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Hearing video

ZBA Hearing - February 11, 2025

Philadelphia Zoning Board of Adjustment (ZBA)Feb 11, 20252h 25m

Sir, could you please state your name and spell for the stenographer?

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We can't hear you.

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Are you muted?

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Do we see him?

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Anthony,

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please accept the promotion to panelists.

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You're muted.

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I'm muted, maybe.

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We have no questions at the time.

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Thank you.

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Anthony, you have no questions?

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No.

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Thank you.

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okay um planning commission

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thank you chair bergman and good morning david ecto with the city planning commission

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chairman and board members the comprehensive plan recommends no change to the rsa5 residential

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single-family zoning at this location there is no unique physical condition or characteristic

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of this property we're prevented from being used in strict conformity with the zoning code

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the appellant has not shown that they would suffer an economic detriment if the dimensional

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variances for rear yard depth and minimum front setback were not approved the city planning

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commission recommends that the board deny both dimensional variances um mr vaccaro uh we we

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Mr. Vaccaro, we appreciate your extra documents that you provided for us.

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appreciate your extra documents that you provided for

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We're going to hold the vote on this, and we'll vote next Wednesday at 9.30 a.m., and thank you very much.

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Thank you.

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Number five, MI 2024-004-456-5300-18 Winfield.

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Is Tamika McCoy available?

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Tameka McCoy will be joining us as a panelist.

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Thank you.

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Good morning, everyone.

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Good morning, counsel.

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Could you please state your name?

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It's spelled for the stenographer.

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Tameka McCoy appearing on behalf of Ms. Jenkins at 5300 Winfield Avenue.

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

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Yes.

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Counsel, we're going to have to continue this.

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We need to have an amended refusal as scope of the application and the refusal do not match.

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And Ms. McCoy, I can give you further explanation.

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I will follow up with an email.

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But when I didn't realize this case had been rescheduled, we had it noted that it needed an amended refusal previously.

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and um uh when i i spoke with lni the original application only had um only had the parking

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and the subdivision on it um but there should have been a landscaping plan that was submitted

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and reviewed because there was parking um there was landscape landscaping plan submitted to the

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zba but it needs to be reviewed by the planning commission and then lni um and it also appears

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that there's some things on the refusal

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that don't match what you're doing

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in terms of where,

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that there are actually three parking spaces

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that are being relocated and not two,

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also the location of the heritage trees.

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So I will send you an email with all this information

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and ask that you request an amended refusal

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and it will be reviewed by planning

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and then L&I.

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And then once that's issued,

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we will reschedule this resumption hearing.

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Okay, thank you.

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Thank you.

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Thank you very much.

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Number six, MI 2024-005-928-2353-59 East Hagrid Street, Alex Sokoloff is the attorney. Also, this is an appeal against L&I, and Leonard Reuter will also be involved from the city.

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good morning chair members of the board chair i i apologize i am as i was being promoted to

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panelists i didn't hear anything that you said after after my name is what i said i said you

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were the attorney and then leonard reuter will be involved because he represents l and i in this

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matter understood mr sokoloff just the record could you please state your name and spell for

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the court stenographer yes oleg sokolov o-l-e-g s-o-k-o-l-o-v do you swear or affirm to tell

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the truth the whole truth and nothing but the truth i do mr reuter uh thank you may it please

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the board leonard f reuter r-e-u-t-e-r senior attorney for the city of philadelphia um if i

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could just make make it clear for the record just as a preliminary matter mr sokolov this appeal i

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think was originally filed pro se, but I think Sean Ward had originally been retained for the

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case. So can you just confirm that he's no longer representing the appellant? That's correct. We

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submitted an entry or substitution of appearance. I could not tell you when, but I know we have to

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continue one of the hearings as a result of some. Okay. I just want the record to be clear. That's

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fine, thank you. Mr. Reuter, do you swear or affirm to tell the truth, the whole truth,

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nothing but the truth? I do. All right, thank you. Mr. Sokoloff, could you start, please? Yes,

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if I may share my screen, and I will try to be brief as this is an administrative appeal.

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All right, is everyone able to see that? We see it. Okay, so I'm going to take the board through

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kind of what happened on this project, and I will also go through a few of the

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code sections that I believe are relevant and why this administrative amendment should have been

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issued by L&I. However, we are here seeking the board's approval for this amendment after L&I

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has refused it. So in 2018, a zoning permit was issued, and as the board can see here,

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for an erection of an addition to the second and third floor with a deck, a roof deck,

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a third story portion access by roof deck, and certain uses to be existing.

