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Hearing video

ZBA Hearing - October 27, 2021

Philadelphia Zoning Board of Adjustment (ZBA)Oct 27, 20215h 40m

To say increasing the ground floor area of the structure increases the nonconformity is essentially saying that anything you do or change to a nonconforming property would be increasing the nonconformity.

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Because Mr. Bolin, in his pleadings and in his argument, agrees with us that the nonconformity here is the occupied area of the structure.

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That's not increased by the GFA.

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What's happening here, and I can actually share my screen and illustrate this easily, if Mr. Bolin can stop sharing, so thank you.

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Is the board saying that?

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Yes.

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Okay.

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What's happening here is that there's an existing structure that's two stories right now, the

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building envelope.

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The building envelope is not changing.

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And what was submitted to LNI and what was clear to the examiner because it's written

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here, and it's also clear on the plans, which I'll zoom out and show, is that the proposed

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renovation in addition to the existing two-story structure, there's no ambiguity there, we're

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stating that's a two-story structure, into a four-story structure with the, excuse me,

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with the interior of the existing building to be reconfigured for three floors within

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the existing shell.

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So nothing is changing with the structure in terms of the shell outside of the one addition.

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And so that's why the addition on top, when the project is completed, will be deemed the fourth floor because the building as it's currently situated can fit three floors for the use that we're trying to put here.

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But again, I'm explaining this just to show that there was no confusion.

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L&I was fully aware.

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It was on the face of the permit application.

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It's on the face of the permit.

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Frankly, it says the same thing here.

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Existing, the addition will be above the existing third floor once that's completed.

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And also, it's in the diagram showing that in the elevation that we're proposing a three-story structure, and then we're also proposing a four-story addition.

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So there's no confusion here. But none of that matters because the section that Mr. Bolin is referring to has nothing to do with the increase of a ground floor area of a non-performance structure for the purposes of whether you can do that or not.

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The only the only thing that that section speaks to is whether something.

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The only thing that that section speaks to is whether something can be defined as a repair for the purposes of bringing a nonconformance structure into compliance with the existing building code.

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And the reason that matters, as I think the board and Mr. Bola knows, is that there's a difference, obviously, between a repair and a demolition when it comes to what you can and can't do with L&I.

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So they need to establish, you know, what can be determined, a repair or not.

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But that section is clear.

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It's for the purposes of when you want to bring a nonconformist structure into compliance, into greater compliance, excuse me, with the building code.

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We're not doing that here.

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No one said we were doing that.

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We never proposed we were bringing this into compliance.

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What we propose is an adaptive reuse and an addition.

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By that definition, this just doesn't apply. And as for the one year rule, just quickly, because it was mentioned, I know Mr. Bolin said it was minor, but because it was mentioned on the record, I want to just address it quickly, is the one year rule, which we're all familiar with, does not apply when something is when a permit can be issued by right.

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And it's clear on that. It states, if such a determination is made, and if the application is not one that L&I may grant as a right under the zoning code, then L&I shall deny the application and note on the application denied one-year rule.

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So this is a by-right permit. It's not subject to the one-year rule. They never have been. And unless this code section change, I don't think it will in the foreseeable future.

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And so, the only issue here is really none of the, essentially none of the appellant's claims are supported by the code sections that they're citing.

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They're just, that's just not what the code section says. And it's a, you know, an attempt to sort of bend it to that purpose, but that's just not what it says and it doesn't apply here.

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So the non-conformance structure itself can be renovated in any way possible under the code, and it's not limited by this. The ground floor area can be increased because if you couldn't, you essentially couldn't do anything with non-conformance structures, and you wouldn't be able to have the addition that Mr. Bowling conceded you can have.

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And lastly, the increase of ground floor area is not an increase of the nonconformance because there is, that's not the ground floor, excuse me, that's not the nonconformance for this building.

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And to sort of highlight that even further, this property is zoned as CMX2, as this area shows, and CMX2 zoning district doesn't have a limit on ground floor area.

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So it can't be an increase of the non-conformance, as you can see here, there's no limit on that

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under CMX2.

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So, you know, I said at the beginning of this that this is something that was just regarding

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the facial reading of the, there's no ambiguity here.

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This is regarding the facial reading of the code, and there's just a misreading of the

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code and a misapplication.

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It just doesn't apply here.

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are you resting for the moment oh excuse me yes I will okay thank you uh Mr. Bolin and or

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Ms. Corrigan who's up next I will wait for Ms. Corrigan in case there's something else I have

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to state Ms. Corrigan please please spell your first and last name and I'll swear you in

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Yes, Ellen Corrigan, E-L-L-E-N-C-O-R-R-I-G-A-N, on behalf of the City of Philadelphia Department of License and Inspections.

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Do you swear or affirm to tell the truth, the whole truth, nothing but the truth?

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Yes.

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Thank you. Please proceed.

