how many in the audience
morning everyone my name is bill bergman and i will be chairing this meeting of the zoning board
of adjustment with me is our vice chair tenetta graham president mr chairman board secretary
cheryl l gaston president mr chairman board member michael johns president mr chairman and our board
member ryan mcadams president mr chairman also present is our attorney hillary emerson our zba
director ian haggerty and our board administrator lakeisha dandy this hearing is being recorded
and will be posted on the ZBA website by participating you agree to be recorded
this is an in-person meeting with remote participation whether in person or on zoom
if you are called to speak please state your name and spell it and and then wait to be sworn in
after that each time you testify you must start with stating your name to enter
Upon an appearance, indicate the property address on your Zoom webinar, speak with a staff member, call the ZBA office by the close of business tomorrow, call 215-686-2429
and provide your name, your email, and the address of the property in question.
Remote participation. Raise your virtual hand when directed so that we can call upon you.
When we call upon you, you must click the join as a panelist button,
use your q a for procedural issues please do not mention anything to do with the case
if you're if you are joining by phone press star nine to raise your hand and star six to unmute
for in-person participation in testifying get close to the microphone so that all in attendance
and our court reporter can hear you no talking eating or drinking aggressive behavior will not
be tolerated in an emergency follow staff's directions the the exit the main exit is the
rear doors the nearest stairwell is to the left if we evacuate go to love park across our street
Please remain there and so that we can account for you. So let's look at our schedule for today.
number one mi 2025 000 438 4701 211 edmond street we also have an interpreter for this case
good morning we'll be with you in one minute okay good morning my name is steven aubain
last name spelled a-u-b-a-i-n interpreter id y-m-2-8-8 i'll be the spanish interpreter
do you swear or affirm that you will interpret accurately completely and impartially from
english to spanish from spanish to english yes i do all right would you please call our witness
is angela perez garcía así que si ángela perez garcía puede levantar la mano prender su micrófono
and then after what does she do you swear or for to tell the truth the whole truth nothing but
the truth usted jure y afirma decir la verdad toda la verdad nada más que la verdad yes could you
please tell the appellants that we need updated documents to go on with this case and that we're
going to have to continue it today and that our staff will work with her for the next case those
that she's prepared could you please say that así que nosotros necesitamos documentos actualizados
que vayan con su caso así que nosotros vamos a continuar su caso el día de hoy y nuestros
trabajadores van a trabajar con usted para que la próxima vez tenga todo lo que necesita
okay okay and could you tell her this case is going to be continued until eight five twenty
six at two p.m. así que este caso va a ser continuado hasta ocho cinco de dos mil veintiséis
a las dos de la tarde okay okay thank you very much interpreter thank you i'm sorry it's going
to be marked must be heard mr chair what what is it mark must be heard oh mark must be heard on
8 5 26 at 2 pm thank you please tell her that that it must be heard the next time
así que ese caso se tiene que este ver la próxima vez así que eso va a ser en 8 5 20 26 a las 2 de
la tarde okay thank you and does the interpreter speaking is there another um no no there is not
and we want to thank you for your help all right thank you for using the service number two mi
2025-001-676-601 Devereaux Avenue. This case is continued to 8-5-26 at 2 p.m. and Mark must be heard.
Number
Number six.
Okay, so number six is MI 2025-006-999-175 West Oxford Avenue.
This case is continued until 8-5-26 at 2 p.m.
and mr sure that should also be marked must be heard thank you we're gonna mark that must be
heard too thank you and then number eight right number eight mi 2025 001 070 5201 old york road
this case is continued to 10 6 at 9 30 a.m okay any other requests for continuance
good morning chair this is jasmine i will be your co-host for this morning's session
i see no hands at this time okay thank you
So, number three, MI 2025-003-858-510-28 South A Street.
Carl Primavera is an attorney.
Paul Balney is also an attorney.
And Darren Steinberg is also an attorney.
Mr. Steinberg?
Why don't you come up and, well, I don't see Paul here. He might be coming in on. Okay, sure.
And how about the city attorney? Okay.
Morning. Good morning. For the record, Carl Primavera, the attorney of record for the applicants.
Do you swear or affirm to tell the truth, told truth, nothing but the truth?
i didn't okay let me just get my my thing straight here
sir could you give us your name yes good morning my name is darin steinberg d-a-r-i-n-s-t-e-i-n-b-e-r-g
i'm here on behalf of protestants sean sullivan kade otta oda excuse me husband and wife as well
as jack wassey and elizabeth kim husband and wife all right do you swear or affirm to tell the truth
the whole truth and nothing but the truth i do mr bonnie yes good morning my name is my name is paul
bonnie b-o-n-i i'm here on behalf of the lombard muse owners association all right do you swear or
affirm to tell the truth the whole truth nothing but the truth yes i do okay so just a a couple
issues to start um you know obviously we have this important case but we also have several other
cases today so we've given this case 50 minutes um what we intend to do is to get through the
attorneys and and um possibly the board but we will not be getting to um the virtual audience
or the audience in general we're gonna have to continue that so what we want to do is have uh
that'll be continued to a different date so i i believe where we want to start is
That'll be continued to a different date. So I believe where we want to start is you'll go first, Carl, right? Paul will go next, and then Councilor, you'll be third. Hopefully that we get all this in.
