civus
Hearing video

ZBA Hearing - May 17, 2023

Philadelphia Zoning Board of Adjustment (ZBA)May 17, 20237h 55m

This is a dog, and unfortunately, since they didn't provide any testimony, we don't even know exactly what their capacity is.

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It's one of the more telling failures of evidence today.

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They made this point about the train tracks. There's no pictures of the train tracks. There's no pictures of the embankment between the dog kennel facility and the train tracks and its proximity to my client's property.

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There's no picture of the inside kennels. There's no picture of dogs in the outside dog run.

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The trash issue that they claim that they want to address with a proviso, it's telling that they failed to present any evidence or pictures of the current trash situation at the property and what they're currently doing to store the waste.

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There is no picture of my client's house showing how close it truly is to a kennel use, which, pursuant to Section 146023 of the zoning code, is only permitted in the city's I-1 and I-2 industrial zoning districts, and only by special exception.

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That's the count. He gives passing glance to the significance of the external usages on my clients and their use of their property and their enjoyment of their property.

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There's a reason why the Philadelphia zoning code only allows for the placement of boarding in our facilities in the most intense industrial zones because they have so many exterior collateral impacts on neighboring properties.

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No, it's also telling that this this application is not supported by city council representative for this district.

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No letter of support was received. None will be coming.

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There's no picture or plans of the other development that Mr.

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Notkinson alluded to. It's our understanding that there was a 50 unit application for this very same property submitted by

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submitted by the owner of the property. For an application where they bear a burden of proof

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to show how it will impact neighboring properties, part of that burden is showing how it interacts

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with the other uses that are being proposed for this very same parcel. So with that, I'd like to

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go through some of my exhibits. And before, within five days, we provided these documents to the

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Board. And I'm not going to go through all of them extensively, but I would like to note for the

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record that we have produced 16 exhibits, including the trial court order dated 11-13-2019,

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remanding this case for proof of a hardship, which this hearing was never held by the Zoning Board.

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We also included the transcript from the July 26, 2019 record hearing before the Zoning Hearing

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Board on the prior application, as well as the Zoning Board's 2019 decision.

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At Exhibit 5, and if I could share my screen, Mr. Chairman,

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is a Google Aerial View. Now, in his presentation, it would be seen that this is not really part of

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a residential community. The reality is, and this is clearly visible on this Google map,

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where my cursor is right now is where the little doggy daycare operates. And up front,

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you can see a fenced off dog play area. This is my client's property, and there's a driveway that

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separates too. To the west of the doggy daycare, basically running parallel to the entire

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Marcel at Nani Rochelle is the train tracks. And unfortunately, this picture doesn't give it true

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justice, but the depth of the cliff between Nani Rochelle and the train tracks is significant,

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and my client can testify to that. What's depicted

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on the first page of what we marked as Exhibit 8 is my client's property.

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The black fence encloses the dog run area. The dog daycare is right there in the foreground.

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This is a use that's not enclosed within the building or even within the playground.

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My clients, and this picture was taken by my clients from her bedroom window, shows that immediately outside her bedroom window.

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My clients, and this picture was taken by my clients from her bedroom window, shows that

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There's also dog training and a dog run in an area not in Rochelle that's proposed for development by originally the Western Group, but now the owners of the property.

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And again, these pictures were taken over the period of the ownership and operations of the dog kennel.

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This is an experience my clients have to deal with every day.

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There's nonstop barking coming from this facility in the spring, winter, summer, fall.

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Now, we did produce several videos that picked up the audio that my clients are constantly

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dealing with. I'm not entirely sure how well the Zoom will pick up audio from the video

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that's played on my screen, but I'm going to try one time. If it doesn't work, we'll

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move on, but the board has these, and I encourage the board members to listen to what my clients

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deal with.

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well i'm going to object uh mr chair if it's just sound i don't know where where they are

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in terms of the fencing and how close they are.

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Are they on their property?

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Where was this taken?

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So I'm going to object.

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My clients can't testify that this is an audio statement.

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Let's just see if it works even.

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Okay.

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can you hear that actually not

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so this is

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this is exhibit 13 okay I encourage the board to listen on their own we've provided

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well in advance um well I'm going to object to admission of that because unless you can play at

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the hearing. Well, I think

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it's not working, Mr. Toner. I mean, I

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couldn't hear anything. Well, I think this is part of the

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problems with the Zoom technology, which is obviously nothing that my client

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can control. Certainly, you can listen to the audio. So

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I think it can be taken. You can weigh the credibility of the evidence

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and the weight given to it and make your own determination for it.

