ZBA Hearing - July 18, 2023

I don't.

I just want one one question, Mr. Mantine, is with respect to a curb that has been depressed.

um if the so for instance again we've indicated you have indicated that um with respect to again

first of all let me let me let me put it this way this particular plan the 20 the plan that was

ultimately approved by the street department in 2021 you you were not the person you did not

personally review that plan for purposes of that approval did you no i did not i'm the deputy

commissioner of street time so you're being essentially asked right so you're being asked

to exam you to examine that here in the context of this hearing um but if you have a situation

where a portion of a curb has been depressed because of um the way it was built we'll just

leave it that way the way the way the curb was actually built it's depressed um

if on the plans the plans are not showing vehicular access through those depressed

portions of the curb would those be reviewed as would that would the streets department require

those that curb to be restored or could it be permitted could it be allowed as just simply a

depressed curb for purposes of you know drainage or whatever no streets department would would ask

that the curve be restored okay i have no further any other questions

mr montanis thank you for your testimony thank you so much thank you may he be excused for the

Thank you so much. Thank you. May he be excused for the remainder?

remainder. Yeah, absolutely.

He can. Yeah, absolutely. Mr. Reuter, would you want to start your presentation?

Well, yeah, I mean, just really briefly, we don't. I mean, that that's Mr. Montaigne's is the city's witness in this matter.

We think that the the whole issue here from the very beginning, as is true of, I would say, 90 percent of appeals against L&I is a it's a legal question.

And that is, you know, we have the plans and the permit that was approved by this by the city and on the face of the application materials is that did the city error in issuing those permits?

and in terms of how the code was applied to the plans that were submitted.

So it's the city's position, and I think the court's position has always been

that interpretation and the meaning of terms in ordinances and statutes

is strictly a question of law.

So we have plans that were submitted that do show a driveway that was reconfigured.

The question of whether or not that driveway, the moving of that driveway constitutes a new curb cut or an additional curb cut is a question of law for this board to determine.

It's the city's position, I think, consistent with the property owner, that there is no additional curb cut as a result of moving that driveway.

I think it's pretty self-evident. We didn't see it so much today, but in previous hearings, we saw plenty of photos of the existing or the pre-existing conditions of that driveway and curb cut where you had the vehicle would come in.

if a vehicle were to access that driveway from that side it would come in and then dogleg around

the new construction clearly if you have even if we're talking about restricting it solely to

emergency vehicles or ladder trucks or something it would be difficult uh for a truck to be able

to maneuver that kind of a turn so for safety it's self-evident uh for safety reasons that the

The driveway and curb cut were reconfigured, and I believe there was reference to the AASHTO standards, so highway engineering standards, all of which are geared around public safety and what is the best configuration and what makes the most engineering sense.

So the city doesn't dispute that we did require the curb cut and the driveway to be reconfigured. We do not believe that that violates the court's position.

As far as the depressed portions of the curb along the other depressed portions of the curb along Pastorius, if the Streets Department considers it a curb cut because the Streets Department does, and I think Mr. Montanez was clear throughout his testimony, the Streets Department reviews these applications from their perspective of basically how the

roadway the curb and the sidewalk which doesn't exist here but basically how the overall right

of way is maintained so that's that's their purview they make a determination of what can

be allowed and what makes engineering sense whether the lines and grades are being followed

properly in accordance with their direction the issue of whether they are curb cuts for purpose

of the vehicular access which is the zoning question is again for this board to make a

determination the plans that were submitted in 2019 may have retained the depressed portions

of that curb and it may be that the streets department considers those curb cuts for purposes

of their review and as can be seen they they approve them we agree that those depressed areas

that those what they call paved patio areas cannot be used for parking that's the zoning question

that's before the board. So are these curb cuts for purpose of accessing parking? And we agree

they are not. And the plans show that they are not. The plans show a paved patio that has a

depressed curb in front of it. The issue of whether the streets department is going to require those

curbs to be raised or lifted at some other point is that's what they do that through what's called

a curb and footway notice uh which may or may not have even been issued in this in this matter

i think they're waiting to see what happens here uh but we agree that those patio areas

patio areas, the paved patio areas that you've seen on the plans that you've looked at. And

the paved patio areas that you've seen on the plans that

basically, I think today we mostly concentrated on this 2021, the 2021 approved plan. It clearly

shows that those are not parking spaces. So if somebody wants to drive up on their front lawn,

that's a violation. If somebody wants to park a car on those patios, that's a violation. So

whether the portion of the curb in front of those spots is depressed or not doesn't make them curb

cuts for purposes of the zoning code which is the issue before you not for purposes of highway

engineering standards so the position of the city is that we agree with mr masters and his clients

that you cannot use those existing paid patio areas for parking therefore the question of what

the curbs in front of those uh locations is depressed or not it is is moot uh they can't

use them for parking therefore those depressed areas of the curbs are not curb cuts for purposes

of the zoning code which is the issue before you whether the streets department for for engineering

purposes and for their definitions looks at it differently isn't the question so um and then we

just really conclude with that i don't think that there's really any other issue here yes

I will say, obviously, Mr. Phillips' client is wanting to make those curb cuts for purposes of the zoning code, which is why they have the other case where they're seeking a variance.