But keep in mind, it's a total of 50 minutes. And Councilor, you have anything else?
no I just thank you all for coming out I know I'm sorry we're not going to be able to get the
testimony today but we will set a time for that and and we'll have plenty of time to do that at
another date thank you okay so um we're going to get an update from the applicant so um a call
could you please start yes and now so we don't want to win on a zero you win but 10 to 15 minutes
Yes, and I don't think I'll even need that. And we may move quickly enough that we may get to the complete record. But where we left last time, I finished my case. And Mr. Bonney reserved the right to protest if we hadn't finished an agreement with the Lombard Mews.
Well, as you'll see in the record, we have reached an agreement with them, so he has no objection, so he will not be presenting any protestant testimony.
In the meantime, based upon the agreement and further meetings, we have revised the plans, and you'll see in your record a revised refusal.
It doesn't substantially change the refusals.
So, even though we've made the project smaller, we still have the same refusals at issue.
So, at our point right now, we have submitted into the record a legal memorandum, because we assume we would not have time for legal argument at the end.
So, we have a written legal memorandum, the revised refusal, and with that, I think it's going to be for Mr.
bonnie and then mr steinberg to go ahead with their case and again i intend to be extremely
limited in cross-examination with the hope that we can either complete the record today or hopefully
have a very short session in we'll call it uh a short period of time because we've been at this
for a long time and i know the board has a tremendous amount of caseload but we're we're
trying to get to the end. All right. Thank you very much. Mr. Bonnie? Thank you. Hold, before you start, you. Sorry. Mr. Primavera, did you just want to briefly explain the changes and to the, so what's changed about the refusal since last time and if there's anything, I'm not, I wasn't sure if it's the same plans that you had presented last time or are there any additional changes, just for the record so we know what's
there are uh revised plans that were submitted to l and i and the revised refusal uh you know we have
officially eliminated two of the three residential units the accessory residential units on the roof
we've lowered the project we've made some other setback um adjustments and we have the architect
stewart rosenberg who can go in more detail but we've modified the plan in a way uh that obviously
was acceptable to the Lombard News Homeowners Association, but even with those adjustments
and revisions, which we believe are substantial and material, we still have the same issues.
And very briefly, the items of the refusal are, one, we're expanding a non-conforming use.
Two, we don't have the ability, since there's an existing structure, so we don't have required
open space we're not detached we are attached the access to the building
which it currently has in which it will have if approved is from a primary
street and we don't have all the parking that would be required under the code
so they're the they were the original refusals and now even with our modified
and reduced plans they're still the refusals thank you very much Mr. Bonney
Thank you, Mr. Chair, members of the board. I represent the Lombard Mews Owners Association. We submitted a letter of support a couple of weeks ago. Looks like it's May 7.
And, you know, I saw the other night Mr. Steinberg took issue with our letter, so I just wanted to describe what we did and where we are right now, which is a position of support.
So very briefly, Lombard Mews is a community of 35 homes adjacent to the subject property.
More than a year ago, our association formed a task force to...
More than a year ago, our association formed a task force to negotiate with the applicant to try and shape the design of the project, to try and obtain protections during construction, and to try and impose some limitations on the ongoing operations.
And after extensive discussions, including meetings hosted by the RCO and meetings occurring in the office of the council person, a draft agreement was reached.
And once we circulated it among the Mews, it was even further refined.
A few weeks ago on April 29th, the Lombard Mews Owners Association voted on that agreement after weeks of review and discussion, including about the fact that we would be providing a letter of support.
The agreement was approved decisively. 22 in favor, 7 opposed, and 2 abstentions. And that's what I had reported in my letter of a few weeks ago.
um four members of the association did not attend either in person or by proxy and therefore they
did not vote um and i believe that it's inaccurate or improper for mr steinberg to try and count the
four no-shows as abstentions in any event it doesn't matter because the outcome was so
overwhelmingly in support of the um of the agreement that we reached with the applicant
We do respect the right of the two MUSE households opposing the project to express their views today. However, it is unfair to try and undermine the clear decision reached by the vast majority of the MUSE. I'm available if there's any questions, but we want to thank all stakeholders.
uh hold on uh hillary has a few questions just yeah just one question yeah just a good question
mr bonnie i just wanted to um confirm because last time you had indicated that um your client
was challenging the refusal um you are no longer challenging the refusal is that correct that's
correct all right thank you mr steinberg could you please start your presentation sure thank you
um just a couple quick points on that so um i think the letter that we submitted stands on its
there's nothing in response to that. I do want to point out that my clients are the only unit
owners in Lombard Muse that have party status. They're not the only ones in opposition. Just
wanted to make that point. Real quickly, we listened to the testimony previously. We have
two experts ready to testify virtually. I do want to do a quick cross-examination if I'm allowed,
but basically what we want to try and establish here is that what is being proposed is not a school
that has been pared down to its bare essentials as has been testified to previously.
And also that the variances that you're being asked to consider doesn't match the full scope
of the project, which we believe still includes religious assembly and things that are no longer
in the refusal but are yet clearly shown on the plan and in the development agreement that was
entered into with Lombard Muse. And third, we would establish that the impacts go beyond that
which you would expect in a permitted use in the RM1 and therefore they haven't met their burden
for the variances. Just a real quick technical legal point. This is not a non-conforming use
case. This involves a non-conforming structure in which they're asking for a variance for a use
that isn't permitted. So I think that's an important distinction. There's nothing about
this property that existed prior to the zoning code or anything like that. There's no
a non-conforming use here. They're trying to make a non-conforming structure, they're trying to get
a use that's not permitted into a non-conforming structure. So I have two witnesses ready to
testify and a quick cross-examination of the rabbi, if I'd be able to. Sure. Are we okay, Hil?
I defer to Mr. Primavera if he wants to recall his client for cross-examination.
