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Hearing video

ZBA Hearing - April 18, 2023

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

That's correct.

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And you did actually see people posting materials in October?

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I saw them replanting the stakes for the advertising signs, at which time there was not a zoning permit applied to those advertisements.

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Okay. Thank you. I have no further questions.

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Whalen?

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Yes, thank you, Chair.

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Ms. Dingfield, I can bring you back up if you like, but I showed Mr. Dingfield two photos with zoning permits taped up with blue tape.

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Did you see those photos?

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I did see them.

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Do you want me to re-put them up for you to see now?

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Are you okay?

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And is it your testimony that you never saw those posters or those zoning permits posted

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in that manner?

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That's right.

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I did not see them posted in that manner.

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Okay.

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Thank you.

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That's all the questions I have, Chair.

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And just briefly, Mrs. Stingfield, how often do you go by 118 Hillcrest Avenue that you

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would notice whether or not a permit had been posted?

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I drive by 118 Hillcrest several times a week as we go to and from our home, and so maybe not on a daily basis, but many times a week are we going past Hillcrest, either in our car or as we walk down to the Arboretum.

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Okay. So even if a permit was posted for one day in late August, you were by the property on a

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regular basis and you did not see a permit posted for more than 30 days in a row. Is that correct?

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That's correct.

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Okay. Thank you. You're muted, Mr. Chair.

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Chairman, you're muted.

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i freeze here he goes hello yes you were freezing hi miss tindra and do you have any

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other witnesses? I do. Because of the timeliness

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issue, I have two other witnesses. For timeliness? Yes.

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Okay, proceed. I would call Yaren Simler.

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Could you state your name, please,

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and spell for the court reporter?

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Mr. Simler?

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Okay.

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Mr. Simler has been promoted.

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

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Mr. Simler?

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You're muted.

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Yes, can you hear me?

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

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

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Yes.

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Yes. My name is Yaron Simler, S-I-M-L-E-R.

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My

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All right. 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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Proceed.

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Thank you. Mr. Simler, could you put your address on the record?

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Yeah, it is 154 Hillcrest Road. Sorry, Icarus Avenue, Philadelphia, PA-19118.

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And how far away do you live from 118 Hillcrest?

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We border 118 Hillcrest.

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Okay.

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And when is the first time that you saw a permit posted on the property?

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So we bought the house and moved into the house, I believe it was August 26, 2022.

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That's when we actually moved in.

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One of the things we were looking forward to is going to the Arboretum.

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So we actually walked into the Arboretum the following day and then many others.

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We did see upon moving into this signs with what they call, I think, previously marketing.

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We did not see any. In fact, we were very curious.

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We walked by and looked at them to see what's going on there.

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We did not see any posting of permits posted for pretty much for the month of September.

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On September 28th, which I think it was a Wednesday, we flew to California as part of our work.

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Until that day, we did not see any posting of any permits.

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We came back from California, I believe it was Sunday, October 9th or so.

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And then upon coming back, we actually did see posting that looked more like the picture that Mark took rather than the one with the blue tape on there.

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And, you know, again, we saw that we were curious, we walked by there, we did not take a picture.

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Thank you, sir. I have no further questions.

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Mr. Whelan?

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Tara, I have no questions for this witness.

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Okay.

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Ms. Tinkre, anyone else?

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Yes, briefly, one more witness.

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Serena Simbler.

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

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um it's actually serena eisenberg e-i-s-e-n-b-e-r-g okay you swear or affirm to tell the

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truth the whole truth nothing but the truth i do proceed okay um i don't see my picture up there

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is that you can hear me we can hear you okay good morning everyone good morning and miss eisenberg

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can you please put your address on the record? Sure, I live at 154 East Hillcrest Avenue.

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And how close is that to 118 Hillcrest? It's the property right next door. Okay,

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and can you tell the board when the first time you saw a zoning permit posted at 118 Hillcrest

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Avenue was? Sure. Like my husband said, we moved in August 27th, I'm pretty sure. And yeah, for

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sure. And I'm a walker. So as soon as we moved into the house, I walk every single day up that

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street, up past the property. And sometimes a few times we, as Yaron said, we'd go into the

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Arboretum, but I was also walking to the Wissahickon Park or up to Chestnut Hill. So I walked by it

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every single day and then um about a month later september um pretty sure it was the 28th we flew

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to california and we did not notice any permit i didn't see one um until we got back october 9th

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and then the next day when i went walking it was just surprising to see that um you know on that

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property it's kind of a just a big lot right now thank you i don't have any further questions

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Chair, I have no questions for this witness.

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Do you have anyone else relative to the timing?

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No, Mr. Chair.

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Hi, Mr. Whalen, your case?

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Yes, certainly.

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I will share my screen, and then I have one witness to call.

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hopefully you're seeing an email uh this was emailed to all parties uh this morning

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um you can see here the email is dated monday august 29th

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uh sorry i just hit hit something weird um monday august 29th and it shows uh two attachments

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i also just for the board's understanding did send the uh

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I also, just for the board's understanding, did send the original email in its original form with the two attachments to Ms. Emerson, Ms. Tancredi, and Mr. Reuter and Ms. Skiles, so that they can see that.

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And as you go down, you will see I can actually discuss this email because this is my name and my email address.

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Hillcrest zoning permit dated 826. We agree with the Dingfields that that's when the permit was issued.

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I will be clear, Michael Galante, who will testify in this matter, I will just give an offer of proof.

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He is the project engineer for the matter, so he forwarded it to all of us.

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Gregory Hearth, who's the president of Hearth Builders, who's the builder for this proposed home, is on, and I will call him in just a second, but he asked his workers at Hearth Builders, can you print this in post on Monday for 30 days at 118 Hillcrest?

