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Hearing video

ZBA Hearing - December 15, 2020

Philadelphia Zoning Board of Adjustment (ZBA)Dec 15, 20206h 9m

we are seeking to consolidate them into a single parcel which would be approximately

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We are seeking to consolidate them into a single parcel, which would be approximately 200.

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200 feet across by 220 feet deep. This is Fountain Street and this is the Roxborough neighborhood

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of Philadelphia. So if we go to here was the original plans and again these were the plans

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that we originally submitted with the application it had 23 dwelling units all of them are single

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family homes and we proposed 51 parking spaces we met with the RCO and to say that they categorically

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hated it and opposed it would would be gentle on on our project so I you know I'm not trying to

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sugarcoat that in any way in fact they disliked it so much you may recall they categorically

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refused to meet with us or talk with us thereafter so we continued working with planning commission

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staff councilman's office and actually went through cdr and what we came up with was a

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significantly toned down plan we in fact addressed every single issue that cdr had cdr actually

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viewed the plan quite favorably um we were in a little bit of an interesting pickle in that i

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understand the planning commission staff is going to oppose a rear um the rear row of homes uh but

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cdr actually liked that so we were sort of in a in a pickle as to how do you you know deal with

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being different um so what you can tell is we completely redesigned the project separated it

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we reduced it from 23 units to 15 units and eliminated all of the interior parking spaces

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that everyone had so now all the parking is in the garages that was a big issue that pretty

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much everyone agreed on and that allowed us to really open this up into a huge open area which

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now meets the open space requirements for rsd3 um so we completely redesigned the plan and i think

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that I you know it warrants stating here just very quickly that this was we we didn't redesign

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the project for any quid pro quo or um negotiation of approvals uh you know the RCO was not working

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with us or meeting with us we simply redesigned the plan because we thought that everyone's input

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all the parties involved uh gave us a better project um and we're very happy with how that

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turned out. We pulled the houses back off the street, and you can see. So here are the two

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subject properties right here. Here's Fountain Street. There's quite an elevation difference

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if you're familiar with Fountain Street. This is the rest of Del Mar Street. As you can see,

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Most of Delmar prior to 2010 looked significantly like our end of the block.

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Actually, most of these houses, almost none of these houses were here.

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And you heard testimony that in the last 10 years, there was a variable sea change in this neighborhood.

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And now you currently have, you can tell, the entire block is row homes and twins.

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And we have examples. They're all, you know, relatively brand new construction. Again, so we are attempting to coordinate what these last houses right here, these five properties in 2017 were downzoned by city council ordinance from RSA 5 to RSD 3.

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um i will explain later that i believe that that was an example of reverse spot zoning

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because it required our final properties to be the only properties on the street

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that have rsd3 zoning none of the other houses are um and so we uh you know again we we completely

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redesigned the project in an attempt to make this work um and we presented these revised plans

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in front of this board. And I think these are the most telling examples. So this is the original

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project that we were showing. And here's what we revised it to. You can see we pulled everything

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way back, fit it much more in line with all the other properties, including the recessed house

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next door. And again, you know, this was the original project. And this is what the center

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courtyard would look like now. These were the original homes right up on the street by

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These were the original homes right up on the street.

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By everyone's request, we set them back 12 feet now with an extra-wide sidewalk.

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That sidewalk does not exist currently, and we would be adding it, and again, here's the

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original project, and we really opened it up, and we'll have a significant improvement

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to the overall landscape here.

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Now, this is currently the status of the home that is at 211 Delmar, and here is the status

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of the home at 209 Delmar.

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These houses on Delmar Street are sort of antiquated and, as you can tell, falling on

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hard times and dilapidated.

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the reason being is this is now a row house and town and twin home neighborhood just like much

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of Roxborough but these sites in and of themselves and you can see it here we are the only properties

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that go all the way back you can see all the houses up and down near us are actually very

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small so you heard a lot of testimony from our land planner and our architect and regiro plant

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and the owner and developer that there's simply no more realistic use of these properties as huge

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rsd3 properties rsd3 requires a 5 000 square foot lots uh consolidated our two lots together

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would be about 44 000 square feet um you know and i know that there's a big issue with open

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space in the area but again we meet we meet even though we're adding 15 homes we would be meeting

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the uh the open space requirements and you know you can see how small the average um up and down

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the block uh the average and i can look up the number um is 2200 square feet per lot um so the

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board uh you know took all of this testimony obviously had a very full list that day um

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miss alder for was there with her clients and the board decided to continue the matter

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first and foremost because of the extensive list we had already spent some significant time going

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through the testimony which i just blitzed through now but furthermore to really for the chair to try

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to persuade the rco to meet with us with regard to the revised project um thankfully the board's

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insistence worked and the RCO did hold a special meeting for us in advance about two weeks ago

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and we presented the project. Unfortunately, their stance didn't change. They believe that

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no variance should be granted whatsoever and that their position is that only three homes can be

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built by right. I'm going to object at this point. I'm here on behalf of the RCO and we're going to