Well, the understanding was we did have a whole first hearing, and unfortunately, Mrs. Steinberg wasn't here.
So I would say he can ask questions of the board, and the board can ask questions of the rabbi if they would like,
but we're not going to consent to any witness who testified before where there was the opportunity to be crossed now.
to be crossed now okay why don't we start with your who's your first expert witness
Okay. Why don't we start with your—who's your first expert witness?
uh that would be um jerome skrinkoski of hawk valley associates he's a land use and zoning expert
jerome
jeroen will be coming in as a panelist thank you
you can't see
you'll you'll see it up there
no we're just the exhibits that we exhibit you know that we already
i don't see a place around on my screen
can we promote mr steinberg to a panelist if he's not a panelist already
oh so he is on the panelist side i'm not sure if he's having technical difficulties
now i see him thank you no problem
jerome
do we see jerome
yes chair jerome has been promoted to penalist i'm not sure what's going on
jerome can you hear us you're unmuted
uh mr steinberg if he seems like he's having technical difficulties could we move to your
second witness and he can try to work through that in the interim sure uh my second witness
is lee klein of klein traffic consulting llc he's a traffic engineer
Dr. Lee Klein has been promoted to panelists.
Dr. Lee Klein has been promoted to panelists.
Good morning.
Good morning.
Could you please state your name as spelled for the stenographer?
Certainly.
My name is Lee, middle initial D as in Daniel, Klein, K-L-E-I-N.
Right.
Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?
Council?
Thank you.
Good morning, Mr. Klein.
Are you a licensed professional engineer in Pennsylvania?
And are you also a certified professional traffic operations engineer?
And for how long have you had those licenses?
Pennsylvania, I'll have to look on my wall here.
I'm not sure how many years that's been, close to 20, and the national certification about
20 as well.
And they're both in good standing.
And approximately how many traffic and parking studies have you prepared or reviewed in your career?
I have over 40 years of experience in traffic engineering and transportation planning.
So I've done hundreds of traffic impact studies for offices, retail, institutional, such as private schools, public schools, daycare centers, and so forth.
And is your CV attached to our exhibit list?
I believe it is.
And how many times have you testified in front of zoning boards, approximately?
Over 150 times throughout New Jersey.
I've been accepted as an expert in traffic engineering, transportation planning, and parking analysis.
If it's okay, I'd like to offer him as an expert in traffic.
Mr. Primavera.
Yes, we would like to ask a question or two.
Mr. Klein, have you previously testified before the Zoning Board of Adjustment of the City of Philadelphia?
I have not.
All right. And your office is in, we call it northern New Jersey?
Correct.
And did you come into the property or see the property before issuing your report?
I have not.
And I saw your voluminous, extensive resume, which certainly shows competence in many areas.
But if I counted correctly, your resume shows 40 municipalities where you've worked, all in New Jersey, 30 traffic studies.
all in New Jersey, 30 traffic studies, no mention of Philadelphia, and four expert testimony cases,
no mention of Philadelphia. So is it a fair statement to say this is your first
opportunity in testifying before the zoning board on a matter of Philadelphia zoning?
That's correct. All right. So I would stipulate that he's a traffic engineer and he has experience,
but I would object to calling him an expert in Philadelphia land use.
We have our own zoning code.
We don't follow the municipality's planning code, and he's a novice,
but I think that goes to the weight of his testimony in Philadelphia.
Just a quick rebuttal to that.
His testimony is not about the zoning code per se,
but about the report that was submitted by the applicant
and those standards for traffic.
So in that regard, he should...
So we're going to recognize him as a licensed engineer, and, you know, he has done a lot of work outside of Philadelphia, but I'm not going to call an expert witness, okay?
But you can start your testimony.
Thank you.
Mr. Klein, were you present in the room when this hearing first was heard back in March?
No, I was on Zoom.
But you listened to the testimony, correct?
I listened to the testimony.
I believe it was March 4th.
And you've been provided and reviewed all the documents that were presented, including the applicant's traffic study?
That's correct.
Okay. And if you could, just give us your assessment of the applicant's report and your observations overall as a traffic engineer.
Sure. There are about five or six points that I want to make about this application.
The first point is in the traffic impact assessment that was performed by TPD, the applicant assumed, based on information provided by the client, that 70% of the students would arrive by non-vehicular method.
They would either walk or take mass transit.
I stipulate that the impact study has failed to explain or provide backup data for that.
The school exists on Lombard Street.
They could have done a count there to count the number of cars, number of students, the walking students, the number of cars that were dropped off, how many students in each car, to come up with that number.
So they've assumed that number, and I don't believe that there's enough data to support that.
So now they've got a frontage along their site that's about 112 feet wide along South 8th Street on the site that they're proposing.
They're proposing a 12-foot wide driveway.
So there's about 100 feet left, and that maximum of about four cars could queue up along their frontage to drop off and pick up students.
And what my issue is with this is that there are only four parking spaces available for that.
if there are more than four cars dropping off within the same minute or two, then traffic is
going to queue up and back up out onto South 8th Street and could potentially block at least one
travel lane on South 8th Street. I also noted that when I looked at street view around the area,
there are times when the apartment building across the street, the Bradford Apartments,
They have deliveries and mail trucks show up, and there's times when that left lane of southbound 8th Street would be blocked.
