civus
Hearing video

ZBA Hearing - April 18, 2023

Philadelphia Zoning Board of Adjustment (ZBA)Apr 18, 20232h 6m

So we would request that the board grant the relief similar to relief that's been granted

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to many other similar properties in the neighborhood.

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Questions from the board?

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No, Chair.

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No, Chair.

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No, Mr. Chair.

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Why should your comments from the virtual audience?

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Yes, Chair, I have Alice Udovich in the audience with a hand up.

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I will allow her to speak.

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Good morning, Alice.

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You've already been sworn.

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Just state your name for the record.

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Alice Udovich on behalf of Councilman Brian O'Neill.

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Proceed.

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Thank you, Chairman.

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The Councilman has no objection to the granting of the variance at this location.

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Thank you. Thank you for calling in. Is there anyone else in the virtual audience?

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I see no hands. Mr. Chair, this is Hillary. Do we want to have Mr. Nagowski have his client

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adopt his testimony? We can. Mr. Nagowski, is your client here? Yes, he is. Mr. Grace Michael.

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Yes, I see him in the audience. I'm going to allow him.

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hi sir could you state your name and spell please for the court reporter

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george grace g-r-e-i-s-s michael m-i-c-h-a-e-l right do you swear

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or affirm to tell the truth the whole truth and nothing but the truth i do proceed counsel

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thank you uh mr grice uh you you uh have been participating in this hearing you've heard uh

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what i have stated and seen the documents that i presented is everything uh factually complete

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to your best of your knowledge yes do you have anything else you would like to share uh with

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with the chair of the board no thank you anything i need to do i'd be happy to do

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um any commission

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Planning Commission.

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It's Ryan Bednar, City Planning.

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The properties indicated for residential use on the city plan or adopted district plan

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recommends no change in existing zoning dislocation.

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

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or condition of the property to prevent it from being used and conforming to the code.

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Therefore, we recommend the request of balance not be granted.

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Thank you. MI 2022-004-093-3712, Clarendon Avenue, I vote yes.

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Thomas Holliman, my vote is yes.

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James Snell, my vote is yes.

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Ishmael Shaheed, my vote is yes.

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Thank you, counsel.

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Thank you, Mr. Chairman and board. Again, I apologize for the second.

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Oh, no, that's fine. Thank you. We're glad we got you on.

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Okay, number three, MI 2022-006-535-118, Hillcrest Avenue.

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We have Dawn Tangrady is the attorney for the appellants.

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Sean Whalen is the attorney for the property owner, permit holder,

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and Leonard Reuter is the attorney for the city.

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Could all three come on, please?

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Okay.

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uh i'm putting them on putting them on now chair okay

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they've all been promoted chair our council tangrady could you state your name please and

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spell for the court reporter sure good morning dawn tancredi dawn d-a-w-n tancredi t-a-n-c-r-e-d-i

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

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Yes.

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Mr. Whalen, could you state your name, please, and spell for the court reporter?

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Certainly. Sean Whalen, W-H-A-L-E-N.

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

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I do.

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Leonard, could you please state your name and spell for the court reporter?

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Thank you, may it please the board, Leonard F. Reuter, R-E-U-T-E-R, Senior Attorney for the City of Philadelphia.

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I would also kindly ask the board to promote Amy Skiles.

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She's a colleague of mine in the law department.

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She will be working with me on this matter.

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

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I do.

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Okay.

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and i have two other uh two members from uh planning who are also here but i guess

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they don't need to be promoted until they're they're called to bat right okay

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i'm on mute but i'm on the right

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and would we have ms skiles promoted

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thank you i didn't miss skiles thanks

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all right i'll catch you yeah she's coming in down as a panelist

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chairman uh this is sean whalen just as we're waiting as a matter of formality i will just

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say that uh my client is the property owner it is p-a-m-a-p-l-a-n right also uh christopher

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blatney b-l-a-t-n-e-y as an individual the property owners uh so we would respectfully

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intervene as the property owners although this isn't appeal against l and i and their issued permit

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All right.

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Thank you.

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Thank you.

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Do we see your client, sir?

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I mean, your partners?

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Do we see their hand up, Amy's hand up?

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Yeah, she's here, Chair.

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Okay.

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Hi, could you state your name, please, and spell for the court reporter?

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Okay.

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I'm not seeing her audio.

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Okay.

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Okay.

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Can we start, Leonard?

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We're having a hard time finding her.

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I can see her.

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You see her?

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Okay.

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Good morning, Amy Skiles.

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Good morning.

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Good morning.

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I'm sorry.

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

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Yes, that's Amy Skiles, S-K-I-L-E-S.

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Right.

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

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

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I do.

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I do.

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Okay.

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Okay. So talking to Hillary this morning, we're going to have a brief opening remarks from the parties.

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So everybody okay with that?

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Yes.

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So Council Tangrady, we'll go with you first.

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Thank you.

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So good morning. As I mentioned, my name is Dawn Tancredy, and I represent Mark and Laura Dinkfield.

