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Hearing video

ZBA Hearing - October 17, 2023

Philadelphia Zoning Board of Adjustment (ZBA)Oct 17, 20232h 0m

room or something right now i'm working from my cubicle i would have to get a router and

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set up entirely different equipment and another conference room within the building

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this is the reporter if i could just have him speak louder that might help okay thank you

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okay so my involvement with this property was started in january of this year

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i was the reviewer assigned to commercial building permit application cp 2023-00001

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which was for alter it was filed as level one interior alterations to the second floor

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It was during my review of the property's history, both loaning permit history and building and trades permit history.

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It was during that review that I notified the applicant of the expired status of those previous permits.

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Okay. Now, was your understanding that this permit application that you're referring to, the new one, we'll call it the 2023 building permit application,

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Was that an amendment or an alteration?

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Was that intended to be an amendment or an alteration to any prior permits, or was that a whole new application?

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It was an entirely new application, not an amendment.

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Okay.

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And so when you went back and made...

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So you went back and then you made a determination that the underlying zoning permit had expired?

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Yes.

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Okay.

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And what led you to that conclusion?

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That was based on the expired status of the previous building permit, which was permit number 1007326, which had been issued on February 28, 2020, and our records show that it had expired on March 10, 2021.

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And because of that, and in accordance with code bulletin Z1901, that I had notified the applicant that the zoning approval associated with that building permit, that was zoning permit 754581, that it had expired in accordance with that code bulletin.

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Okay. So again, we're talking about the initial zoning permit that was originally approved by the board in 2017.

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and issued august 23rd 2019 yes okay and so

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the underlying building permit uh 1007326 um you indicated had expired march 10th 2021 is that

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right okay now march 10th 2021 would have still been within the three years again whether you're

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going by well if you're going by the date of the decision uh it was beyond the date of the decision

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uh but if you were going from the date of the zoning permit issuance that would have still

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been within three years is that right that is correct uh if i may explain why it was

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expired within the three years of its issuance uh that is because only a an initial pre-construction

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That is because only an initial pre-construction site inspection was ever scheduled by the contractor with the City of Illinois.

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No additional inspections were ever scheduled with the city, so the permit was deemed inactive.

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For our records, there was a scheduled re-evaluation of that permit for six months after the date of that site inspection.

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by the way, that site inspection was scheduled for March 10th, 2020. So the Department of L&I

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scheduled to reevaluate six months later whether any work had commenced. It did not. That is why

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then later on March 10th, 2021, the permit was expired. Now, this was based on Section A302-2

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of the Philadelphia Administrative Code, which states that any permit shall become invalid if

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the authorized work is not commenced within six months after issuing the permit, or if

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the authorized work is suspended or abandoned for a period of six months after the time

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of commencing work.

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Okay, and again, that's A302.2.

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I'm just going to very quickly share my screen there.

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okay so this is the section and it's 303.2 is that right

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i'm sorry 302.2 yes a-302-2

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All right.

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So again, just the board can take judicial notice of the language in the code, which I'm showing here.

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This is the most recent edition of the code.

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Any permit issued shall become invalid if the authorized work is not commenced within six months after the issuance of the permit or if the authorized work is suspended or buried or abandoned for a period of six months after the time of commencing the work.

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So, again, just to reiterate, Mr. Hartland, L&I records indicated that there was an initial inspection, but that there had been a period of work had not been continuing for over a six-month period.

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That is correct.

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Okay. Now, after that, did you hear the prior testimony from the appellant and the appellant's architect?

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Yes, I did.

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Okay.

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Now, you heard the reference to the fire suppression permit.

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Yes.

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Okay.

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Now, first of all, does the issuance or continuance or expiration or whatever of a fire suppression permit, does that trigger any of the timelines relating to the zoning permit?

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No, it does not.

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Because Code Bulletin Z1901 explicitly references the expiration of the zoning permit in relation to the expiration of the building permit.

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So any trades permits, any mechanical, plumbing, electrical, fire suppression permits, they would not be relevant.

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Okay. So I'm going to share my screen again because you made reference to this, and I believe the appellant has also made reference to it.

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I think I can.

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There we go.

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So you've made reference to this document before, as has the appellant.

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Can you just explain to the board what this is?

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Yes, this is a code bulletin issued by L&I explaining the expiration of zoning permits.

