civus
Hearing video

ZBA Hearing - June 8, 2022

Philadelphia Zoning Board of Adjustment (ZBA)Jun 8, 20224h 3m

For the benefit of our court stenographer, we ask attorneys and witnesses to identify themselves before testifying.

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If you are participating by phone, if you wish to testify, press star 9 to raise your hand and star 6 to unmute.

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to an appearance statement, call 267-270-5548. Leave your email and the address of the property

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in question. And lastly, the question answer box is not for testifying or comments. Any comments

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should be directed to Tanya Sunkett, our executive director. So let's look at the

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continuances that we have for this afternoon's meeting. Number four, MI 2021-002-585-250

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Byberry Road, Continuance, Attorney Moving Party. Number five, MI 2021-005-416-3847

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germantown avenue and number six is a withdrawal mi 2021-005-410-934-44 east

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pashunk avenue is there anyone in the virtual audience has any comments relative to those three

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cases. I do not see any hands, Mr. Chair. We're going to go to the regular list. MI 2021-005-414-100599,

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Sandy Meyer Lane. Sean Ward is the attorney. No letter from the RCO at this point. Letter of

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Non-opposition from Councilman O'Neill.

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When Mr. Ward has been promoted to panelists, excuse me.

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Hi, Mr. Ward, you've already been sworn in.

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Good afternoon, Mr. Chairman, members of the board,

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Sean Ward on behalf of Sarah Valley Construction applicant

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and owner of the property at 10-059-St. Myer Lane.

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Thank you. Our Vice Chair has a few questions.

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Thank you.

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Our vice chair has a few questions.

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I missed your award.

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Hi, Mr. Board. Hi. Do you agree to waive the reading of refusal and stipulate to its accuracy?

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Yes, I do.

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Have you emailed the exhibit packet with proof of ownership, tax compliance, refusal, or referral,

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photos under plans of the property five days in advance of this hearing,

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and have you met with the RCO, and do you have a letter?

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Yes, to all the above.

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Okay, great. You may proceed and share your screen.

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Awesome. Mr. Chairman, I will try and be very brief on this. As I've indicated, I represent

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Sarah Valley Construction. They are the owners, operators, and occupiers of, in addition,

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not just 10059 Sandmeyer Lane, but the adjoining properties. This is located in Sandmeyer Lane

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Industrial Park in the far northeast section of the city. We filed an application at A1 as the

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notice of refusal. The application was for the documentation of an existing use for vehicle

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repair and fuel dispensing stations, accessory to an existing contractor's equipment and material

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storage yard and office. The application was refused because vehicle fueling stations,

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commercial vehicle repair, and personal vehicle repair is prohibited in the far northeast overlay

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zoning district. Accordingly, we see use variances today for various reasons. A2 is the ZBA

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application of appeal. A3 is the project information form. A4 is proof of ownership.

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A5 is proof of tax clearance. A6 is a site location map. A7 is a zoning site plan. A8 are

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photographs. A9 is the RCO meeting notice and certificate of mailing. A10 is a RCO letter

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from Southern Pacific in apparent opposition to this application. A11 is the district council

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person's letter. A-12 relevant zoning and permit history. I would point out that

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in 1995, after purchasing the property, Sarah Valley contractors obtained a zoning permit

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for a relocation of lot lines to create one lot from two lots for use as contractor storage with

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accessory office and parking. Thereafter, in 2005, an operations permit was issued by the

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Philadelphia, and approved by the state EPA for three underground storage tanks and dispensers.

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A13 is the zoning map. A14 is the aerial photograph. So without further delay,

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we have the notice of refusal. Again, the three refusals were cited.

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we have our application of appeal our project information form a copy of the deed the property

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was purchased from the philadelphia authority for industrial development it is owned industrial

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and used for industrial purposes we also have the tax clearance proof of tax clearance from

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the revenue department indicating that taxes through 2022 are paid a google map just shows

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you quickly where the property is located. It's off of Redline Road. Sandmeyer Lane comes in,

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and we are in this corner around the bend of Sandmeyer Lane. The Cerro Valley family owns

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one, two, three parcels in this corner. Again, there was a lot line relocation,

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which consolidated 10059 and 10057. Here is another zoning site map. I outlined in red

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the approximate location of the fuel dispensing pumps. It does depict the large garage that is

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used for the storage and maintenance of construction equipment. This would be the

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Google aerial photo. Again, on the bend of Sandmeyer Lane, you can see Sour Valley

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construction has been here. They have their warehouse, garage, offices, accessory parking

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for their employees, and their yard all on the site. This photo depicts in the red encircled

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area, the location of the pumps. A Google measurement would indicate that these pumps

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are at least 285 feet from the property line to the adjoining residential district, so

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to the adjoining residential district. So they are far and not proximate to the residential uses.

