might if they determine that it meets the standards and guidelines of the Secretary of
the Interior, but they're not obligated to do that. So that's really not even an issue
that's before the board here. There were no issues that were raised in the appeals that
we've been able to discern where there are any other bases for claiming that this permit
should not have been issued by right. There's nothing about improper setbacks or this, that,
or the height's not right or that any of those things it's an existing building that's proposed
to be altered uh and for a change of use so again the only issue that has been raised in the notices
of appeal before this board have to do with the historical commission's uh actions with respect
to simply confirming that this had been a school and that it was historic uh that it is in fact
historic so well not quite but again this is what this my understanding is that this is really by
way of opening argument and you know again we're not presenting evidence and we're happy to provide
uh either direct or more likely on rebuttal uh you know whatever evidence we need to to
back up these assertions but the ordinance speaks for itself if city council and i just
want to address a couple of legal arguments briefly um i think the claim is that city council
illegally or improperly gave the historical commission the authority to
grant a de facto variance. So in the first place, that's basically a validity challenge. And I think
council, all council here would agree that like a constitutional challenge, this board doesn't
have the authority to make a decision about whether an ordinance is valid. You are required
by the charter and by the zoning code to follow the zoning code as written. If Mr. Shermer or
mr corcoran want to make a you know want to preserve the validity challenge uh that's fine
and that would ultimately then be decided by a court if this matter is not you know resolved
amicably in some other way so that's just again something off the table i think they can preserve
those arguments if they want and then you know just you know hashtag move on uh but in terms of
the um the other issues having to do with like well city council can't give the historical
commission the authority to do that um you know it is actually in the zoning code that city council
did it they passed an ordinance signed by the mayor that gave the historical commission this
authority it's not giving the commission the authority to grant variances it's simply saying
once the commission approves or once the commission confirms the prior use of the
property and the fact that it's designated it is a buy right use uh for that for the applicant or
for the property owner they have a buy right cmx3 use so that's not giving the commission the
authority to grant variances and frankly i would suggest even if city council had said the
historical commission could grant a variance i don't see that there's anything that says the
city council can't i mean if the historical commission just took it upon themselves to do
that that'd be one thing but uh there's really nothing that says this the that the city council
has no authority to tell uh to say that the historical commission can decide can make a
determination about whether a building's historic and had been a school and therefore that gives
that property owner the right to make use of cmx3 uses so again i'm not really again that goes to
the validity challenge but i'm just not sure i follow that argument but clearly that being
leaving that aside there's really nothing here that even suggests nothing in the ordinance
that suggests that the cmx that the what city council did was to give the
that suggests that the cmx that the what city council did was to give the historical commission
any authority to grant variances that's not what's happening here um it literally they could have
left the historical commission out of it entirely and just said if the department of l and i makes
a decision determination that the property had been used as a school uh then they get cmx three
uses i mean it you know i again i'm not so that that's that's kind of you know again goes to the
validity challenge but you know that seems to be the crux of the whole appeal here is a legal
argument i you know i i and i think even the argument that has been raised that this isn't
really a school because it wasn't a permitted school aside from the fact that i think factually
that's demonstrably not true uh that is also a legal argument ultimately uh even you know whether
or not the court had the authority to make something a legal
use, whether that becomes a legal use. Again, I'm not sure I'm really
quite grasping that whole argument or train of thought, but anyway, it
sounds like a legal argument for the most part. So in conclusion
with my remarks here, I just want to say that
just to make it clear to everybody that's here that
again, all the historical commission staff
did that John Farnham did is simply confirmed that this was a school and
that it is in fact designated and the the Picayune issue of whether or not it
was permitted as a school that is whether they actually had a zoning
permit in their hand that said yep you're a school
see the council's description of the legal argument is Picayune the letter of
the code is what provides here well again we are more than prepared to present uh you know
