civus
Hearing video

ZBA Hearing - November 3, 2021

Philadelphia Zoning Board of Adjustment (ZBA)Nov 3, 20214h 45m

and dimensional perspective as a fence you concur mr ministers um miss templeton does that does

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that statement by opposing counsel change your opinion at all? I guess I would ask to look at

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the section in the code that says that. You're not aware of that? I would if I could read the

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section. Okay. Mr. Chair, maybe if I could just suggest that we reserve this particular issue

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for cross-examination yeah thank you all right so noted okay we're gonna go to uh the um so

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can you describe ms templeton how you arrived at your opinion that the plans violate the site

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design requirements of section 14-703 5a.1 that section requires that each principal building

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shall have one or more entry doors facing invisible from an adjacent public street

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and the entry doors of the proposed multi-family buildings are not visible to a public street.

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I'm showing you a drawing that a rendering that appears on page 92 of the developer's exhibit

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binder and what are we looking at in this rendering? It looks we're looking at the fronts

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of the residential buildings the entry doors appears to be facing the parking lot and driveway

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the back building is facing station drive which again is not a public street this building you're

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saying is facing station drive where where my cursor is moving and then these two side buildings

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where where are they facing the parking lot and the driveway the access drive and in this in this

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rendering where is wayne avenue uh behind the uh larger apartment building in the back of the

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property so it's not it's not visible and it's all the way on the other side of this large building

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yes and under this code provision of 14-7035 8.1 where are these doors supposed to be facing

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they're supposed to be facing to a public street

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which would be wayne avenue would be wayne avenue yes in this case

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okay thank you you also issued an opinion that the private access road

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was not designed to accommodate the higher intensity of vehicular and pedestrian traffic

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that would be generated by this development. Mr. Chair, may I state my objection?

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In the letter, it is not clear how really anything beyond what we've just heard relates to any

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refusals. Whereas the prior arguments that Ms. Templeton has provided, there were code citations,

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there are not for the remainder of the letter. So I would like Mr. Masters to really bear the

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uh you know really bear the burden of pointing out what code sections the remainder of the

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burden of pointing out what code sections.

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arguments including this one relate to because if they don't relate to proposed refusals

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this is not the appropriate venue to talk about these things

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thank you

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um

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um whoops whoa let's get back to hang on a second um yes i i think that part of our expert report

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is more applicable to the second um hearing that we'd be having um where we would be opposing

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the um that the appeal of mosaic but there is one more section um of the report that i believe

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does apply to an error by L&I. Ms. Templeton, in your opinion, did Mosaic Development Partners

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correctly complete the Complete Streets Checklist that was submitted as part of their application

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to L&I? So I did not see a Complete Streets Checklist for the change in access to Station

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drive from Wayne Avenue. I real quickly object again, Mr. Masters, could you just provide the

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the potential code section that that would have led to a refusal needing to be issued under?

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Because it's very hard to kind of think through where you're going otherwise.

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This isn't the argument here, Mr. Saverin, is that the L&I plans examiner would have needed to

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either put a hold on the permit for approval by the streets department or would have had to note

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in the file that the streets department had approved the correct complete streets

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checklist. And in this case, the complete streets checklist that your client submitted

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was the prior iteration of this plan with the flag lot and a lot consolidation. And most of the

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provisions that are applicable to this version of the plan were completely missing and not filled

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out in the checklist. Therefore, L&I should have put a hold on this application for proper streets

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department review of a new revised complete streets checklist. That was not done. And we

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argue that that's a basis, an independent basis for returning it to L&I. That happens normally

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with a project where L&I will allow for something to happen, not having any information from streets

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department until such time that they get the good the green light to move forward with the project

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i mean that's that's typical i don't know if i'm explaining it right but it's not on i mean that's

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the way i since i've been here you don't necessarily need streets apartment approval

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until you get the the uh approval from the zoning board to move forward if i could uh mr chair i

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again i i now i'll make the objection thank you i'll make the objection that mr masters was making

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that it's it's we're kind of getting into factual testimony here uh and with respect to the and

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again i think this is something that perhaps we could address through cross-examination of mr

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master's witness um but uh in terms of you know right in terms of like what exactly is the complete

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streets uh policy and what does what is required to be done at what stage i think we can just get

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into that through cross-examination rather than having uh the attorneys uh argue about what's

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essentially a factual issue.

