Chair and his 33 attendees, and you can start as you wish.
Thank you.
Good morning.
My name is Bill Bergman, and I will be chairing this morning's EBA hearings.
With me is Ismail Shahid, who will be functioning as our vice chair for this meeting.
present Mr. Chairman and James Snell our board member present Mr. Chairman also here is our
board attorney Hillary Emerson and our ZBA hearing supervisor Lakeisha Dandy
before we begin here's our virtual format be advised the proceedings are being recorded
by participating you a knowledge agreement to be recorded the video will be available by contacting
tanyasunkett at phil.gov. For the benefit of our court stenographer, we ask attorneys and witnesses
to identify themselves before testifying. If you are participating by phone, if you wish to testify,
press star 9 to raise your hand and star 6 to unmute. To enter an appearance statement, call
267-270-5548. Leave your email and the address of the prompting question.
And finally, the question-answer box on the screen is not for comments.
All comments should be directed to our Executive Director, Tanya Sumpit.
Let's look at continuances for today.
Case number eight.
mi 2022 003 395 1510 north 25th street that case is continued and number 10
M-I-2021-004-545-636 North 11th Street, that case is continue, attorney moving party.
Are there any comments about the two cases I've just continued?
I see no hands raised, Chair.
Are there any other requests for continuances?
also no hands raised all right and number two
number two mi 2022 003 778 2708 commerce way this case has been withdrawn are there any other
Any request for withdrawals?
I see one hand raised by Harry Cook.
That's not letting me.
Mr. Harry Cook, are you in the audience?
Hi, good morning, Mr. Chairman.
Good morning, Harry Cook.
Good morning, Mr. Cook.
Could you say your name, please, and spell for the court reporter?
Harry Cook, H-A-R-R-Y-C-O-O-K, Anastasio Law.
All right.
Good morning, Mr. Chairman, members of the board.
I represent Burlum Town Watch and Civic Association.
Wait one minute, sir.
Do you swear or affirm to tell the truth, the whole truth, nothing but the truth?
Yes, I do, sir.
Your case is MI-2022-002-637-7248 Rising Sun Avenue?
That is correct, sir.
And it's a dual appeal.
I just wanted to update the board.
I believe Jared Klein is counsel for applicant who's here.
They are going to, and this is contingent upon what Mr. Klein is going to represent on the board, but the appellee developer is going to abandon the pending, the application that's subject to this appeal and has unilaterally decided to go with another buy right.
and has unilaterally decided to go with another by-right permit.
As a result, this appeal will be-
So, Mr. Cook, why don't I bring Mr. Klein on, right?
That would be, yes.
And also Leonard Reuter, please.
Thank you. Thank you, sir.
And Erica Briggs, sir.
And Erica Briggs, too.
Good morning, Mr. Chair. Hi, good morning. Mr. Klein, could you state your name and spell for
the court reporter, please? Certainly. It's Jared Klein, J-A-R-E-D, last name Klein, K-L-E-I-N,
from Blank Rome, 130 North 18th Street. Right. Do you swear or affirm to tell the truth,
the whole truth, nothing but the truth? Yes, I do. All right. While others are joining.
oh sorry leonard hello yes hi uh leonard reuter uh l-e-o-n-a-i-d-r-e-u-t-e-r senior attorney for
the city of philadelphia all right do you swear a friend to tell the truth the whole truth nothing
but the truth i do and miss briggs good morning chairman erica briggs e-r-i-c-a-b-r-i-g-g-s
right okay do you swear from the tell truth the whole truth nothing about the truth
yes i do mr cook we'll go back to you thank you mr chair um so as i was stating um i think uh
you know jared mr klein is going to represent to the board that they have unilaterally decided to
abandon the subject uh permit and go with another by right permit and upon those representations
this appeal then becomes moot, and we would be withdrawing as a result along with the council
office. All right. Mr. Klein? Yes, Mr. Chair, that is correct. So my client obtained ZP 2022-006317
on August 10th of 2022, and it is the owner applicant's intention to develop under that
permit not under the permits at issue in the appeal okay thank you miss briggs um chairman
our position is in accordance with mr cooks okay and mr reuter i'm sure you're fine uh yeah i'm
fine i just want the record to be clear there are actually two separate appeals i do i have i i'm
going to call two out okay and i was not clear ms briggs you are representing who in this matter
i'm i'm representing council member phillips oh okay okay all right so uh thanks so so case
number five mi-2022-002-637-7248 rising sun avenue that case is withdrawn and case number
9-MI-2022-00-877-7248-Rising-Sadamino. That case is also withdrawn. Thank you all.
