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Hearing video

ZBA Hearing - May 29, 2024

Philadelphia Zoning Board of Adjustment (ZBA)May 29, 20244h 53m

For now, you may take note that this is a large, over 5,000 square foot structure that sits between an apartment complex and an event facility.

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Zooming out on this view from the northeast, you may recognize this area with the Our Lady of Lourdes Parish at the corner of Woodbine Avenue.

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Just across from 6345 Lancaster Avenue is another large apartment complex at the corner of Sherwood Road.

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I have included another view from a southeast direction showing the surrounding area.

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At Exhibit 8, I have included a few exterior photos to provide additional context.

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The first photo shows the exterior front, while the second photo and the third photo show a view of the rear, which you'll note directly abuts the apartment complex next door that you saw in the earlier aerials.

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At the next photograph, you'll see Ivy Hall, which is directly next to this property to the right.

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From what I've been able to gather in public information, Ivy Hall is rented for conferences, seminars, lectures, retreats, and other events.

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Next, I've provided a view looking along Lancaster Avenue.

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Although it is slightly difficult to see through the dense tree coverage, this next photograph shows a view directly across the street, which is used as a religious facility.

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and you can see the sign to the right of the photograph.

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Looking northwest along Lancaster Avenue,

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you'll see a better view of the adjoining apartment building.

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And you'll also note the general layout of this section of Lancaster Avenue,

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which does still benefit from on-street parking availability.

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Looking northwest across the street,

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the board will notice the sign for the church that I previously pointed to,

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as well as the other apartment complex that sits at the corner of Sherwood Road.

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Finally, we have included photographs of the timely posting, which was made on May 8, 2024.

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Before I turn to interior photographs and floor plans, I'd like to first walk the board through

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the absolutely bizarre history of this property. At Exhibit 9, I have included the full history

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for reference, but I will summarize the relevant parts. In December of 1950, the board can see

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a refusal was issued for a four-family dwelling. In March of 1951, that application was refused by

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the Zoning Board. Later, in 1962, another application was filed for a six-family dwelling

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by a mispassage. It's interesting to note that on this 1962 refusal, it specifically states that

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the premises was, at that time, already being used in violation of the zoning code. That request

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was again denied. On the denial, I will again call the board's attention to a note at the bottom of

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the notice of decision, noting that the illegal use of the property was supposed to be referred

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to the law department for action. What ultimately happens next is described by the Pennsylvania

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Supreme Court decision of July 1st, 1963. Notably, that

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of July 1, 1963. Notably, that case acknowledges that despite the request for a four- and a six-family

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dwelling, that the property had been at some time following 1951 been converted into a five-unit

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dwelling. It also notes that the city became aware of the use sometime in 1962. Ultimately,

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Under the circumstances that existed at that time and the record that had been made before the 1950s zoning board, the Pennsylvania Supreme Court refused to issue a favorable decision.

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Importantly, the court then relied on a case called Sheedy v. Zoning Board of Adjustment in determining that Ms. Hassage was not entitled to relief.

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I will discuss that case a little bit later on, as it is ironically extremely important to this board's determination today after the now passage of over 60 years.

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Most critically, following all of this history, there is no further evidence in the file to suggest that the law department or L&I or any agency of the city took any action against this property's use.

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And that use as a five-unit dwelling has continued uninterrupted since its original conversion back in the 1950s.

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With the history in mind, I'll show you floor plans and photographs shown at Exhibit 6.

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I do have interior photographs with these plans, so you can clearly see that these five units have existed in their current state for decades upon decades unchanged.

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You will notice in many of these photographs that most of these units are occupied by long-term tenants.

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starting first with the basement the basement is used as common storage for tenants there is also

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a laundry facility in the basement photos of the basement and the laundry facility correspond to

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the arrows shown on the floor plans that i have up on the screen moving to the first floor there are

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two units on the first floor the area marked in green is the common entry lobby that leads to

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the stairs marked in red. To the right, Unit A is an efficiency unit with direct access to the side

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and rear yard. The tenant in this space has lived here since January of 2012. I have also provided

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detailed photographs that I will turn to on the next pages, but before I do that, Unit B, which

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is shown in yellow, is a one-bedroom unit with a tenant that has lived in this space since July of

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2015. And again, I'll walk you through some closer up photographs. So again, this is the lobby space

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from the front, and this is looking towards that rear stairwell. Unit A, as I mentioned, is an

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efficiency unit, which again, you can see has been occupied for some time by a long-term tenant.

