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Hearing video

ZBA Hearing - August 9, 2023

Philadelphia Zoning Board of Adjustment (ZBA)Aug 9, 20235h 36m

and while there is a refusal uh that's related to um accessory parking along pastoria street it

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should reference the proviso and not just the the portions of the zoning code so that's really what

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we're here for members of the board is to decide whether this proviso remains gets clarified or

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gets modified and and all of those factors are not included in the notice of refusal

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and and just a brief response to that it's the city's position with respect to whether

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we agree in principle that if there is an existing variance for a property or existing proviso for

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the property pursuant to case law, that in effect you would be seeking basically a new

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variance from those provisos, and whether or not that requires the city to issue a refusal

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for those based on those provisos, I'm not sure, but we will simply defer to the board's

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determination of that.

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So if the board decides that should have been a refusal, I don't think that there's any reason why it needs to go back to L&I to have them add those refusals.

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The board's perfectly capable of hearing Mr. Masters' argument on that and Mr. Phillips' response to that.

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And, you know, you can just simply incorporate it into whatever decision you ultimately make.

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So whether or not additional refusals should have been issued on the basis of the provisors that had previously been issued by the board and then ultimately upheld by the Commonwealth Court and what those actually were, which, of course, is also a subject of a little bit of a debate, as you may recall.

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um that's again that's we've had situations in the past where people have come to this board

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and everybody was cognizant of there having been a missed refusal and as long as everybody is aware

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of what the missed refusal was the board we've determined in the past that the board could

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proceed as long as everybody understood that um and in this case given who mr master's clients

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are there isn't any real issue of notice or anything like that i mean this as you know this

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is a matter that's been going on for several years so i think everybody is up to speed on

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what's going on or not going on at the property so we again we'll just simply defer to the board

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on that question that mr masters just raised so let's get back to where we want to be today right

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so mr phillips do you want to call your traffic engine yes uh but just before i do i do want to

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note, just to clarify something that Mr. Reuter said, the traffic expert is not here to speak to

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the legal question of whether or not a parking aisle is required or not required. We'll stand

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on our own legal argument for that. So we're just here to have the traffic expert speak to other

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matters. And with that, I would like to call David Horner. Sir, could you state your name

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and spell, please, for the court stenographer.

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Please raise your virtual hand.

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Can we see him, Jason?

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He's unmuted.

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Okay.

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Okay. Sir, could you state your name, please, and spell for the court stenographer?

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Yes. My name is David Horner, H-O-R-N-E-R.

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Right. Do 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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Proceed, Mr. Phillips.

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Good afternoon, Mr. Horner.

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Sorry to interrupt. Excuse me. If Mr. Horner is not promoted to a panelist, can we do that so we can turn on his video?

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Okay. That has been done.

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Thank you.

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There we are.

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Good afternoon, Mr. Horner.

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Good afternoon.

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Have you testified? Well, first, can you please let the board know your professional occupation and title?

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Have you testified?

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Well, first, can you...

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Yes, I'm a licensed professional engineer in Pennsylvania.

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I'm a certified professional traffic operations engineer, president of Horner and Cantor Associates, a traffic engineering consulting firm, approximately 35 years experience.

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And have you testified before the Philadelphia Zoning Board of Adjustment in other cases?

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I have.

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And have you been accepted as an expert witness in the field of traffic engineering before the Zoning Board of Adjustment?

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I have.

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Okay, and I would just ask if Mr. Masters or Mr. Reuter would be willing to stipulate to Mr. Horner's qualifications so we can skip voir dire.

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I am not willing to stipulate to his qualifications in this case today because you haven't laid any foundation that he's participated personally in any of the traffic studies.

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What you introduced in your exhibit was a bunch of students who did some kind of a, what you call it a traffic study, but we don't know whether Mr. Horner is testifying to things that he's done himself, or he's actually been to the property, or if he's just reviewed the work of all other people.

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Mr. Horner is here to testify regarding his traffic report that has been submitted as an exhibit within the applicant supplemental exhibit packet.

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So we can go through, though, his qualifications first, and we'll go through voir dire then.

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um just so it's clear to the board uh other than whatever the ultimate recommendation of the city

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planning commission is on the variants the city's not actually we're not i'm only here basically

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because uh there was the challenge against ellen i on the dry bile question and then also because

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mr masters has subpoenaed a city witness uh for his portion of the case which i doubt is going

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they're going to even open today so um we're not i i'm not taking a position on anybody's expertise

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i'm i'm not going to be participating in questioning or anything like that because we're

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not taking again other than whatever the city planning recommendation is uh we're not really

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participating in the variance portion of this case so you don't need to ask me for permission

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any more about anything thanks um okay yeah uh so mr horner just a few uh background questions

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just on uh qualifications before we um you know before we get into the substance um so can you

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please uh let the board know about your educational background uh yes i have a bachelor of civil

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engineering degree from the University of Delaware in 1987. Okay, and you said you've owned

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Horner and Cantor Associates for 35 years? I've been practicing as a traffic engineer for over

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35 years. I've been a principal in Horner and Cantor Associates for approximately 20 years.

