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Hearing video

ZBA Hearing - March 1, 2023

Philadelphia Zoning Board of Adjustment (ZBA)Mar 1, 20235h 21m

the zoning of our side of the street, which I believe is right where my cursor is, if you can

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see it, from its current residential multifamily use to a CMX designation to match the other side

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of the street. So my read on that is the planning commission has acknowledged, at least when it wrote

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this plan, that our side of the street has a zoning designation that prohibits all commercial

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uses, and that doesn't really make sense, given that this is a commercial corridor. So the zoning

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code's prohibition on commercial use on our building poses an unnecessary hardship.

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Here's a zoning map just that illustrates what I'm talking about. We're RM1, here's CMX 2.5 on

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the other side. Again, on the other side of the street, our proposed use would have been permitted

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by special exception. Here's the RCO's decision letter. It was a meeting that about half dozen

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folks attended. You can see that there was unanimous support among the attendees who voted.

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I'll just show you the explanation letter from the RCO, which I'm not going to read it to you,

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but basically talks about the owner's commitment to limit hours of operation.

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The owner's commitment to limit hours of operation, no alcohol, there's not going to be a liquor license or there will not be alcohol served by the owner.

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He's also not going to allow people to bring alcohol. Maximum occupancy, as I discussed, the property has a backyard with a separate rear exit and a side alley that allows people to get from that rear out to the street, which is really well maintained.

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Beyond that, and I do apologize, I didn't submit these into the record on time, but my client did gather 10 letters of support from a mix of residents and business owners on his block.

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So, you know, they're really, whether it's someone that lives there, someone that's running a business there, there was broad support for trying to activate the lower floor of this building in a commercial manner, rather than trying to squeeze an additional apartment unit in there.

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I will rest at this point and bring on my client, Mr. Daphnis, to adopt my testimony.

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Could you state your name, please, and spell for the court reporter?

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My name is Ernst Gessner Daphnis, E-R-N-S-T-G-E-S-N-E-R-D-A-P-H-N-I-S.

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

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I do.

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Proceed, counsel.

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Thank you, Mr. Chairman.

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Mr. Daphnis, were you able to hear my testimony this afternoon about your case?

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Yes, I do.

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Was my testimony true and accurate to the best of your knowledge?

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Yes.

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Would you therefore adopt my testimony as if it were your own testimony?

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Yes.

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Okay, thank you.

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Questions from the board.

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No, Mr. Chairman.

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No, Mr. Chairman.

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no chair questions or comments from the virtual audience yes chair i have mr charles richardson

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with his hand up thank you i'll give him permission mr richardson you've already

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been sworn just state your name for the record please charles richardson office of councilwoman

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cindy bass room 508 city hall rica chair ds wins the spelling

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Councilwoman has no opposition to granting the request variance.

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Thank you very much for calling in.

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Is there anyone else in the virtual audience?

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I see no more hands, Chair.

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Planning Commission?

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Thank you, Chair.

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Sarah Bond, Philadelphia City Planning Commission.

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The comprehensive plan recommends no change to the existing residential multifamily zoning.

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however the proposed use will not cause detrimental impacts beyond what might be expected

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the city planning commission recommends that the zoning board grant the variance

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thank you mi 2022-006-011-4927 north fish street i vote yes yes thomas holliman my vote is yes

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ishmael shaheed my vote is yes jim

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counsel you have your three votes okay thank you very much thank you

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number five mi202300840526 mercy mercy street this is an appeal against l and i

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Hi, George Downey is the appellant, and Anthony Osborne is the owner and permit holder.

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Would the city attorney also come on, please?

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George Downey has been promoted.

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Hi, Mr. Downey.

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Could you state your name for me and spell it for the court reporter?

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Hi, Mr. Downey.

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Hi, could you state your name, please, and spell for the court reporter?

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Yes, George Downey, G-E-O-R-G-E-D-O-W-N-E-Y.

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

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I do.

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Okay, just hold on a minute.

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Anthony Osborne?

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Mr. Osborne, can you raise your hand?

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Okay.

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I don't see Mr. Osborne.

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I don't see Mr. Osborne.

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Okay.

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Okay.

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How about the attorney for the city?

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How about the attorney?

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What's his name?

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Is it Leonard?

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Leonard, usually Leonard.

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Leonard Ruder, okay.

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Mr. Ruder, can you raise your hand, please?

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Yes, I'm here.

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Sorry, I...

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That's fine.

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Could you state your name, please, and spell for the court reporter?