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A lot of it is, yeah, a lot of it probably goes

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to the variance, which the city doesn't have a position on.

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But yeah, thank you.

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Thank you.

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Mr. Masters.

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Yes.

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At this point, I would rest in my direct,

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but I would ask for leave to have rebuttal testimony

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after cross-examination.

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Ms. Pritzker or Mr. Severan?

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Brandon go ahead yeah so um I think uh if the board will allow it we'd like to call um

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I'm gonna have you swear in Mr. Chair a couple um witnesses and and we may use one we may use both

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um their names are um David Horner and Nando McHale oh I'm sorry um a third as well Sarah

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a poindexter okay with the three folks who uh mr uh savran just named raise your hand and we will

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individually take your names for the record and swear you in i i have an objection mr chair um i

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don't believe that all of these individuals were named as witnesses um in their submissions to the

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board they were i don't have a copy of that well you sent up we we didn't have a copy until

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i don't have a copy of that well you sent up we we didn't have a copy until 10 whatever and they

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were included in our lni or sorry our dba appeal that was submitted back in i guess august you'll

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forward them over to mr masters please sure here we have david horner to go first mr horner please

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spell your name and i'll swear you in my name is david horner h-o-r-n-e-r you swear or affirm to

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tell the truth the whole truth nothing but the truth i do thank you next witness

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nando mccale now please spell your phone name sure um n-a-n-d-o-m-i-c-a-l-e and do you swear

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or firm to tell the truth the whole truth nothing but the truth i do and miss poindexter i believe

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Ms. Poindexter, can you unmute yourself and wait for the chair?

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Poindexter, please spell your full name and I'll swear you in.

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Chair, her hand has disappeared.

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She's got this muted now.

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Ms. Poindexter?

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I can.

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I think she unmuted.

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Sarah, are you there?

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What I can do, Mr. Chair, is proceed with cross, and when I'm finished with that, we can see.

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Can you hear me now?

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Yes, please.

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Spell your full name, please.

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Thank you.

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Thank you.

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This is Sarah Poindexter, S-A-R-A-P-O-I-N-D-E-X-P-E-R.

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Do you swear or affirm to tell the truth, the whole truth, nothing but the truth?

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Yes.

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Thank you, Mr. Saffron.

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okay um so before getting to those witnesses i'm i'm going to cross-examine miss templeton

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also would um ask if mr reuter wishes to do the same um does the board have a preference

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between my going first or mr reuter going first for cross you can go first mr reuter yeah okay

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Thank you. Okay. Um, Ms. Templeton, are you available? Yes. Do you have, um, the site plan

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that was presented, um, at the last hearing in front of you? I can share. I do not. Okay. Give

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Give me one moment.

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Let's see.

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Bear with me, this is get to page 73 of this packet.

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While that's loading, I'll actually start with a different issue.

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going to share my screen to share a portion of the code which would be here okay um miss templeton

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can you see my screen at the moment it's uh okay thank you so um i am here uh for the board's

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benefit in uh title 14 chapter 7016 of the philadelphia excuse me council excuse me council

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can you blow it up some yes sure mr holland let me try my best there um okay well that was a little

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too much let's see here mr holliman i'm going to be referring to this table i'm scrolling through

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can you see that at all? Yes. Okay, thank you. Ms. Templeton, so this is, as I mentioned,

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we're in 147016, and in that section, there's also a table called 147016. The table is called,

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well, I'll ask you actually, can you read the title of the table in the gray bar there?

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Exceptions to height limits.

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Okay.

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Can you also, I'm sorry, read, that's the subtitle, the broader title above that.

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The subtitle, permitted encroachment.

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No, I'm sorry, above.

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It means the top, where it says table, 14-.

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Right here.

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Exceptions to dimensional standards, yes.

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Thank you.

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Okay.

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And would you mind reading the third box that's currently on the screen?

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that has the most yellow highlights.

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Would you read the contents of that?

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I can read it.

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I can acknowledge that that's, okay.

