civus
Hearing video

ZBA Hearing - August 18, 2020

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

Now I lose my zoning permit.

Similar wording

I've got to go back and start over the whole process.

Similar wording

That's not how it works.

Similar wording

That's never how it works.

Similar wording

The clock doesn't run out.

Similar wording

The clock doesn't run out as long as – so, again, I don't think – and, again, I don't know, but I don't think the allegation is everything that the property owner did here was wrong and illegal.

Similar wording

So, again, some of it was, clearly, because L&I issued violations.

Similar wording

But there was work that was done that was consistent with the zoning permit.

Similar wording

So the three-year clock gets told every time there's work that's being done that's legal, at least.

Similar wording

And actually, even if it's not legal, again, unless L&I believes that it has to be revoked because now he's doing something completely different.

Similar wording

Like he gets a zoning permit to build a deck, and he goes and puts in a garage or something completely different.

Similar wording

So, you know, exceeding footprints, things like that, you know, again, I'm not going to get into like what are the different things that might warrant a revocation or some other action.

Similar wording

But again, that's not the case here.

Similar wording

So we're not talking about 100 years of somebody doing nothing.

Similar wording

I'm not arguing that.

Similar wording

I'm saying in this case, the three-year rule didn't really – it certainly was – let's put it this way.

Similar wording

Again, it is self-evident that L&I made a determination that the three-year rule didn't apply because, in fact, they didn't revoke the permit.

Similar wording

and if you're saying they shouldn't revoke the record well again we're making argument here to

Similar wording

And if you're saying they shouldn't revoke the –

Similar wording

That's not a record.

Similar wording

me that's just that is that is that is a logical conclusion if you can say that but it's certainly

Similar wording

not in evidence that the building argument of course it's not evidence okay all right

Similar wording

thank you the violations i don't really have anything else to say here so all right thank you

Similar wording

i just want to say very briefly mr chairman the violations dated 2015 are uh prima facie evidence

Similar wording

that work had commenced.

Similar wording

In fact, work commenced in 2013

Similar wording

and there was work in 2014

Similar wording

and then there was an unintentional build-out.

Similar wording

So then there were violations issued 2015

Similar wording

and then there was improvements

Similar wording

to comply with the violations in 2015 and 2016.

Similar wording

And then 2017, he came back for more relief

Similar wording

through the zoning process.

Similar wording

So at no point was there not work being done.

Similar wording

um so and that's that's the rule as len knows better than anybody can i make a final statement

Similar wording

or questions quickly please okay well first of all mr anastasia you represented to this board

Similar wording

two years ago that it was an intentional um overbuild and so you can't say now that it was

Similar wording

an unintentional overbill but um that's that's not the point the point is whether it was intentional

Similar wording

or unintentional the point is does that permit survive and it does right i believe that thank

Similar wording

thank you members of the board and opposing counsel and board solicitor i believe that the

Similar wording

that the record is clear and that the evidence in front of the board is clear that the 2013 zoning

Similar wording

permit expired. And the evidence is that in 2017, when additional refusal was generated,

Similar wording

L&I listed all those original variances again. At that hearing, the Planning Commission agreed

Similar wording

with us and said on the record, legal permits have expired. At that hearing, this board denied

Similar wording

All of those variances. So I think the board is bound by its 2017 decision. I believe that this board in 2017 and denying all of those variances

Similar wording

um concluded and and uh uh resolved that there's no zoning in place for this matter

Similar wording

and i i believe that the point being made by the other side that we cannot put before this board

Similar wording

a piece of paper that says that that permit was affirmatively revoked by the city is not

Similar wording

the end-all and be-all of this case. I believe we all know how to count three years, and if

Similar wording

this was a matter that went in a straight line where someone just needed more time,

Similar wording

that would be a different case. I'm not asking this board to make a sweeping conclusion

Similar wording

that three years after the date, you know, everything evaporates. I'm not saying that,

Similar wording

but in this case, given the facts that I just laid out and the term determination that this

Similar wording

board made in 2017 that Mr. Holloman said testimony in 17 and the fact that this is now the third

Similar wording

building permit in six years I believe makes our case and thank you very much for your time.

Similar wording

not to be closing thank you again this is that that's a lot of uh words but the bottom line is

Similar wording

very simple did lni issue improperly the 2019 permit uh and the appellant i'm sorry the appellant

Similar wording

did not meet its burden they had to provide some sort of evidence either documented or in testimony

Similar wording

that in fact the 2013 permit either expired or was revoked and they could do neither they've done

Similar wording

if they thought that the examiner made a mistake the building examiner that he needed to be here

Similar wording

and the fact of the matter is that three-year rule as I said a little earlier as did Len that

Similar wording

that three-year rule applies to projects that there's never any work done. There was work done

Similar wording

in 13, 14, 15, violations complied with in 15 and 16, and then a new application in 17. There was

Similar wording

constant work. And for that reason, I don't think, in fact, I know that permit wasn't expired.

