civus
Hearing video

ZBA Hearing - December 9, 2020

Philadelphia Zoning Board of Adjustment (ZBA)Dec 9, 20206h 34m

3639 North 19th did not have an exhibit. Is that still the case?

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I'm sorry, I was muted. I asked you, could you just call that out to see if anyone is here for it?

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Sure. MI 2020-000197, 3639 North 19th Street. Is anyone here for this case? Please raise your hand.

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No hands at this time, Chair.

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Okay, this will be continued. Tanya, has this been continued in the past?

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Yes, it should be a must be heard. Thank you.

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This will be a must be heard. Thank you.

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next one was number eight on our list mi 2020 that's zero zero one nine four five five six

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zero zero ogons avenue that is um meredith furlinger she is prepared to go forward when

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we get to the 330 list. Okay, next one, number nine on our list, MI 2020, that's 001-936-5901

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North 10th Street. Could we ask if anyone is here for this? Is there anyone here? Hillary's hand is

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Hillary's hand is up for this.

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up for this Hillary

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Hillary, we have not yet received, and correct me if I'm wrong, Tanya, any exhibits on this case?

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we have not yet received

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and

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Good afternoon again, Mr. Chair.

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Hillary Emerson on behalf of Counsel Mitchell-Parker.

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I reached out to the RCO yesterday to see if a meeting had occurred because I hadn't heard either from the applicant or the RCO since the original email went out.

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And I still have not heard from either party.

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So we would request a continuance at this time.

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thank you tanya have we has this been uh continued in the past yes a couple times

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okay chair if i could note that both number seven and number nine the attorney is michael lambert

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i don't have exhibits for either okay we will reach out to them mi 2020-001936

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5901 north 10th street is continued must be heard and we also number 10 on our 330 list

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mi2020-001944 7135 rising sun avenue is there anyone here for this case

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um we have alicia jackson and she cannot speak because it's uh i'll promote her

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cannell lc um alicia you've been promoted to panelists you don't have to open your video

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could you speak to the continuance miss miss jackson please spell your first and last name

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and provide us with your address

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Alicia do you have audio

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I only see a camera

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Ms. Jackson, I would ask that you chat with me through the Q&A regarding this case.

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And do you have an attorney to represent you to go forward today?

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And if you can chat with the Q&A, we can resolve that with the attorney for the board.

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okay chair

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yes excuse me this is hillary emerson in councilman parker's office the rising sun avenue

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case um was just called is also in our district um as uh the art i checked with the coordinating

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rco and a meeting hasn't been held yet in this matter so we believe a continuance would be

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appropriate at this time okay and again i'll ask tanya has this already been continued um it has

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one time chair but it's okay for it to just go forward and not at this time it must be heard

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thank you mi 2020-001944 7135 rising sun avenue is continued

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um chair is number nine continued as well because i know there's no exhibits

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uh north 10th street yeah i thought we continued that correct yes we did yes thanks all right

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so we go back to the uh the resumption hearing resumption hearing which is on page number one

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calendar number 1433 414 south 20th street

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is the attorney um mr demarco michael phillips yes i already promoted michael

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name and address for the record please and spell your last name please

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michael phillips p-h-i-l-l-i-p-s oh good we'll make another pass and bring some more

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Thank you.

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Shake your vegetables.

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What's your party?

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Hello.

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I'm sorry.

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No idea who that is.

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Looks like that's right.

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I'm sorry.

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I muted everyone.

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So you guys might have to unmute yourself.

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Good afternoon again.

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Michael Phillips, P-H-I-L-L-I-P-S.

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1500 Market Street, Suite 3400, Philadelphia PA 19102.

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I'm here on behalf of the property owner, RLDL 20th Street, LLC.

