civus
Hearing video

ZBA Hearing - September 28, 2022

Philadelphia Zoning Board of Adjustment (ZBA)Sep 28, 20225h 31m

Number 12.

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Am I 2021-005-225-120 North 53rd Street?

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Bart Levy is the attorney.

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letter of support from 44th Ward

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Democratic RCO

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Mr. Levy

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yes

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could you state your name and spell for the court reporter

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please

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my name is Bart Levy

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B-A-R-T-L-E-V-Y

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do you swear a firm to tell the truth

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the whole truth and nothing but the truth

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yes Mr. Chairman I do

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could you identify your client and relationship to the property

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my client is angel of fun llc okay our vice chair has a few questions

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thank you mr levy do you agree to wait the reading of the refusal and stipulate to its

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accuracy yes have you emailed the exhibit packet with proof of ownership tax compliance a copy of

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the refusal or referral photos and or plans of the property five days in advance of this hearing

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and have you met with the RCO and do you have a letter?

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We have all of that.

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Okay, great.

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You may proceed and begin with sharing your screen.

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All right, let me see if I can do that.

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Green button at the bottom.

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Green button at the bottom.

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All right.

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I hit share.

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Great. Now the screen's frozen. Unfortunately, I...

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Okay. We have somebody here who can help.

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Try one more time.

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All right. Try this.

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one more time

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okay should we have somebody could be helpful

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okay uh yes mr uh levy do you have your documents open on the screen

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Mr. Levy I'm not sure if he just having um computer issues

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okay so Mr. Levy

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Okay, so Mr. Levy.

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And it looks like he's connecting there, I'm sure.

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Okay.

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Hello?

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Hi, Mr. Levy, how are we doing?

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You know, I honestly wish this worked as well as it should, but...

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Okay, so how do we do this?

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in this group of i still have one more case yeah why don't i go to the case and i'll come back to

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you as soon as i'm done okay thank you all right sure number 13 mi 2022

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you'll have to get out mr levy i'll have to get out all right

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okay

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MI 2022

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004 555

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1711 to 17

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Rittenhouse

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David Orphanides

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is a complaint

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against L&I

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and also Leonard Reuter is the

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attorney for the city

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they're both

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coming back in as panelists

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thank you

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good afternoon mr chairman members of the board hi how are you good good good thank you

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could you state your name and i'll i'll swear you in and spell it please sure my name is david

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orphanetes last name is spelled o-r-p-h-a-n-i-d-e-s right do you swear a firm to tell the truth the

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whole truth, nothing but the truth. I do. Mr. Reuter? Good afternoon. May it please the board,

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Leonard F. Reuter with the City of Philadelphia. That's R-E-U-T-E-R. Do you swear a firm to tell

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the truth, the whole truth, and nothing but the truth? I do. I would also point out that this is

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a an appeal from a zoning violation so um the city inspector uh gerardo or gerardo uh gonzalez

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is also um out there i don't know if we're going to get to his testimony yet or anything like that

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but i i do want to let you know that okay for sure so why don't we start with mr orphanages

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versus and okay i mean typically in these cases it's the city that presents well good uh again i

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you know it's it is 513 this is a somewhat uh different type of case for you all so i don't

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know if you want us to just present opening arguments and then get into the case or if

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this case is even going to get concluded today or how all right why don't we go with opening

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our arguments we'll see where we stand all right well mr chair can excuse me one moment this is

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hillary can we just um address that we did have uh another um that we did have another attorney

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who had submitted exhibits and with and witnesses um in this case um and were requesting to be a

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party could please address that issue first um you know we we do not believe the neighbors have a

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standing in this. This is an issue between the complainant and the city's L&I department. So we

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do not believe that they have standing. That doesn't mean that somebody could not call them

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as a witness. Right. Okay. And that's the city's understanding. We believe that we can call or

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even Mr. Orfinity's can call. And the person's name for the record is Leslie Gerstein. She's

