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Hearing video

ZBA Hearing - October 19, 2021

Philadelphia Zoning Board of Adjustment (ZBA)Oct 19, 20216h 56m

Chair, this is the court reporter.

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May I have one minute of

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a pause in place? I need to change the batteries

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in my machine. Yeah, let us know when you're

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ready. Take your time. Thank you.

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Excuse the interruption.

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Thank you.

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thank you chair thank you next witness and no more hands here thank you um mr wise yes uh briefly

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mr chair um this is an application uh in the refusal that was issued um the original refusal

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application was for, I believe, four properties. A subsequent plan was submitted, stamped, and

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second refusal issued for the two properties that are proposed. But it's important to understand

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that this is one lot, one large lot, fronting on the three streets prominent in the neighborhood.

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fronting on the on the three streets prominent in the neighborhood the refusal

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referenced steep slope because they're piercing a retaining wall it referenced parking which is

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essentially prohibited in the overlay district and it's referenced the multi-family nature here

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in this residential single detached home zone when we talk about variances we all are familiar

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with 14.303.8.E.1 that actually has nine criteria that an applicant must satisfy as its burden

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that the denial of the variance would result in unnecessary hardship and you'll all recall in

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August at the initial hearing in which Mr. Bailey, the developer, stated that the hardship was the

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maintenance of the existing building, a large property fronting on Front Street, and the

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architect testified that a hardship resulted from the unusually large size of this lot.

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These are not hardships considered by the zoning code. Hardships are typically physical

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characteristics of the lot preventing adherence to the code. But hardship's not the only

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criteria that an applicant has to satisfy. But in the absence of a hardship, a variance normally

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would not, cannot be granted. But the 303.8.E.1 goes on to state that if a variance is requested,

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denial, I'm sorry, that the variance must be the minimum variance necessary to afford relief,

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and it must be the least modification possible of the regulation at issue. The regulation is

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that this is an RSD block. These are detached homes, grand in scale, because the dimensional

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I'm sorry, the dimensional requirements and provisions of RSD call for larger lots, 5,000 square feet buildable, minimum buildable lot size, 25-foot front yard, 7-foot on a corner lot of 7-foot side yard, 25-foot rear yards.

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um it's not uh so as you heard earlier the lot itself while being very large the existence of

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this this existing there's there's an existing building on the lot already and the way that

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building sits on the lot doesn't it makes it so that the applicant can't just subdivide and have

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a buildable lot in the back so they would even building one house as as one of the witnesses

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has stated uh the code doesn't provide any uh buildable area so the applicant when he bought

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this uh property recently was aware that there was no buildable expansion provided uh available

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to him without a variance um the application is here before the board today seeking two homes

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down from four homes. When the zoning code under 3038E1 says that a variance must, if there is a

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hardship, the variance must be the minimum and the least modification of the home, well, it's common

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sense. Two homes is not the minimum. There was testimony from the architect that one home would

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require variances also. Of course, because these are grand scale homes that are contemplated in

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this RSD zone. But the applicant could surely apply for a variance, and one ohm would be the

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minimum variance. Two ohms is not the minimum variance. So for that reason also, this variance

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is not, should not be granted. It also goes on to require that the applicant show that the

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variance sought should be in harmony and spirit with the purpose of the zoning code.

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Well, the zoning code seeks grand homes on large plots, not twins.

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It's right in the zoning classification.

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These are detached homes, single freestanding, not attached homes or semi-attached twins.

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So for that reason, also, the applicant is unable to satisfy its burden for this variance.

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um we also haven't seen any uh information photos layouts otherwise of what's going on in the

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existing building on the structure which is normally required by by the zoning board and

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i did want to raise just one issue about the refusal because the refusal does reference

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the existing structure on the property um is in use as a five apartment five family dwelling

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and whenever that was granted, that was provided to include a

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And whenever that was granted, that was provided to include a doctor in residence with his office in the property.

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We heard during the initial testimony that there is no doctor residing there.

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And there was an office that sounded like it needs some repair.

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It's not in service.

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But I am not sure if that was referenced in the initial application or why the non-compliance of the front home is not noted or part of the refusal.

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I would I would have expected that the refusal in understanding that the five units are no longer including the doctor's unit, the doctor's office with a doctor in residence, which was, you know, one of those historical paths to multifamily back in the day when doctors and dentists sort of lived above their offices.

