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Hearing video

ZBA Hearing - May 23, 2023

Philadelphia Zoning Board of Adjustment (ZBA)May 23, 20233h 12m

examiners can go out and authenticate and verify all the measurements and all of the materials

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that are submitted on plans and applications when you submit that plan and when you when you submit

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that plan with an architect seal you are verifying or certifying that that is accurate to the best of

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your knowledge the same with the permit application you are submitting a permit application

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and the submission of that application is a is a self-certifying document that says what's in that

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application is true and accurate if it turns out it's not later that's not on the city or lni that's

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on you the applicant so with respect to any inaccuracies on the plans or the permit application

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that were submitted the city uh you know it if there's proof of that then that's fine that can

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be presented and we again we're not in position to make those checks now with respect to some of

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the curb cuts we we did in fact uh believe that some of the curb cuts that uh were installed that

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were not even part of the plans were uh not legal and we indicated that to the uh to the applicant

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uh through mr phillips and those curb cuts are not to be used uh for essentially driving up

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to uh parking spaces we're not we don't allow parking on the pastoria street side now people

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are violating that that's a violation that's a 3-1-1 thing you call 3-1-1 you say hey people

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are parking here they're not allowed to park here there's still curb cuts uh i don't believe

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a curb cut notice had has been i thought well it's not clear whether it was i don't see it in

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the eclipse record uh but mr phillips can probably verify whether or not they received

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what was happening was they were they did not they won't get a certificate of occupancy and i

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believe and again mr phillips can correct me is that they are still uh operating with a temporary

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certificate of occupancy because they won't get the full co until the issue of the curb cuts

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uh is fully resolved and again he can he can clarify that um because that's at the time uh

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they were notified about that the property was still most still somewhat under construction

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uh now the other issue so that's so the curb cut thing is basically it's the city is totally fine

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with this board making a determination of what curb cuts predated the 2017 2018 uh application

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if this board determines that there was only one curb cut or there was two or three or however many

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and where they were that's for this board to decide the city doesn't isn't going to go back

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uh and do historical research on that and again i mean to the extent that we have it is still

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actually somewhat ambiguous um now because again you have depressed areas of the curb and it's not

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clear whether those were curb cuts or whether they're just simply uh curbs that have sunken

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and depressed over the years now the other issue mr masters had mr masters um said is uh one which

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we believe is strictly an enforcement issue again which is access uh to the property from the

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pastoria street so there's like a driveway now that one was and i don't think there's any dispute

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there was a curb cut and driveway there that was existing uh it had not been used apparently in

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some time uh that is being used to access the property from pastoria and we agree that's only

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supposed to be for uh emergency vehicle and service vehicle access that may have been extended

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uh and again i don't believe we that is widened um and i believe a telephone pole may have been

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relocated but again that's all enforcement issues that's not really uh in other words if they built

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something and it's not in accordance with the approved plans that's an enforcement issue if

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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.

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It's not a problem with the zoning permit per se.

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This is an appeal against L&I.

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This is not a hearing about whether or not there are code violations.

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uh a hearing about whether or not there are code violations uh there might be uh and again the city

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There might be.

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did believe that there were problems with uh the construction of the property and the layout of

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the driveways and the curb cuts uh as built um that they didn't exactly conform to the plans

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there was a little bit of a minor problem involving um accessible parking spaces i think

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that was resolved um so now again we we didn't really issue code violations for many of these

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things because they didn't even have the certificate of occupancy so we what what happens

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in a case like that if you're doing things not in accordance with plans or if there are problems

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with the construction site we withhold the certificate of occupancy we don't issue

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violations we may issue the stop work order although i don't think we did in this particular

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instance so you know again if if people are using that driveway and they're not supposed to that's

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an enforcement issue and you know if mr master's clients are saying that you know the mr bilby has

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effectively prevented residents from entering on tulpa hawkin i don't know whether that's true or

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not and again it's not something that l and i would go and make a determination of uh unless

