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Hearing video

ZBA Hearing - April 10, 2024

Philadelphia Zoning Board of Adjustment (ZBA)Apr 10, 20246h 50m

Mr. DeMarco, could you state your name, please, and spell for the court sonographer?

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certainly richard demarco last name spelled d-e-m-a-r-c-o right do you swear or affirm to

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tell the truth the whole truth nothing but the truth i do uh mr reuter could you please spell

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your name for the court stenographer sure leonard reuter l-e-o-n-a-r-d last name r-e-u-t-e-r

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senior attorney for the city of philadelphia you swear or affirm to tell the truth the whole truth

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nothing but the truth? I do. Mr. DeMarco, I understand you have an appeal against L&I and

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also a variance appeal. Am I correct? Well, I mean, I elected not to formally file an appeal

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against L&I. We did go through the full process. We did meet with the neighbors. We have full

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support from the neighborhood group, so I'm not sure. So, Hillary, we can go right to the variance.

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Am I correct? Well, so let me just clarify, because in the application for appeal, it was

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very clear that there were two grounds being pursued in this case. One, an argument that

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the refusal should not have been issued. And secondly, in the alternative, that there would

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be a variance granted. So if you are waiving the appeal against LNI, then we can move to the

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variance case. Leonard, you wanted to say something? Yeah, sure. I could probably just

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resolve the issue right off the bat. I think the appeal against LNI essentially is a vested

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rights argument that this is a non-conforming

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use. There had been a prior court opinion, a Commonwealth

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court opinion addressing a previous application and

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in that opinion, if I read it correctly, it cites

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the zoning board's prior findings of fact and conclusions of law

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and I believe it appears that the zoning board itself had previously

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determined as a fact that this property

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had been constructed as a two-family structure.

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They didn't address whether it had been continuously used,

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but it clearly is a two-family structure.

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So as far as the appeal against L&I goes,

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when it comes to vested rights or non-conforming use argument,

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I just leave it up, we leave it up to the board

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to determine if there's enough facts there.

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So we're not really opposing their request.

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But my understanding is that they have the support for a variant,

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So obviously the city would have no objection, at least from a legal standpoint, about whichever way you want to go.

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Yeah, I completely agree with what Len just said. That's exactly where we're at. I don't want to bother Len with this. I mean, I can't stipulate to the accuracy of the refusal, though. I do believe it was issued an error.

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um so but but what he just said is exactly where we're at procedurally and you know this board

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this property is it was a duplex always was was never discontinued but i'll do whatever hillary

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wants wants me to do why don't we move right to the variance that's fine that's fine with all

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parties we can go the variance will note for the record that there is an objection to the refusal

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perfect perfect all right thank you thank you all right thanks mr demarco you've already been

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sworn am i correct oh i'm not sure well i'll do it again do you swear or affirm to tell the truth

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told truth nothing but the truth i do could you identify your client your relationship to the

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property yeah the client is an llc chang fang construction the client is uh yan fang lin

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who hopefully is in the Zoom and can will accept my testimony as her own at the end of my

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presentation. And Mr. Hallman has just a few questions and we understand your objection.

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Sure. Good afternoon. I mean, I'm sorry. Good morning, counsel. Do you agree to waive the

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reading of the refusal and stipulate to his accuracy? Yeah, I can waive the reading. I can't

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stipulate to the accuracy. Did you email all of the exhibits and documents as required five days

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in advance to this hearing? Yes, I did. Thank you. Please proceed and share your screen.

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Thank you. Yeah, Mr. Chairman, so hopefully on your screen, you should see that there was an

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issue with the tax balance. Okay, good. That's been resolved. So I'll click off of that. She has

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brought her taxes compliant as far as the real estate taxes. And I'll start with the exhibits.

