Okay, Chair, we have 39 attendees and we can start as you wish.
Thank you.
Good morning.
My name is Bill Bergman and I will be chairing this morning the ZBA hearing.
With me is our Vice Chair, Ismail Shahid.
Present, Mr. Chairman.
Our Board Member, Thomas Howellman.
Present, Mr. Chairman.
And our Board Member, James Snell.
Present, Mr. Chairman.
Also present is Hillary Emerson, our Attorney, and our Executive Director, Tanya Sunken.
Here's our virtual format.
Be advised, the proceedings are being recorded.
The video will be available by contacting tonyasunkett at phillip .gov.
For the benefit of our court stenographer, we ask attorneys and witnesses to identify themselves before testifying.
If you're participating in my phone, if you wish to testify, press star 9 to raise your hand and star 6 to unmute.
To enter an appearance statement, call 267 -270 -5548.
Leave your email and the address of the property in question.
And finally, the question and answer box on the screen is not for comments or testimony.
All comments should be directed to our Executive Director, Tanya Sunken.
Let's look at the case that we have continued today.
Number five, MI 2021 -004 -548 -4306 -08 Parkside Avenue, that case is continued.
you. Number six, MI 2022 -005 -210 -4206 Parkside Avenue. That case is continued. Attorney moving
party. Number eight, MI 2022 -007 -347 -224 -30 West Topohockin Street. This case is continued.
10. MI 2022 -007 -282 -4100 Orchid Lane. That case is continued. Mark must be heard.
Number 11, MI -2022 -005 -205 -4204 Parkside Avenue. Cases continued, attorney moving party.
And number 12, MI -2023 -002 -342 -1716 -18 Addison Street. That case is continued.
Is there anyone in the audience who has comments relative to the cases that have been continued?
Good morning, Chair. This is Nadia. I will be your co -host today. I see no hands.
Thank you. Are there any other requests for continuance?
i see no hands okay uh case number one mi 2022 002 121 202 spruce street
is verne anastasio in the audience
he's coming in as a panelist now thank you
Good morning, Mr. Chair.
Sir, could you state your name for the record and spell it, please, for the court reporter?
Yes, sir. It's Vern Anastasio, V -E -R -N. Last name is A -N -A -S -T -A -S -I -O.
All right. Do you swear, Vern, to tell the truth, the whole truth, nothing but the truth?
I do. And I'm here representing Mr. Joseph Onisky.
Is this case being withdrawn, sir?
Yes, it is.
Yes, it is.
Okay. Thank you.
Thank you.
Thank you.
Thank you.
I am I.
MI 2022 -002 -121 -202 Spruce Street.
This case has been withdrawn.
We're going to go to our list.
We're going to start with number seven, which is MI 2023 -001 -876 -2315 Power Street.
Jennifer Brazillo is the attorney.
our vice chair will be handling this this case
Ms. Bozzillo has been promoted to panelists
Good morning
Good morning
Do you agree to wave the read
Excuse me
Do you want me to swear in for you?
You swear to tell the truth the whole truth and nothing but the truth
Please state your client and your connection to your client, please.
My client is Zubin Hensler, who is the owner and operator of the tenant of the property, Home Cone Audio LLC.
Do you agree to waive the reading of the refusal to stipulate to his accuracy?
have you emailed in all the required documents and exhibits that are needed
and required to proceed with this case five days in advance of this hearing
yes please proceed to share your screen
excuse me this is hillary i just want to note for the record that this is a resumption hearing
um and also um miss bazidlo if you could just spell your name for the court reporter
Thank you. Sure. Sure. It's B as in boy, A as in apple, Z as in zebra, Y, D as in David, L as in Larry, O as in Oscar. And Jennifer is just spelt the normal way.
all right so um and we we filed a request for reconsideration um on a limited issue um on on a
on february 8 2023 a temporary variance was granted for this property to use the first floor
uh for professional recording studio primarily for recording and editing podcast um the decision
has the end date of the temporary variance as March 1st, 2025. And we're here today asking
only for the, oh, and what's important is that my client, while he's renting the first floor as a
commercial space, lives in the second floor residential unit above the commercial space.
So what we're asking for in the motion for reconsideration is to just move the end date of the temporary variance from where it is right now at March 1st to July 1st of 2025, same year, just a few more months, so that it coincides with the renewal of his residential lease.
Since he's both working and living in the building, it would be beneficial for him if they could both end at the same time so that he could find a new space for both living and commercial business at the same time.
I just wanted to note that this is a shorter period of time than what was agreed to by both the Civic Association, Fairmount Civic Association, which agreed to a full three -year instead of two -year variance,
And also what was supported by the neighbors, the immediate neighbor of the property who also approved of a full three year variance.
So we're just asking for two years plus a couple of months so that we can be in so that both leases can coincide with each other, both the commercial and the residential unit above.
okay any questions from the board
it doesn't seem like you had no mr chairman uh pictures
questions from the virtual audience yes i have a one hand up patricia wilson
out loud on the top. Good morning. This is Patricia Wilson from 2302 Parish Street. I spoke at the
last meeting. Please spell your name for the court reporter, please. It's Patricia Wilson,
P -A -T -R -I -C -I -A -W -I -L -S -O -N. I spoke at the last... The whole truth and nothing but the truth.
I spoke at the last meeting, and I encouraged you folks to consider a shorter, you know,
I do. So I spoke...
were it that you were going to grant essentially a use variance, that there was not a hardship,
and having heard the Planning Commission also agree that this should remain residential,
I'm still sort of perplexed here. The applicant got a two -year variance. He always has had the
ability to come back in after that ended to say, okay, now I want another year. This change,
in my view, is not only not warranted, but again, should you determine that you're going to grant
this extended variance that that you also put in your proviso the stipulation that as testified to
this will be one person working there this will be strictly podcasts the applicant said tv radio
recording you kind of need to know this is clearly very residential if you walk down power street you
will see there are maybe three commercial operations, Angelino's restaurant, the Lumos
yoga studio. They are absolutely uses that are good for the neighborhood, good for a residential
neighborhood and have been longstanding. So I'm going to urge you once again, if you've already
granted it, limit the period of time. If it works out well, he can always come back and limit the
number of employees and the basically the hours of operations so that we don't turn this truly
into commercial space because honestly no benefit to the neighborhood to this being here none at all
thank you thank you for your comments anyone else on a virtual order sure council sure so we already
discussed this at length in the original hearing this building has a long standing use as a mixed
use building. It has at times been residential. It has at times been, but it's always been divided
into several units and was in fact constructed as a commercial corner property. We're dealing with
a corner property. The previous use of this space was commercial for a fitness studio.
Ample testimony was put on at the original hearing of why this was an appropriate use,
and the board agreed we are only asking to have an additional four months so that the leases
coincide with each other. This was information that we could not have known at the time because
we did not know at the time of the original hearing as we did not know what proviso and end
date that the zoning board would have put. So I would say that we just need to the only issue here
is not any of the other issues that neighbor brought up, but whether or not the zoning board
would approve of extending this just a few months, not an entire year, not beyond what was approved by
the community association and the next door neighbor, just a few months to coincide with
the residential lease of the unit above that is occupied by the operator of the business.
Thank you, council. Anyone else in the virtual audience?
I see no hands. Planning commission.
uh ron bednar i believe we already provided testimony about this
oh yes do you want to add anything else to uh your testimony ron no from the planning side
not at this time not at this time thank you excuse me this is the court reporter could
Mr. Bednar be sworn. Oh, I'm sorry. First name is Ronald, R -O -N -A -L -D, last name Bednar, B -E -D -N -A -R.
All right. 23, M -I -2 -0 -2 -3. I'm sorry, Chair.
I'm sorry, Chair, this is Tanya. Can you just swear him in for the record, please?
You want him sworn in, although he didn't, he's not making the testimony?
i do all right no problem um do you ron do you swear to tell the truth the whole truth
and nothing but the truth i do as i as indicated i believe we already provided testimony for this
case and you don't want to add anything further right ron we do we do not thank you thank you
Thank you kindly Chair. No problem. MI -2023 -001876, 2315 Parrish Street. My vote is yes with proviso to extend the proviso.
to extend the proviso for a temporary variance to expire July 1st, 2025.
My vote is yes with proviso.
James Snell, my vote is yes with proviso.
Thank you, counsel.
Thank you very much.
Thank you, Ish.
Number nine, MI 2022 -005 -080 -1529 Reed Street.
Sean Whalen is the attorney.
Letter of support from East Point Breeze neighbors with uses under the CMX1 zoning district.
Mr. Whalen has been promoted to panelists.
Good morning, Mr. Whalen. Could you please state your name and spell for the court reporter?
Certainly. Sean Whalen, W -H -A -L -E -N.
Right. Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?
Yes, I do.
Could you identify your client and the relationship to this property?
Certainly. My client is Alex Klein, K -L -E -I -N. He is the owner of the property.
And our vice chair has just a few questions, sir.
Certainly.
Good morning, counsel.
Do you agree to waive the reading of the refusal and stipulate to its accuracy?
Yes, I do.
Have you emailed in all the required documents that are needed to proceed with this case
five days in advance of this hearing?
Yes, I have.
Thank you.
Please proceed.
Thank you.
Thank you.
So hopefully you can all see right now I'm showing an aerial view of the neighborhood of 1529.
I've attempted to try to highlight the existing building here for you.
We have a relatively low use ask for you today.
This is South 16th Street, South 15th Street's right over here.
This is an existing three -story building.
There's an apartment on the second floor, an apartment on the third floor.
Those are not subject of this application. There's going to be no change there.
Rather, we're just asking there's a longstanding commercial use or history of commercial uses, I should say, on the first floor and in the basement.
These are very small floor plan. You have about 400 square feet on the first floor and approximately 300 square feet or so in the basement usable.
They are not built out as part of the basis of the hardship.
They're not built out for residential use.
Rather, they have been sort of operated as a standard kind of CMX1 commercial corner
use in the neighborhood for some time now with smaller entrepreneurial tenants, fashion
designer, political office.
um you know historically there was a hair salon there um and what you can see again here's
south 16th street and here's the property right here at the corner of
south mole street and this is south hicks just to give you some examples uh right across the
street from us is a very large apartment building and as you can see uh the icmx
portion here is the apartment building. The highlighted in blue portion is our existing
property. Very small lot area, only 778 square feet for the entire lot. And you can see as
a standard in most neighborhoods like this, the corner lots are dotted with CMX1. And I'll show
you in just a second photos documenting that there are four or five properties just to the other side
of us on the east side that are also being operated currently as cmx1 kind of low intensity uses
so again here's the existing building uh should make clear no new construction no signage on this
plan nothing of that sort has an existing uh corner access we are only talking about this
lower first floor and uh the small basement uh immediately underneath again it's about 400 square
of feet. It's been used as multiple small businesses. A lot of small first -time entrepreneurs
are using this site and then either, you know, hopefully succeeding and moving on to larger sites
or just moving on in general. So again, this is just across the street. Diagonally,
just across the street. Diagonally, you have a hair salon.
you have a hair salon.
Down on the same block, you have a small corner grocery store.
And immediately across the street, there's the hair salon I was talking about. There's the
apartment building. You have a small corner flower shop. So again, these are standard small
corner commercial uses in the neighborhood. And what we have is the property, I should
make clear, is zoned RSA 5. So it's zoned RSA 5, single family residential. What happens
is every time, even though it's had a history of commercial uses, every time the owner gets
an application for a commercial use, they then have to go through the variance process
to get that commercial use approved. What we've been finding is we have lost numerous tenants
of late because those tenants can't wait. I mean, again, these are not corporate tenants that have
kind of substantial backing. These are individual entrepreneurs looking for a very small starter
space. They can't wait six plus months for the variance process and the zoning process to play
out. And so our only request, and you can see we have a single refusal, is that we actually asked
for CMX2 uses to be allowed by right just on that first floor in the basement. We presented this to
this way, you know, any use that's approved, any use that's not approved would still have to go
through the zoning process. Any use that is permitted under CMX2 would actually be allowed
by right and they could just pull that individual zoning permit. So we went in front of the East
Point Breeze neighbors. We had a very good meeting with them, ended up with a letter of support.
And just to be clear, we are seeking today a reduction from our original request of CMX2
down to only CMX1 uses. That was a request by the neighborhood and the owner agreed.
So that will be a proviso that we would need to add into our decision today.
So again, we're asking for just CMX1 uses.
We got a letter of full support from the neighborhood.
There were some neighbors who were nervous about some high -intensity uses.
The owner agreed to work with the community to not bring any kind of high -intensity uses.
The main one that was discussed was a hair salon.
There's actually already a hair salon immediately, a catty corner to us, so not an issue.
There were also questions about restaurant uses and things like that.
Simply put, this space has no kitchen, no full bath, no hood, and is only 400 square feet,
so it can't use any restaurant space whatsoever, so that's just not even an option.
So again, just a letter of authorization from Alex Klein to proceed and the deed showing it. And if the board has any questions, I included in my packet the allowed uses for CMX1 just to show what could be utilized here.
So that is our relatively simple request today, and I'm happy to have my client's representative sworn in and adopt my testimony.
We'll have your client's representative come on.
Ori Feibush.
Mr. Feibush.
Good afternoon.
Hi, could you state your name, please, and spell it for the court reporter?
Corey Fibush, O -R -I, F as in Frank, E -I -B -U -S -H.
Right. Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?
Proceed, counsel.
Thank you very much. Mr. Fibush, you're here on behalf of the property manager who has actively
been managing this property for the owner, Alex Klein, for some years now, correct?
Yes, sir, about a decade.
And have you heard the testimony that I presented already?
I have.
And do you believe it to be true and correct to the best of your knowledge, information, and belief?
And would you adopt that testimony as your own?
I would.
And is there anything additional that you believe would be pertinent for the board to know before voting?
No, I think you summarized it well.
Thank you very much.
With that board, I would rest unless you have any questions.
Questions from the board?
No, Chair.
questions or comments from the virtual audience i see no hands planning commission this is uh ron bed
i see no hands planning commission this is uh ron bednar city planning property is currently
uh functioning as a commercial space to as the unit layout on the first floor
small and broken um broken up by um hold on a second broken up by the stairs of the residential
units. The property is located, again, on a residential street. The increase to CMX2
represents an overuse of the property. We recommend the request of variance not be granted.
And MI 2022. If I could just make one clarifying point there, Board Chair,
we have agreed, I heard the Planning Commission testify that we should be limited to CMX2 should
not be granted. We are limiting ourselves to CMX -1. I have that. Thank you. MI 2022 -005 -080 -1529
Reed Street. I vote yes with proviso. This approval is for uses permitted under the CMX -1
zoning district at the first floor and basement. Use registration permit required prior to occupancy.
Thomas Holloman my vote is yes with provisos James Snell my vote is yes with proviso
Ishmael Shahid my vote is yes with proviso thank you counsel all right thank you very much everybody
Sure. We're going to go to number four. MI 2021 -005 -028 -224 -30 West Topohockin Street.
