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Hearing video

ZBA Hearing - July 10, 2024

Philadelphia Zoning Board of Adjustment (ZBA)Jul 10, 20246h 23m

to get a building permit to convert the church to 14 units that permit application is is pending

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this is of course an issue regarding a statute so i want to get to that and i'll try to make

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this as brief as i can as you know or as i'm sure you remember the last administration

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They created a historic preservation task force. It was composed of 30 persons, all tops in their fields from academia, architects, developers, community members that were active in representing areas susceptible to development.

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and they met for 18 months. It was funded by the William Penn Foundation and it was staffed

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by members of the National Trust for Historic Preservation. After 18 months, they came up

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with a final report that was handed to the administration and accepted and given to city

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Council. In November of 2019, City Council took those recommendations and three bills were passed.

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One bill addressed parking for historic properties. One addressed the introduction

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and allowance of accessory dwellings. And then the final bill, which is what is at issue here,

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allowed for the treatment of the certain historic properties that are certified by

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the Historic Commission to be treated as CMX3, which allows multifamily and has no density

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limitations. Let me briefly go through. These are the photographs that were part of the

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OCF Realty blog. Let me just reduce the size a little bit so you can see the full picture.

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So this is Martin Street. You see the church in the background. Again, from Martin Street. This is from Pichon. Again, this is the Pichon Street view.

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This is the church on the left side. This is the parsonage. The agreement of sale covers both

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properties, and I'll get to the parsonage briefly at the end of my comments. Again, this is the area

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between the parsonage and the church. You see the parsonage there on the left, and these are

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pictures of the church. The church's last service was in November of 22, so it is now a vacant

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property and on april 15th the city expressed its intention to revoke the june 1st 2023 permit

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uh and this appeal was filed uh i want to go to

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the bill

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19 613a which is on page 37

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So this is the third of the three bills that City Council passed in 2019. I'm sorry, November of 2019. That's correct. This is the ordinance. This is the bill that was passed and became the section of the code that we're dealing with today that allows under certain conditions, one of them being that the Historic Commission right here,

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if they certify that the conditions are met then you can it can be treated as cmx3

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which is an incredible incentive to repurpose a church like this in fact

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when this bill was passed exhibit 15 in my package is a summary

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from the National Trust for Historic Preservation. And with regard to this bill,

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they say that it's probably going to end up to have the most measurable impact to encourage the

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investment in historic property. So of the three bills, this is the most important.

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Despite efforts to remap existing uses, there have been countless parcels across the city

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with zoning that is essentially a holdover from past planning efforts. Quoting now,

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churches are particularly illustrative example. Numerous historic churches,

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Numerous historic churches, many of which are nestled amid row house neighborhoods, are likewise zoned for residential single-family use.

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many of which are nestled amid row house neighborhoods,

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401 Martin Street was rezoned several years ago from RSA 5, which was the neighborhood that it's in, to RSD 1.

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There were several churches and large properties, large lots with single-family homes in Roxborough that were identified by the community to be at risk for development.

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They successfully persuaded the councilman and the Planning Commission to have these properties all rezoned RSD1 to assure that they would be involved in the repurposing of these properties.

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That has a significant effect in a minute.

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These churches have large lots.

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They're a location with residential districts.

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the motivation of sellers, you know, the church, the owners, who are often desperate to monetize

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what is perceived as their last tangible asset, their real estate, churches are extremely

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vulnerable. So this is, again, this is the National Historic Preservation Trust applauding city

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Council's and the city's effort to codify incentives to repurpose churches. Now,

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this is 2019. And at the end of the 2021 session, a bill was introduced. It's page

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50 in the package, number 16 in the documents. Bear with me.

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I have to reduce the size a little bit.

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So here's the bill that was introduced near the end of the 2021 spring session, and this is the provision that was added to the bill that was, became, the bill passed in 19, in 2019, one of the three bills.

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Now, in 2021, this was introduced and passed city council near the end of the session, which essentially voided the entire incentive package that the historic task force focused on for 18 months that was accepted and adopted and became law.

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This one clause that's on the screen, subsection six, effectively negates

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the policy, the public policy that was adopted. It provides that notwithstanding the permission to

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build and repurpose at the level of CMX3, this provision says your density can't be more than

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50% of the underlying zoning district. Well, as I said a minute ago, this was one of the properties

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that was rezoned RSD1. So the minimum lot size is 10,000 square feet. So under this provision,

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the most you can get is two units. This church is over 12,000 square feet inside,

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which means the most you can have are two units inside this church each being about 6,200 square

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feet. Speaking for my clients that's not going to happen. This church is not going to be repurposed

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by my clients if that is the limitation. I tried to find out what was the incentive

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for this. The bill was sponsored by Councilman Jones. I reached out to his chief of staff,

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asked him what was the incentive or purpose for this. He explained that it was focused on one

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property, 6 399 Drexel Road, and that the developer there wanted to convert a single

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family home to 16 condos. And apparently that was not popular in Overbrook Farms.

