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Hearing video

ZBA Hearing - January 18, 2022

Philadelphia Zoning Board of Adjustment (ZBA)Jan 18, 20223h 23m

one zoning district, shall apply to the entire lot if the provisions of both of the following

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.1 and .2 sections are met. The zoning code uses the word and, it doesn't say or, it uses the word

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end, A and D, in these provisions, so both must be true. If one or the other provision is not true,

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then the provisions on a single lot cannot be applied to the entire parcel by L&I. We are not

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We are not here to look at what the drafters may have intended behind this provision, but

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here to look at

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what the provision as drafted shows.

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So the first point one says that the zoning district must cover at least 75% of the parcel.

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Neither of the zoning districts covers 75% of the parcel.

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The argument could be made that at that point, we actually can't go in the direction that L&I seeks, the zoning unit seeks us to go.

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This is the simple issue that other parties have confused.

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The zoning unit of L&I has in this case mistakenly attempted to apply a single restrictive zoning district to the entire lot when both conditions of 14107-2A are not met.

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Neither district covers at least 75% of the parcel. They are both about 50%.

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Let's go to provision A.2, which says the conditions of B below do not apply.

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Well, actually, B does apply to here in that we have a minimum lot area.

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And so you can't look at either of the provisions independently.

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It would contradict the first.

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What does the provision of 107.2B state?

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if any zoning district covers a contiguous area on the lot that is greater than or equal to either

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of the following, the most restrictive provisions of all zoning districts that have a contiguous

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area that covers at least 10% of the total lot area shall apply. And I beg your pardon for getting

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into this legal minutia, but that's what this case is about. The minimum lot area in RM4 is

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2,500 square feet. Both of the parcels happen to be more than 2,500 square feet. Based on point two,

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where there isn't a minimum lot area, as in CMX 4, both of the lot areas are greater than 1,600

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square feet. This applies. We're well over 1,600 square feet. Where there is a situation where

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provision A and provision B end up not being applicable. And that's my contention here,

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that you can't read provision B independently of provision A. It would contradict provision A,

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which says you cannot go with the one-lot treatment. And where that occurs, we have to

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go to provision D highlighted at the bottom. I'm skipping over C, which concerns overlays which

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are not applicable. When you go to provision D, the city planning commission is tasked with

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choosing the district. And to do so, look at the highlighted language based on what best

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accomplishes the goals for the immediate area in the comprehensive plan. Quite clear by looking at

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the zoning map and quite clear by looking at the vision for the neighborhood, that it

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is CMX4.

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The provisions of section B, again, where I have the cursor, alone cannot apply in this

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case because to read the section independently would contradict provision A. If A and B were

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meant to be read separately, a code amendment would be required. If one or the other condition

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in provision A is not true, going back to the 75% and the conditions of B not applying,

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we're less than 75% and we have a situation where a condition of B applies, the single lot

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treatment cannot be applied to the entire parcel. A and B are linked. What L&I's apparent

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interpretation would require is language along the lines of the following, which is my language.

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I think it's where Alan and I is trying to go in this misinterpretation. It would be something like

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the provisions of a single zoning district shall apply to the entire lot where that district

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covers 75% of the parcel, or the provisions of B are applicable, in which case the most

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restrictive district shall control. That is not what this language says. Let's move to what's

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called the L&I change mark notes. And these change mark notes, if the board is not familiar

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with them, are the plans as submitted to L&I go through the Eclipse system, and then the L&I

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go through the Eclipse system, and then the LNI examiners enter change mark notes, which go back

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examiners.

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to the applicant for further revisions, etc. I'm going to draw your attention, if I may,

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to the section on the right here.

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there we go, highlighted on the right. And you'll see that the notes, hopefully this is not covered

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up by the Zoom, but on the right-hand column, June 22, 2021, change mark notes from Paulus Isaac,

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the examiner, state that the application will be reviewed under RM4. This was the first

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communication from the zoning unit stating that the application would be reviewed under RM4 moving

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forward. That is not in line with the code. Later, after this was sent out, it seems like the zoning

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unit tried to change the tune, if you will, regarding this language. But once again, where

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the plain language of the code is not clear and it's subject to interpretation, the interpretation

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should fall in favor of the applicant. Both provisions A and B are not applicable to a site

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where a district takes up only about 50% of the lot. If the subject property had a zoning district

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that covered 75% of the land, he would apply, and the most restrictive district would be applied to

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the entire parcel. And this highlighted section on the change mark notes would make sense.

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We are asking the board to read the provision as it is written, not as the zoning unit thinks

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it should be. I'd like to move on here with an email correspondence, a preliminary email

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correspondence dated June 2, 2021 from the Philadelphia City Planning Commission,

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which originally agreed with this position. Their position changed later on. I should note the law

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Department also originally agreed with this position, but then the position changed.

