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Hearing video

ZBA Hearing - December 9, 2020

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

one of the frontage frontages as primary you would certainly state that in your report right

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um yes i suppose so right because that would relate to whether this was a whether the curb

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cut was adjacent to a rear street right right right so waverly can it should be considered a

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frontage so it really can't be right objection you're making legal argument that you're leading

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I'll move on.

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So as far as the, I'm almost done.

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And thank you for your time, Mr. Chairman and Ms. Templeton.

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As far as the fresh food market is concerned,

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you've made an opinion that the fresh food market

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let me make sure I read it correctly. I'm sorry. I'm almost done here.

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You stated that

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let me ask you this. You know that there are certain definitions that are applicable to a

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fresh fruit market, right? In the code? Yes. Right. And one of those definitions in the code at the

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time it existed at the time of this application stated that, thank you, Michael, a fresh fruit

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establishment to be considered that has to either be 5,000 square feet or has to have 50% of its

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display area be for fresh fruits and vegetables, right? You aware of that? Yes. Simple question,

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Ms. Templeton do you agree that the zoning plan itself not the application but the zoning plan

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does not show any floor plan of the fresh food market do you agree with that I agree all right

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and do you agree that the examiner is only taking the statement of the applicant in the application

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that the plan meets those requirements for the display area that's in the code do you agree with

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that? I can't know what the examiner thought. Okay, I'll try to rephrase. Do you agree that

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the plan has no floor plan, which would show that 50% of the display area was for fresh fruits and

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vegetables? There's no floor plan. Of the food market, right? Of the food market. And you also

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agree, you stated this earlier, that the L&I has full jurisdiction to ask for that if they so chose.

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Do great. I agree. All right. I have nothing further, Mr. Chairman. Thank you. Unfortunately,

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Mr. Chairman, I do have two brief redirects that I need to clear up for my record.

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Very brief. Yes. Ms. Templeton, we'll go back to this plan.

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Ms. Templeton, we'll go back to this plan and Mr. DeMarco drew your attention to the

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elevations where it says garage door for car elevator to basement.

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In your opinion as a land planner, what is the purpose of building elevations in a zoning

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plan?

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The purpose of elevations?

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Yes, of an elevation.

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uh to show um characteristics that you can't see on a

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on a plan view height and

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primarily the height primarily okay and looking back at the actual zoning plan and much was made

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about whether this was an elevator or a ramp on the zoning plan does it clearly say exterior

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ramp down to basement yes does it also say ramp up from basement yes are there references

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to a shared driveway in the zoning plan I'll show you here and there's references to shared

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driveway in the uh application yes okay uh based on this zoning site plan right here

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would any reasonable person look at this site plan and think that there

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is an elevator being proposed and not a ramp

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no um also much was made ado about the fact that uh and i believe as mr uh Montalbano testified at

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hearing it said four for residential and zero for commercial. However within the projects group does

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it say accessory to commercial use? Yes. Within the zoning application did it say accessory to

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commercial use? Yes. Right here within the application does it say proposed parking at

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basement accessory to commercial use? Yes. Is there any question in your mind as you look at this

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based upon the application in the plan that the proposed parking was to be accessory to the

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commercial use? No question. And lastly, I will ask about this issue about frontages and rear

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street. Is it fair to say that the determination of whether or not Waverly is a rear street or not

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only matters if the accessory parking is proposed for a single family, two family, or multi-family

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use? Correct. It does not matter if it is proposed for a commercial use, correct? Correct. I have no

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further questions. Just one question based on that last question. One question. Ms. Templeton,

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it's prohibited. The curb cut would be prohibited if this were solely a multifamily use, right?

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Or any residential use. All right. And there are four residential units in the building, right?