documentation that in fact they did have a permit so going back to 1954 so that's you know uh and
we'd be happy to present that in rebuttal i do want to remind the board and everybody here that
this is an appeal against lni and therefore the obligation is on the appellants to to move forward
with their case, meaning that they go first and they bear the burden of going forward and they
bear the burden of proof in terms of proving that there was no zoning permit or proving that it
wasn't a school or proving that it isn't or that parts of the property are not historic. So, you
know, the city's entire response to the appeal is essentially a rebuttal argument. That being said,
we will provide uh whatever documentation we have to uh council prior to the next hearing
i don't have a problem with that i should point out leslie that all of the zoning documents i'm
referring to are in fact publicly available through the city's zoning archive so and as far
as i know they have been for quite some time at least since i think 2008. excuse me mr reuter would
you also be willing to um have the zoning examiner appear at the next hearing uh i i would but again
i think again typically i think the zoning examiner would be here to testify yes i received this
information and yes i approved the issuance of the permit in this case dr farnham wrote uh the
letter uh going over the history of the property and confirming the use and everything uh
to Sarah Adama, who is currently on maternity leave. I'm not sure when she gets back,
but I can certainly see if there's somebody here. And actually, you know, again, if we need to
present rebuttal evidence, you know, we may bring somebody in just to verify and to certify the
documents that are in the zoning archive. So, yes, I'll see what I can do about that.
If I can chime in, the documents weren't stamped by Mr. Farnham, they were stamped by Laura D. Pasquale.
Mr. Chairman, may I just add one point just to add?
Before you go, before I answer that, Mr. Shermer?
Sorry.
I'm happy to ask Laura to come as well. I'm sure she'll be happy to.
The stamps on the plans did not come from Mr. Farnham.
they came from the a different person at the historical commission so it's probably better
to have the person actually hit the stamp than the person who signed the paperwork
that makes that much of a difference for you we'll we'll ask that that person up here
if that is that important mr mcclure yeah i'm going to wrap this up yeah i just want to add
one point that mr roger's remarks is that one if you look at the code the code there's nothing
there that says you have to find a use that has a permit for it it just has to be a documented
prior use and and why is that and why did the court why did city council say look to the historical
commission it's because there were uses that existed before permits so if the play if the
So if the building was used as a school in the 1870s, before there were zoning permits, before there was zoning, it still has a documented history of being used as a school.
building was used as a school in the 1870s.
So that's the logic of the use.
The ordinance doesn't ask for when there was a permit or not.
It just is a documented history of the property.
Did it fit in one of these use categories?
And it did.
That's it.
Thank you.
um i didn't think i cut anyone off did i by any chance but i do have i do have a point of order
uh should uh myself mr shirmer and mr mccore uh wave in our the testimony of our respective
clients for the purposes of today so that we can pick up cleanly whenever the next hearing is
i object because i wouldn't know what the testimony of the clients are because this is a
permit appeal and opinions as to whether this is a good project or not a good
project have no relevance to that. My client's not testifying to that. My
clients just have to find everything I said. You can do that but again I was
just actually going to remind council especially the appellants we do respect
the fact that the public wants to engage and they people who live in that
area have a strong opinion about this case. I need you to remind them as best
you can that this is an appeal against l and i it is not a typical variance case we run into this
often when they're filed when there are cases that are uh against l and i the issuance of permits by
l and i that would be very helpful uh if you can uh relay that message to your constituents thank
you very much and mr chairman although not relevant i would just assure the board that our clients
did meet with the community and had to public meeting understood understood but again it is
hard it's for some people even me for a while to distinguish between a variance and an appeal
against lni so that if you can make that clear then it will be helpful i believe earlier mr
sherman had asked if we can get a sense of how many people are out in the audience uh so with
that without any objection i will ask all those who are out in zoom land if you will who are here
today on behalf of this case to please raise your hand all others lower your hand and we'll try to
get a head count yvette if you can give us some sense of that that would be helpful so if you're
here for this particular case please raise your hand all other cases lower your hand at this time
Mr. Shermer and Mr. Nathan Farris have their hands raised, obviously they're not neighbors.
