Based on those calculations, our height is 35 feet.
and i think it's either i can't read my notes five inches or 35 and a half feet but we you know if
if i could just interject at this at this point i mean the city again this is the case that is
the appeal against lni that is an appeal from the refusal the city agrees that there is currently
no other challenge to the refusal there's no intervention by mnc so you know i mean if mr
knockamson wants to go through that that's fine but it seems like we're we're talking more about
the variance case right now than than the appeal against l and i and i understand that it it's
going to be difficult to separate those two things for all kinds of reasons but yeah yeah i agree but
i i it's not because i agree just to keep things straight i think we should concentrate on l and i
i mean i know you're talking about let's let's talk about l and i and the permit issue i think
That's OK. And then so we're going to get to later. We'll get to the other case later.
OK, so so our argument is this. First of all, I think that the the notice or refusal should be deemed moved.
Right. We're only we only get a refusal if we have more than fourteen hundred square feet of earth disturbance.
Well, as this earth disturbance letter states, that was signed by Andrew Menno, in which I shared with Mr. Reuter before.
signed by Andrew Menno, in which I shared with Mr. Reuter before the hearing,
he states that the earth disturbance that exceeded the 1,400 square feet has been put back and
restored in its original condition. So if you look at it from that point of view, we don't have earth
disturbance now of more than 1,400 square feet because anything that went above and beyond the
1,400 square feet has been restored, and it's an original grading condition. So that's the first
thing. The second thing is there are two legal doctrines. There's the legal doctrine of variance
by estoppel, invested rights. So the doctrine of variance by estoppel is this, and invested
rights as well. We detrimentally relied upon representations or documents which made us
conduct ourselves in a way where we have a technical refusal under the Philadelphia Zoning
Code. We were directed by the city to make this property safe for not just us, but the neighboring
property owner. We have a make safe permit, which again, endorsed the use of the property.
So now the city's like, okay, we required you to go above 1400 square feet to make it safe.
But now we're going to make you now go back in time and get the zoning permit.
As the board knows, the zoning permit is the foundation of any building permit.
You can't get a building permit unless you have the zoning permit, right?
So by giving us the make safe permit, they actually legalized what we were doing from a zoning perspective as well.
So by the doctrines of variance by estoppel and vested rights, we detrimentally relied on assurances by the city by way of a make safe permit.
We did that work. And no point did the city then tell us, oh, wait a minute, you got to go always back down to L&I for the zoning permit.
And, you know, and, you know, again, from a notice of refusal standpoint, usually you have a vacant lot.
You'll see, and I'll show you from the pictures.
Hold on, I just want to take a picture.
This is an existing building structure.
Like the only thing that's stopping us from completing it is to make sure we just, you know, I guess, dial our I's or cross our T's twice because we already have a zoning permit and we already have a building permit.
Everything has been blessed by the city.
We have a stabilized structure, not just ours, but the neighboring property owner where, again, this is what we did to the neighboring property owner.
We completely changed it, improved it.
And so we're in a situation now that if this board does not grant our appeal against L&I and as well as and or our application for appeal, we have a building structure here.
The situation could be a lot worse. Are we to now demolish that building structure on a steep slope, which is going to create more havoc, not just for my client, but the neighboring property owners?
You know, so for those reasons, if we're just focusing strictly on the appeal against L&I, I think that this board should grant the appeal against L&I based on those legal and factual grounds.
Okay. Leonard?
I'll share my screen now.
Sure. I didn't know if Mr. Nockamson was going to introduce any witnesses or put on any testimony or have them adopt any of that testimony, or are we still just in the argument?
phase i think we're in the argument phase of um the okay sure so um the city's position again i
think on 90 of the relevant facts the city and um mr knockamson are on the same page uh you know
with with respect to the chronology zoning permit uh application was submitted i think at the end
of 2022. The permit was issued, I believe, the beginning of January, which called at that time
for 1,054 square feet of earth disturbance. There were a couple other things that are probably
relevant. I don't think Mr. Knockinson would disagree, but there was a violation that was
issued early on in the project for proceeding without the approval of L&I. That was, you know,
essentially became sort of moot because then they just notified L&I that they were starting the work
and the work commenced. Sometime during the work on the property and doing the grading of the
property, there was also a violation that was issued because the bracing that had been called
uh because the bracing that had been called for uh for the sidewalls of what they were excavating
had not had not been installed i believe at the time the contractor indicated that they were
unable to install the bracing or there was some issue because there was bedrock and they weren't
able to install the bracing uh and also we i believe the uh excavation uh had also been
uncovered for time uh nevertheless i think it was at the end of january around the 25th or 26th of
january maybe a little couple days here there around there uh the retaining wall in the rear
collapsed which mr knockamson has already addressed um and what came down with the
retaining wall was the patio that was was rebuilt um and you could see from mr knockamson's photos
that you know the property behind them which i believe is on fronts on terrace uh is very high
much much more above them i think probably uh at least 18 feet or so something like that
because this is very steep slope on the on this side so at that moment the city went out and then
issued of course an unsafe violation and it was really an emergency situation because of the
geography of the location and the precariousness of the property that was then on on terrace
uh mr notkinson's client did respond quick uh with in a timely manner they submitted a permit
application uh to get a what a make safe permit basically which is just a permit uh that allows
you to uh address you know dangerous situation i should note and again i think mr notkinson
would not disagree that this entire project, because it was on a steep slope, had required
engineering services throughout from the beginning of the project.
