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Hearing video

ZBA Hearing - August 31, 2022

Philadelphia Zoning Board of Adjustment (ZBA)Aug 31, 20227h 0m

to 005190271 Delmar Street. Brandon Saverin is the attorney.

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Yes. We should also have the attorney from the city here.

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Mr. Reuter is coming back in as a panelist now, Chair.

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brandon you've already been sworn yes yes um this is an attorney against our

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i know yep i know um mr ruderon yet i'm here all right could you state your name and spell

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for the court reporter please uh yes uh may have pleased the board leonard f reuter r-e-u-t-e-r

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senior attorney for the city of philadelphia do you swear or affirm to tell the truth the whole

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truth, nothing but the truth? I do. Okay. So I think Hillary sent around. So what we'll do is

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have opening statements by both parties first. Brandon, you want to go first? Sure. I mean,

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this is really, I'm actually going to ask Mr. Reuter if I can put him on.

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I'm actually going to ask Mr. Reuter if I can put him on the spot for what the city's position is, because that will affect the degree of detail I have to go into in my presentation.

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Oh, you're just asking me, what do I think about this?

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Are you opposed to the appeal?

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or what what's yeah so um you know i have first of all i didn't it was it the end of july that

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we learned of this appeal uh i didn't um realize that it was going to be heard today we learned i

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learned about it actually when i was vacation that was scheduled today not not a problem we looked

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into it this because appeals against l and i are uh 90 of them are legal arguments so you know i

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don't need to bring a planner or plans examiner here. I think in a lot of respects, the appeal

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in question is very technical and somewhat academic in nature. And we would say that

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and I have talked to a few people about this and looked into it a lot myself.

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um had this permit application been approached in a different way had it been divided up into

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separate applications then they would in fact be able to do what they want to do here so

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our position basically is that they're just trying to avoid um extra fees for you know new permit

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separate permit application fees at you know having to pay architects for separate plans

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uh and all of that um because you know again and i understood we understand that's an that's a

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that's a an expense it's not nothing um but the problem is is that when they submitted the

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subdivision plan in conjunction with the new construction plan we had no other way up we had

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no way to approach this other than to review the entire site as covered under the steep slope

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protections. So, you know, it's our position, you know, that by submitting it as a single

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permit, a combined permit application that put it upon city planning to review the entire site,

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which nobody's disputing that taken as a whole, the original, the original site does, is bound

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by the steep slope restrictions. You can take any property that has steep slopes and subdivide a

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portion of that property off that doesn't have a slope, like say you have the front yard that's

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flat, you could subdivide that out. And assuming that that is a developable, that's a word,

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a developable parcel, that would be, you could do that subdivision and then you could submit

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the application to do the new construction on that newly subdivided parcel and that would be

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fine. But if you submit a permit application to just simply build on that flat portion of the

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site, it doesn't matter that that portion of the site is flat. It's the fact that the entire parcel

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has to be considered for steep slope protections. And we would agree, yes, if you have a huge front

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yard and it's flat on its face, you're not impacting the steep slopes. But that's basically

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what happened here. So had they submitted the subdivision plan first and got a subdivision

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permit, which at least with respect to steep slope issues, steep slope issue, it does not

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come up in subdivision plans. We're just simply looking at what the minimum parcel size, minimum

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lot size and dimensions are for a given zoning classification. So presumably the lot adjustment

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adjustment from one to nine lots would have been issued by Wright, and then now they've got the

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smaller lots, they would then come in and say, well, each individual lot's now under 1,400 feet,

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we are not bound by steep slopes provisions, and that would have been correct. I don't know how

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else to put it, and I'm sure Mr. Saverin is aware of it, that is an obvious loophole,

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and one which, by the way, we would like to eventually close.

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But that simply can be done.

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And again, I think the reason why people don't do it that way

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is because of the additional fees that would be generated

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by having to submit instead of one permit application to subdivide.

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Leonard, could I jump in there?

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So we would be happy to give them an opportunity to amend

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and then do this as separate applications and separate permits, we understand that would be an additional expense.

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Well, yeah, so I could give a – if the board wants a little information about the site, that's super helpful,

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and I can now do it in a condensed manner.

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But let me just say to Leonard's comments there, that's exactly right.

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If we had subdivided this first, it would be a buy right proposal. We are not attempting to evade city fees. The city fees involved with a review of a zoning plan are really small in the development of, you know, in the grand scheme of an entire development and its costs.

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If we had subdivided this first, it would be a by-right proposal.

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We are not –

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It's about human labor costs, the cities and hours. So we have to pay engineers to make zoning plans for eight separate building lots rather than one plant. And believe me when I say it's much more expensive for the city to digest and issue then later building permits on those eight separate zoning plans than it is one zoning plan.

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So this is really, in my eyes, about eliminating waste. And that is actually why my client chose to pay a lawyer to take this appeal, because they really want to pursue this thing with one zoning plat rather than eight of them.