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yes okay that's all let me just make one clarification when you say it's prohibited

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would you mean it's prohibited unless waverly is designated as a rear street

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because if waverly is designated as a rear street then wouldn't the code

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permit parking for the residential use it would not

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so um and i'll leave it at that all right further gentlemen here's where we are um

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we're going to close the record the board will make a decision next wednesday at 9 30 a.m which

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is december the 16th on this matter thank you all mr chairman i have to put an objection on the

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record i i was promised that i would have an opportunity to talk to the engineer and cross

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examine the engineer uh it's it's relevant to the interior of the garage and the feasibility of it

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it's one of our major issues uh we're gonna have to continue at the earlier hearings you had said

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that we would hear from the engineer it's in the testimony uh i need to cross-examine the

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engineer that's why i didn't call him as a witness this was in the record at the earlier hearings

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i have to have to have a right to talk to mr plant uh it's it's a critical part of our presentation

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mr chairman and i will just say this in response mr chairman if the board feels that it uh that

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it has heard enough evidence or has heard enough argument over the past six hours and that they

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have not heard any affirmative evidence whatsoever showing that this zoning permit should be

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revoked, then the appellant has failed to satisfy their burden and we can move on. If there are any

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the appellant has failed to satisfy their burden and we can move on if there are any questions

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that the board has about any aspects of this permit um you know i would welcome those and

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we'd be happy to answer them but i think what we've shown is that this is a by right project

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here's the problem mr chairman during the architect's testimony i forgot for i forgot

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I did not continue with questioning because I was told the engineer would be available.

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And the board was a group, from what I remember from the transcript, and I can get it to you, you allowed me to do that.

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You said we would hear from the engineer.

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And I'm now being prevented from having that right.

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It's going to be a problem that's going to potentially require a remand.

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And I don't have a complete record.

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I forgave testimony that I wanted to do on cross because I was promised to have the engineer.

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Can I ask for an offer of proof of what Mr. DeMarco wants to ask the engineer?

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I was just getting to that.

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I mean, what else are we going to talk about that we haven't already covered?

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With all due respect, Mr. DeMarco.

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The discrepancy, the lack of accessibility of the interior parking and the Rosario plant drawing is critical evidence of the ownership issue.

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And I understand that you might be uncomfortable with ruling on that.

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I hear what you're saying in your voice, but I've got to make the record because I believe that it's a critical issue that if this board is not going to deal with it, the courts are going to want to deal with it.

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So this is my last shot, Mr. Chairman, to make a record.

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I don't want to belabor the point, but I've got to make that record.

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And Mr. Plant and Rogerio are the people who produced the plan,

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which show that there's another owner out there that did not get said at the time.

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I understand Mike doesn't want you to hear it, but I've got to make a record.

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I don't want you to have to keep continuing this, but I've got to cross-examine Mr. Plant.

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I was promised that.

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We've already heard it for like three hours.

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So the cross-examination of Ms. Templeton doesn't satisfy any of those

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issues you're saying or other issues that the end that Mr. Plant would be able to address

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Mr. Plant if you remember and I know it's stale in your mind but when we had these hearings back

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last year I agreed not to continue a certain cross-examination of the architect because they

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deferred to the engineer on these critical issues whether you are going to rule in favor of us or

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not I've got to be able to make my record or else we're going to be back here so I agreed not to

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continue with certain questioning of Mr. Montalbano because I was told I would have an opportunity to

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speak to the engineer and Mr. Phillips and Mr. Phillips will agree he did tell me that it's one

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of his witnesses so I okay all right all right so what we didn't do finish up last year we'll have

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to finish up next year so uh we'll continue this case yeah uh mi 2020-001433 414 south 20th street

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do we have a date tanya no chair not at this time okay miss sunkett will notify you of the

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continued case date i appreciate your time mr chairman thank you and all i'm asking again

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new and different please understood thank you mr chairman thank you time board have a good

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holiday if i don't see you all right everybody stay safe thank you bye all right that concludes

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the two o'clock list am i correct that's correct yes it is now 10 of 12 we'll get back here at uh

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five o'clock or five after? Sounds good. Five after five.

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Ready? Yeah. Okay, thank you. Before we begin, Ms. Sunkett, we'll give you an opportunity to

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open up and see how many hands come up or whatever, and we'll wait to hear from you.

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Nope, we're good, Chair. Oh, we're ready to roll. Okay. Yes, sir. All right. Good evening, everyone.