Michael Phillips is an attorney involved in this for the property owner.
Leonard Reuter is the attorney for the city and also Steve Master is for the appellants.
michael phillips has been promoted to his panelists and so have steve master
and leonard reuter okay thank you
billips mr phillips could you state your name and spell for the court reporter
good morning michael phillips with claire harrison harvey bransburg on behalf of the
property owner, Tulpa Hawken Mansion, LLC. M -I -C -H -E -L -P -H -I -L -L -I. Do you swear or affirm
to tell the truth, the whole truth, and nothing but the truth? I do. Good morning, Mr. Masters.
Could you state your name, please, and spell for the court reporter? Good morning, Mr. Chair,
members of the board, Steve Masters, S -T -E -V -E, M -A -S -T -E -R -S, with the law firm of JustLaws.
I represent the objectors who brought this appeal. Right. Do you swear or affirm to tell
the truth the whole truth and nothing but the truth i do mr reuter can you state your name
please and spell for the court reporter leonard sorry um okay all right please thank you uh may
please the board leonard f reuter reuter senior attorney for the city of philadelphia
you. Do you swear, affirm, to tell the truth, the whole truth, and nothing but the truth?
I do. I understand we are going to start this morning with
opening statements.
We're going to go to Mr. Masters first, then we'll go to
Mr. Reuter, and then Mr. Phillips.
So, Mr. Masters, would you want to give us opening statements, please?
Yes, I'm going to use my screen for that, too.
Good morning, Mr. Chair, members of the board. We're here on the appeal that Carla Willard,
Connie Winters, Michael Ramos, and Susan Wright have brought against the issuance of a zoning
permit in 2021 for this property. I wanted to just walk you briefly through a couple of the
exhibits to give you the context of what we're doing here today. So we're going to look first at
Exhibit 7. This case, as the board knows, went up and down the courts. There were two appeals that
were brought from the zoning board in 2017. There was a trial court decision by Judge Patrick and
then the Commonwealth Court overruled Judge Patrick twice. We, in the course of the last
litigation with the Commonwealth Court, we have a joint stipulation. Oh, sorry. We're looking at
the joint status report. It is... Yes. Okay.
Uh, yes. Okay.
Um, I thought it was exhibit seven. Excuse me.
I apologize for this. I had it all teed up, but it appears to be out of order.
It is Exhibit 9. Okay. So in all three parties, the objectors of Darren Billvy's attorney and
and the city came together and filed a joint status report.
And in this joint status report, the city advised the petitioners that was us and Mr.
Bilby that Mr. Bilby had to file a zoning application and an amended building permit
application to reflect the changes in the Commonwealth Court's reinstatement of the
zoning board's provisos.
So that's that was the genesis of why there was a new zoning application that was filed in 2021.
We then filed a supplemental report to the court, and we basically then informed the court that there was consensus among all of us on certain aspects of the provisos and not consensus on all of them.
So we informed the court that all of the parties, including Mr. Phillips, believed that the provisos meant that there should be no additional curb cuts along Pastorius and that they had to remove all the parking spaces along Pastorius Street.
We then informed the court that the city, Mr. Bruder and ourselves, believed that the language of the proviso, along with the statements that the zoning board members made at the hearing, required that any new zoning application submitted to L &I indicate a restriction on the remaining curb cuts along Pastoria Street for the use of service, delivery, and emergency vehicles only.
Counsel for Tobahawk and Mr. Phillips did not agree with that position, and he maintained that the proviso doesn't restrict Pastoria Street curb cut access in any way.
We then entered into a stipulation between the city and objectors, and we filed that with the court.
And what our stipulation says is the following.
um the stipulation says that this is um the first paragraph is this is what the provisals are
um no parking on pastoria street parking curb cut on top of hawkins street only no additional
curb cuts on pastoria and that's a direct quote from the opinion of the court in paragraph two
um we noted um the agreement of all the parties to removing the additional curb cuts and removing
all parking spaces. Then in paragraph three, we said, and this is the city and objectors,
that we stipulated that the language of the proviso along with the statements that you as
members of the zoning board or your predecessors actually made in 2017 require any new zoning
application and building plans to restrict access through any remaining curb cuts along
pastoria street for the use of service delivery and emergency vehicles only um we also further
stipulated the city and the objectors that the city would obstruct would instruct department
of licenses and inspections to require that any zoning and building plan submitted by mr phillips
client had to restrict the access through the remaining curb cuts along pastoria street
for that use, the service delivery emergency vehicles only. So that's what was established
by the court. Now, the court then received a motion from Mr. Phillips saying,
you should strike that stipulation. That stipulation was wrong, and it violated a bunch of,
he made a bunch of claims that that stipulation was an illegal stipulation, and told the Commonwealth
Court, you should strike it from the record. The Commonwealth Court actually voted to deny his
motion, and I want to show you what they said.
And I want to show you what they what they what they said.
A lot of what we were arguing about was whether the Commonwealth Court should be the the tribunal to to determine whether there was any violations that that Mr.
Bill B was making at the zoning violations or whether it should be L &I. The court said L &I is
the entity that must first determine whether there are any zoning violations at the property.
And so the filing that we filed for contempt, they said that it wasn't proper. If there are any
current violations at the property, they should first be addressed by the city and L &I, not this
court. Then they issued a footnote, three, and it said, moreover, in a stipulation filed by the
petitioners and the city, I'm going to make this bigger, on November 5th, 2021, those parties
stipulated the city will instruct its Department of L &I to require any zoning or building plans
submitted to restrict access through any remaining curb cuts along Pastoria Street for the use of
service delivery and emergency vehicles. The court then said, this reinforces our belief
that LNI is the entity that should be addressing any current zoning violations of the property,
and therefore, and then they also said that Mr. Phillips' application to strike the stipulation
is denied, and finally they issued an order in which they denied both our petition for contempt
and they denied the stipulation to strike. So with footnote three, we see that not only did
the city and objectors agree as to what the meaning of the provisors were, but the city
committed to telling LNI, you need to only approve a zoning plan that complies with those terms,
is that there can't be any blockage on Top of Hawken, you know, so that's the situation.
Now, the last thing I'm going to say before I turn it over to our, well, actually, I guess it'll be Mr. Phillips for his opening, then we'll have our witness, is I want to just review for the board briefly what happened during the first appeal.
The first appeal to Judge Patrick was in July of 2018. It was a different attorney back then. It was Cheryl Gaston. Previously, she was the attorney for the zoning board for the city.
Ms. Gaston went through a long recitation of what happened at the hearing in 2017 and what the claims were. And she was complaining that the objectors had these objections, but they didn't really, they didn't object to the multifamily use, they didn't object to the number of units, they just objected to, as you know, the parking spaces and the ingress and egress.
And then this is what the attorney for Bilby said. The board said you can have the 19 parking spaces. But what they did say was, well, you can't. The Planning Commission makes a recommendation. So the Planning Commission says, well, the only access should be from a Topelhocken driveway.
way. Then Cheryl says, well, part of the testimony from these folks was that when the chairman of the
board said, do you have any traffic study? No. Have you contacted the streets? No. She complained
about all these things. Then she said, they haven't done anything to address their issues
with respect to the street and the zoning board. That's the part of the problem here, imposes a
proviso that basically says, you can only go through this driveway on Tubblehawken. Then Cheryl
says, I have to remind them, there's already a driveway on Pastorea Street. That's the one that
we proposed using and extending for the purposes of adding this extra parking. So what the board
said was, no parking on Pastorea when the final writing comes through. It says no parking on
Pastorea, and then it says, Talpahawken Access, even though we said there already is a driveway
here. And the board said, the board chair says, oh, no extension of the driveway. What does this
mean? This means that in 2018, Mr. Bilby's attorney told the court that we're not allowed,
that these provisos that the zoning board issued block us from extending our driveway and putting
a curb cut at the end of our driveway. They made that claim to the court. They said, this is a
terrible proviso. This is going to completely hinder our development. So we want you to strike
the proviso. And Judge Patrick agreed with them and she struck the proviso. We got it reinstated.
And Judge Patrick agreed with them and she struck the proviso. We got it reinstated.
But the point here, members of the board, is that once a party makes that kind of a claim, they can't then go back and say the exact opposite.
They can't say in 2018, here's the truth here.
The situation is that these provisos are going to stop us from extending the driveway onto Pastorius.
They're going to stop us from putting a curb cut there. And then now in 2022 and 20, they put, sorry, 2021, they put in plans saying, well, we're allowed to extend the driveway on Pastorius. We're allowed to put a curb cut there. They can't do that.
They can't do both things. That's basically a cardinal legal rule that once a party, they could have said, here's what they could have said. They could have said, we don't know what the proviso says. It could say this, it could say that. They could make alternative arguments.
But once they commit, this is the truth. This is what this proviso does. They can't, they're locked in and they can't go back on it. So our position here that you'll hear from our witness shortly is that the curb cut that they, the new curb cut that they put to extend that driveway on Pastorius was an additional curb cut.
That was not allowed. The landscape buffer that they put in to block all the tenants being able to go in and out of Topohocken Street, that curb cut, that was not allowed because the zoning board, you said in your proviso, you're not allowed to have access on Pastorius except for these service emergency vehicles.
All the access has to be from Topohockin. So approving a landscape barrier that blocks it is completely against the terms of the proviso and approving a new curb cut is also against the terms of the proviso.
And we will show you that with our expert testimony.
Mr. Reuter, would you please go next?
Thank you. I'll try to be brief.
As you may know, and I don't want to belabor the very long and annoying history of this matter, but the question that's before the board is whether or not the permit that was issued by the city was invalid.
And Mr. Masters and his clients are arguing that the permit is invalid because the permit violates some determinations that were made by the Commonwealth Court.
But again, if either the city or Mr. Phillips' client is in violation of the Commonwealth Court's order, that doesn't invalidate the permit.
That's something that would have to be raised in that forum.
But leaving that aside, we don't believe that the permit that was issued in order, if everything Mr. Masters is saying is correct, it is an enforcement question.
And so, for instance, with respect to the curb cuts, one of the problems with the proviso, the original proviso, how it, well, there were basically three provisos, but I think the court, Commonwealth Court, I think we all agree that the actual proviso was the first one that was actually issued in writing.
What was stated at the zoning board in the initial variance case was slightly different than what wound up in writing. And then there was a motion for reconsideration, which was granted, later invalidated, but there was a third proviso.
so part of the problem with what the commonwealth court said is that the commonwealth court still
never really explained what the proviso means uh so the most important issue i think before you
and i think what everything comes down to well there's two issues i think mr masters would say
there's two issues the first one is what curb cuts existed prior to the zoning permit application
And again, I think there'll be documents presented by one or the other party that will show that there is a great deal of ambiguity about that.
It was the city's position based upon documents that have been provided that on the plans that it showed there were certain existing curb cuts.
So in accordance with the proviso, and we agreed that we were required to apply the proviso as finally determined by the Commonwealth Court, but the existing curb cuts were allowed to remain.
So we receive a permit application and plans and the permit application and plans for this most recent permit indicated existing curb cuts.
The planners at L &I don't go back and say and go through to do historical research and photos and satellite views to determine what was or what wasn't.
These are plans that are submitted and sealed by an architect or engineer, and we take them at face value. If Mr. Masters is saying that the plans that were submitted were inaccurate, that's fine, and that's for this board to determine.
These are plans that are submitted and sealed by an architect or engineer.
you know it's like somebody saying well the measurement for the side yard or the measurement
for open space is incorrect again lni doesn't go out and measure these things themselves we take
the plans at face value if a third party says the measurements on the plan are inaccurate they can
come here and they can present their witnesses and their testimony and in effect the city in
that instance would would be essentially neutral because again we're not in a position where plans
examiners can go out and authenticate and verify all the measurements and all of the materials
that are submitted on plans and applications when you submit that plan and when you when you submit
that plan with an architect seal you are verifying or certifying that that is accurate to the best of
your knowledge the same with the permit application you are submitting a permit application
and the submission of that application is a is a self -certifying document that says what's in that
application is true and accurate if it turns out it's not later that's not on the city or lni that's
on you the applicant so with respect to any inaccuracies on the plans or the permit application
that were submitted the city uh you know it if there's proof of that then that's fine that can
be presented and we again we're not in position to make those checks now with respect to some of
the curb cuts we we did in fact uh believe that some of the curb cuts that uh were installed that
were not even part of the plans were uh not legal and we indicated that to the uh to the applicant
uh through mr phillips and those curb cuts are not to be used uh for essentially driving up
to uh parking spaces we're not we don't allow parking on the pastoria street side now people
are violating that that's a violation that's a 3 -1 -1 thing you call 3 -1 -1 you say hey people
are parking here they're not allowed to park here there's still curb cuts uh i don't believe
a curb cut notice had has been i thought well it's not clear whether it was i don't see it in
the eclipse record uh but mr phillips can probably verify whether or not they received
what was happening was they were they did not they won't get a certificate of occupancy and i
believe and again mr phillips can correct me is that they are still uh operating with a temporary
certificate of occupancy because they won't get the full co until the issue of the curb cuts
uh is fully resolved and again he can he can clarify that um because that's at the time uh
they were notified about that the property was still most still somewhat under construction
uh now the other issue so that's so the curb cut thing is basically it's the city is totally fine
with this board making a determination of what curb cuts predated the 2017 2018 uh application
if this board determines that there was only one curb cut or there was two or three or however many
and where they were that's for this board to decide the city doesn't isn't going to go back
uh and do historical research on that and again i mean to the extent that we have it is still
actually somewhat ambiguous um now because again you have depressed areas of the curb and it's not
clear whether those were curb cuts or whether they're just simply uh curbs that have sunken
and depressed over the years now the other issue mr masters had mr masters um said is uh one which
we believe is strictly an enforcement issue again which is access uh to the property from the
pastoria street so there's like a driveway now that one was and i don't think there's any dispute
there was a curb cut and driveway there that was existing uh it had not been used apparently in
some time uh that is being used to access the property from pastoria and we agree that's only
supposed to be for uh emergency vehicle and service vehicle access that may have been extended
uh and again i don't believe we that is widened um and i believe a telephone pole may have been
relocated but again that's all enforcement issues that's not really uh in other words if they built
something and it's not in accordance with the approved plans that's an enforcement issue if
If you're only supposed to access the property, if that driveway is only for emergency vehicle access and they see other people using that driveway, again, that's an enforcement issue.
It's not a problem with the zoning permit per se.
This is an appeal against L &I.