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they are far and not proximal.

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Copy of our zoning notice posted on the fence. This is a shot from the front entrance,

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the front of the building. This photo depicts the offices are to the left and in the garage areas to

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the right. Again, a further photograph of the existing garages. You may recognize Sur Valley's

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trucks. They have that distinctive brown and white color tones. Here's a couple pictures of

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the inside of the garage. As you can see, meticulous. You know, they work on their own

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equipment commercial retail repair facility limited to work and storage and work on their

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own vehicles and storage of their own repair pieces and equipment here's another you know

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road construction equipment piece here you have a photograph of some dispenser pumps

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two of which are diesel, one of which is gasoline.

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Here's two more.

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Just to back up, there is a fire suppression system installed.

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It's been there since they were installed back in 2005.

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And again, here is another photograph.

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You can see in the distance some residential properties.

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Again, the closest being 285 feet in a direct line.

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Here is a copy of the RCO meeting notice that was sent out to the neighbors.

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It included a copy of the refusal.

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It included a copy from the CBA appeals calendar as to the date, time, and location of the hearing.

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Also include a copy of the affected addresses.

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Our certificate of bulk mailing that was mailed on April 21st in time for the meeting.

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Here is the 1995 permit for contractor storage offices.

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And then again, in 1995, they did a second floor mezzanine for the offices.

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Here is the Certificate of Occupancy issued back in 1995 for the business offices for the contractors' storage.

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And then most specifically, this is the operations permit issued in 2005.

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And you can see it's for the installation of three underground storage tanks, USTs, and dispensers, and there are three tanks, 12,000 gallons each.

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Okay.

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Part of that permit included a site plan showing the aforementioned location of the dispenser units, which I highlighted in yellow, as well as the gas tanks.

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For reference purposes, you'd be coming in from the bend of Sandmeyer Lane from the bottom right here and then turning into where the pumps are located.

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We also have the DEP approval letter.

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Again, here is the zoning map showing that it's located in the industrial district.

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The three red dots signifying the three properties owned by Sarah Valley.

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through their, you know, entities. We do acknowledge that it's adjacent to a residential

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housing development. But again, it's been there operating since 1995. And specifically, the pumps

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and underground storage tanks have been operating there since 2005. So for the last 17 years,

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they have been operating the repair maintenance of their own vehicles and the fueling of their

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own vehicles. Not to belabor the point, I would just point out that the Foreign Office overlay

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was first adopted in 2015, which prohibited vehicle repair maintenance and fueling stations

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in I-2. Thereafter was amended in June of 2021 that where those uses, if permitted by special

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exception, would require a variance. So the vehicle repair and fueling stations are permitted.

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I would submit that they're permitted accessory uses pursuant to the old code, but the FNE overlay

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pursuant to the old code. But the FNE overlay requires that we get variances.

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So with regard to the fueling station, it's limited to company vehicles only.

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There is no retail sales. It was installed by a duly issued operations permit in 2005.

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They've been operating there for 17 years without incident, using the tanks, the dispensing,

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and the vehicle repair. It does include three underground fuel tanks, five fuel pumps. It's

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located near the gated entrance of St. Meyer Lane. It's 285 feet from the nearest residential

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property line and actually 315 feet from the nearest residential dwelling if you go to the

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wall of the dwelling. And with regard to the vehicle repair, it's limited to company-owned

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vehicles only. There's no retail vehicle repair here. So there is a 10,000 plus or minus square

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foot maintenance and storage garage, which is used to do the repairs on their construction

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equipment and vehicles and their fleet trucks. Now, with regard to the grant of the variance,

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obviously, we're here for a variance request. So we could proceed under a standard variance request,

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which the board's familiar with. But I would also point out there's two other doctrines. You've got

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the variance by estoppel doctrine, where the evidence shows that after a long period, which

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the city knew or should have known about a violation and failed to enforce the law,

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Sower Valley acted in good faith and innocently relied on the validity of the use due to the

