Right. Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?
I do. So here's the testimony and evidence from the 2021 hearings before the zoning board in this
matter are incorporated into the record of this hearing. The scope of this hearing is limited to
discussion of supplemental evidence of the applicant's claim of unnecessary hardship,
as well as the requested variances are the minimum necessary to afford relief. And the way
Hillary has structured it for us today is the applicant will present first,
the appellant then presents public testimony, planning commission, and then we're going to hold
The appellant then presents public testimony, planning commission, and then we're going to hold the vote.
So, Vern, I believe you're first.
Mr. Chair, this is Hillary.
I just wanted to make a quick comment on the record.
In reviewing the refusal, there were three use refusals listed, one for multifamily, one for vacant commercial space, and one for multiple uses on a lot.
The board can only consider the multifamily use. The board cannot grant variances for vacant commercial space. It either has to be a specific use or use within a certain zoning district, because that is not the case here.
the board can only consider the first the first variance and separate variants would need to be
sought for commercial use if the applicant would like to do that i need clarity on that please
we so we're here today we applied initially just to legalize what's there uh you know a
vacant commercial space on the first floor and initially for a five-family dwelling again all
that was there we reduced the number of units based on the communication with the community
but the commercial space still exists and it was granted well so the vacant you can have
the vacant space there but if you would like to have a specific commercial use in there you will
need a separate variance for that the the board cannot grant a variance for vacant commercial
space and then any commercial use go in there it cannot do that i understand that um yes
but why was it granted in 2021 then were there different rules then no this is something that
we've had to clarify over the past year because it's become an issue and now and I has a written
policy on how to handle this now and the written policy is that it needs to either list the
refusal has to list a specific use or it has to list a zoning district and that it can uses can
be approved based on that zoning district right this district is residential right well you could
say, for example, any uses within CMX1, CMX3, something like that. That can be done.
Well, we would be seeking something that would fall under CMX1.
Okay. Well, then we can, if you would like to put that on the table before the board,
we could do that. And if the board was inclined to grant, that could be included as a proviso.
Okay, thank you. Thank you for the clarity. Just for a matter of disposition, the history, Mr. Chair, the application initially, you know, several years ago was for five family dwelling with the first floor commercial, and at that time, consistent with CMX1 use.
That's what it's always been.
After an extensive process with the immediate neighbors and the RCO, we reduced the requested number of dwelling units to three.
One per floor on the second and third floor and a unit in the first floor rear that has a separate entrance and the existing commercial first floor front.
The zoning board granted that appeal.
they did it in executive session so they the board never really clarified a number one how
many units whether it be the five units with the commercial space or the three units with
commercial space that was one of the reasons why the court of common pleas remanded the matter
back before this board today in addition to flesh out some of the hardship argument so with that
Now, we present this case again in remand, asking for, again, the revised three-family dwelling with the existing first floor front commercial space.
Based on the new rules and regulations that have kicked in that we've all just learned about through Attorney Emerson's testimony,
that would be commercial space consistent with CMX1, which is what historically had been there
for the last five or six decades. The question here is, is there a unique physical condition
to the property that makes using it in a compliant manner impracticable? And the clear answer to
that, no one even disagrees with this on any side, is yes. The first floor space is physically
divided with a load-bearing partition, two sets of stairs that make using the entire first floor for
Two sets of stairs that make using the entire first floor for either all commercial or all residential.
Not only physically awkward, but you're going to hear testimony that it's unmarketable and impracticable.
There's a separate entrance that exists that allows access to the first floor rear apartment.
And the building facade is a vintage 1950s era aluminum commercial front.
Now, turning the entire first floor into a living unit will force the owner to destroy the aluminum front, compromise the integrity of the vintage facade.
And here is the property in question.
Property in question is literally surrounded on all sides from corner to corner and across the street.
On this side of the street, all multifamilies.
Literally, there's not one single family residence on the block on this side of the street.
And there's also commercial uses, commercial parking lot, a car wash, and a funeral parlor across the street.
So just so you understand, this whole row of homes on Broad Street, feet away from the orange line, the subway, is nothing but multifamily.
As you can see here, this was, for the last 60 years, dry cleaner, first floor front.
Here's the separate entrance that leads to the rear apartment, and then the stairs lead to the apartments above.
I have pages 33 through 34, 5, 6, 7, 8, 9, and page 40 of this exhibit that shows the photos
of the unique physical condition. This is the storefront.
