ZBA Hearing - March 15, 2023

Go ahead.

Yeah, so just on the point of the rear, the off-street parking space, that was a means to resolve serious structural damage that was causing issues for the abutting neighbors.

um you know so so you know hence why he he sort of filled in the garage

Um, you know, so, so, you know, hence why he, he sort of filled in the garage to stabilize the property.

Okay. MI 2022-006-171-7510 Thoron Avenue. I vote yes.

Thomas Holliman, my vote is yes.

James Snell, my vote is yes.

Thank you, counsel. You have your three votes.

Thank you.

Okay. So number 11.

MI-2023-001438, 7078 Lincoln Avenue, Michael Phillips is the attorney for the appellant, Leonard Reuter is the attorney for the city, and L&I.

This appeal is for the revocation of a zoning permit, 102-6214.

Mr. Chair, this is Hillary. I just want to make a note at the outset because I know there are a number of people here regarding this case. Because this is an appeal against L&I, we will not be taking public testimony. We also want to remind people to please not comment or testify in the chat box. Thank you.

thank you very much um so i think let's see here we have an order of what what we're thinking about

i'll know what let me swear you in first mr phillips could you state your name and spell

for the court reporter good afternoon chairman bergman michael phillips with claire harris and

harvey bransburg on behalf of the property owner slash appellant 7078 partners lt right you swear

or affirm to tell the truth, the whole truth, and nothing but the truth?

I do. Leonard, could you state your name and spell it for the court reporter, please?

Yes, may it please the board, Leonard F. Reuter for the City

of Philadelphia, Senior Attorney for the City of Philadelphia.

Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?

I do. So this is what we've

worked out today. This is what we'd like to do in the order of the hearing. The city

makes its case for a revocation the appellant explains why the permit should not be revoked

there'll be no public testimony and there will be no recommendations from the planning commission

is that okay everybody agree that's okay with me i wasn't uh planning on going first so it'll just

if you just give me a moment to get to gather some of the sure yeah sure

so what i'll do then is um i would ask that i can share my screen you you can all right

let me i i have to make sure i close other things otherwise this whole thing will crash

that's not it your screen's coming up yep sorry wrong document

michael wouldn't want me to see that

well actually i guess i can just present the what happened here

So a zoning permit was applied for back in October of 2019, and that was a permit to alter an existing structure at 7078 Lincoln Drive.

And I believe Mr. Phillips has provided the board with the zoning documents that he has retained, the site plan that shows this property.

This was an older structure. It is not, I should point out, because I think there might be some confusion in the public's part about this, this is not an historic building in the sense that it is not currently on the register of historic places.

It is a garage dating probably from a garage and auto, possibly at some point, auto repair facility built in the early part of the 20th century.

For a number of years, it had been in dilapidated condition.

In and around 2013, the property had fallen into unsafe conditions and a portion of the roof had collapsed.

I'm not sure whether or not there had been a fire.

I was not able to find any indication of that, although I've heard that that may have been what precipitated the collapse of the roof.

So the roof membrane was removed again at the time violations were issued.

Those violations were for a while complied.

There was an engineering report that was provided to the city at the time, but from 2013 to relatively recently, the only thing remaining at the subject structure was basically the four walls of the building, which is, again, only a one-story structure and some of the roof trusses.

There was an engineering report that was provided to the city at the time.

but

And let me see if I can try to pull up photographs if I can.

Sorry, I'm on the city's network and computer.

And before, so it was, and I'm not making a complaint about this whatsoever, but it was relatively short notice of this hearing.

i think we found out on friday so i was not able to present witnesses however i believe

and i would hope to get a stipulation from mr phillips about the authenticity of some of the

photos that i'll be presenting i don't think there's any dispute about the zoning documents

so let me share my screen again try to

so this uh is you you should be able to see this is a vote great this is a photograph um

uh showing the property as it existed uh in december of 2021 and you can see

uh the remainders of some of the roofing structural materials um or i should say

the the trusses these were roof trusses um that spanned most of the width of the building

i don't know how many there were i think there were three or four and so the property was

essentially in the condition that you see here pretty much since from 2013 uh up until

i guess approximately september or october of 2022 so a zoning permit had been applied for

to basically rebuild within the four walls of the structure and to build up i believe four stories

additional height keeping the footprint of the existing structure and keeping

the remaining walls with the exception of a portion or maybe all i think it's just a portion

of lincoln of the lincoln drive wall unfortunately i do not believe i have the actual

permit itself it was in 2019 it's predates eclipse and not everything got into eclipse

no that's the building permit plan sorry about this i relieved him i thought michael was going

to go first um sorry leonard this is hillary i'm sorry sorry to throw you off michael if you want

to pull i know you had sent some of those documents to the board and you may have them

handy if you want to pull up the permit that that's fine if leonard's okay with that yeah i'm