This is not a hearing about whether or not there are code violations.
uh a hearing about whether or not there are code violations uh there might be uh and again the city
There might be.
did believe that there were problems with uh the construction of the property and the layout of
the driveways and the curb cuts uh as built um that they didn't exactly conform to the plans
there was a little bit of a minor problem involving um accessible parking spaces i think
that was resolved um so now again we we didn't really issue code violations for many of these
things because they didn't even have the certificate of occupancy so we what what happens
in a case like that if you're doing things not in accordance with plans or if there are problems
with the construction site we withhold the certificate of occupancy we don't issue
violations we may issue the stop work order although i don't think we did in this particular
instance so you know again if if people are using that driveway and they're not supposed to that's
an enforcement issue and you know if mr master's clients are saying that you know the mr bilby has
effectively prevented residents from entering on tulpa hawkin i don't know whether that's true or
not and again it's not something that l and i would go and make a determination of uh unless
they were you know people were complaining and again i believe early on people did complain ellen
i went out and we wasn't able to make a determination because at the time the property
was still not complete and again they're still operating i believe under a temporary certificate
of occupancy so the bottom line is not to sound like a broken record but pretty much everything
that's being discussed here is an enforcement issue not necessarily a problem with the existence
with the permit as approved. Thank you. Mr. Phillips. Thank you. So I'll try to keep this
as concise as possible. And I will share my screen. I just have two things that I want to
show. But I want to start with this issue that Len concluded on about the emergency access vehicles
and the use of the driveway. That is not an issue here. That's not part of the proviso.
It was part of a subsequent proviso that was stricken by the Court of Common Pleas, and that decision was upheld by the Commonwealth Court.
And what the proviso provides is pretty clear.
There's two aspects.
So you're looking right now, this is the Commonwealth Court opinion, and we have this topic of the proviso. What does the proviso say?
At the outset, the proviso at issue states no parking on Pastorius, curb cut on Topahawken only.
And then it goes into the discussion at the conclusion of the hearing where there was this exchange between former Chair DiCicco and my client's former attorney,
which said, do you understand the part of this, that there was already a curb cut on Pastorius?
uh chairman to chico says no additional curb cuts on pastorious and and uh miss gaston says
as long as we're clear and so the commonwealth court stated there is no doubt that the zba's
proviso was intended to prohibit additional curb cuts on pastorious street so the proviso again
has two aspects no parking on pastorious curb cut on top of hawken only which was clarified to mean
intended to prohibit additional curb cuts on Pastorius. There's no dispute that the plans do
not propose accessory parking spaces along Pastorius. So there's one single issue for the
board, and that's did L &I err in 2019 and 2021 in approving this permit due to the location of the
curb cut. Now, there's no dispute there were two curb cuts at the time. And I will just show
history. This is what it looked like in 2018. There was a curb cut down here that I don't think
anyone is ever claiming was used. And this is the curb cut from Pastoria. You see, it would lead
right into the property and then bend around. No dispute that this curb cut per the Commonwealth
law court can remain that there's no additional curb cuts. But this curb cut, admittedly, was
modified and at the request of streets department for purposes of safety and circulation. And I'll
show you what it looks like now. Okay. 2022. Here it is now. Now, all of these spaces down here,
there are bollards up. They are not being accessed. They cannot be utilized for parking.
and we have a pending application for a variant before the board and the issue of weather parking
before the board, and the issue of whether parking will be allowed here in the future
will be.
is subject to determination. But as of right now, no dispute, they're not. So the sole issue is
whether the relocation or modification of this curb cut constitutes a violation of the order.
And again, went like this. Now it's straight on, much more safe and much better for all vehicles.
And even if Mr. Masters was correct that we're limited to emergency vehicles, which we're not, I believe this configuration is much more safe and much more logical than this.
So the only recourse would be to compel the property owner to relocate the curb cut to this condition rather than modifying it.
Again, we don't have additional curb cuts. We're just talking about one, one curb cut, this one here that's allowed.
And whether being forced to move it over, which would, again, impede safety, we paid, you know, there was $7 ,000 paid to PICO to relocate a telephone pole to do all of this work to make it safer, easier to access, better for pedestrians.
So you're not having cars drive right in front of a unit here that is occupied by a single mother with her eight -year -old child.
It can all be right here.
It's safe.
It's common sense.
It's practical.
We don't need – Mr. Masters has an expert testimony on this point.
We don't need an expert to say that the curb cut was shifted over 20 feet for safety.
The board can see it right here.
And if the board decides that my client must relocate, reconfigure its plans to make the curb cut less safe, less practical, and more difficult for ingress and egress, then that would be the only recourse.
Otherwise, we would ask that the board reject this appeal.
As Mr. Reuter said, if there's any violations, that becomes an enforcement issue.
But what we're talking about is this curb cut, this access, and, you know, modifying it from this to this.
We don't have an additional curb cut.
It's just the one, and it's much safer, makes much more sense, and this is what the permit we're based on.
If I could just very briefly, Mr. Chair, just to follow up on what Mr. Phillips said.
As indicated, you know, the city knows that the curb cut was widened and relocated.
It's my understanding that that was done with the approval or instructions of the streets department, as Mr. Phillips said.
So we're not conceding that that relocation of the curb cut is a violation of the proviso or the court's order or whatever.
But even if it were, the streets department has the authority to require changes for purposes of safety.
So we don't think that then again, if somebody thinks we're in violation of the court order, then take us to court.
This is, you know, in terms of the public safety, if this this is what the streets department required.
Now, with respect to the other curb cuts, again, there may still be an issue for this board to determine, you know, whether those curb cuts existed or are allowed to remain under the proviso.
I don't believe the curb has been restored.
So technically the curb cuts still exist, but after Ellen and I gave direction to Mr. Phillips' client, it is our understanding that those bumpers or whatever barricades are up and that people aren't able to pull in directly to those spaces from Pastorius.
Now, whether they can access those from the driveway, I don't believe they can. I think there's a barrier from that 20 -foot, the wider modified driveway. I don't believe they can go in there and then turn left to go. And as far as I know, when Elinor has been out, they haven't seen people parking there.
Now, again, during construction, there were there were workers, people working on the site who were parking wherever they could.
The city doesn't issue a code violation to a construction site saying you're illegally using it for parking.
That's just not a thing that we do that that makes it pretty much impossible to get to get projects finished.
So we don't we don't enforce parking restrictions while a while a site is under construction on the site, because that would just be silly.
um but uh but you know again if the only issue there's so the only two issues then you know
again is can this modified curb cut remain the way it is uh and again that is subject to streets
department approval because they it's required for safety reasons and again i think it's mr
masters who subpoenaed the city's witness uh mr montana's and and if and when he's called he can
explain that so i just wanted to clarify that we're when i when i talked about the extended
So I just wanted to clarify that when I talked about the extended curb cut for the driveway
previously, I wasn't suggesting that that was necessarily in violation.
I was simply saying that it was a thing that happened, that there was a relocation of it.
Thank you.
And thanks, everyone, for your opening statement.
Just a reminder, we're trying to hold this hearing to 45 minutes.
So, Mr. Masters, you're pulling your first witness.
I'm going to let you know when you're 20 minutes in, and I think we're going to have
to cut it, okay?
All right. Thank you. I'd like to call Nancy Templeton from Siege Planning.
And again, I would just like to, just for the record, just my continued objection to Ms. Templeton's testimony on the subject of relevance.
All right. Thank you.
Just in response, her testimony is profoundly relevant. She's an expert on our zoning code. She was part of the zoning code commission.
She's testified before the Zoning Board numerous times, and she's here to give her advice and guidance as to what is an additional curb cut and which curb cuts were existing, which were not, and what the statuses of the landscape offer.
So there's no way that we could present that information from a lay witness.
Thank you.
Ms. Templeton has been allowed to talk.
Ms. Templeton, could you state your name, please, and spell it for the court reporter?
Nancy Templeton, N -A -N -C -Y -T -E -M -P -L -E -T -O -N.
Do you swear for him to tell the truth, the whole truth, and nothing but the truth?
Proceed, counsel.
Mr. Chair, can she be promoted to a panelist so that she can?
He can. Yep, absolutely.
thank you there thank you okay um
uh mr phillips are you going to stipulate that um miss templeton is a expert or do we need to go
through her resume again my objection as to her testimony stand um on the basis of relevance and
the fact that the board can see with their own eyes how the curb cut was modified they don't
need mr templeton to uh to tell them how and i also would object to her credentials as it relates
to state uh a street and traffic uh control she is not a traffic engineer or expert in that she's
an expert in land planning and we are not here on an issue of land planning um all right simpleton
yeah what what to what purpose is she being offered as a as an expert in what purposes of this
appeal against lni you have her report so you know what purpose she's going to be testifying
to you know you know what her report says i'm not sure why you're asking that question
so why don't why don't we give a brief overview of her credentials and okay sure could you
could you go through your sure um so i have been a urban planner for over 25 years um
I frequently provide testimony about the Philadelphia zoning code.
I have done numerous comprehensive planning projects over the years.
I've also served as a community planner for the Montgomery County Planning Commission, where I reviewed site plans regularly in accordance with Act 247 of the municipality's planning code.
could you discuss briefly your education and professional certifications yes I have a
bachelor's degree in urban planning a master's degree in urban and city planning I am a member
of the American Institute of certified planners and a professional planner in the state of New
New Jersey, licensed. As part of your training, do you, do you, are you trained in how to
interpret site plans and zoning plans and to identify such things as curb cuts and driveways
and streets? Yes. And have you worked with issues such as the complete streets and other
or street -related planning aspects of your practice?
Yes, I have.
I'm sure -
I will accept her credentials.
Thank you.
And again, I didn't mean to suggest
that Ms. Templeton is not qualified in land use and planning.
It's just for the sole purpose of this hearing, so.
Okay, I understand.
All right, first I'm going to show you
what in our exhibit binder is exhibit C.
And I'm going to make this bigger this.
This, what are we looking at here?
This is the plan from, I believe, 2017.
I placed some red circles. Can you describe what is inside the red circles and what the
significance of that is? So they are the existing curb cuts. And then
And this is one of the existing curb cuts.
Correct.
And this is the one that is a driveway.
This is the one that is the dogleg driveway.
And then this is the actual driveway that has been extended onto Pastorius.
Is that correct?
Correct.
And what do we see inside this red circle?
That's a new proposed curb cut.
So, under the terms of this map, is there any incur cut that exists here?
Hi, I'm sorry. Chair, this is Tanya. I don't recall if she was sworn in or not. Was she?
I thought I did, maybe.
Okay, the staff has asked and I wanted to check.
Yeah, I believe I did, Ms. Templeton, right?
yes you did yeah okay thank you kylie sure all right does um and i think we're going to see in
some photos um shortly but is there um any kind of utility poles that are blocking um any part
of the access here on in 2017 i believe the pole is located on the plan is that correct
the pole there's a pole
yes there's a there's a utility pole um at the curb okay or was at that time uh whoops um
i'm going to go to the other side of this um drawing now if i can do without flipping it over
Okay. This is on the Top of Hawkins Street side. Can you identify what's inside this red circle?
Objection to relevance as to how Top of Hawkins Street has anything to do with it.
we're looking um mr chair at the comparison of the 2017 plan with the 2021 plan and so we're
just trying to show you uh what what um what the features are of the 2017 plan just to show all the
existing curb cuts and then all the new curb cuts right proceed um miss templeton yes that's the
existing curb cut on from tublehawken into the property correct okay and is there is there any
kind of a barrier uh that would stop vehicles from coming from tublehawken into the property
all the way through to uh towards um pastoria street no okay is there anything else about the
2017 plan you wanted to uh make note of or identify um no i don't think so okay
all right i'm now showing you the 2021 uh plan that is the basis of this appeal
Can you identify what is inside the three red circles
on the Pastoria Street side here?
So all the way to the right is the existing curb cut,
one of the existing curb cuts.
And then in the middle,
that is the other existing curb cut.
And then where it says existing driveway to remain,
that appears to be pointing to a driveway but at that location there I believe is not
any pavement or a curb cut connecting to Pistorius.
And then if we're proceeding down this driveway into the property there's an item under a red
circle here can you identify that uh that's a proposed landscape uh buffer area landscaped area
and what would be the the purpose of a landscape buffer in that area
Well, it could have several purposes, but that does look like it is blocking the driveway access from Topolhockin Street to the parking area for the new multifamily housing.
well it could have seven several purposes um but that does look like
So, and this side, this red circle on Topolhockin Street, can you identify that for us?
Yes, that's the existing curb cut to the parking area from Sobo -Hacken Street.
Okay, and does that curb cut appear to be the same as it was in 2017?
It does appear to be.
All right, now we're going to go to your supplemental report.
Can you, in 2022, did you prepare a supplemental report at our request?
Yes, I did.
And what was the basis, the scope of what you were looking at in that report?
So the scope was to compare the most recent zoning plan against the provisos that stated, the official proviso that stated no parking on Pistorius Street, parking curb cut on Tobelhockan only, no additional curb cuts on Pistorius.
and to interpret whether the zoning plan that was submitted meets the requirements of those
provisos. Did you come to any conclusions as to whether the 2021 plan was consistent with the
provisos? I did. Regarding the curb cut on Pistorius, the plan includes what I interpret
to be a new or additional curb cut on Pistorius Street that did not exist on the original plan
that was subject to the proviso. In my opinion, that constituted an additional curb cut that
would not meet the condition of the proviso. All right. And then did you provide some photos
um to illustrate how you came to your conclusion yes all right and also on the plan there does not
look like uh that there's any connection between the existing
curb cut and the um the one that was actually constructed all right so this um is identified
in your report as 2018 from atlas philadelphia what are we looking at here uh so that is
the um aerial view of the property as it was before construction in 2018 with the existing driveway
so this is the driveway that we've seen on the on those plans um then um
what if a vehicle was going to travel from the interior onto pastoria street how would they
travel? Well, they would need to make a sharp turn and then another sharp turn and then exit
onto Pistorius. And is this area here where my cursor is, is this considered the existing curb
cut that you identified in 2017? Yes. Okay. Let's go to the next photo.
This photo also says 2018 Atlas. What are we viewing with this photo?
So that's the street view of the existing curb cut in front of the existing structure.
And the original location of the utility pole.
And that utility pole, is that positioned, how would you describe how it's positioned in comparison to the driveway behind it?
It partially obstructs it.
It partially obstructs it.
If you were to put, you know, drive straight through the utility pole.
Mr. Masters, I don't expect you to finish your testimony, but you have five minutes on where you would want to leave her testimony for the next time.
Does that make any sense?
Okay, sure.
Thank you.
All right, Ms. Templeton, this is the third photo in your report.
The third photo in your report, it's dated 2021, Atlas, Philadelphia. What are we looking at here?
It's dated 2021, Atlas, Philadelphia.
What are we looking at?
So this would be the driveway and curb cut that was constructed that shows the current state of the property with the new curb cut.
Objection.
What's the objection?
so it shows the current state it's a 2021 so i just want to clarify for the record that there
are the bollards up and there are no cars that park there to the extent it's misleading or
suggests that cars can park to the left that's my objection we'll stipulate that it shows the
the the that it it shows what was um what was present in 2021 correct not today correct sorry
Well, it doesn't show the bollards.
It's dated 2021.
Right.
What else is significant about this photo in terms of how you came to your conclusions about this curb cut?
So the utility pole has been shifted.