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similar to what's been explained before, the basis of the content of this code bulletin

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is based on section 14-30310 of the Philadelphia Zoning Code.

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So the two key sections of this code bulletin are section A,

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which explains that the zoning approval was authorized by a variance,

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which that previous zoning permit 75458.1 was.

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So once authorized by variance, the expiration of the zoning permit shall be based on the date of the ZBA notice of decision.

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And then Section B of this code bulletin states that the date of the beginning of construction

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activities is considered by L&I to be the date of the issuance of the building permit,

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and that should a building permit expire and more than three years has elapsed since the

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date of the issuance of the zoning permit, or in this case the ZDA Notice of Decision,

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that the zoning permit shall also expire at the same time as the expiration of the building permit.

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Okay, so again, when the underlying...

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Okay, so again, when the underlying building permit in this case, that is the permit that was issued back in 20, I think, February of 2020, that's Alterations Permit 1007326.

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uh so again that expired march 10th 2021 uh which was more than three years after the zoning board

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decision of june 20th 2017 correct correct okay and incidentally since the date of the expiration

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of that building permit uh had any other building permits or been applied for or obtained between

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march 10th 2021 and jan and the application that was submitted in january of 2023

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oh not to my knowledge not for my research of the property now again there were some other

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permits that were issued correct like a plumbing permit the fire suppression permit that was

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mentioned uh kitchen hood permit etc etc we we agree that there were applications made for those

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types of permits, and those were issued. Is that right? Correct. Okay. But those have all expired

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as well, haven't they? Yes, they have. Under similar circumstances as the building permit,

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our records show that in the case of certain permits, not even an initial site inspection

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was performed. For others, such as the fire suppression permit, our records indicate that

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only that initial site inspection was performed and no further inspections were ever scheduled

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Okay. So again, so even if one were to go by the date of the zoning permit issuance, which would have been August 23rd, 2019, the underlying building, by that point, there were no active construction permits.

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uh if you went three years from that you'd be august 23rd 2022 uh and there still weren't any

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active building permits in august of 2022 anyway is that right that's correct right so no matter

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how you read even if one were to uh agree and again we're not agreeing but just for the sake

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of argument but even if one were to agree with mr demarco's contention that the expiration of

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the zoning permit dates from the in every case dates from the date of issuance he's still way

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beyond three years is that right yes that's correct okay um now incidentally with respect to

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uh with the exception of the fire suppression part okay well let me i guess i'll ask just

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because it's out there and i probably uh serve more to confuse things than anything but with

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respect to the fire suppression permit was the work why does that show uh an expiration date

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of august 22nd 2020 or whatever it was i forget what it was august 22nd

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you mean the completion or the expiration date i'm sorry what why is there a discrepancy between

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the completion date and the expiration date if you know i do not know i i can only attest that

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my supervisor did an audit on the application. I believe he determined it was a technical issue

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within Eclipse, that the date that's posted was August 22, 2022. That was not a completion date

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because, again, no inspections were completed. The permit itself was not finalized. That August

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2022 date is actually the expiration date. It's unknown at this time why there is a date of

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february 22nd 2023 listed as the expiration date okay so and again with that permit with the

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plumbing permit again a mechanical commercial hood permit electrical permit with respect to

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all of those permits that had in fact been applied for within the three-year period

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um were any of those permits ever closed out i don't believe so i have the paperwork in front

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of me i can confirm that for the plumbing permit no inspections were scheduled so that one was not

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closed out we've already discussed the fire suppression permit the mechanic mechanical

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commercial kitchen permit i do not have records that it was finalized

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There was an electrical permit application filed, that permit was never approved and issued, so obviously there would be no inspection, no completion of that permit.

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Okay. So, and again, other than the alterations permit, that is the building permit, these other permits don't really impact the expiration date for the underlying zoning permit, correct?

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Okay. So, and again, other than the alternative...

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That is correct per the explicit wording of the code.

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But again, even if they did, they're all too late anyway. They all expired in August at the latest, August of 2022 at the latest.

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That's correct.

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Okay. All right. I have no further questions. Mr. Heartland.

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Yes, please. Mr. Heartland, you had said that even if you take the date of the permit as the beginning of the three-year period, the application for the new building permit was within the fourth year, right?

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In other words, let me rephrase it.

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You would agree that L&I grants extensions for another year to zoning permits, but the L&I only gives the remainder of that calendar year.

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I don't believe he testified to any of that.