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they were you know people were complaining and again i believe early on people did complain ellen

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i went out and we wasn't able to make a determination because at the time the property

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was still not complete and again they're still operating i believe under a temporary certificate

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of occupancy so the bottom line is not to sound like a broken record but pretty much everything

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that's being discussed here is an enforcement issue not necessarily a problem with the existence

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with the permit as approved. Thank you. Mr. Phillips. Thank you. So I'll try to keep this

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as concise as possible. And I will share my screen. I just have two things that I want to

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show. But I want to start with this issue that Len concluded on about the emergency access vehicles

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and the use of the driveway. That is not an issue here. That's not part of the proviso.

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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.

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And what the proviso provides is pretty clear.

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There's two aspects.

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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?

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At the outset, the proviso at issue states no parking on Pastorius, curb cut on Topahawken only.

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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,

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which said, do you understand the part of this, that there was already a curb cut on Pastorius?

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uh chairman to chico says no additional curb cuts on pastorious and and uh miss gaston says

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as long as we're clear and so the commonwealth court stated there is no doubt that the zba's

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proviso was intended to prohibit additional curb cuts on pastorious street so the proviso again

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has two aspects no parking on pastorious curb cut on top of hawken only which was clarified to mean

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intended to prohibit additional curb cuts on Pastorius. There's no dispute that the plans do

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not propose accessory parking spaces along Pastorius. So there's one single issue for the

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board, and that's did L&I err in 2019 and 2021 in approving this permit due to the location of the

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curb cut. Now, there's no dispute there were two curb cuts at the time. And I will just show

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history. This is what it looked like in 2018. There was a curb cut down here that I don't think

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anyone is ever claiming was used. And this is the curb cut from Pastoria. You see, it would lead

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right into the property and then bend around. No dispute that this curb cut per the Commonwealth

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law court can remain that there's no additional curb cuts. But this curb cut, admittedly, was

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modified and at the request of streets department for purposes of safety and circulation. And I'll

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show you what it looks like now. Okay. 2022. Here it is now. Now, all of these spaces down here,

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there are bollards up. They are not being accessed. They cannot be utilized for parking.

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and we have a pending application for a variant before the board and the issue of weather parking

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before the board, and the issue of whether parking will be allowed here in the future

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will be.

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is subject to determination. But as of right now, no dispute, they're not. So the sole issue is

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whether the relocation or modification of this curb cut constitutes a violation of the order.

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And again, went like this. Now it's straight on, much more safe and much better for all vehicles.

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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.

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So the only recourse would be to compel the property owner to relocate the curb cut to this condition rather than modifying it.

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Again, we don't have additional curb cuts. We're just talking about one, one curb cut, this one here that's allowed.

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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.

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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.

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It can all be right here.

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It's safe.

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It's common sense.

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It's practical.

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We don't need – Mr. Masters has an expert testimony on this point.

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We don't need an expert to say that the curb cut was shifted over 20 feet for safety.

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The board can see it right here.

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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.

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Otherwise, we would ask that the board reject this appeal.

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As Mr. Reuter said, if there's any violations, that becomes an enforcement issue.

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But what we're talking about is this curb cut, this access, and, you know, modifying it from this to this.

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We don't have an additional curb cut.

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It's just the one, and it's much safer, makes much more sense, and this is what the permit we're based on.

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If I could just very briefly, Mr. Chair, just to follow up on what Mr. Phillips said.

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As indicated, you know, the city knows that the curb cut was widened and relocated.

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It's my understanding that that was done with the approval or instructions of the streets department, as Mr. Phillips said.

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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.

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But even if it were, the streets department has the authority to require changes for purposes of safety.

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So we don't think that then again, if somebody thinks we're in violation of the court order, then take us to court.

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This is, you know, in terms of the public safety, if this this is what the streets department required.

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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.

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I don't believe the curb has been restored.

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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.

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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.

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Now, again, during construction, there were there were workers, people working on the site who were parking wherever they could.

