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Hearing video

ZBA Hearing - March 30, 2022

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

614 South 6th. It provides that the use of the property at that time was a three-family dwelling.

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It was issued to Max Shermer, who was their realtor. It says that all three units

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It was issued to Max Schirmer, who was their realtor.

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It says that all three units have their own kitchens right there.

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It says that the property is located at that time in a C2 commercial district, that the use of the property was legal, most critically.

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And right here, that there were no violations of any kind on the property at that moment.

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so um at this point having sort of received this strange city cert uh in 2021 i was retained and

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um bill went to meet with ellen i at msb brought um uh i believe brought that cert and asked what

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he should do. Would they consider issuing a different cert in light of his older certificate?

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The answer was no, and that we should apply for a new zoning permit. So I assisted with that.

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We submitted this certificate. We submitted an affidavit by Bill as the general partner of the

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owner partnership that the building had been continuously occupied. And ultimately,

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our zoning permit application was refused, which is what brought us here today. So what I did at

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that point while I was waiting for this hearing was I wanted to look into what the legal import

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of this document was when it was issued. So I went down the Jenkins Law Library, pulled the code as

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it existed in 1984, because they have historical editions of the Philadelphia Code. This is what

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the code said about these documents at the time. It said that upon application, the Department of

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Licenses and Inspections shall certify to the district classification of any property and the

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current status of said property as shown by the maps and records of the department.

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So what that means is that at that time, this statement had legal meaning. And because of that,

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I believe that a court would find that it still does have legal meaning. And we believe that the

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certificate is accurate. So there's an interesting fellow who maintains as a hobby this map of the

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ages of buildings in Philadelphia. And what this is showing you is that all the properties in orange

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are 19th century buildings occurring in this gentleman's research. Our property is right

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here so it's not shaded i can show you the block in a moment but he has the you know the buildings

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next to us as all dating from the 19th century and just looking at ours here's ours here's the

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rest of the block we have no particular reason to think that ours isn't as well um so uh in in any

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event um we um we believe what the certification statement says which is that despite the fact

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that in 1984, dwelling use was not permitted by Wright in the C2 District. The use was legal,

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and we believe that it says that because it was, even at that time, a legal non-conforming use,

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that prior to even then, the building had come into service as a three-unit building at a time

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when that was permitted in this location.

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There is a 1987 Commonwealth Court case that I want to quickly address.

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That case is called Ernst Berger, and what that essentially says,

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in a very similar situation, is that it doesn't really matter

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whether anybody can necessarily verify the accuracy of the certification statement

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if the city issued it, never disavowed it, and then allowed the owner of the building to operate

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according to it undisturbed for decades after. That's what happened here. So in Ernst Berger,

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the buyer of a property received a zoning certification, much like Bill and Martin did.

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That certification said that that building in that case was a three-unit legal non-conforming

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building. So, so far, exactly the same as our case. Now, in that case, the city of Pittsburgh

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turned around and said quickly, unlike here where it happened 40 years later almost, that that

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certification statement was issued by mistake. And the court in that case held that, unfortunately

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for Pittsburgh, that was too bad. The fact that they claimed issuance by mistake, that it was a

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certification rather than a permit, none of that mattered, that the city had created a right

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for the buyers to operate the building as a three-unit dwelling, and that concept is called

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vested right. So we believe that in addition to having established this as a legal non-conforming

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use, that the document creates a vested right for us to continue that use. So

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that the document creates a vested right for us to continue that use so the reasons and i promise

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I don't know.

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you i'm almost finished the reasons that the philadelphia code now provides that l and i can

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say that an existing non-conforming use can be forced to stop are abandonment or discontinuance

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and these are terms that are defined in the code at section 14 3055 it's l and i's burden

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to notify an applicant that it has found discontinuance to have occurred and to give

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the applicant a chance to respond. That didn't occur here. L&I didn't notify us as such. It just

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rejected our zoning program application without explanation. And the reality on the ground is that

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this building, its use was not abandoned or discontinued. And I will in lightning speed

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just flip through some of the leases we have in our exhibit packet to demonstrate that. So

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for all of these reasons, we believe that Bill and Martin enjoy the protection of the legal

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nonconformity doctrine, which is to say that the three-family use as certified in that 1984

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for a statement you're looking at has to be allowed to continue because it has never stopped

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and if our if my clients wish to order a new certification statement or a new permit

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it has to be issued um so i as i mentioned um do have an extensive exhibit packet

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it has photographs of all three units um here is one of them um when between tenants it does

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have a tenant now. Here is the second one. Here is the third. And then I will just fly down to

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our lease. We tried to do a yeoman's job here of assembling the first page of every lease

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that they've ever had on this building. And as a result, we have, I think, 50 some first pages of

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different leases on those three units so we took this evidence and we had bill execute

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a sworn affidavit saying that under penalty of perjury this thing has been in continuous

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operation since 1984 as a three unit building so we would ask that you accept our exhibit binder

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into the record and grant this appeal recognizing the three unit use as a legally non-conforming use

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so that we can avoid the displacement of the three tenants that live there.

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Thank you.

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Mr. Reuter?

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Yes, I mean, we've reviewed the documents that have been provided,

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as well as the affidavit,

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and at least I'm satisfied that they certainly got documentation and evidence

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that does appear to indicate that this has been a non-conforming use

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since at least 1984 as mr saverin points out even in 84 residential use wasn't permitted but they

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did issue the certification which doesn't at least imply that lni at the time uh accepted that it was

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a lawful non-conformity what did happen over the several years um is as as everybody's probably

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aware the hard copy zoning files were have all been scanned into the zoning archives which are

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now attached to the atlas website sometimes those documents went missing on the way to get scanned

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sometimes they got scanned under different addresses or stuck with different records

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so it's very possible that you know the zoning files may still exist but might be in the wrong

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But at this point, the city's not opposing the appeal.

