projects? I do guess to weigh in on zoning interpretation. I do a lot of comprehensive
planning, some transportation planning, visualization of impacts of development on
municipalities and communities. For the state of Maryland, did you complete a transportation
project for the Department of Transportation? Chairman, I'm just going to object because this
is not the state of maryland that's not relevant we're asking uh i'm sorry but i thought you were
objecting to the fact that she has no transportation background yeah and it seems from what i'm reading
and what i'm hearing that she does have expertise in that field but not in this state or this city
oh traffic is traffic so we'll override that for the time being okay um so mr chair do we have a
Well, can we proceed with Ms. Templeton as an expert in this?
Thank you.
Ms. Templeton, did you complete a professional planning opinion for this project?
Yes, I did.
Was that the one dated August 25th, 2021 that's in the exhibit binder?
Could you describe the findings in the background section of your report?
Yes. So my findings were that the proposed development, which includes 60 apartment units and 18 two-family dwelling units with, I believe, 24 parking spaces, which is proposed to have access on Station Drive, which is a private road that is owned by SEPTA.
um uh station drive is uh essentially a service driveway for commuter parking and train station
um and it's also my opinion that uh the plan does not comply with all requirements of the
philadelphia zoning code and should have been issued uh refusals well that's um before we get
to that portion I just wanted to ask you a few questions on the the context for the project.
So your testimony is that the primary access to the property is via the private access road owned
by SEPTA. Are there any public streets that provide access for vehicles entering or leaving
the Mosaic property? No. In the previous design of the project was there a public street that
provided access? From what I saw, I believe there was access from Wayne Avenue via a flag lot.
But that is no longer available to the project at this point. Is that your testimony?
From the current project, I have not seen that. Okay. Have you determined, well, so now the only
way that cars can come in and out of the project is on station drive, which is owned by SEPTA.
That's your testimony. Correct. Have you determined whether or not SEPTA has agreed
to provide access on station drive to the vehicles driving in and out of the Mosaic property?
I have determined that SEPTA has not given. I object to that. I object to hearsay. Yes.
we're about to we're about to establish um let's get to that yeah okay sure um on what do you base
your conclusion that septa has not agreed to provide access to its road i have been copied
on two emails from septa officials saying that that an easement uh has not been issued
the easement issue has not been resolved. I'm going to show you Exhibit 7 in the binder.
I'm going to show you Exhibit 7 in the binder. And is the first email that you saw the one that's listed here from Tuesday, August 24th, 2021 from Jay Fox, the Deputy General Counsel of SEPTA?
Can I object? What does this have to do with additional variances or refusals?
Ministers?
um this there this what what this has to do with this has to do with the with the failure of the
of lni to issue or refusal on the basis that there is no authority um for this project to use the
adjacent plan the the plans you submitted require access to station drive in your appeal you stated
that there must be an easement granted in order to effectuate this plan lni reviewed the plan
did not have an easement recorded or any kind of a proof of an easement and they and they didn't
note it and that was improper on the part of LNI so that's one of our bases chairman that's
incorrect LNI I'm going to object it's not it's not your part to testify now I'm sorry
she's object she's making an objection let's hear her objection thank you but don't testify
Okay. Chairman, I'm objecting given his burden is to explain what variances. We do have L&I did in the documentation suggest that any easement or access easement needed to be provided before building permits.
so um there was no uh variance that needs to be requested regarding this we just have to provide
an easement agreement before we submit for building permits which is on the official
lni documentation that might be a better question for mr reuter i think uh mr reuter care to weigh
in uh yeah i thank you i mean again that's that's the the when an application is submitted um
that requires access to various easements or whatever that's that's the standard process is
that um for zoning permit purposes they'll accept the application but ms pritzker is correct and
steve masters is correct that if they don't get the easement then obviously that creates a problem
they're not going to be able to get the certificate of occupancy and they won't be
able to go forward with the construction if they the easement is a prerequisite for moving forward
But it did not have to be provided at the time the application was submitted.
If they do tend to go forward and they don't have the easement, that just creates a zoning violation.
So we would agree with Mr. Masters that they have to have the easement.
So presumably, if they never get the easement, then the project is dead.
But that's not what the board is hearing today.