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The city doesn't issue a code violation to a construction site saying you're illegally using it for parking.

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That's just not a thing that we do that that makes it pretty much impossible to get to get projects finished.

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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.

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um but uh but you know again if the only issue there's so the only two issues then you know

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again is can this modified curb cut remain the way it is uh and again that is subject to streets

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department approval because they it's required for safety reasons and again i think it's mr

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masters who subpoenaed the city's witness uh mr montana's and and if and when he's called he can

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explain that so i just wanted to clarify that we're when i when i talked about the extended

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So I just wanted to clarify that when I talked about the extended curb cut for the driveway

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previously, I wasn't suggesting that that was necessarily in violation.

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I was simply saying that it was a thing that happened, that there was a relocation of it.

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Thank you.

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And thanks, everyone, for your opening statement.

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Just a reminder, we're trying to hold this hearing to 45 minutes.

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So, Mr. Masters, you're pulling your first witness.

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I'm going to let you know when you're 20 minutes in, and I think we're going to have

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to cut it, okay?

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All right. Thank you. I'd like to call Nancy Templeton from Siege Planning.

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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.

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All right. Thank you.

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Just in response, her testimony is profoundly relevant. She's an expert on our zoning code. She was part of the zoning code commission.

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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.

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So there's no way that we could present that information from a lay witness.

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Thank you.

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Ms. Templeton has been allowed to talk.

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Ms. Templeton, could you state your name, please, and spell it for the court reporter?

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Nancy Templeton, N-A-N-C-Y-T-E-M-P-L-E-T-O-N.

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

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I do.

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Proceed, counsel.

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Mr. Chair, can she be promoted to a panelist so that she can?

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He can. Yep, absolutely.

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thank you there thank you okay um

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uh mr phillips are you going to stipulate that um miss templeton is a expert or do we need to go

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through her resume again my objection as to her testimony stand um on the basis of relevance and

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the fact that the board can see with their own eyes how the curb cut was modified they don't

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need mr templeton to uh to tell them how and i also would object to her credentials as it relates

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to state uh a street and traffic uh control she is not a traffic engineer or expert in that she's

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an expert in land planning and we are not here on an issue of land planning um all right simpleton

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yeah what what to what purpose is she being offered as a as an expert in what purposes of this

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appeal against lni you have her report so you know what purpose she's going to be testifying

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to you know you know what her report says i'm not sure why you're asking that question

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so why don't why don't we give a brief overview of her credentials and okay sure could you

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could you go through your sure um so i have been a urban planner for over 25 years um

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I frequently provide testimony about the Philadelphia zoning code.

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I have done numerous comprehensive planning projects over the years.

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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.

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could you discuss briefly your education and professional certifications yes I have a

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bachelor's degree in urban planning a master's degree in urban and city planning I am a member

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of the American Institute of certified planners and a professional planner in the state of New

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New Jersey, licensed. As part of your training, do you, do you, are you trained in how to

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interpret site plans and zoning plans and to identify such things as curb cuts and driveways

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and streets? Yes. And have you worked with issues such as the complete streets and other

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or street-related planning aspects of your practice?

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Yes, I have.

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I'm sure-

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I will accept her credentials.

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Thank you.

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And again, I didn't mean to suggest

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that Ms. Templeton is not qualified in land use and planning.

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It's just for the sole purpose of this hearing, so.

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Okay, I understand.

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All right, first I'm going to show you

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what in our exhibit binder is exhibit C.

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And I'm going to make this bigger this.

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This, what are we looking at here?

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This is the plan from, I believe, 2017.

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I placed some red circles. Can you describe what is inside the red circles and what the

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significance of that is? So they are the existing curb cuts. And then

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And this is one of the existing curb cuts.

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Correct.

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And this is the one that is a driveway.

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This is the one that is the dogleg driveway.

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Yes.

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And then this is the actual driveway that has been extended onto Pastorius.

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Is that correct?

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Correct.

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