based simply on preference or did you have a tree professional assess these stated challenges as
well no so we had an arborist when we were designing the backyard come in and tell us the
best location um and is that arborist report uh that was performed by your in-house arborist
included at exhibit 17 yep okay great and uh just i don't recall if you mentioned this but can you
just share with the board the proposed materials of the pergola yeah the proposed materials are
um reclaimed barn wood coming from bucks in lancaster county they were sourced from bucks
in lancaster county thank you very again very high material um to to complement the the improvements
that we're making in the backyard as well as the area that we're putting the material in
got it um mr chairman uh uh certainly up to the board's discretion whether you
Got it. Um, Mr. Chairman, uh, uh, certainly up to the board's discretion, whether you would like
Thank you.
to allow cross now, or if you want me to finish my introduction, some of the additional photographs.
This is still your introduction. This is, I have some more background in terms of some photographs
and things like that. Well, why don't you show, why don't you show the photo? Okay.
Then we'll have a better idea of what everybody's looking at. Perfect. All right. So with, uh,
And Charlie, just stick around for a bit as well.
So with some of this context in mind, let me show you some of the photographs that we've included at Exhibit 16.
Obviously, this is the exterior of the home from Pine Street, which you'll see here is a double lot.
So there is the portion on the right and then the portion on the left, which represents that double lot.
The home was first historically designated back in 1965.
I did also include a couple other photographs from Pine Street for context, but the Pine Street frontage is not relevant to today's request, so I will scroll through them fairly quickly.
And again, looking towards 2nd Street.
Okay, so this next photograph here is an image of the backyard that was taken directly from the listing photos from 109 Pine Street when Mrs. Katz purchased this home.
I include this so that the board can get a better understanding of the previous conditions that Mr. Kelly alluded to that ultimately led to significant water infiltration problems, which Mrs. Katz can fill you in on.
But the basement, just after they purchased it, flooded significantly and ultimately started this entire reconstruction project.
With that said, you'll also notice that while all of the brick material has been replaced with a more modern material, the raised deck itself has been minimized, and the patio outline itself has largely been retained in its historical outline.
moving on to the next photographs uh these are two different photographs on the left and the right
hand side you'll see that significant improvements have already been made to the backyard to the
extent that most of these improvements did not require zoning approval on the left hand side
here is a view looking down from the second floor where you'll see again the patio areas planting
painting beds and that raised deck area that Charlie testified to.
You'll also see here the wooden posts representing the location of the proposed pergola.
On the right hand side is a view that looks towards the back of Mrs. Katz's house from
that rear brick wall.
You'll again notice the location of the pergola posts in both of these photographs.
Skipped ahead on me.
This next view looks towards the back wall of the house.
And again, you'll see that birch tree that Mr. Charlie Kelly had testified to.
And you'll see the location of that existing rear six-foot-high brick wall.
Thank you.
Okay. Now, this next photograph here on the left-hand side shows an image that was taken many, many, many months ago when this trellis was still contemplated, which has now, of course, been removed from this application.
Unbelievably and incorrectly, Ellen and I came and cited Mrs. Katz for an unpermitted fence structure, which we probably appealed, as it is quite suspect that the inspectors could not clearly see that it was a sample sitting on the wall.
As an aside, they did also similarly cite her for building a deck, which we also appealed, even though the board has hopefully clearly seen here that that raised deck area already previously existed and just had the decking material replaced.
Now, in this image, you'll see the relationship, you'll begin to see the relationship to the property directly in the rear at 108 Delancey Street.
Now, in this image, you'll see the relationship, you'll begin to see the relationship to the
On the right-hand side, you'll see the location of the existing extension of the house that juts out into the rear yard, an existing grill, and that second tree that Mr. Kelly was talking about.
and again a better view of some of these conditions is shown in this next photograph
where the board can clearly see that virtually any relocation of the of this particular post
to move the pergola slightly farther from the wall would directly intrude onto that existing tree area
On the right-hand side, the board can get a better sense of some of Mrs. Katz's motivation behind the pergola structure, as the second floor of 108 Delancey Street looks directly into Mrs. Katz's backyard, depriving her and her husband of their inherent right to privacy.
Now, this board is going to hear today from at least two direct neighbors to the rear on Delancey Street, expressing resistance to this proposal.
In showing you the next photographs, we're asking the board to exercise your careful discretion in weighing the credibility and the validity of these concerns.
First, I will show you photographs that I took of the backyard of 104 Delancey Street, which, if you are looking in the rear of Mrs. Katz's house, is the home that is directly to the right.
