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Hearing video

ZBA Hearing - April 8, 2025

Philadelphia Zoning Board of Adjustment (ZBA)Apr 8, 20251h 13m

for that for that bedroom with exterior steps i think that was the concern of the zoning board

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was just more the window i was looking for the update yeah and we recommended it too to our

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client that like when possible when you have a wide enough property to have those serious steps

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it's actually a benefit for everyone um and then if you go up a flight of steps you have an open

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floor plan one bedroom and then two bedrooms below down here so and what's the depth of that

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that back on the third floor uh you mean the rear yard setback on the front setback oh the front

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setback is six feet oh you mean on the third over here correct let me see zoomed in too small i see

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the number okay it's like 10 feet yeah yeah and then so for the outside observer you don't really

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see it it's kind of mimics the architecture on the block in the neighborhood so other questions

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yeah so um you said you raised the the building so what is the below grade for the basement level

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now let me see um let me see

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uh if maybe someone from no more architecture can help me out here um i think it's six

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if maybe someone from no more architecture can help me out here

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feet it looks like but it looks like that's that's the grade right here it's six feet into

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the ground and it's four feet above the ground so it's it's a better proportion than it was before

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too and there's an exit in the rear and completely by itself an exit in my rear

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Other questions from the board?

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Questions from our attorney, Hillary Emerson?

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Just, excuse me, just briefly, Mr. Nockamson, the RCO recommended a proviso for trash to be stored either in the side or in the rear.

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Does your client have a position on that recommendation?

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I mean, we, you know, again, because we have side yards, we would defer to the RCO's recommendation, but I would think it'd be more appropriate to have it in the rear because the side's not that wide.

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So I would say from an egress standpoint, it would be more appropriate to do in the rear.

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Okay.

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And I just want to make sure that there wasn't already a plan in place for interior trash storage.

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So if not, then.

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yeah but we can say like you know you know if trash is going to be stored outside to be in the

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rear both units have access to the rear they do because there's there's side there's side yards

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no yeah that i understood like it's at grade but i just wasn't sure since the upper level

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had a balcony and a roof deck that the first floor didn't have access to that you were going

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to allow them to use the backyard yeah i mean we can probably create like a little like interior

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fence within there where there can be a separate door okay thank you questions or comments from

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the virtual audience i see no hands planning commission

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thank you chairman and good morning david fechta with the city planning commission

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chairman will enter the same testimony for both properties um chairman and board members the

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comprehensive plan recommends no change to the rsa3 residential single family zoning at this

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location there are no unique physical conditions or circumstances of either property that would

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prevent them from being used in strict conformity with the zoning code city planning commission

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recommends the board deny the request use variance for two dwelling units and the dimensional

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variances for occupied area front yard depth and side yard width. Thank you. MI 2024-005-664-7213

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Edmond Street and MI 2024-006-093-7211 Edmond Street. I vote yes with proviso. Trash stored

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in rear of property?

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That's it, right, Hillary?

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There are revised plans, too, but also just say, if you're granting yes to both.

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So it's clear you're granting.

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Yes to both.

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And they both have the same provisos.

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Revised plans.

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What is the result?

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Two pages.

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Two pages.

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Stamped by ZBA today, right?

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Yes.

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4-8-25.

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Cheryl Gaston, my vote is yes with provisos to both.

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Tanetta Graham, my vote is yes with provisos to both.

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My vote is yes with provisos to both.

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Ishmael Shaheed, my vote is yes with provisos to both.

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Thank you.

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Why don't we stay here, right?

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Why don't you stay, all right?

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And Leonard, you might want to come up.

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So MI 2025-001-558-2308-St. Albans Street. Michael McElhenney is the attorney. Also involved is Alan Notkinson, who is the attorney for the owner, and Leonard Reuter, who is the attorney for the City and License and Inspections.

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I represent the public. I'm asked to sit and testify. My lawyers don't.

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Yeah, well, I think your lawyer will call you. Okay, he'll call you as a witness, sir. Mr. McElhenney, are you on? Yes, Mr. Chairman. Could you please state your name and spell it for the stenographer? Michael McElhenney, M-I-C-H-A-E-L-M-C-I-L-H-I-N-N-E-Y.

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Do you swear or affirm to tell the truth, the whole truth, nothing but the truth? I do. Mr. Knockerson, you've already been sworn. Mr. Reuter, could you please state your name and spell it for the court stenographer?

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Good morning. May it please the board, Leonard F. Reuter, R-E-U-T-E-R, for the City of Philadelphia.

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

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I do.

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Mr. McElhoney, could you identify your client and the relationship to the properties?