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Ultimately, this project on Drexel Road did not go through. But I've included in the package,

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number 18, a description of

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that property on Drexel Avenue. You can see it's a beautiful home. It's over 12,000.

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Drexel Avenue. You can see it's a beautiful home. It's 12,000, over 12,000 square feet. The lot is

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over 25,000 square feet. And that is typical in Overbrook Farms. Overbrook Farms is a unique

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neighborhood. It is a planned suburban community in Philadelphia, much different from Peachen and

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and Martin Street in Philadelphia, in Roxburgh. So I would ask that the board

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deny the, or refuse to support, or whatever the correct

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phrasing is, to deny the proposed revocation of this permit. Number one,

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as I said my client reasonably relied on the permit they've engaged architects they have

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a pending building permit application for the 14 units this I'd ask the board that this

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revision not should not be should not be applied it should it should not be strictly construed

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it's against public policy it is the policy of the city to encourage the repurposing of historic

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churches. It's clear. And this amendment literally negates it. And then this church is going to be

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at risk. We've seen the church in Fishtown that has suffered for years. And this ordinance,

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this section of the code prior to 2021 amendment was designed to address that.

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And this is going to come up again. As I said, the scope of the agreement of sale includes 4351

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Peachen Street, which is the parsonage house. The Historic Commission has already issued a letter

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saying that that falls within the category and is subject to the incentive that is available under

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this section of the code. But of course, if this

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provision is applied, the most units that will be

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available in the 3,200 square foot parsonage is one.

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It's this bill,

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it may have made sense for Overbook Farms, but it doesn't make

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sense for the rest of the city, and notably

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Roxborough.

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So, fine, last comment, and I'll turn this over to Kim if she has anything to add.

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As I mentioned, the last thing in my package is a conceptual plan.

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As I mentioned, the previous conversions of houses of worship for parsonages were all one-to-one parking.

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This gray area on the left is the church.

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This is an existing driveway with parking.

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This is the area between the parsonage, which is here on the right.

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And when we make an application for the parsonage, we will include a proposed curb cut on Peachen Street, which does not have any parking along that side.

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It does not affect on-street parking.

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We're going to preserve the streetscape between Peachen and the church.

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We're going to introduce the required landscaping around the parking area.

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But this will provide one-to-one parking for both the 14 units in the church and the four units that we hope to get in the parsonage.

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Again, this has been fully vetted, and it is supported by everybody who's expressed an opinion on social media.

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Oh, it's also been on Facebook, Roxborough Rants and Raves.

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Thank you for your patience. I'd be happy to answer any questions.

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Council Lengert, am I standing right, Lengert?

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Do you have any comments or do you want to make a presentation?

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Just some comments, sir, if I can.

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Sure.

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Lengert.

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The church was built in this area to serve this community.

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It is an extremely large structure with an extremely large overhead.

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The congregation has dissipated by age and size.

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For a new church to come in and occupy this space as a startup, it's way beyond the costs that they could do to do this.

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the church was planted here to be of service of the community and in this method our denomination

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feels that we are continuing to serve the community and will always be a part of it by having this

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change over to housing and and that's my comments i if anybody's any questions about that thank you

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very much um mr reuter do you want to make a presentation uh yes uh so i mean i i think i

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I mean, I think I want to try to parse out some of what Mr. Mr. Pardon me, what Mr. O'Brien and Reverend Langert have said, which is there's there's a couple of different issues here.

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want to try to parse out some of what Mr.

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First of all, it's a city's position that regardless of the soundness of the 2021 amendment to the ordinance, this board doesn't have any authority to disregard city council's position and city council's, what city council has expressed by way of an ordinance that was passed and put into effect.

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uh again i would point out two years before this application was submitted so just because i think

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maybe it it kind of um got passed over just to explain um the city concedes this is an historic

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property it was designated by the philadelphia historical commission uh it's on the register of

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historic places for the city of philadelphia the city uh concedes that permit application for

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conversion to 16 residential units at the site was submitted and that the executive director

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of the Philadelphia Historical Commission, Dr. John Farnham, had certified that A, the property

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was historic and on the register, and that over 2,500 square feet of the property had been

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dedicated to the qualified prior use um we don't disagree with any of that uh we also stipulate

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that um and the certification by the way that's just part of the ordinance is that the

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historical commission has to uh has to verify those things a that it's historic and b uh that

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there's at least 2500 square feet of the property had been uh dedicated to that qualified use which

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among other things includes the house of worship which obviously this this was i think i think this

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i think services here they may still be occasional services but again i think we

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concede that it hasn't been regularly operating as a church since i believe at the end of 2022

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uh so um and uh we stipulate that the department of licenses and inspections did in fact issue a

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permit for 16 units. After that, that's when, in terms of the timeline and exactly what triggered

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what, I'm not sure, but we had, the city did in fact issue a property cert indicating 14