And again, that curb cut where it is located in that photo was not in existence.
uh before this property before the uh property was developed
so this curve cut you're saying was not in existence prior to the 2017 zoning hearing correct okay
Okay. So you heard Mr. Phillips say that, according to the streets department, that the streets department allegedly told his client to move the curb cut that was over here to over here.
is moving a curb cut in your opinion considered an additional curb cut if that curb cut is in
a different location or could that be considered the same curb cut objection but um objection for
the record i would consider it a new additional curb cut because they well not according to this
photo they kept that existing curb cut open for the parking that presumably was not allowed to be
there um they essentially created a new um curb cut in addition the one that is there so the the
original two curb cuts that we saw in the 2017 plans they still exist to um in 2021 is that what
your testimony is it appears that they do right and on the plan in 2017 i mean i'm sorry in the
2021 plan that we looked at were those were those existing curb cuts to be removed
it did not state that on the plan
in fact isn't it true that it had those two curb cuts and this other curb cut as three curb cuts
That's what it appears on the plan.
I think we're going to cut our testimony there.
I want to thank everybody.
There will be a resumptive hearing.
We will get back to everybody and tell them when that will be, and we'll be in touch, okay?
Thank you, Mr. Chair.
Thanks, everyone.
All right.
Leonard, could you stay on, please?
Yes, actually, if I might make a brief request for just a couple of minutes between where we start to 1711 Rittenhouse.
Okay, yeah, you got five minutes, okay?
Yeah, that'd be great. Thank you very much.
Five minutes, everyone.
number three
MI 2022
004 555
1711 to 17
Rittenhouse Square
David Orphanides is for
the appellate, Leonard Reuter is
for the city
um wait for mr orphanages to come on
he's coming back in as a panelist thank you
there we go. Good morning, Mr. Orphanides. Could you please state your name and spell it for the
Good morning, Mr. Orphanides. Could you please state your name and spell it for the court reporter?
court reporter? Certainly, David.
Certainly. David Orphanides, last name is spelled O -R -P -H -A -N -I -D -E -S.
Right. Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?
We did have opening statements before. We're going to start with Mr. Reuter to start presenting his case.
And just for a point of information, a motion to intervene in the appeal was filed by Leslie Gerstein on behalf of Christina Cavallari and Michael Morgan.
That motion has been denied by the board.
And then real quickly, before we get started, if I might, just briefly, I believe I made this this objection or this is.
I moved this way at the the first hearing we had scheduled in the fall.
But it's our position that the violation notice that we appealed is defective on its face.
It does not cite, other than a general provision from the Philadelphia Code, from the Administrator Code, it doesn't cite a specific provision of the zoning code.
and that it's on its face is incorrect and that it talks about accessory bar restaurant and
accessory food service, that we can only provide food service to the hotel, which clearly by
definition of visitor accommodations in the current zoning code allows providing food and
entertainment primarily to visitors and tourists. So for that reason, before we get into anything,
we feel that the appeal should be sustained and the violation notice is defective on its face.
we are going to go on with the case okay okay just just one of these i understand i understand
and uh mr reuter would you uh please presenting start presenting your case sure and again just as
a brief response uh we uh while we don't agree with mr orfaniti's conclusions we do believe in
and we've stressed this in the past that uh we don't think i mean there's maybe some limited
factual information that needs to be presented to this board but this is almost entirely
about a legal question, which is the interpretation of the code
and whether or not a bar and a restaurant that is part of a hotel
goes beyond being a mere accessory use and becomes the second main use
if it's a non -accessory, depending upon whether their service is oriented
towards the general public or as opposed to the guests of the hotel.
I mean, it all comes down to that. It's the same thing.
So, again, some limited testimony.
And as of right now, we were hoping we had it looks like we do have an inspector here, Mr. Williams, Anthony Williams, if I could have him promoted for some brief questioning.
And just for both attorneys, we have a target of 45 minutes for this today.
OK, understood. Thank you, sir.
I'm also here with my co -counsel, Dejeuner Davis, who could also be promoted if you like.
Absolutely.
Ms. Davis has been promoted to panelists.
Could you state your name, please, and spell it for the court reporter?
She's not in yet.
And the other person would be Anthony Williams.
Hoping he, let's see, he is...
Okay, Dejanay's in.
Good morning, Ms. Davis.
Could you state your name, please, and spell for the court reporter?
Good morning, yes.
Dejanay Davis on behalf of the City of Philadelphia.
For the record, my name is D -E -S -J -E -N -E -E.
Last name Davis, D -A -V -I -S.
Right.
Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?
Yes, I do.
Thank you.
Mr. Williams?
he's he's here okay but he's not in yet he's not been promoted yet
i'm sorry chair i'm having problems promoting him
okay please
Mr. Williams, you can unmute yourself.
Good morning, Mr. Williams.
Good morning.
Hi, could you state your name, please, and spell for the court reporter?
Inspector Anthony Williams, A -N -T -H -O -N -Y -W -I -L -L -I -A -M -S.
Right. Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?
Proceed, counsel.
Thank you, Mr. Williams. Do you work for the city of Philadelphia?
Thank you, Mr. Williams. Do you work for the City of Philadelphia?
Yes, I do.
Yes, I do.
And what is your position with the city?
I'm a code enforcement inspector.
Okay. And are you, in the course and scope of your duties, do you inspect commercial establishments, bars, restaurants, retail stores, that kind of thing?
Okay. And in the course of that work, did you have the ability to, are you familiar with the property at 1711 Rittenhouse?
Okay. Were you able to make an inspection of that property yourself recently?
okay um and again mr orphanetes uh chair uh can we just stipulate to the authenticity of the
uh documents so i don't necessarily have to share my screen about uh with with respect to the
violation the authenticity of the violation notice that was issued i don't need to go through all
that do i what the original one from back in may of 2022 yeah i mean he he wasn't the one who
issued it was he no but i mean are we going to stipulate to the authenticity of the city's
documents that were all produced oh i i mean that i mean that's that's a standard violation notice i
mean yes i don't have an issue we're fine okay so i'm just gonna so then that's what i mean i mean
i think we just need some limited testimony so mr williams um when did you do your inspection
on saturday uh may 21st uh what uh what time of day did you go out
um we went out uh i believe it was about 10 o 'clock in the morning or the evening in in the
evening we uh did it as an inspection for the uh our nuisance property unit and we just did
we conducted the re -inspection that way okay now when you went to the property did you enter uh
on Rittenhouse Street, or did you enter from the alleyway behind the property?
We entered into the alleyway. We stopped at the front door on Rittenhouse, but then we walked
around the backside and met with someone in the alleyway. When you went to the front
entering on Rittenhouse, did you go inside the building at the time, from the front?
Well, not at that time, but when we walked through in an inspection, we actually walked through the back and came up through the front when we were escorted by Mr. Elliott, one of the workers there.
Okay, you were escorted by Mr. Elliott. Did he identify himself, like what his position is there?
um he he didn't identify himself at directly to say he was owner manager or anything like that
but you know he he was the person that they went and got when we you know requested to do the
inspection for this this hearing today okay now at the time you went it was 10 o 'clock in the
evening were there uh so you so you went in the front and then you went back out through uh into
the alley which and just for purposes of the board the alley has two the official name of the
alley is i believe latimer um but it sometimes goes by uh the name uh schubert i think is that
right yeah so schubert i don't think is a real name it might have been called that's just some
of the streets around the uh curtis were were given um like names after composers but most of
those were never officially adopted so uh now mr williams when you went so when you got to the alley
it said uh you said we who you were accompanied with another inspector yes uh we do our our night
inspections as a as a team and it was myself and another inspector inspector tober okay now so when
you went to the alley uh were there people outside the out uh standing in the alley yes there were
three people outside standing outside the door when we got there okay and the door to the uh
now when you say there was a door this is the uh this is a door that goes into the back of
the property yes okay was there any kind of signage on the door or anything indicated what
was inside from the from the exterior no signage okay now uh the people that were standing outside
were they just hanging out having a cigarette or were they did it appear that they were waiting
to get inside well the the gentleman who i we didn't get his name who uh actually went and got
mr elliot he was talking with them and i don't know whether they were waiting to get inside but
he was he was checking with them and that's when we spoke to him and asked to get inside for the
inspection okay so uh after a certain point you did you have any discussion with any any of the
people that were outside did you talk to them at all no but we were out there probably about a good
five to ten minutes and they were they were waiting and then i before we came in the gentleman
five to ten minutes and they were they were waiting and then i before we came in
came back out and checked with them so i don't it did appear as though they were waiting to go in
okay um okay so now what you got inside of uh the establishment uh if you could just describe to the
board what what it's like what when you went in we walk in there there's a bar set up and they
were just patrons sitting at various tables and um we just did a quick walk through a quick fire
inspection and then uh we were led upstairs with mr elliott to check the fire alarm and then we
were out okay uh can you estimate for the board about how many people were present at the
establishment when you were there let's say between 20 and 30 between 20 and 30 okay uh did
you have any conversations with any people no none besides mr elliot and again uh i i know this is
i apologize if this is a little bit too broad i can be more specific if you need to would you say
that it was mostly a younger crowd a middle -aged crowd an older crowd i would object but um it was
it was real i don't know what the relevance of that is len i mean come on i mean older people
can hang out at bars too it was mixed to the the the people standing outside were younger
but there were some older people and and as patrons that were sitting down i just want to
know would i be younger would i count as younger no we're both old david oh come on so uh so mr
williams then uh now you said that uh after you did your inspection you went around with mr elliott
uh did you go through the rest of the property or you were just doing the inspection of the uh
the bar restaurant area we were only uh to inspect the the bar restaurant area but
in order to see the fire alarm panel we had to go around okay now did you uh now you said that you
after the inspection you went out and you exited the property through the front through the
Rittenhouse side yes so what's between the front door of the property on Rittenhouse and the bar
restaurant well uh there's we had to go up a set of stairs that was how we we came upstairs and
then went outside um that that front door right there it's just a little vestibule area or you
know waiting area and you're right out the door okay um and did you see anybody uh we'll just
call that the the lobby of the hotel did you see anybody in the lobby of the hotel yes there was
one worker that was uh actually at the front desk okay now in the lobby of the hotel uh is there any
signage or anything uh saying anything about the bar restaurant in the back if you recall okay
Yeah, so you left on the Rittenhouse Square side.
And in terms of the exterior of the property on the Rittenhouse Square side, is there any kind of signage or advertising or anything on the exterior of the property that says anything or makes any reference to the bar or restaurant, if you remember?
I don't recall on the phone.
Okay. So, I don't think I have any further questions at this time, but I'll reserve a right to rebuttal.
Leonard, just out of curiosity, was this a normal inspection or was this an inspection relative to a complaint?
the inspection that took place on saturday was for purposes of this of this hearing because this
is a um it's always kind of surprising to me that the zoning violations uh when they get appealed
come to this board but surprisingly they're very rare so we treat them the same as if this were
the board of l and i review where we like to do a re -inspection so uh mr gerardo gerardo gonzalez
was the assigned inspector but he couldn't be here today because of their mandatory training so
mr williams stepped in uh for him uh and thank you by the way inspector um thank you yeah so that's
that's all i have for this particular witness um but mr orphanese might have some cross
sure thank you good morning mr williams
um was the inspection that you conducted uh this past saturday evening was that the first time
you'd been to the property no okay when was when did you have been there previously
uh i was there the first time that inspector gonzalez was there but we didn't get in and i
believe he he went a little bit later and did that inspection but the first day we were there
we just met with people at the door and we were not allowed access that was that was back in the
That was back in the fall or back last summer?
fall or back last summer
I believe, no, I believe it was last year.
Right.
Like last fall, correct?
No, I don't think it was before.
When I looked at our notes, he didn't have anything.
All right, but this was the first time you had actually gone into the establishment, correct?
Yes, it was correct.
And how long were you there?
How long?
We were there inside the establishment for probably about five minutes.
About five minutes.
And some of that time was spent, some of that five minutes was spent inspecting the fire panel, correct?
No, the fire panel was after.
We stayed in, took some pictures with Mr. Elliott, and then we went upstairs and inspect the fire panel on our way out the door.
Okay, so that was a separate.
that was a separate time that was sort of five minutes was back in the in the lounge area in
the bar restaurant area okay um and do you know was uh you said inspector tolbert was with you
do you know if he had been there before or if that was his first time there the previous the
previous person that had been there was my previous partner was inspector gonzalez and
that's why we were there at the property before and do you remember did inspector gonzalez get in
uh another time after you were that you two were there together i do not recall if he got
all right and and again your your inspection that you conducted this past saturday evening
at about 10 o 'clock if i heard you correctly um the uh that was just for this hearing that
wasn't based upon any complaint yes okay and are you aware of any complaints that have been filed
against this establishment yes that's that's the reason why we were there the first time
was because of a complaint okay and do you know when that complaint was filed
i i believe last may last may okay do you know whether that complaint was filed before they
opened or after they opened i am not aware not not sure
would it you so on the first day that they opened you were not there was an lni inspector that
showed up you were not that inspector at that time correct no okay all right um
and do you know what the nature of the complaint was that was filed
what the actual complaint was yes that they were uh that there was a bar operating in the in the
in the basement of a uh in this uh bed and breakfast hotel
and it's not really in the basement is it you walk straight in pretty much from the from the
either from the rear door from the lobby correct there might be a couple steps up or down yes
there's a few yes okay right i mean it's you're not going like down into your cellar you know
it's it's not a long flight of stairs to get down to where this is located correct and you didn't
And you didn't see any violations of the Philadelphia Code, building codes, electrical codes, plumbing codes, anything while you were in there doing your inspection, correct?
Not for that inspection, but we were in a very limited area.
We didn't do a full inspection of the building.
But in the area that you were, which was the bar, the lobby, the bar restaurant, the lobby, and then where the panel was, you didn't see any other violations, correct?
Correct.
And back to that, the complaint, you said that there was a complaint, there was a bar
and a bed and breakfast.
Is that in and of itself?
Why is that a complaint that warranted an inspection?
There's plenty of hotels and bed and hotels that have restaurants and bars.
I'm trying to object.
He's asking for a legal conclusion.
That's not a legal conclusion.
Why? I mean, it's it's I mean, if somebody complained, said there was a bar restaurant in Lowe's.
Leonard, I think I'm going to let that question stand. OK, thank you.
So somebody said there was a bar restaurant in Lowe's. Would you go and inspect the bar restaurant in Lowe's?
Well, I mean, we have to inspect it because it's a complaint and we're going to issue the complaint.
And then we're going to check it according to the zoning for what they apply for at Lowe's.
and if there's a bar and restaurant at Lowe's where there shouldn't be a bar and restaurant
then that's where we have no initiative so you you went out first time sometime last year you
didn't get inside to to validate whether or not there was a bar restaurant inside this hotel
correct I myself did not yeah you did not and but you did get in
Correct? I myself did not. Yeah, you did not. And but you did get in this past Saturday and you did see that there's a bar restaurant inside, correct? Yes, correct.
Okay. And do you know, in and of itself, is there an issue having a bar restaurant inside this hotel?
Not per se, in and of itself, but I do know that there was something with their operating outside of the zoning that they were approved for, which is why the case was written.
