it's pretty small but i can also um bring it up on my own screen 118 oh wait here we go
does that help i see it yes yeah perfect thank you there an unroofed barrier including a retaining
wall forming a partially enclosed structure used to limit ingress or egress to a lot or portion of
a lot that is constructed of materials that are designed and intended to be used primarily for
the construction of fences okay but would you agree that the definition that fences and retaining
walls are treated uh the same they're under the same definition in the zoning code i'm going to
object that's calls for a legal conclusion um the fact that they're listed in the same definition
doesn't mean that they're treated the same in the zoning code why would it say that fence or
retaining wall well because there are many we've seen earlier today in the hearing we've seen in
we've seen sections where retaining walls have different are treated differently than fences
in the same section of the code so again with height they're treated one way with setbacks
they're not treated the same way and and they're distinguished a fence and a retaining wall
are clearly different this is argument it's not an objection so again if i could maybe if i could
follow up then with uh with this poindexter uh miss point and we'll just say look the code
the code section the definition of fence and retaining wall speaks for itself um you would
agree, by the way, Ms. Poindexter, that fences are constructed, right? I mean, they don't just
magically appear. I'm going to object to relevance because this case doesn't really involve any
fences or the construction. Well, again, I think the previous discussion had to do with whether
with there being a distinction between fences and retaining walls having to do with one being
constructed and the other somehow not being constructed. I'm not really clear.
uh well we did talk about engineering sure but well okay miss poindexter um does the zoning code
uh well let me let me let me ask this one is this particular project uh in a steep slopes area
yes there are steep slopes that exist on the site okay uh is the retaining wall uh there to
ameliorate some of the circumstances caused by the slopes.
um circumstances caused by the slopes
the retaining wall that's within that setback area um i'm not sure the relevancy of the question
but um we'll just go ahead yeah the retaining wall in that area um was purely for aesthetics
so it's not right i'm sorry mr chair yeah so in other words as i think the chair was about
was about to ask or ask you to clarify that the retaining wall is not there uh for some necessary
structural or engineering purpose is that correct that's correct okay all right all right so um and
And just to follow up just briefly, because I think we can clarify again that other issue
having to do with the street frontage, just so we're clear, when as lots being treated
under unity of use, each lot retains its own partial identification, is that correct?
That's correct.
Okay. And they each retain their own separate tax ID. Is that right?
That's correct.
So they are still separate lots, legally speaking, aren't they?
That's correct.
Or from a zoning perspective.
So, with respect to the 6134R Wayne Avenue, that has a pre-existing flagpole, if you will, that goes up to Wayne Avenue. Is that correct?
That's correct.
And is it your position as a code engineer for this project and a planning engineer for the project, that that is a non-conforming aspect of a lot, and therefore, as long as that lot was being treated as a separate lot for those purposes, it remained a non-conformity and didn't generate a refusal for street frontage?
I'm just going to object. I understand what you're trying to say, Mr. Reuter, and I don't disagree that it could be considered a nonconforming feature, but that calls for a legal conclusion.
Since I'm a lawyer, I can make that. You're a lawyer. You can make that. I don't think this point extra can make that.
Well, and that's fair.
It calls for speculation on her part.
Well, I mean, I understand the objection, but I think both expert witnesses were presented precisely to give their opinions about what the code, a legal document, requires.
But we'll just see.
Otherwise, all the expert testimony has been superfluous.
Well, her opinion on the code, yes, for sure. She's an expert on that. But whether a specific set of facts are properly applied to the code and come to a conclusion is a legal opinion that she's not an expert on.
Okay, so then we can all agree that we spent a lot of time for not being here.
So thank you.
We have now passed the 12-15 time limit that we put on this.
We'd like to get this portion of the case resolved today as to whether or not the board will deny or approve the appeal against L&I.
so uh because i think a lot of what i've been hearing is basically going to be more about
what whether or not this project should move forward as is or there's a like a variance
case it sounds to me god bless you rachel mr chair i think you have it correct i mean we
already have one refusal so if we want to proceed there will certainly be a variance case under that
one refusal at a minimum so we we do want to wrap this up so we can proceed to the variance case and
maybe the board will decide there should be additional refusals.
Maybe the board feels that the, there should not be additional refusals,
but we'll never get to the variance case if we don't end this. So, you know,
we're with you on that.
And we have, I have no more, more questions of anybody. And of course,
as I said, we had no witnesses to present.
I don't know if Mr. Saverin had any further witnesses.
No. Mr. Terry, we're, we're ready for a closing argument.
Let's proceed as quickly as we can.
Okay. I think I would go first then. Is that correct?
Yes, right. So here's where I see things falling out at this point. The city and the developer have not rebutted at all the third basis for our experts' testimony that L&I missed a critical feature that should have been refused and needs a variance.