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my name is Frank DiCicco. I'm the Chair of the Zoning Board of Adjustment. I'll be participating

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in this evening's hearing along with our Vice Chair Ms. Carol Tenere, Board Secretary Confessor

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Plaza and Board Members Mr. Thomas Holloman and Mr. James Snell. Board Administrator Tanya Sunkit

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and Board Attorney Ms. Sharon Saleta are also in attendance. For those of you who haven't yet

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participated in one of our virtual hearings, I'll go through some of the basics of what you can

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expect. First, we will be administering oaths to individual participants prior to their testimony.

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Second, we'd like to advise everyone that this proceeding is being recorded and that

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Second, we'd like to advise everyone that this proceeding is being recorded and that by

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by participating, you acknowledge your agreement to be recorded.

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Third, for anyone participating by phone, if you wish to testify, you must raise your

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hand by hitting star 9 and then star 6 to unmute yourself.

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I'll repeat.

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For anyone participating by phone, if you wish to testify, you must raise your hand

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by hitting star 9 and then star 6 to unmute yourself.

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To enter an appearance statement, call Google 267-270-5548 and leave your email address

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and the address of the property at issue. I'll repeat. To enter an appearance statement,

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call Google 267-270-5548 and leave your email address and the address of the property at issue.

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Before Ms. Denary calls our first case, we'd like to ask if anyone is requesting a continuance or withdrawal for this evening's 3.30 list, please raise your hand.

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In the meantime, I will read into the record.

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Do I have to do it again?

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We read these earlier.

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You know what?

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Let me read them just in case somebody can.

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Yeah, it would be helpful.

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Yeah.

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Okay.

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The following requests for continuance have been made.

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I'll read them off.

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If anyone disagrees with them, please raise your hand.

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MI 2020-001-830-2041 North Rees Street.

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Excuse me, Chair.

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This is Sharon Saleta.

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We actually interrupted the 2 o'clock session to go through these.

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I know.

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I just figured maybe somebody didn't hear it.

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Oh, okay.

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That's a good idea.

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I'm sorry.

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Thank you.

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Yes, absolutely.

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No worries.

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Number six on our list, MI2020-001861, 2442 North 54th Street.

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And those are the two that I have that were requested, continuance were requested.

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If anyone objects, the attorney or the applicant, please raise your hand.

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and if there's anyone else who would like to have their cases continued please raise your hand

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or withdrawn please raise your hand um so chair i'm not sure if you recall but

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there were a couple of other cases that were continued number seven was it hold on a second

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please as that was there were no exhibits you called to see if anyone was here and it was

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continued must be heard um also the same with number nine continued must be heard and number

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10 continued but not must be heard all right okay there were no exhibits okay i didn't get those

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okay i got them now just so number seven

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I think we already did that one right

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that's right you did already know that you you um called it out and asked if anyone was here

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representing the applicant okay so it was number seven and then number number nine number nine

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both of those were must be heard and then i did those earlier correct all right and then number

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10 was continued but not must be heard okay so we're we're straight on that yes thank you okay

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um tanya we go we are okay yes chair ready to proceed okay calendar number

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calendar number 1831-2209

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north 7th street

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mr chair this is jason hand

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mr jason had his hand up he has now been made a

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thank you i believe

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Hi, Mr. Jin. Can you put your name and address on the record and spell your last name, please?

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Yes. Zen Jin, Z-H-E-N-J-I-N, 1617 John F. Kennedy Boulevard, Suite 1838, Philadelphia PA 19103, here on behalf of the applicant.

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Thank you. Do you swear or affirm to tell the whole truth and nothing but the truth?

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I do.

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Do you agree to waive the reading of the refusal and stipulate to its accuracy?

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I do.

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And have you emailed all the exhibits, proof of ownership, tax compliance, refusal referral, photos, plans, five days in advance of this hearing?

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And have you met with the RCO and do you have a letter?

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and have you met with the RCO, and do you have a letter?

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Yes, to all those questions.

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Yes, to all those questions.

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You may proceed.

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Excuse me, Mr. Chen, you have three cases on the 330 list.

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If any of those should be considered together, could you let us know?

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Sure.

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The other two actually can be considered together.

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They're related matters.

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But not with this case, correct?

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Not with this case.

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Okay.

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Thank you.

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