but the court was bound to apply the prior language of the code and not the current language.
uh in 2018 and we can go we'll go over that in our case the the i'm sorry in 2021 the line so
it was amended first in 2018 and then amended again in 2021 um where in fact culverts are
explicitly excluded from uh these uh requirements altogether so um does your co-counsel want to have
opening remarks uh miss nope no okay good okay okay all right mr whalen thank you chairman and
board members um you know i think we're jumping the gun here a bit so i'm going to go back to
the beginning this is a validly and properly issued permit after extensive review by the city
Planning Commission, Water Department, Streets, and the L&I. Based on that, as this board is well
aware, that's what we call a by-right permit. An appeal from a by-right permit requires the
Dingmans to overcome a presumption that all municipal officers performed their duties properly
and took all necessary steps to give validity to their official acts. That's from the Commonwealth
Court and has been cited time and time again by this board and by the courts. So the review here
isn't, you know, could or should have something else happened. It's did the city employees
and municipal actors act appropriately and properly? And there's a presumption,
a legal presumption that this board has to accept as true, that they did. And in fact,
here they did. And that that presumption is actually conclusive. That's the end of the
story. It is conclusive unless it's rebutted by affirmative evidence of irregularity.
Not affirmative evidence that there's a better map or a different map, or the Dingmans found
an expert who will say one thing versus another. There has to be affirmative evidence that the city
actors here acted in an irregular manner and improperly with regard to their city functions.
Simply didn't happen here. I would take a quick tangent here. First and foremost,
This appeal is untimely. It's untimely by about 15, 16 days. I will show and have, we can address that before we get into the merits if the board would like.
The zoning permit was issued on August 26th of last year, 2022. It was posted on August 29th
of 2022, and therefore any appeal would have been due by September 28th, 2022. September 28th may
or may not have been a Saturday. I haven't looked that up, or a Sunday. But regardless, it's
unarguable that this appeal was filed on October 19th, 2022, which no matter which way you count
it is more than 30 days beyond the issuance of the actual permit and its posting. That said,
you know, the Dingmans submitted their exhibits, they show, you know, you know, analysis and
surveys. But that's of no moment here. It's actually wholly irrelevant to this board's
determination. The question is, the city received a permit application. They began to review that
application both at L&I and the Planning Commission. And the Planning Commission
follows, as you heard from, I think, both Ms. Tancredi and Mr. Reuter, the streams and swales
map. Ironically, if we were still doing this in person, you would actually see Mr. Reuter and
myself awkwardly holding up an eight foot by four foot rolled out map showing you what that looks
like. That is the city map. Now, is there a better map? Could Google create the greatest map in the
history of time? Maybe. But that's, again, not the question for this board. The board is here to
review whether under the code sections and we'll walk through them painstakingly i'm sure
that when they got that application did the municipal actors review everything in accordance
with the streams and swales map they did it there was extensive back and forth as mr reuter said
the house itself the proposed home itself is outside of the 200 foot setback as determined
by the planning commission there is a portion of about a third of the proposed driveway that is
inside the 200 foot setback but pursuant to the code requirements and
the 200-foot setback, but pursuant to the code requirements and authorization from the
water department, forest pavement can be used and was approved so that that section is actually
exempt, that section of pavement is actually exempt from the requirements of the Wissahickan
watershed. So even if this board were to find that Ms. Tancredi's experts and the Dingmans
are 100% correct, and that the city map could have, should have, might have been better,
all that can do is create an ambiguity in the code that has to be found in favor of the property
owning here the city did what it was supposed to do with the materials it was supposed to use
and it has used in every other application and did so in its regular workmanlike manner there
was no irregularity there can be no affirmative evidence presented of irregularity and even if
a new map is shown to be better well that map versus the streams and soils map simply shows
an ambiguity in the determination. And as this board knows, any ambiguity in the issuance of
a permit or the interpretation of the code has to be found in favor of the property owner or the
applicant. And here that requires approval. Thank you very much. Right. Thank you. So we're going
to start, but just talk to our council. We're going to look at the timing issue first. And
Council Tangrini, why don't you start and we'll argue timing first before we get into the crux of
the case. Is that okay? Sure. And on that note, at the beginning of this appeal, I had sent a letter
to this board addressing the timeliness issue and that the permit was issued on August 26th
and the appeal was filed a little bit later. I have testimony today from several witnesses
that can testify that the permit was not posted until October 7th or 8th.