As you can see here, the backyard of this property sits at a dramatically lower grade than Mrs. Katz's house.
The wall here in this area, as mentioned earlier, is estimated to be roughly 12 to 15 feet high, way overhead,
and rendering anything beyond it completely invisible, at least from the at-grade level to the homes.
Oh, there you are. They're a 12-foot wall. Oh, there you are, you can't say.
That is exact. So, right. So if you're standing in the backyard here and you're looking up, you're looking up at a 12 to 15 foot high wall in front of you.
Similarly.
Directly.
But just to be sure. But you're still going to see a pergola two foot above.
Right. It's a 12 foot wall, but you're still going to see a pergola two foot six.
am I right? If you are 12 feet below grade, I would question whether you would see two and a
half feet. Because it is set back two and a half feet from that back wall. Now, similarly,
directly to the rear at 108 Delancey Street, the grade is once again significantly depressed for
Mrs. Katz's house. As you can see clearly on the section of wall along the right-hand side here,
You can see that a little bit better in this image behind the tree, which coincidentally also has a structure right up against the rear wall.
Now, the neighbors at this location, and I believe they're going to show you these same photographs, but these photographs were presented during one of the RCO meetings.
I was able to capture them to show the board the actual view from the neighbor's property.
So this is again from 108 Delancey Street directly in the back.
So here you can see again the grade differential between the properties on Pine and those on Delancey, which again deprives homeowners like Mrs. Katz of the privacy her neighbors benefit from by sitting a few feet lower.
Here, you can see that the pergola will be barely visible and likely rendered entirely
invisible once some of the plantings have a chance to take hold.
This next photograph is slightly out of date prior to the posts being cut down to their
intended height.
At this time, you can see that that trellis sample was still up, and these posts were
at this time 10 feet high and have since been cut down to their intended height of eight foot
six inches. Here you can see abundantly the privacy deprivation issues that we have discussed here
today as 108 Delancey Street looks directly down into Mrs. Katz's backyard and in fact into the
back of the first floor of her home. That was ultimately part of the motivation behind the
trellis, but understanding the community concerns for the trellis, that was taken out of the request.
that was taken out of the request now again we do not say this to say that this is in any way the
Now again, we do not say this to say that this is an
fault of 108 lancy street certainly it is not but it is the reality of conditions that have existed
from when the homes were built back in the 1800s uh mr chair i do have my standard argument that i
would go through if you want me to do that first or have her have a chance to cross-examine mr kelly
Is your client going to adopt your testimony?
She will at the very end.
So who do you want crossed, your client or Mr. Kelly?
I was going to give them the opportunity if they wanted to cross Mr. Kelly.
Neither of us have any questions for cross.
For either.
Thank you.
Then I'll finish my argument and then we can move on.
All right.
Thank you very much.
Mr. Chairman, members of the board, regarding the refusals that were issued,
the application was refused for three reasons, one of which has now been resolved.
As I mentioned, a refusal was issued for the height of the proposed trellis.
Because that was removed from the request, I will not address it in the argument today.
Regarding the pergola, the pergola received two refusals,
and I'll bring up the refusal so you can see exactly what we're talking about here.
First, a refusal is issued as the code would dictate that the pergola should be set back nine feet from the rear property line, whereas two and a half feet setback is proposed.
Furthermore, the code would limit an accessory structure to 130 square feet, where 240 square feet is technically proposed.
I'd like to start first with the most abundant hardship, which is that the very nature of this
application cannot be readily applied within the current zoning code, which ultimately from our
position should have led to an interpretation in favor of the property owner instead of the
irrational result that has ensued. Join me in the irrationality. When the code seeks to regulate
square footage. It is contemplating a structure with four walls and a roof. The pergola has
neither an enclosed roof nor enclosed walls. It is simply four posts with wood connections at the
top. To consider this a structure for calculating maximum square footage results in irrationality
in the zoning code as there can be no discernible or identifiable difference in visibility or
impact by moving the posts closer together merely to shrink the pergola in terms of square
footage. What renders this point even more critical towards the property's hardship
is included at exhibit 13, where I have included confirmation from L&I that if this structure
were 130 square feet or calculated to be 130 square feet, L&I would not enforce setback
requirements, and the pergola could sit exactly in its intended location, actually even closer
to the wall. L&I would not enforce the setback requirement. It is unreasonable to surmise that
a 130 square foot structure right at the wall would somehow be less visible or impactful
than one whose posts are further apart and two and a half feet away from the wall.
In fact, we would submit that the further the pergola is from the wall, the more visible
it becomes at higher levels of the adjoining structures in the rear.