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I was having a technical problem.

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Yes, thank you. May it please the board, Leonard F. Reuter, R-E-U-T-E-R, for the city of Philadelphia.

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Right. Do you swear or firm to tell the truth, the whole truth, nothing but the truth?

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I do.

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So could you call Anthony Osborne one more time, please?

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Mr. Osborne, Mr. Anthony Osborne, are you in the audience? If you are, can you raise your hand, please?

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he's not there hillary uh mr chair since this is an appeal against ellen i and we have

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attorney here on behalf of ellen i i think we can um proceed um as far as i could tell

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mr osborne was given notice via email um about the hearing um so if he's he is not here that's

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that's his choice. Thank you. Mr. Downey, would you present your case? Why don't we do that? Why

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don't you tell us where you stand? Of course. So my name is George Downey. I live at 524 Mercy

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Street. My girlfriend and I purchased the property in July of 2021. At that time, pretty quickly,

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we realized that 526 was operating an Airbnb. Started talking to a few neighbors, started to

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understand that, yeah, this is a full-time Airbnb. We haven't met the owner. We're not really sure

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who it is. We don't really know who to contact. We have a phone number for a management company

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that doesn't really respond too well. And we have an email that we can kind of shoot over.

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So throughout 2021, and then as well as 2022, we've been dealing with Airbnb. I've been working

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with Mark Squilla's office to try to figure out what we can do about it. And then at the beginning

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of 2022, an individual named by Jeff Kummer, J-E-F-K-U-M-M-E-R, he purchased 533 Mercy,

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and it found out that he supposedly was the owner of 526.

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So at that point, I confronted him.

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He validated that he was the owner of 526 Mercy

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and was operating the Airbnb.

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So I had at least somebody to correspond with for any issues.

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And then at this time,

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Squilla's office was letting me know

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about new legislation coming out

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that was going into effect January 1, 2023

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in regards to limited lodging licenses.

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um in november i think it's november 25th 2022 uh anthony osborne was granted a walk-up license

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or essentially an exception to um having to go through the rco and kind of gather um community

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support to get a limited lodging license on the pretense that he is the or that is his primary

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residence um i have letters um that i can read as well i'm not sure if you guys had a chance to go

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through them. We have five letters. Awesome. That pretty much state that we have never met

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Anthony Osborne. We've never met the owner of this property. We've been dealing with

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nuisances on the streets for over two, essentially since he bought the property

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and started operating an Airbnb. I have a letter from the RCO. It was brought to his attention a

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few days ago and he had no idea why a property was given a license to operate in a limited lodging

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licensed operating Airbnb at that property without having a committee hearing to kind of hear the

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the neighborhood's pro or support of it and then I also have a letter from Mark Squilla kind of

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attesting the exact same thing that this license was granted using a municipal ID which as I

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understand it is granted at with either just a utility in their name or a deed which obviously

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does not prove that they are a primary resident and from the IRS website that I kind of looked

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into what constitutes a primary residence. It's primarily where they spend the most time.

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I also submitted a LinkedIn profile of Mr. Osborne. He's been working and living in New York City for

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almost all of his career. So if he is living in this property, at least part-time, somebody would

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have met him, somebody would have been able to talk to him. We have seen him come and go, especially

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with having to potentially work up in New York City. Myself, I work fully remote, so I live in

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this office almost daily. So I'm hoping that the chair can see and kind of disallow this license

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and we go through the typical RCO process to have the community hear Mr. Osborne's case on why we

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should, the neighborhood is, should be in support of a new limited lodging license for it.

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Thank you for your test money. Leonard, you know, it's obvious that Ellen and I acted on

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you know it's obvious that ellen i acted on information they were given by this person

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information they were given by this person.

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yeah so let me just kind of lay out a couple things here um first of all i mean obviously

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mr downey testified to a lot of things that he doesn't have personal knowledge of so a lot of

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that's hearsay but i don't want to you know i've got i you know i understand he's pro se and he's

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appearing here um uh unrepresented uh but in addition to that i think we have one preliminary

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problem with this appeal which is that it was filed considerably late in terms of appealing

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against the issuance of the permit the permit in question uh was issued uh i want to say september

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in at the end of september of 2022 this appeal was not filed until february 7th so it's several

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months late um that it got filed and you know again i i you know certainly won't object to

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Mr. Downey explaining why it took that long to file the appeal, and again, you can address

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that separately.

