civus
Hearing video

ZBA Hearing - March 30, 2022

Philadelphia Zoning Board of Adjustment (ZBA)Mar 30, 20225h 59m

Thank you.

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Tanya, how do we look?

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We're looking pretty good, sir.

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We can begin whenever you wish.

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OK, thank you. Good morning.

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My name is Bill Bergman, and I will be chairing this morning's ZBA hearings.

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I'm going to go just a little bit out of the line.

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With us today is Sharon Saleta, our attorney, who this will be her her last day working as the attorney for the Zoning Board of Adjustment.

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just

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someone who just

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held this whole thing together for years.

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What we would like is for Sharon

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to say a couple words as we start this day.

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Sharon, I don't have to swear you in either.

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And Ms. Saleta,

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you just need to unmute, please.

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I'm at my most eloquent, though,

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when muted, but

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um but thank you it's just been my pleasure you've been wonderful to work with the regular

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attorneys who appear before us um the community members i'm very grateful to have had this work

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for so long so thank you also what this is our vice chair

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go ahead carol tanari our vice chair

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unmute

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ishmael shaheed our board secretary here mr chair and thomas hallman our board member

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present mr chairman and certainly we're going to miss you sharing

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before we begin here's our virtual format be advised these proceedings are being recorded

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by participating you acknowledge your green to be recorded the video will be available

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by contacting our executive director tanya sunkett at school.gov for the benefit of our

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court sonographer we ask attorneys and witnesses to identify themselves before testifying three

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If you are participating by phone, if you wish to testify, press star 9 to raise your hand and star 6 to unmute.

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To enter an appearance statement, call 267-270-5548.

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Leave your email address and the address of the property and questions.

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And lastly, the question and answer box on the screen is not for comments or testimony.

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Any questions, refer them to our Executive Director, Tanya Sump.

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So let's look at our continuances for the day.

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Number nine.

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MI 2021-004828, 2514 North 17th Street.

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Number 14, MI 2021-004829-5604-06 Utah Street, Attorney Moving Party.

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And number 15, MI 2021-002621-6327 Lancaster Avenue, Attorney Moving Parties.

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Anybody have any questions about any of those cases?

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No, Mr. Chair.

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Anybody in the virtual audience?

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I see no hands, Chair.

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Are there any other continuances?

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Chair, we have Leo Mulvihill.

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Mr. Mulvihill.

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Mr. Mulvihill, state your name is spelled for the court reporter.

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Certainly.

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Name is Leo, L-E-O, last name Mulvihill, M as in Michael, U-L-V as in Victor, I-H-L.

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Do you swear for him to tell the truth, the whole truth, and nothing but the truth?

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You swear for him to tell the truth, the whole truth, and nothing but the truth.

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I do.

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I do.

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What case are you interested in, sir?

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I'm here for the three Watkins Street cases.

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Yes.

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And that's going to be my request for a continuance in those matters.

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Okay.

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All three cases are continued.

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Must be tried the next time, Leo.

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Great.

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Thank you, Chair.

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Okay.

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Any other questions for continuances?

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Yes.

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We have Allison.

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last name beginning with an n

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i'm sorry i think the address i was concerned about hasn't come up yet

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pardon me allison state your name and spell for the court reporter

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oh my name's allison ing

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a-l-l-i-s-o-n-n-g but i think i might have raised my hand too early i'm not sure that my

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property that I was interested in has come up yet. It was on Wharton Street.

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Do you want to continue that case?

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I do want to talk about that case. Yes. But I'm just a resident. So like I said,

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I think I'm too early. Wait till the case. Allison, wait till the case comes up.

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Okay. Thank you. Sorry. Any other questions?

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I see no hands, Chair. All right. We're going to go to our add-on cases.

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7248 Rising Sun Avenue. Harry Cook,

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Jared Klein, and possibly Leonard Reuter.

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Progress.

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What's going on? Good morning, Mr. Chair,

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Madam Chair, members of the Board. Harry Cook on behalf of

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the Borough Home Civic Association in Frank Ewan, regarding zoning permit number ZP 2021.

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We have it.

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You got it?

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State your name and spell for the court reporter, please.

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Sure.

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Harry Cook, H-A-R-R-Y, C-O-O-K, Anastasio Law.

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Right.

