ZBA Hearing - June 30, 2021

tall building creates shade. And we know from common sense that the building is just feet away

from the public school where the neighborhood goes, the public pool, I'm sorry, where the neighborhood

goes to enjoy the pool and sunshine. And there will be multiple apartment windows overlooking

this public pool. And that's a lack of privacy and vulnerability to voyeurism to those that are

using the pool, including children, which burdens the use and enjoyment of the park pool by

residents. And you heard testimony also from Mr. Smith, and you've seen the plans that build this

tall building right up against the property line with zero setback. My understanding is the code

does require a setback, and this building will tower above the Vernon Street properties, casting

significant shade, harming the use of the enjoyment and the enjoyment of the Vernon Street

neighbors' backyards for gardening and other activities. The environmental cleanup hardship

is pretense and the appellate is asking the board to grant him a variance so that his business

decision to purchase the lot will be more profitable. And it doesn't matter for his

business decision that the use of the neighboring playground's facilities will be compromised

or that the neighboring houses will lose light and air and the vegetables growing in their gardens.

But the code is clear. It says that granting a variance, that the granting of the variance

That the granting of the variance will not substantially or permanently injure the appropriate use of adjacent conforming property or impair an adequate supply of light and air to adjacent conforming property.

will not substantially or permanently injure the appropriate use of the

It also says that the grant of the variance will not adversely affect transportation or unduly burden water, sewer, park, or other public facilities.

And again, mere economic hardship will not itself justify a grant of a variance.

A landowner cannot claim hardship when it purchases a property and knew or should have known that

there were restrictions on the use of the property. And evidence that a zoned use is less financially

rewarding is insufficient by itself to justify a variance. Therefore, we are asking the board

this morning to uphold the denial of the variance. And on behalf of my clients, I thank you for your

time thank you does the board have any questions no no i have um sorry i'm sorry i i just have

um a response if i may sure uh i mean i i i appreciate uh uh council's uh statement but i

think um you know a number of uh factual inaccuracies are there concerns and i do have

um john buzan um as a rebuttal witness um an environmental expert that can um testify to

um you know act two and to the uh requirements that any site like this um you know in order to

be financed no matter what the use we need to do a cleanup and we need to go through act two

so i'd like to call mr buzan well my understanding was that the appellant has

had rested. I had not. I had reserved my time and and you wanted to raise issues about environmental

which you did and I had. That was just my my closing statement. It's all contained in the

act. You raised it in Alaska. I would like to hear from your witness. I would like to hear from

your witness. Thank you. John Buzan is here.

hi sir can you put your name and address on the record and spell your name

yes uh john buzan uh b-u-z-a-n uh my address is 14 dale lane malvern pa 19355

you swear or firm to tell the whole truth and nothing about the truth

I do. Okay, you may proceed. Mr. Buzan, can you just tell us about your

profession and your professional credentials?

I'm a licensed environmental engineer. I've been in the environmental cleanup business

since 1991.

I've probably participated in hundreds of sites like this one, former gas stations.

My job right now is president of Comstock Environmental, and we still perform tank

removals, soil remediation, tank installations.

and uh you've testified in front of uh boards and townships before i have

um uh i think i submitted uh mr buzan's cv to um to sharon's letter counsel um

i'm sorry we're getting feedback from someone um yeah we submitted mr buzan's um uh

uh cv yesterday that sharon seleta oh i i didn't receive a copy of that i didn't even i didn't

know mr buzan was testifying today um well um you heard i i asked the board to qualify him

or consider him as an expert i would object to him as a witness

i would consider him a witness

um and i apologize in time and if i realized you weren't copied on that i would have floated

um so mr buzan um uh have you had an opportunity to review the um the historic environmental

reports and um the site yeah i reviewed uh two reports one from a company called emg in 2009

uh 17 and then brick house i believe 2019. and can you uh tell us about your findings and tell

us about what your estimated costs are in order to redevelop the site?

Sure. Both EMG and Brickhouse found

a formally closed underground storage tank still remain on site.

They didn't investigate what was in the tank, so there's some question about that.

They didn't investigate what was in the tank, so there's some question about that.