Here is the where what there were stairs here. Now there's a plank. Here's the side entrance
stair. There's additional stairs. This is in the first floor. As you can see, here's
the first floor as you walk into the first floor through the aluminum front. Here's the
load-bearing wall that separates the store from the rest of the property, which was in fact an
apartment. It is also divided by two flights of stairs. You're going to hear testimony that
connecting the front store to the apartment in the rear is just impracticable and physically
impossible without you know a complete major demo there's the side door as well here's the
commercial space across the street and i have additional photos in there as well that i move
into evidence of just you know one multi-family dwelling after another a four-family dwelling a
three-family dwelling here's our property with five doorbells oh here's another property at
16 with four doorbells, 18 with five doorbells. So as you can see, it's a long history on the
block itself of multifamily use. That's all photo evidence of the physical conditions
that make single-use first floor virtually impossible or within reason. The load-bearing
wall, the stairs, and the separate entrance access to the rear unit just to make it unmarketable
and awkward. With that, I want to call for testimony architect and designer Ian Toner.
Could you please state your name and spell for the court reporter?
hello hi could you state your name please and spell for the court reporter
sure ian toner toner architects um it's i-a-n-t-o-n-e-r right do you swear or affirm
to tell the truth the whole truth and nothing but the truth yes proceed counsel thank you
Mr. Toner, you are not the architect on this project, are you?
You are in no way connected to this project as it relates to the zoning, the certificate of occupancy, or any other development.
Is that correct?
Yes, that's correct.
And you are an architect?
How many years have you been practicing?
In Philadelphia, for 17 years.
Okay. Can you please expand on your, you know, your, uh, your certifications with the board?
Can you please expand on your certifications with the board?
Sure. Um, licensed in Pennsylvania and, uh, we do, um, a lot of mixed use renovation work in the city, probably apply for roughly a hundred permits a year.
Okay. Did you, hold on. I can stipulate to Mr. Toner's credentials as an architect. That's not going to be a problem.
I'm just curious as to why he's being called if he's not the architect on the project.
I'd certainly stipulate to Mr. Toner's credentials.
I know him and I've worked with him before, so I know him to be an architect.
I'm confused as to why he's testifying if he's not the architect on the project.
Understood. I'll be happy to explain, Mr. Chair.
Mr. Ian is testifying as an expert.
He toured the property. He reviewed the first floor.
and he is offering his expert opinion on what can and cannot be done under practical conditions on
the first floor as an architect. I allow the test of it. That's fine. Yeah, that's fine.
Thank you for the clarification. No problem. Mr. Toner, you toured this first floor of the
property? Yes. Both the front commercial space and the rear apartment. Is that right? Yes,
that's correct okay and you're you are under uh you are on notice that the rco uh would like us
to use the first floor for 100 use uh either 100 commercial or 100 residential is that right
yes that's correct okay and please explain based on your review of the property
your survey of the of the interior or um why that's uh not something that can be done
Sure. So the total area of the first floor is 923 square feet.
That's enormous for a one-bedroom apartment.
And in the way that the stairs and the floor levels are configured, having more than one bedroom in this apartment would be very awkward and difficult to achieve.
There's a significant floor level change between the front space, which wasn't designed and intended to be commercial.
It's about a little over two feet, maybe two and a half feet between the two floors.
So. And the entrance to the unit is either the door in the front, which was the entrance to the commercial space or the this door in the rear behind the stairs down a narrow hallway.
there's really not enough room to reconfigure this to be a reasonable two-unit apartment.
As commercial space, the grade change inside means that it's really not practical to try to get an accessible space,
which would be required by the code if the space were fully upgraded, which it needs to be.
So you're left with a space that it's really meant to be two separate spaces.
It was designed to be two separate spaces. It doesn't really allow a good connection between them to make one tenant use, whether commercial or residential, reasonable to achieve.
And in your expert opinion, would our present proposal, first floor commercial under CMX use and first floor rear, a one bedroom apartment with a two family dwelling above, would that make the most practical sense given the unique physical conditions of the property?
Thank you, Mr. Chair. The second question, is the requested relief the minimum necessary to afford relief?
The case law here happens to be crystal clear. We don't have to expend more funds to bring a non-conforming use into a lesser non-conforming use under the Marshall Court.
It is by its very nature the minimum variance required to afford relief because it recognizes the status quo.