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And the language I've highlighted in that preliminary determination was that split

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parcel CMX4 was correct for this entire site based on the comprehensive plan recommendation

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for the parcel to be remapped wholly to CMX4 to see University Southwest plan.

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Reading the provision as a standalone provision directly contradicts the provisions of section A.

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It is this conflict where we are requesting that the board make the determination that

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appropriately favors the applicant. No doubt this is a confusing issue which will probably

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be further confused once the city's position is put on the record. But I ask the board to go back

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to the simple basic law in this matter. And where the provisions do not apply,

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the Philadelphia City Planning Commission should make the determination based on the goals of the

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immediate area in the comprehensive plan. This is not before the board today, but with the CMX4

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zoning, based on the equitable grounds, which the board is often looking at,

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the ability to have the parcel reviewed under CMX4 would allow for underutilized space along

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Chestnut Street to serve much-needed retail commercial in the community, allowing for

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jobs creation, activity on the streets, the highest and best use of the site overall.

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And with that, we would pause at this moment in time. If it is necessary, I would prefer not to

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have to do it. I have asked that Paulus Isaac, the zoning examiner, be available to testify,

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and I could have some questions for him,

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but I would rest momentarily, Mr. Turner.

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Mr. Reuter, do you want to respond?

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Yes.

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First of all, I don't think,

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I do have Mr. Isaacs available

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and I also have Mr. Weissung available from planning,

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but I don't think their testimony is going to be necessary

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Because this is essentially, I mean, the fact that, you know, positions on the interpretation changed isn't really relevant.

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because this is essentially, I mean, the fact that, you know,

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What's relevant is the actual final determination, and it is pretty much entirely legal argument.

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So I think we can stipulate to what Mr. Labor has presented in terms of the things that led up to the final determination.

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I would note, for instance, and I don't know, Mr. Laver, if you want to put up the planning email back up on the screen so the board can take a look at it.

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Happy to do that.

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right so i would just note um the part that's the one sentence that's not highlighted makes

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it very clear that final determination will be made at the time of zoning permit application

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review and is not guaranteed to be consistent with the preliminary determination so i just

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want to make it clear uh that this um that email from planning um was very clear that that was not

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a decision that was not a determination it was simply a preliminary uh determination uh and that

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was not in any way intended to be uh binding and it was very clear that it wasn't binding i i would

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i would i would stipulate to that i i felt that it was helpful mr chairman and members of the board

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for the board to have that background i don't even think that that exhibit is necessary for

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the board's review of this matter the plain language of the code uh speaks to the reason

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for our appeal sure um so i'm gonna attempt to uh share my screen because i want to unless uh

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mr labor if you're already sharing maybe you want to if you want to put up the code provision again

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I'm happy to do that, Mr. Reuter.

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One moment.

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Sure.

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There you go.

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So there's a couple of things I think we want to point out.

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First of all, I think there's a little bit of confusion.

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And again, in terms of like what the actual decision was.

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L&I did not make a determination that RM4 applies to the entire lot.

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What the provision in question says is that the most restrictive provisions of all zoning districts in the split zone parcel apply.

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So both CMX4 and RM4 apply to this district, and it is the most restrictive provisions of both districts that apply.

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There was no determination that only that the entire lot is being treated as RM4.

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It just so happens that with respect to certain bonuses that the applicant was certain development bonuses that the applicant was seeking, that on those provisions, RM4 was more restrictive.

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But, say, in terms of other, I mean, and I would say it's probably accurate to say that RM4 overall is more restrictive than CMX4, but if these were two different types of zoning classifications, you know, then you may have some provisions in one classification that are more restrictive and then some that are less restrictive.

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So it just so happens that comparing CMX4 to RM4, RM4 is usually going to be the more restrictive.

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So, but we did not make a determinate, L and I did not make a determination that only RM4 applies to the whole lot.

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Again, it's just a consequence of RM4 typically being more restrictive that it affected the application.

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um so let me just go over it again the the the code provision a little bit more clearly

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that the applicant the appellant is saying that the provisions that essentially what they're

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saying is that if a doesn't apply then what i mean i guess that's the question is like which

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zoning classification then applies because a doesn't apply but b does apply what they're saying

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is once a doesn't apply you don't go to b at all but that's not what the provision says

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if you go up to the sort of preamble of the provision it says when boundaries of various

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districts are shown on the zoning map are established so that a single lot has more

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than one base zoning designation the following provisions apply so you go through all the steps

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So you go through all the steps. You don't skip B. A is essentially just saying that if that ones of the two, like not, I don't know if there's any three zone things, but like, so if you have a lot like this that has two zoning classifications, one of those classifications, which may or may not be the more restrictive, that could be the least restrictive.