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state our position um so i would object to mr whalen's characterizations as to our position

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understood object insisting we'll get to that uh with uh miss miss haldif here all right so all i

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would say was that from our position uh because i believe it will be relevant and we did state this

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again and i'm happy to have any of my witnesses answer questions that the board may have

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is that our according to our calculations a buy right development would be eight units or eight

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homes rather um full rsd3 uh we don't believe that that would be contextual or appropriate at

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this location um which you heard from our our realtor and our um land planner and that if this

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were RSA 5, again, I forgot to pull up the zoning map for you. The zoning map shows that, again,

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we are the only plan, I'm not finding it, we are the only properties that are not RSA 5

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on the block, and I apologize that I don't have that up for you, so I'll pull it up real quick.

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While Mr. Whelan is pulling that up, I'd just like to note that we object to Mr. Whelan's

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analysis as to the number of units that are allowed by Wright, and that is our belief that

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only three units would be permitted as a Wright in this case, and that will be part of our

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presentation. Understood, and if I made it not clear that that was the case, I apologize.

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Yeah, I took it to be as if I write eight units, so thank you for clearing that up.

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Yeah, so that is our position. So as you can see here, it's loading, but these are our properties

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right here. You can see that these are the only RSD3 properties at the very end.

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you can see that these are the only RSD three properties at the very end and everything else

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is RSA five and like I said that the testimony was previously um that about 40 homes were built

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on this street uh over the last 10 years so uh with that I would I promise to be brief I hope

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I was brief enough given that it's after five o'clock um you know again I'm happy to have uh

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any answer to answer any questions that the board may have now or later but again Sarah I apologize

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for interrupting you but just wanted to give some context as to where we were so thank you

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stop sharing and cede the floor does the board have any questions for Mr. Whalen no no okay Miss

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Ms. Aldaferrer? Good evening. So, you know, to begin at the beginning.

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Not too far in the beginning. It's the applicant's duty to prove a hardship in order to obtain a

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variance, and the burden is on them to do so. It's our position that the applicant has not done so

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in this case for various reasons. Initially, the property can be used for a permitted purpose,

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it exists presently as two co-compliant single-family homes, and there has not been sufficient testimony as to why that use cannot continue.

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Pursuant to Marshall v. City of Philadelphia, when you're going from an existing conforming use and you're requesting a variance,

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mere evidence that the zone use is less financially rewarding than the proposed use is insufficient to grant a variance.

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um secondly um we've heard no testimony as to the that as to the value of the property and its

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current purpose um the zoning code sets forth um a number of criteria for granting a variance

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um in terms of hardship these can be boiled down to there's a unique hardship for the property

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The variance, if granted, would have no adverse effect on public health, safety, and welfare,

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and that the variance requested is the minimum variance necessary to afford relief.

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The minimum variance standard was recently refined by the Commonwealth Court in In-Ray

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Appeal of Bridge Park Civic Association.

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And in that order, I've included for you.

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I'm going to share my screen with you guys.

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so you can see I'll share that order with you it is exhibit eight of my packet

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and in that case the commonwealth court stated that the minimum variance standard applies

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to the number of units imposed by the code and that when you're looking at the minimum

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variance standard in terms of number of units and density that the applicant has to prove that the

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number of units sought is in fact the minimum number of units that's necessary for the project

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to be viable. We've seen no evidence that the 15 units that is proposed is in fact the minimum

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number of units that would make this project viable. So we've heard no discussion as to why

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the project is not viable at a lesser number and why 15 units is, in fact, the minimum that must

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be built here. In addition, looking at the criteria set forth in section 143038E of the code,

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this project alters the essential character of this neighborhood. While Mr. Whelan asserts that

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But the properties to the downhill down from the project are are are developed as townhomes and RSA five, the character of the portion of the block itself, which is at issue here is RSA three and that zoning was done in order to preserve that character.

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I'm going to scroll up and show you guys the, you know, aerial photos, which I believe,

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you know, we're all familiar with the area at this point, but, you know, to aid in review,

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you can see that what that while there's a newer section of townhomes this the section at the end

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you can see

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of the block beginning with the properties at issue and then continuing downward is in is a

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more detached residential district and the and changing those attached and replacing the two

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existing attached homes with townhomes particularly a double stacked set of townhomes alters the

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character of the neighborhood. I would also state that the addition of a second row would be a new

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precedent in this neighborhood. There is not a project in this immediate area that has two rows

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of townhomes attached to each other. As previously stated, the property is currently used in a code

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compliant manner and exists as two single family homes. The project raises certain environmental

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concerns for the area. These include lack of green space, as well as the burdening of so many

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units on sewer lines in the area, which were not designed in a way to support the number of units

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that are being proposed here. And in addition, there's an issue regarding traffic. I'm going to

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put up on the screen for you guys a shot of the area of Delmar Street that is directly

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in front of the subject property. This, as you can see from looking at this, Delmar Street is a very

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narrow street. You can see my car here parked illegally on the left. But just to give you guys

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an idea of the scale of Delmar Street and how, you know, a turnoff for 15 units with

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two-car parking for both units creates a hardship as creates a problem for the neighborhood

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regarding the traffic in and out and overburdened the area with vehicular traffic.

