ZBA Hearing - July 18, 2023

And I'm just going to share my screen.

All right. Good morning, Mr. Montanez. I will try to keep this brief. Thank you so far for your

testimony. So I'm showing you a photo off the CityCycleMedia website dated April 8, 2020.

Do you recall whether this accurately reflects what the driveway and curb cut looked like as of

2020? According to the picture, yes. I personally did not go out there and look at it, but by the

cyclopedia picture, it seems to be April 8, 2020. Okay. And does this picture refresh your

recollection of whether there was an existing telephone pole? The picture does show a pole

right there. Okay. Or a wood pole, should I say. I will have to take a look to see who owns the

pole but it's a wood pole and then just jumping to november 2021 you see the pole is now uh it

looks like it's been relocated yes and then this is uh how the driveway has been reconfigured just

to go straight on there's no more turns right correct and we will stipulate for the record

this has come up in other occasions that we don't know whose uh van this is nor was this van have

any uh authority to to park here but you know this is november 2021 i believe the project was still

under construction but this uh this is the the curb cut that we're talking about and that that

was you said relocated to better align with the existing driveway right correct okay

and let me just pull up the plan. And so this was the plan showing the paper patios that

Mr. Masters went through, and now you see that there's the one curb cut that leads

to the driveway. What was that? I see, I still see the same picture of the driveway and the wood

home okay hold on let me uh am i the only one or no you're probably not the only one let me

no no i'm still seeing the cycle media all right hold on probably have to stop my share

you're i have the 2021 plan up if you want me to share it

you have to stop sharing though no i got it right now i just needed to do a new a new share

all right now can you say the yes no yes yes all right and so this is that driveway we were

Yes.

No, it seems like that, yes.

Yes.

All right.

And so this is that driveway we were speaking about, right?

Correct.

Okay.

Now, you said that the streets department requested that this existing curb cut be relocated to better align with the existing driveway, right?

Correct.

And what would be the purpose of that realignment and relocation?

To facilitate ingress and egress into the facility for, you know, for people who live there, also for emergency vehicles.

Okay. In the street department opinion, is the reconfiguration of this driveway and changing it from that curb shape to straight on improve ingress and egress?

I'm going to object an opinion cause for an expert testimony, which you objected to prior.

So opinion evidence would not be admissible, only facts.

I'm going to let him answer the question as to what he thinks of the driveway when it was moved.

And improving ingress and egress, is there also a safety component to that as well?

So when we look at the alignment, we take a look at the turning templates per our AASHTO standards.

We take a look to see our SU-30, which is the size of about a bus, would turn in there.

It also is similar to some of our fire trucks.

And so we make sure that the ingress and egress into properties is available.

And is it the streets department's position that the relocation of this curb cut is just that?

It's a relocation of an existing curb cut, not the creation of a new means of ingress and egress for this property?

Objection. He testified clearly that the streets department considers any relocation of a curb cut to be a new application and a new curb cut.

So your question assumes evidence.

I'll rephrase. I'll rephrase.

I'll rephrase.

For this driveway, Mr. Montenegro, you'll agree that the purpose of a curb cut is to facilitate ingress and egress to a property for the code?

Yes.

Okay.

And a curb cut facilitates access to a driveway, which then can provide the access to specific parking spaces, right?

Yes.

and um just a moment uh michael i think for the record you should identify what you have

up on the screen right now oh sorry uh for the record this is the design plan

um that was uh the curb cut detail and turning plan

um so prior to uh say 2020 there was one curb cut that led to this driveway that facilitated

ingress and egress to this driveway correct the plans to show an existing uh curve cut there that

led to a driveway okay and there uh the approved plan shows one curb cut leading to that existing

driveway correct correct so previously i'm objecting that what does the approved plan mean

there are like multiple plans that were approved at different times by the streets department and

you're and you're being too vague we need to know exactly which plan you're referring to mr phillips

just do your question over absolutely when i say approved plan mr montanez i'm talking about the

plan that was approved by streets department and that for which mr masters and his clients have

appealed and that is the subject of this hearing. So that plan, as approved, indicates one curb cut

to access the driveway from Pastoria Street, correct? The plans are showing me show a curb cut

that's been approved by the streets department to access the driveway. Okay. So previously,

there was one curb cut before 2020, and currently there is one curb cut that provides access

to this driveway, correct? I'm going to object because the plans clearly show there's more than

one curb cut that was approved, and so you're trying to introduce evidence that's not in the

record. Okay, I'll clarify one more time. There is one curb cut, as we sit here today, that provides

access for ingress and egress to the driveway from pastoral industry. Is that correct?