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Yeah.

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So my clients aren't just suffering without having any attention. They're treating physician, submitted and drafted this letter to the board.

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I'm going to object to the mission of this as well as hearsay.

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So if I can respond, Mr. Bergman, first of all, the rules of evidence are relaxed at the zoning board, but this particular document, which is a letter from his treating neurologist at Jefferson, this is a rule 803.4B exception to hearsay as a statement on medical treatment.

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well i'm going to object to this i mean i i uh i'm not i'm not going to agree with that

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so why don't we move on well certainly my clients can testify to i understand

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excuse me mr toner this is this is hillary um so when you initially introduced yourself

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um you said that you were the attorney for katherine barnhart but there was a different

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name on that letter and you're saying clients are you representing more than one individual

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yes that's our husband andrew snyder okay thank you

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and with that i'd like to call katherine barnhart okay

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miss bonhart could you state your name and spell please for the court report

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Yes, my name is Catherine Barnhart. That's Catherine, K-A-T-H-R-Y-N. Barnhart is spelled B-A-R-N-H-A-R-D-T.

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Swear or for him to tell the truth, the whole truth, and nothing but the truth.

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Yes. Proceed, counsel.

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Yes.

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Proceed, counsel.

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Mrs. Barnhart, can you please explain to the board your daily interactions with the white dog daycare?

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Mrs. Barnhart, can you please...

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Sure. I mean, I will say that over the first of the past four years, this business has had a devastating negative impact on our health.

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Counsel, is there ways she could take her volume up a little bit? We're having a hard time here.

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Yeah, you just need to speak up.

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Okay, sorry.

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I was saying that over the course of the past four years that this business has been adjacent, directly adjacent to our home, we have, it has had a devastating negative impact on our health and well-being, as well as a tremendous diminishment of our enjoyment, peaceful use of our own property.

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Ms. Barker.

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Oh, can I?

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Sorry.

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um as i testified originally in 2019 um my husband suffers from a neurological condition

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which presents as migraines vertigo uh and difficult i'm gonna i'm gonna object um because

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she's giving medical opinions i don't know if he does or not but i just i if she's if she wants to

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state one effect is heavy on her is one thing. She's married to Mr. Snyder. She deals with the

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physical impact that he suffers from this dog daycare. So we'll let her testify as to what

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she sees with her husband and then we'll move on it. We'll evaluate it. Proceed, Mr. Turner.

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Thank you so much. I see my husband impacted by the noise and stress of the intermittent

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explosive, percussive nature of dog barking, which can trigger his migraines. A short burst

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of barking can trigger a multi-hour or multi-day migraine. There are short bursts of sound

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repeated throughout the day. In the morning, I have lost count of the times we have been ripped

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from our sleep at seven in the morning by arriving dogs. It may well be that 20 of them arrive

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silently. It only takes one to decide it's going to bark aggressively. It's like having a firecracker

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lit underneath your window. It is jarring and devastating to experience that. And it does not

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happen every day, we admit, but it happens multiple times daily, weekly. There may be

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intervals of days where it doesn't happen and we finally get to slightly relax. Then it happens

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again and we are jolted again. And these interruptions happen throughout the day as

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dogs arrive and depart. We also deal with the ongoing sound of barking that emanates from

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within the building, even when dogs are not outside, the sound of their barking within the

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building can be heard through the walls of their building across the, I'm not sure, approximately

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30 to 50 feet that separates us. Their building is on an angle. Portions of it are much closer to

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us than other portions of it, but we can hear that sound that emanates from within the building

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across the space between us, that driveway, through our 18-inch thick stone walls and our

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double pane windows. I can be sitting in my living room and hear the barking that happens

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within that building. I can no longer sit out on my porch and enjoy my yard because of the

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constant din of barking that comes from within that building. And I fully admit that to a casual

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passerby, they might think, oh, that's not so bad. It just happens occasionally. But this is our home.

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We live there. We endure this all day long when other people do not.

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Ms. Barnhart, you heard Mr. Nockleson make a reference to the train noises. Do you hear the train noises on a regular basis like Mr. Nockleson would testify to?

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we hear the gentle rumble of an electric train which is moving very slowly because it is coming

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to a stop or moving out from a platform it is present but it is a little to no impact on our

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lives this was true before this business game and it the trains are moving slowly they're electric

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It's a gentle rumble of an approach and a departure.

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And any of the, were you at public meetings where this application was presented to the local community?