So, yes, we don't disagree with Mr. Reuter's comments.
We're trying to give you a context to the board that the applicant, the developer, chose to abandon their plans where they had street access to Wayne Avenue through the flag line.
I'm going to object.
And they now are pinning the whole access on a private road that they have absolutely no authority at this moment.
um septa has not granted them any authority to to um to have their vehicles on on that lot so
that's the context um that we have we we'll go on to the um the parts of the of the refusal that are
that are missing um various um variances but i wanted to to establish that i'm not even sure
why we're here mr chair and members of the board because i'm just getting ready to answer quick
is not ready to go.
They don't have the authority
that they need to do this project.
Mr. Masters, that's in the refusal already.
Hold on, hold on, hold on.
Hello, hello, everyone.
Please, please try to identify yourself
so the court reporter knows who's speaking.
Mr. Savron.
Mr. Chair, I would simply offer
that that is already in the refusal.
There's no point in discussing
whether or not it's missing from the refusal.
That is stated in the refusal
as it currently stands.
I don't see that. If you don't have that permission, why? What are we? Well, is this based on a hypothetical?
Yes, as we are. And we're going to show documentation as to our work with SEPTA to this point.
But to Mr. Reuters point earlier, it's commonplace to not have the easement secured at the zoning board stage that is often wrapped up afterwards and is a condition of later approvals.
It does not have to be a condition of approval for zoning.
And I would follow up.
And again, just by analogy, there's a number, like, say, certain types of mixed income housing bonuses require an agreement with the Planning Commission.
require an agreement with the planning commission, but those agreements themselves
But those agreements.
typically would not be fully executed at the time that the zoning approval is granted that
incorporates the bonuses. Those agreements just have to be recorded by the time you get the
building permit. In fact, in most cases, they're not even required until you get the CO. So you
can do the construction, you just can't occupy the building until the agreements are recorded.
the same. So, you know, again, I think we're kind of getting off track here. I think everybody
agrees that ultimately the easement has to be obtained. It was it was referred to in the
refusal. So on that score, there's no error on the part of L&I. Mr. Masters wants to talk about
the overall environment of the application and the project. That's fine. But I just want the
board to understand that i don't think an error on the part of l and i is um is actually being
alleged with respect to the septa easement so maybe you know i think we are i think all of this
has been you know beat to death at this point so maybe we could just move on yes we um this is kind
of kind of like a um i mean it's a hypothetical obviously and it's like a work in progress
uh in a sense from the apple on the applicant's part and how that may be uh received by the
community yeah it's it's it's a gamble on the applicant's part because they had a
thing and they and they chose to go with a route that they don't have you guys you guys are all
talking over each other can i say something please yes ma'am the court reporter cannot get an accurate
report if everyone talks over each other please identify yourselves when you speak and only one
at a time so the court reporter can get an accurate report thank you thank you and i hope
they listen to you because they haven't listened to me yet okay i have objections uh i'm sorry mr
reuter you are listening right uh i think i don't know was it rachel or uh brandon that made an
objection just then the objection mr chair is is i i request that we please move on we have a letter
from septa to show you when it is our turn to do so so we are really jumping the gun here that's
all i was to say okay all right uh i'm ready to go on mr chair sure uh miss templeton can you
describe the two opinions in the professional planning opinion section of your report?
Well regarding the code where there's no code compliance from section 14701 to a
general street frontage requirements for all residential districts which requires a minimum
street frontage for all lots in a residential zoning district. The code defines street frontage
as the edge of a lot that is contiguous to any confirmed street. Stationed drive as a privately
owned street is not a confirmed street. So can you describe how you arrived at your opinion
that the plans that were submitted to L&I violate the requirements of 14701-2A?
Well, again, this requires frontage on a confirmed street as defined by the code.
Station drive is not a public street.
It's a private street.
It is not a confirmed street.
So in your opinion, what should Ellen and I have stated in the refusal that's missing
at this moment?
I would state that the plan does not meet the requirements of Section 147012A.
regarding street frontage on a confirmed street.
Let's go to the next section that you noted
on your report on page two.
Is that table 14-701-2?