And that is section 147035A.1 that.
section 147035A.1, that each principal building has to have one or more entry doors facing and
visible from an adjacent public street. Now, Ms. Poindexter testified that Wayne Avenue is the
public street. There is no public street with station drive. That's a private SEPTA street.
And if you look at her map, when we were talking about that 20-foot setback, it's labeled front
setback because she believes in her plan that the front of the property should be facing
Wayne Avenue because that's what the code requires.
But if you look at the design of this plan, everything is facing the Topohokin Station
Drive and the Topohokin train tracks.
Now, that's their design choice.
And that doesn't mean that if it comes before the board and they ask for a variance on it, that doesn't mean that the board doesn't give them a variance on it. But you can't hear this case with every single entrance to this project. None of them are facing Wayne Avenue. Literally not even one.
They're all facing the train tracks, the Topofahawken Station Drive, the little driveway that they created, and there's no contest here.
There's been no contradiction in any of the testimony that this should have been a clear refusal on that basis, which it wasn't.
They did try to kind of be a little squirmy on some of the early plans where they listed Station Drive as West Topofahawken Street.
street um and and it was labeled that way and maybe that confused the plans examiner the first
time around but it shouldn't have um because it's everyone agrees that this is a private street
owned by sefta they have no right until they can negotiate some kind of a of an easement with it
and they're so that clearly on that basis alone we need to send it back to lni to do that correct
refusal. The other ones, the 20-foot setback, again, a retaining wall is a structure. The
evidence is uncontested that there is a retaining wall structure within the 20 feet. They're
arguing that it's really a fence, but that isn't clear from the basis of the plans that were
submitted. There was no plan submitted that said this is a decorative fence that is made out of
rocks it said retaining wall and the code is clear that the examiner should have that should
have triggered a refusal for a for a uh for failing to meet the setback for retaining wall
they wanted to put a decorative fence up they obviously could have done that and it would have
been it would have been exempted from the setback requirements but they chose to put a wall up for
whatever reason and they need to they need to seek a variance for that um so on those on those
um on both of those uh code provisions i think the evidence is clear there really is no there
is no um contest to to both of those and we need to send this back to lni to get a better refusal
um may i may i proceed mr chair would you like to hear from mr reuter first
thank you members of the board just a couple you know quick things again we believe that the
application as submitted was properly approved we agree that and again I believe and Mr. Masters
was very explicit at the beginning of today's hearing that the unity of use
approval is no longer being challenged and therefore it's treated
uh that therefore the the the they can they can use both lots uh as contiguous lots under common
ownership uh for zoning purposes but because they retain their separate identity the uh the
existing flag lot at 6134 r wayne street has an existing non-conforming access to wayne avenue
And therefore, it did not generate a refusal, which the prior application, which created a completely new lot, did generate that refusal.
So I think that's why that whole issue came up.
So it's no longer a refusal because 6134R Wayne Avenue retains its separate identity as a parcel.
With respect to the other issues that were raised by Mr. Masters, you know, again, there's nothing in the code that specifically requires complete streets approval for every aspect.
It did go through complete streets, which is specifically required for CDR, but it did go through complete streets for CDR, and there has been no determination that the change.
and there has been no determination that the change from consolidation to unity of use would
by itself, where there was any reason for that to trigger a new CDR review, therefore there's no
reason why the complete streets program had to be adhered to again. This is not to say that at
the building permit stage there will not be some additional reviews for streets, or for that
matter for the retaining wall or anything like that, but simply that there's nothing in the code
that automatically would trigger a new complete streets review with respect to the setback
requirement. It's our position that with respect to this application, the setback requirement
does specifically provide for exemptions for fences and that we believe that fences and
retaining walls are essentially treated the same in the zoning code. And it's specifically so
basically in that section of the exemptions that was pointed out by Mr. Saverin, it showed
that you could have basically a six foot high retaining wall here it's essentially treated the
same as a fence wall uh and again i think the the under the notion that a retaining wall within a
setback would always trigger a refusal um kind of would given the number of slopes and the number
of places in the city where retaining walls are required it was it would essentially uh require
thousands of additional variances to be granted when it's there's not it's not a real it's not
a planning issue whether there's a retaining wall there's an engineering question for sure
there's building code questions for sure but from a from a planning or land use perspective
uh in a case even here where there are steep slopes but where the retaining wall is not
necessary because of a steep slope issue but as as ms point dexter pointed out was aesthetic
that there doesn't appear to be any particular planning reason why we would treat a retaining
wall separately from a fence wall for zoning purposes strictly for zoning purposes again
notwithstanding whether there may be building code issues down the line the other thing i do
want to mention and again i don't want to i understand the board has allowed this this issue
to go forward but um you know once a once a any refusal is issued for whatever the reason in this
case it's for for a heritage tree uh the removal of a heritage tree uh the board has to go through
the steps required to grant a variance. So that's for any refusal. So it kind of seems like it would
be superfluous here to go through this entire exercise where we go and get additional refusals
when you could have one refusal, you could have 17 refusals. The zoning board's job is essentially
the same in any case, which is to make a determination about whether there's a hardship,
whether the variance will injure adjacent conforming properties, et cetera, et cetera. So
So, you know, notwithstanding whether or not there would be additional refusals, I don't see where there would be any benefits served to any of the parties by sending this back to L&I if the board were to make a determination that additional refusals should have been granted.