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the attorney. We believe that we could call her client as a witness. But I would note that

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because her client is represented by an attorney that Ms. Gerstein would be allowed to be present

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and, you know, online if that questioning occurs. We don't have an objection to that, but, you know,

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the city would have, it would just get really weird in a code enforcement case for her to be

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entered as a party. But, and it's totally up to you whether you want to allow her to examine or

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cross-examine anybody. Again, we don't take a position on that. Yeah, right. So just by way

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of opening, this matter concerns, we think this is a really simple question that ultimately boils

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down to a purely legal issue because we think that all of the relevant facts are not in dispute.

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And the relevant facts are there is a bar. It is a fairly well-known bar or it had been a well-known

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bar operating at a different location during the pandemic. They closed, they have since reopened

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in a space that is part of what I think they would call a boutique hotel. The boutique hotel

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is located at 1711 to 17 Rittenhouse Square and that boutique hotel

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Rittenhouse Square, and that boutique hotel operates by way of a variance that was originally

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granted in 1998 for the property formerly known as 1713 to 1715 Rittenhouse Square,

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and over the years from 1998 through 2005, what was originally characterized as a bed

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and breakfast, which doesn't mean anything, that was never a defined term in the code

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at that point, that expanded to, so now it encompasses what were formerly three separate

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parcels, and now it goes from 1711 to 1717, Rittenhouse Square.

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The permit applications at the time and the zoning approvals, which again were all submitted

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by Mr. Orfanides himself,

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in which the city's also adopted

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as part of its exhibits,

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so what we're calling the Zoning Archive.

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Again, none of this is disputed, I think,

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and I think Mr. Orfanides would jump in

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if he thought there was a dispute.

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So that operated as a hotel.

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At the time,

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those approvals were granted by the board,

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that is all the way from 1998 to 2005.

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The zoning code merely defined hotel as 10 or more dwelling units devoted to temporary housing, and at the time, they may have accessory commercial facilities for the use of its guests.

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So since 2012, we now don't use the word hotel, we use the phrase visitor accommodation, and the current zoning code says that visitor accommodations, and this is 14-102 sub, I'm sorry, 14-601 sub 7 sub N.

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and is in Nancy. Visitor Accommodations in it defined, the code

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says it's uses that provide temporary lodging for fewer than 30 days where

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rents are charged by the day or by the week or portion thereof

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and may also provide food or entertainment primarily to visitors or tourists.

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So there's no dispute

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I think that the bar that is currently located at the hotel

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and I believe the hotel's name is 1711 on

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Rittenhouse um 1715 on Rittenhouse I'm sorry 1715 on Rittenhouse thank you thank you David um

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the bar which is located at the hotel is known as Franklin Mortgage and Investment Company and

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that's just kind of a weird name because the prior that was the name of the the bar when it

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originally opened and it's named after um what was back in the uh days of prohibition a a speakeasy

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that used to be located at somewhere else.

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I forget where.

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Anyway, it doesn't matter.

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The point is that the bar advertises to the public.

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The bar has a web presence.

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They have an Instagram presence.

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They have been covered in the news.

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6ABC had a thing about them.

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They've gotten extensive coverage in the media, reviews.

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And we're talking since they have reopened at this location.

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It was also well covered prior.

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But what happened before, we don't think, how the bar operated before they went to this location is not at all relevant to this case.

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So the question is, they advertise to the public.

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They have a certain number of people that patronize the bar that are not guests of the hotel.

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And again, I don't think there's any dispute that there are certainly a portion of the clientele of the bar are not guests of the hotel and that the bar clearly markets itself to the general public.

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so the issue is whether or not um this bar primarily serves food or provides food and we

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we can see that the word food uh incorporates or subsumes uh drinks um because they don't

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actually serve food at this place i mean some snacks or something um

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The question is whether or not a bar that advertises itself and is open to the public and has at any given time when it's operating a certain portion of its clientele who are not guests of the hotel,

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whether that bar is providing food primarily to visitors and tourists.