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residential units. I know that the agreement of sale between the Lutheran Church and the

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purchasers has been submitted. I don't recall, and it's really up to the board, I guess,

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to decide whether it's relevant or not, whether or not the conversion to residential use was a

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contingency of the agreement. Mr. O'Brien is, I think, implying that the sale would not have

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gone through if they did not have the permit for multifamily residential use. That may or may not

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be true uh i i for the sake of argument we'll say it's true uh so after that point there was a

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subsequent permit application uh for 16 uh units uh and again the city did issue that permit um

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pretty much just based upon looking at i guess the 14 units and seeing you know cmx3 uses that's okay

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and the issue and then another application for property certification was submitted

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And at that time, it was about the same time that I think the construction permit was applied for.

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Whether it was the construction permit application or the second property cert application, it was at that point that a review was done and L&I determined that, in fact, the initial permit, the 2023 permit, should not have been issued.

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And nor should the 2024 permit for 16 units because of that 2021 amendment that Mr. O'Brien referenced, which I don't need to put it back up on the screen, but which specifically says notwithstanding any exception under subsection B for structure located within a residential single family detached zoning district that is an RSD district.

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So again, notwithstanding the exception that allows CMX-3 uses for historic properties that qualify, if it's an RSD unit, the minimum lot area required per dwelling unit is 50% of the minimum lot area for the district.

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And then there's some stuff about how that's rounded down.

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But the point is that it's an overstatement to say that it completely eviscerates the rest of the...

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It's an overstatement to say that it completely eviscerates the rest of the law that was put into place by city council.

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Any other CMX3 use is still permitted.

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It's only if you're in an RSD district and if you are seeking multi-residential units that this limitation to the general exception kicks in.

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So it's not true to say that this completely eviscerates the existing law.

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All other CMX3 uses would be permitted here.

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It's just because it's RSD1, which is arguably the most restrictive zoning classification in the entire zoning code,

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and the fact that RSD1 requires a 10,000 square foot lot.

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So yes, you get two units out of this lot.

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And we understand that, you know, I can't do anything else other than to apologize on behalf of the city and the department license and inspections that the permits were issued.

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But again, I think what we would caution the board against is that the board doesn't really have the, the board doesn't have the authority to negate or to ignore what the code says, regardless of whether you think this particular 2021 amendment was a good idea or not.

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If that were the case, I mean, we can think of like lots and lots of other provisions throughout the code that boards could simply just ignore and you don't have that authority.

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I'm totally fine if they want to preserve a validity challenge, but this board doesn't have the authority to grant a validity challenge.

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They can preserve it for the record on appeal, but this board has to apply the code as written.

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That being said, with respect to what I think is the meat of the argument here, which is whether or not the permit for the 14 residential units is vested, it's the city's position that, you know, the board has the discretion and the authority to make a decision on those grounds.

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So typically the city's position on vested rights is that soft costs don't count.

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They have to be unrecoverable, hard costs, which usually means actual construction has taken place.

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Or in some instances, if you purchased a property in anticipation and reliance upon a permit to do new construction,

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If you demolished the existing property, things like that are more typically what the city would regard as evidence of establishing a vested right to the zoning permit.

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In this case, what happened and what Mr. O'Brien and Reverend Lengert have indicated is that it was in reliance upon this 14-unit zoning permit, the 2023 zoning permit, that the sale of the property took place.

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there were other additional costs associated with that and again while

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that might not classically well that might not meet the classical where the

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classic example of a vested right we do think that it's the it's within the

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discretion of the board to make that determination we're not I'm not saying

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that we agree that it's vested rights but we do think that the board has that

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authority. But what we're cautioning the board against is to simply disregard the 2021 amendment

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regarding RSD properties and the exemption for historic buildings. I don't believe, let me just,

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if you just, don't think there was really much else we had to say. The other thing, and again,

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this is just for the record. I just want to make it clear, and I did make it clear to the board

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through emails and also to counsel that the 2024 permit for 16 units was also revoked, or there

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was also a letter of intent to revoke that permit. That letter of intent to revoke was not appealed.

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That is not part of this appeal. That took place in April. It's now several months since then.

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So it's the city's position that the only issue before this board is 14 units, not 16 units.

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The 16 unit permit is effectively abandoned and has been or is it is essentially is revoked.

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It's no longer a valid permit.

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It's the only thing we're talking about is the port is the 2023 permit for 14 units.

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So, again, just to wrap it up and not to sound like a broken record, but we don't the board can't ignore.

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the language of the code but if the board wants to make a determination about whether the right

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to the 14 units was vested we would just point

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to 14 units was vested, we would just point out that it doesn't meet the classic example

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of a vested rights situation, but we will let the board exercise its discretion on that.

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Thank you very much.

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Thank you.

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Thank you, Leonard.

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Questions from the board?

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No, Chair.

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All right.

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Thank you.

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No, Chair.

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No, Chair.

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