So there could be times when south 8th Street could be blocked completely by either a vehicle stopped at the Bradford or vehicles queuing up beyond the four cars that the capacity for the drop-off has.
uh the traffic impact study stated that there was no traffic impact for the development the traffic
impact study also mentioned that they studied the peak hour of the drop-off and my contention
is based on my experience and my observations at other schools private schools public schools
that when there's a start time at the school the drop-off period is typically 15 to maybe 20 minutes
long people concentrate in that 15 to 20 minute period to drop off their children they don't need
to drop them off extra early they want to be able to get there drop their kid off and go on their
way to wherever they have to go next uh also i would say that the the pm pickup time would
actually be worse in some of my observations of private schools and public schools were drop off
and pick up a car by personal vehicles, those vehicles tend to arrive on the early side.
So if school ends at, let's say, 2.30, the vehicles start to arrive at 2 so they get a good parking spot
because they need to take their child to their next activity in the afternoon.
So that will definitely be queuing up more than four vehicles for probably a good half hour to 40 minutes.
And the traffic impact study did not address that.
And the traffic impact study did not address that.
There's also the 230-seat auditorium in the property, in the first floor, I believe, that is going to have some sort of events there.
There's no mention of where people will park for those events.
And again, if it's going to be 70% of the people are not going to drive, but 30% are going to drive,
There's still a significant amount of traffic that could be generated by the 30% of the people that arrive to come to those sites.
I didn't see anything about garbage and recycling collection.
Again, because of the narrowness of South 8th Street, and there is no ability for a garbage truck or even a delivery truck to pull into the site to be able to pick up garbage, recycling, and drop off, let's say, lunch.
uh produce and things like that for meals uh i also looked at the parking layout on the site plan
sheet z11 uh it has an amendment uh from the zoning board amendment number two revision date
uh march 26 2026 that drawing shows the the 12 foot wide driveway it also shows that the parking
spaces in the site are only eight feet six inches wide which is typically less than a nine foot wide
standard parking space they do provide 18 foot long parking spaces but the drive aisle to be
able to maneuver into those narrow parking spaces is only 18 feet six inches so i would say that if
if they are able to maneuver it's going to take a lot of maneuvers to get in and out of those spots
the parking spaces i believe it's seven and eight that are closest to the wall they don't have
enough room to maneuver out to be able to make enough k turns to be able to get out of the site
or even to get into those parking spots so i would say that they do not have 12 parking spots in that
property they need to get it down to probably 10 or even less but that's it the drive aisle is so
narrow they may have to lose a whole row of parking so they may get it down to maybe six
parking spaces if they were to design it properly
so just to sum up so 30 will drive but there's no data to support that they could have easily
counted cars over at the lombard facility and the lombard facility has parking off-site you're not
allowed to stop on lombard street there's signs posted there so cars do pull into the site drop
off children circulate around and come back out it could have easily counted the number of cars
that are on site to drop off and pick up but they did not uh i believe that the four spaces in front
will be adequate we also need to be able to reserve those spots for particular times for
drop off and pickup i also think that the level of service is understated because they didn't
concentrate the drop off and pick up and the arrival traffic and the departure traffic
traffic in that 15 to 20-minute period. Quadruple, multiply by four, or multiply the traffic
generated by the site by at least three to show what it would be for analyzing one full
hour. Also, again, the event space was not accounted for. How many events will there
be? If there's 230 people here, how many of them are going to drive? Where are they going
to park? They didn't do a study of the area to see that, oh, yeah, there's a parking garage
that has availability in the evenings, and we've secured 40 parking spaces in that garage.
They could have come up with a mitigation for that, but they did not.
So that's my direct testimony.
Mr. Klein, as part of your review and preparation for today,
did you review the Philadelphia Zoning Code in particular, the requirements for a variance?
no i just i reviewed just the traffic impact study and uh the presentation material that
was presented back in march and the site plans and so forth okay but are you familiar with uh
the requirements for a variance as it relates to traffic and impact uh for a use variance i i'm
sorry i would actually have to look that up yeah okay i have no further just from the vera just a
few. Mr. Klein, how many travel lanes are there on South 8th Street? Two travel lanes southbound
and then the one parking lane on the right. Okay. And you didn't do a traffic study. You did a
critique of TPD's traffic study. That's correct. In my experience, it's the applicant's burden to
be able to show that something works. I'm just pointing out the faults in that report. All right.
So it's a criticism rather than an independent study that would otherwise satisfy the street department or PennDOT or New JerseyDOT.
PennDOT or New JerseyDOT? I'm not sure I understand the question. So what you submitted,
I'm not sure I understand the question.
you could submit to, you know, any authority as a study. It's a critique based upon
a review of somebody else's study. That's correct, yes. And with regard to
the synagogue, which is nearby, which has been operating for many, many, many years,
and the preschool there uh do you recall the rabbi's testimony regarding uh how they have
been able to manage uh that process successfully and without incident uh and that's why they're
so confident that the numbers will work out in favor of walk-ins for a street
yes but like yes but like I said in my testimony that site has off-street parking more than four
cars can be accommodated and more than 12 cars I believe would be accommodated if if they were to
use that parking in the garage the 12 spaces for drop-off pickup I don't in my opinion that would
not work the dimensions are not correct but if they're using the four parking spaces along South
8th street that's way undersized compared to what they have on lombard plus lombard i believe they
only have about 70 students here they're going to have 180 students so it's going to be even worse
on in this location did you talk to the city's department of streets regarding their review of
the plans the parking layouts access and the like i did not um and i would just say finally
with the regard to this neighborhood you didn't go there on purpose but you are
familiar with, obviously, this is a very dense urban neighborhood with multiple schools in the
immediate vicinity of all types of persuasions? Yes, I've looked at Google Street View,
aerial photographs, and so forth. Yes. It's not like a strip market or a strip mall or
some other facility in Piscataway or upstate New York, is it?
