ZBA Hearing - April 21, 2021

or another where each and every one of them is willing to work something out okay all right

hopefully we can all right so the continuance request is denied though yes yes okay so then

i'm going to pass it on to attorney cook for his motion to dismiss based on the law

Hi, thank you, Mr. Chairman, members of the board. Again, this motion is a threshold matter and is also

Again, this motion is a threshold matter and is also meant to preserve the record on these points of law.

In the instant case, applicant is attempting to establish that the Zagar mosaic is a hardship

and that its preservation requires the requested variance from the code.

You can see that in the applicant's memorandum of law at Exhibit 18.

Accordingly, the threshold matter before this board is whether or not the Zagar mosaic constitutes a hardship.

Logic dictates that in order to make that determination, the ZBA must make a finding of fact and conclusion of law that the Zagar mosaic must be preserved and is therefore a hardship under the code.

applicant as evident in its presentation packet will present evidence testimony and argument

that is identical to evidence that was presented before the philadelphia historical commission on

friday september 14th 2018 in an attempt to relitigate that the zagar mosaic must be preserved

this is an identical issue that's already been adjudicated by the historical commission why is

that important because under Pennsylvania law, agency decisions have preclusive effects

when they meet four conditions, and they are. The issue determined in a prior action is identical

to that presented in the subsequent action. Here, Zagar mosaic must be preserved. Here,

there, Zagar historic designation in the mural and the hated bride must be preserved.

Here, the Zagar mosaic must be preserved.

Therefore, we are required to have a variance

to preserve the Zagar mosaic.

The previous judgment is final on the merits,

that's element two.

The party against whom the defense is invoked

was a party or a party in privity

with that party in the first action.

In that instance, it would be applicant

in the Painted Bride Arts Center.

and finally the party that against estoppels being asserted against had a full and fair

opportunity to litigate the issue on the merits in its prior action. Excuse me Mr. Cook can I

interrupt one minute and ask a question are the cases that you're citing do they all involve

actions by a single agency in other words an agency that made the decision and now is considering it

again, is there any case law saying that a completely separate administrative agency

that addresses completely different concerns would be barred under these circumstances?

Ms. Oletta, they are different agencies that are at play here. And furthermore,

between administrative agencies under Johnson-Bowl v. Department of Public Welfare,

which is a 1995 case from the Pennsylvania Commonwealth Court,

they hold that it's of tantamount importance that collateral estoppel between administrative

agencies is appropriate when the goals are the same in both proceedings. In that proceeding,

the goal was to preserve the Zagar mosaic in this proceeding. The goal is to preserve the Zagar

mosaic so that, shoehorned, bootstrapped, the finding of hardship can be made. So I think that

under Pennsylvania law, it is very clear, and as we go through kind of the facts further down the

line to prove each element that estoppel factors are all present and that this board will be

estopped, not here, maybe not in common pleas court, maybe not in commonwealth court, but at

the supreme court level, ultimately this is an issue ripe for appeal. Does that address your

question, Ms. Saleta. Yes, thank you. Thank you. So as stated, you know, this, this issue was heard

fully fleshed out by the Historical Commission. And as evidence of applicants attempt to take a

second bite at the apple here, they're going to have Ms. Emily Smith of the Philadelphia Magic

Gardens who nominated the Painted Bride for historic designation testify here today and you

will likely hear the same testimony which is about Isaiah Zagar being an outsider artist being

interwoven with the Philadelphia community for 50 years that these sorts of buildings and and

pieces of art should outlive us and that they are essentially what makes Philly Philly and I'm not

disputing that. That's all true. The problem is the board on

That's all true. The problem is the board on that date heard all of this and made a determination that five to four vote, that it was not, that they chose not to designate it as historic and to preserve it.

And why is that important that the board did it? Because the, you know, the Historical Commission is charter designated as a matter of public policy. This is in Chapter 14-1000, Historic Preservation, Subsection 14-1001.

that as a matter of public policy to preserve and protect buildings, structures, sites, objects,

districts of historic, architectural, cultural, archaeological, educational, and aesthetic merit.

That's the charge in the portfolio of the Historical Commission, not the zoning board.

