civus
Hearing video

ZBA Hearing - February 10, 2021

Philadelphia Zoning Board of Adjustment (ZBA)Feb 10, 20218h 33m

And I've certainly come to that conclusion as well here.

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There's a lot of retail occurring on Lee Street now, and there's a lot of proposed retail.

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And there's some aspirational goals to make Lee Street pedestrian only, where our previous proposed curb cuts and townhomes would really thwart that larger effort here because our homeowners would forever need access to their garages.

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So this development here is certainly less ambitious for us financially, less attractive for us financially, but consistent with the feedback that we received from the community and matching the two goals for the community, which was to eliminate a dry vial.

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And matching the two goals for the community, which was to eliminate a dry vial and a curb cut on Lee Street and also to include commercial on this frontage here.

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I can get into the weeds on the refusals, but I don't want to take up any more time here.

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But certainly happy to speak to anything of important for the board.

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Now, Mr. Feibish, I just have one question for you for follow up.

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But have you been forthright and upfront about what you believe the refusals were and should have been with F&A and all of the stakeholders here?

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I have been, yes.

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And the project hasn't changed from day one until now under this application, correct?

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That's correct.

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Okay. Thank you.

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Excuse me, Mr. Whalen, this is Sharon Saleta.

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Yes, Ms. Saleta.

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I'm a bit confused.

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Just are you requesting the variances that L&I indicated are needed, or are you challenging this?

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Is it an appeal against L&I?

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Because if it's the latter, we're going to have to have someone from the law department here to respond to that.

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No, so I am fine proceeding with seeking a variance on the grounds that the zoning examiner provided us.

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Again, we set forth what we anticipated to see here. We worked diligently with the zoning examiner and the law department, frankly, from June to November of last year. And we were advised that the refusals that we received were the refusals that were appropriate.

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um so you know it's uh it's my position that those are the refusals we need a variance from

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and if we get variance relief that that would fully approve this project okay one more question

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just technicalities um if the board votes on this do the two refusals the more recent one and the

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original do they have the same zp number listed on them because if not we're going the board will

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to indicate that when it votes um i can tell you zp7460 and yes they both have the same zp number

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ZP2020-007460.

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Did I answer all of your questions?

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Oh, yes, you did.

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I'm sorry.

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That's all I needed to know.

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Thank you very much.

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I just wanted to make sure you weren't waiting on me.

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So I would offer Mr. Feibusch

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for any questions that the board may have.

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Thank you.

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are these apartments or for sale units these are all apartments thank you uh questions from the

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board uh yes mr chairman i'm not clear on what we're voting on

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can he explain it better what we're voting on

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mr whaling uh certainly so um uh mr holliman um we have uh submitted an application we refuse

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we received a refusal and we then received a revised refusal uh just last week from the

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examiner and we are seeking a grant of a variance uh to approve the project as presented to you

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today in a two-page proviso plan form previously submitted to Ms. Saleta to approve this matter

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in the face of the issued refusals by examiner Roland Ngaba. And are there any community

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opposition? That we will hear. My understanding is no, but Mr. Miller is here to speak to that.

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Mr. Miller had asked for a continuance, but we went forward with the hearing. So we'll hear

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from Mr. Melaton. If there are no further questions for Mr. Fibush, I'll just introduce

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my architect and engineer and have them adopt my testimony and present them for questions.

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Please proceed. Thank you. Jose Hernandez should be on the call. Mr. Hernandez, please identify

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yourself with the record and I'll swear you in.

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Mr. Hernandez, you've been unmuted.

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You can speak now.

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Mr. Hernandez, please

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spell your first and last name.

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Jose Hernandez

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J-O-S-E

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H-E-R-N-A-N

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D-E-Z

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Quare and affirm to tell the truth, the whole truth, nothing but

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the truth? I do. And your involvement with this application? I am the architect of record of the

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I am the architect of record of the project, Mr. Whelan.

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project. Mr. Whelan? Thank you.

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Thank you. Mr. Hernandez, you heard all of the testimony that I presented today?

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I have.

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And is it true and correct to the best of your knowledge?

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It is.

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And would you adopt it as your own?

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I would.

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And very briefly, do you have anything else to add in addition to what I've already testified to?

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It was covered pretty well.

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Thank you very much.

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I would offer Mr. Hernandez to the board for any questions you might have.