They both identified odors, petroleum odors, in the soil, below the tanks, and around the tanks,

and then both investigated groundwater related to petroleum compounds,

And they found several compounds related to gasoline, waste oil, possibly heating oil, and several of the borings and wells exhibited those compounds, which are regulated and above statewide health standards in the state of Commonwealth of Pennsylvania.

and

I reviewed it

I had some comments about it

I

I did

I would object again to him testifying

to a report he didn't prepare

Thank you

I'll continue

So I estimated

as I do for many

developers

what a good budget would be.

And I know that Brickhouse provided

about $170,000 estimate.

I object to him testifying about a budget.

He's here as an expert in environmental matters,

I believe.

Can you please continue testifying?

You submitted that report into evidence.

And so...

Just to be clear,

when you counsel your clients on environmental remediation, you also counsel on the cost of

cleanup? Yes. So you reviewed the Brookhouse numbers and you reviewed the findings and what

was your opinion now in 2021? So ultimately I agreed with what they suggested. I agreed

with the basic premise of their cost. Although when I looked at the data,

it looked like their estimate for soil remediation didn't incorporate about

600 or 700 cubic yards of soil that I would estimate is contaminated and is contributing

to the groundwater contamination issue. And I would also surmise, based on the data I'm reading,

that the soil would also reveal a potential vapor intrusion issue. Pennsylvania has vapor screening

values. The prior consultants didn't evaluate that. In fact, Brickhouse suggested that that

be looked into. But based on, again, the data that I'm looking at in the groundwater, the

levels of compounds exceed the vapor screening value in groundwater. So I'm assuming, I don't

know for sure, but I'm assuming that the 10 or 11 feet of soil between the bottom of the

tanks and where the samples were taken also exhibits levels of the compounds above a vapor

intrusion standard and therefore that needs to be investigated. I suggested in this letter for

budgeting that not only the soil that Brickhouse said would be removed, which was about 70 yards

of soil. I did a quick measurement. I assumed you would dig five feet around the tanks in addition

to the tanks and underneath the tanks and came up with 670 yards. So I added another $100,000

based on the cost of the soil and excavation and the backfill and restoration.

um so i added a hundred thousand dollars or 110 thousand dollars to brick house's estimate

um for soil remediation soil remediation and again because the samples were in the

they're in the water table i assume there'd be some de-watering so uh how about how about um

USTs, hydraulic lifts? Brickhouse included the removal of USTs and

hydraulic lifts. They didn't mention the oil water separator. But again, overall, I agree with their

numbers. They didn't specify in detail what the numbers reflected. But I, you know, as far as a

as as far as a pro forma you know i don't disagree with it and uh but but with the additional soil

pro forma you know i don't disagree with it

that they seem to underestimate they seem to only estimate about a truckload per tank

and again based on their own data it looks like there's there's at least 10 or 11 feet

between the bottom of the tanks and the contamination that they they identified so

So I added that to the estimate. I also, and it probably wasn't part of their scope, but

in their boring logs, I noticed that they identified fill materials, particularly from

the surface down to five feet. And I know in most cases, most people don't remove that soil,

but they didn't analyze it they didn't analyze anything from zero to two feet

the surface soils underneath the asphalt concrete and in the back back area

so i add another hundred thousand dollars for budgeting for potential soils exchanged there

those surface soils usually have metals or coal tar compounds or in a gas station could have been

subject to spills, overfills that they didn't have the shutoffs that they have now. And so we

commonly see contaminated soil in the surface. So it just assumed a full property scrape of two feet

and again added another $100,000. So again, they're unknown, but they're common.

So total, you had $206,000 for the underground storage tanks, hydraulic lift, soil remediation, an additional $76,000 for the ACT-II monitoring, and then you put an additional contingency for the surface soils to get to about $382,000. Is that correct?

that's correct and i didn't include some other things that that should be minor but uh should

be included there's still risk with um any kind of excavation uh the so it could be a little less

but it could be a little more i guess that's correct that's correct so if you're counseling

your client um with um residential and a park adjacent playground um would would you um recommend

against remediation or going through act two well i no i i would never recommend against a cleanup

and i i believe um again the groundwater condition is a reportable release and and would be

um possibly within act 32 or or other acts other than act two so uh that that's a legal question

um but no i would i would definitely want my client to achieve compliance and the uh as you

mentioned i think before i think anyone lending the money or any stakeholders in a property like

this would want them to have oversight from the dep and clean this up to make sure everyone's safe

and so even if it was um a ca1 use a medical use a restaurant use or a multi-family use

you would recommend the same procedures?