Yes, dimensional standards
for higher density residential districts
requires a 20-foot rear yard setback.
proposed development plan includes a retaining wall within the rear yard okay so we're going
to take a look at the plan so that you can show us what we're talking about here excuse me this
is sherry mr masters can i ask a question do all of your arguments regarding additional refusals
are they based on the argument that ellen i erred in treating this as a single lot for zoning
purposes under the unity of use. In other words, if it is treated as a unity of use,
where there's still additional, if it is treated as one zoning lot, are there still
additional refusals that you believe were required?
We are no longer maintaining an argument on the unity of use. We are addressing just straightforward code provisions that L&I fail to note and fail to issue the proper refusals.
We are not, we are no longer maintaining an argument on the unity of use.
Okay. And then so you are making your arguments based on treating this as a single zoning lot?
yes that's that was the plans as submitted no i'm sorry no we're we're making the arguments
based on the unity of use of two separate lots i thought that the unity of use was going to
treat it as a single zoning lot am i mistaken
it's two lots that have a unity of use and therefore it doesn't it's they're not using
this as a flag lot for the entire project there's now a flag lot and a separate um lot down here
Here is the second lot. That's a distinct lot called 6126 Wayne Avenue. And the primary score footage of this project is this large area that is 6134 rear dash 46 Wayne Avenue.
So those are not the two properties that are included within the unity of use?
They are.
Those are the two properties that are.
So isn't the purpose of the unity of use then to treat it as a single parcel for zoning purposes?
So that's what I'm asking you.
If you disregard that, if you treat this as a single lot, are the refusals that you're identifying still required?
I'll put that to Ms. Templeton.
If you treat these two parcels as a unity of use single lot, is your report still valid as to the code provisions that are missing from the L&I refusal?
I believe so.
We are going to go to the second one now, the section 147012.
I'm sorry to belabor this but it's the argument that there was no street frontage if these are
treated as a single lot is there no street frontage that's not one of the properties
that is included in the unity of use front on a public street is that on Wayne Avenue yes
this this um this is the corridor of the property that goes to wayne avenue and under the plans that
they that they've submitted the driveway ends at these trees and there is no vehicular access
from wayne avenue to to the only to the to the northwest corner of of the of the area that's
improved. Excuse me, this is Brandon. I'm not objecting to this testimony. I'm going to let
Mr. Masters continue. I just want to ask that the board allow us to bring on our own expert
and present our plan to rebut this, if that'll be allowed later. Thank you.
so we're talking about the a violation of the 20 foot front yard setback is that correct um
the rear rear yard setback
well they're they labeled it as the front yard setback oh okay well it's 20 feet regardless so
right there is a retaining wall within that so is this where i'm where i'm moving the cursor is this
the um and the arrow points to this is the 20 foot line from the from the property boundary is that
correct yes okay and the retaining wall that you are noting um is in violation of that let me try
to expand this here. Is that this thin black line right above the fence? Yes. Okay. And
is the retaining wall, in your opinion, considered a structure that could violate the 20-foot setback?
I believe so, yes.
And on what basis do you make that opinion?
Well, I know that the code exempts fences from the rear yard.
Retaining wall is, it's a structure because it has a function of, it's more of a permanent structure that is designed to hold back.
It's more of a permanent structure that is designed to hold back soil for structural purposes.
When a retaining wall is constructed, does it require engineering plans?
And does it require a permit from the city?
I'm going to object. This is Rachel Pritzker. We're talking about zoning, not building.
And I would employ Mrs. Templeton to look at the exemption section of the code where it specifically talks about retaining walls and that they're considered exactly the same as fences, as long as they maintain the same height requirements as fences.
And any testimony about engineering or construction of a retaining wall is irrelevant for an L&I appeal for variances and additional refusal.
Objection sustained.
all right so so miss templeton your testimony is that this retaining wall is within the 20-foot
setback and it and it should have been it should have been issued a refusal by the
chairman i'm going to again object because uh again the code explicitly states in the
exemptions provision i'm objecting to this this is testimony mr mr mr mr mr mr let's hear her
objection and then you can weigh in please okay my objection is that the retaining wall
as per the code which i'd employ miss templeton to look at is uh treated as the same as a fence
and is allowed to be in a setback as long as it maintains the same characteristics from a height