They've made their determination. They don't get to relitigate that here. There have been many

cases before this board where there have been murals on adjoining buildings, that this board

has said that's not a zoning matter. Why is this different? But back to the elements, what's

important is they had a decision. That decision was never appealed to any court of competent

jurisdiction. That's a final order. So the first element of collateral stopple is met.

it was determined in a prior action i mean excuse me the second element is met the previous judgment

is final on the merits third the party against whom we're invoking this defense has a contract

an agreement of sale with with the painted bride excuse me mr mr cook i'm so sorry to interrupt

you again but um our concern is that we may have to end this as soon as 7 30 there are so many

people who've been waiting here to um to testify given that we are going to have a second hearing

I'd recommend that you put the remainder of your argument that you submit your argument in writing

that Mr. Mattione being given an opportunity to do the same and that the board then voted at the

start of the resumption hearing and again I really apologize for interrupting midway. That's fine I

I sent it this morning early about 7.40 to RCO's EBA, to you, Ms. Saleta, and to Mr. Matteoni.

I would like to enter it into the record in full.

It has in it exhibits the minutes from the Historical Commission.

It has also an exhibit of a prior zoning approval, which will be relevant in Vern's testimony later and at the next hearing.

and it also has um plans of a prior project that was approved and i did receive all of that i

appreciate your sending it this morning i haven't had an opportunity to review it yet but certainly

will before the next hearing thank you and thank you so long as it's part of the record and we can

re-engage later i have no problem with that thank you thank you thank you and and so it is in fact

entered into evidence correct yes it is definitely thank you thank you attorney soletta and there

will be a separate vote on that but if we could go forward with mr matione's presentation at this

point i just before you begin uh michael i i just putting the mural aside for a moment i i understand

you know there are people who want to preserve it and there are those who probably would like

preserve it but because it is creating the issue of height that's something we have to take into

consideration but my point is if we didn't have the mural and the applicant the developer wanted

to do a project that was 85 feet we'd be here anyway correct all right so I mean I think that's

for me at least I don't know about the rest of the board members that that that is the crux of

the issue if the developer is entering into an agreement with the seller to preserve the mural

that's one thing but it doesn't stop him or her from coming before this board and seeking to get

a variance for a prop a building that would be exceeding the 65 foot limit which at some point

i will get into because i was the councilman at the time when that uh overlay was created and and

i can explain why it was created so i just want to make sure that that he can scrap the the mural

tonight and come back and say i still want to do an 85 foot building and the board would have to

deal with that issue make a decision whether to grant that variance or not is that is that accurate

If I may, Chairman, that is accurate.

If I may, Chairman, that is accurate.

However, in Mr. Maglioni's

However, in Mr. Maglioni's memorandum of law, it basically admits that there are no other bases for hardship.

They have a permit for eight duplexes right now that they can execute on immediately.

I understand.

There is no hardship.

That's prima facie evidence of a lack of hardship.

Okay.

Could we, we're jumping ahead now.

Mr. Mattione, I apologize for raising that.

I'll step back.

Thanks.

Respectfully.

Mr. Chairman, I did want to briefly address the collateral stopple issue.

I did get the motion this morning.

I read it and didn't review it as poorly as I might like to, but I did read it and had some thoughts and obviously disagree with Mr. Cook and Mr. Anastasio.

Excuse me, Mr. Mattione, but again, given the number of people who have been waiting a very long time, you will have an opportunity to respond to this.

I will respond. Let me say two minutes in, Ms. Saleta.

Okay, thank you.

The issues that are decided by the Historical Commission are entirely and completely different than the issues that are decided by the Zoning Board.

What happened at the Historical Commission was a decision not to designate.

They don't have to designate even if a property meets all of the criteria for designation, because in 1004.1, it specifically says a property may be designated for reservation.

They don't have to designate it even if it meets all of the requirements, and occasionally they decide not to.

So that was really the crux of the issue, the first point on the legal argument.

It's just the issue is different, and the issues are different that were decided by the Historical Commission than would be decided by the Zoning Board.

So that's all I have to say about that for a brief presentation in opposition to their motion.

With that, if you wanted me to start with my presentation, Mr. Chairman.

Please.

I have two witnesses tonight, if we can get to them.

Again, I represent Groom Investments.

They're the equitable owners of the property in question.

And I have Max Bassman and Shimmy Zakin, who are principals at Groom, are here.

Shimmy is also the architect.

And we also have Emily Smith of Philadelphia's Magic Gardens here as well to testify about a whole bunch of things that are completely different than what you testified before the Historical Commission, because the issues here are different.

And with respect, I have to object to Emily Smith uttering any testimony.

She lacks standing in any of this.