And on that question, the city is not taking any position.

And I do but I do think that the fact that they are seeking a variance to allow that use is a concession by the property owner as well that they cannot currently use those patio spaces for parking and therefore those depressed areas of the curb in front of those patio portions are not curb cuts for zoning purposes as as the zoning code treats them so and that's basically the city's case.

Thank you.

Thanks.

Mr. Phillips.

We, on behalf of the property owner, we agree with what Mr. Reuter just stated.

The application does not propose any parking in those paved patio areas that all the proposed parking spaces were removed once the Commonwealth Court reinstated the proviso.

So leaving the sole issue for the board's consideration is whether L&I erred and there is a defect in the plan due to the relocation of the one curb cut approximately 20 feet to the west.

It's our position that there are no additional curb cuts.

There was one before and one after, and one is not additional to one.

And the only possible recourse then, if the board decides that there was a violation and

defect by virtue of the relocation of this curb cut, well, the recourse would be compelling

the property owner to tear out the landscape buffer and move the curb cut back approximately

20 feet to the west and go back to this dogleg scenario, which would not be in the public

interest, would not be consistent with the streets department's goal to best facilitate

ingress and egress.

and it also wouldn't change the number of curb cuts or the ability of vehicles to access the

property via the existing driveway. Again, the only functional difference we would have is a

less safe and practical curb cut for the 32 tenants and children living at the property

and now moving that curb cut directly in front of one of the apartments. So, you know, it is our

position that this is really much ado about nothing in just an effort to further fight and

contest the legal permit that was obtained for, you know, pursuant to the Commonwealth

Court's ruling. The one last thing I do want to just touch on, you know, setting that issue aside

is there have been a number of times

when Mr. Masters has referenced the emergency vehicle.

And the reason Mr. Masters has been attuned to that

is because there was a subsequent zoning board proviso

that limited access and egress to emergency vehicles.

The Commonwealth Court expressly and without any question

overturned and vacated that proviso. There is no limitation, as we sit here today, on

overturned and vacated that proviso.

what sort of vehicles may access the curb cut for purposes of ingress and egress. And I want

to point out that in reference to that stipulation, Mr. Reuter subsequently did clarify

to both myself and Mr. Masters that they agree that there is no current prohibition

against emergency access vehicles or limiting the use to emergency access vehicles.

And Mr. Reuter was clear on that and also indicated that he would, to the extent there

was a question that existed, he would clarify that the city takes no position right now on who

may use that curb cut and who may access the property via pastoreas that as of right now,

all the tenants and anybody who is a visitor to the property may utilize that curb cut.

So that brings us back to the question of should this curb cut be relocated 20 feet

to the west to exist in the way that it did prior to the streets department

mandate that it be realigned to better facilitate ingress and egress? And we believe that the

The answer should clearly be no, that the permit is valid, and that the appeal should be dismissed.

Thank you, everyone.

Mr. Chair, I do want to make a closing.

I wasn't aware that you were asking me to do a closing, and I have a brief.

I wasn't asking for a closing.

I was asking them to present their cases.

They did present their cases, and I'm going to have you do a closing brief.

Yes.

That will be due.

I would ask just to make a very, very brief remarks, just as the appellant here. Mr. Phillips is giving you all a straw man argument. The options here isn't to either support our appeal and find that L&I made a mistake by approving those zoning plans,

and then forcing the applicant to restore the prior curb cut.

The issue here is whether the applicant should have been refused

and then come to the zoning board and ask for a variance to put a curb cut.

Mr. Masters, all that you can lay out in your closing brief.

I mean, I understand your points,

But what I want to do is all three will have a chance for closing briefs that will be due next Friday when 728.

And you can lay everything out you want to in that.

Hillary, is that OK?

Yes, Mr. Chair, as long as that deadline works for all of the parties.

Is that OK? 728?

Next Friday?

to get a um a video copy of today's proceedings in a timely way

that should be available within the next couple of days um if if i could respectfully ask that

that be made the monday the 31st the city's uh annual cle takes place on thursday that thursday

and friday and it might i think ms emerson's going to be there too so it would kind of i will

her. So is everybody comfortable with the 31st? Yes. Okay. Not that I'm going to work on it on

the weekend, but I figure I'm sure you can. Thank you very much. Thanks, everyone. We appreciate

it. Thank you. And Mr. Chair, I just want to note for the record that the other than the briefs

that are being submitted by the 31st, close of business, the record is closed. Right. Thank you

very much um is there any case we missed this morning in the uh 9 30 list anyone in the audience

okay all right thanks everyone appreciate it thank you thank you