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and, you know, certain uses to be existent at the property. This was issued and the permit was

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applied for when the property was on CMX2. A little later in 2019, a permit amendment was

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requested and issued to basically remove the pilot house and roof decks and continue with

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the erection of the remaining second and third floor additions. Once work got on underway and

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let me go to the plans here so I can illustrate a little better what happened.

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okay so originally um none of the the walls were slated to be demolished none of the first floor

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walls. During the construction, the front wall was demolished, requiring then two things to

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occur in order to be able to continue with this construction. Firstly, a permit for full demolition

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was required retroactively. And then as well, the zoning permit, which allowed for an addition as

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part of the construction was no longer valid because full demolition would require a full

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new construction permit. The amendment was applied for and refused by L&I for a number

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of reasons that I'd like to go into now, but I can pull that up right here. What I would

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like to to the board to be aware of is firstly there has been as part of other than the amendment

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to remove the pilot house and the decks as part of this administrative

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amendment application there is no change to the use of the building the floor area the amount of

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units or anything in that nature. So a few things. Bill number 17-0803, which changed the zoning of

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this property from CMX 2 to RSA 5, was passed in November of 2017. So while between the time that

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the original permit applications had gone in and the time that the original zoning permits were

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were issued, and they were issued, as the board can see here, under CMX2.

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The LNI has refused this, stating that this no longer qualifies under CMX2 because we are now

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applying for a whole, both a full demo permit and subsequently a new construction permit.

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My argument is this to the board. Nowhere in the code does it say that permits issued prior to an administrative zoning change are subsequently reviewed with the new zoning designations after a bill changes the zoning designation of a property.

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If that were the case and we had not knocked down the wall, we'd eventually be in violation of the RSA 5 zoning classification of the property after the construction was complete, because it was complete after the administrative change, or excuse me, the zoning change had come into effect.

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And that's because the final product here is a six-family dwelling. So it's certainly an issue with L&I's interpretation of the language of Section A301.2.5, which states that a zoning or use registration permit shall not be required for the following activities.

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one and two aren't prevalent for this case, but number three states, alteration to an existing

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structure which does not change the area height, floor area, or bulk of the structure, and the

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existing use is legal and unchanged. So once again, as part of this administrative amendment,

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we are seeking absolutely no change, and the only reason we even had to apply for this amendment

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is the technicality of having this front wall knockdown, which would then, according to L&I's

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guidelines, necessitate the issuance of a new construction permit versus an alteration permit.

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At the time that the demo was done on the outside facing wall and when we originally applied and

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were approved the variance, the use of the property was legal and it was being constructed

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and intended to be used in conformity with the originally amended approved zoning.

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in conformity with the originally amended approved zoning permit that allowed for

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the amendment that removed the pilot house. Section 14.303.16, as far as administrative

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reviews of amendments, states that the recipient of a variance or special exemption issued by ZBA

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may request in writing to L&I a minor administrative adjustment to the variance or special exception,

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provided the variance or special exception is not expired, which in this case it certainly has not.

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Our work began within three years of the amended permit issuance. And just for the Board's clarity,

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the project is nearly complete here. This is almost retroactively seeking to ensure that we

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have all of the appropriate permits in place. So there's nothing in the code that says a variance

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cannot be granted because the zoning designation has changed pursuant to an amendment. I believe

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personally this is L&I overreaching and interpreting the code based on something that is not stated

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therein and just denying a appropriately filed and meritorious administrative amendment.

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And those code sections call for certain notice requirements to community organizations, as well as other parties that entered their appearance on the matter in the original zoning variance, which was absolutely done right here, if you will see via email, with a number of attachments being sent to the RCO, the councilman's office, the board itself.

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So we complied with those requirements as well. The council person was alerted and we certified to L&I as part of our original request for the amendment that all of that had been done.

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So LNI is able to approve a permit in these circumstances under the language of only if it does not substantially alter the character of the structure originally proposed, only if it does not conflict with a zoning board proviso, and only if it reduces the intensity of the previous approval.

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The intensity of the previous approval was already reduced as a result of the first amendment to remove the pilot house and roof decks. And here, an administrative adjustment reduces the intensity of an approval if it makes comparable changes that reduce the intensity of the property.

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So that was done in the First Amendment. There's absolutely no change being requested in this subsequent amendment request. And once again, I strongly believe and I think based on proper interpretation of the code, it was improperly refused by L&I and should be granted by this board.

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As again, it only occurred as a result of construction circumstances.