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The other issue here, and this is, I think, one of the important, a couple of the important

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things to point out, and I can either share my screen or just simply reference the code

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sections at issue, but what we're talking about here is, as Mr. Downey explained, this

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This permit was issued by Wright, but the reason why it's issued by Wright is because pursuance to the Philadelphia Code, limited lodging is a by Wright accessory use for a residential property if, and it is for the accommodation of visitors that's conducted by the primary resident of a dwelling unit, the main use of which is for household living, and visitors are there for no more than 30 consecutive days.

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So this is a 14-604 sub-13 of the Philadelphia Code, and this was permitted by way of a bill that was actually goes back to 2015, and it was amended in just in June of 2021.

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So, and again, I think what we're what we're focused on here and again, I think this leaving aside the issue of the.

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lateness of the appeal the other issues here are somewhat factual like uh in other words does mr

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osborne reside at this facility but there's also a legal question which i'll get to in just a sec

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um so for purposes of the subsection and i'm quoting from 604 sub 14604 sub 13 for purposes

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of this subsection the primary resident shall mean either one a natural person who is the owner

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of the dwelling unit and is entitled to a homestead exclusion pursuant to code section 19-1301.1 for

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such dwelling unit or a renter, et cetera, et cetera. And that's not the case here. Nobody's

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claiming that Mr. Osborne is a renter. And then there are some other requirements about who can

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stay there and that kind of thing. And then in addition to having the zoning permit, a limited

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it is lodging operator license must also be issued. And I can say that that license,

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which is a Title IX license, not subject to this board, that was issued shortly after the

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zoning permit had been issued. So the question here is, was Mr. Osborne eligible for the

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homestead exclusion? And again, he is the deed holder of the property, and he submitted as Mr.

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Downey stated, Mr. Osborne submitted what's called a municipal ID or colloquially in the city. We call it the PHL ID. And this is a provision that was added to the Philadelphia Code a little while ago, several years ago, I think in 2018.

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And again, the reasons for it are varied, but the idea was to create a municipal identification card that would be required to be accepted by city agencies as proof of residence.

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So Mr. Osborne does have, and there's no dispute that I'm aware of, that Mr. Osborne does have a municipal ID, and I can fortunately just have a poor picture of that.

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I can share my screen on that, if that's allowable.

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Sure.

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So this isn't obviously the best view here,

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but this is actually how it appears in our system.

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Let me see if I can...

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And it doesn't look like I can flip it.

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But anyway, so this is the ID that was presented.

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Let me see if I can get that smaller in size. And it looks like an ID card. This is a Philadelphia, this is a municipal identification card issued by the city of Philadelphia.

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let me see if I can get that

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smaller in size and it looks like an ID card

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this is a Philadelphia

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And yes, there are a number of different forms of identification and proof of residency that you submit to the city through the managing director's office, I believe, in order to obtain this card.

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and this was issued uh to mr osborne i guess it looks i'm assuming that's uh november 4th 2022

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and it expires uh in 2027 yeah and i'm assuming they have that in the normal american month day

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year. So anyway, this is at the time he was asked to provide proof of the residency. So this is

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what he submitted. This is what's in the city's records at LNI in the Eclipse record. So, and

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again, I don't think there's any dispute. Well, actually, I take that back. There does appear to

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be some dispute about whether Mr. Osborne owns the property, but we do also have a copy of a deed,

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which i'll show quickly this was uh this is in also in the city's philadoc system uh the property

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was purchased by mr osborne in january of 2021 uh from a v2 properties the prior owner and again

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this is attested to in the city's records so let me close that now uh after the bill this is i'll

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show you the bill just since i have it open this is bill 16-0-1-5-1 this is the bill uh creating

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the municipal identification card and excuse me mr leonard we are not seeing uh that we just still

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see his id so you might have to stop sharing and share again okay thank you sorry chair no no that's

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fine keisha okay are you seeing that now yes okay and again i think you can take judicial

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notice of this this is a bill introduced by city council that became enacted uh

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let me see the date of the effective date

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it looks like okay so it was introduced in 2016 it would have

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a link languished for a bit there were amendments and then it'd be it was signed by the mayor

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october 10th 2018 and then just so i don't have that again i just want to share one more quickie

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document. Sorry about that. Well, we'll forget about that. So the managing director then

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promulgated regulations, and the regulations essentially just follow the requirements of the

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code, which in terms of the admissible identification, the code simply, you know, again,

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allows the city to issue the ID if you provide certain forms of identification, which

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which include, you know, again, things like copies of bills,

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