No, and I've done work in Jersey City and Hoboken, Newark. I've done work in urban areas, and I've done daycare centers and schools within urban areas, and we've got to provide enough drop-off capacity and pick up capacity so it doesn't impact the public street.
Right, and you said you were familiar generally with the zoning code, but are you familiar with the non-residential uses that are permitted by special exception in this district?
No, I just did a critique of the traffic impact assessment and the site plan.
Would you be surprised to know that they include schools, religious institutions, hospitals, and the like in the RM1 district?
Objection, relevance. This is not a special exception case.
Well, the comment is that if we were able to satisfy the special exception criteria, then these uses would be by special exception, which is a common condition as a permitted use and not at all exceptional.
So that assumes this is a detached building, which it's not.
Sure. So I note your objection, but I'm going to allow the testimony.
So, are you familiar with the special exceptions allowed in RM1 district where this property is located?
What my role was was to review the site plan, to review the traffic impact assessment, to review the potential drop-off and pickup issues, and I came up with these criticisms based on what I observed, what I analyzed in their reports and site plans.
So, the answer is no?
Yeah, correct. That's correct.
yeah thank you you want to follow up i do not or do you want to try your other call
i would love to jerome jerome am i right that's correct jerome and if you can pronounce his last
name no i might that's why i said jerome jerome has been promoted to penalize thank you and and
council just so you know you have 10 minutes i know okay did you want to swear him in or yeah
excuse that jerome i gotta get his get him on the mic first
jerome yes hi jerome could you please state your name and spell it for the sonographer
Yes, it's Jerome, J-E-R-O-M-E, last name Skrinkoski, S-K-R-I-N-C-O-S-K-Y.
Do you swear or affirm to tell the truth, the whole truth, nothing but the truth?
Counsel?
Thank you.
Mr. Skrinkoski, forgive me if I mispronounce that.
What is your profession, please?
I'm a professional planner, planning consultant, zoning consultant, and community development consultant.
I'm a professional planner, planning consultant, zoning manager.
And are you a member of the American Institute of Certified Planners?
Yes, I've been a member of the American Institute of Certified Planners for 25 years.
I also have a total of 41 years of professional experience.
And is your CV attached to your report?
yes and approximately how many times have you testified before zoning boards
in pennsylvania um close to a thousand i would say have you ever testified before this board
no do you think that precludes you from being an expert in this matter no i'd like to offer
mr skrinkowski as an expert in zoning and land use planning and i would agree generally but i
I would say that expertise does not follow through with county of the first class of
Philadelphia, which has its own home rule charter, its own zoning code, and its own
unique issues.
So we'll accept him as an expert witness, but obviously not as an expert in Philadelphia.
Thank you.
Mr. Skrinkowski, have you reviewed the original application, the original plans, the original
notice of refusal revised refusals and were you also present at the last uh meeting uh virtually
yes and were you also provided a copy of the development and operations agreement
that was entered into between the applicant and lombard muse yes okay and did you listen to the
testimony that was previously presented by the applicant yes and did you review the philadelphia
zoning code as part of your presentation for this matter? Yes. And did you prepare a written
land use and zoning report for this matter? Yes. Are you familiar with the definition of an
educational facility under the Philadelphia zoning code? Yes, I am. And what is your
understanding of what that definition is? The public and or private school at the primary,
elementary, junior high, and high school level that provides basic education.
Okay. You're aware that the current notice of refusal no longer has reference to religious
assembly, correct? That's my understanding. But the original notice of refusal did,
is that right? Yes. And are you familiar with the definition of that religious assembly under
the zoning code yes and uh i think i might have referenced it but if i did not it's a religious
services involving public assembly that customarily occur in synagogues temples mosques
churches and other facilities used for religious worship okay the development agreement that was
entered into with the applicant and lumbar abuse that permits weddings correct uh no it uh it
permits um it's my understanding that it would permit weddings yes and bar and bat mitzvahs yes
and an annual week-long celebration of sukkot yes as well as indoor celebrations of all jewish
holidays with the right to serve liquor that's my understanding yes and in your professional
opinion as a land use and zoning expert are those activities typical or customary for a k-8 school
uh no because um what the applicant is asking for was to establish um a educational use
and those would be subordinate uses that would not be necessarily permitted as part of a general
or as an educational use. So even if they were to be considered subordinate, would you think that
would you consider them to be necessary to have a school? No. Okay. Are you familiar with what a
non-conforming use is under the Philadelphia zoning code? Yes. And if I said to you that
it was a use lawfully established that does not comply with current zoning regulations
is that what your understanding is that would be correct does this application
deal with a non-conforming structure the case should would apply to a non-conforming structure
only if the use that is proposed would require it to be detached.
But we're not here talking about a non-conforming use, correct?
But we're not here talking about a non-conforming use, correct?
Correct.
Correct.
Does an educational facility require a penthouse to operate?
Does an educational facility require a roof deck to operate?
In your professional opinion, having looked at the plans and heard the testimony,
If that penthouse was eliminated, would the vertical expansion above the 38-foot height limit be necessary?
It more than likely would not be necessary if that would be eliminated.