I will say that I had contacted counsel on more than one occasion to discuss or to find
out if there was a stipulation as to timeliness and had not received a response.
It wasn't until 10 a.m. today, a half hour after this case was supposed to be heard,
that I received an email from counsel stating that they were now claiming that the permits
were properly posted in a timely fashion um and the email and information that we've received from
council shows one picture it doesn't fulfill the obligation to show that a permit was posted for
30 or more days um so with that i i would go ahead and call my first witness if that's okay with you
yep sure okay I would call Mark Dinkfield
Mr. Dinkfield has been allowed to speak good morning sir could you please state your name
and spell for the court reporter yes good morning Mr. Chair can you see my video and hear me okay
we see you we don't we we see your name but we don't see your face but
i think i think we're okay with that at this point
okay may i begin uh i'm going to swear him in first do you swear or affirm to tell the truth
the whole truth nothing about the truth yes i do okay we see you now sir thank you great thank
Thank you Mr. Chair. Thank you. Mr. Dingfield, would you state your name and address for the record?
Yes. Good morning. It's Mark M-A-R-K. The last name is Dingfield. D as in David. I-N-G. F as in Frank. I-E-L-D.
And Mark, are you one of the appellants in this matter?
I am. And I should just be clear about the address since I didn't finish that piece, which is 99 East Bells Mel Road, Philadelphia, PA-19118.
Okay. And where do you work?
At the University of Pennsylvania.
What is your position there?
I'm the Vice President for Finance and Treasurer.
Where is your house in relation to 118 Hillcrest?
So we are directly adjacent to the south of 118 Hillcrest, up the hill from the property.
So we are directly adjacent to the south of 118 Hillcrest, up the hill.
Is your property within the Wissaheckin Watershed Overlay District?
It is.
Okay. And how do you know that?
Well, when we bought our house in 2016, obviously doing our due diligence, we looked at the applicable zoning codes and saw that our house was within the Wissaheckin Watershed Overlay.
Board, and I apologize, Ms. Tancredi. Chairman, this has nothing to do with timing. This is Ms. Tancredi's discussion on the merits.
It has to do with standing.
So listen, she's swearing him in, giving him an idea of where he lives, et cetera, and we'll get right into the timing issue.
And, Chairman, if you would like, I'm happy to, if this appeal were to be found timely, I'm happy to stipulate that the appellant's home is within a required distance to have standing.
All right, good. So could you get to the point about timing?
May I share my screen?
You can.
you're coming up
and mark i'm showing you a photo do you do you recognize this photo i do what is it
It's a photo I took on the first day that we observed the zoning permit to be posted at 118 Hillcrest.
And what date was that?
October 8th, 2022.
And can you discuss how often do you go by this property?
Let me just, I don't want to belabor this point, but just to give a little bit of history and context.
So we bought the house in 2016. We were aware of the ongoing appeals at that time and the litigation surrounding the zoning permits that had been issued previously.
And so we kept an eye on the developments. In January of 2022, this is January of the last year, we noticed two marketing signs posted, one at 116 and one at 118 Hillcrest, showing the renderings of two new homes.
At that point, I took a picture of the marketing signs and sent them to our counsel, Dawn Tancredi. She advised at that time on January 11, 2022, that no permits had been issued, but asked us to remain vigilant and keep an eye out.
And so we drive by 118 Hillcrest almost every single day. East Bellsmill Road is a one-way road to get from the Stenton side to our house. You have to go down Hillcrest, take a left up Germantown and go around to our house.
And so every day as a matter of habit, as we drove by, we saw and looked over at the marketing signs and nothing had been posted. The first day we observed a permit to be posted was October 8th of 2022.
Okay. So at the end of August, 2022, you did not see a permit posted?
And you had been by the property?
Many times.
And throughout September of 2022 as well?
As I said, our kids were in school. We were around. We went by there almost every single day.
Okay. Thank you. I have no further questions.
Leonard, do you have any questions?
The city isn't taking a position on the timeiness of the appeal. We don't have any witnesses on that question.