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you don't skip b

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One of those will apply to the entire lot if it covers at least 75% of the parcel and B does not apply.

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So if in that instance, when you have something where, say, CMX4 is 75% of the parcel and B doesn't apply, then in that instance, CMX4 would control for the entire lot, whether or not it's more or less restrictive.

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but you don't skip b because again the code provision you you the following provisions

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apply to any split zone parcel so you go next to you you then you go to b and what b says

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is if a zoning district covers a contiguous area of a lot etc etc the most uh restrictive

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provisions of all zoning districts that have contiguous area that covers at least 10 of the

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total lot shall apply. So we agree that if you go to step B, that this parcel qualifies for B

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because it does meet, there is the minimum, both sides, I mean actually the entire, have

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exceed the minimum lot area. Again, CMX4 doesn't have a minimum lot. This is well more than 1,600

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feet for either side. So again, we agree if B applies, then it definitely, then if you go to

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step B, then B definitely applies to this parcel. But what we're saying is that you do have to do B

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just because A doesn't apply. A is only saying when one zoning classification will work for

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the entire parcel b is saying that you will apply the most restrictive in other cases

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because there's really no other way i we don't believe there's any other way to read this

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we agree that there's some confusion in the writing but the confusion isn't a type of uh

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conflict or direct ambiguity there's no ambiguity which would would we agree would iner to the

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benefit of the applicant this is one where it's pretty it's clear you you check off all the boxes

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you do a if a doesn't apply then you see if b applies so if and here b applies so if b applies

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then it's the most restrictive then you then and it just so happens that rm4 tends to have

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more restrictions it tends to be more restrictive than cmx4 but we're not saying like i said we're

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not saying that RM4 applies to the entire, to the lot, that we're only doing RM4. It's only

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because it's, again, it just happens to be more restrictive. We agree C is not really relevant in

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this. So D doesn't make any sense. If, if the way they're reading it, it would just simply be,

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if A doesn't apply, then the commission would select, but it says neither A nor B applies.

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If A doesn't apply, then there would be no reason for that last provision to even mention B.

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Mr. Chairman, members of the board, just two points very quickly.

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This language needs to be cleaned up. That's clear.

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And when language needs to be cleared up, it should be read in favor of the applicant.

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I've shared with you change mark notes from the zoning unit that show that RM4 was applied.

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There are no instances where there has been any contention that a more restrictive provision

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in CMX4 has been applied to this. So as the zoning unit's reading would go,

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A would never apply. And that, respectively, is where we are.

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if the if the chairman and the board members believe that it would be helpful

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to uh question mr isaac uh i'm prepared to do so but i hate to take up the board's time

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so so i i'm gonna call for a vote here um um

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excuse me this is sharon if i could just make one point before you call for a vote

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Mr. Laver has also requested that there be a note whether the appeal is denied or

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Also requested that there be a note, whether the appeal is denied or granted, stating that in the alternative, the applicant shall be permitted to submit a NUNC-PRO-TUNC appeal requesting a variance.

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Mr. Reuter, do you have any objection to that?

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Not at all. And again, I can't predict what planning's recommendation would be on a request for a variance, but I can say that, as was indicated in planning's email, that we agree that this entire parcel should be remapped to CMX4.

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It's CMX-4 in the comprehensive plan. So we would have no objection whatsoever to a variance.

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Exactly, but not getting into the merits.

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No, no, I have no objection to a non-cruise. No, we would have no. I mean, again, I guess that's probably more for anybody that were to oppose such a variance, but the city certainly wouldn't. I wouldn't object to a non-cruise.

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Well, I just think under the circumstances, so they were permitted to go forward with the appeal against L&I. We don't know whether that's going to be granted.

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So in either case, adding a proviso, allowing a non-protein appeal seems appropriate.

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Yeah, no problem.

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So MI 2021-004839-3701-15, Chestnut.

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I vote to grant the appeal with the proviso.

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Carol Tenere, I vote to grant the appeal with the proviso.

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Thomas Holloman, I vote to grant the appeal with the proviso.

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James Snell, I vote to grant the appeal with the provisors.

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Ishmael Shahid, I vote to grant the appeal with the revisor.

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Thank you, everyone.

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Thank you, Mr. Chairman and members of the board.

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Have a good day.

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Okay.

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MI 2021-003213, 1910 Chestnut Street.

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Chair, I'm going to hop off.

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Thank you.

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Oh, okay.

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Oh, that's number three.

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Okay.

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Chair, if we could just mention who hopped off.

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Ishmael Shaheed.

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He left the meeting.

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Thank you, kindly, Chair.

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