ZBA Hearing - March 17, 2026

The only variance here was minimal. It was for heritage trees. Everything else on the site is by right.

There's just a lot of, if I can show you this tab, can you see this on my screen?

This is the site here. So it's extremely wooded and covered in a ton of trees.

so we had a long-winded arborist report to document all the heritage trees and then have

sort of very comprehensive planning around removal and replacement of trees and then as mentioned

sort of this it's sort of a flag lot so it has this skinny piece here and then it has all this

land down here and then here's the Topohock and Wayne I think it's the Chestnut Hill West line

which is here and septa has an easement all throughout here so we have to work with them

to extend the utilities from the site given there's no utilities on our parcel and so

given that and the shared driveway requires a significant amount of collaboration with septa

which is sort of why this hasn't been moved forward more more quickly and i think as i

mentioned as we all know there's been delays with septa personnel changes um you know financial

issues that we're all aware of. So that's been, and we literally cannot develop a site without

the extension of the utilities. So that's sort of where we've been. We, like I said, everything

else on this permit is by right, except the heritage trees. It was really de minimis

request that this board granted. Just to go through sort of like the timeline of this,

which was in the appeal, just so you kind of have a sense of the work that we've put in here

back in 2021 we got the zoning permit and then you know obviously as mentioned the location

within SEPTA back we started working with SEPTA back in 2022 following the zoning approval the

owners began coordination with their legal engineering departments to secure a required

utility easement beneath SEPTA's private drive which is again a prerequisite to the construction

here um back in 22 and 23 there was additional coordination with our attorneys civil engineers

with the easement legal descriptions exhibits and as you can imagine trying to get an easement

and documentation with septa is not light work back in 2023 they implemented implemented a new

internal real estate easement approval process in the middle of us doing this and assigned new

personnel who hadn't worked on this before.

So again, had to do a re-review, another review of this same easement, new engineering coordination

and appraisal, updated legal negotiations and documentation.

And then it was finally approved more than a year after this revised review.

And then again, two and a half years after the initial coordination commenced back in

December 2022.

We then had to submit early in 2025 the easement materials for the mandatory Federal Transit

administration review and approval which is required for scepter related property interests

And upon final easement review, there was additional language that was included and an additional SEPTA and FTA review. At that point, the zoning permit was becoming expired. It ended in November 2023. It was previously granted the one-year exception.

and upon final easement review there was additional language that was included

But given all of this work and the needing to have SEPTA finalized and review the plans, we couldn't submit for a building permit without this approval.

Whenever you submit your property rights or what you're trying to do includes another parcel, you also need their approval and participation.

So, again, obviously, we didn't have enough time between 2021 and getting this permit and 2025 with all these requirements to pull a building permit and have it issued in that time.

um again i i think you can see that put in the record but it's all raw land we need to extend

the utilities which is basically sort of an uncommon uh practice generally in the city it's

typically not you don't usually need to coordinate this heavily with um septa or another agency in

that way aside from you know our usual streets and water uh pico or pgw um so this required

a lot more. And again, there was some changes and delays on SEPTA's side with some of the funding

and their requirements, implementing a whole new department, new personnel, and sort of the middle

of all of this. And again, this is the critical path needed to get a building permit. As mentioned

by Mark Kendall, we've worked consistently with them. This is a transit-oriented development that

sought very little relief from the city. They've been working with SEPTA for years to try to get

this done and you know they are committed to working with us to continue this process and

again it's required in order to move this project forward i don't know that the zoning plans are

that relevant for this but just uh just to try to give sort of a update or i guess a refresher

of this project um as mentioned a lot of removal of and replacement of trees 78 units on the site

with 24 parking spaces across two parcels that are combined for zoning reasons with the unity

of use. Again, it's an interesting sort of flag lot with, again, all the easements and

shared rights with SEPTA. Just from a legal perspective, I think just worth noting that

the board has jurisdiction pursuant to Philadelphia Zoning Code 1430315 to hear appeals from the

determination of L&I and to grant such relief as necessary, including variances to implement

the purposes of the code. We obviously obtained valid zoning permits for the development of Wayne

Avenue. The property is subject to this easement, requiring coordination approvals before construction.