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but we don't know what these units are in the in the um in that front building but we did hear that

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we do know that this uh property is already a five-family dwelling on this lot contemplated

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by the code to be a single family home um so uh with uh with all that um i don't believe the

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applicant has satisfied the burden in the absence of any hardship and putting the hardship issue

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aside, not bringing the minimum lease modification forward in this application. And you heard from

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the representatives of the neighborhood and the community and the zoning committee at the RCO

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as to their observations and feelings and statements on that. And for that reason, the RCO

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opposes it and asks for this application as presented to be denied. And I thank you.

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Thank you. Mr. Malloy? Thank you very much. And let's take the last point first. The office

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remains an office. It's just vacant. There's been no move to make it another residential unit.

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And so it was not discussed in the application.

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It's five residential units, not including the former doctor's office.

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There's no intention to move it at this point to a residential unit, but it remains an office.

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Second, let's put this back in context.

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This is not a large lot with a large house on it in a sprawling neighborhood of similar lots.

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This is a lot that when my client bought it, the same neighbors who came and testified tonight that he didn't cooperate over 11 meetings were the ones who placed it on the historic register right after he bought it.

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That placed extra burdens and extra levels of complexity and levels of work and quality that needed to be done on the exterior of the building.

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He's placed $179,000 of improvements into the building and testified about that during the first hearing.

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The maintenance and upkeep of this building, which everyone acknowledges is a grand historic building, five residential units does not support the upkeep of the building.

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That creates a hardship in the vein of the Hertzberg decisions, and this is not a variance motivated by pure profit.

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Everybody's acknowledged we did not come in here seeking four residential units or three residential units.

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We were whittled down over since 2019 to two residential units in the back.

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The reason that the developer cannot go to one is because one creates an impractical size unit that will not sell in that marketplace.

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Two units is the minimum variance required.

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It's the minimum variances required to create the revenue stream that will be necessary to allow for the upkeep and maintenance of the residential building that's on the property in a way that is respectful of its historic nature and the neighborhood.

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The residents are planned for the rear of the property along DuPont, where there are numerous twins and, as everyone testified, residential styles of various and different types.

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residential styles of various and different types surrounding this property. This property is a white

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elephant given its size. Once you subdivide, as proposed, the houses and the lots in the back,

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the property still remains compliant in its current zoning. So what we're asking for,

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I think, are reasonable variances to allow us to create two residential units, which is far less

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than where we started and where, contrary to what everyone testified, we bent over backwards,

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changing designs, changing roof types, going to historic commission, you know, and dealing with

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the community and changing the design and altering the design right to the end to try to provide them

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with the best development possible.

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The fact of the matter is they don't want any development,

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and that's what's necessary to continue to maintain

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the level of upkeep that's necessary

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to have that historic property.

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So this is a restoration and a maintenance

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and an upkeep issue.

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It's based on requirements that were not in place when the landowner bought the property, and since it's not an effort to create pure profit and is an effort to maintain this structure, we think the variances are reasonable and should be granted to allow a very reasonable development of an otherwise unused portion of the property.

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extremely large property thank you thank you um are there any other witnesses

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no hands chair thank you planning commission

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good morning mr chairman board members david fecto city planning commission

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the comprehensive plan recommends this property for single family residential use

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the applicant's hardship claim is not supported by evidence of unique physical

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circumstances or conditions of the property the applicant already appears to be deriving value from

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their property the need to maintain a building is not a hardship the applicant is the application

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is also not consistent with the central roxborough neighborhood conservation overlay which was created

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in 2015 in a collaborative process with the community therefore we recommend the board

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deny the requested variances. Thank you. Since our vice chair was not available for the first

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hearing, the record will be closed in this case. The vice chair will have an opportunity to

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review the testimony that was given at the first hearing. I believe the last hearing was

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August the 3rd. So the record is closed. The board will be discussing this at next Wednesday's

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executive session thank you all thank you mr chair thank you members all right number two

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on our add-on list mi 2021-000336 4401 ridge avenue sean whalen is the attorney for the

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applicant mr bonnie represents the rco east falls community council which has stated opposition to

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this development this is a resumption hearing uh i know we've had two prior hearings on this

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mr bonnie i believe is uh going to present three remaining witnesses and the board will also hear

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from other members of the public who wish to testify and from the planning commission

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Once we complete that round of witnesses and questions and comments, the record, we will then ask that the attorneys for either party submit written closing statements to the board no later than noon this coming Monday, October 25th.

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Is that clear to Mr. Whalen and Mr. Bonney?

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Yes, it is. Thank you.

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Yes, there's one slight correction.

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Let me do this, Paul, before you begin.

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Let me swear both of you in and then we'll start.

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Mr. Whalen first.

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Mr. Whalen, name and name.

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Name and spell your name.

