civus
Hearing video

ZBA Hearing - September 22, 2021

Philadelphia Zoning Board of Adjustment (ZBA)Sep 22, 20214h 53m

Good afternoon, Mr. Chairman.

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Video is not cooperating.

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My name is Hal, H-A-L, last name Schirmer, S-C-H-I-R-M-E-R.

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I'm representing Darlene Marquette and Gary Brady, the neighbors adjoining the property and across the street from the property.

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

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Yes, I do.

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All right, gentlemen, I'm going to try to set some ground rules.

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I understand there's a lot of contention going on here, but we're not going to let that interfere with this proceeding.

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I'm going to ask Mr. Conner and Mr. Shermer, you will be each given 10 minutes to identify your clients and summarize the grounds for your appeal.

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After that, we'll ask Mr. McClure and Mr. Reuter each have 10 minutes to respond.

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And I believe that we're not going to be able to complete this case today and we'll have a resumption date available at the conclusion of your presentations.

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So with that, we can begin with Mr. Conner and Mr. Schirmer. You guys decide who wants to go first.

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Hal, after you, you're the first appeal.

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Thank you, Mr. Good afternoon, Mr. Chairman and members of the board. My name is Hal Schirmer.

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I'm representing the adjacent neighbor, Darlene Marquette, and the neighbor across the street, Gary Bailey.

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We filed this appeal because there were three different zoning permits issued under the same name based on a brand new piece of legislation which attempted to allow the Historical Commission to grant zoning variances or special exceptions instead of having them go through the Philadelphia Zoning Board of Adjustment.

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The paperwork was the permits were never actually posted. So we appealed the three different versions of the zoning permits. There is one issue that my paperwork, which Sharon has included my correct email address, the cover sheet had an old pre-COVID email address. So I found out about this case as of Friday afternoon.

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Excuse me, Mr. Shermer, just to clarify, it was not the cover page.

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It was the actual appeal form that included the wrong email address.

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Well, the standard form.

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So the standard PDF form, which is the first page, and then you have please see attached,

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et cetera, which I guess Ms. Saleta is correct about.

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I did want to ask if it's possible for the board to make known how many people are here

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because I know my clients have said they expect 20, 30, 40 people who wish to speak who are interested in this.

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20, 30, 40 people who wish to speak who are interested in this. I'm not sure if it's

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it's not standard to put them on the record so that we know how many people are there,

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but I am kind of curious and I would note that at the end of our appeal paperwork we did request

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that under 1430315A.4 that L&I actually provide the zoning board with a written explanation of

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what they did and why they did it and that we might get a copy which we still have not had

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uh i can if i'm mr shirmer to answer your question once all of the folks that i've

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mentioned the attorneys and mr reuter is also an attorney obviously uh have your opportunity i will

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then ask the audience for people who are in the audience on this case to raise their hand and

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be able to get a general idea of the number of people who would like to be heard okay excuse me

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chair if i can just also mention that this is an appeal against lni it's not a variance case

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public comment is generally not accepted as well it's not relevant um this will involve the legal

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issues understood uh we'll have to make that understood again i guess to the folks that are

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out there, but I'll just, as Mr. Shermer asked, we'll just get a sense of how many people are

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appearing today. Yep. Or and or against. Or against. I'm not going to bother sharing my

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screen because I'm just going to talk and read off. The RCO is my co-appellant. They actually

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did send out a note to all of their neighbors, which we can share with you. If anybody doubts

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me, I'll send it over to you. But they had the largest no they've ever had of 91.8% of the

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neighbors who are members. I don't want to get into the body of the case. We're just asking

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to identify the purpose. I understand you're going to say this is unusual and that's one

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of the reasons for the appeal, but if you can narrow it down to just the grounds for the appeal

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and what it is that you're trying to get across to us. Not a problem. Along with the grounds of

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appeal, one of the grounds for the reason requesting a continuance is that we

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filed an appeal when there were three different versions of the same zoning

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permit, ZP 2020-006800. After we filed the appeal, we found out there's a fourth

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version of this permit floating around, which we did not know about until we

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went back and looked through, so we'd like some time to actually figure out

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what's the fourth version of this permit. And if I can share my screen for

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one shot yeah as i said at the onset this case is going to be uh continued so and i would like to

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object because we haven't seen any of the exhibits as filed as required by the board on friday

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that's not what yeah my objection system we're not going to get into that part of it just

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i don't know if i'm explaining myself correctly i i understand i'm just trying to figure out if i