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Retaining walls are subject to the restriction

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of fence heights to the extent that those walls protrude

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above the actual ground level at the highest point of wall,

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but shall not apply to any retaining wall required

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by the provisions of any section

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of the Philadelphia Coda related regulations.

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okay um so would you agree um that retaining walls based on that section are um not subject

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Okay.

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Okay, so would you agree that retention

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to any restrictions that do not apply to fences under the philadelphia code regarding dimensional

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requirements objection there's no basis for that that's not what this table says it is limited to

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height limits. It has nothing to do with all other requirements. I'm going to object to you

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testifying, Steve. It's okay. I can resolve that. So Mr. Masters, that's a fair point. That's a

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function of the formatting of the table. And I apologize. And I'll walk everyone through that

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real quickly. So the title to the table is exceptions to dimensional standards. Then the

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table is broken down into subsections. The first one is exceptions to height limits. There's a

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defect in the coding, if you will, of the table, that if you scroll through the table, that does

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not go away, even when you're looking at sections that do not have to do with height. The actual

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subtitle, I think we can all agree, to this part of the table is exceptions to yard setback and

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open area requirements. Now, I would pose that Ms. Templeton testified to a setback requirement,

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the 20-foot setback requirement. And the section I just had her read does stand as an exception to

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setback requirements. So Mr. Masters, now that I've pointed that out, do you want to withdraw

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your objection or do you stand by that? No, I stand by my objection, Mr. Saverin,

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because the actual portion that you had Ms. Templeton read is limited to fence heights.

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It has nothing to do with setbacks or any other kinds of encroachments. If you can find a section

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section that deals with setbacks, then that's a different story. But we're talking about a

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section that you had her read that is limited to restrictions on fence heights. So if she could

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read, this is Rachel Pritzker, if she could read the section right above it, Brandon, which is what

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I think you meant to have her read. Sure, sure. That would be appreciated. And I think that that

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would address Mr. Master's concern. Ms. Templeton, do you mind reading that box above the one you

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already read? No, fine. Fences are permitted in the required rear yard area and in any portion

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of the required side yard area behind the front wall of the principal structure, but may not be

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more than six feet tall. The standard shall also apply to any side of a corner lot that does not

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face the street. Thank you, Ms. Templeton. Okay, I think that's sufficient. My objection stands

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because that section does not relate to retaining walls and does not state that retaining walls

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are subject to the same restrictions as fences in that section above. It says it below about

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heights, but it doesn't say that retaining walls and fences are the same. And our testimony

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that you're uncrossed on was specifically about why retaining walls are distinct and different

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from fences because they're engineered, they're structures, and LNI treats them in a completely

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different manner under the building code than a fence. Is there anything in the code, in this

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area of the code, that addresses what Mr. Maester's concern is? Well, I think Cross may not be the,

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Mr. Chair, we have our own planner, we have our own engineer. Why don't we bring them on to give

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their interpretation in a minute? I think that will be helpful, thank you. Okay.

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um let me uh miss templeton you spoke um is it is it correct that you spoke about um under

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mr master's questioning comparing some prior version of the plan to the latest version of

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the development plan or a prior application to a more recent application is that fair to say

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uh it was mentioned that there were two versions of the plan yes um so taking the um outer boundary

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of the property and and and we also heard you testify or or receive questions as to the fact

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that there are sort of two parcels which comprise the totality of the development site but taking

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the outer boundary of both of them combined, was there a change? Was there a difference in the

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outer boundary of the premises compared to those two applications? Or did it remain the same

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across those two applications? I'm going to object to that it calls for speculation. If you want to

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show her the two plans and ask her to evaluate the actual drawings, that would be a fair question.

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But asking her to speculate without showing her what you're talking about would be-

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Mr. Masters, this is a follow-up to you reference two different plans.

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I'd ask you to show them.

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Ms. Templeton, are you able to answer that without having to see?

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without having to see I can without seeing the two plans thank you please

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I think I can without seeing the two plans.

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Thank you.

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Please proceed then.

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proceed then thank you

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okay I think that's all for cross thank you I have no no redirect I just had

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just a couple quick questions for Ms. Templeton very briefly.

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