So you did the re -inspection. You knew that this case was about an appeal of that violation, correct?
Correct.
And do you know what that violation was?
That they were operating outside of their zoning.
That's what the violation was.
Do you know what their zoning is?
When I had checked before, it was a hotel, restaurant, and that was as far as I can recall right now.
okay so you're saying you saw you saw approvals for permits for a bar or for a hotel and a
restaurant um so what does a does the philadelphia code make any distinction between a restaurant
that serves liquor and a restaurant that doesn't serve liquor
no i've do that i'm not sure if it does okay so so you you walk in and you see
um a bar restaurant a restaurant bar and you say that and and this was located inside a hotel
correct yes it's connected to a hotel lobby it's in there's rooms upstairs correct yes there's
rooms directly do you know that there are rooms directly over top of the the bar restaurant
okay so when you go in and you say you saw you say you saw approval for a hotel and a restaurant
you go inside and you see a hotel and a restaurant does that make it sound like there's a violation
there objection oh he's an inspector that's his job right he's already testified about what he
saw and what the violation was well well no now because now he's sounding like it's approved for
what he went in and saw and i'm just trying to figure out again that's that that goes to the
ultimate issue which is a legal question so you're asking for legal conclusion well i think i think
mr way i think mr williams can answer for what he knows and and if he doesn't know he doesn't know
but i mean i think he can answer for what he knows well apparently from what you know uh we
we read the zoning, what we had concluded was that the whole thing was supposed to be under
the patrons of the hotel and not open to the public. And so that was the question that I was
sent to see whether it was open to the public and what actually was inside. So that was all I was
there to verify on Saturday. Okay, I got you. So you were told, so your understanding is that
this establishment is in violation if it serves anybody other than the guests of the hotel
correct that was my understanding okay and and how did you come to that understanding
does somebody tell you that or did you well yes that was that was in conference with my
my superiors that's what was told to me that this is you know what was the issue that was
being appealed and just to verify whether they were open to the public or not okay
and can you share with me who those conversations were on my manager yeah and what's his or her
name what's his or her name her name is uh miss reinhardt okay and who else
oh she was the only one i talked to because okay i got you understood
good sorry so um so you enter you entered from did what i believe mr reuter asked you the question
when you first came to the building you you came to the door on written house square correct yes
that's correct all right and did you try to enter from written house square when it and just to be
clear when we say written house square it's not the actual square it's what the street is called
so um and that's the front of the building correct yes that is correct yeah and did you try to get
into the building through that front door or did you just didn't decide to walk around the back
no i didn't try to get into because i had been there before and i knew that the entrance to
where we needed to go was in the rear so we just took a picture of the front and walked around to
So we just took a picture of the front and walked around to the rear.
of the reader.
And to be clear, it's not the only entrance.
It's maybe the entrance that's closest to where it is, correct?
Would that be fair to say?
Because as you stated, you can cut into and out of that bar restaurant through the hotel lobby, correct?
Yes, that is correct.
All right.
and then you said at the back door when you you came up with miss inspector tolbert
that there were three people at the door correct at the back door yes that is correct and were those
and and at least one of them was worked there at the hotel or did more than no there were three
people standing outside and one of one person who was going from inside to outside checking with the
people at the back okay and did you know whether those people that were waiting there whether they
had a reservation whether it just walked up did you know did you you didn't talk to them at all
correct no we didn't okay so you didn't know if they were meeting guests of the hotel there
no yeah okay and were they um were they were they smoking while they were there while they
were waiting uh one of them was um for the we were we were standing outside for about 10 minutes
one of them was but uh then he you know finished the cigarette and they were still standing out
there were they being it's 10 o 'clock at night were they being loud not at that time okay were
they being loud at another time no okay just wanted to make sure just want to make sure all
All right. So then you enter and and then you you see about 20, 30 people, correct?
Yes, that is correct. And are they standing, seating, sitting, sitting, sitting, sitting, sitting.
OK. And did you just were you just in the room where the where the bar is located or did you go into any other portions, areas of the bar restaurant?
We checked the bar area, and then we walked to the back near the exit door just to make sure, you know, that we walked to the back.
There's a little room back there.
And then just looked at the bathroom, and then we went up the steps.
We weren't there very long.
So that room is a little room between the bar restaurant and the lobby, correct?
It's kind of like off the side there.
And was it loud inside when you were there?
no okay and then you passed and you passed through a doorway from the from the bar restaurant into
the lobby correct that is correct and someone was at the front desk correct yes okay and
mr reuter asked you you saw neither at the front of the bar uh well at the front of the hotel
or at the back of the hotel or you know the bar restaurant you didn't see any signage
indicating the name of the bar restaurant you know this is where you get in anything along
those lines correct no okay that is i'm sorry that is correct okay right and let me ask you
a question when you were coming around from the front uh to the back could you hear anybody at
the back entrance waiting to get in no okay quiet and when you walk through the and when you walk
through the the bar restaurant and you saw 20 to 30 people did you um did you speak with any of
them no okay so you don't have any way to know whether the 20 to 30 people that are were in there
were guests of the hotel or not correct no that is i'm sorry that is correct that's correct thank
you thank you very good you thank you for being clear you're helping the reporter um you've done
this before i think so um um and did you did any of them come up to you and talk to you and give
you any indication of whether they were guests of the hotel or whether they were visitors a
guests of the hotel or unrelated to the hotel at all no okay and did you speak to any of the
other staff members other than uh mr jason elliott and um i guess the person who was at the door at
the back door um with the other people that were waiting apparently to get in did you have any other
conversations with any other employees no just give me one minute
um prior prior to your either of your inspections did you review the zoning code
prior to your
well let me back up a second do you know how a how a hotel is presently defined in the zoning code
like what's it called we what do you mean by occupancy or do you mean by
no in the zoning code like what the use category is what we call use category do you know
So let me put it this way. Is there a zoning code? Is there a use called hotel?
No, I'm not quite sure how it's dictated.
You know, how we how we do it is we go to, you know, our our our computer records and we check what that zoning is for and what their last approved zoning was for.
And that's what we use to, you know, kind of verify what we see when we're out there doing our inspection.
Right. And that's in terms of permitting.
But and I and that sounds like a great plan.
Makes sense.
But in terms of what in the zoning code, in order to have a permit, right, you need a permit for a hotel, correct?
But in 2012, the zoning code changed.
and do you know under the current zoning code what hotels are now called what category use
category they fall under in the zoning code no i'm not 100 sure okay does um if i told you
visitor visitor accommodations would that ring a bell have you heard of that yes i have heard of
Okay. And in terms of visitor accommodations, would it, I mean, do you know, do you, would you agree or disagree that a hotel under the current zoning code is what's called a visitor accommodations?
Well, I would agree.
Okay. And do you know what the definition of visitor accommodations is?
Not so.
I would have, you know, I would be assuming if I said yes. So no, I would say no.
So if I read you the definition, it says visitor accommodations, uses that provide temporary lodging for fewer than 30 days where rents are charged by the day or by the week or a portion thereof, and may also provide food and entertainment primarily to visitors and tourists.
Do you have any reason to believe that that's not the definition of visitor accommodations in the zoning code?
Okay. And by that definition, it says that a hotel can provide food and entertainment, but it doesn't need to be provided exclusively to visitors.
I'm going to object. Again, we're getting into the legal argument here. He's described what he saw.
i'll stop i'll stop on that question let me just ask him that one more question
would you do you have anything in your inspection when you were out saturday night
that would lead you to believe that the bar restaurant was not providing food or entertainment
primarily to visitors or tourists um as of saturday no okay all right i have no further
the questions of this witness uh just a very brief uh redirect inspector williams um you said
that when you talked when you were out in the alleyway there were two or three other persons
one of whom uh apparently worked there uh and i again forgive me if you already answered this but
were they out there smoking a cigarette or they were out there talking or do you do you recall
originally they were they were smoking but we were out there for 10 minutes so then they
they had stopped and he he was checking with them you know you know i guess waiting to see
whether they want to come in but he kept checking with them while we were waiting for mr uh elliot
okay um what was the weather like was it raining on saturday night not at that time no it was nice
okay all right thank you just one follow -up mr williams the people that were waiting at the back
Or you, again, you don't, and I believe I asked this question, so excuse me if it's
been asked and answered already.
You don't know whether or not they had reservations that, you don't, you don't know whether they
just walked up and say, Hey, can we come in?
Or whether they walked up and they had reservations.
You don't know, correct?
That is correct.
And if they had reservations, you don't know what time their reservations, whether they
were early, late, what have you, correct?
That is correct.
And again, you don't know whether, as oddly as it may seem, they were guests of the hotel or coming to visit guests of the hotel, correct?
That is correct.
Okay. I have no further questions.
No further questions.
Thank you, Inspector. We'll answer your testimony.
Next witness, please.
Thank you. I think I may call Ms. Christina Cavalieri.
Christina Cavalieri. Okay.
Chair, we have one hand, a Leslie Gersten up.
Okay, let's see if that's our...
That's fine.
There goes Ms. Christina.
Okay, good. Thank you.
Just so it's clear for the record, and I think the board's aware of this,
but uh Ms Gerstein is counsel for uh Ms Cavalieri uh Ms Cavalieri so I think she Ms Gerstein there's
a separate matters that are going on uh and uh Ms Gerstein I think has a as her attorney has a right
to be present I don't think Mr Orphanidis has any objections no I mean she could be present
obviously she can't participate or or she can't guide her the testimony obviously
Oh, good morning. Can you hear me?
Yes, who is this?
That sounds like it doesn't.
I mean, it might be it might be Ron.
It might be Ron, because I know Leslie had another engagement at 11.
So he might be using her login.
Or not. I don't know.
I see Christine identified.
Yes, we can swear in Ms. Cavallari.
Cavallari, could you state your name, please, and spell it for the court reporter?
Christina, C -R -I -S -T -I -N -A, Cavallari, C -A -V -A -L -I -E -R -I.
Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?
Do we have a counsel for her?
uh yes miss miss cavalieri is i saw uh somebody logging in under leslie's id is now not promoted
again so if whoever's using that id hi you're here whoever you are hi good morning it's it's uh
ron patterson on behalf of miss cavalieri i'm standing in for um leslie who is at court all
Right. Ron, could you state your name, please?
Sure. Sure. Ronald Patterson.
Wait, wait, wait. I object. I object. Wait, object. What's going on?
I'm representing Ms. Cavalieri on personal behalf.
Yeah, I think he could be present, but I agree that.
No, he doesn't. He doesn't. She gets sworn in. He's not going to speak, so he doesn't get to say anything.
If you ask a question that's inappropriate or a privilege, I'm going to object. I have a right to do that.
I would say that if there's a privilege question that comes up, he might have a right to object.
But of course, so I'm so so, David, I'm going to swear him in and then we'll make sure that we buy by all rules when she's testifying.
OK, so I mean, Mr.
Reuters witness. Yes.
Again, Ronald Patterson, P -A -T -T -E -R -S -O -N, Claire Harrison Law Firm, 1835 Market Street, Philadelphia, PA.
Right. Do you swear a firm to tell the truth, told truth, nothing but the truth?
I do. Proceed, Leonard.
you speak uh okay great thank you uh so you've stated your name uh miss cavallari what is your
address at 1709 rittenhouse square okay and uh is it fair to say that you live adjacent to the
property in question today it is okay how long have you lived there uh i would say about 20 25 years
Prior to its current use as a boutique hotel, what had it been before?
It was a bed and breakfast.
So as long as you've lived there, it's either been a bed and breakfast or visitor accommodations or hotel or boutique.
It's always been a guest house.
Is that fair to say?
It has been a bed and breakfast.
I'm not going to define it in other terms.
That's what it was advertised as.
What is the zoning classification for the neighborhood, if you're aware?
What kind of zoning is it?
I believe residential.
Do you know if the hotel is also residential, if you know?
I don't know.
Do you know if the current owners submitted any plans for a bar at this location?
To my knowledge, they did not.
How would you know?
uh well if you recall my husband would have to speak better to that
given conversation he's had with mr chopra
and who is mr chopra mr chopra is one of the owners of the establishment okay and and to if
you under if you know and and if you don't know just so you don't know uh when you say the owner
the establishment are you talking about the hotel or the bar restaurant i'm talking about
I'm talking about the bar restaurant.
the bar restaurant is it your understanding based on the
Is it your understanding, based on the conversations that you've had, that the bar restaurant is under different ownership than the hotel?
No, I think it's substantially similar, but I don't know that.
Now, did anybody from the hotel speak with you about what was when?
Okay, so let's back up a little bit.
But so at the beginning of COVID, prior to the current bar restaurant at this location, was there a, if you recall, if you know, was there a bar restaurant at this location?
There was not.
Okay. And so between the time that there wasn't something there and the time this bar restaurant opened, would you say that if that opened somewhere during the COVID period, we'll just say 2020 to 2022?
Okay. Did anybody from the hotel ever have any conversations with you about what was going to go into that space where the bar restaurant is?
not me but my husband um did you have conversations with your husband about that
yes okay do you recall who spoke with your husband yes mr chopra that was okay uh and you
were these conversations between mr chopra and your husband uh did those occur prior to their
opening yes okay uh at the time did they uh were you made aware of whether or not the bar restaurant
was going to be open to the public we were advised there was going to be no bar objections
objection i think the conversations was were with her husband not with her right
i'm here okay no but she's testifying so he can testify he'll be up next that's fine oh okay
that's fine and just just for the record she did she wasn't privy to those conversations so it
wasn't well again i'm not i'm not asking for hearsay i'm asking what her husband told her
so he can he can he can say what he heard from her from from okay that's fine for the record
yep what's your husband's name michael moen m -o -u -g -h -a -n okay um so
So, now with respect to the bar itself, have you been in there yourself?
I have not.
Have you ever been inside the hotel?
And how do you get into the hotel?
From Rittenhouse Square Street.
Have you been inside the hotel since the bar restaurant has opened in the back?
um now the bar and when we talk about the bar you did you hear the previous testimony with
inspector williams i did okay so you heard him describe that he went he went he and his uh
colleague went to the alley uh and then from that alley there were people standing outside
uh you know either waiting to get in or they were just hanging out outside uh is that your
understanding of the how most people would enter into that bar objection objection that is correct
that is correct wait david say what your objection is please the objection is mr reuter used the
phrase most so without qualifying what most is how how does she possibly know how many people
are coming in so so okay all right oh so mr reuter why don't you just sure uh do you describe it
another way sure have you have miss cavallari have you yourself uh witnessed people entering
the bar from that alley entrance i have okay on it every day and when you say every day starting
about what time probably about 10 o 'clock about 10 in the evening okay and when you look so is
this something that you can see from the window of your house i can see it from my third floor
bedroom window. Okay. Okay. It's right below me. Okay. And every night where there is that the
bar is open, activity starts about 10 o 'clock. Okay. We hear people going in. We hear people
loitering speaking okay as people are leaving they tend to be loitering there intoxicated
and the voices are loud enough to wake me and my husband okay and when we have our children staying
over okay um it's extremely disruptive
Okay. It's extremely disruptive.
active.