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Yes, Mr. Chairman. My client is Melissa Howell and Sean O'Rourke. And Sean O'Rourke is, they live at 2306 St. Albans. And Mr. O'Rourke is in the ZBA room with the board.

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Yes, Mr. Chairman. My client is Melissa Howell and Sean O'Rourke.

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Okay. So we'll start, you'll start, Mr. McCloney, please.

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Mr. Chair, I would respectfully request that we move to dismiss this appeal. I think Mr. Reuter can speak better about this, given his knowledge of the Philadelphia zoning code from an L&I perspective.

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Mr. Reuter, please proceed.

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Yes, thank you. Yeah, the city's position is that the zoning board doesn't really have any jurisdiction here over the specific claims that are being raised by the appellant.

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In their notice of appeal, they simply outline that the zoning permit was issued without consideration for the historic nature of the property.

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There's also a mistaken statement that the Philadelphia Historical Commission approved the zoning permit.

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the historical commission does not review zoning permits with the exception of they will certify

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not not applicable here but they will certify you know prior uses of properties that are you know

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institutional and other uses if they qualify for cmx3 uses or they can certify properties

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historic nature for purposes of adding a accessory dwelling unit neither of those apply here the

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historical commission does not review or approve zoning permits they review and approve

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building permits and many times as in this instance i believe

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persons will seek approval of the historical commission for a particular building permit

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before they get any other permits so in this case permit when the application went to the

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historical commission and based upon their review the staff review uh there was no impact uh on the

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public there was no visibility of the of the uh structure in question from the public right away

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this is a rear edition for i believe a bathroom or something it's not visible from a public right

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away but in any case uh we're not getting without getting into the substance of the matter there was

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a concurrent appeal that has been filed from the historical commission's approval that is pending

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before the board of l and i review which is the appropriate body to hear appeals from decisions

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of the historical commission uh that was filed i believe timely although i can't say for sure i

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didn't look at all the dates but it looked timely uh and that will be pending before the board of

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l and i review at some point in the future so while the city concedes that zoning permits

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can be challenged if the underlying challenge is based upon the zoning code but in this case there

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is a specific uh path of appeal from the historical commission decision to the board of l and i review

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which has been taken by the appellants and therefore we don't believe that this board has

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any jurisdiction or rather no authority to proceed with this claim at this time

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we understand it's possible that the appellants filed this as kind of a belt and suspenders

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approach um just to cover their bases uh but you know again until the historical commission i'm

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sorry until the board of l and i review refused propriety the historical commission's decision

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on the building permit there's really nothing for this board to decide

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so we we would ask that the matter be dismissed can i just ask a question um mr reuter just to

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clarify there was um are you saying there was no required prerequisite review by the historical

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commission for the zoning permit in this case in this case no okay all right thank you all right

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mr michelhanning well mr chairman um i was going to ask the same question that miss emerson just

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asked because it's my understanding and having been through the process for 20 years when you

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go to do an addition to a historic building and get a zoning permit for an addition that is a

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prerequisite approval that the historic commission would review and presumably approve before a

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zoning permit for that addition could be issued and that zoning permit is then the basis of the

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building permit so there may be another uh procedural misstep here that the historic

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commission didn't approve the zoning permit that is the basis of the building permit because that

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this is a this is the historic garden block 2300 st albans the entire building structures massings

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and it faces there's two public streets the prerequisite approval should be required under

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the zoning code and i think this board would have jurisdiction um over over this appeal

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yeah mr chair um this board's authority and jurisdiction is to interpret the philadelphia

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zoning code what this appeal is requesting is to is to

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What this appeal is requesting is to oversee the determination of the Philadelphia Historical Commission, as, again, I'll defer to Mr. Reuter, in that the right form is not this form.

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It's front of the Board of L&I Review Board.

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And for those reasons, we believe it should be dismissed.

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And I'm going to reserve, you know, our right to object also at that in that form, in terms of the how timely it was filed. My understanding is that that appeal was just filed. So there's you have 30 days from actual or constructive notice of the of the actual issuance of the permit.

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And my understanding is that the appellant knew as, you know, we have text messages as far back as February 6th that they knew about the issuance of this permit.

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Our office is going to investigate a little further, but I believe that their appeal also there is untimely. Thank you.

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Mr. McElhaney, do you represent your client in front of the L&I review or two for this?

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I do represent the two clients and additional neighbors as part of that appeal before the Board of Licenses and Inspection Review.

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Okay.

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And the issue of timeliness will be addressed in that venue.