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permit that was issued in 2005. Sower Valley also made substantial expenditures in reliance

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upon a belief that the use was permitted. Denial of the variance would obviously impose an

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unnecessary hardship. And then also with the vested rights doctrine, under that doctrine,

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we have to show that due diligence was used in attempting to comply with the law. Obviously,

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we did. Back in 2005, the far northeast overlay did not exist. These uses would have been

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permitted as accessory uses to the contractor storage. They used good faith throughout the

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proceedings. They did expend substantial funds, which at this point would be unrecoverable,

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and the expiration without appeal of the period during which any appeal could have been taken

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from the issuance of the permit, and that the insufficiency of the evidence to prove that the

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individual property rights or public health, safety, or welfare would be adversely affected

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by the use permit. So Councilman O'Neill, who was at the earlier hearings, I don't know if he's on

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this one, has no objection to the grant of the variance. I think he fully understands that this

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predates the foreign northeast overlay. He's well aware of the Sur Valley Company and that they've

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been operating there since 1995. However, the Summer and Civic Association, in a letter penned

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by their chairman does indicate that they're opposed to it.

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However, they do acknowledge that five fuel pumps

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with associated tanks on the property

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are used by the applicant accessory to the storage yard.

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And to fuel its vehicles, the property also

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includes the building with garages, et cetera, et cetera.

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If the board really wants me to go into further detail,

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I can, but I think the board at this point gets the nature of the application and that

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these uses were instituted legally back in the day, but according to the new overlay and a new

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inspector that went out, discovered that there was no zoning permit for the repair or fuel

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dispensing. So with that, I do have Andrew DiGiovanni on the call. Andrew, if you could

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raise your hand and he'd be permitted to speak. He can verify and adopt. Andrew, could you state

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your name, please, and spelled for the court stenographer? Yes, sir. Andrew Bongiovanni. That's

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A-N-D-R-E-W, B as in boy, O-N-G-I-O, B as in Victor, A-N-I.

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You swear a firm to tell the truth, the whole truth, nothing but the truth?

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I do.

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Proceed.

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Andrew, you are in-house counsel for South Valley Contractors, correct?

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Yes.

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And you are well familiar with this application as I have worked with you day in and day out

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with the filing, the appeal, et cetera?

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Yeah.

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and you attended the Somerton Civic Association meeting with me as well?

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And you attended the Somerton Civic Association meeting with me as well?

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I did.

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And you've heard my representations to the board?

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Yes, I did.

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Are they true and correct to the best of your knowledge, information, and belief?

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And you adopt them as your own testimony?

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I do.

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Thank you very much.

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Questions from the board?

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No, Mr. Chairman.

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No, Mr. Chairman.

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Questions or comments from the virtual audience?

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Mr. Chair, I have Councilman Brian O'Neill with his hand raised.

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I will allow him to speak at this time.

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Mr. O'Neill?

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Councilman, you've already been sworn in.

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You can testify.

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Okay.

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Thank you, Mr. Chairman.

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I totally support this application.

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I believe it is legal.

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It was it preexisted, it preexisted or preceded existed prior to the my overlay.

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And if this were coming up for a variance as it is, but if if it were legitimately coming up, because I think it's it's not necessary, I would fully support it.

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So I can't say enough about Cerevalli company.

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They do everything first class.

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They're a total union company doing major public and private works.

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And I'm just glad to have them in the city and also in my district.

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Can't speak any more highly of them.

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And they follow all the rules.

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And, you know, everything they do is first rate.

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And I'm glad to support it.

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And with with if it needed legislation, I would introduce that.

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But I think I think we're good. Thank you.

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We appreciate your time. Any any other comments?

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Thank you, Brian. Thank you. Any other comments from the virtual audience?

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No, no further hands, Mr. Chair. OK, Planning Commission.

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This is Ron Bednar, City Planning. Property is indicated for industrial use on the city plan.

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the applicant's hardship is not supported with evidence of unique physical circumstances or

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conditions of the property that would prevent it from being used conformity with the code.

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The proposed use is expressly prohibited in the adopted far northeast district overlay. Therefore,

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we recommend the quest for variance not be granted. Thank you. MI 2021-005-414-10-0599,

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Sandy Meyer Lane, I vote yes. Carol Tenere, my vote is yes. Thomas Holloman, my vote is no.

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