civus
Hearing video

ZBA Hearing - September 22, 2021

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

might if they determine that it meets the standards and guidelines of the Secretary of

Similar wording

the Interior, but they're not obligated to do that. So that's really not even an issue

Similar wording

that's before the board here. There were no issues that were raised in the appeals that

Similar wording

we've been able to discern where there are any other bases for claiming that this permit

Similar wording

should not have been issued by right. There's nothing about improper setbacks or this, that,

Similar wording

or the height's not right or that any of those things it's an existing building that's proposed

Similar wording

to be altered uh and for a change of use so again the only issue that has been raised in the notices

Similar wording

of appeal before this board have to do with the historical commission's uh actions with respect

Similar wording

to simply confirming that this had been a school and that it was historic uh that it is in fact

Similar wording

historic so well not quite but again this is what this my understanding is that this is really by

Similar wording

way of opening argument and you know again we're not presenting evidence and we're happy to provide

Similar wording

uh either direct or more likely on rebuttal uh you know whatever evidence we need to to

Similar wording

back up these assertions but the ordinance speaks for itself if city council and i just

Similar wording

want to address a couple of legal arguments briefly um i think the claim is that city council

Similar wording

illegally or improperly gave the historical commission the authority to

Similar wording

grant a de facto variance. So in the first place, that's basically a validity challenge. And I think

Similar wording

council, all council here would agree that like a constitutional challenge, this board doesn't

Similar wording

have the authority to make a decision about whether an ordinance is valid. You are required

Similar wording

by the charter and by the zoning code to follow the zoning code as written. If Mr. Shermer or

Similar wording

mr corcoran want to make a you know want to preserve the validity challenge uh that's fine

Similar wording

and that would ultimately then be decided by a court if this matter is not you know resolved

Similar wording

amicably in some other way so that's just again something off the table i think they can preserve

Similar wording

those arguments if they want and then you know just you know hashtag move on uh but in terms of

Similar wording

the um the other issues having to do with like well city council can't give the historical

Similar wording

commission the authority to do that um you know it is actually in the zoning code that city council

Similar wording

did it they passed an ordinance signed by the mayor that gave the historical commission this

Similar wording

authority it's not giving the commission the authority to grant variances it's simply saying

Similar wording

once the commission approves or once the commission confirms the prior use of the

Similar wording

property and the fact that it's designated it is a buy right use uh for that for the applicant or

Similar wording

for the property owner they have a buy right cmx3 use so that's not giving the commission the

Similar wording

authority to grant variances and frankly i would suggest even if city council had said the

Similar wording

historical commission could grant a variance i don't see that there's anything that says the

Similar wording

city council can't i mean if the historical commission just took it upon themselves to do

Similar wording

that that'd be one thing but uh there's really nothing that says this the that the city council

Similar wording

has no authority to tell uh to say that the historical commission can decide can make a

Similar wording

determination about whether a building's historic and had been a school and therefore that gives

Similar wording

that property owner the right to make use of cmx3 uses so again i'm not really again that goes to

Similar wording

the validity challenge but i'm just not sure i follow that argument but clearly that being

Similar wording

leaving that aside there's really nothing here that even suggests nothing in the ordinance

Similar wording

that suggests that the cmx that the what city council did was to give the

Similar wording

that suggests that the cmx that the what city council did was to give the historical commission

Similar wording

any authority to grant variances that's not what's happening here um it literally they could have

Similar wording

left the historical commission out of it entirely and just said if the department of l and i makes

Similar wording

a decision determination that the property had been used as a school uh then they get cmx three

Similar wording

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

Similar wording

validity challenge but you know that seems to be the crux of the whole appeal here is a legal

Similar wording

argument i you know i i and i think even the argument that has been raised that this isn't

Similar wording

really a school because it wasn't a permitted school aside from the fact that i think factually

Similar wording

that's demonstrably not true uh that is also a legal argument ultimately uh even you know whether

Similar wording

or not the court had the authority to make something a legal

Similar wording

use, whether that becomes a legal use. Again, I'm not sure I'm really

Similar wording

quite grasping that whole argument or train of thought, but anyway, it

Similar wording

sounds like a legal argument for the most part. So in conclusion

Similar wording

with my remarks here, I just want to say that

Similar wording

just to make it clear to everybody that's here that

Similar wording

again, all the historical commission staff

Similar wording

did that John Farnham did is simply confirmed that this was a school and

Similar wording

that it is in fact designated and the the Picayune issue of whether or not it

Similar wording

was permitted as a school that is whether they actually had a zoning

Similar wording

permit in their hand that said yep you're a school

Similar wording

see the council's description of the legal argument is Picayune the letter of

Similar wording

the code is what provides here well again we are more than prepared to present uh you know

Similar wording

documentation that in fact they did have a permit so going back to 1954 so that's you know uh and