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um so i it was stated earlier i did not uh have the opportunity to speak but the city was given

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uh the impression that this this continuance would have been requested and and

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much further back than it ultimately was and we have not been able to secure the attendance of our

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plans examiner at this time. Obviously, a lot of the conversation here is centering around how the

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plans examiner has read the code and read the plans themselves. And as someone without that

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sort of expertise in reading plans, I'm certainly not going to substitute my word for his. So

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So unfortunately, uh, we don't have that, that plans examiner, uh, present today.

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unfortunately, we don't have that plans examiner.

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Um, we don't object to the resumption, uh, after a brief continuance based on, uh, what

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Mr. Bertil suggested earlier this afternoon though.

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Thank you.

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Mr. Baldwin.

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Yes.

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Um, I, I don't know if you want me to, to provide a brief rebuttal or explanation, but

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if this is going to be continued. I too was really hoping to hear if Ellen and I agreed with me and

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I thought they would be supportive. So I was really hoping for that today. I'm going to ask

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Rebecca Cole, our counsel. I was thinking of doing a resumption hearing as opposed to a continuance

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because I said the continuance, and correct me if I'm wrong, Tanya, probably wouldn't be till

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january or february uh and i suspect that the owner of this property who's probably has in his

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perform his or her performa uh figuring in the 10-year tax abatement which will expire at the

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end of this year and if he doesn't get the go-ahead uh he'll lose he or she will lose that

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opportunity uh so rebecca school yep that's certainly oh i'm sorry i didn't mean to cut off

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this cool uh if we do a resumption hearing and maybe tanya will weigh in we can limit this

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could we not to testimony uh from but uh from the city right and i would ask am i simple oversimplifying

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it i don't believe you are um mr chair frankly i don't believe we even need um testimony from the

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city if we want this if we're asking the city we may want the city to weigh in when i say a

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resumption here i'm we're only talking of i guess tanya will be able to answer it better not too far

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from today we're not looking at you know next year yeah rebecca cole if if the board is inclined to

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grant some sort of a continuance in order to hear such testimony. It could be limited and

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the request could be for as short as possible, not to overly prejudice circumstances as they are.

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And Mr. Chair, I would ask that since it seems like the, based on, maybe he'll disagree, but

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But based on Mr. Bolin's arguments that the only thing really at issue here is this particular section, I would ask if we can limit whatever resumption we do to the examiner's determination of whether this section applies to this application or not.

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Because at that point, we will just essentially be redoing the hearing.

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yeah well we're not going to redo the hearing and that's why again i'm asking council's advice

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to do a resumption hearing and you know limit it to a very small

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uh scope of what the city might uh the city would be testifying to um

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miss miss corrigan um well let me let me start here tanya if we do a resumption hearing

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what what what are we looking at a couple weeks no january oh still i'll be after the first in

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the year oh well in that in that case uh we're gonna have to object to that i hear you i hear

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you i hear i mean this is to me this is not complicated at all on its face my apologies

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i didn't think we'd have to wait that long all right any other question any question

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Mr. Bolin, I'm sorry, are you resting?

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Yes, I would like to bring up one thing, Mr. Chairman.

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A building permit was already issued, which is we filed an appeal of that on the same basis and as well as another basis,

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because we don't believe the zoning permit gives them the ability.

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So that issue is still going to be floating out there and they can still get a they can still go ahead and get the tax abatement.

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But I understand that you might, once it's ruled on once, it's likely to be the same decision a second time.

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And Mr. Chair, I just want to highlight that the tax, I know for normally, you know, we represent developers and things of that nature where the tax abatement is the preeminent issue here.

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But this is the permit holder's residence.

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They're living in transitional housing.

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They started the project.

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And at a certain point, they can't continue expending funds.

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I mean, they already paid $41,000 into the housing trust fund for the bonus.

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for the bonus that's non-refundable um so at this point they they can't continue to move forward

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That's nonrefundable.

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So at this point, they...

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with construction under the cloud of an appeal especially when it's not a it's a fairly simple

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appeal it's you know it says it right there in the code that this doesn't this is about the

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definitions not about whether you can um increase ground floor area i think mr chairman can i

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suggest something is it possible i'll waive the right to cross-examination and the examiner

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submits a sworn statement under oath in the next week and then you decide it it's something i i just

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want to know i think ellen i is going to be on our side so i'd like for you to have the opportunity

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to hear what their position yeah i kind of was going you obviously explained a lot better than

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i could being a lawyer but i i was that's what i was looking at there's some way of resolving

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having a resumption and resolving it in the next couple of weeks with just basically testimony

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from L&I or from the attorney for L&I. So Chair, this is Tanya. If we are going to limit the

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testimony and it can be a brief resumption, I can squeeze it in. We cannot do a full hearing

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for this year because unfortunately, if you look at our calendar, we are booked solid. So it would

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depend on that if for some reason we need to have it i could squeeze it in november the 16th

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for limited testimony only because we still have that's a tuesday where we still have um a full

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case for two o'clock so we could do it that tuesday at two o'clock yeah that's where i was

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Mr. Chair, I'm actually not opposed to Mr. Bolland's suggestion of submitting it, just submitting written affidavit within the next week.