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I was at the public meeting that was presented, I believe, in April of this, perhaps it was March of this spring.

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I don't have the exact date in front of me.

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Um, we understand that people like the people who run a business, we understand that people

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We understand that people...

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derive value from the services provided by this business. And that's not the issue here. The issue

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is whether this business is appropriately placed directly adjacent to our home.

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And Ms. Barnhart, before the dog camel moved in next door to you, what type of business

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operate next door there was a long-term tenants very stable tenant it was i don't know the exact

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nature of it some sort of social services agency it was monday through friday nine to five very

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low impact staff and clients would arrive go into the office building do office-y things

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and then they would depart the weekends were quiet it was minimal impact and we had

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no reason at the time that we purchased the property to believe that they would be vacating

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the property but they had been in that location for i can't say specifically but our understanding

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was well over a decade and miss barhart what what rooms in your house can you hear the dogs at

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um from our front foyer from our living rooms from our kitchen from our bedroom from the

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third floor attic bedroom and workshop room it's it it's more a question of where can the dogs not

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be heard and that is nowhere they can be heard in all rooms in our house have you and your husband

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been forced to take any action to try to dampen the sound that you experienced within your own home

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well my husband frequently has to wear uh what would you call them uh earplugs or

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the sound dampening earphones uh like that you use for hearing protection if you're doing

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yard work or whatever it's

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we have thought about whether we need to invest in soundproofing of our own home where our loathe

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to invest thousands upon thousands upon thousands of dollars to defend ourselves from a use

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that is a prohibited use and it should never have been approved in the first place.

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And we are puzzled and disappointed and distressed that the burden of this is falling upon us.

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And we don't think that there is any maliciousness or ill will on the part of the business owner.

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We understand why it is convenient for neighbors to use this because it's close to them, but it is a prohibited use and prohibited for a reason because it has a negative, verifiable negative impact on our house, as all chronic noise situations do.

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It's just incomprehensible to us that this was allowed to be in a strictly residential neighborhood.

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but it was, it continues to cause us pain and distress

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on a continual daily basis.

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Thank you, Mrs. Barnhart.

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I have no further questions for us, witness.

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Mr. Nakamura, do you have any questions?

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No, I do not.

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I do, I would like to address some of,

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I don't know if Mr. Toner is done with his presentation.

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I would like the client.

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Hold on, Mr. Toner, do you have any other witnesses?

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No, I don't.

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Okay, and Mr. Nakamura, are you going to respond to some?

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Yes, I would like to have Ms. Berman address something.

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How long do you think this takes you to respond?

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Because we're really getting late.

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Yeah, I know.

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Maybe like five to 10 minutes.

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Okay, you got five minutes, okay?

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Okay, thank you, Mr. Chair.

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Ms. Berman, in terms of hours of operation,

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what are they for the doggy daycare?

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And then why don't you explain the hours of operation

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for the overnight services?

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did she get off

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there we go uh uh we're open seven to seven we do have drop off and pick up um drop off stops

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around 10 uh pick up stops around seven uh during the day they play i'm not sure what you needed me

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to do they play they they go outside um we have a standard routine i know that i have some their

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Neighbors also that would like to speak about some of the issues that Catherine has that would probably be much more relevant than me defending myself.

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No, I hear you.

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I just wanted to both understand your hours of operation.

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So they're 7 to 7, right?

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And what days of the week is that?

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Monday through Friday.

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Saturdays, we're 8.30 to 5.30.

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Sundays, we are closed for daycare.

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We might have some dogs there that are spending the night and there's always a person.

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Okay. In terms of how many dogs are in the facility, can you explain the capacity levels?

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Okay.

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In terms of how many dogs are in the facility?

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Sure. There's usually about 45 dogs. There's usually about 10 to 15, maybe in a room or so, maybe 20 at the most, but not usually. It's usually about 15, about 10 or so at a time.

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okay and then in terms of the outdoor on this further away uh from um mr toner's client

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um how many dogs are out there at once uh maybe 10 they're out there for about 20 minutes half

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an hour and then they go back in and maybe another group comes out and they're all in

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they don't go out before 11 and they're uh back in the property by one before one

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so it's like it's a two-hour window

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okay and then with regards to trash maybe the pictures didn't do it justice and

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but you know where is the trash stored so it's one rolling trash bin that is closed

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unless you are lifting the lid it doesn't smell but it is as far away from them as possible against

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the uh the fence usually unless the trash can move it the trash men may move it when they

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