Similar wording

Mr. Bonney says he believes it was. Well, we can believe a lot of things, but we need evidence in a legal proceeding. And unless or until he could produce that, I'm asking this board to deny his appeal.

Similar wording

Mr. Bonnie says he believes it was. Well, we can believe a lot of things, but we need

Similar wording

thank you then just just very briefly again just so the board understands it was my

Similar wording

my understanding uh that between the private parties private council in this case that we

Similar wording

were going forward on our on briefs and argument only uh this was a case where i think

Similar wording

the facts that existed were pretty much um i did agree that the facts were pretty much understood

Similar wording

And the fact was, Plans Examiner reviewed the 2019 building permit application, saw that there was a live zoning permit, i.e. one that had not been revoked, and issued the building permit.

Similar wording

Those are the basic facts that I was assuming would be stipulated to by everybody.

Similar wording

and on that basis i didn't see any reason uh i i believe that the the brief that was filed by

Similar wording

miss mr anastasia mr cook was fine it covered all the points i didn't need to brief separately

Similar wording

and it because again it was this it was my assumption maybe it was my mistake to assume

Similar wording

this but it was my assumption that the fact of the thing that el and i did that triggered the

Similar wording

appeal would at least be the one thing that everybody agreed had happened i.e that the

Similar wording

plans examiner issued a permit based upon the plans examiner's apparent assumption that their

Similar wording

that the the zoning permit was live and and again let me put let me put it this way had i believed

Similar wording

if if if in my discussions with ellen i ellen i told me oh the plans examiner made a mistake i

Similar wording

would have just told everybody the plans examiner made a mistake and we would have reacted in that

Similar wording

way. So, I mean, you have to accept my explanation as an officer of the court that the L&I, if the

Similar wording

L&I inspector were called to testify, the L&I inspector would say that he believed that the

Similar wording

permit was validly issued because the zoning permit was live. I would not go so far as to say

Similar wording

whether the plans examiner would answer, well, the permit should or should not have been considered

Similar wording

expired because that's not a plans examiner's role that is an inspector's role to determine

Similar wording

whether or not a zoning permit is expired so i don't even think that a plans examiner had a plans

Similar wording

examiner been present we would have had an answer from a plans examiner about the expiration the

Similar wording

issue of the expiration of the underlying zoning permit because that's not the role of a plans

Similar wording

examiner that because that's an enforcement issue but again that being the case it

Similar wording

it's simply our position that the 2019 building permit is correct that the zoning permit in fact

Similar wording

was still valid it had not been revoked and that it had not expired because there had been

Similar wording

enough of a continuation of work uh that the three-year rule didn't kick in i mean there's

Similar wording

plenty of construction projects that take far longer than three years and there's stops and

Similar wording

starts and even without intervention by the government like of course we're doing right now

Similar wording

due to covid even without that we don't go requiring people to go get new zoning permits

Similar wording

every time there's a delay in construction because they might be hitting up against the three-year

Similar wording

rule and again whether or not l and i should have done that whether or not that might be better

Similar wording

governance somebody can argue that but we didn't do that you're giving a ton of testimony and it's

Similar wording

i just want to state for the record that it's highly inappropriate for you to help his board

Similar wording

and what they would do if they were i think it's i think he's mr rooters going to the point of the

Similar wording

argument that you're making here there's a question of of the people act appropriately

Similar wording

down on L&I or inappropriately and I think he's addressing that. Yeah I mean I'm making an

Similar wording

argument based upon what I believe are the basic facts of the case that really are not denied by

Similar wording

anybody. So you know again so anyway I think you know there's no point in belaboring the issue

Similar wording

with respect to whether or not the board can split the baby as it were in the way that Mr.

Similar wording

Bonnie has suggested. Again, I'm not going to take a firm position on that one way or the other.

Similar wording

I do think it's problematic, although for the city, I would say that it would be difficult.

Similar wording

I can't say whether or not if a decision like that came out, I don't know what Ellen and I

Similar wording

what l and i would say with respect to that uh that possible outcome i mean if the board issues

Similar wording

would say with respect to that possible outcome.