Similar wording

we'd be happy to present that in rebuttal i do want to remind the board and everybody here that

Similar wording

this is an appeal against lni and therefore the obligation is on the appellants to to move forward

Similar wording

with their case, meaning that they go first and they bear the burden of going forward and they

Similar wording

bear the burden of proof in terms of proving that there was no zoning permit or proving that it

Similar wording

wasn't a school or proving that it isn't or that parts of the property are not historic. So, you

Similar wording

know, the city's entire response to the appeal is essentially a rebuttal argument. That being said,

Similar wording

we will provide uh whatever documentation we have to uh council prior to the next hearing

Similar wording

i don't have a problem with that i should point out leslie that all of the zoning documents i'm

Similar wording

referring to are in fact publicly available through the city's zoning archive so and as far

Similar wording

as i know they have been for quite some time at least since i think 2008. excuse me mr reuter would

Similar wording

you also be willing to um have the zoning examiner appear at the next hearing uh i i would but again

Similar wording

i think again typically i think the zoning examiner would be here to testify yes i received this

Similar wording

information and yes i approved the issuance of the permit in this case dr farnham wrote uh the

Similar wording

letter uh going over the history of the property and confirming the use and everything uh

Similar wording

to Sarah Adama, who is currently on maternity leave. I'm not sure when she gets back,

Similar wording

but I can certainly see if there's somebody here. And actually, you know, again, if we need to

Similar wording

present rebuttal evidence, you know, we may bring somebody in just to verify and to certify the

Similar wording

documents that are in the zoning archive. So, yes, I'll see what I can do about that.

Similar wording

If I can chime in, the documents weren't stamped by Mr. Farnham, they were stamped by Laura D. Pasquale.

Similar wording

Mr. Chairman, may I just add one point just to add?

Similar wording

Before you go, before I answer that, Mr. Shermer?

Similar wording

Sorry.

Similar wording

I'm happy to ask Laura to come as well. I'm sure she'll be happy to.

Similar wording

The stamps on the plans did not come from Mr. Farnham.

Similar wording

they came from the a different person at the historical commission so it's probably better

Similar wording

to have the person actually hit the stamp than the person who signed the paperwork

Similar wording

that makes that much of a difference for you we'll we'll ask that that person up here

Similar wording

if that is that important mr mcclure yeah i'm going to wrap this up yeah i just want to add

Similar wording

one point that mr roger's remarks is that one if you look at the code the code there's nothing

Similar wording

there that says you have to find a use that has a permit for it it just has to be a documented

Similar wording

prior use and and why is that and why did the court why did city council say look to the historical

Similar wording

commission it's because there were uses that existed before permits so if the play if the

Similar wording

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.

Similar wording

building was used as a school in the 1870s.

Similar wording

So that's the logic of the use.

Similar wording

The ordinance doesn't ask for when there was a permit or not.

Similar wording

It just is a documented history of the property.

Similar wording

Did it fit in one of these use categories?

Similar wording

And it did.

Similar wording

That's it.

Similar wording

Thank you.

Similar wording

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

Similar wording

uh should uh myself mr shirmer and mr mccore uh wave in our the testimony of our respective

Similar wording

clients for the purposes of today so that we can pick up cleanly whenever the next hearing is

Similar wording

i object because i wouldn't know what the testimony of the clients are because this is a

Similar wording

permit appeal and opinions as to whether this is a good project or not a good

Similar wording

project have no relevance to that. My client's not testifying to that. My

Similar wording

clients just have to find everything I said. You can do that but again I was

Similar wording

just actually going to remind council especially the appellants we do respect

Similar wording

the fact that the public wants to engage and they people who live in that

Similar wording

area have a strong opinion about this case. I need you to remind them as best

Similar wording

you can that this is an appeal against l and i it is not a typical variance case we run into this

Similar wording

often when they're filed when there are cases that are uh against l and i the issuance of permits by

Similar wording

l and i that would be very helpful uh if you can uh relay that message to your constituents thank

Similar wording

you very much and mr chairman although not relevant i would just assure the board that our clients

Similar wording

did meet with the community and had to public meeting understood understood but again it is

Similar wording

hard it's for some people even me for a while to distinguish between a variance and an appeal

Similar wording

against lni so that if you can make that clear then it will be helpful i believe earlier mr

Similar wording

sherman had asked if we can get a sense of how many people are out in the audience uh so with

Similar wording

that without any objection i will ask all those who are out in zoom land if you will who are here

Similar wording

today on behalf of this case to please raise your hand all others lower your hand and we'll try to

Similar wording

get a head count yvette if you can give us some sense of that that would be helpful so if you're

Similar wording

here for this particular case please raise your hand all other cases lower your hand at this time

Similar wording

Mr. Shermer and Mr. Nathan Farris have their hands raised, obviously they're not neighbors.

Similar wording

We're not going to get an exact count, but we'll get an approximate count.