Okay. Now, as far as the bar restaurant, does it have a name, if you recall?
Oh, God. The Franklin, we see it advertised frequently.
Go ahead.
Sorry, if I said it was called Franklin Mortgage, does that ring a bell?
Okay. Now, you say you've seen advertisements for the bar. Where have you seen those advertisements?
The latest one was in the Inquirer, I would say about three months ago, where they were talking about not anything that is a hotel accommodation.
They were talking about all the trend of the speakeasies and the new hot bars in town.
And the Franklin Mortgage Company was mentioned as one of those.
And again, when you've seen advertisements for the bar, other than mentioning its location, would it be fair to say that those advertisements don't reference the hotel?
They do not.
Okay. I have no further questions.
sir okay good morning yes still morning good morning good morning miss cavallari
good morning mr orphanetes pleasure to speak with you um so uh would it be fair to say you've lived
you said 20 to 25 years i believe i checked the deed you lived next door since 1998 correct
Correct. That's about right for your deed. All right. And who has lived there with you
since over the time period from 98 to the present? My husband and intermittently our
stepchildren and grandchildren. Okay. Gotcha. And when you bought the property in 98,
I know you've used the term bed and breakfast, but it was, well, we can call it lodging.
By today's standards, we call it, or definition, we call it visitor accommodation.
But when you bought it in 1998, it was set up for visitor accommodations and being utilized
as such right next door to you, correct?
No, I'm not agreeing to that.
I'm not agreeing to the term visitor accommodation.
Okay. When I bought it, it might've been vacant at that point in time. It's gone through a number
of transfers of owners. Okay. And it was represented as a bed and breakfast. Okay. All right.
But you've never, I mean, I know Mr. Reuter was asking you about zoning classification.
You're an attorney, correct? That is correct.
Okay. Have you ever reviewed the zoning archives or the zoning file that's available online to the public for the property?
No, I have not.
All right.
So let's just use your terminology.
So it was a bed and breakfast.
So as a breakfast, it served food, correct?
That is correct.
Okay. And did you and or your husband ever eat there?
uh we were invited there and what we had was a continental pastries but there was no other food
being served there okay on the time that you were there i mean you know i understand but
when you say you were invited there what do you mean were you invited there by guests of the hotel
by the owner of the hotel by the then owner of the hotel okay and was it just that one time
uh we've had relatives that have stayed there okay did you go then and go meet them no the
relatives no i did not okay the relatives stayed there and you know the accommodation was what it
said bed and breakfast okay and they were served continental breakfast no alcohol no other food
Okay. Do you know whether the zoning code distinguishes between eating establishments that serve alcohol or those that don't serve alcohol?
I'm not a zoning attorney, and I had no need to investigate that.
Okay. So, again, when you said you had family staying there, and I asked the question, and I wasn't sure what the answer was.
When you had family staying there, did you go and have food there?
You know, I answered the question, Mr. Orfanides.
You mentioned it.
I did not go there with family.
I was there once.
I was there once.
One time.
One time.
So on the one time that you went there, they weren't making eggs.
So on the one time that you went.
They weren't making anything heated, you're saying, correct?
That's correct.
The one time.
Do you remember what year that was that you were there?
How long ago?
I don't.
I don't.
It was when it was, I don't remember, but it was with the original owner.
I believe he was an Israeli gentleman.
He was.
It was actually a client of mine.
And you understand. Are you aware that Mr. Patterson, who's with you, actually was an attorney who put in zoning zoning permit applications for a hotel at this location?
I'm going to object to the relevance of that.
I'm bringing up about a hotel because she wants to emphasize bed and breakfast.
So and I'm not sure I don't understand the relevance to her testimony, and I don't really see how that, again, doesn't get into the fundamental legal question here.
So, so, Mr. Orphanides, I don't I don't think who are who the client was, the lawyer that did it at the time is is right.
I understand. I'll move on.
so you you stated to mr reuter when he asked the questions as far as you know
no plans were submitted for a restaurant or a restaurant bar to the city of philadelphia correct
i that's correct okay and you know that because your husband told you
no um i know that because of the other matter that i'm dealing with with
Mr. Chopra. Okay. And that's a civil action regarding this bar restaurant, correct?
That is correct. Okay. And so would it surprise you if I told you that building permit applications
were put in and plans were put in and permits were issued and those plans were approved by
the department of licenses inspections that clearly show a bar restaurant at this?
mr i'm not that's a different subject matter and i'm i'm not gonna i'm not gonna answer that
question again that goes to the civil case no no no it doesn't it actually goes to what she's
what she stated on direct examination from mr reuter okay so again the city is not disputing
that having a bar restaurant at the location in and of itself is a violation that's not what the
violation is the violation is for it not being accessory i'm just going off the i wrote down
your question i mean i understand but you asked the question so i'm now going and asking another
question based upon that you opened the door she said she's never even been inside the bar
restaurant that i just not that's not i'm not there yet i'm not there yet you asked her the
question and she said you asked her questions you knew if some plans were submitted and she said no
That's correct. That's my answer.
And I would ask you, would you be surprised if you were to learn that both plans have been submitted and permits have been issued by L &I for a bar restaurant and the health department?
Would that be surprising to you?
Well, nothing really would surprise me at this point in time.
However, the question is the veracity of what was submitted.
Okay. All right.
But you've not, you've not in, so now you're questioning veracity, but you've never inspected them.
In fact, you didn't even know they existed, correct?
I did not inspect them.
And you didn't know they existed.
And you have not had any conversations with one of the principals of the ownership of the LLC that owns the property or the hotel, Mr. Chopra, Romney Chopra, correct?
Not concerning when the bar was opened.
before it was open that's correct i did not okay and you've not been inside the bar restaurant
that is correct you've not been inside the hotel since my client opened it reopened that is correct
that is correct and do you come in and out of your your house has a does it have a entrance way
on Rittenhouse Square? It does. Okay. And does it also have an entrance way back on Latimer or
Schubert's Alley? It does. Okay. And do you come in and out of the door on Rittenhouse Square?
All the time. Okay. Were you, you were aware, were you aware prior to the bar restaurant opening
that there was going to be a bar restaurant inside the hotel no okay so the the and i have
in my exhibits um which i could show you but let's just say so you never saw the postings
So you never saw the postings for the liquor license, correct, on the Rittenhouse Square front of my client's property, correct?
for the liquor license correct on the on the written house
At some time, that did come to my attention, okay?
I don't recall when.
And when it came to my attention, I consulted with counsel about it.
Based upon what my husband threw, and then I was advised that there would be no bar there.
But but you did. And you saw the placard, though, right?
Oh, there was orange placard. OK, I can't say that I didn't.
OK, but I want to clarify. OK, most of the times the placard was building.
OK, and then all of a sudden, I believe it was sometime in the summer.
we i see that the liquor license okay and that is when i reached out to mr patterson
and you hadn't reached out to him before that point correct my recollection okay understood
thanks ron okay so yeah mr orphanage you have five minutes understood um and i'm not saying
you have to finish but if you have to bring her back we'll bring her back yeah i understand i
I understand. So did you, so you saw the placards, the posting for the liquor license. Did you
participate in the, in the community process or any part of the process for the liquor license?
There was no community process that I'm aware of. We never received any notice that this was going
up before the Rittenhouse Square Association. And we were quite taken back that there was never an
issue with the rittenhouse square association all right and i'm sorry you say you've never been
in the bar restaurant and you you have been in the hotel or you have not been in the hotel
that was asked and answered okay i believe i thought it was two different answers i thought
you'd said yes with mr reuter no with me but um which one was connect i mean without having
somebody read it back when do you remember again she has been in the bed and breakfast side she's
not been in the current bar restaurant right but she's been in the hotel since my client
rehabilitated it and opened it correct i don't believe so no okay no okay all right all right
so so you've never been inside to know whether or not those people that are there inside the
bar restaurant are guests of the hotel are visiting guests of the hotel
wait wait let me i'm i'm permitted to answer my ask my question do you let me i'm going to
rephrase it do you know on these evenings that you said that the bar is open the bar restaurant
is open do you know how many of the people inside the bar restaurant are guests of the hotel
on any of the nights that you've witnessed this?
Mr. Orphanides, the issue is that I know, okay, the people that are -
Mr. Cameron, I'd ask you the director to answer my question.
Again, it -
Leonard, your witness has to answer the question.
This goes directly to the issue.
This goes directly to the issue.
No, it's -
Mr. Orphanides, okay.
I have no idea about the ongoing operation of the hotel.
That's something that only your client knows.
However, I do know that every night that the bar is open,
there are a number of people that are in the alleyway late at night,
some of which are intoxicated.
We smell marijuana at times.
there are significant amount of people that end up loitering for a period of time they go in
they go out they go in they go out now you ask i will i pose a question here this is not answering
my question this is not this is she doesn't get to go off like this you don't you don't ask the
questions yeah so mr bergman you're absolutely correct what i'm trying to demonstrate
no no she needs to go back to make a case if i might just interject the the mr orphanetes knows
the question the answer to the question she has not been inside the current bar restaurant so
therefore by definition she's not going to know the composition of the people inside whether
they're there or they're not i think i think what she gave it i do think what she answered and said
i don't know anything about the operations well for all for all i know she has an idea of other
people that are going inside so listen can we stipulate that she does not know whether or not
people inside the bar restaurant are guests of the hotel visiting guests of the hotel or
unrelated to the hotel at all okay yeah absolutely i just did that all right now now hold on david
Yeah, absolutely. I just did that. Now, hold on, David, we're done. I mean, we've got to end this
we're done i mean okay thank you
questioning. All right. Thank you. Can I ask one redirect question? I'm not done. I'm not done.
No, no. He's going to bring her back. He's going to bring her back the next time.
Okay. When we have. Okay. Thank you, everyone. Thank you. We will be in touch on when the
next hearing will be. Okay. Mr. Orfinis, could you stay around, take about a five -minute break
for the next hearing, okay?
Certainly, thank you.
All right, we'll take a five -minute break
and then we'll go into the next hearing.
Yeah, Len.
You're done with this case.
Thank you.
He might still be awake here.
All right, he should.
Hopefully, he'll be right back.
board member shaheed are you on i see two tanya sunkits
yes i'm here okay there we go thank you
Profenitis?
Profenitis?
I beg your pardon. Sorry.
That's fine. So number two, MI 2023 -001 -253 -1330 East Burke Street. This is a reconsideration hearing. For the record, Mr. Orphan, as you've already been sworn, could you identify your client and relationship to this property?
certainly my client um excuse me mr chair this is hillary just i just want to interject quickly
and note that uh mr snell had to step away from this morning's hearing but we still have a quorum
thank you thank you proceed mr orphanetes uh yes my uh client is 1330 e berks e period berks b -e -r -k -s
comma llc okay they're under agreement to purchase the subject property okay and just for the record
We do have a letter of opposition from the RCO and also a letter of opposition from the council person.
We have all the required documents.
Mr. Orphanish, you can start.
If I can share my screen, I may share my screen.
Can you all see that?
We can.
Fantastic.
Let me just move this stuff over to the side.
I don't know how to get rid of this thing, but there we go.
All right.
So, real quickly, I'm just getting a little bit of a background, again, just to refresh your memory about this case.
So, we have three properties, 1326R, 1328, and 1330 East Berks.
This is the view from Berks Street.
This little gate here, down here to the left, is the strip of 1326R that's located behind the building with the green shingles on the front.
Actually, it's actually on the other side, but so we have a property behind the building with the green shingles and then the tan building, the garage is on 1330 and the door that looks more like the residential entrance is on 1328.
you can see here from the survey plan we have the three lots and as i indicated um and i didn't call
it out correctly in the photo but here we have 1330 1328 and then 1326 r uh it has this long
skinny strip that's two feet five inches wide that leads out to east berks that is its frontage
east or wilt street is not on the city plan it's an alley it's 15 feet wide these properties are
zoned RSA -5. Historically, these properties had a number of buildings in the front and the back.
You can see that back in 1917, there was a dwelling at the back of 1326R. There was a
dwelling at the back of 1328, also at the front, and then towards the front of 1330.
And this was a common condition for the properties that went through from Berks to East Wilk Street.
In fact, it's a common condition still for some of the properties that are still located.
that are still located the property um the adjacent property to the north and the next
The adjacent property to the north.
one next to that are owned by the same person and you can see here at 1334 and 1332 1334 still has
a dwelling in the back and then the dwelling in the front i believe that's rented in the back
and then um i think 1322 has still has a structure in the back they this big property up here which
called the Ice House. You can see in the aerials, also has units back along East Weld Street and
units up on East Burke Street. But you can see historically, this property had one, two, three,
one, two, four buildings located on it, four homes through the years up to 51. And then you can see
in 76, the rear buildings on 28 were, the rear building on 28 was removed sometime between 51
and 76, but there is still the dwelling at the back of 1326R. And that's as far as our records
go. There is now no building at the back on 1326R. Again, you just have the buildings that span 1328
and 1330 at the front. So historically, on these three parcels, there have always, there have been
four buildings, four dwelling units. We originally come to you with a plan to consolidate
these three lots into one lot. And part of the reason for that is that at one time,
we're not sure how utilities were arrived at for 1326R, but they more than likely came through
1328 or 1330. The two foot five inch wide strip is not wide enough to run utilities out to Burke
Street, and there are no utilities in the Wilk Street Alley. And as you can see from the survey,
if we were to even just want to develop 1326R with a single family dwelling like there had
been there historically, you're talking of a utility run that's over 300 feet to get back
to 1326R. It's cost prohibitive to develop it as an existing lot. Actually, to develop it with
another structure would generate a refusal by code because the building at 1326 and the building to
the other side at 1324 are both up to the front property line. We'd need to have our building
located all the way up at Burke Street, which obviously is impossible to do in a two -foot,
five inch wide strip. So we couldn't even develop this property by right. We'd need a variance and
financially we'd be unable to develop it because of the huge cost of running utilities 300 feet.
My client, who I will have speak in a little bit, because at our last hearing that we had
scheduled in this matter, following the granting of the request for reconsideration, we requested
a continuance at the suggestion or advice of Council President Clark and his office that my
client continue discussions with the immediate neighbors, which he has done. He's had extensive
meetings and conversations, and he can share some of those with you. But it's that disturbing
Wilt Street, which many of the people that have properties that front on Wilt use for ingress and
egress, vehicular ingress and egress, it would be disturbing to that. It would disturb their
ability to utilize that. So there's obviously concern on their part regarding running utilities
down Will Street, even if it were financially feasible to do. So because of the issue with 1326R,
it's not, and we have an appraisal report that was done that was submitted for our hearing back
in October that showed that essentially our plan, our original plan, which was to consolidate
the locks, create five single family dwellings with two -car off -street parking with a single
curb cut.
Right now, there is a curb cut on East Berks for that garage that you saw in the photos
I showed you initially.