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so i'll put right on at i'll hit the main argument is so so you could understand why i i i framed the

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understand why I framed the application of appeal as both a request for variance and

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application of appeal as

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an argument against the refusal. It's because the property was always a duplex,

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was constructed as a duplex. This is the actual original plan back from the 1940s to develop the

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entire area. And you can see, I'll zoom in so you can see it says two family there. This is the

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property right here, Mr. Chairman. That says two families there. What happened was this board

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granted a three... We had a contested matter a few years ago, and the original owner who sold

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to this particular client that's before you today actually put units in the basement without a

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permit. And after a process in front of this board, the board granted on a reconsideration

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motion, granted three units, but that was overturned on appeal. So the new owner was

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always expecting to be able to operate the original duplex and actually received rental

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licenses for the two units from L&I. And what happened to her, I'll show you that in a moment.

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Let me zoom back in. As you can see here, two units. She was issued a certificate of rental suitability. She was issued a rental license. Here it is here for two units. This Yang Feng Lin, that is Yang Feng Investments, my client. You see she got a rental license for two units.

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But for some odd reason, during a process, and this is her floor plan, so the problem that really causes this is that the prior client walled off the garage, so she did receive a violation for not having the garage.

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She will return it to that state, but she can't get a building permit to do that until the zoning is straightened out.

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She got refused for the zoning because of the current RSA 5 zoning classification.

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This is the floor plan. There's a unit on the first floor, a unit on the second floor, and that's it.

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And they are occupied because, like I said, she was like I just showed you, she got rental licenses for the two units.

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So they are legal, always have been, and have not been discontinued.

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Just show you a quick bunch of photos.

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This is the property here on the right.

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I guess, you know, if I were, this is the property here.

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As you can see, it's a double lot.

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It's a large lot, well able to accommodate the duplexes as they were constructed back in the 40s.

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Forgive me, my scanner's been on the fritz, but that's the posting.

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so my computer's going a little slow here and this is the refusal as you can see there's no

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notation for the prior case here they're usually the lni puts notices to the board here

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it really should have said um there was a prior zoning board case where a triplex triplex was

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granted and then it um where it should have revert that was overturned on appeal as i said

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which we've stipulated to, I agree with Leonard's summary of it. The board actually in the prior

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matter, and let me go to that real quick, and then I can wrap up. The board in the prior manner

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actually found that it was a legal duplex to begin with. Now, here's the decision of the board back

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in, here we go. This was the calendar number here, 36722. And you could see I was involved

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With that case, the applicant went for four units and eventually got three.

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It was initially denied, as you can say, but then there was a reconsideration, then three

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units was given.

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All right.

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So the neighbors, we met with them.

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They just wanted to go back to the duplex.

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They're well aware that it was always a duplex.

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They just want the violations to comply.

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They want the garage put back, which my client intends to do, but can't get the building permit until we get the zoning.

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And because of the issuance of the refusal, we have to go through the process.

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I'll show you the neighborhood's letter.

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It was very nice.

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We had a nice meeting with some nice folks in that area.

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They just, like I said, they want the violations complied.

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They want the garage put back.

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And that's fine.

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The applicant agrees with that. Obviously, there's a clear hardship because even if you were to disagree that the property is a legal duplex, there's clearly a hardship because the three units was legal when it was granted by.

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There's clearly a hardship because the three units was legal when it was granted by this board, and the two units prior to that were legal, and the zoning classification is now RSA-5.

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It's a classic non-conforming use to convert the property to a single-family use to comply with the code would result in the evictions of the current tenants.

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The property would have to be completely reworked, but we agreed with the neighbors, just storage in the basement and the garage and utilities.

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And they were fine with that. So we had really an overwhelming vote, 22 to 1 in favor. So with that, I would ask Yang Lin to raise her hand virtually so she could accept my presentation as her testimony.

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So, Yan, now's the time for you to click raise hand.

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I see no hands.

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Mr. DeMarco, you're an officer of the court

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Your testimony is fine

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Questions from the board

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No, Mr. Chairman

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No, Chair

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Questions or comments from our attorney, Hillary Emerson

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Not at this time, Mr. Chair

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Questions or comments from the virtual audience

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We have a Zoom user with their hand raised

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They have been allowed to speak

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That's probably her

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Good morning, could you please state your name and spell for the court stenographer

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y-a-n f-e-n-g last name l-i-n do you swear or firm to tell the truth the whole truth

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nothing but the truth yes i do uh lynn how are you thank you lynn uh did you hear

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my statements that i just made to the zoning board yes do you agree that they are true and

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accurate. And can you adopt them as your testimony today?