Thank you, Mr. Chair. Thank you, Mr. Chair.
So we're going to start with, let's go here,
uh Tupacockett Street case number four MI 2021-005-028-224-30 Tupacockett Street
Steve Masters is the attorney Michael Phillips is the attorney for the property owner
and Leonard Reuter is the attorney for the city
good morning mr masters good morning mr chair members could you state your name please and
spell for the court reporter my name is steve masters s-t-e-v-e m-a-s-t-e-r-s right do you
swear or firm to tell the truth the whole truth and nothing but the truth i do right mr phillips
Could you state your name, please, and spell for the court reporter?
Good morning, Mr. Chairman.
Michael Phillips, Claire Harrison, Harvey Bransburg, PHILLIPS, 1835 Market Street, 14th floor, Philadelphia PA, 19103.
You're on behalf of the property owner, permit slash permit holder, Topa Hopkins Mansion, LLC.
Right.
Do you swear for him to tell the truth, the whole truth, nothing but the truth?
And Mr. Reuter, you've already been sworn.
Um, counsel tells me that Mr. Phillips, you want to make a motion?
Yes. Um, Mr. Chair, we, uh, are here on, uh, Mr. Masters' client's appeal of building permits
that were issued, uh, to conform to a Commonwealth court opinion that reinstated certain provisos,
um, that were, uh, ordered in connection with my client's development.
um that were uh ordered in connection with my client's development of this property
uh and mr master's uh appeal relates to whether or not uh the approved plan conforms uh to the
am i still here hello
it actually uh mr chairman it looks like at least to us i think your your video is frozen
um at least from my end oh looks like it's back we're back we're back okay okay my apologies so
uh quite a bit of that okay uh yeah we are here just relating to provisos uh that were issued
back in october 2017 and went through a long journey of being reversed upheld and ultimately
the commonwealth court uh reinstated provisos issued by the board related to parking along
west pastoria street excuse me mr chair this this is actually my appeal so if mr
phillips has a motion i think he needs to get to his motion because
mr phillips what's your so we have a pending variant uh appeal that's scheduled to be heard
by the board on april 26th that seeks to legalize um the parking along pastoria there were 15 spaces
that were prohibited by this proviso.
We have support from Councilwoman Cindy Bass,
and I believe that if granted at the April 26th hearing,
that would move this proceeding
because we would then be proceeding
under that reissued zoning permit that allows the parking.
So in the effort of administrative efficiency and economy,
we would propose that this hearing
or any determination be deferred until after consideration of the variance which could moot
this entire issue. Mr. Masters. I'm going to share my screen, Mr. Chair.
So the zoning code provides concerning appeals to the zoning board of adjustment that
that the zoning board shall make a decision on the appeal within a reasonable time after
receiving the appeal. In this case, I'm going to present now a timeline of what we're talking
about with this appeal. December 22, 2021, the appeal against LNI that we're here for today was
time-stamped and received by the zoning board. One month later, on January 18, 2022, we had our
first scheduled hearing. There was a request for a continuance by Mr. Phillips. No testimony was
allowed, and the board granted that continuance. Two months after you've received the appeal,
on February 15, there was a second scheduled hearing. Mr. Phillips made a motion to dismiss.
That motion was denied. There was a continuance that was granted to Mr. Phillips, and no testimony was allowed. Then four and a half months total passed after the appeal on May 4, 2022. The third scheduled hearing was held in this case.
You heard oral arguments, and then the board continued this case for a hearing on the merits. Then seven months transpired until today's hearing, and this is the fourth scheduled zoning board hearing.
Mr. Chair, members of the board, it's our contention that the zoning board, if you were to continue this case one more time, we believe that even today you're not within the reasonable time mandate that the zoning code requires of you to expeditiously act on an appeal.
It's been quite a bit more than one year since this appeal was received by the board. And therefore, we contend, number one, that there is no basis whatsoever for postponing of this case.
But number two, what Mr. Phillips wants to do can only be done if the two cases have been consolidated and are related to each other.