This is especially true when the board considers that the code would permit this structure to be 15 feet high, whereas the proposed pergola here is only just over 8 1⁄2 feet high.
To show you just how irrational a strict code application is to a pergola, at Exhibit 10, we have included a rendering of a by-right pergola, just a facet of a by-right pergola, in fact.
This pergola is located to the center of the property, where, again, under the code, a 15-foot-high pergola could be right up against the back wall.
So you can see here, this is in the middle of the property.
So imagine if this were right up against the back wall.
this would be infinitely more visible and more impactful than what is proposed.
This would be infinitely more visible and more impactful.
To add to this quagmire even more, the code would not restrict Mrs. Katz from having multiple
compliant size pergolas side by side along the back property wall. As we alluded to earlier,
this is a double lot that could, if it were two homes, have two pergolas of 260 square feet total.
So hopefully this exercise has shown the board just how irrational the code application is
to this type of open structure that cannot be readily applied within the bounds of the zoning
code. Beyond just the zoning code limitations, we also submit the evidence that we've presented
establishes multiple hardships unique to this historic property that warrants this board
granting relief. Mr. Kelly testified regarding the concerns over water infiltration issues
that Mrs. Katz will mention that she found herself stuck with upon purchasing this property
and the impact that those conditions have had on the design of the backyard. I understand that,
But tell me the pergola and the water.
How does that, why is that an issue?
May I have Mrs. Katz?
If you want, sure.
Name and address for the record.
I can just state your name and spell for the sign.
My name is Sally Katz, S-A-L-L-Y-K-A-T-Z.
You swear or affirm to tell the truth, told the truth, nothing but the truth.
Please proceed, Councilor.
Sally, you've heard Mr. Chairman's question. Can you just first, very briefly, explain to the board what happened shortly after you purchased this home in terms of the water?
That's the point I'm saying is, but, yeah, so the house flooded, but what's the pergola have to do with the house flooded?
I'm sorry, can I answer that, Meredith?
Go ahead, Charlie.
Yeah, so, sir, Mr. Chairman, there is a bunch of drainage lines running up against the house away from where the pergola is at.
So that open area where we have pavers and the raised beds, there's drainage lines under catch basins and drainage lines running in that area.
So we can't put footers for the pergola in that area.
We had to run all the drainage lines off the house.
So there's a bunch of Schedule 40 PVC running underneath the patio there.
Okay. All right.
And again, just very briefly, can you share with the board the flooding issues that actually occurred on this property?
Yeah, sorry, I may get emotional. After Ida, when we walked into our basement, we walked into like
three, four inches of water, and we did not realize where it was coming from. And we have
since then found out that the backyard was tilted. There was concrete under the brick,
which is why we didn't want brick to be replaced be there and it was tilted into the house and
the drainage system around the house was contributing to our flooding and so our primary
concern we have not even lived in the house we got it right before the pandemic and we just want to
enjoy our house without water and move in and live happily with our neighbors so we brought in this
design knowing that we had to work out the drainage system and save our house that half the
house was built in 1807 and the other half in the 1960s right we wanted to maintain our house and
the quality of its character and yet not add not due to the next person who bought the house what
was done to us so this design was part of rectifying this water issue thank you
uh just we're working around yeah a few more points uh again just as a reminder 109 pine
street sits at a significantly higher grade than the properties on delancey street which again
just further contributes to the deprivation of privacy for mrs katz while she enjoys her own
backyard furthermore as you've heard today mrs katz was very much working within the limitations
based on the historical conditions that existed in the backyard.
This is all accentuated by the existence of these uniquely mature trees,
which are unique to this portion of Pine Street and are critically important to preserve.
Property owners are inherently entitled to flexibility from any zoning board
from any zoning board to grant them a de minimis variance
to grant them a de minimis variance that will ensure that they can
that will ensure that they can make reasonable use of their
properties without intrusion from neighboring eyes.
This is especially true here since this property is historically designated
and in light of the hardships that the decades of neglect
Mrs. Katz has been seeking to remediate to ensure the long-term protection of
this property. We do submit this as a lease minimum
request as these are strictly dimensional requests for which this board is granted
additional flexibility in granting again as mr johns had asked earlier relative to the six foot
high wall that already exists this pergola only extends two feet six inches above that wall
these hardships and these variances requested are direct in direct relationship uh to
all of the testimony that has been offered in front of the board today in terms of the hardships
that burden this property. It is also inherently least minimum given that the pergola itself and
its very existence is not at issue, only its dimensions as applied within the limited confines
of the zoning code. Certainly the proposed pergola will not increase congestion, endanger the public,
or cause overcrowding.