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Hearing video

ZBA Hearing - November 3, 2020

Philadelphia Zoning Board of Adjustment (ZBA)Nov 3, 20206h 16m

Swear in front of me to tell the truth, the whole truth, nothing but the truth.

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We're in front of you to tell the truth, the whole truth, nothing but the truth.

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I do.

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I do.

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Please proceed.

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Yes, my office this morning sent a letter regarding 3642 North 21st Street.

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I don't know if that's on your list of continued matters.

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I just want to make sure that was the case.

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Okay, that's number seven on our list, confessor.

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MI2020-001513, 3642 North 21st Street is continued.

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Thank you.

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chair we have richard de marco good afternoon mr de marco please identify yourself with the

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records by your name and i'll swear you in uh hello mr chairman can you hear me okay yes

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uh good afternoon i had a case today uh 1815 uh conestoga street i'm sorry did we get sworn in i

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Do you swear and affirm to tell the truth, the whole truth and nothing but the truth?

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I do.

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Please proceed.

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It's 1815 Conestoga Street.

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Number 12 on our list.

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Okay.

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Right.

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The MI number is 2020-000-305.

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I no longer represent this applicant.

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I'd ask for a continuance in order to allow him to obtain new counsel.

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no problem unless there's anyone out there who objects to this case being continued

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no chair thank you mi 2020 that's 000 305 1815 south conestoga street is continued

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thank you thank you

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we can proceed. Okay, as a result of the conversation with Sharon Soletta,

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I understand we're going to go to case number two first, confessor.

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MI 2020-001458, 7519 Ridge Avenue. I'm sorry, for some reason, two hands popped up.

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I guess they're for this case. I don't know.

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Alan, are you for this case?

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No, I'm not, but I did remember that someone requested a continuance for 1419 West Grange

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Avenue MI-2020-001494. We're in opposition to that continuance request.

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yeah we have it we have it on our list but since that that if the attorney or applicant

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doesn't request a continuous we move forward until that time for you to speak to it okay

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sounds great just want to make sure that's on the two o'clock list yes sir

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okay anyone else it's number 13 on your list and we're prepared to move forward with unless

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a discussion is had by with the board of something otherwise okay thank you okay west

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grange i see it any other requests for continuances or withdrawals

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all right as i said mi 2020-001458 7519 ridge avenue this is a remand case number two on our list

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That'll be, I believe, Mr. DeMarco.

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Also attorney Paul Toner.

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I'm sorry Chair, if I could request, if you are not here for that address, please lower

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your hand and allow me to promote the required people.

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Thank you.

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we only need hands up for 7519 ridge avenue all others please uh put your hand down until after

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this case okay chair um i should have promoted mr demarco and mr toner

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mr demarco you're still under oath mr toner

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i'm here hi mr toner please identify yourself with a record spell your first and last name

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and i'll swear you in thank you very much mr chairman my name is paul toner with orphan

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news and toner i'm here on behalf of the upper roxburgh civic association do you swear and

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firm to tell the truth the whole truth nothing but the truth i do thank you uh gentlemen

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um i i'm assuming mr demarco's first or how you guys want to work it out

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um i i'm assuming mr demarco's first or how

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this is the first time it's been listed

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the remand yes this is sharon saletta can i make a brief statement sure please um this appeal was

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heard by the board i believe in 2017 late 2017 you granted variances for a multi-family

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dwelling. The required variances were for multifamily use and for steep slope.

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At that hearing, the RCO raised the issue of whether the proposal additionally met the

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impervious coverage requirements that existed at the time. Because that was not a refusal,

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you did not address it. This case was appealed to the Court of Common Pleas, and then to the

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commonwealth court it was remanded strictly as to the issue and i'll read from the court's order

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so that the board may appropriately address whether brannigan's fourth proposal complies

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with the zoning code's impervious coverage limitations for the overlay district so at

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least initially you will be arguments should go to whether it met the requirements that existed at

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the time. Does counsel agree with that summary? I do, yes. I would say yes, and I would add the

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board is empowered to resolve the issue as it sees fit. The Commonwealth Court has determined

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that the record was unclear as to whether our fourth proposal met the impervious coverage

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requirements. Therefore, it has obviously found a deficient factual record. We are here to