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And further, the one thing I can add is that I actually believe the law in such a situation compels the city to issue approvals, whether or not we break it down from one to eight plots. I don't think it's at the city's discretion to deny this just because we submitted it under one plan. That's my response to Leonard. And I think if I showed the board for five minutes the property, you'd really sort of understand where we're coming from.

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If I could just respond briefly, and I don't object to Mr. Saverin introducing the plans just so the board has a graphic representation of what we're actually talking about here.

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We do oppose substantively the argument that they've at least preserved about there being a distinction between man-made or artificial and natural slopes.

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There's nothing addressing that in the ordinance. Yes, there may be some common sense distinction somebody can make. So, for instance, if somebody just dumped a pile of debris on a property and threw dirt on top of it, that doesn't make it a steep slope.

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So there have been extremely rare occasions where we have said, no, this is something different. This is literally just a pile of construction debris or something that, yes, we would agree that just because it's now a hill or a pile of dirt doesn't make it a steep slope.

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But I think in this case, whether or not it was originally created as a result of human intervention, the fact that it has existed for the time that it has, it has in fact become an integral part of the natural environment.

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Again, you get into too much detail there.

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And again, I don't really think – so on that question, we certainly will just simply preserve the argument that we don't believe there's any distinction.

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Even if we believe that there was such – that there ought to be such a distinction, there's nothing in the code that provides for that.

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You know, again, except when something is just completely obvious that it's not a real slope or hill.

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But that doesn't seem to be the case.

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Brandon, could you show us what you want in five minutes?

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Why don't you go over there?

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This will help.

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So let me do that.

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Yeah, okay.

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Okay.

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All right.

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Here's our refusal.

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Just real quickly, the only refusal here is for violation of the steep slope ordinance.

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The scope of the application in the all caps says that we are taking a lot, and it's a 28,000 square foot lot.

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We're going to be developing eight single family homes on it.

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So here's the site. We're in the Ridge Park area of Roxborough. It has a nice frontage on Del Mar that's wide enough for eight homes and, you know, a large back.

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And what we're going to do is whether we'd like to do this all in one application, you know, Leonard and the city would like to break it into multiple steps, but we're going to take this property on the left, divide it into these eight building lots with the driveway down the middle that gets to the back of the houses, 1, 2, 3, 4, 5, 6, 7, 8.

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and where most of the slopes are is are in the rear and we're not touching it and there's nothing

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in our application that says that we're developing this parcel we're not so this this survey was

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approved by the ninth survey district there's our stamp up there if you grant this appeal we are

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compelled legally to subdivide this property prior to building it so it's not like we can get out of

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subdividing it. It's just that the city wants us to subdivide it in a separate zoning application.

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So we're really talking about semantics here. Here's just a slightly more, excuse me,

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trying to scroll over, slightly more traditional zoning plat that shows the plan. Okay.

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plat that shows the plan. Okay, why did we trigger a steep slope refusal? The parts of the property

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that are below the blue line here, if they contain steep slopes, we need a variance if we're

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affecting them. If this was a larger property, if we weren't breaking it down, I'll come back to this

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in a moment. As far as sort of like the water department's view of the situation, we completed

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the initial irsa erosion and sedimentation control review they gave us you know a thumbs up on the

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plan so water department at least from the you know erosion and sedimentation standpoint has no

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problem with what we're doing so what are our arguments leonard was talking about one of them

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a moment ago which is whether the slopes are man-made or not i'm going to put that aside for

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a second that's sort of irrelevant to the main argument the main argument is does the steep

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slope ordinance applied when you're building lots are single family homes and as such they're

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they're under the 1400 square feet of disturbance that the steep slope ordinance requires um

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sorry you'll see here in this red underline that the steep slope ordinance only applies to lots

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containing earth disturbance of greater than 1400 square feet our buildable lots do not contain that

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much disturbance. And what is a lot, the zoning code defines it as a parcel that is intended to

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be built on. So again, just to go back to this, these eight little lots don't have the required

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earth disturbance to trigger the steep slope rule. And the last thing I'm going to say about this,

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just to go back to legal argument for one moment, is that you, Mr. Chair, if you think about it in

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this manner. The city never applies its zoning regulations to the existing lot. It applies them

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to proposed lots. So imagine that there is a rule, let's say, for offices instead of residences,

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where if you have a certain number of office units, you must have a loading dock. Well,

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Now, if instead of, you know, and I'm proposing, let's say, eight small office condos, it wouldn't be appropriate for a little storefront to have to have a huge loading dock.

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But if you were to apply the zoning ordinance to the pre-subdivided land, that would be required.

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So it's a similar thing here.

