civus
Hearing video

ZBA Hearing - August 18, 2020

Philadelphia Zoning Board of Adjustment (ZBA)Aug 18, 20205h 15m

what was permitted is that we're speaking just about that that patio or are we speaking about

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more of the structure of the of the product well i think you're talking about the

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the rectangle that is the rear addition

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rear addition meaning that that patio off off the second floor or was there other was there

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other construction aside from that that changed the dimension of the footprint it it it may not

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have been the rear patio that sort of where the where the addition connected to the main building

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there was a little bit of a jog and it and it may be in there that that was the illegal work that

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was done. I'm not, I'm not saying that the patio, that the pat, the pat, that rear deck patio was

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shown, I believe, in the original drawings from 2013. It looked a little bit different because

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at that time there was a, what the plans showed was a very large outdoor spiral staircase

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that would take you up to the third floor deck so you could get from one deck to the other,

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the small deck up to the larger deck. And that's actually part of the arrangement that we worked

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out. And we said, well, wait a second, rather than have that, because, you know, now you have

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to have this small deck to get you to the large deck. Why can't you just access the third floor

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roof deck directly right off the third floor? Much easier for everybody. You just walk right

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out to the deck instead of a spiral staircase so we all worked together with the historical

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commission with the applicant to figure out a way to access the third floor roof deck directly and

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that and we had to convince the historical commission but we did you know we basically

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changed a dormer into a door up on the third floor and it was a little tricky but the architect is a

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good architect and we were able to figure out a way to do it and so therefore that part of the

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it functions similar to a pilot house something correct correct and so therefore the the the

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agreement was now that you don't now that you can just walk right out to the third floor you don't

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need this second floor um hop skip and a jump thing so uh up through the spiral staircase and

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that that was you know the grand bargain that we all made that was a compromise by everybody

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we actually weren't really happy about the variances being granted in the first place but

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we said you know what give it to him let him have everything he wants let him have this edition and

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all of everything he wants we'll just um get some more privacy for the neighborhood because this

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you know, overlooks other people's backyards by not even removing this little deck, just making

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it inaccessible. So it can stay there, you know, but at least he can't walk out and have parties

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on the back, on that little back deck. So, but this was agreed to by everybody. So for better

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or for worse, that was the grand bargain, the grand bargain that we made. But as I could sort

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to just jump back into my chronology a little bit so this took years and the the work and i you know

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i don't fault the owner i know sometimes the funding isn't there or life throws a curveball

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or whatever and you can't complete the work you know this month as you wanted to but it went on

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and on and on and there was a there was i think violations and finally the historical commission

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said that there's demolition by neglect because some parts of the building sort of walked away,

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I believe, and the Historical Commission took them to task.

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And the Historical Commission took him to task and even said that, you know, this has been laying fallow for years.

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And so finally, the applicant came back to this board to try and legalize that extra square footage.

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I think it was eight additional square feet of illegal construction and came back to this board in 2017.

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And therefore, the LNI at that time generated a new refusal.

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And that refusal listed not just the eight feet that would need to be legalized, but also all of the other original variances that had been, in my view, in our view, expired.

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And that's why L&I reissued them again as areas that would need new variances.

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And at that hearing, you may remember, at 2017, we explained that this is more than a matter of just eight feet.

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This is really trying to get all the variances again and that those have expired.

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And the Planning Commission, I believe, is on record at that hearing as agreeing with us because Mr. Bednar at the hearing testified that any relief for this property was previously approved by the board, legal permits have expired.

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And so he said legal permits have expired. And so then at that time in early 2017, which is now four years after the original zoning permit, this board denied those variances, denied those variance requests.

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So we think it's pretty clear that not only did three years pass, not only was there work stoppages for long periods of time, and that some of the work did include violations, that four years later, L&I issued a new refusal that re-upped or teed up again the need to get all new variances again,

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that the variances four years ago had had expired. I'm at a tutorial that that's my

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let me just make sure I'm still online I got another call. And so the board denied those

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variances requests and no appeal was taken. Subsequent to that these two building permits

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were obtained and we believe that of course they were obtained improperly because no valid

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zoning permit had been in place at that time during those we appealed both of those but

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building permits after we appealed as we appealed the first building permit we reached a settlement

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and that settlement was as i described just a couple minutes ago where we agreed to work

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with the historical commission to allow easy access to the third floor and therefore the

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second floor deck wouldn't be needed anymore and could be rendered inoperable and that was agreed to

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and unfortunately the plans that were submitted to this it still needed historical commission

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sign off but they were on board but unfortunately the plans that were submitted to the historical

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commission included those sliding glass doors which were specifically prohibited by what we