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supplement that record under the local agency law. You are empowered specifically to hear

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whatever evidence you want to hear on that specific issue to supplement the record. It's

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obvious from the rules from the local agency law and the case law on these types of remands. We're

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not here to reinvent the wheel. We're not here to revisit other issues, but we're certainly going to

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help you, Mr. Chairman and the board, address and resolve this issue as the Commonwealth Court wants

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you to. I would also say that it is unequivocal and res judicata that your decision granting

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my client variances has been upheld with regard to two critical matters. One, that this property

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unequivocally suffers from an unnecessary hardship for a multitude of reasons. You heard

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days of testimony from my clients and his witnesses regarding why the property suffers

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from a hardship. The Commonwealth Court has affirmed you with regard to that. Also, this

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property and my client's final plan, you were affirmed on that the 16 units were the least

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minimum variance. So Mr. Chairman and members of the board, you have been affirmed on every other

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issue with regard to this case with the exception of the court was unclear regarding the issue

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raised by the protestants, by the way, was not in the refusal, but the protestants elected to try

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to get you to strictly enforce the impervious coverage requirements. We have one on every

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other issue we're only here to see whether our final proposal either meets the requirement

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or if you choose you are fully empowered to grant an additional variance if you see fit not only

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mr demarco do so you should yes yes sorry i i think we understand that and okay

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it would just be a matter of sequencing i think first the board would be required to

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determine if it did or did not meet the impervious coverage requirements that existed at the time

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and then the second issue if it determines that it's not what is the next step but let's

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okay thank you all right thank you thank you okay we got it uh so again Sharon uh we the board

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is not bound by anything other than dealing we could bifurcate maybe that's the wrong word

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and just deal with the impervious soil coverage issue?

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I think that that would make sense to take testimony today

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on the impervious coverage issue, deliberate on that,

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and then make a determination on what the next step is,

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depending on what the answer to the first question is.

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Thank you. Mr. Toner.

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Yes, Mr. Chairman.

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If I could just ask for a point of clarification

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as to what the scope of this free manned order is.

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Both the Commonwealth Court and the Philadelphia Court of Common Pleas are very clear that

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the sole issue on remand is whether the fourth application, and this was the fourth proposal

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that was delivered to the Zoning Board in December of 2017, the remand is very clear

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The remand is very clear and very narrow that the board is to take testimony on whether the

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and very narrow that the Board is to take testimony on whether

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fourth proposal complies with the terms of the Wissickon Watershed Ordinance before it was then

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subsequently amended after our appeal is taken. So in terms of testimony, we believe that the

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narrow focus should be on that one plan, the fourth proposal,

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and on the ordinance as it existed when they made their initial application.

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um okay um

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so i mean hypothetically i had this conversation with sharon if the applicant were to say

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we're going to reapply for an entirely new application everything stays the same in the

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first in the original application that the board approved and in the new application

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the issue of the impervious coverage is now by right assuming the board would vote the way they

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did back in 2017 and if we approved the project with the impervious coverage issue

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there would be no argument does that does that make sense what i'm saying well i think there

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yes and no i think there are a couple layers of assumptions there assuming that they reapply

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some new application for a review by L&I and the Planning Commission of an identical plan,

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then yes. If there are substantive changes to the plan, obviously there's no race judicata or there's

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no binding precedent on a new plan that hasn't previously been reviewed and subject to court

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review. But my understanding, correct me for right, Mr. DeMarc, there is no change in the original

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plan. Right. What we voted on then is what we, if technically, if we were voting on the full case

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today, there will be no change in the plan that was presented to the board back in 2017.

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Yeah.

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Except for the coverage, the impervious coverage.

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Yeah.

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We have absolutely no plans to change our proposal from the final plan that you approved.

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The reason why there's some, I think, some discussion here is I fully prepared for this

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hearing, Mr. Chairman, and I have evidence to introduce.

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should you somehow find, which I don't think is likely,

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but should you find that our final plan

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doesn't meet the standard of impervious coverage.

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We have an illustrative plan to show

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what the project would look like

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should you do what the Protestants want,

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which is strict adherence and a very strict reading

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of the definition of impervious coverage.

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So we would not get credit for porous papers.