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This is the living space, kitchen, and bathroom. And again, unit B is a one-bedroom unit.

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living space bathroom they actually have their own laundry facilities in their unit bedroom and

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kitchen moving to the second floor there are also two units unit c is another efficiency unit with

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a brand new tenant that just moved in this year unit d which i do have photographs of on the next

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pages, is a one-bedroom unit. The tenant in that unit has lived there since September of 2019.

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And again, I have some closer-up photographs of all of these units. So again, this is Unit C,

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which is the efficiency unit. You'll see the kitchen to the left, bathroom to the right.

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And then at the time, there was no one living in the space when the photograph was taken,

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but this is now an occupied unit. And again, closer-up photographs of the bathroom.

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The bathroom continues a little bit out of this photograph, and the kitchen.

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Unit D, again, is a one-bedroom unit, bedroom, living area, kitchen, and bathroom.

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Finally, on the third floor is the fifth unit, which is a one-bedroom unit.

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The current tenant has been there since June of 2021, with quite a few feline friends, apparently, which you'll notice in the next photographs.

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And again, living space, bedroom, kitchen, and bathroom.

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Prior to the current tenants, it's the new owner's understanding that the units have all been continuously occupied throughout the years.

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that the units have all been continuously occupied throughout the years and he did purchase the

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And he did purchases.

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property with the vast majority of these tenants already in place. Before I turn into the argument

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I'd like to ask Mike Thompson with Design Blends a few short questions so if the administrator

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could look for Mike Thompson to be promoted. Mike Thompson has been allowed to speak.

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Mr. Thompson, could you please state your name as spelled for the court stenographer?

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M-I-C-H-A-E-L, Thompson, T-H-O-M-P-S-O-M.

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You swear or 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, counsel.

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Thank you.

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Mike, can you just briefly share your background and your involvement with this property with the board, please?

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Sure.

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I've been an architect since 1999.

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I registered architect since 2008.

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We were hired by this client at the beginning of the year to assist with making this premises legal in the eyes of the zoning code.

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Thank you.

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And as a part of your normal responsibilities as an architect, would you normally have the ability to provide a client a reasonable estimate of the cost of certain work that they're looking to undertake for any particular property?

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Sure.

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While we can't provide a detailed cost estimate, we are usually providing something along the lines of what we call an order of magnitude cost for an owner.

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So we would be able to at least provide an order of magnitude cost opinion for them.

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And you prepared, you or Design Blends prepared the plans, the floor plans that I showed the board just moments ago, correct?

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That's correct.

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And in order to prepare those plans, did you or someone from Design Blends conduct a physical investigation of the property?

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We did. I was on site with one other staff member from our firm.

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And based on that investigation, did the floor plan shown to the board today accurately reflect the location and layout of the five units that exist in this property?

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They did.

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Is there any physical evidence that would suggest that there has been any material modification to any of the units that would have added or reduced the number of units?

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We did observe some minor modification, but none of those modifications would have amounted to the addition or subtraction of any units at that site.

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And hypothetically speaking, if the current owner were to venture to convert this structure back to a single-family dwelling, would that be a simple endeavor?

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No, it would not. Under the eyes of the International Existing Building Code, it constitutes a change of use because under the eyes of the code, this is recognized as a multifamily residential facility.

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So we have to change it back to single family residential, which means that we're bringing everything in this building up to the modern day codes.

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And it's important to note that this building, I mean, it was converted in the 1950s.

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In the 1950s themselves predate the current establishment of the International Building Code, the International Residential Code, the International Energy Conservation Code.

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All of these codes would apply to a renovation of this facility to convert it back to a single family dwelling.

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So just the amount of work that would be required to bring it up to code would be pretty extensive.

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Does the fact that the structure sits within a historic district add any further complication?