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who live at 99 East Bellsmill Road, their property abuts 118 Hillcrest Avenue, the subject of this

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appeal to the rear. So we are here challenging the issuance of permit number ZP 2021-013581,

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which was issued on August 26, 2022, for the new construction of a detached building

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with roof deck for use as a single-family home with a three-car garage

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and an additional accessory surface parking space on the property located at 118 Hillcrest Avenue.

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The permit was issued in error and violates the Wissahickon Watershed overlay.

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I did turn in a packet of exhibits, which I would ask be incorporated into the record.

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So the question in this case is, where is the starting point for measuring a 200-foot setback

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for development proposed within the Whistler-Hicken Watershed Overlay District?

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The evidence shows that this question was already answered by this board in 2013

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and subsequently affirmed by the Commonwealth Court.

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The starting point for measuring the 200-foot setback in this case

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is the outfall where a stream is physically located

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less than 200 feet away from the subject property.

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The outfall sits across the street from 118 Hillcrest Avenue,

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just inside the fence on the Morris Arboretum's property.

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The stream is, in fact, shown on maps in the city planning office.

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However, the city's map is inaccurate.

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There is a mistake as to the location of the stream on the map in the city planning office.

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The city has failed to maintain the map as required by the ordinance.

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The city has failed to maintain the maps for operational productivity and validity.

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To uphold a permit that permits development that has been issued based on a faulty map when it is clear that the map is wrong and that an outfall lies within 200 feet of the subject property is absurd.

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absurd. The Wissahickon Watershed Ordinance precludes development within 200 feet of the

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outfall. The Wissahickon Watershed Overlay is there to achieve environmentally sound

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land development. It's there to protect the watercourse, vegetation, and animal life.

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Allowing the development at this location goes against the spirit and intent of the zoning code and is a direct contradiction of the Wissahickon Watershed Overlay District.

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The city has been on notice that the map is erroneous and has done nothing to correct it or ensure its accuracy.

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the owner is also well aware that the property sits in the watershed district

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he had acquired this property back in 2004 sold the property in 2012

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and bought it back again from the people that he sold it to

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in 2019 so the owner also knows that there has been no development on this

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property for as far back as 2004 and in fact

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no one can testify to any development ever on this site so over the last few years there have

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been some revisions to the overlay for example revisions have changed the definition of impervious

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ground cover regardless of the change to the overlay the neighbors assert that the proposed

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development falls within the 200 foot radius where no development is permitted. So counsel,

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this was just short openings. You don't have to present your case now. So I think you've laid out

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where you want to be. So why don't we let everybody have just a brief opening and then

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So why don't we let everybody have just a brief opening and then you can present your whole case.

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you can present your whole case.

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OK, so, Leonard, would you want to go next, please?

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Sure. So. We agree in terms of what the case is about.

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I mean, everything in the case boils down to the issue of whether or not.

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um the water course there is a water course uh with that appears on a map maintained by

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the city planning commission uh within 200 feet of what would be impervious construction

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in this case the building there's no dispute um that the construction proposed the new uh

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the building itself would be impervious to water it's not going to be made out of sponge

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and that it would not be permitted without a variance where the difference lies is as

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Ms. Tancredi has indicated the city per the code city planning commission maintains

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It's not a digital map.

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There is no current digital GIS layer in the city's open map system

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indicating the location of streams and swales.

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And as you will hear, if and when we get to the city's side of the case

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and Mr. Whalen's side of the case, that, in fact, the code requires

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that the any review of a zoning permit application for Wissahick and watershed overlay

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to be compared to the map that is maintained by planning so even if it were true and we're not

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necessarily admitting that it's true that there are errors in the map that doesn't matter this

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board has heard numerous cases over the years involving a code language that requires some city

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review or some uh the city to rely upon various materials and it's been generally held and it has

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been held for some time that if the code requires it and the only materials that the city uh can

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rely upon happen to have uh errors the the errors have that's basically where we are required to uh

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to follow that map and and you will see that with respect to the map in question the actual physical

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map that shows the streams and swales of the wissahick and watershed that the uh the outfall

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here um that is where the water course comes out of the culvert um is it is within 200 feet of the

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property itself but it only covers a portion of the driveway and that driveway can be made of

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pervious materials or permeable materials provided that those materials are approved

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by the water department which and I believe Mr. Whalen will address this they have approved with

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respect to the driveway so again the city and the city planning commission and the plans reviewers

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are bound by the language of the code they do not have the option of relying upon other maps or

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other materials that may be provided by an applicant or in this case by experts retained

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by neighbors who don't want to see the property developed so that that's basically the city's

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entire case we have with us here today um heath davis and sarah chu from the planning and develop

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department of planning and development and what if like i said if we get to that the city side

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of the case today um they will you will hear uh their testimony addressing uh the history of how

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this was taken watershed overlay uh was developed and how the review process works and then what

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they did in this review of this specific application uh the last thing i want to address

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very briefly is we do believe ms tancredi uh or rather her client is mistaken in its reliance

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upon the Azoulay case.

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The Azoulay case took place at a time

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where the prior to current language in the code

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having been amended,

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and in fact, the Commonwealth Court opinion itself,

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in a footnote,

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the court specifically notes

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that that holding only applied to that case

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and that, in fact,

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the holding might be different under the current code

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because the code had been amended

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while the case was on appeal,

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