Yeah, the data exceeds the non-residential standard as well.

So I think either is required

and would be prudent to address in a similar fashion.

And your experience,

in order to get financing on something like this,

you're going to have to go through this process.

Objection to financing as his area of expertise.

So noted.

I don't think he's saying that's his area of expertise.

I'll just say you regularly provide your reports to lenders, and this is a requirement in your experience to lenders.

Yeah, for the record, I've worked for a lot of lenders.

I understand their requirements and their regulatory obligation.

obligation. Typically, at this point in time, you know, 30 some years after environmental

regulations have been put into place, the lenders are looking for a state regulatory agency to

approve the environmental on a site like this. Thank you very much. I have no further questions.

Thank you. Does the board have any questions? No. No. Is there anybody in the virtual

audience left to testify i have a quick uh just clarification question um mr buzan the the reports

Mr. Buzan, the reports that you reviewed, what kind of standard were they using to test the soil?

that you reviewed they were

Was it a residential or a commercial standard?

They evaluated both, I believe. I can check. And again, I know I evaluated both.

Did you visit the site?

No, I've only looked at it on this Google Earth.

fit. Okay. Did you conduct any tests of the soil? No. Did you prepare any reports?

I prepared a short summary. Okay. Okay. Thank you. Mr. Buzan, that's data. There's data in the

reports of what exists in the soil. Is that correct? Correct. So data is then applied to

residential or commercial standard of how it would be remediated is that correct correct so you you

basically say if there's a if there's a contaminant it's a part per million or part per whatever the

date is of what exists and then you from there um you determine what the um whether it's an

acceptable level or it's required to be cleaned up is that correct correct thank you okay we're

going to wrap this up the board has no questions all right planning commission yes i'm sorry we

have quite a few witnesses oh we still do okay we have um charles richardson from the council

person's office he can be he can unmute himself and speak great thank you miss sonkett

good morning madam chair hi how are you i'm well how about yourself great name and uh who you work

for charles richardson from the office of councilwoman cindy bass from 312 city hall

do you swear if i'm to tell the whole truth and nothing but the truth i do okay you may proceed

in the strongest possible terms uh councilwoman bass is opposed to granting a variance for this

project. The East Mountain Area Neighbors RCO has held quite a number of Zoom-based meetings with

the developer over the past year regarding this project. In February, the developer indicated that

they would return to the community with possible changes to their design,

and the councilman had actually hoped that they would rethink what they were proposing and work

with the community to come up with a viable use that satisfy both their needs and the community's

interest. But in April, when the developer returned with the revised plan, it was with

essentially the same design as far as height was concerned and with the same footprint as well.

The community had requested that they change the footprint to allow more of a setback between the

proposed building's perimeter and the near neighbors. The councilwoman feels that this

proposal represents a gross overuse of the land, especially in proximity to the playground.

She feels the proposed number of apartments at 33 is still overly dense and the traffic

generated by this building will likely dramatically affect the youth traveling to and from the

playground and the surrounding community as well. The community has continually rejected

this developer's proposed use of this property and as such she's requesting that the board

deny this variance. Thank you very much. Okay Madam Chair we also have available Kelly O'Day

please unmute yourself and wait to be sworn in.

I'm unmuted.

Hi, can you put your name and address on the record, spell your name, and I'll swear you in.

Thank you.

It's Kelly O'Day, old apostrophe D-A-Y.

I live at 301 East Durham Street in East Mount Airy.

I'd like to talk about the recent testimony we just heard on the excavation requirements as a

retired environmental engineer I'd like to point out there will be major excavation of the site to

put in the new building. Part of what must be considered here is the change in cost

if, in fact, the remediation is done versus what would be the normal excavation of that site.

Because in looking at it, you'll see that the oil underground storage tanks were all in the area.