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can make this quicker and simpler but essentially there's a new code section which allows rsd3

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to be effectively de facto rezoned to cmx3 which is way more dense than what anybody thought and

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i'm just going to quote its committee on rules june 15 2021 which is that happened after that

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happened after the actual permit was issued uh it correct but before a building permit was picked up

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so there's a system you're agreeing then the objection is this thing okay okay bill 2020

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bill 2100361 the planning commission agreed that objection that was after the actual issuance of

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the permit i know but the point that we wanted to raise the same objection i know but i at least

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get an offer i'm sorry what the objection i'm sorry to interrupt i'm sorry thank you chair

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please try to stop i know mr mcclure you want to object and you have every right to

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i would ask after the objection is made uh for mr shermer to wait and see what the board decides so

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your objection again is sustained mr thank you okay okay do i get to make an offer of what was

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there that you're not going to hear offer of proof anybody mr sherman just to clarify what you are

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the um the change that you would like to discuss happened after the permit was issued or certainly

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after the permit was applied for is that correct it happened after one of the permits was issued

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the permit was reissued four different times and so i have no idea because we've never seen

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because we've never seen any documentation which version of the permit was issued before or after

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any documentation which version of the permit was issued before

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this based on the numbering of the different permits it looks like a new permit was issued

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after this case after this was actually gone through under pending ordinance that's one of

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the reasons why we had to file this to find out so there's something sharon that we could wait and

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i mean that could get worked out during the time i'll skip i'll skip i'll skip ahead i'll skip ahead

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and certainly mr sharma we will ask um ellen i to provide you with all of that information

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second hearing you'll get it all okay uh trying to keep that sorry i feel bad for the stenographer

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but okay our appeal basically went through the exception to use tables which says that you can

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get an exception which changes your use table from the RSD 3 over to CMX 3 as

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long as you can show that you had a public civic or institutional use or

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office use category that's section 7a 1a and 2a b in this particular case there

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may have been a letter there apparently was a letter from the plan from the

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chairman of the historical commission however the actual documentation which

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The Board can take recognition of, which is a zoning plan for 2020-006-80000, was approved by Laura de Pasquale not until March 16th of 2021.

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So we're not talking about something that was approved, finalized, and done back in October.

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We're talking about newer information, which is why it's important to find out when did things change.

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There is a letter apparently from the Historical Commission executive director

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dated October 9, 2020, but in the meantime the law seems to have changed. More

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importantly the actual permit that was issued includes a note that you

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actually have to begin construction or you have to begin the use within six

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months. This property and project was not begun within six months because under

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the definitions, the footprint of the property was not changed, therefore this

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is outside the definition of development. This is simply ripping the inside out of

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a historic house and then hoping you find something else to do with it. Since

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the footprint of the property didn't change, there's a six-month time frame,

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it's not the full three years. And then finally, for this particular property, as

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my opponent has duly noted back in 1955 this case a case about this property

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surprise surprise went all the way up to the Pennsylvania Supreme Court which

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held that yes this little lady can actually have a home occupation in this

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property because she is basically working as a dormitory. The problem here

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is that in order to actually provide the regulation and to make the changes that

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the Historical Commission and that L&I did, they need to show that there was

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actually some kind of approved institutional use, public use, or an

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approved office use. When you go through the Zoning Archive, which the Zoning

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Board can take notice of, which I request now, that there is no permit

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for the National Catholic Bioethics Institute in the Zoning Permit Archive

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documents, and there is no actual permit for the use as a boarding school in

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here because this was done through a court order, and according to the

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regular rules of Philadelphia, when something's approved by a court that is

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not a normal standard use that you can then go back in and change without

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actually going back to court. And finally, we have the issue of notice that there

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was no notice posted the first time that we heard about it we filed an appeal

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within 30 days of it and we have found that this is an issue that is problematic

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because if you expand the definition of school to include also boarding house

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and we teach people we teach you know handicapped kids life skills then you

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also can expand that into well this is a rehab facility and we teach people

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living skills. So we are concerned about the idea of taking what's supposed to be a little loophole

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to help historic buildings and turn it into a giant loophole, which allows pretty much every

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building which is in the RSD zoning classification or residential zoning classification to suddenly

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be expanded to CMX3, which has unlimited density, which is clearly not what was intended and has

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and has since been fixed through city council.

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been fixed through City Council.

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I think I'm still on time or close.

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Thank you.

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Thank you.

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I think that we were going to hear from you.

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The reporter next.

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Thank you, everyone.