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And you had mentioned earlier that you had been accepted as an expert before the Philadelphia

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of Zoning Board of Adjustment. Have you been accepted as an expert witness in traffic engineering

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in any other jurisdictions? I have. I've been accepted as an expert in traffic engineering

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by probably over 100, 150 boards in Pennsylvania and New Jersey. Okay. And

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you are a member of the Institute of Transportation Engineers? I am. Okay.

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Okay. I will offer Mr. Horner as an expert witness in the field of traffic planning, unless Mr. Masters has any cross-examination.

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Do you have any questions?

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I don't have a cross-examination as to his background.

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Okay, fine. I accept it, Mr. Phobos.

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Okay, thank you.

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I'm going to share my screen, and then we can get into the substance.

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All right.

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Can you see my screen? Yes. Okay. Are you familiar with the property at 224 West

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Bruno, can you see my screen?

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Yes.

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Okay.

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Tulpa Hawkins Street? I am, yes. And have you personally visited the property?

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I have on a number of occasions, yes. And just for purposes of orientation,

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do you see where I'm circling with my cursor, would it be accurate to say that that is the

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property? Uh, yes. Okay. And just to further orient, uh, where I'm dragging my cursor now

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is Tulpa-Hopkin, and then we have Green Street, Wayne Avenue, and then here at the rear is West

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Pastoreas. Did I state that correctly? That is correct, yes. Okay. And you were asked, uh, to,

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uh, go to the property and, uh, observe and prepare a report. Is that correct? That's correct.

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Okay. And just for further clarification, as you see this, does this appear to be

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the condition of Pastoria Street as we sit here today?

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Yes.

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Okay. And is this the angle that I'm going, is this heading from Green Street towards

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Wayne Ave heading in a westerly direction for the property?

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I believe it is, yes.

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Okay.

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And as we continue to head down to the right here, this is the subject property, is that correct?

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That's correct.

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All right.

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And you had referenced in your report there are some other garages along Pastorius for ingress and egress, correct?

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You personally observed those?

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Yes.

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Okay.

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So in your report, I do want to note one thing.

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Now, you state in the beginning of your report that this project received approvals from L&I in late 2022 with no modifications.

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Is that correct?

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No, that was misstated in the report.

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The sentence you're referring to is the end of the first paragraph in my report, where I summarized that paragraph.

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I summarized the history as I understood it from the applicant and the sentence I stated, these 15 spaces were approved by L&I in late 2022.

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That should have stated by Streets Department. So that was a misrepresentation in that sentence.

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It should have been Streets Department. And you've seen Streets Department approval of.

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of this parking plan. Is that correct? That's correct. Okay. Can you explain for the board

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your observation of Topohokin Street versus Pastoria Street? How are the two streets

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different? What are their purposes? Can you just let the board know what you observed relative to

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those two streets? All right. Well, West Topohokin Street in this area, and I'm talking about the

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block between Wayne and Green that this property fronts on. That's got a two-way cartway width of

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about 36 feet with parking on both sides, and it serves as, we'll say, a collector street in that

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it does extend beyond Green and Wayne. West Pastoria Street in this area is approximately

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14 and a half feet wide, two-way traffic, no parking on the street in terms of the cartway,

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and it tees off, it ends at Green Street and Wayne, so it serves essentially as a residential

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street in this context in the property frontage. Do you have any knowledge of the historical use

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of uh pastoria street uh i don't i my only knowledge is from what i observed uh as to

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what uses are along pastoria street and the traffic conditions of it okay um did you evaluate

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the impact of of providing uh 15 perpendicular parking spaces along west pastoria uh street i

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I did. And did you also observe the traffic patterns in and around the area?

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I did. And in addition to observing traffic patterns, our office performed traffic counts along West Pastoria Street for a four-day period, including a weekday and a weekend day, to document the daily and the hourly traffic volumes.

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Okay. And can you advise the board about your observations?

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advise the board about your observations of other curb cuts on Topolhockin Street,

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excuse me, on West Pastoria Street? Yeah, so there's multiple curb cuts for various

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residential properties. There's also a driveway for the parking garage for Wallington Apartments

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That's got 18 spaces in it.

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That's got a driveway that is between this property and Green Street.

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But, yeah, there's multiple curb cuts along Pastoria Street currently.

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So as we're heading down on the left, you see there are curb cuts here for garages.

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That's correct.

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Okay.