Yes.

And that was the same condition prior to the relocation of this curb cut, correct?

Yes.

Okay. So would you agree that if there was one curb cut prior to 2020, and they're providing access to this drive oil pastoria, and there is one curb cut?

And they're providing access to this driveway of Pastoria.

And there is one curb cut today that provides access to this driveway of Pastoria, that there is not an additional curb cut from 2020.

There's not more than one. There's still one. Would you agree with that?

I'm objecting because you're asking him to make a legal conclusion that you objected before, that he's not an expert witness,

and he cannot testify to what meets the proviso.

But Mr. Masters, I think he can answer that as a fact witness

that there's one driveway now, period.

Right, but that's not what Mr. Phillips was asking, Mr. Chair.

He was asking the distinction between additional and new.

So Mr. Phillips, just ask that one more time and try to rephrase it a little bit.

Okay.

Mr. Montez, would you consider there to be an additional curb cut as the result of the relocation and reconfiguration of the curb cut that we have been talking about today?

Would you consider that an additional curb cut?

I'm still objecting.

You know what?

I don't need the witness to cut the file.

I'm going to allow him to answer that question.

Yeah.

In regards to the driveway, there is one curb.

And there was one before, there's one now.

There was one before and there's one now in regards to the driveway.

And the moving of that driveway, the relocating of it to a line, that nine feet, again, was at the specific request of the streets department to better align and better facilitate ingress and egress?

That is correct. It was better, it was aligned at the request of the streets department.

Okay.

I have no further questions for Mr. Montanegh.

Mr. Masters, do you want to?

Yes.

Could you stop sharing?

It's going to take a moment to see if I can find the right plan.

Mr. Montanez, we are looking at a plan that is dated

6-17-2019.

And this is the plan that we are contesting in our appeal today.

All right, it's hard for me to move it and keep it big.

If I can just interrupt for a moment, I'm a little bit concerned, and I'm as guilty

of this as anybody but it does not appear that anybody has identified these exhibits uh in terms

of exhibit numbers or anything so i just would like to have it clarified for the record this is

the plan that was uh apparently originally drafted by polson engineers in 2019 but the it was not

approved by the streets department until 2021 and it has the electronic stamp uh from the streets

department engineer uh a dated 2021 uh so just so the record's clear um yes i'm sorry yeah so

it looks like it was originally drafted 2019 paulson i guess updated it in 2021 and then

streets approved it in 2021 uh so and it so we can stipulate that this is the plan that was

this is the streets the plan that was provided streets department for their prerequisite approval

for the issuance of the zoning permit that is the subject of this uh particular appeal right

all right mr montanus um we you've been testifying quite a bit about uh this

relocated curcut connecting to this driveway this driveway to pastoria street correct

Correct. And you were asked by Mr. Phillips a moment ago to basically to say whether it's true or not.

uh to basically um to say whether it's true or not that this plan only shows one curb cut

which is the relocated curb cut do you recall that

i was showing a picture asking about the driveway but this plan shows the driveway and

other different curve cuts you can tell by the top of curve bottom of curve different

measurements. Do you see this notation here that says curb cut existing?

I do. And do you are pointing? To that point, yes. Okay. So on this plan, which was submitted

for approval by LNI, where there's a new curb cut along connecting the driveway to Pastorius,

There is also an existing curb cut that is indicated on the same plan. Is that correct?

It does point out an existing curb cut, yes.

So your testimony before that there's only one curb cut on this new plan needs to be changed to there is more than one curb cut, is that correct?

Objection, that was not his testimony. He was specifically asked about curb cuts providing access to the drive oil pastoria.

That was the specific question, and I was clear to ask that specific question.

