed building
what are your concerns about the shading of your property so um for one we use like a lot
of natural light in our house for just warmth we have plants we grow vegetables um that sort of
thing so uh something like four stories like towering over the houses um it would actually
be a pretty big disturbance to like our everyday life essentially um not to mention like the
concern of privacy with like windows looking into our backyard part of the thing about uh
that fence so i don't know if you can see in the other picture if you go to like the previous
exhibit my backyard that fence uh i have a deck in my backyard and on that deck we actually have
built like an additional fence a portion of it was knocked down with the hurricane last year
or a couple years ago but even still facing that back property privacy is a concern so we actually
had a fence built on top of our deck um so yeah it feels like it'd be invasion of privacy in
addition to like losing all of the light that we use for like our garden boxes or our vegetables
all of those things um i think if we were like referencing the shade study uh we even know we
like removed it last time but if we were bringing it back up this time uh my house is actually
like in direct shadow of that building for the majority of the year um which would be a problem
honestly okay all right great those are all my questions for mr smith thank you i'm just going
to ask you're aware that there's no dimensional variances on this site that even a ca1 building
could could be this um massing this height i'm sorry could you repeat that there's no variance
for height or side yard there's no variance for height or side yard on this building that's
correct and what the developer didn't apply for one or as in that it's permitted as of right the
We're not here discussing dimensionals, dimensional issues, so you can build a by right building that size. Be aware of that.
I am aware of that. From what I'm understanding, though, if you build a building that large, you still have to have a setback from the neighboring properties.
I don't think that's correct, but thank you.
You don't think or you don't know? I'm just curious.
No, it's not correct. Sorry.
I have no further questions.
Then I just have a brief closing.
So members of the board,
Madam Chair, as Pennsylvania appellate courts have stated and made clear, their applicant
here has a heavy burden to demonstrate a substantial, serious, and compelling need
for a use variance. They have not met that heavy burden. The applicant has failed to demonstrate
an unnecessary hardship justifying a use variance, and the Marshall Court told us what an unnecessary
hardship is. Marshall states that an unnecessary hardship is established by showing, one, the
physical features of the property are such that it cannot be used for a permitted purpose,
or the property can be conformed for a permitted use only at a prohibitive expense, or that the
property has no value for any purpose permitted by the zoning ordinance. None of that applies here.
what the applicant characterizes as a hardship a cleanup is totally optional under act two
they do not need to clean up the property they can opt in or out
They do not need to clean up the property. They can opt in or out. Nothing prevents them from
nothing prevents them from using the property
using the property as is, and nothing compels them to clean up. Even so, Marshall also says that
mere economic hardship is not enough, it's itself not enough to grant, to justify the granting of a
variance. The board has taken judicial notice of Act 2, and Act 2 is a voluntary program that
property owners can enter into with the state. After cleaning up the property, the property
owner receives a legal liability waiver. That's the carrot that the statute uses to entice owners
to clean up a property, but the decision to engage in Act 2 is purely an optional business decision
for the applicant to obtain a legal liability waiver. No statute, no regulation, no authority
mandates that the applicant pay one penny. If the board accepts this as a hardship, it is minimal.
Let's talk about what the costs actually are. The applicant has inflated the amount of this
optional expense. He commissioned a report with big numbers, but never presented this report. It's
never been provided to me or my clients. And the only report that we have seen is a 2019 report
that was referenced in the applicant's testimony. And we introduced in volume three, page three to
five, the report makes clear that the pollution on the site is limited to a small part of the
property. And it tells us that the pollution is not spreading. It isn't a threat to the neighboring
properties, and it is actually improving over time. That report estimates the cost to be actually
$86,000 to $96,000, which doesn't include the monitoring and reporting costs that applicant
has used in his estimate. Mr. Thomas from Audax testified that the applicant was aware of the
pollution on the site when the property was purchased, and that this was incorporated into
the sales price that was paid. He testified that he was aware of the location of the property
on Chew Avenue and that this was also incorporated in the sales price that the applicant paid.
And the applicant was aware that the site was zoned CA1.
Now, if the board believes there is a hardship, it is so minimal that a wholesale change to
RM1 is not the least modification to afford relief. The applicant now comes before you
saying he needs help from this board to make his eyes wide open, fully informed business decision
more profitable. The argument that his applicant is making that there's no commercial use of this
property, none, it's an extreme position. Mr. Thomas testified that he was aware of many
long-time commercial businesses on Chew Avenue just within a couple of blocks of the site.
His conclusion on the viability of the commercial use on the site is wildly speculative, fact-free,
and a biased opinion. Did we see any data? No. Did we see any reports? No. Did we see any work
papers? No. Did we hear about any of the methodology? No. The only thing we did see was that their own
expert testified that traffic would be increased with a commercial use, but you can't have it both
ways. You can't be totally economically unviable, but also create so much traffic and be so well
patronized that the traffic to the commercial site would be more than the traffic to a 33-unit
apartment building. So that's what their expert told you. Really, the only evidence that they
have presented is that this is a perfectly viable economic use. And you heard the testimony this
morning of Mr. Dixon about the uses of the pleasant playground by children, summer camps,
fitness classes for seniors. And you don't need to be a scientist to understand that a 38-foot