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Sean, W-H-A-L-E-N, 6 Coulter Avenue, Suite 1000, Ardmore, PA, 19003.

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Where if I'm going to tell the truth, the whole truth, nothing but the truth.

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Yes, I do.

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Thank you.

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Mr. Bonney?

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Yes, my name is Paul Bonney. My address is 325 Chestnut Street, Suite 110919106. I represent East Falls Community Council.

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Yes, my name is Paul Bonney.

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My address is 325 Chestnut Street, Suite 11.

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Bonney is spelled B as in boy, O-N-I. Do you swear or affirm to tell the truth, the whole truth, nothing but the truth?

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I do, and I thank you, Mr. Chair.

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Okay. Who's first? Who's up first here?

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I think I am. I also just wanted to just make a very minor correction. We have four witnesses. We've identified all those names, and one of them is very short.

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so um excuse me this is Sharon and Mr. Bonnie I did advise the um the board of that at executive

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session continuing with you have four witnesses to present you have a number of documents you want to

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identify um that are being included in the record the witnesses include um

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Hillary Langer link I'm sorry I keep getting that wrong it's Hillary Langer an architect who will

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be testifying as to his opinion that the property can be developed without variances. Is that right?

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Yes, and also with least minimum, much more minimum variance.

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Thank you.

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I'm sorry, were you going to list all of the witnesses? Because he was not our first.

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Oh, no, I understand. You did submit the resume for your witness, who is going to testify to environmental issues, to some extent.

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Yes.

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Okay, well, do I have the floor?

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Yes, you do.

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Okay, thank you. I'm going to try and speak really quickly.

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So, you know, just as you know, our overall position is that we are pro-development, but that this project should be smaller.

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And we have evidence of that from various witnesses and including a lot of evidence from documents, as was agreed to at the last hearing.

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And I think, Mr. Chair, you weren't there, but I'm sure you'll review the transcript before voting.

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so thank you for that. It was agreed that I, on behalf of East Falls Community Council,

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would circulate all of our exhibits, which I have done, and so the board solicitor has

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reviewed all the exhibits, I believe, and so I think, and then I was granted the ability to

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walk the board through many of the documents, especially the government-related documents

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and some of the background documents, in order to speed our presentation. So I will not rely

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on the witnesses to say, is this what page six says? Yes. Is this what page seven says? Yes.

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I will just walk the board through those documents on the screen.

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So without further ado, before I call our first witness,

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which is Cynthia Kishenshand, who will testify to some of the environmental aspects here,

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I would like to share my screen and just show the board a few of the documents

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that we've submitted. I'm going to jump in real quick because I think while Mr. Bonney's looking

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for documents, this is a good time to keep this moving. I'm going to object to Ms. Kishinchand,

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I hope I said that correctly, testifying as any kind of an expert or to environmental issues

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as an, quote, environmental witness. She can certainly testify to her own experiences and

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her own personal situation and hardship caused by this development. However, the resume presented

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by Mr. Bonney does not present any basis for Ms. Kissinchand to be presented as a witness

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on environmental issues generally before this board. Has the board had an opportunity to see

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that uh her credentials chair i did email you the resume um and and again it this is a close

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question i think that she does have experience um in dealing with some of these issues and

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addressing some of the issues that she wishes to testify on but as we said at the beginning it

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be limited testimony um she can well we'll let her go forward and and um limit it as necessary

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okay can i make a suggestion that first i have some documents um to present and then we can

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put her uh resume up as as we introduce her personally but

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uh resume up as as we introduce her personally but you know certainly we have um documents here

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from basically the city of philadelphia that um you know no one can argue that those aren't are

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inadmissible so i'd like to sort of set the table for her testimony again i apologize sharon you

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said you you sent me that um yes i said that to all the board members i can re-send it now it's

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That's the entire exhibit packet and it includes the resume.

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Mr. Bonney.

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Should the board please.

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I'm happy to stipulate to many of the documents that Mr. Bonney wants to show their public

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record.

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We already included maps, if not this precise map, additional maps exactly like this are

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already in the record.

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They've already been testified to.

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This board set a one-hour time limit to complete this hearing today.

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this is obviously the third hearing already for this case after two continuances to further meet

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with the community which we did so this matter needs to get completed today and can't be

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unnecessarily delayed by retestifying about matters which have already arisen so we're not

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Correct. Can I continue please in the interest of time?

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Please continue. Okay. Showing on my screen, just to remind everyone what this site is,

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it's this large wooded area in the middle, this green area. And that's where the site is.

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I want to go over the zoning code that protects steep slopes in 14704, section 14704 of the zoning code.

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Could you enlarge that, Paul?

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