We acted diligently and continuously in pursuing the development, and the progress has been

materially delayed due to SEPTA's inability to advance the required work within the easement

area. The delays are part of a broader system-wide issues affecting SEPTA, including funding

restraints, personnel shortages, regional project backlogs, and as a result, the applicant has been

unable to proceed within standard permit timelines, and L&I has subsequently determined that the

permits have expired and they can't grant additional extensions. We believe that the L&I

determination should be reversed because the alleged expiration results from governmental

delays, not applicant inaction. The expiration here is not a product of an action. It's a result

of delay by government whose participation is mandatory for development. Pennsylvania courts

have made clear that zoning enforcement should not operate to penalize applicants for delays

outside their control and that the board has authority to grant relief through appeal and

variance under Philadelphia zoning code 1430315. The board may reverse L&I determinations and grant

variance relief where strict application of the code creates unnecessary hardship. So the board

is not limited to use or dimensional regulations and so the board may grant a variance from the

terms of the zoning code where the unnecessary hardship is established in that in this instance

obviously through governmental delays and things outside of the applicant's control. Additionally

it's worth noting section 91 sorry 910.2 of the Pennsylvania Municipality's planning code

where courts have recognized that procedural or timing related provisions may be relaxed

where strict enforcement would be inequitable due to governmental delays. There's a number of cases

Petrovsky or zoning hearing board where rigid application of the zoning rules are not required

where an applicant has acted in good faith and is prevented from proceeding due to circumstances

beyond their control. Here, the permit is not tied to the merits of the project, but to timing

constraints that were rendered impossible to meet due to SEPTA's required involvement and

documented delays. So under these circumstances, we believe the board has both the authority and

equitable basis to grant relief. I have Maria Sauerbeer and Leslie Smallwood-Lewis on to adopt

um smallwood lewis on to adopt my testimony and then we're happy to answer you know any questions

my testimony and then we're happy

uh that you have all right why don't why don't you bring your client on sure

could that person please raise their hand

all righty maria sir bear is being promoted to panelists thank you

morning good morning could you please state your name and spell before the sonographer

maria sour beer m-a-r-i-a sour beer s-o-u-r-b-e-e-r do you swear or affirm to tell the truth the

whole truth nothing but the truth yes council maria have you heard my testimony today do you

believe it to be true and accurate and do you adopt it as your own uh yes i do is there anything

you want to add um to the testimony today yeah i just you know i want to

reiterate that we have a very healthy and positive relationship with septa and have worked with them

tirelessly for the last few years to get this accomplished they have a multi-layered process

engineering operations real estate legal uh their committee their board and then subsequently fta

all need to review and approve there have been um you know staff changes procedural changes

that have um delayed the process and it hasn't helped that the uh you know federal issues had

made FTA's approval lengthy and time-consuming and a little, you know, they are understaffed and

that process is quite slow. So I am very optimistic that we are marching towards the

path of getting this project to happen, but the amount of time has just been, you know,

not what we anticipated. If you were to guess, if we were able to get relief from the board,

do you have any sense of timing that we might need for something like this?

I, you know, I hesitate to say that, say a time, but I would think that, you know, nine months would be enough. We've completed our traffic study. We do need to go in and have the appraisals redone because FTA will require an updated appraisal. So that will take a little bit of time and then just SEPTA's internal process and getting that FTA approval, you know, those things all take time, you know, 12 months, I don't know, nine to 12 months.

OK. OK. Do we want to bring Leslie on or. No. Wait till they're done. Do you have anything else? No, not at this time. All right. John. No questions for any of the appellants. OK. Rachel, your case is done. Yeah, I think I would just mention.

or go ahead i'm sorry sorry i just would mention from a timing perspective i think um you know if

it's nine months to get through septa but then they need to submit for building permits which

could take you know like another six months i think a year year and a half uh extension would

would get us would get us there would be my thought okay thank you john you want to present

your case yeah just very briefly the city's position is is straightforward uh pursuant to

philadelphia code section 14 303 10d the city's position is that l and i's hands are kind of tied

here we've given them all the extensions that we can which is up to four years as ms pritzker

showed i believe the permit was issued november 16 2021 the extension that she is appealing here

that that was extended the permit to november 16th 2025 that's the four-year maximum that l and i

can extend the permit for but even there this permit was issued by variants issued by the

board and so it's actually the board's discretion whether to extend this permit further okay um

did you rachel you want to respond to any of that yeah we we've had conversations with the city on

this so we're aware that they can't do anything further and that's why we're in front of the

zoning board of adjustment i don't think any of us disagree that the zoning board ultimately has

that ability and authority and so that's why we're here in front of the zoning board and

and asking for relief today all right does anybody any of the board members have any questions

All right. So, Hilary, we're going to continue this. How about two weeks from tomorrow for me?

I'm sorry. We have two hands currently raised from the virtual audience.

No, no. We don't take testimony in L&I cases.

Okay. All right.

All right, um, so just give me a 2nd chair, because, um, so April, so 2 weeks to be April 1st, but we do not have hearings that day. So the next Wednesday would be, um, April 8th, right? So we're going to continue to April 8th.

So, just give me a second.