We thought all the refusals that were resolved except for the heritage tree, so to us, to the city, it would make no sense to send this back to L&I when you're still going to have to make a determination about whether a variance is warranted in this case, and you still go through all of the seven steps or whatever that are necessary to make a determination of whether the variance is warranted.
So that's, that's all I have to say. And I thank the board and all the witnesses and attorneys for being here. Thank you. Thank you, Mr. Rorty for your testimony. Rachel, I'm going to just state that this is an appeal with L&I and so we sort of defer to the city and they're, they're closing our argument.
the only comment i would just make is that um around the fence retaining wall uh i do believe
that mr masters was unable to find any code section to make a definitive determination there
so i would just mention that and lastly just for the benefit of the board so that at the zba you're
not voting on a hypothetical matter we will be more than able to provide information uh related
to the access easement in our conversations with septa at that time thank you
Well, the last point is just that, and again, I think this was already made by Len, that
we're, by using the unity of use program, we decided not to change the lot lines of
the two parcels.
So our position is that any, and there should be no refusals that relate to the, you know,
the boundary lines of the parcels, because they're not being changed and are non-conforming
from a legal standpoint.
Thank you to the board for listening to the testimony of myself and the co-counsel today.
Can I just have a final word, Mr. Chair?
Can I just have a final word, Mr. Chair?
A brief final word.
A brief final word.
Again, none of my opposing counsel have addressed the one issue that I told you was clearly proven by us, which is that every single entry door in this project does not face Wayne Avenue.
And the code is clear. It has to face Wayne Avenue. None of them do.
So that was a clear problem on L&I's part.
They need to go back and issue that as a refusal so that when you hear the case, Mr. Reuter says it doesn't really matter how many refusals or how many variances you have.
That's actually not true. When this board rules, you need to grant the variances that are necessary to legally create and operate this project.
And if you don't have the proper issues before you, then the variances that you grant would not legally entitle them to do it.
you're not going to legalize those doors facing the wrong way if you don't have that before you
as part of the variances being granted. So that's why there's no question about this.
The board would not be in a position to ask for those adjustments to the plan.
Mr. Chair, and again, this has come up in several other cases. Yeah, I mean, 17 refusals probably
was a bit of an exaggeration, but the point is that there have been other cases where you've
heard a case where on one refusal, and I think in a couple of instances where the applicant or
the applicant's attorney themselves suggested that there might have been additional refusals
that were missed, and it's been the city's position and the law department's position
that where warranted, the board does have the authority to recognize, as long as it's in the
record and it's recognized that an additional refusal maybe should have been granted when the
board, if and when the board addresses the variance case, they can grant a variance to all
matters because the zoning board stands in the same shoes as L and I. Obviously, there's certain
things that require plans review, such as changes in parking spaces, changes in height, changes in
GFA, things like that. But if for the sake of argument that Mr. Masters is correct about the
doors issue it doesn't strike me that that whether or not there are doors facing wayne avenue and
whether or not that's the issue that that necessarily requires it to go back to l and i
if you think that's the problem i think the board has the authority to say yeah i guess you're right
there aren't any doors on wayne we'll just add that to the refusals and get full go forward on
the case i don't see the point in sending it back to l and i for that all roads lead back to the
the variance cases as far as i'm concerned but in any way mr reuter are you saying the city will
agree to a stipulation that that this no i'm saying i'm saying no no i don't think i'm saying
it's up to the board to decide if the board of the board has the discretion to determine whether or
not a refusal should have been granted uh for the doors again something that would require plans
an additional plans review i think would require that to go back to to l and i but you know whether
or not there's doors it seems like it's it's it's it's it's a it's a black and white issue and i
think that they can just that's not going to require another plans review um so i don't you
know and chairman we did address that it's a rear parcel yeah we understand that i think this is an
argument that could be made if and when we get to the uh the variance cases thank you all right uh
does the board have any questions as it relates to this case as it relates to the appeal against
no mr chairman thank you so chair this is i'm excuse me mr sharon if you are going to vote
this today there is a separate mi number for the appeal against l and i which you do not have in
front of you so do you have that it's mi 2021 003743 003743 so when i when i read this into