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It would. It adds a level of detail in terms of just understanding the neighborhood character

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and making sure that it aligns with the regulations imposed upon it by that historic district.

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So there would be some additional costs there.

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And based on the nature of the work that you've described, can you give the board just a high-level, rough estimate of what you would expect all of that work might cost?

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We would anticipate a range of somewhere from $550,000 for a basic renovation just to bring this up to code to one that's more probably closer to a million dollars in terms of bringing it up to a code in a matter that's sympathetic to the historic character of the surrounding neighborhood.

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Thank you, Mike.

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Thank you.

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Because this property is zoned RSD-3, the application to legalize the five units was denied.

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However, as this board has hopefully seen from the evidence presented, the five dwelling units have continued to exist since the 1950s,

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despite several unsuccessful legalization attempts and due to no affirmative actions by the city to force the conversion back to a single-family dwelling.

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The hardship is apparent on several grounds.

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First, the evidence presented to the board has shown that these five units have been in continuous occupied existence for nearly 70 years.

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for nearly 70 years following the 1950s and 1960s attempts at legalization

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Following the 1950s and 1990s,

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there is no evidence to suggest that any other owner prior to my client the new owner attempted

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to remedy the situation conversely my client sought to begin this process less than a month

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after he closed on the purchase of the property instead of simply leaving it in its illegally

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occupied state as had been done by so many prior owners over the years. Second, the evidence has

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shown that it would be an extreme hardship to convert this property back to single-family use.

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That hardship does not solely involve financial constraints. The board heard that the physical

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characteristics of the interior of the property would render it extremely challenging to convert

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it to single-family use, particularly in light of modern building codes that would have to be

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considered if such a conversion were to occur. This challenge and the corresponding cost is

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accentuated by the property's location within a historic district that has specific requirements

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that must be met. Physicality aside, the board also heard that based on the current per square

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foot costs, it would be a minimum of a half a million dollars to convert this back to single

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family use, but more likely over a million dollars due to historic considerations.

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As the board heard earlier, my client paid $400,000 in an arm's length negotiated transaction

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for this property. Accordingly, it will cost more to convert this property than it is worth,

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rendering it impossible to justify such a conversion.

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Finally, even putting aside the bizarre history of this property and the unique physical constraints that would prevent conversion, the applicant submits that this board may also grant a variance on a traditional basis, that this property is located in an area with unique characteristics that make a multifamily use of this structure infinitely more appropriate than a single-family dwelling.

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At Exhibit 10, I have included permit history and a summary map showing the use of structures that immediately surround and abut 6345 Lancaster Avenue.

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As you will see, every single property abutting this property is not used for single-family use.

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Flipping to the exhibit list, I've summarized the use of surrounding properties.

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The board may note that not only do all of these properties contain multifamily dwellings, except for the one to the right, which is an event space, many of these are significantly more dense than this particular property, and almost all of them were granted by variance due to the existing single-family detached zoning.

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In the absence of this property's history, this particular property would still be uniquely situated to accommodate multifamily use, given the surrounding multifamily uses, as well as the event hall that's immediately next door, which would combined make single-family use of this property undesirable and not feasible.

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Regarding the parking refusal, I do have to correct what I said earlier in that I do not stipulate to the accuracy of the parking refusal, as the applicant does submit the parking refusal was issued in error for this particular property.

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Let me bring that back up.

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Pursuant to Section 14801-2D of the Zoning Code, no parking shall be required for any portion of a building or a structure that is located in a historic district and that contributes to the character of such district.

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The nomination of the Overbrook Farms Historic District, which is publicly available on the Historical Commission's website, page 518, shows that 6345 Lancaster Avenue has been noted as a contributing structure to the district and is therefore exempt from the parking requirements of the code.

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That aside, the board may recall from an earlier photograph that the only remotely feasible location for parking would be in the rear yard, which is subject to a significant slope.

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Additionally, there is an existing driveway with a curb cut, but that driveway leads directly into significant mature trees that would have to be removed to facilitate parking.

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The driveway is also extremely narrow, bring up a photograph, and would likely require a variance in its own from driveway width requirements.

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This property has never had on-site parking at any time during its time.