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i'm here on behalf of the property owner rldl 20th street llc this is an appeal against lni we

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are the property owner um mr demarco who i see just uh joined as well uh represents before you

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go any further do you swear our firm to tell the whole truth and nothing but the truth i do

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and have you emailed an exhibit packet with all the required documents proof of ownership tax

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compliance refusal referral photos and plans of the property in advance of the hearing five days

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in advance of the hearing have you met with the rco you know there's no rco here yeah this uh since

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it's an appeal against lni and again this is our third hearing um but i did email our exhibit packet

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um on behalf of the property owner um to miss salato prior to the november 4th scheduled hearing

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um just to refresh the board's recollection uh mr demarco put on testimony at the two

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prior hearings which were in august of 2019 and october of 2019 and request uh rested his case

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at the conclusion of the october 15 2019 hearing um at this point uh the city of philadelphia and

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I actually do not see Mr. Reuter on.

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However, the city and the property owner like to make argument and put on our case in defense of this permit.

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I will begin by stating that the law is clear here.

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and we've spent about four to five hours of hearing discussing matters of quiet title

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and discussing many extraneous matters, none of which have to do with the validity

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of my client's by-right zoning permit.

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Shelly DeHall, the plans examiner, testified at the prior hearing that the plans and permit

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were all issued in conformity with the zoning code.

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And that's the starting base point,

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is a presumption that the municipal officers

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perform their duties properly.

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And in order to rebut that presumption,

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the appellants need to show

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and have the burden of showing affirmative evidence

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that there was some irregularity,

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that there was something wrong with the permit.

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They have altogether failed to do so.

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The law matters and the code matters.

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This is not an instance where just how many neighbors come to a hearing and say that they

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oppose a project, because here the project was in full conformity with the zoning code.

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Not liking the law or not liking a buy-right project is not justification to appeal a buy-right

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permit, and you can't just disregard the code because you don't like the result.

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Here, our client relied on the code in its development plans and utilized the fresh food bonus for the additional 15 feet of height and utilized the affordable housing bonus so that the CMX1 property would be treated as CMX2.

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They have paid $62,640 into the city's affordable housing trust in connection with this project and for the issuance of the building permit.

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So think of the uncertainty that would be created here if this permit were invalidated, because what the appellants have argued are, one, that the fresh food bonus is unconstitutional.

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And I would state that, aside from the fact that they lack standing to make that argument, that is an argument for the courts.

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Two, they have argued, oh, so that would, as a result, invalidate any permit that relied on the fresh food bonus prior to 2019.

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Now, the code was subsequently changed, as was noted, through the legislative process.

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the neighbors lobbied councilman johnson uh and were able to effectuate a change in the fresh food

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uh bonus that's the proper way to change an ordinance and that's the way the law works if

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you don't like a law the reaction isn't to attack everybody who relied on that valid law

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it's to lobby and have the law changed and that's what they did but to invalidate every

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permit that relied on this bonus justifiably prior to 2019 would be an absurd result

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developers need to know that they can rely on the code and that is exactly what was done here

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And that is exactly what was done here.

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the other arguments that have been

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The other arguments that have been presented by the appellants, one relates to the parking.

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Now, I'm going to share my screen now so we can go through.

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this is the permit that was issued valid zoning permit complete demolition of existing structure

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direction of an attack structure 60 feet high with the fresh food market bonus

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and the mixed income moderate housing bonus.

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The parking, we proposed four units and four parking spaces.

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You'll note here is the zoning application that was filed,

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which specifically references that the four,

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I'm just putting my cursor over where it says four accessory parking spaces

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and two accessory bicycle parking spaces in basement

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to be accessed by shared driveway accessory to ground floor commercial use.

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The appellants have argued that the parking is not permitted because it's not clear what the use was for.

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Here it is clear. It was always intended for the ground floor commercial use.

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Furthermore, the plan also calls out parking at basement accessory to commercial use.

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here was the code which provided that in the rsa 5 rm1 and cmx2 districts and here we're cmx1

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from a use standpoint we're treated as cmx2 because of the utilization of the moderate

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income housing bonus but from a density uh i mean from a development standpoint uh we're bound by

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rsa5 and here accessory parking for any single family two family or multi-family use shall be

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prohibited unless it can be accessed from a shared driveway alley or rear street and that was not

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what our parking was accessory to our commercial use as was made clear in the plans. I also think

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it's worth pointing out that the code that rear street has since been defined and as I'll get

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into in a little bit when we tried to reach a compromise with the neighbors to avoid this

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protracted now 18 months worth of litigation and promises that they will appeal us in the future

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and tried to reach a compromise through a variance plan. The parking for the residential

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use at the time was permitted by Wright because Waverly is a rare street. At the time that we

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pulled the permit, there was no definition of rare street and there was that period of uncertainty.