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had agreed to and of course we needed a continuances from this board in order to let that

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happen but you know unfortunately different plans or wrong plans were submitted to the

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historical commission at odds with what we had agreed to and so that's why we're here today

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um to ask that either we think you know it would be proper for the board to just say these

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permits were wrongly granted because the zoning is expired or we think it would be in much

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betters everyone it would be in everyone's interest to actually just say we can affirm

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the building permits but make this minor change so that instead of sliding glass doors it's a window

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and i guess i'll stop there for the time being and uh turn it if i'm happy to answer the

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questions or that and that issue that the issue of the sliding glass doors

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is only because they do not want anyone being able to step out of whatever room that is

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onto this little juliet whatever you would call it patio correct and if it was a clear glass

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window the same size of dimension of the proposed sliding glass doors that would be okay correct

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And the physical patio, I'll call it, right?

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Or balcony.

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Yes.

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Yes.

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Provided it was not functional, I guess is what I'm saying.

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Provided it was not functional, I guess is what I'm saying.

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That's correct.

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That's correct.

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That would be okay.

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Mr. Chair, this is Sharon Saleta.

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Let me ask a question.

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I'm not going to the merits of the appeal, but to the relief that's being requested.

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Mr. Abani, in your letter brief, you note that the board shall have all the powers of the officer from whom the appeal is taken.

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do you agree that if we find that the permits were issued

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correctly that they were indeed by right permits we have no right to we cannot this board does not

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have the right to add provisos to a by right permit if on the other hand you're correct

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and the underlying zoning permits had expired, this board also does not have the authority to

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add, to approve construction where there is no underlying zoning permit. Doesn't this have to

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be an up or down vote? Well, if so, I'm looking at the part of my letter that refers to the zoning

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code that we cite, 1430315A5, which gives, which talks about the powers of the zoning board.

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And I believe it says that you have the power to modify the order or the decision and to make such order or determination as ought to be made, which I interpret as meaning sort of in the interest of judgment, in the interest of justice.

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I believe. But you were not completing that sentence. And I'm not finished. I'm not finished speaking. Yes, that's correct. I didn't finish yet. And it says, and to that end, shall have all the powers of the officer from whom the appeal is taken. So I don't see that that last part limits the middle part.

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You have always seen it to limit it. We have never, the board has consistently refused to place any conditions on a by-right permit. If the permits were issued correctly, if they are by-right, the board cannot add additional conditions to a by-right permit.

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If they were not issued correctly, if there was no valid underlying zoning permit, then neither can they approve construction that requires a variance without that variance being granted.

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Okay, well, I hear your interpretation, and I think we have different interpretations, but I hear what you're saying.

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Thank you.

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one mr anastasio i'm sorry thank you thank you mr chairman have you finished your opening

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statement mr bonnie say it again sir mr bonnie have you finished with your opening statement

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yes thank you thank you mr anastasio thank you mr chairman members of the board i'm going to be

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really brief um because this is a very simple case even though that's a very complicated tale that we

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just heard. The appellant appealed a permit issued by L&I. Now Mr. Bonney ended the beginning of his

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remarks with what this is all about and it's all about making a door a window. I could get into

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very good reasons why that door has to be a door. It's the skinniest house in Philadelphia

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and we could, it's the only place we can get furniture through but I don't need to go there

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because the question is this is the only question that we have to answer today

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did l and i improperly issue the permit of 2019 that's it appellate says that the um

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yes of course because the zoning permit of 2013 expired

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and i'm going to bring that up if you don't mind i can find it here

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i thought i had it but maybe i don't i could put you want the 2013 permit yes if you want i had

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it put it in my queue but uh give me one second please 221 there it is

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see it that's the permit was this a permit that expired sorry it's not up burn it's not up oh

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well i can yeah double click right on the actual file

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i did that i already did that

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and is your actual document open

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and is your actual document open yeah you're doing as a burn you're you're

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sharing the Explorer screen if you go on share go back into share and you should

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have the option to share the actual document because what you're doing is

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Yep, you almost had it.

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So.

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Do you see it now?

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Any luck?

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Want me to try and do it?

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Because what I'm trying to express, if I could, if you could unshare, right?

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Unshare your screen, then go to the file and open it.

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Then share your screen and touch on the file, the actual document.