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Mr. DeMarco can I say the thing is we just don't want to blur these two issues if if you are saying

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that if the board were to decide that you did not meet the impervious coverage requirements that

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existed at the time I would say that we are back where we were in the initial hearing that

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we decided that there was an additional refusal before us and you would have perhaps been

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entitled to present evidence as to why that was also entitled to a variance. Again,

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we'd like to do it in two steps. Okay. I'm fully prepared for both. That's why

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I just want you to know that I think confused the opposition because I have illustrative plans for

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the next step. But if your board wants to deal with the first step first, fine. Again, I wasn't

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suggesting that you file a new application i'm just trying to put this in some context

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rather than go back over the plan again which we already agreed to the only real issue is that's

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still out there or remains out there uh is the impervious coverage which is would now have been

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a right if it was by right then we wouldn't be having this conversation okay assuming the board

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vote. I'm prepared for both phases of this, Mr. Chairman. All right. So, okay, gentlemen,

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and Sharon, please jump in if these lawyers get a little out of hand. Thank you.

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So there are a number of our experts that are on the call. I don't see them in the gallery.

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So I have George Ritter, who would probably want to have his hand raised at this point,

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and i have david plant from uh rogerio plant um they are stormwater management and engineers

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uh they're both i do have also david branigan who's my client he's on the call as well i don't

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need him to testify on your narrow on the narrow issue that you want to hear from i think george

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would be the guy but david is our engineer and would of course agree with george's testimony so

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could just do George and and I'll I'll keep it to the focus that you want. Thank you. Mr. DeMarco,

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Thank you. Mr. DeMarco, can I ask, would it make sense for Ms. Brumbelow to testify, maybe first?

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can I ask would it make sense for Ms. Brumbelow to testify?

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Whatever you want, Sharon. Why don't we do that? Yeah. Just to get her position on the record and

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then thank you. Paula, good afternoon. Please identify yourself in the record. Hi, I'm Paula

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Brumbelow-Burns with the City Planning Commission. I'm sorry, this is a newer court reporter. Paula,

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P-A-U-L-A, Brumbelow, B as in boy, R-U, M as in Mary, B as in boy, L-O-W, Burns, B-U-R-N-S.

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I am a planner.

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You put the planning commission, and I'm going to swear you in.

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All right.

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You're swearing to affirm to tell the truth, the whole truth, and nothing but the truth.

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I do.

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And happy birthday again.

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Why, thank you.

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Happy birthday.

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Thank you.

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It's more important that it's election day and everybody votes, but it's like the best

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of all birthdays.

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So in reviewing of the zoning code for the Wissahick and Watershed, the applicant, and correct me if I am wrong because I didn't get the full package, but the applicant had a 45% coverage limitation, and at the time, the planner that reviewed the plan felt that the applicant met zoning code 14-510, Section 6, Subsection C.

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Accordingly with the information provided at the time of application submission,

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the watershed impervious coverage amount was not disapproved by the Planning Commission staff.

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And what 14-5106C states is that for additional impervious coverage,

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additional impervious coverage in excess of the coverage permitted by 14-5106A

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above may be permitted by the commission and after review and comment by the water department and

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other appropriate city agencies according to the following criteria that stormwater leaving the

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property shall be substantially similar in effect to that under basic impervious coverage limitations

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stormwater countermeasures shall not require excessive or significant maintenance

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the design of stormwater countermeasures must take account of stormwater runoff that enters the

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property from adjacent land. The method of handling runoff on the site must be in accord with sound

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engineering practices and must not significantly accelerate on-site erosion and that such

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development must not significantly diminish the infiltration capacity of the site. I'd like to

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put on the record that while I did not necessarily review the site plan, I was the planner at the

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zoning board and I do recall this plan being at the counter in the discussion and because they

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had to go to the water department for stormwater management. The planner that signed off had worked

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and thought that those criteria had been met. So we did not give it a disapproval for a watershed

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variance. Thank you. You're welcome. Can I ask Paula to clarify something? I found out something

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interesting and I just want to make sure I fully understand this. Do not have my code with me today.

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I uh my my witnesses uh will testify if necessary that the line that only that only most of the site

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falls within category four and that a portion of the site towards the front has no

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impervious coverage limitation is that right yeah if that is true because you'd have the map in the

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