There may be other rooftop apparatus or equipment, but that may also would not be considered an occupied use.
and in your uh professional opinion has the applicant pared down this project
to the minimum relief necessary to operate a school uh no the relief thought is uh
uh materially greater than what a school would generally require
i have no further questions um so we have three minutes left and i i don't want to
shorten your cross so we're going to bring that back that cross but counsel could you please give
me an idea of what the rest i'm not pushing you the rest of your case what's it look like
so then we plan for the next date we'll know what we need to do i just want to call my one client
witness he'll speak on behalf of the other three that should take five or six minutes and then i'd
like to reserve time for anything that comes up after we uncross all right so we're going to
continue this case. We'll start with cross of this person next time. And we're going to
contain it until 72826 at 930 AM. And I want to apologize to the people in the room that we
couldn't get you today. This is a complicated case. And we want to make sure everybody has
has their testimony. Okay. Thank you both. And I appreciate it. Thank you.
so number four
we'll wait till they
i sure you said that little girl was so serious there like
i get no excuse
that's if we get through it
mr knock them sit in their room
i have alex goldberg with his hand up oh is mr goldberg here is are you in the
he's in a virtual audience do you want me to come to panelists all right sure why don't you start
friggin about thank you
morning mr chairman as soon as i get people out of the room we'll have you along
why everybody left nobody left
alex why don't why don't you state your name and spell for the stenographer alex goldberg a-l-e-x
g-o-l-d-b-e-r-g right do you swear or affirm to tell the truth the whole truth nothing but the
truth i do alex this is a resumptive hearing and uh we're going to take an update from you
questions from the board public testimony and also a um planning commission if if possible
could you just give us a quick update of the case that start your presentation sure so should i do
that before i share my screen or you could do it either way you want all right i'm gonna i'm gonna
share my screen while i do it so um we had our previous hearing on march 4th we had a positive
meeting with the RCO, but there were some requests that they made of my client with regard to
improvements to the property. We're seeking to legalize an existing triplex. The zoning change
um this we're seeking to legalize an existing triplex the zoning changed here eight years
after my client bought the property as a legal triplex and he had failed to renew the rental
licenses so we're going through this process to reestablish the legal status of the property
it took my client some time to do those repairs because of the large snow that we had but they
were done here's the letter stating that the rco's position has officially changed to non-opposition
and i will show you the photos of the work uh of the new posting photo and then the photos of the
work so this was the before and after they wanted us to repair and replace the these doors right
here and also this sort of trash alcove um which so which is what my client did um so that work
has been done we were in touch with the rco the whole time and um you know now they're they're
not in opposition that's about it as far as a an update that i have for you
questions from the board
questions or comments from our attorney not at this time mr chair questions or comments
on the virtual audience i see no hands at this town chair planning commission
nate dorfman planning commission staff there is no change to the planning commission hold on
spell your name for the oh for the stenographer sure that's not a problem but go ahead nate
dorfman n-a-t-e-d-o-r-f-m-a-n right do you swear or affirm to tell the truth the whole truth
nothing but the truth yes please proceed sir nate dorfman planning commission staff
there is no change to the planning commission's testimony thank you very much
mi 2025 006 651 44 16 locust street i vote yes michael johns my vote is yes
Cheryl Gaston, my vote is yes.
Tanetta Graham, my vote is yes.
Ryan McAdams, my vote is yes.
Thank you.
Thank you, counsel.
Thank you, counsel.
Number five.
MI 2025-006-975-2015, Frankfurt Avenue.
Rachel Pritzker is the attorney.
okay so why don't we um are you sure take a seat
Rachel yes Rachel could you please state your name and spell foot as the
sure rachel r-a-c-h-a-e-l pritzker p-r-i-t-z-k-e-r do you swear or affirm to tell the truth the
whole truth nothing but the truth yes um counsel jordan ran for protestant dorothy correll could you
spell your name for the stenographer yes jordan j-o-r-d-a-n rand r-a-n-d do you swear or affirm
to tell the truth the whole truth nothing but the truth i do sir rachel could you identify your
client a relationship to the property yes uh my client is um
yuri tomoshak on behalf of xl2 llc who's the owner of the property i also want to make the
word aware i wasn't aware that there was an attorney in opposition to this matter and have
not been presented with anything or had a opportunity to to discuss anything with them as well
So, I understand that Ms. Pritzker has been in touch with my partner, Frank Correll, for the past several months. I am not going to put on any evidence, physical evidence, so I have not submitted any documents. I am going to present my client, Ms. Correll, and I would like the opportunity to cross-examine the applicant's witnesses.
Pritra, do you want to go on or do you want to continue this?
i would suggest a continuance just because again i'm my client was not informed i was
not informed that there would be um any sort of cross or anything from mr rand so um
i just don't want to waste the board's time council this organized hearing our council
um if the board wishes to continue this matter it may we were not aware
that there would be a protestant represented by council today.
Okay, so 2015 Frankfurt Avenue,
cases continued until 8-5-26 at 2 p.m.
526 at 2 p.m thank you board appreciate it sure thank you
Thank you, Board of Trustees.
right with you
okay um so we'll do the first one first then why the other two correct okay so number nine
mi 2026 002 034 4723 shelbourne street uh verna anastasio is the attorney murder the furliger is
attorney for the um i guess the appellant and leonard reuter is the attorney for the city
Why don't we have, Vern, why don't you come up first?
Oh, we'll swear them all on it.
I was going to say, I believe Mr. Cook will be presenting this letter.
Thank you.
Mr. Cook.
Good morning, Mr. Chairman.
Good morning, counsel.
Could you please state your name as spelled for the stenographer?
Harry Cook, H-A-R-R-Y-C-O-O-K.
Do you swear or affirm to tell the truth, the whole truth, nothing but the truth?
I do, sir.
Meredith, are you out there?
Could you state your name and spell it for the sonographer?
