civus
Hearing video

ZBA Hearing - July 12, 2023

Philadelphia Zoning Board of Adjustment (ZBA)Jul 12, 20235h 52m

Questions or comments from the virtual audience?

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I see no hands, Chair.

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Planning Commission.

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Thank you, Chair Bergman, and good afternoon.

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David Vecto with the City Planning Commission.

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the comprehensive plan recommends no change to the commercial mixed use zoning at this location

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the appellant has shown that the proposed smoking lounge and the proposed sit-down restaurant will

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have no detrimental impacts to the neighborhood beyond what might be expected however the appellant

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has not shown that a unique physical condition of circumstance exists it would require the property

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to be used for assembly and entertainment so the city planning commission recommends the board grant

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the special exception for smoking lounge and the special exception for sit-down restaurant

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and deny the use variants for assembly and entertainment.

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Mr. Crick, I'm going to take this back to the executive session next week.

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We'll take a look at that. We'll figure it out and we'll vote next week at 2 p.m. next Wednesday.

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Is that okay, Hillary?

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Yes, that's fine, Mr. Chair.

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Next Wednesday, the 19th at 2 p.m.

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Okay.

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Thank you, Mr. Crick.

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Thank you.

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I don't know if you want to ask if there's any opposition in the audience just to be

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I asked for anyone at all in the audience who had a comment.

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Okay, I'm sorry.

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Yeah, I did.

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I asked the virtual audience.

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In fact, I think I did it twice.

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But thank you, sir.

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No worries.

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Thank you.

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Okay. Um, let's see here.

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That's in.

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Continuance.

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Let me go back here.

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Justin Crick.

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Done. Done.

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Done.

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Number 11, MI 2022, 003-437-6900 Chester Avenue, parcel B.

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Hal Schremer is the attorney, and Zen Jin represents the 40th Ward Republican group.

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There's a letter of support from the Southwest Community Development Corporation.

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letter of support from the ward leader 40 b and there's a letter of opposition from the 40th ward

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rca mr chair sorry that's okay um it's mr chair i just wanted to note that we um we did receive

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the uh posting the posting photos so this case is ready to go thank you

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Mr. Shermer

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Mr. Shermer

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Al Shermer

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Al Shermer, please unmute yourself

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There we go

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Hi. Hi. Mr. Shermer, could you state your name, please, and spell for the court reporter?

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Yes. First name Hal, H-A-L. Last name Shermer, S-C-H-I-R-M-E-R.

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Do you swear a firm to tell the truth, the whole truth, and nothing but the truth?

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So does.

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Could you identify your client, the relationship to this property?

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My client is Tariq Bryant, who has owned the property for the last four-something years.

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The property was subject to a prior variance for a subdivision because this property was an end row house.

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The entire block was developed with 16-foot row house properties.

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The end row house was 32 feet.

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And about two years ago, the zoning board approved a subdivision to split the 32-foot lot into two 16-foot lots.

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This is a request for the 16-foot lot at the corner to be made into a multi-unit first-floor restaurant and upper-floor rental multifamily.

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Mr. Jin, could you identify yourself, please?

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Yes, good afternoon. My name is Z-H-E-N-J-I-N.

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Yes, good afternoon. My name is Z-H-E-N-J-I-N, 1617 John F. Kennedy Boulevard, Suite 1838, Philadelphia PA-19103.

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I'm here on behalf of the Ward 40 Republican RCO.

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

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I do.

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Mr. Shermer, our vice chair has just a few questions.

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Of course.

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Good afternoon, counsel. Do you agree to waive the reading of the refusal or stipulate to its accuracy?

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Unfortunately, no, because the refusal has been altered based on some ex parte contacts between some of the neighbors and the Department of Licenses and Inspections.

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And that is directly contrary to the prior solicitor's opinion, 90-18, which says that once an appeal has been filed, the board of L&I review, or sorry, the board, the zoning administrator lacks authority to make changes to these decisions.

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I will put that into part of the rest of the decision, but the actual document that I'm looking at is opinion number 98-38, which is November 29 of 1990,

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which was sent to Angelo Pujoliz, Department of Illinois Inspections, from Pat Hamill, Assistant City Solicitor.

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And what we have is you may have requested an opinion on the Law Department on the following question.

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A brief answer. Once an appeal has been taken by the applicant and a hearing date has been sent, thereby setting in motion the appeal process, neither the examiner nor the zoning in it should take unilateral action to correct the perceived mistake.

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Part three, which is proposed policy.

