drawings in front of me but we only review each category depending on where it is on the property
we don't apply the entire more restrictive category to the whole property we only take
the more restrictive category or the section that it's in oh okay so we would get we would get if
i'm correct and i think i am but i'll i can do that through witnesses but if the line falls
somewhere within the property you would apply you'd apply both standards to each portion thank you
i mean i don't i don't need to cross uh paula i i i from what you're telling me you don't need
me to get into anything else i mean the the i think that and i think everybody agrees that
our final plan uh was approved by the planning commission back in december of 2017 right
can i ask a question um given the information that you just presented mr demarco
would this warrant another review by the planning commission to take into consideration
um what category the relevant portions of the property fall into
was that considered the first time or is it something that should be considered again
i think uh well that's for paula right paul's raising it
jaren if the plan showed it that there was a line in between that would have been taken
into account at the time of review i believe mark gregorski was the person who reviewed the plan
I believe Martin Grigorski was the person who reviewed the plan originally for that, and I know he would have taken that into account.
originally
originally.
Thank you.
He is not here today, so we are on my hearsay.
Right, Paul?
Mr. Toner?
Paul, just a couple questions.
At the first hearing, your testimony was the fact that the fourth proposal or a prior iteration of the fourth proposal was approved because of the use of porous paver material, correct?
I'm not saying it was porous paver or not, but I was saying that it met the criteria that is laid out in the zoning code of water infiltration.
I have to share a screen again.
sorry so that would have been the stormwater countermeasures uh the stormwater runoff
the handling of runoff um diminishing infiltration capacity and what countermeasures are we referring
to what specific countermeasures i don't know at this moment i don't have a packet in front
of me to review all of that i know the water department reviews that and what about the
pre and post stormwater calculations do you have that information in front of you i honestly have
nothing in front of me but the code okay and section of the code and you don't have a plan
in front of you either right no okay i have no questions no further questions are you prepared
to go forward mr toner this is the applicant's presentation
or yeah as i told you i'm prepared for both aspects of this i i can have uh what i can do
is since i understand the board just wants to hear about um and you know to confirm the planning
commission's testimony i can present some limited testimony uh you know obviously i i don't know if
this is my only bite at the apple so i was prepared to also you know explain to you why the variance
would be appropriate if you were somehow to find that it didn't meet the standard i have that as
well obviously i'll deal with the first issue and not belabor the other point uh but i certainly
would want that right if the board were to decide somehow that we don't meet the standard with our
final plan you follow me that makes sense excuse me this is sharon again mr toner um the court found
that you were not required to file an independent appeal of the issue of whether L&I had erred,
that you could raise that for the first time at the hearing. But doesn't it essentially still
become an appeal against L&I with you having the burden of proving that the examiner erred and not
including that refusal? Based upon the testimony and the court's findings as to what was included
within the record at the first two presentations. The commonwealth court was very clear that
the factual evidence that was presented at those first two hearings made it extremely
likely that the amount of new impervious coverage was in excess of the 45% permitted by the
Wissigan Worship Category 4 provisions. In terms of meeting our burden, we met our burden
at the first two hearings through the cross-examination of Mr. Ritter and his admission
on pages 41 and 42 of the transcript as well as pages 69 through 72 that the total amount
of impervious ground coverage exceeded 45 percent. So in terms of whether we've made
a prima facie case, it's already been made. The Commonwealth Court's remand order was
for the applicant to specify the precise percentage of impervious ground cover that was being included
and for the board to issue findings in fact on the precise percentage of additional impervious
ground cover so let me let me add something mr chairman and sharon uh the commonwealth court
uh had it has a didn't know that the planning commission had approved the last plan the issue
was uh because the the plan that was included in the record did not have the planning commission
stamp on it um the planning commission did approve the final plan and the commonwealth
court wasn't aware of that so um you know part of my presentation is going to be
you know, part of my presentation is going to be, and it's in my exhibits that I submitted today,
I submitted the December 2017 plan that has the Planning Commission's approval stamp on it. The
Commonwealth Court was not aware of that. So that's one clarification that will be made and
I can make right now, and it's on the record. It's on the plan itself. You have the stamp of
planning commission uh if you don't count let's let's call a spade a spade and we'll get right
to the point here if you don't you don't count porous pavers as porous we're going to be over
45 that's that's a given but it's not clear that the commonwealth court wanted this ultra strict
interpretation of that the the uh the pavers are permeable um and the planning commission's policy
at the time was to include them it's not clear whether the plan whether the court is substituting
its view for the planning commission that would be inappropriate anyway what the court appeared to
want was for the planning commission to say whether it approved the plan or not which it did because
They didn't know that, and that was because the plan and the record wasn't completely updated.