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so what's left we have arguments about quiet title those are an absolute red herring

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and totally irrelevant and notwithstanding the fact that my clients are the legal owner of 418

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and 414 to 416 and have deeds to the property, right?

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And also a corrective deed was entered into because if you may recall, it's been a while,

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but in August when Mr. DeMarco brought forward an attorney claiming to act on behalf of one

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of the heirs of an owner of the property from the 70s who claimed that we did not have title

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to 2006 Waverly, which was not even an actual address, and retained an attorney who was

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the appellant Ms. Gilboy's husband's business partner to represent these heirs who lived

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in California.

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We dealt with that for two hours.

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Well, that's all resolved in moot.

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A corrective deed was filed.

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A settlement agreement was reached with those neighbors, I mean, with those heirs, which totally and completely resolves any quiet title issues that could have been pertinent.

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But again, they're not.

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So the one other piece of evidence that Mr. DeMarco tried to bring forward was that the parking garage was not feasible.

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We have David Plant from Rogerio Plant Land Design who will be able to testify that first off, the driveway ramp and the slope is not a zoning code issue.

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There were no regulations pertaining to that in the code.

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Second, the curb cut was approved by the streets department.

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the curb cut was approved by the streets department and third the driveway ramp is

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feasible and i'll note that you know permits were issued for this so are we going to hear from

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witnesses or is this are we doing different witnesses this is an this is an introduction

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uh but but my witnesses will be brief because quite frankly the uh the plans are clear in

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And the appellants have the burden of pointing out that there is some error and they have altogether failed to do so.

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Before I bring, call my first witness, I do want to make one other statement in my opening as to why it's now, you know, December 2020 and our last hearing was October of 2019.

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um despite the by right nature of the plan um faced with now two protracted hearings

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and the promise uh which i have emails in my exhibit packets from miss gilboy that

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they will continue just appealing and appealing and appealing we tried to reach a compromise uh

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and uh and we presented a variance plan uh with the understanding that the neighborhood would

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then support this if we reduce the height, but we had to expand the footprint of the building.

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We went to a meeting before Center City Residents Association on that plan. We received a refusal.

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Went through the time to have a meeting with CCRA, who issued a letter of non-opposition,

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um but there was one problem with that plan near neighbor who lived directly behind uh who lives

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essentially directly behind the uh the property and i'll show where right now um so our property

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here is outlined in uh green it's this in the rear uh this one right here outlined in blue

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opposed our request for a variance.

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They did not oppose the buy-right plan,

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but they opposed the variance

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as it would impinge upon their light and air.

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They hired an attorney, Matt McClure,

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over at Ballard Spar,

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and were prepared to come to the hearing

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to testify that we did not show a hardship.

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And quite frankly,

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we couldn't show a hardship here

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because we have a buy right permit so with that in mind uh we did not proceed with that variance

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plan and entered into an agreement with uh miss her name is angela luton i have the agreement in

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the record as part of our exhibits where she confirmed she does not oppose the buy right plan

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it's taller she's you know has said it was emails that say she might not love the height she might

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not love the fresh food market but it's by right and she respects the by right process so i cannot

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in good faith come before the board and claim to have a hardship when a near neighbor complains

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even if it's one near neighbor against 100 neighbors who want to oppose a by right development

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because the law matters here this is not a variance case this is a by right permit i'll

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again also point out that we have no opposition here from uh the neighbor to directly to the rear

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nor to number five right here, 2001.

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The appellants and the people fighting this right here,

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Ms. Simillo is opposing it

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and other neighbors throughout the neighborhood.

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Again, not on the basis that what we did is not by right,

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but on the basis that they just don't like

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what we're proposing.

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With that, I will briefly call my witnesses

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mr chairman do i get an opportunity to respond to that opening i didn't know we were doing

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opening statements i mean i would like an opportunity to respond i know you're pressed

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for time but i i thought we were getting right to testimony today well we got a lot of argument

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