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Once a zoning examiner's decision to deny a permit has been appealed to the zoning to the board and the board has set a hearing date for the matter and has so notified the applicant or appellant, the zoning examiner and the Department of License Inspections zoning unit has lost jurisdiction, asterisk, to change that decision directly or unilaterally

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and may not use the power that he she it had been granted in the first instance

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by chapter 10 of the home rule charter so we have an issue that we have some ex parte

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contacts between disgruntled political neighbors uh and this position i would object to that

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characterization uh the objection let us finish getting him on the record and i need to finish

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where you went sir so i guess your answer was no you are not going to waive reading of the refusal

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uh correct there is an objection there is an object there is an objection to the refusal

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understood understood excuse me mr chair sorry this is okay yeah no just give me one second i've

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asked um leonard warder to come on because there is an objection to the refusal because then that's

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an l and i issue um so i've asked him to come on so if we want to have further discussion on this

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matter i can't wait till mr reuter gets on i think we bring mr reuter on to see where we stand with

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this yep uh and apologies because we didn't find out about this until four or five to four business

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days before this happened so this was a bit of a blind side to my part so mr jim mr jim will give

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give you plenty of time to respond.

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Mr. Rilder is not on as of yet. As soon as he does, I'll promote him to panelists.

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I'm sorry. Hi, this is Tanya. Mr. Shaheed, did we completely swear him in?

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No, can I finish? Yes. So, sir, have you emailed in all the required documents and exhibits that

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are needed to proceed with this case five days in advance of this hearing?

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Yes, I have. And we have submitted a couple of additional and I have additional submissions because we did not have our RCO meeting until Monday.

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additional submissions because we did not have our RCO meeting until Monday.

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So beyond the five days. So we did submit all our information,

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information and other, and we have submitted other information to supplement after the RCO hearing.

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and we did have our hearing back in november they had the documents were submitted back i think in

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november and then in march and then march or april and then we have the this is our third continuance

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so you've got our documents in trip to you okay thank you please proceed and share your screen

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and i guess we can get prepared to get started well i think we're waiting to say mr mr reuter

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is here now good afternoon mr reuter

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good afternoon uh may it please the board leonard reuter r-e-u-t-e-r for the city of philadelphia

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i apologize i was kind of called in here i don't have my tie on or anything right do you swear or

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affirm to tell the truth, the whole truth, and nothing but the truth. I do. Mr. Shermer has just

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made a couple statements. Mr. Shermer, maybe not quite as long, but could you give Mr. Reuter an

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idea of where we are with this? The refusal was changed by an ex parte connection from somebody

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to the Department of L&I that is specifically prohibited by Opinion 90-38, November 29,

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1990, which was sent to Anthony Pugilese, which says, once there is an appeal to the

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board, to the zoning board, L&I loses authority to make amendments.

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uh it's a legal argument and we'll prepare to go through it and we'll argue the factual

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the factual elements but uh it's part of the solicitor opinion and as i recall the city

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the city charter actually requires that the zoning board follow the directives of a of a

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formal city solicitor's opinion. It might be helpful to know, what do you believe has been

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changed? We went from two use refusals, which were a use refusal for the eating and drinking

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establishment, which is basically a juice bar, and the refusal for multi-family use.

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And then instead, we ended up with additional refusals, which were categorized as use refusals for parking and parallel parking, which were based off of apparently one of the neighbor's concerns.

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So we went from four refusals, we went from two refusals to four refusals, which were issued seven days ago, which I found out about three, four businesses Thursday last week.

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Excuse me, Mr. Shermer, this is Hillary. Do you mind putting the refusals up on the screen so that everyone can see what you're referring to with the additional refusals?

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refusals. Yep, there we go. Hold on a second. So, if I could interject just for a moment,

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who is representing who in this case? I'm representing the owner, and Mr. Zinn is

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representing

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RCO.

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Ward 40, Republican RCO.

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Okay.

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Thank you.

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Are you representing 40A or 40B?

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Because there are two halves of the 40th Ward.

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I just wanted to really know who represented the applicant.

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So,

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so I guess my,

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my,

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Well, my question is, what is the question for L&I? I mean, if the argument is that, from what I heard, your argument, Mr. Shermer, is that L&I can't amend it.

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Well, and this will be specific here.

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Ellen, I can't amend this refusal because once it's before the zoning board, the department loses jurisdiction and you need the permission of the.