We continued to move along in the process, and we got Planning Commission approval after the board decided the case.
So that's why don't I do this.
May I share my screen?
If I could respond to that before we present any documents in terms of what the Commonwealth Court did or did not approve.
The Commonwealth Court was crystal clear that it was aware that the Philadelphia City Planning Commission had issued prerequisite approval of the first plan that was actually presented to the Philadelphia City Planning Commission.
Its decision on page 19 is very clear as to what it was asking for.
The Commonwealth Court directed the CBA to make, quote, factual findings as to the precise amount in percentage or square footage of area covered by porous elements in the fourth proposal.
The confusion that was at issue with the Commonwealth Court was that because there had been four iterations of the plan that had been reviewed at the various hearings that had been conducted by the Zoning Board of Adjustment,
It wasn't entirely clear when the applicant's expert, its architect, and its land planner were testifying as to impervious elements and impervious area calculations, whether that testimony referred to the first plan, the second plan, the third plan, or the fourth plan.
Its remand was for the applicant to explain, with just looking at the fourth plan, what the impervious calculations are.
Anything more is going far beyond what the Commonwealth Court ordered.
And it expressly recognized the Planning Commission's review of this and my cross-examination of Ms. Brumbelow at the second hearing
when she admitted that the plan had been approved because the applicant was proposing to use porous pavers.
And the Commonwealth Court, in referring back to the Azule decision,
said it's now a matter of law in this Commonwealth that under the pre-amended ordinance
that the use of porous pavers still constitutes new impervious ground coverage.
So they wanted the zoning board to look at the poorest pavers, the new building development, and determine what is the exact percentage of new impervious ground cover, so a specific finding could be made, and a specific conclusion could be made, and that would then be remitted back to the trial court under this appeal procedure.
Excuse me, Mr. Turner. I agree with parts of what you said. The court did find that pavers constituted impervious coverage. They state that specifically.
if the 45 if there's no dispute that the 45 percent the 45 percent is the standard
and if Mr. DeMarco is acknowledging that excluding the pavers it will not meet that standard
then I guess that resolves the first issue whether it met the impervious coverage requirements
however the court did not specifically say it and then send it back to us I think we are in
same position that we were at the time of the initial hearing had the board made that conclusion
it then would have considered whether Mr. DeMarco was additionally entitled to a variance on that
point so maybe that's where we are i
point so maybe that's where we are i there's no point no provision within the trial court's
re-emand order dated may 4 2020 or the commonwealth court's decision that says that the matter is to
be reopened for de novo hearing before the zoning board of adjustment it's not a de novo hearing
it's strictly related to the point that the court addressed there's also nothing saying that the
board can't go further. And if you look at the docket, the Court of Common Pleas decision is
marked as a final decision. In past cases, when there has been a remand, the board has, if required
to submit to prepare additional findings, if done so, they have then voted. This is a new decision
that can again be appealed. But Ms. Salata, the trial court's order has been vacated. That's the
one point that's crystal clear with the commonwealth court's remand order is that the trial court's
order on appeal is entirely vacated and the matter has remanded back down to the zoning board of
adjustment. And that's where it is. I don't think that makes any change anything. If you notice
though I believe that the order was to remand it to the court of common pleas which then issued an
order remanding it to the zoning board i was merely addressing your statement that the trial
court's order was the final order that final order had been vacated by order the commonwealth court
and was replaced by the remand to the court of common pleas which in turn remanded it to the
zoning board which is now final order the trial court there is no order at the trial court because
is vacated excuse me there is an order now this ninth day of july 2020 upon consideration of the
commonwealth court of pennsylvania's may 4th 2020 opinion in this matter it is ordered and decreed
that this foregain case is remanded to the philadelphia zoning board this is from the
court of common pleas as of july 20th so that is their final order just for the record as a matter
of law a remand order is not a final appealable order under the rules of civil procedure
it is an order remanding it to the court to the board and the board's decision then
becomes the final order which is appealable in any case um and i don't want to get caught
up in procedure here um if we're stipulating or the applicant stipulating that the fourth
proposal includes more than 45% new impervious ground coverage, we agree that the first of the
two prongs that the chairman laid down at the beginning of the hearing has been met. Okay,
and Ms. Brumbelow, do you agree to that if you apply the court's ruling that the pavers do not
constitute pervious coverage, that the proposal does not meet the 45% requirement?
Can you repeat the question one more time? Sure.
Just because there was a lot of conversations, I want to make sure I get it right.
In determining that the proposal met the impervious coverage requirements,
the Planning Commission took into consideration the pavers and treated them as pervious.