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so stop share and then go back to share document is open the document is open now share your

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screen hit the green button at the bottom and there it is and it should be a red box around

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it thank you do you see it yes yep yes awesome thank you okay thank you so yeah this is the

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permit. Did it expire? We say it didn't because there's zero evidence that it

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ever expired. My client secured a zoning permit, they started work, they generated

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building violations and those building violations were provided by the

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appellant and these building violations all here 2015 right here that I'm

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circling with my cursor it says comply. There's another one August 2015 rear

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addition all complied which means folks had to come out from L&I and review the work. Now

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nothing in the archives, nothing in the property history, nothing in any file either paper or

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electronic indicates that this property has had that that particular permit expired. Just because

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the appellant believes that it has the authority to determine when a permit issued by L&I expires

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as a result of violations doesn't mean it's true. Mr. Bonney mentions that the Planning Commission

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mentioned it, but the fact of the matter is the Planning Commission has zero authority

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to revoke any permit. The only people who have the authority to revoke that permit is the Department

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of License and Inspection. They didn't do it. Now, yes, of course, oftentimes work goes beyond

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three years. And a lot of times, L&I doesn't revoke the permit, realizing that some jobs are more

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difficult than others. This is the skinniest house in Philadelphia, 221 Pine Street. So there

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were some very unique challenges. So I'm assuming L&I decided that they would not revoke and expire

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the permit. If there's any evidence that the permit expired, then it needs to be provided.

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it. Otherwise, the actual permit that was issued by L&I at 2019 is valid. That's the first point

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that I really think is important. The applicant is not L&I. The planning commission is not L&I.

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And therefore, the only folks who can do this is L&I. L&I inspectors had been to that property.

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They knew what was going on. They threw down violations. Those violations were complied with.

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the plans were reviewed before that those stamp before the 2019 plans were stamped

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these are the same plans that mr bonnie showed you someone had to review them someone had to

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look at the history of the property someone had to see where they where this property has been

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before the time that they've approved these on the march of 2019 so nfl and i just determined

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had decided that that use permit from 2013 was still good and the work subsequent to 2013

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was consistent enough to keep that permit alive, then LNI had every right to stamp those plans.

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And LNI also had the right to issue the 2019 permit. There's nothing on the record to suggest

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that that 2013 permit expired secondly appellant wants you to act based on an alleged contract

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breach well here's the deal the zoning board doesn't have the subject matter jurisdiction

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to adjudicate a settlement agreement the appellant doesn't cite in fact a single case

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that would provide the zoning board with that kind of jurisdiction now appellant tries to force

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ZBA jurisdiction by claiming that when you granted us the continuance in 2017 to work out an

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agreement, somehow that empowers the board to adjudicate the matter. It does not. A continuance

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to adjudicate the matter it does not a continuance is not a final determination as you know

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is not a final determination as you know.

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it's not a notice of decision it's not an appealable order and it's certainly not the

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board's role to analyze legal terms of art like consideration or mutual mistake within this

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context in the administrative hearing to do so if you all would do that without subject matter

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jurisdiction then you would be in violation of my my client's procedural and substantive due rights

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the appellant has these folks society they have a remedy

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they have an opportunity for relief if they feel somehow this

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agreement was breached and that's the Philadelphia Court of Common Pleas

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that's the appropriate venue to hear in action to enforce a settlement agreement

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not the zoning board you just don't have the jurisdiction

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and finally the the appellant is asking you to do some legal analysis

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based on case law. And that's not appropriate because the applicant doesn't, you know,

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we don't dispute the fact that there was an agreement, but that agreement was entered into

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because there was a misunderstanding that in fact the 2013 permit had expired.

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But that agreement and all terms and conditions of that agreement are out the window once it's determined and realized that there was, in fact, a mistake.

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and there's there's case law on that go sick because it under Pennsylvania law a contract

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made under mutual mistake as to an essential fact and in this case it's the validity of that 2013

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permit which formed the inducement to it may be rescinded the contract may be rescinded on

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discovery of the mistake if the parties can be placed in their former position with reference

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to the subject matter. In this case, the actual permit. So that's 417 Pennsylvania Superior Court

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406, 1992 settled case law. Now if this board is prepared to analyze that case, I would say that

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that's probably a job best left up to the Court of Common, please.

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Excuse me, this is Sharon. I don't believe that issues relating to the settlement are

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before the board or that they have jurisdiction to consider those. Thank you. Thank you.

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And that's it. I mean, honestly, obviously the first point I made today, that permit,

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there's, you know, there's zero evidence that permit ever expired is what you have to determine

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you're you're ruling on but I did want to just lay those two related arguments with respect to

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the settlement agreement I'm not going to get into anything else that was in Mr. Bonney's very

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well written brief other than to say that my client may have been intentionally doing something you

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know duplicitous that's honestly just a bunch of malarkey so thank you and and if I may uh chairman

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and members of the board, this is Harry Cook,

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speaking to the overbill that was discussed,

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the eight-square-foot overbill.

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That had to do with accommodating an ADA-compliant bathroom

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for applicants' elderly mother.

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