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In fact, that would be preferable to us than waiting until the 16th.

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Well, I'm sure it would be.

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Again, I didn't want not to have the city weigh in if it was all possible, and that's why I was trying to figure it out.

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and Tanya has helped me out, obviously, and Ms. Cole, to limit the testimony to anything that was

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germane to the city's law department's position. Again, I'm not sure if I'm explaining that

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accurately or not. Ms. Cole, you might want to help me out with that.

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Rebecca Cole here, if the parties are essentially in agreement about how to proceed

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and would accept a written affidavit from the L&I examiner.

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Ms. Corrigan, would that suit the city's purposes?

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I think we can do that.

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Just checking my calendar really quickly.

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When would the board need this by?

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Tell us when you can get it.

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We're talking about the 16th, if possible, November 16th.

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No, Frank, I think they're, Mr. Chairman, they mean sending something in.

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yeah yeah but i think miss corrigan's asking when would we need it by correct

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um if i i can pose the end of next week november 5th if that works for all other parties um i can

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try and push the plans examiner to to get that done i understand there's a time limit on this

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we don't want to drag this out so um i'll do my best on that so uh the fit you're are we looking

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at the 6th or or the 13th oh I'm sorry I got the wrong hold on one second apologize

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so we're looking at the the 10th uh which is a week from two weeks from today

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is that do you think that would be sufficient time Ms. Corrigan I think it should be yes

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we all agree in agreement on that mr boland mr bertill i am not uh opposed to that mr chair

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um i just wanted to clarify and just confirm that the city is going to weigh in on whether

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section 305 6g the the section that mr boland is saying should have been should have created

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a refusal applies to this application or not my argument was a little bit broader because i also

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focused on that first paragraph of section 14305C, where I believe, I'm sorry, where I believe that

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I'm just trying to pull it out, but it's that whole section. It's the whole section,

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not just subsection G. Correct. I believe under C there does not increase any existing

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nonconformity. I believe that's another reason. That's fine. I thought you said,

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that's that's perfect i'm not opposed to that um if this if the city is going to weigh in on whether

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um that section applies or whether it's an increase of non-conformance

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um that section applies or whether it's an increase of non-conformance um i'm perfectly fine with it

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if i can just confirm 305 6g

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and then and i believe you said whether an existing non-conformance is increased um

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just so i can make sure we're limited to the to the issues what section is that

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it's uh 305 6

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well 305 6 a b c i guess the the first section actually doesn't have a letter it's before a

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oh excuse me okay the initial paragraph is three or five six first paragraph as well as g

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just want to make sure that we're in the right spot uh as far as

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our response so we're not going too far out of bounds

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okay so if you want to repeat that miss corrigan what what do you believe they're asking and then

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we'll move on the city uh is going to provide a written statement from the plans examiner

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um no later than november 10th which is two weeks from today then and also

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provide a statement weighing in on section 3056 the introductory paragraph as well as

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subsection g and the interpretation as it applies to this permit that is that accurate

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Mr. Bowen and Mr. Bertel? That is accurate, yes. Yes, I believe so. No objection, okay. So I'm

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going to probably ask Rebecca to fill in the blanks here. This hearing will be resumed

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on Wednesday, November the 10th. Tanya, what time? Oh, I'm sorry that we didn't discuss a

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resumption for that date. I thought this was just sending in

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documents.

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We're at Yeah, the documents will be submitted by the for the

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for the board of the 10th, correct? November the 10th.

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That was my understanding to be read into the record.

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Okay, just documents to be read into the record now? Yes.

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Okay, that November 10 will be perfectly fine at whatever time

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you choose 9 30 a.m no problem at all chair thank you and miss cole did i leave anything out

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uh i don't believe so as long as the parties are happy we're happy

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okay thank you all and congratulations mr bowling congratulations thank you time for a nap

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excuse me chair if I may we do have um hands raised no we they're not no it's not appropriate

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this is an appeal against LNI okay thank you Mr. Bertil Mr. chair I don't I don't think you

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mentioned that a vote will be taken after one a vote will be taken at the November 10th uh 9 30

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session. Okay. Thank you all. Thank you. Thank you. All right. We go to number five now. MI 2021-002898224

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East Sharpneck Street. Leo Mobile Hill is the attorney of record. I believe Mr. Councilwoman

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ambassador's office is going to be weighing in. So allegedly, and I say allegedly because I'm a

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little confused here, East Mount Airy Neighborhood Association, no letter, but I'm also reading where

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they did have a meeting and the community unanimously opposed this project. So Mr.

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Mobile. I'm coming back in as a panelist now. Yes, good afternoon members of the board. My apologies,

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I'm having a computer issue that I'm trying to rectify right now so I can get my screen shared

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and get everything along. In the meantime, if you would identify yourselves by your name,

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