Yes, sorry, I think I was muted. Yes, I do have a couple questions for Mr. Dingfield.
Mr. sorry I'm just looking for the
so Mr. Dingfield if I could show my screen my name is Sean Whale and I represent the property
owner good morning
all right maybe I'll start here so Mr. Dingfield it's this photo that you took
is the one that, I'm sorry,
this photo is one that you actually took yourself?
I did.
Okay, and you sent it on October 8th to Ms. Tancredi?
I did.
Mr. Dingfield, can you see a photo on the screen?
I can.
And does this photo show your home in the background?
It does.
All right. And in the foreground, this I will represent was taken from a road. And would you agree that this is Hillcrest Road?
Okay. And you can see a post here with the posting and you can see what appears to be that picture of what you took zoomed in of the zoning permit in that plastic sleeve?
That's what it appears to be, yes.
Okay. And Mr. Dingfield, every day when you would drive past the property, would you actually get out of your car and walk over?
Okay. So what changed when you got out of your car and walked over to take a photo that we see today?
it was the first time we observed a permit posted there so and i'll just to be clear we actually
didn't we hadn't driven down there and the day we took the photo we had been walking into the
arboretum so we were not stopped at the car we had been walking on foot down hillcrest to go into
the gate of the arboretum and i'll also just note there's a speed cushion right in front of that
sign so sort of by by definition one has to slow down at that point and it's very clear you know
when there was and when there was not a permit posted there.
Right. And Hillcrest, you answered my question, but Hillcrest is a busy street, right? And that's
why the speed hump is there? Correct. Okay. Now, I'm going to show you a second photo.
Mr. Dingfield, do you see this photo? I do. And do you see it also has a post
in the ground has a post in the ground uh the black post just like we were looking at before
yeah and in the rear that's your home again isn't it correct um so mr dingfield it's your
testimony that you never saw the property posted to this effect that's correct okay
um and i'll also just note that that it was comparing the two pictures that permit is not
where the permit was posted when i took the picture either understood that this permit shows
uh that the zoning permit was taped up correct right and the photo that you took showed it
actually hung in a separate plastic sleeve over the photos correct that's right um but there's
no reason why it couldn't have been posted as seen in this photo right now and then moved to
the position that you were discussing, right? Sure. Okay. Thank you. That's all the questions
I have for Mr. Dingman. Mr. Greedy, you have another witness? Yes, I would call Laura Dingfield.
Okay. Ms. Laura Dingfield, can you?
Chair, I would apologize to the witness.
I believe I was just calling him Dingman
and I apologize for using your incorrect last name.
That's okay, Mr. Whalen.
After 44 years of having Dingfield as a last name,
I'm used to being called all sorts of weird things.
Ms. Nora Dingfield has been promoted.
Hi, could you state your name, please,
and spell for the court reporter?
Ms. Dingfield
excuse me I promoted a chair
I thought she was coming
kicked me off for a moment
good morning could you state your name please
and spell for the court reporter
yes Laura Dingfield
Laura L-A-U-R-A
dingfield d-i-n-g-f-i-e-l-d right do you swear or affirm to tell the truth the whole truth and
nothing but the truth i do proceed counsel thank you good morning mrs dingfield um can um you
please tell the panel where you live yes i live east bells mill road philadelphia pa 19118
and where do you work i work at the university of pennsylvania as a physician
Ann, can you tell this panel when the first time you saw any zoning permit posted at 118 Hillcrest Avenue?
and can you tell this panel
Yes. So I was at home on the morning of Wednesday, October 5th, 2022, and saw some activity down on 118 Hillcrest from my basement.
and some members from PART builders were picking up and replanting the marketing signs that we
saw in the prior images that had fallen down. I went down to ask them what they were doing.
They said they had just been asked to replace those marketing signs on October 5th. At that
time, there was not any zoning permit posted on either of the marketing signs. On Saturday,
October 8th, I was returning home after my son's soccer game and noticed as I was driving up
Hillcrest to Germantown that there was a permit posting on the property at 118 Hillcrest.
So that was the first time I had seen a zoning permit posted on that property.
Okay, so at no time prior to that, since the permits issuance in late August, had you seen a permit posted?