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Do you swear for him to tell the truth, the whole truth, and nothing but the truth?

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I do, sir.

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Okay.

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Chair, if I can mention that it's Mr. Klein.

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Jared Klein is here rather than Adam Laver.

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He represents the current elder.

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Mr. Klein, state your name, please, and I'll swear you in.

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Certainly.

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It's Jared Klein, K-L-E-I-N, from Black Rome, 130 North 18th Street in Philadelphia.

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Do you swear for him to tell the truth, the whole truth, and nothing but the truth?

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Yes, I do.

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Is Mr. Reuter there?

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No, Chair.

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he's not in a virtual audience okay um mr cook why don't we start with you

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sure uh thank you chair um has uh first uh in terms of brevity has the chair had an

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opportunity and the board had an opportunity to review the uh petition in advance

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that we filed yesterday sharon yes yes i have discussed it with the board i emailed it to them

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everyone has the materials, Mr. Cook. Okay, so I'm just going to start by incorporating that

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factual background section as my testimony in case I don't hit all the points, but I'll just

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go through just a thumbnail of what the case is. My clients are seeking relief in two ways,

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either as a non-protug to have their original appeal be refiled, or to have their original

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appeal that was filed by email um scheduled for hearing with this board um on january 14 2022

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about um four days prior to the expiration of the appeals period my law partner vernan anastasio

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filed an appeal against lni regarding a zoning permit issued for 7248 rising sun avenue

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In advance of that, it was a holiday weekend. We had several conversations with board counsel, as well as Hillary Emerson, Esquire, Councilwoman for Cheryl Parker's office.

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And the takeaway that we all had from those conversations was that this strange sort of duck appeal, this by-right appeal, appeal of a by-right permit, was not contemplated to an extent in the code or the rules and regulations.

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and that we could, one, file it by email so long as payment was sent by mail.

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These appeals are not processed on Eclipse, and that was the takeaway.

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That was the takeaway, and apparently that was a misunderstanding as to the instructions in the incident matter.

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And apparently that was a misunderstanding.

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Further, I do want to just state that the rules and regulations of this board do not prohibit email submission, nor does the Philadelphia Code.

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There are instructions on the website that speak to filing paper applications, and this was not a paper application, it was a digital application in our understanding of it.

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So being that there was, and again, those instructions on the website contemplate appeals of referrals and refusals, not necessarily the protocols for a by-right appeal against L&I.

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So there were a lot of aspects that were unusual procedurally. Three attorneys took from the conversations we had from board counsel that the protocol for this was filed by email to all the 30-day appeal period.

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and um excuse me mr cook i'm going to interrupt you here when i spoke with mr anastasio i

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specifically referenced the postage date there was nothing i said that would suggest that it

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right and no and i i and i and i agree in in in our in our pleading we are not challenging

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the recollection of board counselor calling to question veracity we are just uh the the takeaway

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way I had, the takeaway that Ms. Emerson had just was a bit of confusion over it. And there's case

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law, in particular Carr v. Horsham, that speak to when there is some reasonable confusion and

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there are conflicting procedure, that that can satisfy the second prong of a non-protong petition

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where um the first uh essentially the breakdown in the administrative process again eclipse does

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not take these appeals or a non-negligent conduct of the parties um that caused the delay and again

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here in this instance it's almost a distinction without a difference uh mr chairman uh the board

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did receive that appeal. They acknowledged receipt of the appeal prior to the deadline

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in an email. I left a voicemail in response to that email asking if there were any additional

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things that needed to happen and a subsequent email did not reference that. It was just that

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the prior email was sent in error. It was supposed to be meant for staff. So, you know, we're not

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asserting wrongful or negligent conduct by the board in any way. We're just focusing on the fact

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that this was a holiday weekend. Multiple attorneys had misunderstood direction, and it was a reasonable

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of misunderstanding and that our client should not be prejudiced as a result. There is case law

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again relating to that. So that is our nonpartum argument. As it relates to the original appeal

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being timely filed, under Pennsylvania law, the administrative agency has two ways formulating

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policy that will have the force of law. One is through the rulemaking process. The other is

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through promulgating substantive rules e.g. the rules and regulations I referenced before

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as well as through adjudications that create binding precedents

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anything else instructions on the website are merely viewed as statements of policy

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they're neither rule making nor adjudications and they are not something that create

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uh sort of a protocol that must be followed and when applying a policy statement rather than

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a substantive rule or binding precedent you have to apply it to the case the instant case in such

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a way that you have to defend it as being either one of those two and in this instance um again

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And the rules and regulations do not prohibit email submission.