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Hillary, what I would like to do is, could we take memos from all sides and continue it?

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We can.

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I do want to ask a question to Mr. McElhenney, because in the appeal, it indicates that the Historical Commission reviewed the permit and approved it.

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Was there something definitive that your clients received that indicate that it was reviewed by the Historical Commission?

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No, it is the understanding that under the zoning process for a historic building, you need prerequisite historic approval.

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um there is no notice of the historic commission reviewing and approving a zoning permit or

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building permit so nobody has actual knowledge of when or if that happened at this time right okay

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all right thank you for that clarification if i could add one thing just under the jurisdictional

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question 14 303 15a does give jurisdiction over decisions um zoning decisions uh to go before

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this board and the zoning permit we are submitting is issued in error if the historic commission did

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not review that application if i could respond please so uh again i mean if we'll defer to the

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board if they want a memo but uh in this instance we think it's it's pretty self-evident i mean

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there is literally no prerequisite approval by the historical commission for any zoning permit

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the only things that go through the historical commission that involve zoning matters

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are if somebody is seeking uh an accessory dwelling unit for an historic property or if

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somebody is seeking CMX3 uses for a property that had a prior, like institutional use, like a

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former school, church, something like that. There's never been historical commission review of zoning

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permits. We understand that the zoning code indicates that this board has review over matters

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in the zoning code and the preservation ordinance, which is 141000 a sequitur, is in the zoning code.

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However, that the preservation ordinance itself only speaks of review of building permits with

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the exception of those two other zoning type matters that are not at issue here.

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And it specifically provides a 141008 expressly provides an appeal track to the board of L&I

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review. So even if there's a general provision for this board to have authority over anything

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in the zoning code this is a more specific provision that carves out uh appeals from the

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historical commission uh and has those go to the uh to the board of l and i review um so whether

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you know policy-wise it would be better for these things to be heard by the zoning board

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that question's come up now and again over the past 75 years uh but it hasn't happened so um

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You know, that's that's the city's position. I mean, we're happy to write over. So I Hillary, I think this is where it should be. I think we should receive documents from each side with what this position. Right. And for this, we'll say this motion. And then I think we bring it back in three weeks. And we vote on the motion in three weeks. Is that OK? Yes, that's fine. And that three weeks. Sorry, I'm just getting my calendar. OK. When will papers have to be in, Mr. Chair?

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um one hillary give me an idea what you think is a fair time for that so

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is would april 25th be fine and we can vote on the 30th april 25th what what date is that's a

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April 25th, what date is it?

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That's a Friday.

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friday i think that's yes i think that's

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Yes, I think that's fair.

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Michael?

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Yes, that's acceptable.

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Okay, and that way everybody will have a little time to discuss it and figure out where we stand, and then we'll vote on the motion, and we'll see where we are.

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Okay?

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We can schedule the vote for Wednesday, April 30th at 930.

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Okay.

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All right.

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Thank you.

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Thank you.

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Thank you.

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Is there anyone in the virtual audience whose case has not been – do you have another case?

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I have 4028 Westminster.

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may I be excused this was that was resumption as well Mr. chair

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not on this list not on this list

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I would say that Mr. Goldberg go to the videotape now

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but you know when is it it was on our list

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40 28th

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Westminster

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yeah

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I know I'm like double duty

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I'm like you guys

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yeah

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I have to wear a suit twice in a week

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so this was scheduled

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for a vote today i apologize it did not it was a vote only not a resumption um we were waiting

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for additional information on um repairs made to the property and comments from the rco block

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and block and we have those materials like we gave updated photos okay so so we will we will

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reschedule the vote on this matter um for tomorrow at 9 30 okay i mean we did post as well so i just

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you know okay have proof of posting so what we do is our office we'll just put the date in there and

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you know i mean so no my my apologies i missed i missed this one um so we'll schedule the vote

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for this one tomorrow can we do it too or we have to do it i mean we can do it at two o'clock

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i think i have i don't usually let me see what my schedule it it honestly does not uh we just

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have to announce it here because we're expecting it like yeah yeah let's do it two o'clock because

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so the so the vote on mi-2024-005-752-4028 westminster avenue that will be now voted on

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wednesday april 9th at 2 p.m thank you thank you goldberg's pretty efficient there i'll tell you

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chair we have somebody with their hands raised cordelia bassett sure they have been allowed to

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speak. Hi, could you please state your name as spelled for the sonographer?

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Cordelia Baffick, please unmute your mic.

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Cordelia Baffick, C-O-R-D-E-L-I-A-B-A-F-F-I-C. Do you swear or affirm that tell the truth,

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