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We just needed to make sure that the evidence that Mr. Saverin has presented was put into the record and becomes part of the record.

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So we are okay with the board granting this appeal.

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And then what would happen is that Ellen and I would issue essentially a zoning permit documenting the existing use as a three family.

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I think what happened initially when the application was first submitted, it was not submitted specifically for the purpose to document the existing use, and it appeared to be just an application for a new use, but that's neither here nor there.

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So we're fine with this, so we're okay with the board granting this appeal.

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Thank you very much.

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I vote, appeal is granted, three-family dwelling is a legal non-conforming use.

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Thomas Holloman, appeal granted with proviso.

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Fishman Shaheed, appeal granted with proviso.

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thank you thank you thank you thank you i also want to say goodbye thank you goodbye to uh sharon

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it's been a pleasure working with you uh for many years you're she's a good friend uh a colleague

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and a mentor and i know i'm going to be in close contact with her over the next couple months

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anyway um but uh but yeah thank you leonard thank you so much one of my favorite people

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Bye-bye. Thank you. Is there anyone in the virtual audience who's still waiting for a

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case from the two o'clock list? I see no hands, Chair. Thank you. So we're going to go to the

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330 list. My name is Bill Bergman, and I will be chairing this meeting. With me is Ishmael Shahid,

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our board secretary here mr chair and thomas holman our board member present mr chairman

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also our executive director tanya sunkett and sharon saletta our board attorney before we begin

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here's our virtual format be advised these proceedings are being recorded by participating

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acknowledge agreement to be recorded a video will be available by contacting our executive director

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tanyasunkett at phil.gov. For the benefit of our court stenographer, we ask attorneys and witnesses

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to identify themselves before testifying. If you are participating by phone, if you wish to testify,

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press star 9 to raise your hand and star 6 to unmute. To enter appearance statement, call 267-270-5548.

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Leave your email address and the address of the property in question.

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

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Any comments have to be directed to Tanya Sunkett, our executive director.

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Does anyone have any continguities on the 330 list?

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Chair, we have Felix Rodriguez.

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Okay.

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Okay. Mr. Rodriguez, state your name and spell for the court reporter, please.

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Mr. Rodriguez?

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He's unmuted, Chair, and he's not responding.

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Could you state your name, please, and spell for the court reporter?

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I'm sorry, are you talking to me?

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Yes.

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I'm sorry.

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My name is Joseph Vaccaro, not Felix Rodriguez.

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Well, your thing is coming up.

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Your phone is coming up as Felix Rodriguez.

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I'm sorry.

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Well, my name is Joseph Vaccaro, number seven on your list, 2436 West Allegheny Avenue.

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And this is a request for a continuance.

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I'm the attorney for the applicant.

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Okay, hold on a minute.

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Sure.

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Number seven?

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Yes.

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24-36 West.

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I don't know.

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Do I?

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I don't.

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I don't.

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Mr.

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I see number three.

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24-36 West Allegheny?

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24-36 West Allegheny.

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Yes, sir.

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That's number three on our list.

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Okay.

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Oh, I have it on number seven.

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I'm sorry.

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So you're the attorney of record, right?

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Right. I'm the attorney of record for 2436 West Allegheny, and this is our request for a continuance. Yes.

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That will be continued, and it's going to be marked must be tried.

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Much appreciated. Thank you.

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Thank you.

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Have a good day.

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And take care, Sharon. All the best.

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Any other questions for continuance?

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I see no handshare.

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Okay.

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Here we go.

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Number one, MI 2021-004-742-27 East Auburn Street.

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Letter of support from the Somerset Neighbors for Better Living.

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Councilman Squilla in non-opposition.

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could you state your name and spell for the court reporter

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his name is mark henriquez is m-a-r-c-h-e-n-r-i-q-u-e-z

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right do you swear or affirm to tell the truth the whole truth and nothing but the truth

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yes okay mr ha uh good afternoon he has a few questions

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Mr. Han, he has a few questions.

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Call it, Thomas, you do it.

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Good afternoon.

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Did you email all of the exhibits as required,

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such as proof of ownership, tax clearance,

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copy of a refusal, pictures or plans of the property

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five days in advance of this hearing,

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and did you meet with the RCO?

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Yes.

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Do you have a letter?

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Yes.

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Thank you.

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Proceed.

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did you put it put your information up on the screen yeah i'm putting in there right now okay

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can you see okay yep it's up yeah so this is my name is mark enriquez it's the application of

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appeal um i'm the owner of this project of this property it's a vacant lot in the property i was

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trying to build a two-family um household living and the properties uh refused because

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there's two family in the rsa5 neighborhood so they said you can't you can't have that

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So, these are my, okay, this is the application of appeal right here, this is the project

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information, and this is the RCO for the Somerset's neighbors.

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first. This is a tax clearance that I own the property. This is the deed. And this is

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the property right here. And this is the pictures of where the property is going to be located.

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is a vacant lot right now.

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And the whole neighborhood is like,

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they're building new construction.

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So the whole neighborhood is basically vacant lots

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that they're digging and they're building new construction.

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And these are my receipts that I mailed out

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the postal letters.

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And this is the receipts right here.

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And these are my plans right here.

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these are my plans right here okay i see it okay so i i lived here for 25 years i lived here all

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my life on this block my mom is the um she's got she's actually the block captain of the block she

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lived here for about 40 years so we want to i want to um build a two-family house these are

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these are the plans for this because i'm i want my mother and my father to live underneath me

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