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