So to get all the cars coming in and out onto Berks or a single curb cut, not using
Wilts Street at all, because we heard from some of the neighbors that they didn't want us to add
any traffic to East Wilts Street, that this seemed like a plan to kind of come up with
the use of the property, taking into account the issues with 1326R by consolidating the two
together. The appraisal report we submitted for our hearing back in October was that we needed
to five units, there was a financial hardship to do less than five units. Clearly, doing two
on lots of this size was not going to work if we were to consolidate 1326R into 1328,
and that we should demonstrate a financial hardship that we needed five. The zoning board
The zoning board had denied that variance request for the five units, even though we had revised the plan, we had relocated the plan, shifted it away from the neighbor to the north.
had denied that variant.
She had issues with us building, whether it was by right or by variance with a by right development project along her property line.
So we redesigned the project, flipped it around.
This is what we presented previously, and the zoning board granted no, even though we had shown that we had a financial hardship for five.
The economics, the economy has changed, the building economy has changed somewhat since that presentation.
We re -ran our numbers, and you can see at the appraisal report that I have at tab 11, a report of 126 -23, that with those slight changes, and I can have the appraiser testify that we are now able to eke out four units, where before four units and clearly three, two, or one wasn't financially feasible.
Four is now possibly feasible, marginally feasible to do. So what we did is we went back to the community and what we presented was a plan with four, and you can see here, we reduced from five to four.
we kept the buildings away from the neighbor to the north and we added an additional off -street
parking space because some of the comments we received at the community group meeting were
and i get this all the time you provide one off -street parking space for each of the units
they say well you know they're not gonna it's not gonna be enough for everybody that lives there so
you provide two and then it's well where are their guests gonna park so now we have three
We did hear some people say, well, now there are too many cars.
I feel like I was a little bit stuck in Goldilocks and the Three Bears, but we were just trying
to accommodate what the neighbors were speaking about.
We've had a number of meetings with the community.
We've bent over backwards.
We've heard them.
We understand what they're saying.
We've reduced the density.
Again, we now have the number of units that previously existed.
There were four homes on these three parcels previously, and now we're back to four, and we're keeping all the cars off street, including, I guess, unless they have three cars themselves, and we're only using the single curb cut that presently exists on these Berks.
One of the nice additional things about having this development this way, as opposed to some other options similar to what existed previously or that you have elsewhere on the block or across the street, is that having this access drive, and we did have testimony at the last proceeding regarding that, allows for emergency vehicles to get down, either down our drive or get hoses down our drive to access the
buildings and properties that back up to East Wilt Street from Montgomery Avenue, where they
clearly would not, we were told by the community, a fire truck would not be able to get down East
Wilt Street. So not only is this design allows for protection of our development, the properties
that are located East Wilt, as opposed to just fronting them on East Wilt, but it actually
provides additional benefit to those properties that back on the East Wilt at our end of the East
Will Street Alley. We did look at a number of different options at the beginning and throughout
this process. This layout is very similar to how other properties are laid out on the opposite
side of Berks. Again, historically, there were buildings at the front and back. This would be
if there was a building at the front and back of 1328 and 1330 and then trying to develop 1326R
somehow. Again, that is a problem. So this is one option. We looked at this scenario. And again,
with every scenario we looked at, by right, we ended up with more building, more, I guess,
lack of privacy for the property to the north of us than with our current design. Again,
And with our current design, what we have is we've pulled away from the property to the north.
You have a very wide drive aisle before you even get to our buildings.
The decks are further set back at the roof.
We do have a balcony at the second floor level, but it's pretty low.
But again, if you go to the design that we had here, and even going to this scenario,
where we developed, and again, the appraisal makes it clear that three just is a non -starter.
You end up with massive homes. You end up with a building built all along the property.
massive homes, you end up with a building built all along the property line of the neighbor to
the north and along the property lines of the property to the south of us. Massive buildings,
massive, you know, large, large homes, you know, 9 ,000, 8 ,000 square feet, 4 ,000 square feet in
the rear. I mean, it's just not even marketable at that size. And then you have a lot more cars
coming in and out of Wilt Street, which is not what the neighbors who, again, utilize Wilt Street
for parking and vehicular ingress and egress had wanted us to do. So again, and I can have
the gentleman who did the appraisal report speak to it real quickly, just to show how conditions
John Musnoff had changed from our first presentation to this presentation, just real
quickly, if you would, unless you want to accept, the board wants to accept the conclusions that he
stated in that report at their face value. We will accept it at face value. Accept it at face value?
Okay. Yes. But essentially, I mean, if you were to read it, you could see that he goes through
and he does talk about the change in economic conditions that have now made four, just barely.
So it is the minimum, the four, where five was the minimum variance required at that time of our last
proceeding because of the state of the building industry then things changed a little bit we were
like okay well has you know everybody's hearing that supply is easier is better um you know chain
of supply chain is better is improved the rates had changed that lightened up just a little bit
that made for the minimum variance and again that's the same number as used to as previously
existed there. So our change from the last, from what we last submitted is we went from five units
down to four. Again, we had previously submitted the flipping of the project to pull it away from
the property to the north of us. We actually have more open area now where before we had 37 .9 %
open area. We now have a whopping 44 .7%. Mind you, only 25 % is required. So with this design,
we have a ton of open area and we're getting actually two more cars off street with that
one fewer dwelling unit than what was originally proposed or proposed with the revised design.
Now, as I mentioned to you, after our last proceeding, when our proceeding was scheduled
in March, excuse me. We continued that proceeding so that my client can continue and engage in more
continued discussions with the near neighbors. And I would have Roland Cassis promoted to a
panelist because I'd just real quickly like to have him talk to you about the concerns of the
neighbors, which didn't necessarily have to do with the zoning issues that are here, but some
other issues unrelated to that. So if I could have Roland Cassis promoted to a panelist, I'd like
him to take just a couple minutes. Do we see his hand? Do you see him? Yes, he's available.
All right, thank you. Sir, could you state your name, please, and spell it for the court reporter?
Yes, hi. Can you guys see me and hear me?
We see your name, but we don't see you personally, but we hear you.
Maybe if I stop here. Let me see if I stop my share.
I don't think I'm sharing right now, actually.
We see you now, sir.
Thank you.
Hi, could you state your name, please, and spell for the court reporter?
Yes, my name is Roland Cassis, 818 North 4th Street, Philadelphia, PA, 19123.
Could you spell your name, please, for the court reporter?
R -O -L -A -N -D, Roland, last name's Cassis, K -A -S -S -I -S.
Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?
Proceed, counsel.
Russell. Roland, as you know, we had a hearing originally scheduled on this reconsideration in
March, but we requested a continuance. Could you let us know, let the board know why we requested
a continuance and what interactions you had with the community following this rescheduling and
continuance of that proceeding? Yes, absolutely. So I just want to introduce myself to the board
real quick. And I want to thank you for hearing this case for the third time. I'm a real estate
developer. I develop most of the corridors on Frankfurt and Front Street and Fishtown.
uh frankfurt hall la colombe soraya badia pizza talia two robbers there are a lot of apartments
Frankfurt Hall, La Colombe, Soraya, Bedilla, Pizza, Talia.
a lot of homes started developing homes in 2000 uh sold a lot of houses uh most of the houses we
sold the last cycle was not even listed that our buyers come to us to buy them without any listing
knowing what our product is and knowing our reputation so that's who i am as a developer
I decided to do this project on Burke Street with Zeros Construction that I met through the House of Hope, through the Earth's Foundation.
They were building this church and cafe for free.
I met them and I decided to invest money with them and build this project together.
And I was at every hearing, listening to all the communities and listening to all the meetings.
and the last meeting and the last letter that came back you know everybody was going down on
Zato's construction because they said they built this project on Montgomery Avenue that
backs up to Will Street so and that was the whole meeting these guys had a bad
a bad taste in their mouth from that project what I found out from Zato's afterward that actually
they took the project over when it was already on the roof they just finished it because another
contractor so the damage was done from someone else but regardless i asked councilman clark's
office and the neighborhood to allow me to go back to the neighbors and introduce myself
and really go over the letter of the letter that they sent to the board about all their concerns
And one of their concerns in the letter is Winga Safran's article about how these guys do their build out.
So I met last Friday at the community center.
And what I found out was that these poor people have been going through some horrifying times because of not because of the Montgomery at Zaid with this, but because of also his project called Rack Flats.
I believe David said it was the ice house.
Not the ice house.
I'm sorry.
I missed it.
It was the rag glass.
There's another project across the street.
It was by an NFL player that had these machines that were shaking the grounds.
So there's a lot of damages that were done.
And people went through nightmares there.
And I get it because I said to them from day one, you know, I'm the kind of developer that comes to the neighborhood and always get their approval.
I literally got the Fishtown's FNA's approval for every project I did on Frankfurt Avenue
because back then, all these projects were ICMX.
So I work with the neighbors.
I work with the neighborhood.
They know me very well.
So I said, guys, I am the one going to be building this project now.
I am a reputable developer.
You don't have to worry about it.
I gave them my cell phone number.
I understood their concern.
And really also one of their concern is our adjacent neighbor, Michelle, sweetheart.
She's great.
But she didn't want anything built right next to her property line.
That's why we flipped the house for the first time to go from her property line to allow her to have as much sun as possible.
So we flipped it that way.
And nobody wants to go on Will Street because they don't want construction to be on Will Street because that's their access.
If we dig the street up, it's not a street.
If we dig it up, then people can't have access to it.
So we came up with this concept and also the fire department.
Everybody said, where is this a fire?
you know said you know how can people how can we you know how can we fix this we went to the
fire department the fire department told us actually by us making this alleyway there what
it is it allows them access with hoses to go if there's any fire in the back so if we go step by
step I literally eliminated every time that something came up it was a concern and I we fixed
it from uh if we look at the letter it said the construction now i'm doing the construction
that is gone there's nothing to worry about because of my reputation how i build things
two they're asking how much the price of the houses was the house is going to sell between
million two a million four the other developer afraid to tell them because they're worried about
taxes and stuff taxes i told the neighbor i said your taxes already got you know there's houses
selling over a million dollars in the neighborhood so the evaluation of the homes already there
nothing's going to change the other thing they were concerned about is the uh david can you
please remind me there are too concerned the fna had in that letter um yeah let me let me pull that
i'm just going to put the cars there was too many cars yes they were worried about people driving i
said these are people and i sold a lot of homes in this category i'm like these are professionals
with wife and husband and having a kid they're not having a party going in and out of there i
I mean, it's not, you know, they're not 12 cars going in and out.
going in and out. We made it a three -car parking because neighbors were concerned somebody visits
We made it a three -car parking because neighbors were concerned.
where they're going to park. So we made it as a three -car parking. The other concern, and I've
never had any buyers having more than two cars of all the 20 -some years that I've been developing
homes and selling homes, you know, in Northern Liberty and Fishtown. And all our buyers are
professionals, doctors, you know, they are architects. They come in the morning and they
go to home at work sometimes they don't they don't have cars they'd rather be in the neighborhoods
some people work from home but to alleviate that we can make it a two -car parking I told them
and one of the other concerns showing hardship we just gave them the we show the uh the appraisal
that we just showed as far as the hardship but beside this concern you know I beside the concern
they had in the letter I mean I alleviated and I told them this all the concern the letters that
you had you know i addressed them we've addressed every single time the neighborhood needed something
we addressed it so if there's ever any hardship in any project that i've seen is this project
i mean we have to dig a 300 street feet alleyway it's not even a street for us to build on this
lot in the back so i thought it was a great solution for us to work with the neighbors
to allow her to have the sun for her pool and, you know, and not to do any damage to her yard
whatsoever. I actually, somebody at the last meeting, they've asked if I can put some trees
along the, her yard. I said, absolutely. And I could, we could do that. And Michelle was worried
that what if I disappear? I said, we can get a contract from a landscaper because that's going
going to cost money to fix it. I said, we can get a contract from a landscaper for 10 years and I
can pay that landscaper for 10 years up front. That way they can take care of trees. They don't
have to worry about the maintenance of the trees. So for me, I've been working with this neighborhood
for a long time. I live in the neighborhoods. I sleep in the neighborhood. People all have my
number. I'm a neighborhood guy and a developer from the neighborhood. So I wanted to, the reason
why I asked for that meeting to take place is to be able to meet with all the neighbors around
there. And we knew that they're not going to change the outcome of the letter or the outcome
of Constantine Clark's letter. But I wanted to meet them face to face and change the narratives
and let them know how we're proceeding. So, you know, these are homes that I've built for the
past 20 years in Northern Liberty and Fishtown, having a courtyard, a driveway like that.
everywhere in the neighborhood you see that it's a common thing you know to have so i am not asking
we are not asking for anything that is unreasonable haven't been done before we have we're building
homes that improve the area we you know we are helping with the fire we are not allowing we're
not going to be using that alleyway in the back to dig it and and bother anybody in their lifestyle
we're not putting basements either that's another thing we're not going to do we said no basement
so that way we're not digging basement to bother anybody and have big machinery reason they're
digging and moving things and moving dirt so that way we are also being you know uh aware of
the construction that happened before of what we're doing here not to let that happen and by
not doing the basement we did the house is bigger it's a big chance that we're taking but i feel
like the last meeting we had with the neighbors it was a great meeting uh you know they i felt
that they trusted me as a person and they understand where i'm coming from and they you
know and i said to them i said you better have someone like me to build next to you then a lot
of you know developers that don't care and that is true that just put their gc out there and just
let let them build and they hide behind them i'm not that guy so that was the reason for the
continuance and you know i'm hoping that today we can get this to put this to bed and allow me to go
build these houses and make these neighbors happy roland the one other thing roland thank you very
much the one other thing i think that was in their letter was about the um the entrance for the the
corner building the building located at the corner that was the only other thing they noticed so the
original design had the building um the building right at burke street and had the entry all the
entrances are on the shared drive. And then so you made this change to bring the entrance so that
there was, you know, more traffic coming in and off directly off of Eastbrook Street. So I just,
that was the only other thing in the letter. But other than that, you addressed everything else.
That is correct. Thank you.
Questions from the board?
David do you have any other witnesses no that's that's it that's in terms of
okay thank you um questions or comments from the virtual audience
Okay. Thank you. Questions or comments from the virtual audience?
There's two hands up. A Mr. Martin and Kernan.
Okay. Whichever one.
Hello.
Hi. Good afternoon. Could you state your name, please, and spell for the court reporter?
Yes. It's Michelle Martin. M -I -C -H -E -L -E. Last name is Martin. M -A -R -T -I -N.
Do you swear to work firm to tell the truth, the whole truth, and nothing but the truth?
Yes, I do.
And you are the neighbor, right?
Correct.
All right, proceed.
Good morning, everybody.
Just a little, I just want to backtrack real quick.
Historically, there were buildings in the rear.
They were slaughterhouses.
All the houses that built up to Burke Street, people got their mail from the people in the front of Burke Street.
That was part of our, it was part of our community.