So this had always been under what they call a special inspections
regime, which requires there to be an engineer
monitoring the progress of the work. So at any rate, they
obtained an engineering report, and
in the report was submitted with the permit application
and the make safe permit was issued and they did the work uh i think where we disagree or at least
we think there needs to be some testimony on is whether the additional excavation work itself was
in fact required to make it safe if there you know is was there a choice uh and that's what we we
hadn't heard so the city's position is like the make safe permit is issued and typically because
the nature of a make safe permit and the situation is uh to respond to an imminent threat to public
safety those are often issued without requiring an underlying zoning permit it doesn't mean like
you get a free pass it just means we need you to get that work done we'll worry about the other
issues later uh in order to protect the public so in this instance they did the work it it did
I believe, involved the additional excavation of around 300 and some square feet, which
then put them over, I think about 350 some square, I forget exactly the number, which
put them over the 1,400 square foot limit.
So they received a violation for exceeding the scope of the existing zoning permit, and
they were directed to then file for an amended zoning permit, which again, Mr.
Nockamson's gone over that, and the amended zoning permit then, because the total excavation
was 1,400, was over 1,400 square feet, I think it's 1,486 square feet, that the planner
at City Planning, Mr. Aaron Hawley, who's here today and is able to testify, that could
not be approved by City Planning.
uh that then generated the refusal uh miss mr not uh mr notkinson's firm appealed against l and i
first and then subsequently sought uh sought a variance um and again that's that's totally
their prerogative it's that's to do that uh obviously they could they could have sought
the variance and then challenged the refusal through the variance but uh matter but that's
that's neither here nor there so um again we largely agree with the facts i think what the
city's the city's position here though is that uh the 1400 square foot limit is a is a bright line
there is no uh there is no discretion uh with planning to uh to go ahead and stamp their
approval for that uh and again mr holly could testify that um if for instance like you let's
say you were building a property and at the end of the day you only need to have like a graded
you know an amount of the property that's graded level at say 1200 square feet but in order to do
the 1200 square feet like you need to get your bulldozers back there or excavators and do this
that and the other thing you're actually during the construction going to move more than 1400 square
You're actually, during the construction, going to move more than 1,400 square feet.
The total amount of earth disturbance that is required by the project is what triggers the review and triggers, in this case, the denial by planning and the ultimate refusal.
It doesn't matter if your ultimate construction is only going to have 1,200 feet that's graded.
If the construction process itself requires there to be more than 1,400 square feet moved, you need to go through this process.
You need to go through the steep slopes review.
Again, Mr. Hawley can address that.
And the reason why is because it's built into the zoning code.
The whole steep slopes provisions and the overlay are built into the zoning code because it's an engineering problem and it's a public safety problem, and that has to be addressed.
So it's the earth moving itself that is the trigger.
It's not the use to which that earth moving is put to.
So in this instance, we understand and we appreciate the fact that
the additional earth that was moved has,
and they've submitted an engineering letter attesting that that earth has been put back
and they are now presumably back to the final number of 1,054 square feet
that has been disturbed, quote-unquote, permanently.
But again, it's not permanent earth disturbance that is reviewed.
It's the total earth disturbance that is required by the project.
So again, it's our position that we had no choice but to deny the approval
for the additional earth moving.
With respect to whether it's a vested right,
again, I think the board can take into consideration
all the documents and materials that Mr. Nockmson's presented
in making a determination about whether there's a vested right there.
Again, it's our position that the issuance of the make-safe permit
by itself doesn't vest the right in the zoning permit if the board chooses to you know again
look at the totality of facts and make a determination you know we'll defer to the
to the judgment of the board on that um but again we don't we don't believe this is a case of vested
rights we don't we because the make safe permit you can't have a situation where the issuance of
a make safe permit can give people a free pass i mean obviously we're not saying that somebody
would deliberately try to cause the collapse of a retaining wall just to somehow vest a right in a
permit but by the same token you know there there could be other issues uh you know involved i mean
certainly if the if the 350 if the 300 plus square feet that was removed was not put back
then again they would they would clearly need to uh move forward with the variance the make safe
permit wouldn't give them the ability to change the underlying footprint to the building that
they had originally sought. So at this point, I, again, I don't know if Mr. Knockinson's going to
go back and introduce his engineers and go over some of that, or if you just want me to have Mr.