There are many, many cases that happen before this board that have some relation to each other.
There could be cases happening on the same block.
There could be cases happening with the same property.
Mr. Phillips hasn't made any motion to consolidate the appeal.
And in fact, he can't because this appeal was brought by us against LNI and the appeal that he's going to be prosecuting in front of you in April was brought by the.
prosecuting in front of you in April was brought by the property owner. So there is no unity of
parties that would allow for that kind of a consolidation. And therefore, this case has to
move forward today. If it doesn't move forward today, Mr. Chair, we will be going and seeking
contempt, another contempt action with the Commonwealth Court, because the Commonwealth
Court has instructed us to seek administrative relief from the from LNI and from the zoning board,
which we which we attempted to do, which we did with with with all proper form and in good faith.
And if the board continues to refuse to move forward with our case and to give us the hearing
that we we deserve, then we have no choice but to go and seek sanctions, not just against Mr.
Phillips' client for the last
five years for defying
the proviso of this board
but also against the board
if you refuse to
move forward today. Thank you,
Mr. Masters. Leonard?
I mean, the city's position
is that
if, let's say, this
case were to move forward and
the court were to find the
permit that was issued invalid
you know, some some other form of relief. Presumably, there would be an appeal from that
either taken by the city and or Mr. Phillips client. And in the meantime, there is an
outstanding permit application, which already got a refusal, which is already scheduled before this
board, the result of which would, in fact, moot this entire case. So I mean, it's kind of at that
point irrelevant i mean if if they if the permit is deemed invalid but a new permit is issued uh
in you know after assuming again obviously i'm not predicting that the board would grant that
variance but certainly if a variance uh were granted that would definitely moot this case
the sit you know the city wouldn't i mean the revocation of the permit would really be kind of
you know again it would be moot it wouldn't matter because it would be a new permit that had taken
place um so it makes sense to to me and to the city to wait and see what happens with the variance
case uh just because again i think that it would the outcome of that very well may moot this case
in fact it probably moots it anyway uh there's an argument that the application itself moots
moots this matter um but uh you know i mean that being said we we have uh the two city witnesses
that were subpoenaed, Mr. Bednar and Mr. Montaigne, as I believe is in the audience,
who are here, will defer to the board on this. But again, my fear is that this is ultimately
becomes a waste of time. Well, Mr. Chair, the reason it's not a waste of time is because what
Mr. Phillips has brought in April is not a typical variance request. The only way that the board can
give relief to Mr. Phillips' client is if it finds that the proviso is no longer applicable
to the property. This is not a case where it's not a regular variance case whatsoever. The
proviso controls everything about what can happen at Mr. Bilby's property once that proviso was
entered in 2017 so if we don't go forward today we don't clarify what this proviso requires and
what it doesn't require and what its parameters are then we're going to have the same the same
level of of um the same challenges um but at this point uh we there there really is for for five
years now or over five years, we've been waiting for this board to clarify what is allowed under
this proviso and what is not. And this is the day to do it, we submit, Mr. Chair.
Mr. Chair, if I may just briefly respond.
You can, Mr. Phillips.
And I'll be very brief. First of all, the Commonwealth Court has already made the
decisions of Mr. Masters' protestations based on that, I think, are misplaced and misguided.
But I would say that if this does not proceed today, we're looking at April 26. And to date this back to 2017 is disingenuous because that's when the original hearing was. But this has gone up and down to the Court of Commons Pleas, to the Commonwealth Court, back to the Court of Commons Pleas, back to the Commonwealth Court.
So there's a long procedural history here. And this is a typical variant, the other case on April 26th, that would, again, absolutely move any prior permit that was issued because it would be a brand new zoning permit that controls the use and dimensional requirements of this property.
of this property. So I'm looking to administrative efficiency and not proceeding with a long
So, you know, I'm looking to
hearing that could only become moot in three months. And in three months, the variance is
denied. We can immediately pick up and address the parameters of the proviso consistent with
the Commonwealth Court's order. This won't happen in April. We will go to the Commonwealth Court
and seek sanctions against Mr. Phillips' client and against the Zoning Board.
Thank you, thank you, thank you. So thank all three of you. We're going to grant Mr. Phillips'
motion, okay? Thank you. We're going to go to case number one.