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there's this sort of well-intentioned soil control rule about the development of a large

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property. But because we're building single-family homes on small lots, and Leonard has admitted

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that we're permitted to do that, our sole argument here really is that the city needs to judge our

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application based on what we are proposing to build. That's how zoning works. It shouldn't be

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judged based on the current lot lines when we are not touching over half the lot, that whole back

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area we showed you. And if I can real quickly, the sort of problematic slopes are mostly in that

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back area. The ones that happen to be in the front area where we're actually building are these

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little low-lying, like retaining walls that the prior owner used to build a parking lot. So you

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can see images of them on the left. We are not talking about severe natural hills. Here's a

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close-up. There's another one there. These are the adjacent homes. What we're building is totally in

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line with what surrounds the property. So I'm going to stop there. I have engineers and

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architects to run through these plans, but really the bottom line here is if the ZBA grants the

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appeal, then we can proceed. We're going to be legally required to subdivide the property and

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restricted through our application to only building those eight single family homes. We can't do

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anything more than that if you grant the appeal. But if you deny the appeal, we can't build

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anything. And instead, we have to submit a zoning application to subdivide the land and build

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nothing. And only once we do that can we go back and build. So basically the city is trying to

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corner us into making nine, if you will, separate zoning applications rather than one. The nine

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would be first to subdivide and then eight separate zoning applications to build eight

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separate homes. Instead, we have submitted one application that subdivides and sets up all eight

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application that subdivides and sets up all eight of those homes it's just much more efficient for

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of those homes.

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the city and if the board wants to sort of review that plan with hillary and your other council

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that's you know absolutely fine with us but it's why don't we do this why don't we uh leonard do

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you want to respond to that no i mean i think that's basically the issue i mean i i think the

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problem that we face with the city is that in this particular instance given the specific facts

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that apply to this instance, I can see where it makes, you know, maybe does make sense for

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the applicant to approach this the way they did. But we can't predict the number of instances where

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a permit application might come in that's a combined application. And because it's combined,

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it creates, like, for instance, like, let's just say, so for instance, many, I think, most zoning

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classifications, you can't have more than, you know, you can't have multiple main uses or multiple

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main structures on the same lot so you come in with a permit application to you know do new

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construction that contains multiple properties or whatever we can't and they say well you know

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we're going to subdivide this once we do this thing um but or you know you say we're going to

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do that now but again i think there that that becomes actually kind of a vote of contention

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let him finish sprain and let him finish one minute right so again i think you know again i

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I think whatever decision the board is going to make here, I think they need to be clear that it is specific to this application and, you know, leave it to the city, to city council and to planning to look at particularly the steep slope protections here.

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Because, again, in this instance, yes, we it is an artificial steep slope.

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It's not much of a slope, but it still meets the definitions.

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But in another case where you have a, you know, a real natural steep slope that is an environmentally sensitive situation, you know, it becomes, you know, problematic.

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We want to be able to maintain control.

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This is a problem where people can subdivide it into smaller pieces and therefore, you know, avoid the steep slope protections.

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We're not saying that's, well, I guess it was our position that they're doing it again.

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And I think they admitted they're doing this because they think this is more efficient.

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We think the code requires you to do it the other way.

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So, yes, it's a, you know, it's a ministerial thing.

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But in another instance, it might not be, you know, a purely administrative, you know, ministerial thing.

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It might be something that's more, you know, problematic for the city.

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So whatever you decide here, as long as it's specific to this case, you know, how this was approached, you know, that's what we would urge.

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so hillary hillary why don't we take this under advisement we'll talk about an executive session

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we'll talk with you about it and we'll uh we'll vote on this on the 14th okay sounds good do any

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of the members have questions before i have i have uh mr chairman mr chairman i have a question i

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like to know is the steep slope man-made or natural mr holliman we don't believe there are

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any natural slopes on this site at least in the building area thank you what you're saying

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brandon behind the place there could be um i i have the engineer on to address that but behind the

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so let me put it this way leonard appropriately mentioned the danger of making this some general

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rule but the beauty about your authority is that that's that's not what you guys do you decide

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specific cases and in this case we have totally showed our hands we can't build a thing here

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unless we complete a subdivision first even if you approve this today and we cannot build

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anything back there and we're not applying to we're applying to leave it as open area that was

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a swimming pool so it's a little more I think the slopes again I would have to get the engineer on

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to confirm I believe the slopes back there are largely man-made as well but they're a little

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more severe as they result from this big gargantuan swimming pool because it's so screwy back there

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we're not touching it we have no permission even if you grant us one more question mr chairman

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can you provide can you provide a cross-section of the proposed building children cut and fill

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yes i i have that mr holliman um if if the board is willing to um have me uh bring on

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the architect to walk through it i i believe i have the slides

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okay if we're going to do it let's do it quickly bring the architect scott woodruff would be the

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name of the architect and if you could also promote brendan mccardle he's the engineer

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guys

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guys if you if you could raise your um your hands

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do we see hands raised yes chair please unmute yourself and wait for the chair

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hi could you brendan state your name and spell for the court reporter

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hi my name is brendan mccardle uh b-r-e-n-d-a-n-m-c-a-r-d-l-e

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Do you swear for him to tell the truth, the whole truth, and nothing but the truth?

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I do.

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Who else is on, Brandon?

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Scott Woodrum.

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Excuse me.

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Even if you don't go in there.

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I can proceed with Brendan.

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All right, go with Brendan.

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