I have.
And do you agree that everything I stated is true and correct to the best of your knowledge, information, or belief?
Yes, it was very well described.
And do you agree to adopt the testimony as your own?
I have no further questions for Mr. Lobauer and would entertain any questions from the board.
Questions from the board?
No, Mr. Chairman.
Questions or comments from our attorney, Hillary Emerson?
Not at this time, Mr. Chair.
Questions or comments from the virtual audience?
Yes, Chair.
I have a hand up from Richard DeMarco.
I will allow him to speak.
Can you hear me, Mr. Chair?
Mr. DeMarco, I can hear you.
Could you just state your name and spell it for the court reporter?
Good afternoon, Mr. Chairman.
Name is Richard DeMarco, last name spelled D-E-M-A-R-C-O.
Do you swear to affirm, tell the truth, told the truth, nothing but the truth?
Please proceed.
Mr. Chairman, I'm here on behalf of Nancy Gilboy and Phil Harvey, who live at 2022 Waverly Street, which is just down the street from this.
We were involved in a number of the appeals that Michael described.
described. We are in full support of this compromise plan. We compliment the developer
on engaging in very, we would agree with Mike's characterization, very hard negotiations. This is
a win-win for everyone. It's appropriate. The variances are appropriate. It's more in tune
with the neighborhood than the prior plans.
So on behalf of Nancy and Phil
and the other neighbors who I've represented
in a number of the historical appeals
regarding this property, we're in full support.
We urge the board to grant the requested variances.
And Nancy is available to speak,
but I believe she's allowed me to speak for her.
But she was-
That's fine.
Thank you so much, Dr. Mark.
Thank you very much.
Is there anyone else in the virtual audience?
No hands, Chair.
Planning Commission.
Mr Bednar you are muted
Ms. Bednar, you are muted.
Ron Bednar city planning property is indicated for neighborhood commercial mixed use
on the city plan we recommend that a question use and dimensional variance to be granted
provided denial of front-loaded parking variance
i 2023 004 324 414 to 16 south 20th street i vote yes with revised plans one page
stamp by zba october 18 2023 thomas holloman my vote is yes with proviso
James Snell my vote is yes with proviso
thank you thank you very much members of the board so number five MI 2023 001 213 301 Delmar
Richard DeMarco is the attorney Paul Toner is also involved in this case
there's a letter of opposition
from the Ridge Park Civic Association
applicant did provide a petition
in support from 11 neighbors
Richard DeMarco is coming back in
good afternoon Mr. Chairman
can you hear me okay
I can Mr. DeMarco
you've already been sworn to state your name
for the record
Richard DeMarco, D-E-M-A-R-C-O.
And could you identify your client in relationship to this property?
Yes, the client is Adva Epstein, who is the property owner.
Okay, and our vice chair has just a few questions.
Can you agree to the reading of the refusal and the stipulating to the faculty?
I can agree and waive, yes.
Thank you.
Have you emailed them all the required documents and exhibits that's needed and required to proceed with this case five days in advance of this hearing?
Thank you, Mr. DeMarco.
Please proceed and share with you.
Hold on one minute.
Mr. Toner?
Is Mr. Toner on?
Yes, he's been promoted here.
Mr. Toner?
Yes, Mr. Bergwin, can you hear me now?
How are you?
Could you state your name, please, and spell for the court reporter?
Yes, Paul Toner, T-O-N-E-R, with Orphanese and Toner, LLP.
We're counsel for the registered Civic Association, the Ridge Park Civic Association.
Okay, thank you.
Do you swear or affirm to tell the truth, the whole truth, nothing but the truth?
Mr. DeMarco, do you want to start?
Thank you, Mr. Chairman.
I'll share my screen.
Can you see my screen okay, Mr. Chairman?
It should be coming up any minute.
Yeah, I froze for a minute.
Can you see my screen okay?
Yeah, we're good.
All right.
So you should see the refusal on the board on the screen, Mr. Chairman.
This is a case which would be probably one of the most compelling cases for unnecessary hardship that you're going to see in a zoning context.
I have the refusal up.
This is an RSA 5 property, and what you'll see in a moment is unusually shaped, uniquely shaped, has unique topography.
And we aver that when you've heard all of our testimony, you will agree wholeheartedly that this property cannot be developed without the variances that are being requested.
We are providing a permitted use, a single-family home, consistent with the zoning classification of RSA 5.
The only variance from the original plan that can be considered a use variance would be the front
parking has been removed pursuant to a revised plan. We are no longer proposing a front-loaded
garage, so that refusal is no longer applicable as part of our packet. The revised proviso plan
form has been submitted reflecting the change and the revised drawing is one page. So we'd ask for
a decision incorporating that revised plan as proviso since we will not be requesting the
variances for the parking. So there are dimensional variances that are necessary. This is a classic
case under the Hertzberg case, which your attorney will be familiar with, which provides
case under the herzberg case which your attorney will be familiar with which provided that when
All right.
an applicant is permit is pursuing a permitted use the dimensional variances that are necessary
for that use are of a lesser standard and should be granted in order to allow the property to be
used so as you can see there's a porch variance there's a steep slope variance which we'll get
to in a moment. Our engineering firm is going to testify about that. There's a rear yard and
front yard variance and a deck variance. So let me go ahead and get right to the point.