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um and then Delmar Street turns down into goes around the corner into Mansion Street it's a tight

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and somewhat blind corner and that and that and Mansion Street is is likewise quite narrow so

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if you so looking at the screen here you can see that this is quite a tight turn of uneven pavement

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And this is looking down Mansion Street, where it is actually quite narrow.

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So the addition of 30 cars in this area creates a problem for traffic.

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In addition, the second row of homes limits the light and air to the surrounding properties.

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And we also have a concern for trash pickup.

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There are 15 proposed units, and if this would go through as a multi-unit property,

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there's a question as to how a trash truck would get down the street and where,

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even if trash is individually stored within each unit, how the trash would be picked up.

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um as mr relin stated this property was down zoned to retain the character of the rsa3

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residential district in the area that was done by council on march 8 2018 by bill number 170995

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which is Exhibit 10. And City Council passed this bill with the explicit

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goal of keeping this area as an RSA 3 area. Now, Mr. Willen brought up the issue of spot zoning.

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This is the zoning that was previous. This entire area was zoned RSA 5. And then going down to the new map here, you can see that this area was split.

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So the property would be here where I'm kind of indicating with my cursor is around where the properties are located.

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And so it was not necessarily a spot zoning, but there were two areas at the end of Delmar Street that were rezoned to RSD 3 in order to maintain that character in the neighborhood.

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to RSD3 in order to maintain that character of the neighborhood. In addition, this area

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down here, which is part of Germany Hill, was rezoned to a different zoning district.

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And that zoning was done to maintain the essential character of the neighborhood,

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but also in accordance with the planning objectives for this area.

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The 2035 plan had designated these areas as areas of zoning that needed to be addressed.

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So I've included it at Exhibit 9, beginning on page 87, excerpts of the 2035 plan.

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And here at Letter A, it designates this area at the end of Delmar Street as a corrective area.

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and it is and the reason for the rezoning would be here to down zone to preserve the existing

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density and character of the neighborhood um fine uh and then there's other issues with regard to

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this project uh specifically um this project is located on the side of a hill and there are steep

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slope issues at play here um looking for a moment at the site survey that was prepared by

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i believe rogero plant land design um you can see on the survey itself that there is an area

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at the bottom here that's in 25 grade as mr whalen stated earlier it's our understanding that

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they are not presently seeking to develop on this area. However, there are also two areas designated

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in like a polka dot, I want to say in a polka dot shade here that are between 15 and 25 percent

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grade. And pursuant to 14704 to be one of the code, they would be required to provide an earth

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movement plan. To date, we have not seen an earth movement plan for this project and definitely not

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for the revised plan. And according to the code, the earth movement plan must set forth the measures

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by which erosion and sedimentation are to be controlled. So absent an earth movement plan,

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we don't the applicant hasn't presented enough information to substantiate that this plan should

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go forward and I'd like to remind the board that in the matter that in a similar situation

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regarding the property at 6558 Lawton Street um which was uh calendar number 36678 um this board

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denied a variance for failure to provide an earth movement plan at the Zoning Board hearing

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in an area where there was development between 15% and 25% grade. That decision was upheld by

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the Court of Common Pleas and is now on appeal to the Commonwealth Court. And the information

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for that case is in the exhibits. It's Exhibit 12, which begins on page 106.

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The RCO met, and the initial vote on the original plan was 70 opposed and 6 in favor.

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on the revised plan, the vote was 40 opposed and three in favor. And I would just note we've

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submitted a letter to the board that outlines the broad scope of the opposition. However,

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I would like to note that our opposition is to the plan for 15 units as presented.

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It's not our position that any variance is objectionable.

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We are only commenting on the plan and the presentation as given to us by Mr. Whalen.

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We do not have an opinion as to any other development proposals which have not been presented to us.

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In the event that there was an alternate development proposal, we would be happy to meet with that applicant and discuss that plan in detail.

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But absent a specific plan, we can't give an opinion.

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We look at every application and every plan on its own merits at that time.

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In addition, there's a few technical issues that I wanted to clear up.

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So at the last hearing, Mr. Whalen presented.

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So, at the last hearing, Mr. Whelan presented, but I was not a panelist at that time, so I had a few quick objections that I just wanted to note for the record.

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Initially, several of Mr. Whalen's witnesses were expert witnesses, and their testimony included a number of factual and legal conclusions, which encompassed statements such as whether or not the variant should be granted, as well as various legal conclusions under the zoning code.

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And to the extent that those legal conclusions step on the toes of the zoning board, I object to those conclusions.

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The zoning board, you guys are very capable of making that decision on your own.

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And so I object to the inclusion of any expert testimony that encompasses the role of the ZBA as the fact finder in this matter.

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In addition, we have objections as to the accuracy of the refusal.

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