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The board administration did receive and were in receipt of the appeal timely.

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of the appeal timely. The Philadelphia code does not prohibit email submission. And this board,

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The Philadelphia Code.

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in addition, does accept many other pleadings by email. So there is there again, another

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example of a confusing procedure that speaks to administrative breakdown.

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um so can i interrupt again for one moment though as far as it having been timely filed

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um you were also required to file a check for the amount of the um submit i had a confusing

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email from mr uh anastasio saying he had dropped off the check miss sunkett perhaps you could

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speak to this i don't believe we have any record of ever having received that sure so um yes

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Yeah, this is Tanya Sunken. I'm not sure if the chair needs to swear me in or not sharing. But any time we receive applications, a complete application must have a check as well as the required documents submitted to our office.

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anything related to an appeal against L&I is entered directly by the staff in a different

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module so that's why it's not set up in Eclipse yet but a complete application must be submitted

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to the office on paper if we do not receive it we do not consider it timely file we do over

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give them a little more time to submit the check as necessary but that's pretty much

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the procedure we never in my eight years here have taken a digital application thank you sharon

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thank you thank you thank you sharon and tanya um i will speak to that on on january 18th um

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mr anastasio mailed a check referencing the um referencing the appeal on february 18th he

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followed up with the board asked because it had not been deposited and asked uh if he could if

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he should drop off a replacement check he never received a response to that as to the procedures

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of the board again those are not outlined in the rules of rules and regulations nor in the

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philadelphia code and that is merely um you know again and admittedly these are are strange duck

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appeals because they have to be processed manually and not through the Eclipse system,

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which puts an appellant at a structural and procedural disadvantage compared to others,

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that there are concerns at that level for someone who is trying to abide by rules and

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regulations on a due process level and an equal protection level to be able to submit

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one of these strange um appeals so um for that reason i think um you know if if that is the

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procedure if if if an appeal against lni is such and all of the nomenclature on the website speaks

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to appeals about referrals and refusals there should be either a special section for that or

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the rules and regulations of this board should be updated through the rulemaking process and

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promulgated so that folks know specifically that if there is an appeal against LNI, it must be

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processed manually. It must be provided in paper and a check must be provided with it concurrently

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or assume the reactor. Again, here, Mr. Anastasia is not available today for health reasons,

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but um he averes in the motion that he did send a check there is email on the 18th of february

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saying it was not deposited and he was willing to bring a check over to the office as replacement

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and miss sunk had just testified that there is leeway with the acceptance of checks

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Again, on the 18th, I did advise on the voicemail, if there was anything additional, that was at about 4 to 5 p.m., if at that time I had been advised, Mr. Cook, we cannot accept your, Vernon Anastasio's filed appeal by email, can you come and drop it off in person, we would have done so and still been timely.

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and that's essentially the sum and substance i do have to say mr reuter is not here

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but he is on record as being unopposed to the the non-protunk portion of the petition not the

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um timeliness uh argument i i just made okay mr klein this this is sharon i'll confirm

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argument i i just made okay mr klein this this is sharon i'll confirm that mr reuter is um has

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no opposition to the pro-tunc argument mr klein thank you mr chair i will be brief um so on behalf

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of the owner of the property we do object uh to the board granting relief here um i think that uh

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You know, appeal rules are always treated differently in the law.

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They're hard deadlines as opposed to more fungible deadlines.

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And with all due respect to Mr. Cook, who I know is a diligent and thorough lawyer, I think counsel's confusion about how to process an appeal and waiting till the last moment on a holiday weekend to sort it out is not the sort of non-negligent happenstance that the nut pro-tunc rules had in mind.

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And so I think that that counsel's inability to determine how best to proceed is not what the case law has in mind when they talk about this.

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And there are dozens and dozens of appeals against LNI that are filed each year successfully.

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So there is a process that people know how to engage in.

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The other the other comment that I wanted to make is, you know, as you look at no pro tonk law, there is an element of this also that looks at the likelihood of success on the merits.

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