Fontanez, let me ask the question then, because I get to ask the question at this point. Is there more than one curb cut that is depicted and shown on these plans in 2021 along Pastoria Street?

it shows a um and i have to look at it does have a what it says curve cut existing and i'm not

quite sure what it refers to where the curve cut previously mentioned to me on the pictures or an

or a different curve cut i would have to look at the plans closely uh but it does have a curve

that said existing uh but by the top of curve and bottom of curve different plans that they show

in it, it shows multiple curve cuts.

Yeah, isn't it true that there are actually

curve cuts along the entire boundary of

Pastoria Street with this property

through all of the paver patios

until the very property boundary?

Isn't that correct?

By the top of curve and bottom of curve that I'm reading, my interpretation is that those are curve cuts.

These are existing curve cuts?

I do not know. I'm looking at the plans where it says proposed and existing.

And that's the slopes that are proposed and existing, so that water would flow.

are you looking at the same plan i am now are you looking at a different plan

i'm looking at the same well i'm looking at what you're sharing okay i don't know what

i can only comment on what i'm looking at and if you just if you look at the

uh survey points uh you have a top of curve and a bottom of curve which normally represent a curve

cut. Oh, the top-up curve, bottom-up curve. Okay. And what does that normally represent?

It would be, there are marks for us in order to determine the top of the curve and the bottom of

the curve, along with the bottom of curve is how we determine which way the water's flowing,

because that's normally on the asphalt. So that's how we come up with the grade of the street,

so that water will flow towards the inlets.

Okay, so looking at these top-up-curb, bottom-up-curb numbers,

how many curb cuts are you seeing along Pastoria Street?

One, two, three, four.

Okay.

I'm guessing because it's going kind of fast, I would actually, but six, and that is a guess I would need to have this plan laid out and look at as a whole plan, not just a section at a time.

Okay, I have no further questions.

Anyone else have any further questions to the witness?

I have some very brief redirect, just to clarify.

um mr montan as we had mentioned uh earlier that a curb cut um facilitates vehicular access

to a property um from uh a roadway right

from a roadway, right? And the areas that Mr. Masters were showing you in front of,

you know, what references paper patios, would you agree that those curb cuts are not intended to

provide access or vehicular access to a driveway or to that property?

I'm going to object because it clearly was the intention to provide access to a driveway because

your client has submitted new plans calling for parking in those exact locations. So how would

Mr. Montanez know the intent better than your own client who put in new plans to try to legalize all

the parking? All right, I'll take a step back. I'm going to let Mr. Montanez answer the question.

So curb cuts normally facilitate the ingress and egress into a property.

you know how what physically is inside the property whether it be pavers asphalt concrete

that's up to the developer and and Mr. Montez you're aware that there's a long back history to

the parking configuration and and approvals are you not yes I've been subpoenaed I think 12 times

Right. And you're aware that there was a period, are you aware that there was a period of time when the curb cuts in that entire proviso was thrown out by the court and all of these curb cuts were permitted and approved?

I'm going to object because that's beyond the scope. We're not talking about the legal history of it.

It did not be on the scope of you.

Listen, if he if he knows, if he knows.

I was not aware of what the court rulings were because I was not present at that time.

But you were aware that at some point there was like 150 foot curb cut proposed and then there were.

Yes, the email was shown that the curb cuts that were approved were rescinded by the court order.

Right. And so, you know, now there are bollards up in those curb cuts or not intended to facilitate access.

But when we're talking about just access to the driveway that we've all that we've been talking about, the existing driveway,

Would you, does what Mr. Masters showed you with those top curve, bottom curve, et cetera, change your testimony as to the number of curb cuts along past aureus that provide access to the driveway?

No, a curb cut's still on the curb, whether it's blocked by bollards or not, it's still illegal, it's still a curb cut within the right-of-way.

Okay. But how many curb cuts provide access to the existing driveway?

I'm assuming you meant the driveway that facilitates access to the entire property?

Correct.

One curb cut.

Thank you.

Opus store. I'm sorry. I should have been specific.

One opus store is correct. I have no further questions.

Anyone else have any further questions?