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And one of these, the ones that when you refer to Wallingford apartment?

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Yes, and it may be where that vehicle is pulling out in that photograph is where the 18th space parking garage entry and exit is.

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Okay. And continuing on, then there's another curb cut here on the left. Is that correct?

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That's correct.

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Okay. And continuing on, there's a curb cut here on the right. This is after 224. Is that correct?

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That's correct.

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Okay. And then, does this depict the additional curb cuts as we're heading towards Wayne Ave.

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for the other property? Yes. All right. And this accurately depicts Topa

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Hawkins Street as well. Is that correct? It does, yes. Okay. So, did you

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make any, did you reach any conclusions or render an opinion

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as to the ability of West Pastorius Street in particular to handle this sort of traffic

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that would be generated by placing 15 additional parking spaces on the site?

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I did.

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Okay, and what was your conclusion?

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Well, my conclusions are provided in our report, and I can summarize them here.

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So the first is that the traffic volumes generated by the apartment development

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which we project to be approximately eight vehicles in the morning peak hour, approximately 10 in the afternoon,

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some of which are already on Pastoria Street, but they are consistent with the existing use and type and volume of traffic along West Pastoria Street.

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It's residential traffic, residential uses. This is consistent in terms of type and volume.

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Uh, the existing traffic volumes on Pistorius street, like I indicated, uh, we accounted those

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volumes on a 24 hour basis. There's approximately 124 vehicles total with about seven in the morning

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peak hour and 12 on the weekday afternoon peak hour. That is extremely low traffic volumes.

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And it's understandable, given that Pistorius Street is essentially a residential street, not a collector or through street.

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In terms of providing access to West Pistorius Street, we did take a look and made the determination that it is, in fact, conducive to serving as the primary access for the off-street parking.

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One reason is the very low traffic volumes, which means very low conflict with vehicles.

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The West Pastore's access itself is 24 feet wide and is of appropriate standards to handle two-way traffic.

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That's the access that's in and out of the site, separate from the 15 parking spaces.

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In comparison to West Alpahawken Street, that provides currently a 12-foot wide access for two-way traffic onto a street that carries higher traffic volumes and has some limits in terms of site distance for drivers exiting onto Alpahawken because of the on-street parking in particular.

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Um, so my conclusion was that providing the 15 parking spaces and maintaining, of course, the two way access that is currently there for the site, uh, will have no adverse impact.

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Uh, the, the three primary reasons I stated were one, the, the low traffic volumes and therefore limited traffic conflict to there's no site distance limitations along pastoria street in this vicinity.

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So there's no safety concerns in that respect.

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And finally, we looked at the parking turning maneuvers to make sure that they could be accommodated into and out of those spaces without requiring, let's say, a K-turn or some awkward movement.

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without requiring, let's say, a K-turn or some awkward movement,

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and they can be accommodated in that cartway with no issue.

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and they can

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So that was our conclusion, was based on those points.

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Okay.

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Did you notice any site limitations or any other sort of limitations along West Pastoria Street

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that would negatively impact the ability to park in one of the proposed 15 spaces?

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I did not, no.

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I just want a clarification.

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Michael, when you said sight, are you saying S-I-T-E or S-I-G-H-T?

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Appreciate the clarification.

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In that one instance, it was S-I-G-H-T, sight distance limitations, as in visual.

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And that's how I understood the question.

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Okay.

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Now, in terms of the parking directly, I guess, you know, these 15 perpendicular spaces, did you also look at the ability of vehicles to easily turn in and out of those 15 proposed parking spaces?

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I did. It was critical for me to be confident that the vehicles could execute that maneuver, and they can based on the orientation of the spaces as they are perpendicular and the width of West Pastoria Street, which is sufficient to accommodate those movements, as it is for the other movements at the other driveways along that street. Very similar situation in terms of the maneuvers.

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and uh with respect to uh strike that did you view uh the conditions of off-street parking

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and the availability of off-street parking uh in the uh vicinity when you visited

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if you could ask that question again i'm unsure i followed the question did you did you view the

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availability or lack of availability of on-street parking, excuse me, that's probably why you were

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confused, I said off, of on-street parking in the direct vicinity of the property?

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I did. I didn't do a count over duration of several days, but I did make observations, yes.

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Okay, and what observations, if any, did you reach?

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Well, the observations were that there's very limited availability for on-street parking on West Alpahokan Street. Parking is allowed, and it's full, essentially, in the times that I was present. Pastoria Street does not allow on-street parking within the cartway, so there's no availability there as well.

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Okay. Is it your professional opinion that this additional parking that would be provided on site would be critical and warranted to handle the total parking demand on site?

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Yes. Yes, I believe it is. I think without the additional spaces, there's not the sufficient off-street, on-site parking within the lot.

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