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This property has never had on-site parking at any time during its documented history.

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The applicant submits the variance requested is the least minimum, given its use as a five-unit dwelling for over half a century.

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It is the least minimum variance to legalize the current five residential apartment units

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versus the extreme physical and monetary hardship that would result from converting the property back to a single-family use,

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particularly in light of the consistent use of many of the surrounding structures.

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The applicant further submits the request will not increase congestion,

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endanger the public, or harm neighbors. The board may notice that the RCO letter is entirely devoid

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of any allegation that this property has in its 70-year history created any impact to the

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neighborhood. This application merely seeks to maintain the status quo and remediate a decades

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long problem that no prior owner has been successful in fixing. This property sits on

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the dominant Lancaster Avenue corridor with ample access to significant public transportation

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including nearby regional rail lines, a bus stop just at the corner of Lancaster Avenue and Sherwood

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Road. The owner also employs the services of a professional management company, a summary of

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which is included at Exhibit 14. This Exhibit 14 documents winter snow removal, spring and summer

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lawn and vegetation management, and weekly trash service. As photos show, trash is stored along the

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side of the property and is put out and returned by a third-party service to ensure the constant

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cleanliness of the property. Presumably, a denial of today's request would likely pose more negative

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impact to the community, as it would soon render this property vacant with limited chance of

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conversion back to a single-family home, given the challenges physically and the costs involved

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in effectuating such a conversion. Before I conclude, a brief note on some relevant case law.

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Case law that I've referenced in the Memorandum of Law at Exhibit 11 confirms it would be unreasonable and by no means the least minimum variance to ask a property owner under these extraordinary circumstances to convert structure back to single-family use after a long history of multifamily use.

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It also goes without saying that this is not a self-imposed hardship, as my client just recently purchased the property and is undertaking this process to ensure the property has all the necessary permits in place.

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I should also note that this legalization will also require the owner to secure a certificate of occupancy, which will inherently improve the structure safety, as any missing safety features will have to be added if required by L&I and the building code.

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As I mentioned earlier, the Pennsylvania Supreme Court in 1963 mentioned that the case at the time did not meet the standards of the Sheedy case.

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That could not be farther from the truth today.

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The Sheedy case, which I did submit to the board in my exhibits, looked at three main factors.

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First, it considered how long the multifamily use of the property persisted.

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While in 1963, the use of this property had only existed for a few years, the five units have now

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been in place for nearly 70 years. Second, the Sheedy Court considered whether the city took

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any action to prevent the use despite knowledge of its existence or pursued a course that would

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indicate a multiple unit tenancy was objectionable. Here, although the 1960s permits

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specifically directed that the city pursue action, and the city was unambiguously aware of the use

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even back then, there's zero evidence to suggest that any such action was ever taken. And in fact,

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it was not until 2022, prior to my client's ownership, that a new violation was issued

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concerning the use. Simply put, the applicant asserts that the city has stopped from taking

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any adverse action given the immense passage of time and the failure to affirmatively seek the

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removal of the five tenants that have existed throughout the property's history. Finally,

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the Sheedy court considered whether the cost of conversion to a single-family dwelling would be

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prohibitive. Ultimately, in the 1960s, the court could not reach this finding. However, the evidence

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the board has heard today has clearly established that the physical and monetary constraints

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that the physical and monetary constraints would make it an enormous and significantly

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would make it an enormous and significant

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prohibitive venture to convert this back to a single-family use. A final note about the RCO

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letter. The RCO letter confirms that there were 35 people in attendance at the April meeting.

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At the meeting, many neighbors not only acknowledge the multi-unit dwelling use,

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but confirm that it has created no impact to the neighborhood.

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Despite this, no vote of the 35 people in attendance is provided.

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Instead, only a vote of the Overbrook Farms Club board is indicated.

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In the corresponding letter, Overbrook Farms Club even acknowledges repeatedly

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that even it was aware that this property has a long history of five-unit use.

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Seemingly, Overbrook Farms Club took issue with the applicant purchasing the property despite knowledge of its illegal use,

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which is both irrelevant under established case law and is mitigated by the fact that the owner immediately filed an application after closing to begin to legalize the use.

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