I own that. I own 1334, 1332. I own the back. I own 15 feet into the peak alley as well as the people on Burke Street. But they were slaughterhouses. They weren't homes that actual people lived in.
And if there was any mail or anything, they couldn't be given to them from Wilts Street because it's not a street, not recognized by Philadelphia as a street.
We have to walk the mail back to them.
That's one thing I wanted to consider.
Second thing I wanted to consider, I thought about it the other day.
If we get 12 inches of snow up the side, that's 48 inches of snow in front of four units.
Where is 48 inches of snow going to go at the end of that?
But I also think this is going to be a deprimental, it's just going to be horrible for my property.
I have a beautiful front yard, hedges, rose bushes that are over 100 years old.
I have a pond with koi.
I have kids that stop and ask if we can take pictures in my yard for prom and other things.
Kids in the neighborhood.
I have a school a half a block away.
Penn Treaty.
I have another school the other side.
St. Laurentius.
These kids come by my property every day.
To have a driveway now slapped in the middle of a residential street again,
now that we have rag flats on two doors away from me,
now you're going to put this directly beside me.
I will have absolutely no privacy.
You have four houses with four rooftop decks.
You have four balconies.
Everybody's looking into my yard.
everybody every every single person will be looking into my property building a six -foot
fence is not going to solve the problem putting trees up like Rowan said I already deal with the
trees from rag flats they don't maintain their my husband is the guy that's out there with the pan
and the bucket sweeping the street every week cleaning up no other neighbors come out but we
do because we we were born and raised there for 56 years that's how we are we are very respectful
to our neighbors i am very respectful to everybody but this project is going to affect my yard affect
my beautiful garden affect my pool affect my pond they act like it's a big great thing to have
children playing in a driveway i was born and raised in fish town i hung i was born and raised
at the Fishtown Recreation Center, at the Swimmo, at the Parks, at Newt's, at Hetzel's, or in my own
backyard. I never at a point in time did my mom and dad allow me to play in a driveway. And I put
that to Rowan's attention too. Like, why do you think it's better to have a driveway than give
somebody a backyard? Do I want somebody building up against my property line and have my property
collapse like they did down the street? Absolutely not. But I certainly don't want four up the side
on a residential row home block that really doesn't conform with the block at all.
And it's just going to cause me a lot of hardship and the neighbors that surround it with the light, the air.
My girlfriend also, she had a property like this built next to her and all she has is green mold all over her yard
because she's no longer getting the sunlight that she had and she cannot grow her garden.
And it's just a shame that developers can come in and do this to people that have lived there all their lives. It's just, I am totally against it. I'm sorry. I bet we're rolling, but I'm totally against it.
Ms. Martin, you don't have to be sorry.
Thank you.
Thank you for calling in. We understand your position.
Mr. Orfinity, do you have any questions?
i mean it i mean ma 'am i mean you so you have right now uh hi michelle first of all um you
Um, you, you, right now you have, you have a building at the front of your property,
you right now you have you have a building at the front of your property a resident
a residence that you live in, and then this is a 30, 1334, and then a residence at the
back, correct?
Correct.
And then you, and then you have parking from the properties that I guess park on 1332 and
then go out to Will Street, correct?
Uh, yes, because I put a gate back there so I could park because there's never any parking
in Fishtown.
All right.
All right.
And then you mentioned about, well, first of all, well, the two things, privacy and air and light.
So I'm just going to pull up on the screen again real quickly.
Can you all see my screen?
So this is the current design that we're putting to the board.
So the buildings, if you look here as I zoom in, you have the driveway.
and the driveway is at least 14 the buildings are at least 14 feet away
and then on top of that the roof decks on top on the top of the roof are additional five feet so
probably the roof decks are 20 feet away and the pilot houses are all the way over on the south
property line 30 some feet away from you 30 yeah 31 feet or 28 feet away from you there are these
balconies at the second floor level, but they're approximately 10 feet away from your property.
And they're only at the second floor. And then what I had shown the board was, just give me one
minute. So even with this scenario, you have, and this is building on 1330 and 13, let's say just
13. Let's even just forget about the other ones for now. Building on the property right abutting
your butting yours so you have a building you would have rather than having a fence
and we had talked we had discussed like if you want a taller fence it would generate another
refusal but we could put a taller fence you can grow things up the side of it might give you a
little more privacy it would require another variance but it's something we had discussed
um but i know that you weren't receptive to that but rather than having the whole length of the
property, 134 feet long, having nothing up against it, having nothing located closer than 14 feet
away, you would have about 100 foot tall building that's 41 foot six inches to the top of the
parapet. And then a pilot house, you could have a pilot house that says 125, it could be 165 square
our feet, which would go up to 51 feet, six inches. And this is just somebody building by
right. And then decks off the back, we only show a deck at a second floor. They could have it at
the second, third, and fourth floor. So I guess what we struggled with, Mr. Chairman, is we tried
to listen to the concerns, but then we heard concerns that when you look at what somebody
coming in there you know we heard build by right build by right and it seemed more of more of a way
to kind of stop any development thinking well if we stop this like nobody and it really is a
financial hardship nobody's going to build a buy right building but if somebody were to build a
buy right building whether they max it out this is you know 75 open area remember we're at i mean
25 % open area. We're at, with our project, 40 -some percent open area, and none of it up
against Michelle's property, located far away. You don't have roof decks right up against the
property line. You don't have decks right up against the property line, which I think we all
thought would be even more invasive in terms of privacy. So we hear concerns with our proposal
about privacy and air and light, yet what we're proposing actually has far less, far less impact
on air, light, and privacy than a straight by right project would. So it was a little difficult
to move through this process at times because it was, no matter what we did, it was basically,
we don't want anything there. And that's just, that's not how zoning works, land use works.
It's not what the city of Philadelphia wants. And here you have a developer who lives in a neighborhood, who cares about the neighbors.
And we'd heard about with, you know, with rag flats. And I'm sorry, I said ice house. I meant rag flats before, you know, about the trees.
But Roland has already anticipated that. And he's already and he's taken that issue away.
Like, here's 10 years of maintenance I'm willing to pay for. So you don't have to do it.
And yet it's still not it's still not good enough. And this is where we and again, we have an appraisal report that shows that previously showed that five was the minimum and anything less than that wasn't financially feasible.
and yet it's still not it's still not good enough and and this is where we and again
Now we have the updated report with, again, the slight improvement in the construction industry showing that four is.
So we're doing the minimum variance that's necessary.
We're imposing less on the neighbors.
We only have one.
I understand, but Mr. O 'Reilly, why don't I see if there's any other witnesses, and you'll have your final say.
Is there anyone else in the virtual audience?
Yes, chairs. Two people. Kernan has been allowed to speak first.
Hi. Could you state your name, please, and spell it for the court reporter?
Yeah, good afternoon. My name is Ash Kernan. First name is A -S -H. Last name is K -E -R -N -E -N.
Right. Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?
Are you a neighbor?
Are you for the project or against it?
Opposed.
Okay. Could you just give me a short reason why?
Yeah. First off, thank you for everybody's time for being here.
Look, you know, as much as I appreciate Roland's overtures and I don't doubt his responsibility, at the end of the day, who builds this project is a red herring.
Because despite all of these changes, the overwhelming majority of neighbors stand still in opposition to this.
Because at its core, it's a fundamental change to the nature and character of the block.
This is a single -family residence block. This is incongruent with the majority of the pre -existing usages. I don't believe that it's been offered in good faith the valuation and assessment, simply because literally right across the alley from this project, a flag lot sold as a single -family residence for $1 .9 million two years ago.
So I don't feel that they have done their job to demonstrate that 26R and 28 could be conjoined and sold for a premium.
And in addition to having 1330, that could get them right at the sort of price point where they're at.
So I just wanted to reiterate that not only does the council stand, the council president stand opposed to this,
the FNA stand opposed to this, that the majority of the neighbors do as well.
And I appreciate your time.
All right. Thank you.
Is there anyone else in the virtual audience?
Ms. Whitaker, you can unmute yourself and wait for the chair.
Hi, could you state your name, please, and spell for the court reporter?
It's Bernice Whitaker, spell as B as in Victor, E as in Elephant, N as in Nancy, I as in Igloo, S as in Sam, E as in Elephant, Whitaker, W -H -I -T -A -K -E -R.
Right.
I'm here in the capacity of a resident.
Do you swear or firm to tell the truth, the whole truth, nothing but the truth?
Yes, I do, Chairman.
Are you for or against it?
I am currently against it.
And could you give me just a short reason why, especially if it's different than what
we've already heard?
i am suggesting that this goes back to the community again um for because now roland
is being present in it and he has brought up a lot of points on this meeting that is a continuing
issue in fishtown with destructive construction um and the developers before were not as open to
this conversation. So I know Roland didn't meet with them briefly, but I'm just suggesting that
this is continued for more discussions because all the neighbors around here has had very bad
experiences from the Flag Lots, the Montgomery Five, and a few other, you know, we heard at the
meeting the other night, this older gentleman, which broke my heart, like his train room was
wrecked, his basement, like the destruction that's happened to a lot of these neighbors is very unfair.
So, my suggestion is that, you know, I understand what David Orfinides was saying that someone's
going to build there no matter what, but you know what, there needs to be a more thorough
discussion.
All right.
Thank you.
Thank you very much for calling in.
Is there anyone else in the virtual audience?
I see no hands.
All right. Mr. Orfinites, would you want to take a two minute quick overview where you stand?
Sure. And just one quick thing is, the property that was referenced, the other flag lot that sold,
I don't know, $1 .9 million, which is pretty massive. I mean, I'm looking, I have up on it now.
I mean, I'm looking, I have up on it now, none of those properties have a two foot five inch
none of those properties have a
wide flag, you know, flagpole. So, I mean, so I don't know that the details of that other
property, but it clearly doesn't have the hardship that our 1326R has. Again, I think
in terms of - Excuse me, this is Hillary. Can we actually hear from the planning commission
before Mr. Orphanity says it's closing.
That way he could respond to that as well.
Oh, that's a great idea.
Thank you.
All right.
Our planning commission.
This is Ron Bednar, city planning.
The property is indicated for residential use
on the city plan.
Adopted district plan recommends
no change to existing residential zoning
and dislocation.
The applicant's hardship is not supported
with evidence.
Unique physical circumstances
or condition of the property
that would prevent it from being used
and conforming with the code.
Normal -sized homes can still be legally developed by right.
Therefore, we recommend the request of variance not be granted.
Thank you.
Okay, so a couple things.
Let's be clear.
These are four single -family dwellings.
Wait, can I say something?
Wait, wait, wait.
Let me say something here.
No, no, no.
Your client, your lawyer will speak.
Okay, so four single -family dwellings, so they're not multifamily.
you know, let's be clear, despite what their notice of refusal says, it's four single families.
We're not, so it's very much in keeping with the underlying zoning classification.
We are, you know, we're doing four, we're not doing five. We've shown what three looks like.
We've shown it's just much more, it's not in keeping with the nature of this neighborhood
is at all. You have massive single family homes that wouldn't be able to market,
that would be completely out of keeping.
These, you end up with units that are much more in keeping
with what exists and what's being built.
In terms of the physical hardship,
there absolutely is a physical hardship.
And the unique shape of 1326R makes it a big problem.
There was clearly, and you can see in the Sanborn maps,
a dwelling unit on that property.
And at one point, you could run utilities
across other people's properties,
even under buildings on your own property, you can't do that anymore. And the cost and the issues
the neighbors are going to have with running utilities down Wilts Street makes that development
of that property impossible. And you cannot develop all these lots as only two single -family
dwellings. Developing it as three is an impossibility because of the water department,
because of the streets department, and financially. And again, I don't know that any of these people
have actually read the appraisal reports that we've provided. They're extremely extensive,
extremely detailed. I'd be happy to have Mr. Musnoff quickly speak about it. But we discussed
that you can read them and they speak for themselves. But it clearly makes it absolutely
100 % clear that even at four, I mean, the margins are so risky. It is clearly the most de minimis
refusal or de minimis project that we can possibly have here. And again, it is very much
in keeping. Roland talked about these types of developments. I live in something like this.
They're very common when you have lots that are like flag lots. And when we say flag,
not with the skinny pole like 1326 are, but that are wider in the back like this is as a way of
getting development that works, that functions, and that has the minimum amount of impact
on the neighboring properties. Again, if we were to build, even if you could financially build
three single family dwellings, the ones on East Berks would not be anything like what's
presently in the neighborhood, even if it could be sold. So we feel like we've established both
the physical condition of the property that creates a hardship we feel, which is not the
sole hardship. You can also have financial hardship. The zoning code talks about that.
And we've established that time and time again throughout our presentations. But clearly,
we've not done just one appraisal report. We've done two appraisal reports. So this has been
vetted, reviewed repeatedly by not only the experts who prepared the reports, but by our
team as well. So there's a financial hardship, there's a physical hardship, it's extremely
costly, if not impossible to run utilities to 1326R, and that this project is more in keeping
with the neighborhood than what might otherwise be by right. And again, we can't even develop 1326R
by right, because the frontage is so narrow, we can't build in that. So with that, we feel that
we've established the criteria for the granting of the variance. There's no impact on air and
light to the abutting properties, and definitely not. It's way less than what would be with the
It's way less than what would be with the buy right project. And for those reasons, we ask that the board grant the required variances.
buy -write project. And for those reasons, we
Thank you, Mr. Orfinites. We appreciate your comments. We're going to hold the vote on this for an amended refusal.
OK. OK. All right. And thank you. Thank you all.
Is there is there anyone left in the virtual audience whose case has not been called on the morning list?
Mr. Chair, this is Hillary. I just wanted to, sorry, interject briefly.
Ms. Orphanides, I know we were having a conversation over email about this. Let me check. I'm going to check with L &I. I'm pretty sure they're going to tell me we need an amended refusal because the number of buildings has changed, but I will check with them and see if the revised plans would be sufficient.
i and just want to be clear i think from a zoning standpoint they view this as a single building
but from building that's going to be multiple buildings so i don't think the number of buildings
will change in the way they look at it from a zoning standpoint but do do it you know whatever
gets decided yes let me yes i'll i'll check with them and i will let you know if we can just accept
the revised plans it is or if we need an amended refusal but i believe the board the board will
want to hold this anyway for discussion and hillary just real real quickly i i mean i it's
been a little bit since i listened to the recording from you know the last hearing we had uh in october
but i i could have swore i could have sworn that the planning commission had actually supported the
project when we were at five i might be mistaken i'm just a little surprised that now that we've
reduced the four that there's opposition but um that's what my my notes indicate that they were
in support of the project at five. Right. So, I mean, we've reduced the density and we've addressed
so many of the concerns that you heard my clients speak about. I'm just, I'm a little surprised that
they've changed their position. So I would ask the board to take into consideration the prior
position of the more dense development and what we have right now. All right. Thank you,
Scott. Is there anyone in the virtual audience whose case has not been called?
may be excused i see no hands all right um thanks everybody um we appreciate you staying
around a little bit later today and um we'll we'll see everybody tomorrow morning thank you