Meredith Ferliger, F-E-R-L-E-G-E-R, and I'm here on behalf of the property owner, permit holder, V&V, Holdings, LLC.
Leonard, can I swear you in?
Good morning. May it please the board, Leonard F. Reuter, R-E-U-T-E-R, for the City of Philadelphia.
For both of you, do you swear or affirm to tell the truth, the whole truth, nothing but the truth?
Mr. Cook, why don't we start with you? I understand you may be withdrawing this.
Oh, no, we're not withdrawing this. There were a set of consolidated appeals, one of which is moot on a permit that was issued.
so the one i called is number nine and that's the one we understood you were going to this is the
this is the permit for the lock consolidation only and then yes that is that is correct we
are withdrawing that particular uh appeal we have uh two compendium appeals one of which is irrelevant
um both councils are obviously okay with this uh yes and and for the city we'll apologize that
uh there was some issues with how how why that happened so that's why we worked it out okay
agreed okay all right so mi 2029 002034 47 43 shelbourne that case is dismissed
mr chairman i believe it's sheldon
Okay, Sheldon. Okay. So number 10, MI 2026-002-732-4723, Sheldon. And number 11 is MI 2024-002-975-4723, Sheldon.
There are two cases we're going to hear, and both L&I issues, right?
Do you want to start, Harry?
Yeah, thank you, Mr. Chair and members of the board.
We have stipulated to the documents in question for this.
The record includes the stamp subdivision plan, the legal descriptions, the zoning site plan, zoning permit ending in 03252 that creates lot T1 uses and zoning plan 003245 that creates lot T2 uses.
The crux of this appeal will be related to the off-street parking on ZP 2026-003252.
The other property is brought in as compendium because they are attached and that is relevant to the RSA 5 district parking requirements.
And perhaps Mr. Reuter would chime in on that and Ms. Ferliger.
uh i'm not sure what i'm being asked to chime in on that would that the stipulation exists as
as it relates to the documents stipulation exists with respect to um yes both the zoning permits the
permit application materials which really just consist of a site plan and the lot line relocation
And the lot line relocation plan, again, just, I guess, for the record, the actual lot line relocation permits, also part of the record, although Mr. Cook had already indicated that the appeal of that is withdrawn.
plan, again, just, I guess, for the...
So, yeah, the two new construction permits, it was really just one site plan for both, and then, of course, the one lot line relocation for both.
So we've stipulated you to the authenticity of those to obviate the need for anybody to bring in a plans examiner just to certify those documents.
And the references to any of the other.
Did you say Meredith was supposed to respond?
I'm in agreement with the city's position on that as well.
And Mr. Chair, members of the board, any reference to the documents will really be just in passing.
This is primarily a legal argument. I'm just going to take about seven to eight minutes to make a presentation of your argument, and then we'll take it from there.
So, as discussed, I'm representing Tamara Krumlis.
She's a neighboring property owner directly affected by the two zoning permits that we've just discussed.
The only issue before this board today is whether L and I correctly determined that the off-street parking shown on the approved plans and approved for in ZP-2026-0035, excuse me, 3252, is allowed by right under the zoning code.
And respectfully, we submit that it is not.
The department believes that the pre-existing non-conforming off-street parking use from the old lot is evidenced by the garage that is there on the plans and marked for demolition, can simply be carried over to the newly created lot, which we're referring to as T1.
That is the lot that is closest and adjacent to and contiguous with my client's property.
In many instances, pre-existing non-conforming.
Just for a point of information, could you show this? Is there anything you have?
Absolutely. I can bring that up. No problem. Let me share screen.
So, just for reference purposes, this is the current condition, this was the subdivision
You have this lot here and this portion here.
This area is the area in question that has the garage to be demolished and replaced with
a single-family home with off-street parking.
this is my client's property. Here's a good rendition of what it's going to look like.
The two new properties. This is T2. I mean, excuse me, T1. This is the one we're talking about.
This is the property that includes off-street parking and a new 30-foot build for a single
family home okay and again this is the relevant
zoning permit okay that includes off-street parking
so that's basically the
extent of the true references to the the actual record there i'll just leave that
up so you can see what we're talking about as I continue.
So as I was saying, in many instances, pre-existing non-conforming uses may carry over.
That's why we have, you know, affidavits of continuous use, et cetera, but here the zoning
code expressly prohibits this type of carryover for parking for new developments such as this.
And I'll walk the board through the code provisions.
The key provision is subsection 14-3059.
It's a grandfather provision that governs non-conforming parking or site improvements
and it states in relevant part, where the amount, design or location of off-street parking
or site improvements does not meet the requirements of the zoning code, the non-conformity may
remain and be used notwithstanding those nonconformities.
But here is the essential part, however,
But here is the essential part. However, all provisions of 14-800 parking and loading
shall apply to the entire lot for any development or changes to structures or uses on the lot.
So again, however, is important. It creates a clear limitation. The first sentence,
you know, first portion of the provision gives a limited grandfather protection when nothing changes.
But as soon as there's a development or any change of structures or any changes of uses on the lot,
the full requirements of the parking portion of the code 14-8800 must be followed.
And only one of those enumerated elements must be met for the requirement to apply the new zoning,
those zoning provisions to the project. Here, we have all three of those conditions met.