The Pennsylvania courts have never required the demolition, and that includes a significant interior demo of a pre-existing non-conforming structure to bring a property into compliance with the code.
Nor have they required extensive reconstruction therein to obtain compliance.
The case states, quote, a zoning board is not so circumscribed as to require a property owner to reconstruct the building to a conforming use, regardless of the financial burden that would be incident thereto.
That's Marshall versus the city of Philadelphia, 97, A3D, 323 to 330, Pennsylvania, 2014.
pennsylvania 2014 in fact to the contrary the reason is this a question no this is my this is
In fact, to the contrary, the reason...
my this is my my argument for the all right you can do whatever you want uh but we're here for
two reasons to establish the physical condition being a hardship and whether or not it's the
minimum required and i'm explaining to the court that uh why it is in fact the minimum required
I know, but I get it. So let me know an objection. I have the right to cross with Mr. Toner. I'm happy to let Vern have argument.
You can cross Mr. Toner when. Yeah. OK. Yeah. I appreciate it.
No problem. I mean, that's why he's there. I'm just wrapping up. I'm just wrapping up.
Oh, excuse me. Vern, are you are you done with your directive, Mr. Toner?
All right.
Well, then we'll have Mr. DeMarco cross, and then you can go ahead and move to your closing.
Fair enough.
Thank you.
Mr. DeMarco.
Thank you, Mr. Chairman.
Mr. Turner, good morning.
So you did not tour the second and the third floors of the property?
No, I did not.
So you're not familiar with the entirety of this property, just the first floor, correct?
Correct. That's correct. All right. And you're making no opinion whatsoever about whether the
upper floors could be used as either multifamily or single family, correct? Correct. Okay. And I
assume you're not aware of any attempts to market the property for a single family use. Is that
correct? No, that's not something I looked into. All right. So as an architect, when you have a
property like this, it certainly is physically possible. And I'm not saying practical, but
certainly physically possible to alter this property to be a single family home. Isn't that
correct yes okay so while it would while there's renovations necessary the property can be
altered physically to be a single family property correct yes all right um thank you
and when you toured the first floor of this property isn't it wasn't it obvious to you that
the property had undergone severe neglect and vacancy. Would you agree with that? Yes.
All right. And the lot itself is rectangular. It's a row home structure, is it not?
Yes, it is. All right. Now, as far as the layout of the first floor,
um there's nothing to stop so i believe your testament was that the property the first floor
had a separation between the commercial space and the rear uh what appeared to be residential
space is that a fair statement yes all right so isn't it true mr toner that nothing would stop
the rear portion of that property to be incorporated into a single
family property. Is that correct? You were breaking up there a little bit.
Can you repeat that question for me? Sorry. Happy to. Can you hear me okay, Mr. Turner?
Yes. Oh, good. So my question was, the rear portion of the first floor,
isn't it true that that portion can be incorporated into the upper floors
with a certain amount of work? Sure. All right. And isn't it also true that
since the property is in poor, can we agree that the property is in poor condition?
Yes. All right. Isn't it true that with the property that's in poor condition,
whether you renovate the property for what appears to be the existing use or for a single
family home, a certain amount of work is going to be required due to its condition. Is that a fair
statement? Yes. I think that's it, Mr. Chairman. Let me just check my notes.
and you're certainly not making any testimony
the um how many units would be necessary in the property i didn't hear that is that correct
that's correct
mr chairman i have no further questions thank you mr toner just follow up mr chair
mr toner just follow up mr chair okay thank you mr toner uh you you testified you hadn't
visited the second or third floor is that right yes so you don't know the condition of either the
second or third for the property is that correct uh that's correct only from the photos that i've
seen but i wasn't able to visit it in person okay and you had did review the history of this property
prior to testifying today. Is that right? Yes. And in your review, is it not true that the 50
to 60 years, the last 50 or 60 years, this property has always been consistently multifamily
dwelling? Yes. The earliest record I saw was 1939. 1939. Multifamily. Is that right? Yes.
With commercial space in the front, right?
Very good.
And talking hypothetically, as Mr. DeMarco did with you, I guess with any of, so long as resources are unlimited, anything is physically possible.
Is that correct?
I have nothing further Mr. Chair with Mr. Toner I just wanted to wrap up my
I had one one redirect from based on the latest all right thank you
Mr. Toner you make no opinion as to what is the proper use of the entire property correct