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take a picture and reply all he specifies 118 is the lot on the left when you're standing in the

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street and you can see august 29th 2022 two photo images i will represent as an officer of the court

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and i'll have mr hearth certified of this and this is again a part of the email that i forwarded to

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all council this is image number one that was attached it shows this two-page zoning permit

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taped with blue painter's tape up on and this is on august 29th 2022 and this is image number two

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a more straight on image uh the ding fields already testified that this is their home in

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the background this is 118 and it has the condition of the two zoning permits posted there

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Um, so if I could, uh, I will call Greg Hearth.

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Mr. Hearth has been allowed to speak.

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

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Gregory Hearth, G-R-E-G-O-R-Y-H-A-R-T-H.

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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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Proceed, sir.

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Thank you.

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Mr. Hearth, can you see an email on your screen right now?

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An email chain, I should say?

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Yes.

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Okay.

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And I already testified to it.

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Did you hear my testimony with regard to who the parties were to these emails and the dates?

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Yes.

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And you would agree with that testimony?

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I'm in agreement.

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And you would adopt it as your own is true and correct to your best of your knowledge?

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That is correct.

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Okay.

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And Mr. Hearth, you're the president of Hearth Builders, correct?

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Correct.

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And could you just identify who are Jim slash Mike on this email chain?

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And then Mike Bowman, who replies on Monday, August 29th.

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Mike Bowman is my construction manager, in this case, project manager, but since been promoted.

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And Jim Palermo is a site supervisor.

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Okay. And they forwarded you two photos that day, correct?

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That is correct.

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And are you looking at those photos now?

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I am.

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On my screen?

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Yes.

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All right. And they are the two photos that were previously described by earlier witnesses as having the blue painter's tape.

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taping up the project correct okay and at some point in time uh those had been removed

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and do you know who removed them i do not all right and then uh hearth builders went out and

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miss tancredi if i stop my share can you share your screen and just show that um october 8th photo

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So, Mr. Harth, you're now seeing a screen, a close-up screen of a screenshot of the same zoning permit, correct?

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I am.

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All right. And do you actually see some, it looks like, blue painter's tape in the bottom right-hand corner?

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I do.

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All right. And you see that this is dated October 8th, 2022?

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correct yes so as you testified these permits were posted on august 29th uh and then it is

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Correct.

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Yes. So, as you testified...

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your testimony that they were moved into this plastic sleeve onto the uh the photos that you

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could see of the two proposed homes correct all right thank you very much chair i have no further

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questions thank you really

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Mr. Harth, do you have any other photos of the posting on any other day besides one day?

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I do not.

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I have no further questions.

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Mr. Wayne, any other witnesses?

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No, Chair.

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Okay. Ms. Tangreedy, do you want to summarize on your timing issue?

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Sure. So, as we stated in the letter and per the zoning code, an appeal is timely upon someone filing an appeal upon 30 days of constructive notice.

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The zoning permit needed to be posted within five days of its issuance, and it needed to be posted for 30 or more days.

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In this case, at best, we have a showing of a posting for one day, and that's not enough to satisfy the burden that's required on the property owner under the zoning code.

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they've got to show that it was posted for 30 days and we've heard from four witnesses

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that walk by this property or drive by the property on a regular basis and so as soon as

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there was constructive notice of the posting of the zoning permits my clients contacted our office

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to file an appeal. Mr. Whalen? Yes, thank you, Chair. Ms. Tancredi is correct. You heard from

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four witnesses, four interested witnesses in this appeal and specifically interested in the outcome

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of the appeal. No third-party witnesses. There's no photos other than the one that's shown here.

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I think Ms. Tancredi's screen is still showing it. And that is the current condition. It's been

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posted forever. Any imputation that Ms. Tancredi made or the Dinkfields made that the blue tape

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posters were not there for more than one day is rather inappropriate. My client testified and

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showed an email that actually timestamps the photos. There's no way to forge that. There's

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no way to get around that. They were posted. They were timely posted. And they were posted

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for this whole time. You had testimony that certain people drove past here or walked past

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here sporadically um you know they didn't take photos of no posting you know they they cannot

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show a single photo that there isn't a posting there uh so the presumption goes that there was

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a posting there it was made and even the photo that uh miss tancredi has up on her screen shows

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that photo uh you know with the zoning permit still with the blue painter's tape down at the

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bottom in the plastic sleeve, you know, with the black outline, the kind of heavier duty plastic

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sleeve from the lighter plastic sleeve. I think it's very clear that the, you know, I think it's

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undisputed that the zoning permit was issued on August 26th. I think there's no disputing that

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it was posted three days later on Monday, August 29th. That would have made the, any timely appeal

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would have been filed, have to have been filed by September 28th, and the appeal was filed

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on October 19th, when all of the testimony you've heard today from the Dingfields aside is

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next Wednesday morning at 9 30. And Hillary, we, we would just reschedule the whole thing at a

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later date, but I'd really like to handle the timeliness of this first. Yes, Mr. Chair,

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depending on the board's vote on the timeliness issue, we can reschedule the hearing on the

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merits. And I want to thank everybody involved, but I do want to sit down with the board and

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really go over the the testimony of the timeliness issue okay and chair if i may just ask a

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clarification you said next week's 9 30 list are you uh saying that april 25th or april 26th

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what's what i'm saying next wednesday we'll do it okay next wednesday yeah i'm sorry i don't

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i don't really see the date here right yeah that's uh i believe that's the 26th yes okay so we'll

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vote on the timeliness issue and then we'll look at a reschedule a later date is everybody okay

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thank you very much chairman thank you thank you leonard thanks everyone um

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