Similar wording

I'm just saying it's at least about 17 to 20 people chair okay thank you so

Similar wording

gentlemen mr. Shermer you got about 20 people out there who appear today we

Similar wording

apologize to those folks I we know you've been on the call for a long time

Similar wording

whenever we're going to get past this case today because we have other cases

Similar wording

yet to be heard uh we will have a date specific i will say for the record uh we will do a resumption

Similar wording

hearing on tanya you have a date and time no you're breaking up at the end of the tanya how about now

Similar wording

November 2nd

Similar wording

at the end of the 930 session

Similar wording

November 2nd

Similar wording

that's election day if anybody's concerned

Similar wording

Mr. DiCicco you of all people

Similar wording

should understand the importance of that day

Similar wording

I don't know with election day

Similar wording

I do have a problem because I'm running

Similar wording

so

Similar wording

alright Ms. Sunkett

Similar wording

tanya is there another date we can do because i knew that was going to be a problem november 2nd

Similar wording

um i have you have to give me a minute and i can check

Similar wording

and while she's checking can i also ask that any um any requests for subpoenas or any documents

Similar wording

that you were requesting from another party if you copy me on those requests please thank you

Similar wording

and that anything you submit, you submit to all parties.

Similar wording

and that anything you submit you submit to all parties

Similar wording

can we get a cc from everybody to everybody list to make it easier

Similar wording

pretty much i will send you one mr shermer yeah um leonard reuter for the city i would also suggest

Similar wording

uh if there's going to be things like subpoenas uh and whatnot that that there'd be a sort of a

Similar wording

deadline for making those requests say you know at least a couple weeks before uh the next uh

Similar wording

whenever the listing is going to be I mean I'm exploring early retirement

Similar wording

options right now so I don't even know you and me both and I would point out on

Similar wording

the issue of subpoenas obviously as mr. Reuter has stated and as you as the

Similar wording

board members can tell and Ms. Selenna can tell almost all the issues if not all

Similar wording

the issues in the talent papers are legal I understand mr. McClure and the

Similar wording

board but of course make the call on whether the requested witnesses are relevant and agreed and

Similar wording

most of the facts are back in 1955 so they're no longer around or they're down in florida

Similar wording

enjoying the sun just uh so everyone knows the 3 30 list we will get to that list as soon as we

Similar wording

get a date uh for the rehearing on this particular case november 17th at the end of the 3 30 session

Similar wording

Okay, MI 2021-002254, 6399 Drexel Avenue, and MI 2021-003420, 6399 Drexel Avenue.

Similar wording

This is a resumption hearing, will be held on November the 17th at 3.30, or is that

Similar wording

what you said, Tanya?

Similar wording

Yes, Chair.

Similar wording

3.30 p.m.

Similar wording

Thank you, gentlemen.

Similar wording

Mr. Chairman, again, I implore the appellants attorneys to advise your clients that this is not a variance case. That would be helpful.

Similar wording

Thank you.

Similar wording

Thank you all.

Similar wording

Thank you, Chairman.

Similar wording

Be safe.

Similar wording

Thank you.

Similar wording

Okay.

Similar wording

We're going to go to the 3.30 list.

Similar wording

I guess I'll need to read the opening remarks again.

Similar wording

Good afternoon, everyone.

Similar wording

My name is Frank DiCicco.

Similar wording

I'm the chair of the Zoning Board of Adjustment.

Similar wording

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.

Similar wording

Board Administrator Yvette Benton and our board attorney, Sharon Saleta, are also in attendance, as is our zoning board administrator, Ms. Tanya Sunkett.

Similar wording

First, we will be administering oaths to participants prior to their testimony.

Similar wording

Second, we'd like to advise everyone that this proceeding is being recorded

Similar wording

and that by participating, you acknowledge your agreement to be recorded

Similar wording

and that the recording will be made available to the public, on the web, or otherwise.

Similar wording

Third, for anyone participating by phone, if you wish to testify,

Similar wording

you must raise your hand by hitting star nine and then star six to unmute yourself.

Similar wording

I'll repeat, for anyone participating by phone, if you wish to testify,

Similar wording

you must raise your hand by hitting star nine and then star six to unmute yourself.

Similar wording

Finally, to enter an appearance statement, call Google 267-270-5548 and leave your email address

Similar wording

and the address of the property at issue. I will repeat that as well. To enter an appearance

Similar wording

statement call google 267-270-5548 and leave your email address and the address of the property at

Similar wording

issue and i would ask everyone to please do not attempt to testify in the chat any comments or

Similar wording

concerns or questions should be directed to the board administrator ms yvette benton with that

Similar wording

I will now ask if there are any requests for continuances or withdrawals on the 330 list.

Similar wording

Any requests for continuances or withdrawal on the 330 list?

Similar wording

Please raise your hand.

Similar wording

I see no hands at this time, Chair.

Similar wording