The court said, the court determined that they have to be treated as impervious coverage,
in which case Mr. DeMarco acknowledges that if they are not taken into account that they do not
meet the requirements, the 45%. Do you agree with that? I believe I do. Thank you.
And then I guess, Chair, your call on whether to go further and to consider whether
Mr. DeMarco's client meets the criteria for grant of a variance on this aspect of the proposal.
Sorry, repeat that Sharon. I think the first question to be answered did does this meet the
impervious coverage requirements that existed at the time the answer is no it did not that there
should have been an additional refusal the question now is do you go forward and consider
any evidence going to whether the project meets the criteria for grant of a variance on that.
That's what I thought initially we were just going to narrow it down to that issue.
Yes. So the answer is yes we will go forward on that issue.
Am I saying that is my am I correct in saying it that way? Yes the board there there seems to be
no dispute that the proposal did not meet, using the court's interpretation, that the
proposal did not meet the impervious coverage provisions as they existed at the time the
application was filed. So there should have been an additional refusal under the court's
So there should have been an additional refusal under the court's interpretation.
interpretation.
The question is,
The question now is, are you entitled to a variance on that aspect of the development?
So, Mr. DeMarco, if you want to go forward with your variance proposal.
I'm happy to.
And, you know, I want to, again, I know I said it already.
I want to reiterate it.
you know this board before i called david and george ritter uh the board was affirmed already
on that this property suffers from an unknown not only suffers from an unnecessary hardship
for a multitude of reasons but also we met the standard for a least minimum variance so we are
entitled to the 16 units and then you'll see why i have illustrative uh plans to show how
how ridiculous the development will look if we are permitted to develop 16 units
and can't put the pavers that we need to provide access and provide the parking
that was actually demanded by the neighbors we mr chairman if you remember we included
um visitor parking plenty of visitor parking and we have two parking spaces per
unit and then in excess of 15 spaces not only will we lose visitor parking
and overflow parking on the site we'll also lose access to four of our units if we have to provide
a literal compliance with what the court seems to want. So I'll call David and George. They're
on the call. I'll call George first, and we'll illustrate that point. Gentlemen, with no
disrespect to either of you and the people who have an interest in this, we have about 12 cases
left due on the two o'clock list before we get into the 3.30. So I would ask that you
consolidate your comments as best as possible. We understand this may again be appealed.
So we don't want to not allow for important testimony to be on the record. But we ask that
you just try to summarize as best you can without leaving out anything that you think
might be necessary going forward. Can I make one comment? If you believe this is going to take,
Mr. Koenig is also going to get to cross-examine these witnesses and perhaps present his own
witnesses, I'm not sure that he was prepared to argue the variance issue today. Would it make
sense to delay this, to continue this part of the hearing to another date, or would you like to get
as far as you can today let's see we've been on this for about uh 35 minutes already
and we try to keep these to an hour minimum so let's get in as much as we can between now and
three o'clock and again i don't we're not trying to rush you fellas but it's it's just the way
things have been going. We're going to be backed up. I can get George on and hopefully get through
him pretty, I think, efficiently. Okay, let's go from there. Thank you. Can we authorize George
Ritter, please? Mr. Ritter, good afternoon. Please identify yourself with the record,
spell your name, and I'll swear you in.
mr ritter yes uh i am i on that i'm sorry yes you are my name is george ritter and it's spelled
r-i-t-t-e-r and you're in interest in this case you are uh yes well i'm a i testified at the
original hearings before the board i'm a professional planner and associated with
the firm of Ruggiero and Land Planning. Thank you. You swear in the firm to tell the truth,
the whole truth, nothing but the truth? I do. Thank you, Mr. DeMarco. Mr. Ritter,
let's get something out of the way. Do we all agree that if you are unable to count
your porous elements as pervious, that we would be over a 45% limitation? Is that
not agreeable to you? That is correct. And your firm provided the stormwater management
processes for this proposal, is that right? That's correct. And David Plant is also in your
that's correct and david plant is is is uh also in your permanent is on the zoom call
as well that is correct all right and
to remind the board your stormwater management proposed why don't you brief very briefly
describe the stormwater management elements that are included with the final plan that we have
was approved and submitted in this matter? Yes. Well, the plan did an extensive amount
of improvements to the project. Besides using pervious pavement, the plan incorporated
basically a design that transferred most of the stormwater runoff that went from the
front of the property to the rear and onto the abutting residential units.
The project was designed that the vast majority of water was being brought back into Ridge Avenue so it no longer flowed toward the residential areas, so that a substantial amount of runoff was diverted away from the homes in the rear.
Also, the plan incorporated rain gardens to help infiltration of the remaining water that came onto the site.