I just wanted to point out that when the.
the five foot side yard setback it includes the three feet we were willing to do that have the
three feet and then two additional feet which would be in effect a five yard setback five foot setback
two feet of their property and three feet of the common easement so that was that's where I was
going i was going to ask that question what are we what is the actual setback was it five feet from
the three foot which it makes it eight foot but you're saying in total it would be five foot i
think that that to to be fair you would include the three foot easement that is common to both
properties take two footies and add two feet to it chairman chairman would mr mckelhatten please
state the section of the zoning code that suggests that an easement is included in the side yard?
Now, what I said, Mr. Bovahill, was that as an accommodation, we were willing to accept that so
that you wouldn't have to go a full five feet from the edge of the easement into the property.
That is the accommodation. And when we explained that, when I attempted to explain that to you,
what your clients did or you did is instead of leaving the space where you said you bumped it
out, you moved the property to be adjacent to my client's property. And therefore, you say it no
longer needs the side yard setback. While that may be technically true, it really does, in my
estimation violate the spirit of the code. We were willing and still are willing to accept five feet
from the start of the end line of the property, including the three-foot easement. That's the
issue. Chairman? What does that do to your client's proposed development? Chairman, before I answer
that question, may I please ask counsel for the board, may I please ask counsel for the board
to consult with the board as to whether the number one we would be required to go back for
an amended refusal if we accepted Mr. McElhatton's proposal and two if if in fact our revised
proposal eliminates our side yard variance which reduces the total number of variances which is
essentially what gets considered at this hearing as a basis of law not the spirit of the code that's
not required. It's not in your checklist members of the board. We all know that. Mr. McElhatton
knows that. We all know that. So I would ask for a brief recess to consult with counsel
to see whether Mr. McElhatton's objection is any basis under the zoning code or case law because
he has cited nothing. And this is not the place to cite the case law, Mr. Mulvihill. Mr. Chair,
I've made the argument. We think that that's appropriate. I have briefly, I could show some
pictures of the actual easement area so you get a sense of it. My understanding was that this
hearing was, you know, put to the end of the list at Mr. Mulvihill's request because he expected it
to take it out, take hours. And you said at the start of this that it was not take no more than
45 minutes. And I don't know how long it's going to take, but I'm prepared to show the videos or
show the uh um if i could share my screen show those photos chairman this is still my case in
chief i would ask mr mckelhatton refrain from testifying during my case in chief number one
well you you just had you you just made a request from uh mr soletta so let's hear about that
exactly chair and i'd ask we take a brief recess so to allow you time to consult appropriately
and then ms soletta may say whatever she wishes to say on the record i just want to make excuse
me, this is Sharon Seletic. Could I first have you go through again what the changes that you
suggested are? Yeah, so here's what we did, members of the board. Our change was simply this.
Originally, what I'll do is I will now for purposes of the court, the board, the body, whichever,
get my annotations. I'm drawing in hot pink. That's a fun color. So members of the board,
initially oh that's not the right thing let's go back
fall x square back let's do this so this shaded pink area
that originally was open area okay what i'm going to do now is to use a nice
blue color to look at the pink this area that i'm now highlighting in
blue for purposes of the record that is the actual easement area
so initially what we had done which i'm now going to use a
different color. Let's do red so it's easy and different to see. Okay so members of the board
originally this area which is now in the interior has blue to the north and pink to the south. That
which now in the interior has blue to the north and pink to the south that was all considered
It was all considered
open area right because it was it was all open area and we received a side yard refusal and
i'm doing this in green hunter green for purposes of the record this area here that i've just
indicated which is now pink surrounded by green that was the only portion for a project that
generated the variance at four side yard. That was it. That is because we are not legally allowed
to build in the existing area. So we eliminated the refusal, which was actually a request of the
RCO as well, if you didn't look to their letters. It was, from my recollection, Mr. McElhaddon
adopted the RCO's position as their own in correspondence with my office. Also, a concern
of theirs, that we reduced the number of refusers. And to the best of my recollection, yourself,
chair and Mr. Holloman also asked whether we could do something to reduce the number of refusers. So
that's exactly what we did. We did exactly what everybody asked and now everybody has a problem
with it. And now Mr. McElhatton and their client, they wish for us to generate an additional refusal
but instead having to go back to L&I and this has never been like brought up at any point prior
to maybe two weeks ago. So this is now in Brown for purpose of the record and it's approximate
it because I don't have a measuring tool. So this brown area, this is what they want us to have as
our building massing. So cut an additional two feet off of everything. So now we have five foot
side yard here from the rear property line of the adjacent properties, right? And then we have a two
foot side yard here cut back from the easement. And I suggest to the board that that's problematic
for a number of reasons because one, everybody who has access to this easement is required to
maintain it, then we have this weird open area. So my client have like a fence here? Did they let
people onto their property? What if someone slips and falls? Did they have to maintain liability
insurance if someone comes in through here or God forbid, Ms. Rodriguez comes in, comes out through
and slips and falls and then she sues my client? No, it's not practical. Number one, it's pie in
the sky thinking and it does not consider the totality of the circumstances here. We reduce
the refusal. This board considers mostly refusals. And if we don't have the refusal anymore,
My suggestion is under the code as written, not under the spirit of the code as suggested by opposing counsel, we cannot cite to the code for any of their objections.