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It's a technicality.

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The building is not changing at all from the original approved and then amended permit.

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And I would like to also mention to the board that if the board for some reason is not inclined to grant this, the hardship upon the applicant is immense.

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The applicant would have to go back through the entirety of the zoning variance process and would have to do so under the RSA 5 designation to approve a building that was previously approved by this board and furthermore, a building that is nearly complete in its construction.

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So granting the adjustment lessens the intensity because if we are forced to apply for a new permit, one, it will be delayed construction of a nearly terminated building, which could cause all kinds of impacts to the building itself, leaving it exposed to elements and not completely finished.

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It would be an eyesore to the community. The construction equipment at the property will just sit there taking up space.

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The enclosed portion of the sidewalk that was used for construction will remain, and the site will just be a nuisance to the neighborhood and potentially a risk and an attractive nuisance to children in the neighborhood.

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So that is all I have for the board. I thank you for your time and consideration, and I'm happy to answer any questions.

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So before Mr. Sockle, Mr. Reuter takes, gives us his opinion, we note that you didn't send any photos in.

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We did not submit any photos of the property.

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In our understanding, this is a administrative issue.

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And it, in my opinion, it should be, you know, decided based on just the permit history and the applicable code sections.

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Thank you very much. Mr. Reuter. Sure. First, can you hear me? Very well. Okay, great. Thanks.

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Thank you very much. Mr. Reuter.

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Sure.

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First, can you hear me?

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Very well.

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The position of the city in this matter is pretty simple. The city's position is that this is not

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a request for an administrative adjustment in the first place. It's not a question of it not

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meeting the parameters in terms of like reducing the intensity or minor change to the footprint

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gross area or anything along those lines.

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In that sense, we don't disagree with Mr. Sokolov's position.

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The problem here is that administrative review is available and the process exists for, and

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I'll quote the code 14303 sub 16 sub A, the recipient of a variance or special exception

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issued by the zoning board may request in writing to L&I a minor administrative adjustment

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to the variance or special exception,

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provided the variance or special exception has not expired, et cetera, et cetera.

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So the problem is that they're not seeking an adjustment of the variance

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that had previously been granted by the zoning board or special exception.

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I think it was variance in this case.

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They're seeking a new permit application.

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It was originally an application for an alteration,

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which had been granted and approved by the board

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and then granted, and then there was an administrative adjustment to that, and that

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administrative adjustment was reducing the scope of the project. What's sought here is basically

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demolition and new construction. So on its face, it's not a request for administrative adjustment

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in the first place. It's essentially a new permit application, which was the position of L&I,

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and that was the position that was put on their response to the administrative adjustment request.

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Now, that being said, you know, we understand or are sympathetic to the problem that you have here, which is you have a project that is essentially near completion.

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It does have variances.

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The wall's already gone.

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It's interesting.

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If this had been an attached structure, it wouldn't have constituted a demolition.

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But this is actually not an attached structure.

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it actually does not have party walls uh at least not on the sides i can't speak to the rear of the

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property but the sides there's a tiny alley on one side and then there's a larger space on the other

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side so the front wall is is a load-bearing wall and it was because of the removal of front wall

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and the plans which i think were already part of the plans to remove the roof uh it's a one-story

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garage so the roof is basically it's not you know the roof itself is is a supporting so it is

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considered by l and i and again i think the applicant uh or in this case the uh uh the owner

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and or the the expediter who was handling this matter understood that it would be it would

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constitute a demolition i want to know for the record it's kind of interesting the city's never

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issued a violation notice that i'm aware of for exceeding the scope of the original permit

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um and again i think the applicant or or expediter did the right thing they were correct this did

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change to a demolition and new construction and uh i think there you know there had been some calls

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to l and i but my understanding is that the l and i didn't actually issue a violation notice for

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demolition and new construction without a permit um so in that instance uh again while it's the

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position and we would ask the board uh not adopt the argument that this was um an administrative

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adjustment request uh you know where the city is fine to defer to the discretion of the board

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i would say however we want to caution against um adopting any any position with respect to

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hardship or anything like that none of those are really valid considerations for an administrative

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adjustment or an appeal against l and i um they could have especially given the time that's passed

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since this appeal was first sought, they could have sought a new application and variance in

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the alternative. But, you know, we're now quite a few months down the road from when from when

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this started. At that at that point, you know, there's it's neither here nor there. But so we

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would discount those arguments based on equitable principles or anything like that. But again,

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the city's position is that this is actually a new application altogether for demolition and

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