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Questions?

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No.

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Please proceed.

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No.

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All right.

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Then I would like to call Maximilianos Bustos.

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He's the project engineer.

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Bustos, please identify yourself for the record.

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Spell your first and last name.

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Mr. Bustos, you've been unmuted, you may speak now.

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Good afternoon, Mr. Bustos, please identify yourself, spell your first and last name,

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I'll swear you in.

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oh hi my name is maximiliano bustos m-a-x-i-m-i-l-i-m-n-o bustos b-u-s-t-o-s

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swear and affirm to tell the truth the whole truth and nothing but the truth

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i do you represent in this case yeah uh civil engineer thank you mr whalen mr bustos you're

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the project engineer for this matter, correct? Correct. Okay. And you heard all of the testimony

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that I presented? I did. And do you believe it to be true and correct to the best of your knowledge?

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Yes. And would you adopt that testimony as your own? I would. All right. Now, very, very briefly,

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do you have anything further that you would add? No, everything was pretty well covered.

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thank you very much uh board i would offer mr bustos uh for your questioning and with that i

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would rest my case thank you any questions from the board no no no no okay i believe mr miller

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standing by would you please uh mr miller uh yes chairman did you go uh you were sworn in earlier

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And no disrespect, based on what I heard from Mr. Malin, I believe it was in everyone's best interest to begin this hearing.

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No disrespect taken.

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I just would like to state again and add a little bit to the timeline, I guess.

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We did, as the zoning committee, we met with the applicants on January 12th.

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and immediately recognized the confusion with the refusal

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and reached out to the examiner for clarification.

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And on February 5th, when we received the new refusal,

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it solidified that there was confusion that needed to get resolved.

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And that confusion also dominated the community discussion in a certain way

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and obscured the discussion from, you know, what was allowed by code

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and what the community was actually voting on

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in the same way that Mr. Holloman's question earlier.

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So I would just ask that the community would be given time

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to properly digest this

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so that we can come to a decision as we normally would.

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Excuse me, what are some of your issues, Mr. Miller?

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Yeah, that's what I was going to ask you.

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I mean, I'm speaking for the zoning committee.

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i'm not here to to talk about issues we just got the refusal on february 5th which was last friday

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uh so we have not had time to fully discuss this as a committee uh which is why we were requesting

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a continuance uh and my issue is that we haven't been given the time to discuss it that's that's

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only issue that i have well excuse me what what were some of the past issues the the there was

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The original refusal that I think they showed on the screen earlier from November, and both members of our committee, as well as the team they're speaking to, acknowledged that the refusals seemed to be wrong.

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And so there was a lot of discussion about how they were wrong, which is why we reached out after our January 12th meeting with them.

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We reached out to the examiner to clarify the refusals and see if there was, you know, if the examiner was standing.

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to clarify the refusals and see if there was you know if the examiner was standing by the

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the old refusals or if they had some other position to take and that was when they provided

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the revised refusal on February 5th and so that's where we are today excuse me what was wrong Mr.

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Miller let me ask it a different way aside from the refusal issue is there anything about the

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project that has been presented to the community and brought to our uh presented to us today

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that would cause that are you aware that uh any of a body in the community would be objecting to

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this project uh the refusal issue aside because that seems to be more of a technical issue

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than an issue as as it relates to uh the design and the other issues that go into this project

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certainly certainly and I think I think some of the confusion about that issue

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prevented the the full conversation on those other matters um which is why which is why the

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zoning committee is not currently taking a position and and why that we are requesting a

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continuance excuse me this is Sharon Saleta I've spoken with the board administrator and she is

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concerned that the um normal procedures for issuing a revised refusal weren't followed here

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she's um if possible could this be resumed could there be a follow-up hearing um and that would be

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on february 24th at two o'clock simply for us to be sure that everything was entered properly

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and um we could get feedback from the community at that time i think that's a good suggestion i

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think that works for both the applicant and the community we can maybe have everything resolved

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between now and the 24th, at which time the board will take a vote. Mr. Whalen?