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I think Mr. Orphanides and I agree that in the definition of visitor accommodations, when it uses the word visitors, it has to mean guests of the hotel, because otherwise it means literally everyone in the world that might happen to go there, and therefore there wouldn't be any purpose to having that kind of restriction.

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Uh, and that visitors means guests of the hotel. And that's the definition is visitor accommodations, which is now just what we use, uh, to cover hotels, motels, bed and breakfast, et cetera, et cetera.

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And that visitors means guests of the hotel, and that's the definition.

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the real issue here is what is a tourist and i know mr there is one little factual dispute uh

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which which i wouldn't say it's a little factual dispute but it's how like how many people uh or

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what percentage of people in the bar at any given time are in fact guests of the hotel and mr

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orphanetes is going to argue if it's less if it's more than 50 percent then they are primarily

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serving visitors of the hotel. And I think we would concede that that's probably correct.

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The problem here is that L&I is not in any kind of position to go to and conduct an inspection

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of the bar and literally interview everybody and find out where they're sleeping tonight.

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We don't know how many people are guests at the hotel. We do know that the bar advertises

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extensively to the public. They have a strong public presence, a strong web presence. They

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are covered extensively in the media. And that the current operation of the bar and the hotel,

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they have a placard outside, an A-frame, which indicates that this Franklin mortgage is in the

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hotel. So again, on its face, it seems self-evident that the bar intends to be open to the general

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public. So the way we look at it is that it's the difference between, say, if you're in a hotel

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that has gym and pool facilities for guests that is not open to the public, that's fine. That's

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what hotels are allowed to do that. And I think they're even required to have that if they want

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to be like a two or three star hotel or whatever. But if you have a hotel that happens to have a

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Philadelphia sporting club in the hotel, and that sporting club is open to anybody that is a member

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of the public that wants to join the sporting club, that is not part of the hotel, but is in

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fact a non-accessory use. It would either be a separate main use that happens to be in the same

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building or be considered a non-accessory use. So we think that this is more like having a sporting

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club at the hotel as opposed to just simply having a gym for guests. We think that the definition

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in visitor accommodations means you have tea service or coffee service or maybe a wine night

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or something for guests at the hotel,

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and if they have friends or people that are visiting them

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while they're in town, that's fine.

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And we just think it's self-evident that the marketing

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and the position that Franklin Mortgage has taken here

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indicates that they are primarily serving the general public.

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So we do have Inspector Gonzalez, he's here.

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He's able to testify about his observations.

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I will concede that Mr. Gonzalez was not able to enter the bar the first night he did an inspection or attempted an inspection back in April.

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But he has since gone there. He was there yesterday.

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So again, I was hoping we can get a stipulation about what his testimony would be and what the layout is of the place.

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And, you know, we just leave it up to the board to determine whether or not, you know, this bar, this hotel and the bar comply with the definition of visitor accommodation or whether they've gone beyond that and now would therefore need, well, in this case, probably a variance.

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Because the zoning classification here is RM1, which actually doesn't permit visitor accommodations.

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That's a lawful variance.

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That's fine.

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But also does not permit a bar restaurant to operate at this location.

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So, like I said, we can get into the specific.

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Why don't we let Mr. Orfanides do his opening, and then we'll figure out what we're going to do.

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Okay?

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David?

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Hi.

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All right. Thank you. Thank you, Lynn. So I represent and I represent the owner of the property. I represent 1711 to 1717 Rittenhouse LLC.

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see. They purchased the property at bank sale. It was a hotel closed. The family that operated

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the hotel previously were actually clients of mine at a different property. I've been

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Had a different property.

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I've been inside that property when it was previously operated.

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inside that property when it was previously operated.

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Saw the inside of it.

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We had meetings there for a different case.

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My clients purchased it in 21.

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They secured a building permit.

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