Spirit of the code is not case law, not in the Superior Court, not in the Supreme Court, not in the zoning code itself.
What we have instead is us working to reduce the refusals, which are the issues here, which will be the only thing that this board ought to consider under the law, which will be the only thing that a court sitting in review will consider under the law.
And as the board knows, looking at your checklist that you have, determining whether to grant or deny a variance, that's what we look at.
So we're not reducing, we're not impeding open air. In fact, it's not a refusal, so the board doesn't get to consider it as a matter of law. That's the issue.
So understanding what Mr. McElhatton's objections are, they're not refusals. They are legally irrelevant. And if Mr. McElhatton can cite to case law, which is relevant here because we are making a record for purposes of appeal, and under superior court case law, an administrative agency must have a complete record for purposes of allowing the court on appeal, a court of common pleas in this instance, to review the record and make a determination under the facts in the law.
right that's why we're here whether the federal rules of uh sorry the pennsylvania rules of
evidence apply necessarily or strictly here i must still nevertheless make those objections
on the record to allow the reviewing court the reviewing body in this case the court of common
pleas or god forbid the commonwealth court or god forbid on a petition for allowance of appeal that
gets granted the supreme court of pennsylvania to make a determination and not remand this case
for further determination which only wastes time right so that's why I'm here now taking a couple
minutes extra to not waste judicial resources on an appeal that will last few years that's it
members of the board so Ms. Zuleta I'm sorry I boggled your time after asking you uh that's fine
Mr. Mulvihill but it it's not always clear the line between what can be approved by revised plans
and what requires an amended application just the general standards are that the kind of change that
would be permitted to be made by administrative review if something is significant or if it
potentially generates another variance or intensifies the variance requested originally
that would generally require an amended application in some cases where that's
unclear, I will ask for L&I's opinion. So, Ms. Zuletta, without this being a binding opinion,
So Ms. Zuletta, without this being a binding opinion, understanding is only advisory,
understanding is only advisory, and you are not my attorney. You are...
and you're not my attorney, you're attorney to the zone court. If my client, and I'm not holding
you to this, right, if my client were to, I should redo that, see that Ms. Zuletta, you see where I
just put that brown square again, brown rectangle, if my client were to increase the size of the side
yard that was originally just down here, which would eliminate that variance, but then get a
two-foot variance for this entirety of this 20-foot stretch, 21-foot stretch. Do you think that
LNI would consider that an increased refusal now that we have more of a side yard and a different
side yard altogether than what was originally? I'm sorry, Mr. Mulvihill. I don't mean to be
uncooperative, but I don't think it's appropriate for me to make that kind of statement on the
record. That's understandable. So Ms. Rodriguez, other than that side yard, and I showed you the
sun study so let's get back to that question because we didn't ever get that answer because
your council interjected during my presentation in chief so let's talk about that let me zoom out
maybe okay so your did your council ever show this to you diddy i do not recall okay so i'm
showing it to you now you see this sun study yes okay remember what was the last day that we were
here at the zoning board regarding this case do you remember it was about two weeks ago so i don't
remember the date. I do recall it being Tuesday. Right. Did you call anybody to do a sun study for
you? No. Okay. Did you look online for the, for any sun study tools where you could determine
what a sun study would look like for you? No. Try in any way whatsoever to try to figure out
how to get a sun study in that time. I think, I think Ms. Rodriguez is clear that she, she didn't
entertain any uh uh advice from anyone or any sort of application you got it you're going to
go by what you have and we'll take it from there ms roger i guess you agree with what the chair
just said though you'd adopt his testimony as your own fair to say i would i agree that i did
not look up a sun study regarding that building your partner is an attorney that's fair to say
what why is that relevant does that have to do with anything i'm sorry chairman there was not
an objection and actually it has to do it's relevant because uh ms rodriguez brought that
up at our rco meeting and i believe maybe at the prior hearing i did not bring it up i wouldn't
know it otherwise chairman i'm submitting to the this board but this was the rco meeting that mr
mulville said he didn't participate in excuse me this is still my story all right i will give you