Her organization will personally benefit from the appeal being granted, as will her organization and her personally.

uh and you know that i understand she's part of a non-profit but non-profit uh doesn't mean

no profit and she's got absolutely zero standing in this issue so i object i disagree isn't an

issue at this stage anyway so for the record yeah and what i'd like to do is uh share my screen

All right, again, Emily Smith, we expect to have her testify as well for presenting plans

for the proposed redevelopment of the Painted Bride Arts Center, incorporating the cigar

mosaic at the ground floor level of the building into the development, and I have submitted

the site plan, floor plans with open air and FAR calculations, a comparison of building

heights in the area, shadow study, elevations, support letters from Mural Arts Philadelphia,

the Association for Public Art, Philadelphia's Magic Gardens, and the Painted Bride, and

many others.

We also submitted a support petition signed by over 700 people.

And again, what I want to do is go down to the tax clearance.

Have you been given the opportunity to see those petitions?

I have. And in addition to objecting to the testimony of Ms. Smith, we object to the admissibility and reliance of the ZBA on any and all support letters, support petitions, support emails identified in this particular presentation package on the grounds of standing.

there is none upon review of nearly 700 petition signers at the very most seven seven of 700

reside within the general area and absolutely none attended the rco meeting where 92 percent

of near neighbors voted in in opposition of this project as presented uh and again as you know

Ultimately, my clients, the near neighbors, will have to live with this board's decision, not greater Philadelphia or people from halfway around the world.

So with that, I'm done.

with that i'm done also on on hearsay grounds understood yeah exactly pure hearsay i've received

We also oppose on hearsay grounds.

Understood.

more uh emails in support than that seven but that that's neither here nor here well you're

not presenting evidence is that mr no i understand but i am i am just stating for the record mr

chairman that these materials have been submitted um on behalf and in support of the project again

there are three refusals um which is what i really wanted to get down to when we start with

and the big one uh as you can tell is for the height where we're i'm sorry could we get a

really on the hearsay objection for the record i object to the hearsay excuse me you can excuse me

note it for the record that there is a standing hearsay objection however this is an administrative

of proceeding the formal rules of evidence do not apply understood thank you thank you anyway

uh again it's an 85 foot height that we're hoping to build to uh the occupied area it's 100 but

it's only 100 at the second floor level above that we meet the uh 75 uh lot coverage area

And we originally had a 578% FAR.

We reduced that to 565 in the revised plans that we submitted.

And the revised plan form shows what we did was the number of multifamily units has been reduced.

Originally, it was 70.

It's now down to 64 because we backed the property up at the top floor level, the seventh floor level.

And then that reduced the gross floor area to 77,645 square feet, which reduced the FAR to 565%.

So that's part of the revised plans that we submitted.

I just wanted to have that out there and make it clear.

The refusals, we believe, are created by this truly unique property.

The property has, as everybody knows, at the ground floor level, a mosaic by Isaiah Zagar,

who is a fairly well-recognized artist.

And while the mosaic is not on the Philadelphia Historic Register, it is an iconic work of

art, and there are many people who would like to see it preserved.

The mosaic is part of the culture that developed in Old City in the 1970s when art galleries,

studios, and performing artists came to Old City, and things such as First Friday were

very prominent and popular in the neighborhood. That helped lead to the vibrancy of Old City and

helped create the Old City that we have today. As Shimi and I will explain, the variances requested

are necessary to preserve the mosaic, and if the goal is to preserve the mosaic, the only way that

can be done is by grading the variance as requested. The sole reason for the variance

is for the redevelopment of the building while preserving the cigar mosaic on the ground floor

of the property. The proposal will be explained by Shimmy but involves building without underpinning

and building behind the existing ground floor walls in order to preserve the mosaic.

The cost and engineering challenges created by retaining the mosaic create the need for

additional height and massing of the proposal and the variances that are being requested.

The project, including the saving of the Zegar Mosaic, is not viable without the additional

height due to the additional cost that preserving the mosaic requires both in engineering, planning,

and post-construction. Again, we did make some changes and I discussed that. We will have

commercial ground floor space, a common yard on the second floor.

are these for rent or are they condos these are uh for rent and what is the 10 the 10 units for

visitors? That's short-term rentals. Short-term rentals, hotels, short-term rentals. Some people

use them as Airbnb, but they're short-term rentals. But this is the ground floor of the space. We have

a large commercial space fronting on New Street. We have parking access through the existing garage

off of Vine Street. We have an art gallery, um let me. How many parking spaces? I think

it's 12 parking spaces with car share parking. Um meet the requirements. I think we have 144,

44 bicycle spaces on an accessible route as well. Is the Painted Bride closed? The Painted Bride

Is the Painted Bride closed?