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I believe that that's okay. I have no objections to it, and Mr. Fybush is on here, so he should be

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able to confirm that. Sure. We have no objection to the 24th. I just want to, I guess, manage

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expectations uh we have no expectation of getting a getting the refusal issue resolved uh so if more

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time is needed to digest we have here we certainly support more time uh but i just don't have any

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expectation of refusal piece uh being resolved in the next uh two weeks or two months or two

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years at this point excuse me this is sharon again if if um just to clarify this would be

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it the record would not be closed um we would look into the process by which the refusal was issued

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and the um rco if they want to can come back and testify but limited to the change in their refusal

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okay yes i have no objections as this is sean whalen i have no objections as long as we limit

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the the second hearing to you know the changes in the refusal as they stand um and you know again

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And whether we get a variance from the revised refusal

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or the original refusal, I don't think matters to us

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based on the board's determination

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of whether the revised refusal was issued properly.

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So this hearing will be resumed on February 24th.

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Is that correct?

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Yes, February 24th at two o'clock.

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2 p.m.?

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Yes.

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Which time the board will consider.

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Any of the feedback as related to the comments

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that have just been put on the record between Mr. Whalen, Mr. Miller, and Ms. Saleta. Okay?

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Thank you very much. Thank you. Thank you. Thank you. Okay, next.

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Correct Sharon? Yep. Can we confirm that Mr. Reuter is here?

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actually on this case okay you see his name but hi i'm here okay thank you okay next we are calling

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two related appeals regarding the property at 1526 packer avenue case number mi-2020-001532

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is an application for a special exception filed on September 11th, 2020. Case number MI-2021-000688

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is an appeal against L&I on February 4th, 2021. Because this matter is procedurally complicated,

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I'm going to go through a brief chronology. On August 13th, 2020, L&I issued a notice of referral

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indicating that the proposed edition of a sports book and pari-mutual betting use at the price

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proposed edition of a sports book and pari-mutual betting use at the property, which the examiner

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classified as assembly and entertainment, required a special exception. On September 11, 2020,

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the applicant filed an application for special exception with the zoning board.

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On December 1, 2020, the board held a hearing on the special exception request.

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At that hearing, Paul Bonney, representing the RCO, raised the challenge to the notice of referral, arguing that it should instead have been a refusal.

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At the conclusion of the 12-1 hearing, the board announced the hearing would be resumed on February 10, 2020, at 2 o'clock.

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The board asked Mr. Bonney to submit something in writing stating the grounds for challenge to the 8-13 referral.

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on february 3rd 2021 city attorney leonard reuter advised the parties that the law department had

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reviewed the 813 referral and determined it should have been a refusal a revised decision was

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therefore issued on february 4th 2021 applicants attorney michael matione filed an appeal against

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L&I challenging the revised L&I notice. Mr. Mattione maintains that the initial decision

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indicating the proposed use required a special exception was correct. For the purposes of today's

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hearing, the two pending appeals will be consolidated and the board will first hear

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arguments related to the appeal against L&I. If we could have Mr. Mattione, Mr. Bonney, and Mr.

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Reuter promoted to panelists we would then first like to hear from Mr. Mattione regarding the basis

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for his challenge to the recently issued revised decision do they all have to go under oath again

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Mr. Chair yes Mr. Mattione do you swear for him to tell the whole truth and nothing but the truth

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I do Mr. Reuter do you swear for him to tell the whole truth and nothing but the truth

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I do. Mr. Bonney, do you swear or affirm to tell the whole truth and nothing but the truth?

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Yes, I do. I just want to mention, we just want to make for the, at least for the record,

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an objection about this proceeding happening today. Okay, thank you.

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An objection for the record? Okay, Mr. Let me ask a question. Do all the parties agree

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to the statement that has been read into the record by Ms. Tenere?

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as being accurate yes any objection to the statement that was read into the record

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no objection from the city

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i have a question mr demarco is on is he part of the case yeah he only lives 50 yards away we let

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him in. Paul is the attorney for the protestants. I'm here as a resident. I am an attorney, but I'm

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here on behalf of Veterans Stadium Neighbors Civic Association. Paul is the lead attorney for the

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protestants. Okay, so you need to be sworn in as well. Do you swear for him to tell the whole

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truth and nothing but the truth? I do. Do you have any crab fries? I enjoy crab fries at

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chickies all the time. We don't want them to change. Sorry, Chair. I'm hungry. So I guess

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we proceed and now you take over. May I make my objection at least for the record?

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Okay, thank you. It seems to me that the original appeal that we started

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