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Yes. That's all, Mr. Chairman. Thank you. Thank you. Is there

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anyone else in the virtual audience?

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Their hand just went down. Madeline has been allowed to

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speak.

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All right. Could you please state your name and spell for the

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court stenographer?

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Madeline, please unmute yourself.

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Oh, I'm not speaking on this one. I'm sorry.

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Okay, thank you.

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Planning Commission.

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Thank you, Chair Bergman, and good morning, David Fecto.

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With the City Planning Commission, Chairman and Board Members,

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the comprehensive plan recommends no change to the residential single-family zoning at this location.

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This property has a documented history as two dwelling units.

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The City Planning Commission recommends the Board grant a proposed use variance for two dwelling units.

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Thank you.

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MI 2023-006-567-1201 Fanshawe Street, I vote yes, maximum two units.

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Thomas Holloman, my vote is yes, with proviso.

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James Snell, my vote is yes, with proviso.

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Thank you, counsel.

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Thank you. Have a good afternoon, everyone.

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Thank you.

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Number three, MI 2023-004-927-1347 Master Street.

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Joshua Horvitz is the attorney.

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Letter of support from South Kensington Community Partners.

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Joshua is coming in as panelists.

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Good morning, sir.

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Could you please state your name and spell for the court stenographer?

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Good morning.

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I am Joshua Horvitz, J-O-S-H-U-A-H-O-R, V as in Victor, I-T-Z.

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Right.

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Do you swear or affirm to tell the truth, the whole truth and nothing but the truth?

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I do.

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Could you identify your client and relationship to this property?

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Sure.

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My clients, Benjamin Eisenberg and Jacqueline DiPietro, husband and wife who are the owners

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of the property, should be in attendance.

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All right.

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And Mr. Holloman has just a few questions for you, sir.

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Good afternoon.

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I'm sorry.

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Good morning, counsel.

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Do you agree to waive the reading of the refusal and stipulate to his accuracy?

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I do.

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Did you email all the exhibits and documents as required five days in advance to this hearing?

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I did.

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Thank you.

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Please proceed and share your screen.

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Will do.

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

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Again, I'm Josh Horvitz of Armstrong Teasdale.

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On behalf of the applicants, the property owners, my clients,

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Benjamin Eisenberg and Jacqueline DiPietro purchased this house from a developer who had rehabilitated the house.

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There was an outstanding building permit issued by the city in 2021, which I will show you, for the work that they did subsequent to their closing on the house where there was an escrow because the permit hadn't been closed out yet.

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where there was an escrow because the permit hadn't been closed out yet.

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and

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And subsequent to that, the developer walked away from the escrow and they learned that

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the city permit was issued in error and that the city wouldn't agree to close out the building

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permit. Now, the only refusal that was issued was for the third floor rear portion of the addition.

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So there's a roof deck that was put on.

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And then you can see on the elevation here, there was the house is already two stories

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and they added a third story in the rear.

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There was already a third story in the front.

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And it's just the last seven feet in the rear that would be a setback only at the third

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floor level that there was a refusal for.

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We met with the community group.

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There were five votes in favor and none against.

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There are other properties, if you'll see, nearby that are taller.

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So this one has a roof deck and it's three stories, but you can see off the side of the

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roof deck, two houses down, there's a house that's even taller, that's four stories high.

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And it was a nicely done renovation.

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You know, they relied on their experts, their realtors, who told them that, you know, it's

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just a matter of this permit getting closed out.

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This is the pictures from the rear of the property.

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Now, behind the property is a parking lot of a condominium, so they're not taking up anybody's light or air.

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It's just a parking lot back there.

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You can see from an overhead here that it's just a parking lot back there.

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