the same courtesy that you are not giving me he's Mr. Mulvihill yes it is 12 47 I understand that
chair we are required to have a break staff I mean it's just the way it is I'm not trying to
rush this but it is what it is I'm going to have to continue this case that's certainly we'll take
another two weeks and I would suggest that if Mr. McElhatton or his client have any problems with
our son's study which has been submitted previously they commission their own because
they have the ability to do that i'm happy jared to elaborate on a factual basis of why i did not
wait around for half an hour while that while old kensington neighbors association did not start a
meeting and i told them i was going to leave because they were wasting my time i'm happy to
elaborate on that oh you're going everybody's going to have another opportunity i don't chairman
listen i have no problem we're going to we have to resume this hearing there's no question about
it and I would ask both sides I maybe I'm misinterpreting this I think it sounds like
there might be some resolution at the end of the day your client Ms. Rodriguez and some of you're
going to be neighbors so I think you may be able to work something out hopefully for all sides
perhaps chairman perhaps anyway understood and the proposal that Mr. Mulvihill
outlined, as I've indicated, would be acceptable. Okay. So I think we may not be as far apart as
it sounds. Hopefully, anyway. I disagree, Chair, but that's another matter. Well, I'm sure I knew
somebody would disagree, and that's okay. All right. Again, sorry to have you guys wait from
this morning, but we knew it was going to be a little bit longer than we thought. So
can I ask a question? This is Christofino. Can I ask a question? No, no, no, no, no, no. You may
I may not ask a question, please do not say anything.
You can talk to your lawyer about it and he'll answer the question.
Don't say anything right now.
I'm a court reporter, I'm sorry for speaking over my client, but you know how this is sometimes.
Understood.
All right.
Do we have a resumption date?
March 24th at 2 p.m.
I'm sorry, 9.30 a.m.
Members of the board might briefly check my calendar to ensure it's a good date.
Please, and Mr. McElhatton, would you check yours as well?
That's ringing a bell.
Let me turn off my screen share.
Thank you.
I just went to the floor.
that is all right okay that march 24th is a good date for me members of the board
that was at 9 30 that'll work for me since i expect we'll all still be remote at that time
correct yeah i mean chair if i might request considering the fact that we've been now through
two hour-long hearings here considering the fact that Mr. McElhatton, I expect, will have a
significant rebuttal. And I'm not even done my presentation in chief at this point because my
cross has been stopped by the clock. Can we get a special listing for this instead or is that going
to be difficult? I'm just asking. I will find, I'll ask staff. There's a request from staff.
How was that? Tanya? We would push it to April. I have the exact date though.
um hey chris can you hear me
yes okay chris uh what do you want to do do you want to have a special listing for this in april
you want to try to do it in march and then maybe have to come back again it's up to you i would
like to take a pause for five minutes and talk to you offline and then come back to this meeting
we don't have that opportunity today chris i'm sorry we don't so i will talk to you in a few
seconds once you finish this well i don't yeah i think we'd rather not i don't know what the
difference is to be honest with you between the march and the april meeting it's just it's a
couple weeks that's obviously the only difference it's up to you depends on the length of
depends on the length of testimony if you haven't come to some uh accommodation between the two
parties that's correct um this is sharon seletti can i suggest that we schedule the march 24th date
and then change that yes perfect that's great thank you sharon i appreciate thank you let's
go with the march 24th and then we can always change it uh if you still haven't uh resolved
your issues great thank you all right so mi 2020 that's zero zero two four four six four two eight
that's three zero west thompson street uh this case will be resumed on march 24th was at 2 p.m
9 30 9 30 9 30 a.m thank you but if i could i'm sorry if i could just interject though it would
again be at the end of the 9 30 listing of course i don't want to be stepping on anyone else's toes
with shorter hearings okay so that'll work you'll get the time on that it'll be in this case i guess
resumed until march 24th at 9 30 a.m at which time we will consider any feedback from the uh from the
RCO and the applicant
and the neighbors.
Great, thank you.
Thank you all.
Thank you.
All right, see everybody back at 2 o'clock.
Hopefully it doesn't go too late for you guys tonight.
Take care.
Yeah, hopefully.
Thank you.
Goodbye now.
And then we'll give...
Okay, and then we'll give...
we are live yeah we're recording again okay thank you so uh i'm not sure if it's jason or
lakisha give you a few minutes you're good to go you're ready okay thank you good afternoon