okay yeah if you don't have anything else to share from your photos on i'll i can just share

um my documents and yeah i think it just showed that plan that you're you've got there let me um

share and and if i'm correct i believe that the documents are are stipulated to by by both parties

accepted by both parties that's right uh the all the zoning documents all the city documents that

were presented to the city uh engineering reports plans uh the permit um that's all stipulated too

that's the appeal all right um

is it the zoning permit

the zoning permit or the building permit the zoning permit's fine yep if you could just blow

that up that'd be great so anyway this permit uh was issued january of 2020 and it is for

uh the erection of a four-story addition on top of an existing one-story structure

it included two development bonuses for fresh food market and the mixed income housing bonus

and I will put on the record that they chose the payment in lieu option for the mixed income

housing bonus that money has been paid into the trust fund and in addition I should point out

that this permit was issued by Wright and I'm not aware that any appeal had been filed from

the issuance of this permit. Subsequent to that, the developer

Subsequent to that, the developer applied for a construction permit for new construction.

And this is sort of where we get to the crux of the matter and why I think that mostly this becomes a question of legal interpretation.

So, in the application for the zoning permit, the zoning permit application indicates what they're doing, but the zoning permit application itself and the plans do not indicate that there are trusses at the property or that the trusses were going to be removed.

so the building permit was then issued on the basis of the zoning permit approval and then of

course the building permit plans were approved but because of at the time of the building permit

application it was determined that there were some structural concerns this was the building

permit application was done under what they call a special inspections regime which required there

to be an engineering report uh in the midst of all this another unsafe violation had been issued

and they did present uh and there were in fact violations that were issued there was an appeal

taken to the board of l and i review during the pendency of that review that appeal um which was

brought by a different attorney and this is about in 2021 um they did present engineering reports

And the building permit was still under review, but it was determined that once that construction permit was issued, it would resolve the unsafe conditions.

So that violation was marked, complied with the issuance of the construction permit and the submission of an engineering report, and everything was fine for a while.

Then in, I think it was early October, the department made a determination that, in fact, there had been an error in the issuance of the permits.

And the department went out and issued a violation notice for a demolition without a demolition permit.

So without getting into too many more details about that,

a demolition permit would be required if you're removing more than 500 square feet of a wall

or removing two-thirds or more of the structural elements or joists at a property.

So Ellen and I had determined that, in fact, the problem here and why the zoning permit was issued in error is because at the time the application and plans were submitted,

the department was not informed that the trusses that you saw in that photograph were, in fact, going to be removed.

So as a result, because of the removal of those trusses would have been considered a demolition of the property, a demolition permit would have been applied, would have had to have been submitted, and perhaps more importantly, a zoning permit for new construction would have been required rather than alteration.

And this, of course, implicates the other issue, which is that the building is currently nonconforming. So had a zoning permit for new construction been applied for, it would have resulted in a refusal and a requirement to obtain a variance for the proposed construction.

in addition since the time of that application and permit issuance the code has changed there

have been changes to the mixed income housing bonus i believe the fresh food bonus no longer

exists and at least they would not have been able to obtain it but again so the department again

made the determination that the zoning permit had been issued in error because the code let me pull

up the code section because the code and an accompanying code bulletin again define a

demolition as being among other things removal of two-thirds of the joist of a structure and here

all the joists had been removed so in october the city then issued and that's a letter that michael

wrote to me but uh so the department again then determined uh that it was a demolition so they

that it was a demolition. So they issued a notice of intent to revoke the permit, which I believe is what's on appeal here. And in the meantime, they issued a stop work order. So an appeal is originally filed to the board of L&I review, because also the construction permit was also going to be revoked.

issued a notice of intent to revoke

So, thank you, Michael Wright. And this is the revocation letter that was issued by L&I at the beginning of October.

So, the appeal was taken to the Board of L&I Review because it involved the construction permit.

There was some discussion with Mr. Phillips and with the various board councils and the department.

and there was some thought of taking it to the board of building standards on the construction

permit but ultimately we made a determination that because everything really depended upon

the validity of the initial zoning permit that was going to be revoked that that matter had to

be heard by the zoning board because the zoning board has plenary authority over zoning matters

So the question before the board then is whether or not the city's intent to revoke the zoning permit 1026214 is valid based upon its determination that this zoning permit actually should have been denied or should have been given a refusal because it should have been considered a new construction rather than an alteration.

and

so again if I can just have a moment

so the city also has

a code bulletin on this that again specifically defines

a demolition as consisting of

the removal of two or more joys. It's actually, sorry, not a code bulletin, but what's called a

code solution and again it references 14 305 sub 6 of the philadelphia code which talks about what

a non-conforming structure is and when the non-conformity is lost and then also uh it

references the administrative code and i can try to share my screen to show the code solution i'll

stop my share. Thanks. If I can figure out how. Hold on. Great. Thank you. Did I stop it yet?