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I'm sorry?

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He didn't testify about any extensions or.

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Well, this is Mr. Chairman, this is cross-examination.

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I could have called him as a witness.

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I was relying that he would that I'd be able to.

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your your cross says is limited to our direct but go ahead no no go ahead go ahead go ahead just

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okay proceed do you understand the question mr hartland i think i do if you're also asking if

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the applicant or if there's any record that an extension request was ever placed by the contractor

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the applicant the property owner to l and i then no we have no record i'm not i'm not asking that

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Let me rephrase it. Let me rephrase it. You agree that L&I grants extensions for a fourth year to permit zoning permits, right?

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Yes, it can grant an extension. Yes, up to one year.

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And you did say in an email to Mr. Nevius that you can apply within that fourth year, but you just get the remainder of the fourth year to obtain whatever permits you need, right?

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I think I understand your question.

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I believe my statement to the applicant was that there was a grace period after the three-year mark where they could file for the extension, but any extension would not measure from the time of the request.

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Right.

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It would measure from the time of the expiration.

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Exactly.

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So I think we understand, Charlie, Mr. Hartland.

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And if Mr. Nevius applies for an extension within the fourth year, he would get the remainder of that fourth year, but not a full year for that extension, right?

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If I'm understanding the question correctly, then yes.

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Okay.

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So I'm going to share my screen, Mr. Heartland.

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I just want to clarify a few things.

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So can we agree?

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Can you see the ZBA decision on your screen, Mr. Heartland?

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Yes, I can.

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Okay. Can we agree that the word approval does not appear on that page anywhere?

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Can we agree with that?

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Yes.

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Okay. It says notice a decision in bold at the top, right?

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Yes.

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And then it says here, I'm circling with my mouse, it says this is not a permit, right?

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In bold right here, right?

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Correct.

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All right. And can we agree that the applicant who gets a favorable decision from the zoning board

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has a full year to obtain a permit right it's this bold area i'm referring to this bold section here

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right yes okay i see that all right so with the timeline in this case can we also agree that

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since the department is viewing this zba decision as the start of the three-year period

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where the zoning permit i'll put that up as well the zoning permits now with the date of the

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zoning permit this limits the data zoning permits 823 19 this limits the period to 10 months for

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the applicant to pull permits right now they would be able to pull building permits within

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three years of the zba notice the precision date that right but you can't get right but you can't

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get a zoning permit i mean you can't get building permits without a zoning permit right

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Correct.

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So by the interpretation of the department, with the dates of the permit in this case, this permit's only good for 10 months, right?

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I don't understand why you're saying that the permits have to be obtained.

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permits have to be obtained or well you're you're measuring you're measuring 10 months between the

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Well, you're measuring 10.

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zba notice of decision and a permit issuance you're measuring from right june of 2017 to

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august 2019 i do not understand i do not understand the explanation of only a 10

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10 month window well can you agree can we agree that the expiration of the zoning board what

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you're calling an approval that you're running the three-year period from the date of the ZBA

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decision, which was June of 2017. The applicant obtained a zoning permit on 8-23-19. That leaves

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the person with only 10 months to pull all his building permits, right? No, he would have until

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until June 20th, 2020, to pull those building permits.

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Right. That's 10 months. Right? All right. I'll move on. All right.

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So you rely on the, I'm almost done, Mr. Chairman. You agree that there were permits,

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and I understand, I'm willing to stipulate that the department expired a lot of the building

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permits, but you're willing to agree that a number of building, mechanical, electrical,

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and plumbing permits were pulled within that three-year

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period, even though they're expired. I understand your testimony, they're expired.

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But they were obtained within that three years, right?

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Correct.

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And I think, is it fair to say, can we agree that work

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at least began on those permits, as

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you see from the photos and probably from your own records? Can you agree that work began?

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uh isn't that reflected on your system that the work began you saw the photos in my testimony

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but do you agree that your system at least shows that the work began no there that's where there's

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a conflict between the city's records and the photographs you show you have photographs showing

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that work was done but per l and i's records we have no inspections that ever scheduled and

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completed so l and i has no no record of the work being legally performed or a record of at what

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time any of that work is performed all right i'll re i'll rephrase the question you can agree that

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your records show the permits were obtained within that three-year period for the work yes the

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permits were obtained no further questions mr chairman thank you i have argument and then

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Leonard, do you have anything else?

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No, I don't think so.

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