Hawley adopt my testimony or add any additional information that you may want. I think at this
point, why don't we have Mr. Hawley adopt your testimony? Is that all right, Mr. Knockinson?
i have no objection yeah why don't we do that
sir could you state your name please and spell for the court stenographer
yes good afternoon my name is aaron holly and that's spelled a-a-r-o-n-h-o-l-l-y
do you swear or firm to tell the truth the whole truth and nothing but the truth
yes please proceed counsel uh mr holly uh first just what's your title for the record
I'm a city planner as part of the development review division under the planning commission.
Okay. And were you the person who did the steep slope review for the permit application that's
before the board right now? Yes. Okay. And did you hear the recitation that I just gave of the facts
from the city's perspective? Yes, I did. And do you believe that that recitation was true
and accurate to the best of your knowledge? Yes. Okay. And would you adopt that as your
own testimony i would okay thank you uh if board if you have any other questions for mr holly um
i don't have any questions uh no i do not okay um questions for mr holly from the board
no chairman no sir questions for from our attorney hillary emerson
not at this time mr chair um mr knockerson are you pretty much you've presented your case
well i mean i still have mr looney and mr garcia in the virtual audience who are fact
Well, I mean, I still have Mr. Looney and Mr. Garcia in the virtual audience who are factual witnesses, but I want to respond from a legal standpoint to Mr. Greiner's argument.
Again, as I started my presentation, the notice of refusal is a moot document because we do not exceed the 1,400 square feet of earth disturbance because we're, you know, again, and we're talking about the difference between 1,400 and 1,486.
That's the 86 square feet of earth disturbance.
It gets us over that hurdle where we now need, technically, if we started from scratch, like ZBA approval.
But we have a letter from the engineer which, again, confirmed that the earth disturbance has been restored to its original condition for that portion, that 300 and so square feet.
So we're not over the 1,400 square feet anymore.
And that earth disturbance and all the work that was done by the Make Safe permit was approved, reviewed and approved by L&I. So in that sense, they agree as well that, again, that the work was necessary to go over there above that certain amount, that at no time did they ever tell us that this would cause a refusal, but they also approved the work.
And there's been no indication from LNI that that work has not been done in accordance with the Make Safe Permit, engineering standards, and that the earth disturbance that exceeded the 1,400 square feet, that there's no indication from LNI objecting to the fact that that earth disturbance has been restored to its original condition.
And for that reason alone, the notice of refusal is inappropriate under the circumstances, especially since we provided the City Planning Commission with an earth moving plan.
So I would ask Mr. Looney to virtually raise his hand because he's the one who prepared the earth moving plan that was reviewed by City Planning.
Hi, sir. Could you state your name and spell for the court stenographer?
My name is Paul Loney, P-A-U-L. Hello, N-I-U.
Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?
Please proceed, Mr. Nockamson.
Yes, Mr. Loney, in our package of materials is an earth moving plan that was prepared by your company, Aqua Economics. Is that correct?
That's correct.
um if i could just interrupt very briefly uh to the extent that um mr knockinson may be
introducing mr loney as an expert witness uh the city is very familiar with mr loney for many
years the city will stipulate to his expertise so you can skip over any of that stuff thank you
thank you and just as a matter of background mr loney i believe also worked for the city at one
point has a significant history with this a so i think he's more than qualified um but um so with
your with your earth moving plan it confirmed that the field conditions matched uh what was
presented to lni uh by way of the building uh permit plans as well as the zoning permit plans
is that correct that's correct i don't think i have any other questions could i ask just one
question? You most certainly can. Mr. Loney, nice to hear from you. Is it your opinion that the
additional earth moving of over 300 square feet was necessary in order to comply the unsafe
violation so i'm going to object to that question because we solely hired mr loney uh to handle
the earth moving plan i we it exceeds the scope of our but i think i'm going to allow the question
i mean that that was necessary out there to remediate the problem that was caused that's
all i can say that's that's fine thank you mr dockman do you have anybody anyone else
um not at this at this time for the lni um uh appeal against lni as long as mr reuter uh uh
stipulates that our press you know that the you know the plans that we submitted are you know
true and that within our presentation materials are true and accurate uh well we would stipulate
We would stipulate that the materials that are presented that are L&I records are indeed authentic copies of L&I records and materials that were submitted to us.
that the materials that are presented that are l and i record