At 930 AM, we will vote and we'll consider it in the executive session prior. Okay. Thank you for coming in. We appreciate it. Thank you board members. Thank you. And thanks for letting us go early. We appreciate that.

okay number

number five

number five is uh mi 2025 002 443 537 sanger street this is a resumptive hearing and we do have an

interpreter

that's good morning how are you

good morning interpreter good morning sir all right could you please

can you turn your video on if possible i am trying but it was disabled for some

reason okay all right um please state your name and spelled for the stenographer well it says it

i cannot start it because it was disabled by the host um but if you let me i can turn on my camera

my name is josue arriaga it's j-o-s-u-e arriaga is a-r-r-e-a-g-a do you swear or affirm that you

will interpret accurately completely and partially from english to spanish and from spanish to english

to the best of your ability i do could you please call anna slisa figurio a n-y-e-l-i-c-a

figurio is f-i-g-u-e-r-o-a

estamos llamando la sala la señora analiza figueroa

muy buenos días o angélica perdón como esta señora figueroa muy bien muy buenos días mi

My name is Josue and I'm going to be your interpreter.

Everything we're going to talk about is confidential,

and to guarantee the quality of the call,

we're going to talk in full sentences and short sentences.

Go ahead, Mr. Chair.

Could you please have her state her name

and spell for the stenographer?

Angelica Marini Figueroa Núñez.

A-N-Y-E...

Bueno, A-N-Y-E-L-I-C-A.

F-I-H-U-E-R-O-A, Angelica Figueroa.

I think it's Angelica, it's A-N-Y-E-L-I-C-A, Figueroa is F-I-G-U-E-R-O-A.

So, could you please ask her, do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?

levante la mano derecha afirma decir la verdad solamente la verdad y nada más que la verdad

sí i do okay so this is a resumptive hearing but just to be clear where we are this application

is for a takeout restaurant and for a convenience store

Serving hot food, retail sales of food, beverages, and groceries.

sirviendo comida caliente, ventas de comida, bebidas y víveres.

Si.

With incidental use of serving hot foods on the first floor of the existing structure.

Con el uso incidente de servir comidas calientes en el primer piso de la estructura existente.

Si.

Yes.

So this is a resumptive hearing. And what we need is all the updates that she can tell us about what she's done since the last hearing. And then there'll be questions from the board and public testimony and planning commission. All right. So what we would want is we know that there's been an amended refusal. We've got proof of tax compliance and reviewed the updated proof of posting.

So just let her tell us everything that she's done since the last meeting and then what will go from there, okay?

Ok, esta es una audiencia de reanudación, ¿verdad? Y lo que nosotros necesitamos actualmente son todas las actualizaciones que usted nos pueda dar acerca de lo que se ha hecho desde la última audiencia.

Y entonces van a haber ciertas preguntas de la Junta y testimonio público y también el comisionado de planeación, ¿sí? Entonces, lo que nosotros quisiéramos es que, si es que hay un rechazo de enmienda, ¿verdad?, y usted tiene las pruebas del cumplimiento de los impuestos, ya nosotros hemos revisado, ¿verdad?, las pruebas adicionales que se han posteado. Entonces, quiero que por favor nos diga todo lo que se ha hecho desde esa última reunión y de ahí partimos.

Desde la última reunión solamente teníamos que ver el plano, era para ver el plano, y también para que LNI hablara acerca de que pusieran, en vez de decir take up, en vez de decir restaurant and grocery,

so since the last meeting we were only the only thing left to see was the plans you know and

also I was waiting for the LNI to speak about like because that they wanted me to amend that

instead of saying like restaurant grocery store it has to say takeout so LNI already

sent the refusal but it was because of the amended refusal basically that we were in standby.

or is that right just amended refusal i'm sorry

um ma'am do you have any um any additional plans or photos since the last hearing to show the board

desde la última audiencia acá para que le muestre a la junta es y

no we have a show that is the new plans

and determine los nuevos planos por favor

did she freeze oh

yeah

i think is she there

it's still here but uh her audio no i know i noticed it froze up there a minute

call her for us again please

I'm not sure.

Let's give her a minute.

So, ah, disculpen que fue que se me,

sin querer que se me quitó el cofre, perdón.

all right so we're looking for plans from her okay

she did say my apologies because my internet went out for a little bit so that's okay

I try to put it, I try to put it, I try to put it, I try to put it in the window.

de buscar la quina guinda

miss figaro it might be helpful if you unshared and then selected the document

that you wish to share and or go to the document you want to share and then hit share from there

I have to go out of the page and I can't.

You're sharing your screen so you should be able to click that share button again to stop sharing.

Dígame, ¿qué le dijo?

pantalla del documento exactamente para que no tenga que estar entrando y saliendo

y aquí