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I'm here on behalf of the Overbrook Farms Club

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to ask that this zoning permit be denied.

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I'm sorry, Mr. Chairman, you're muted.

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Just identify yourself for the purpose of the reporter.

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Thank you very much.

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Connor Corcoran, C-O-R-C-O-R-A-N,

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on behalf of Overbrook Farms Club,

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we are here to ask that the zoning permit be denied.

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The reason for that is that the current proposed use,

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as articulated in the permitted issue,

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is to build 19 apartment units within one of the grandest and most important mansions in

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Philadelphia's history. It's approximately a 12,000 square foot property that they'd like to cut up

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into 19 units inside an RSD3 district, which explicitly forbids multi-unit dwelling. Despite

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Despite that general prohibition, it appears that L and I had allowed an exemption under

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14-602 subsection 7.

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The basis of our appeal, however, is that L and I allowed that permit, despite the fact

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that the current use, the proposed use, and the former use of this property does not meet

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the requirements for the historical exemption in 14602 subsection 7. And I'll tell you why.

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The applicant claims that the property was used as a school for handicapped kids. And of course,

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we can't deny that. And in that regard, the applicant relies upon the Supreme Court decision

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from 1955, which allowed a zoning variance for the school to be there. Subsequent to that opinion

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from 1955. Philadelphia City Council passed the current city code to prohibit those kinds of

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schools from then existing in this RSD3 district. And today, as we sit here, neither the Bioethics

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Center nor CORE are able to demonstrate how they satisfy any of those exceptions, as I put forth

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in the brief before the board today. The proposed use of 19 apartments doesn't qualify

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as an office either. And those two grounds are the main faulty grounds upon which the applicant's

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permit rests, that it should be a school or it could be used as an office. And neither of those

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uses are permitted underneath the code as it sits today, nor have they presented any evidence to

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indicate that they satisfy the uses that would allow them to get that historic exception.

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The other grounds for the appeal or for our appeal here rest upon this notion that the applicant has some kind of by right issue and it can just march in here and tell the board and the neighborhood that they can switch this to a multi-unit dwelling.

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That's absolutely not true.

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According to the specific language of the statute at issue, it says that at the discretion of the applicant, it may apply for this historical exception.

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But it doesn't mean it's guaranteed. It doesn't say it shall get it.

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And Mr. McCaw's brief, which was dropped on us on Friday afternoon, after this appeal has been sitting here for five months,

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somehow wants to convince the board that it's a by-right designation, and it simply is not.

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I'd especially like the board to recognize that argument in our brief.

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I otherwise join Mr. Shermer's arguments with regard to the failure to get a certificate of occupancy within six months, as well as the late posting, which didn't happen, I believe, until April 13th of 2021.

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And finally, City Council has acted once again.

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On July 1st, 2021, Mayor Kenney signed a bill that created...

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objection that bill happened that happened after that sustained thank you very much it happened

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after you can't reach back thank you thank you very much uh please note my objection to that

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uh and i do have the president of the organization thaddeus squire here if you need me to bring him

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on the call to uh attest to everything that i just did as well i'm going to hold on i apologize if i

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I missed this, but could you just briefly explain the circumstances that give your client standing?

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The president of the Overbrook Farms Club is Thaddeus Squire, and I believe that he is

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here on the call. The Overbrook Farms Club is the registered community organization.

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here on the call. Overbrook Farms Club is the registered community organization for the district

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addition. If it may be helpful to Ms. Saleta and the chair, at least for purposes of the property

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and we stipulate to Stanley. Thank you. Thank you. City also is not challenging standing or

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the timeliness of the appeal. I'm sorry, Chair. I hate to interrupt, but because there's so many

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different attorneys could we just please remember to state your name for the record um i apologize

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leonard reuter for the city the city does not object uh to the standing of the appellants nor

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the timeliness of the appeal as did mr mcclure thank you um mr kokorin you have you uh finished

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with your testimony i have sir thank you very much thank you um we will now go to to mr mcclure

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and then Mr. Reuter

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and I'm not sure, Mr. McClure,

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if Mr. Farris is textifying as well.

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Mr. Farris is with me.

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I know he's with you,

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but I don't know if he...

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So we'll begin with you

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and then you decide.

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Just one of us in Ballard's Park.

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Mr. Reuter, do you want to go first

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or I can go?

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It doesn't matter.

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It doesn't matter to me.

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If you have the floor, go ahead.

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Why don't I give some background

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and then you can get into the technical stuff.

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Our client is...

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