Let me show some photos. This is our zoning notice.
My computer's a little slow.
That's the zoning notice.
So as you can see, Mr. Chairman, the lot is flat in the rear, but it is sloped.
So now let me go to. So this is a side view along. Let me rotate.
You can see the topography that we're dealing with. The property is incredibly sloped.
It has trees which extend over the right-of-way, creating a very dangerous and difficult scenario for the owner.
A number of the trees do that.
You can see the extreme steep slope to the front.
There's an incline along the property.
There's no sidewalk along the property.
These are the front portion of the property.
as you can see, the trees extend over the right of way, creating a very difficult situation for
the owner. And this piece right here, indicating with my mouse, would be the only area that is
somewhat flat. And that is exactly where we are proposing the home, to mitigate as much as
possible the steep slope. This is the original plan, which is just submitted for reference only.
You see the garage. This garage has been removed, but you could see here, Mr.
Chairman, a triangular aspect of this property.
The property dramatically thins at the front along Del Mar to a width of only two or three feet,
but then widens towards along Silverwood.
And we are proposing the home, Mr.
Chairman, in the only place that it can go, which is to the rear portion of the property,
which has the greatest width, which can support the home.
This is the revised drawing, which we would ask you to stamp. You can see that the garage has been removed. We have no height variance. We have no bulk variance. We have no occupied area variance. The property is complying in all aspects with every requirement, save for the ones that are necessary because of the triangular shape and the steep slope.
I'll skip the revised plan form. I want to show you the steep slope analysis, which was performed
by our engineering firm, Aqua Engineering. As you can see, Mr. Chairman, the green and the yellow
are not, if you build on that, you do not need a steep slope variance. The red is the steep slope,
which would require a variance if you were to build on it. As you can see, just from the naked
eye and not being a layperson, you can see that the green area will not support a property.
Therefore, variances are required in order to build the permitted use, which is a single family
home on this lot. Within your packet, Mr. Chairman, are a number of cases for your attorney
to consider if she wants to um this is uh without a doubt consistent with case law this commonwealth
which which holds very unequivocally that if this the land is sloped in such a manner that you
cannot avoid building upon it those variants are variances are necessary and required to
be granted and fulfill the legal standard for unnecessary hardship um let me go back to the
site plan. Just one more comment before I think I'll ask my engineer to testify first, Jake
Sheridan. But in the meantime, as you can see, Mr. Chairman, we have only one option, which
will be the front along Silverwood. We will put in a new sidewalk. But we have no room
to meet the rear yard because the property has to sit in the rear and there needs to be a rear
yard i mean there is a rear yard but because the property is so thin up here we get a rear yard
variance and again we have plenty of open space we don't need a variance for open space but we don't
meet the rear yard depth we can't meet the front yard setback because we have to
the rear yard depth. We can't meet the front yard setback because we have to front along
Silverwood. If we were to try to front along Delmar, we still would need the rear yard variance.
If we were to try to include the rear yard variance, it would push the property into the
thinnest portion of the lot, which would be undesirable and would be a greater impact on
the steep slope. The choice was clear to put the property in the rear portion of the lot to minimize
the variance for steep slope and to kind of pick your poison. We would need variances no matter
what. We chose to mitigate the steep slope variance as much as possible, but obviously the
rear yard variance and front yard variance are unavoidable. So let me go ahead and ask, I think
i'll call jake sheridan first before i call uh miss epstein so jake could virtually raise his hand
and i have a few questions for him
can you state your name please hello my name is jake sheridan j-a-k-e-s-h-e-r-i-d-a-n
do you swear or firm to tell the truth the whole truth and nothing but the truth
Please proceed.
Mr. Sharon, I'm going to leave the slope analysis up on the screen, but let's start with this.
What firm do you work for?
Aqua Economics.
What does Aqua Economics do for a living?
We specialize in land surveying and civil engineering site design.
And what do you do for Aqua?
I'm one of our project managers.
I am an engineer in training.
What does that require for you to be an engineer in training?
Four years of a college education and passing of the EIT exam.
And how many design projects have you worked on in your career as an engineer in training?
I would say well over in the, with this company, I would say with at least 100 or more.
Have you testified and given an expert testimony before this zoning board before or any zoning board for that matter?
How many times?
A handful of times in the city, at least.
I'm offering Mr. Sheridan as an expert in engineering and to comment on the accuracy of the plans that he provided for this case.
Mr. Chairman, may I answer a few questions?
Mr. Sheridan, what professional licenses do you hold?
When did you graduate from college?
After college, what level of education did you obtain?
Just a bachelor.