Similar wording

a decision and says this is what we want to happen then i guess it's just a question of

Similar wording

whether the city would appeal that kind of a decision um and you know so so i'm not gonna

Similar wording

i i just have not been able to get a response from l and i in terms of that kind of a condition i do

Similar wording

agree that you generally can't impose conditions on buy right permits although we have had

Similar wording

settlement agreements where we have done something similar to that by adding additional language that

Similar wording

maybe explain we did that with the um we reached agreements on a couple other cases where we added

Similar wording

some additional language to buy right permits but generally that additional language was consistent

Similar wording

with the actual original approval mr reuter can i interrupt you to say that those were

Similar wording

settlements that were reached between the party who held the permit and the law department or the

Similar wording

city the zoning board was not involved no that's right and we actually wound up breaching those

Similar wording

decisions in common please court and then we went back and essentially asked for kind of a

Similar wording

stipulated decision so again it's a little bit different here but again i i would well i would

Similar wording

I just don't, I don't know how Ellen and I would react to something like that.

Similar wording

That's fair enough.

Similar wording

If I may, Harry, come here.

Similar wording

If that were to happen, if one of these suggestions by Mr. Boni were to take place after the permit's been issued, after everything's been built and relied upon, it becomes a vested rights issue in addition to anything else.

Similar wording

Thank you.

Similar wording

We're going to, at this time, going to ask the board if they have any questions.

Similar wording

no no mr chairman may i mention i'm going to go down this yes paul okay i i just want to thank

Similar wording

mr reuter for touching upon what it what it is we're actually seeking which is you know a slight

Similar wording

modification so that the uh door becomes a window and that is what we're asking for and if and if

Similar wording

reuter has any idea about i'm gonna i'm gonna throw something at you i'm gonna throw something

Similar wording

at you just as a hypothetical the balcony is okay as long as it's not somewhat they don't

Similar wording

have the sliding glass doors suppose they put a double hung window a hung window in place of the

Similar wording

sliding doors somebody opens the bottom half of that and decides to climb out onto the balcony

Similar wording

nothing's been accomplished you're still gonna have use of it i'm not trying to be sarcastic

Similar wording

Like it just, either you put a solid window that is not able to, you can't open it, it

Similar wording

stays shut all the time.

Similar wording

But to say we don't like the sliding glass doors, the owner of the property can decide,

Similar wording

you know what, I don't want to fight this anymore.

Similar wording

I'm going to put a double-hung window in.

Similar wording

Well, I have a better idea, which is actually goes with something that Mr. Anastasia spoke

Similar wording

to which is for 200 years including in my house um we'll have a window uh that um for 200 years

Similar wording

could pop out just like many windows in philadelphia so that when you're moving in a couch

Similar wording

or a refrigerator you can your candy man can pop out we would be fine with that type of window they

Similar wording

can pop it out and then decide to stand out there and have a smoke or something i mean it's just they

Similar wording

want to pop it out like that god bless them but i'm saying that that would be okay under the

Similar wording

language that we're suggesting to you. I hear you. I hear you. I don't think the double hung would be,

Similar wording

but anyway, we leave it at that. Thank you. Thank you. Chairman, that pop-out window might be good

Similar wording

for me. Yeah, something. Anyway, I'm not making light of it. I'm just... I understand, no. I can't

Similar wording

believe that all these years, you're still arguing this case, but everybody's entitled to their day.

Similar wording

Well, I think part of it is that we reached a deal and the deal was broke. And if that's,

Similar wording

if that's the case we we there's a venue for that this is not the venue right well exactly this is

Similar wording

but if it's not so you know that's fine okay maybe maybe there's still an opportunity with that i

Similar wording

will ask if there's anyone out there who wishes to testify please raise your hand spell your name

Similar wording

i will swear you in and i'm asking you to be as brief as possible uh chair i really believe

Similar wording

everybody is going everybody has left okay thank you thank you very much all right planning

Similar wording

commission they don't weigh in on this right right now cleaning doesn't weigh in calendar number

Similar wording

yep somebody's going to say something i'm sorry no they're going as well yeah okay calendar number

Similar wording

three eight eight one seven two two one pine street my vote is to deny the appeal appeal denied

Similar wording

appeal denied appeal denied appeal denied thank you gentlemen thank you mr chair and madam chair

Similar wording

thank you gentlemen thank you mr chair and madam chair and members of the board thank you thanks

Similar wording

and members of the board thank you thanks everybody

Similar wording

everybody good to see everybody take care thank you so much take care i'll see you walking past

Similar wording

my house one day okay bye-bye all right i think that concludes everything or tanya we're done

Similar wording

oh yes jaren everything is all right see you all tomorrow morning have a good night stay safe

Similar wording

Bye-bye.

Similar wording

Take care.

Similar wording

Be safe.

Similar wording

Good night.

Similar wording

Take care, everybody.

Similar wording

Good night.

Similar wording

Thank you.

Similar wording

Bye, Sharon.

Similar wording

Get some sleep.

Similar wording

I have tomorrow's summaries to do.

Similar wording

Oh, my God.

Similar wording

Say hi to the dog, Sharon.

Similar wording

I will.

Similar wording

Thank you.

Similar wording