We're not going to get an exact count, but we'll get an approximate count.
I'm just saying it's at least about 17 to 20 people chair okay thank you so
gentlemen mr. Shermer you got about 20 people out there who appear today we
apologize to those folks I we know you've been on the call for a long time
whenever we're going to get past this case today because we have other cases
yet to be heard uh we will have a date specific i will say for the record uh we will do a resumption
hearing on tanya you have a date and time no you're breaking up at the end of the tanya how about now
November 2nd
at the end of the 930 session
November 2nd
that's election day if anybody's concerned
Mr. DiCicco you of all people
should understand the importance of that day
I don't know with election day
I do have a problem because I'm running
alright Ms. Sunkett
tanya is there another date we can do because i knew that was going to be a problem november 2nd
um i have you have to give me a minute and i can check
and while she's checking can i also ask that any um any requests for subpoenas or any documents
that you were requesting from another party if you copy me on those requests please thank you
and that anything you submit, you submit to all parties.
and that anything you submit you submit to all parties
can we get a cc from everybody to everybody list to make it easier
pretty much i will send you one mr shermer yeah um leonard reuter for the city i would also suggest
uh if there's going to be things like subpoenas uh and whatnot that that there'd be a sort of a
deadline for making those requests say you know at least a couple weeks before uh the next uh
whenever the listing is going to be I mean I'm exploring early retirement
options right now so I don't even know you and me both and I would point out on
the issue of subpoenas obviously as mr. Reuter has stated and as you as the
board members can tell and Ms. Selenna can tell almost all the issues if not all
the issues in the talent papers are legal I understand mr. McClure and the
board but of course make the call on whether the requested witnesses are relevant and agreed and
most of the facts are back in 1955 so they're no longer around or they're down in florida
enjoying the sun just uh so everyone knows the 3 30 list we will get to that list as soon as we
get a date uh for the rehearing on this particular case november 17th at the end of the 3 30 session
Okay, MI 2021-002254, 6399 Drexel Avenue, and MI 2021-003420, 6399 Drexel Avenue.
This is a resumption hearing, will be held on November the 17th at 3.30, or is that
what you said, Tanya?
Yes, Chair.
3.30 p.m.
Thank you, gentlemen.
Mr. Chairman, again, I implore the appellants attorneys to advise your clients that this is not a variance case. That would be helpful.
Thank you.
Thank you all.
Thank you, Chairman.
Be safe.
Thank you.
We're going to go to the 3.30 list.
I guess I'll need to read the opening remarks again.
Good afternoon, everyone.
My name is Frank DiCicco.
I'm the chair of the Zoning Board of Adjustment.
I'll be participating in today's hearing along with our board secretary, Mr. Confessor Plaza, and board members, Mr. Thomas Holloman and Mr. James Snell.
Board Administrator Yvette Benton and our board attorney, Sharon Saleta, are also in attendance, as is our zoning board administrator, Ms. Tanya Sunkett.
First, we will be administering oaths to participants prior to their testimony.
Second, we'd like to advise everyone that this proceeding is being recorded
and that by participating, you acknowledge your agreement to be recorded
and that the recording will be made available to the public, on the web, or otherwise.
Third, for anyone participating by phone, if you wish to testify,
you must raise your hand by hitting star nine and then star six to unmute yourself.
I'll repeat, for anyone participating by phone, if you wish to testify,
you must raise your hand by hitting star nine and then star six to unmute yourself.
Finally, to enter an appearance statement, call Google 267-270-5548 and leave your email address
and the address of the property at issue. I will repeat that as well. To enter an appearance
statement call google 267-270-5548 and leave your email address and the address of the property at
issue and i would ask everyone to please do not attempt to testify in the chat any comments or
concerns or questions should be directed to the board administrator ms yvette benton with that
I will now ask if there are any requests for continuances or withdrawals on the 330 list.
Any requests for continuances or withdrawal on the 330 list?
Please raise your hand.
I see no hands at this time, Chair.