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uh the department loses jurisdiction and you need the permission of the zoning board to authorize

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uh an amend an amended refusal or something like that is that basically what you're saying

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uh well yes that's the actual text right so can't the rco now that they're here in front of the

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zoning board simply make the request just ask the zoning board to authorize it we'll get a

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continuance have ellen i take another look at it and then it'll be all hunky-dory right well we're

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out of we are we are out of continuances and our last continuance was because we were supposed to

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talk to the neighbors but i'm a little annoyed because this was not a continuance to talk to

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the neighbors this was a continuance for somebody to have ex parte contact with lni in order to add

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in a refusal and amend the refusal contrary to law that have been black letter law for the past

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30 years i'm not excuse me this is this is hillary i just want to interject briefly um and note that

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there is a distinction, and Mr. Roy, you need to talk to L&I about the specific case, but there's

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a distinction between a corrected refusal and an amended refusal. If an applicant wishes to amend

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a refusal to make changes, they do need permission from the zoning board to go back to L&I to change

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it. But if there is a correction to be made, L&I is able to and does regularly issue those. So again,

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Mr. Reuter would need to clarify what LNI's position is on this, but I just wanted to draw

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a distinction that sometimes mistakes are made and refusals do need to be reissued

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with corrections. Right, and again, I will, so we are talking, so I understand, we are talking only

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about 6900 Chester Ave Parcel B, is that right? Do we all agree on that? Okay. Is my iPad coming up

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on the shared screen sure okay i mean i am because that's the zoning that's a that's a

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formal zoning opinion which says you can't change the rules of the game after we start playoff

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then that's what happened here we're prepared to go through but mr shirmer just out of curiosity

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mr shirmer someone came to you and told you this uh oh hell no we found out at the last minute

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because somebody on the other side had gotten to somebody at l and i but somebody had to tell you

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that right what i'm saying somebody had to tell you so i mean again on behalf of l and i do you

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never heard i have not i've never heard from l and i i'm the attorney on the case i only heard

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about this from somebody on the other side bloating about hey we got this changed so i

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I may be able to shed some light on this situation.

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Yes, thank you.

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I was just going to suggest that Mr. Jin be given a chance to speak.

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Yeah.

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So Ward 40 RCO received, had an initial presentation from the applicant.

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They received plans as part of the application on which they're on the site plan.

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It is clearly shown there's a off-street parking space as part of the application.

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in looking at the refusal the ward believes that it should make sense that a off-street parking

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not accessed by a rear street under the code in an RSA 5 would be its own refusal and that's why

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we reached out to the examiner to ask if that was in fact a missed item on the refusal and that

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came back in the affirmative so the examiner took it upon himself to simply issue a new refusal

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and that's what was ultimately provided to Mr. Shermer at the last meeting is a copy of the

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revised refusal. So it was actually the initial dialogue with the examiner is from my client.

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i i uh mr shirmer's uncomfortable with going on i mean i think then we just continue this

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i mean do we want leonard to look at this i mean i'm happy to look at it uh

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we again my client wants to go through could i let leonard speak first leonard go ahead uh yeah

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Sure. I mean, obviously, this is the first time I'm hearing about this, and so from my position, I think that, yeah, ideally, I would like to have more time to figure out.

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From my position, I think that, yeah, ideally, I would like to have more time to figure out what exactly the issue is and review, for instance, the solicitor's opinion that Mr. Shermer is referring to.

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That being said, it seems to me if we make a determination that there was an error in a refusal, then I don't see why we would not be able to correct that error.

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However, by the same token, we have previously talked to the board, this is before your tenure, Mr. Chair, that if a refusal were missed, but the refusal, in other words, if there were an error in issuing a refusal, like say they forgot to add another refusal, or whatever, say in this case.

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Well, parking parking is a kind of a special case, but because it requires approval.

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I mean, in this case, I believe it would require approval of the streets department and an additional plan review.

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So that that's that would be part of the that's part of the problem here.

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So, I mean, again, I think if I understand the application and I'm only now just looking at the application.

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uh you know it's possible they could go back and they could resolve those additional refusals and

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then it would become a non-issue uh and i don't see that there would be any problem with this

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board allowing them to you know amend the application by adding whatever additional

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material would be needed to correct those problems but i think what happens is if we're

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not allowed to amend a refusal and the board wasn't aware that there were refusals missed

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now we have a really big problem what when it gets to building permit time and so it seems to

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me it's in everybody's interest that if there's an error in the refusal that the error can be

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corrected that being said i i'm not familiar with the opinion that mr uh schirmer is referring to

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uh what was the date of that how uh that was november 29 1990 from pugilies to pat hamill

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i think i'm sharing it now if i'm doing things right uh hold on it's it's it well go up to go

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up to the law library walk yeah well what second second d dish okay i got it

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no it's actually there it's actually there in print so so hillary well again i don't want to

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sit here and analyze this yeah i think we need to continue on the fly here but yeah um but yeah i

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don't think it's fair to anybody we need to continue this well my client doesn't want to

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continue because this prior continuance was simply a way so that well well mr shirmer you

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raised this issue you've got to give us a chance you've got to give the parties a chance to look

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