nope not yet

if i just close out of my exhibit the whole thing will that should do it yes i can now share thank you

so this is the code solution and again uh it explained this was issued back in

2017 so again a repair so it doesn't specifically define demolition says a repair is defined by any

of the following interior work which does not result in increased gross floor area no replacement

of up to two-thirds of the structural framing members when work involves the replacement of

any portion of an exterior wall and that's the section that we're dealing with here so because

It's the city's position, L&I's position, that two-thirds of the structural framing members were being removed, as well as a portion of the exterior wall along Lincoln Drive, that that exceeded the threshold of a mere repair or alteration, and that it was, in fact, a demolition.

And therefore, a new construction permit should have applied.

So that's basically the entire case.

And that was that's the rationale of why the city removed issued the stop work order and has issued the notice of intent to revoke the zoning permit is, again, because of the city's position that the permit was improperly issued.

I should also point out that the city's position is that the permit was not vested because a zoning permit doesn't vest if the application materials were not full and complete.

I should also point out that the city, the city's position.

And we don't believe we believe that because the site plan and the zoning permit application materials did not indicate that the trusses would be removed, that it was an error on the part of the applicant and that not necessarily I'm not suggesting necessarily that that was done intentionally in order to avoid having to get a new construction permit.

But, again, it is the position of the city that the permit did not vest and that we are still able to revoke it at this point.

So if you have any questions about that, I'd be happy to answer.

As I said, the city didn't have the ability to get a secure witness on short notice for this case.

However, again, I think it's essentially a legal question.

There's no dispute that the trusses were removed, and there's no dispute about what the permits were for and what had been done, or there's no dispute about the wall along Lincoln Drive having been removed, which, again, was part of that new construction permit.

The only issue is, was the removal of the trusses the removal of two-thirds of the structural framing members?

And, you know, that's pretty much what the case is.

Or was the, and or was the permit vested by the time, by October, when the city issued the stop work order?

Mr. Phillips, you want to respond?

Absolutely.

and if i can share my screen as well um

well i think you have to stop your share oh i'm sorry i didn't even know i still doing that pardon me

Thanks.

Thank you.

Before I get into my exhibits, there are two key points I want to raise.

First, that while I appreciate that there's stipulation to the documents and the permits of record, we don't believe the city has satisfied its burden to show that there were structural framing members of this building that were removed or that this zoning permit in any way violated the zoning code.

The second is on the vested rights issue.

And I want to start with that because this is a it's really just a grave injustice.

There's no other way to put it.

In October, in January of 2020, this zoning permit was issued for the erection of a four

story addition on top of this existing one story structure.

The one story structure had no roof.

Therefore, it's not a building.

It's only a structure. And implementation of the fresh food market bonus and the low income housing bonus.

This was approved and the permits were issued. Now, January 2020 is two months before the pandemic.

So that's why we have a large gap in time after that happened.

But by December of 2021, my client has now paid $300,000 into the city's affordable housing trust in order to have its building permit issued.

It has secured over $5 million construction loan that has two years remaining on it.

and it is underway with its construction and work under these approved permits by the city

and in reliance on these permits from the city. It wasn't until one week into that work, October

of 2022, that my client received this letter regarding the revocation

of its permit. And you'll note that the replication represents that it's based on

the fact that more than two-thirds of the structural framing member in the entire front

wall were removed, and complete demolition was performed without a demolition permit.

Now, that's just, quite frankly, not accurate factually or legally. The zoning code, as I noted,

The zoning code, as I noted, defines a structure as, you know, as a building essentially without a roof, and that's what this is.

So this is where it defines a

But structural elements are the components of a building that are necessary for the stability of a building.

And these roof trusses were left over from the roof that was moved in 2013 and bore no relation whatsoever to the actual stone structure.

And I have some photographs. And again, the content, the removal of the wall and all of the construction that was to be performed was under approved plans that never showed these trusses, that relied on the zoning, that further relied on our engineered existing structure findings.

that specifically, and the reason I have another copy of this is they're the same copy, just the

stamp is over. But this specifically states that the structural bearing of the new design

will rely on a steel frame built up on new concrete footings, bypassing the existing

stone wall. It also references that the new design of the building will not use the right

rear or left existing walls for any major structural bearing. These trusses, as further

shown in a makesafe report that was issued on December 23rd provided to the city, also further

established that the stone wall was stable. And here's the photographs of the stone wall.

Those remain stable. And it also referenced, I think importantly, that

the perimeter walls previously served as a load bearing walls for the roof. So it was the opposite.

it. The trusses did not support this building. This building supported the roof and the trusses

were were were left over. This also report that was provided spoke of the trusses and provided

photographs of the trusses. And as you can see, they are not even attached to the sidewalls.