First, it's a new development. The code defines development in 14-203-94B as the erection
or relocation of a structure or an alteration to an existing structure that results in a change
of gross floor area. The project clearly meets that definition. The applicant is building two
entirely new single-family homes on a newly subdivided lot and demolishing all existing
structures, including the garage. This is a development. Chapter 14-800 applies. Second,
it involves changes to structures. The existing garage is clearly to be labeled,
clearly labeled to be demolished on the plans and on the approved site plan.
changes to structures. Again, 14-800 applies. Third, it also involves changes to uses on the
lot. The code itself defines what an accessory use is. This is the use that is being attempted
to carry over. In subsection 14-203, an accessory use is defined in relevant part as a use that is
subordinate to and on the same lot as a principal use on a lot and customarily incidental to the
principal use before the subdivision any off-street parking at the garage was accessory parking it was
subordinate to the principal residential use on the original original lot which included a single
family home as its primary use however this subdivision bifurcates and separates those uses
in creating t1 as a new standalone lot the garage which is still standing has no principal habitable
structure no single family home yet to serve as a principal use at this point the off-street
parking and garage are a principal structure and principal and principal use on t1 this is a change
of use and now the current applicant seeks to re-characterize that same off-street parking
at least the department does, as accessory again to the proposed new home still yet to be built
on a brand new lot. This again is another change of use. So we've had two changes of use,
whether it's permitted or not. Under the code, Chapter 14-800 applies. All three conditions
of Subsection 14-3059 are satisfied. Development, changes to structure, and changes to use. So again,
the full rules of 14-800 should apply with no exceptions. An LNI examiner has no discretion
to disregard the plain language and meaning of this grandfather provision and its exceptions.
The examiner's hands were tied and he or she should have applied the rules of accessory
parking here. And what are those rules? These rules are found at subsection 14-8031C.1.
In the RSA 5 district, the code states, accessory parking for any single-family, two-family, or multifamily use in an attached or semi-attached building, which is what we have here and why the T2 parcel is included, is prohibited unless it can be accessed from a shared driveway, alley, or rear street on which no on-street parking is permitted on the side of the rear street directly abutting the lot.
And it also speaks to width requirements of that shared driveway. You can look at the approved plans,
the legal descriptions you have before you. There is no shared driveway of any width, no alley,
no qualifying rear street. Because these are newly created lots from a subdivision
and the existing garage is being demolished, there is nothing left to grandfather,
nothing to carry over. This is a clean slate.
And this principle of carrying over
And this principle of carrying over uses to newly created lots was just
affirmed, confirmed in In-Ray Appeal of Shell and Old Richmond Civic Association. In that
case, the court held that a newly created lot must comply strictly with the current
by right standards there's no stacking or carrying forward of prior uses without meeting variance
requirements so members of the board mr chairman madam vice chair for all these reasons lni's
approval of all street parking is inconsistent with the plain language of the zoning code
we respectfully ask the board to reverse the department's decision and require the applicant
to seek a variance if they wish to proceed with barking and this would also serve to clarify
by for many of us who have put in very similar applications and have received disparate results in the past.
And with that, I will be submitting my oral argument for the record as well in writing.
Thank you. Thank you very much, Mr. Royer. Thank you.
The city's position here. Well, first of all, I think we're we don't disagree with Mr.
Cook's uh retelling of the code and what the code requirements are but it's been the city's position
here in this case that you know you once had a single property that had a house and next to it
was a standalone garage uh and then that property uh was then there was a lot line relocation which
recently happened that we've all discussed and it was as a result of the lot line in addition as a
The result of the lot line relocation, the garage that had been providing accessory parking to the house was now separated from the house as part of the same project applications were submitted.
In fact, let me back up a second. Initially, the permit application was submitted to, in fact, to the lot line adjustment and the new construction, and then that was divided up into separate stages.
so but it's still part of the same project the existing house was coming down the garage is
coming down two new houses were being erected and the house on the right uh which i believe
isn't mr cook identified as t1 um for some reason opa had not yet issued uh placeholder street
addresses yet for this so they're they're both technically 4723 shelvin uh but one's t1 the
is T2. So this is T1. Thank you. And that will be a house, but also will have accessory parking
at the property. So it's a city's position that this does not involve a case of a non-conforming
structure. You heard a little bit about that earlier this morning. This is not a non-conforming
structure case. I mean, the garage probably would have been a non-conforming structure
in some respects, but it is really the nonconforming use of accessory parking. So the
nonconforming use of accessory parking is continuing and it will be continuing with this
new construction. And it's kind of a side issue, but it was really for the plans examiner, I think
the only question that arose, and we can see that in some of the documents, was the treatment of the
curb cut and the city's position with curb cuts is the curb cut serves parking and the parking is
okay the existing curb cuts okay so the city made a determination that the curb cut was okay so
basically it's city's position that yes the parking restrictions in 14 800 typically do apply and would
apply but in this case that use of that previously non-conforming accessory parking for this property
be it being, or say five, I guess, or the designation that doesn't permit parking except
from a rear street or side street, this doesn't apply in this case because we have existing
non-conforming accessory parking that's accessed from the front from a curb cut that itself
is okay from the front, been there for decades. That's continuing. In fact, it's actually
little bit smaller than it previously had been and therefore uh we approved the permit to the extent
that there is some ambiguity that might be presented from the language that was quoted
from 14 800 and the language in the code uh with that governs uh non-conforming uses particularly
and also non-conforming accessory uses the city believes that any ambiguity would need to endure
to the least restrictive use of the property which again in this case would also have resulted in
the approval of the permit so that's that's basically the city's position it's a non-accessory
the approval of the permit so that's that's basically the city's position it's it's a non-accessory
it's it is accessory parking that is uh an existing non-conformity because of the access
uh and that's continuing so it's it's it's literally the same i mean again if you look
at the before and after pictures it's you've got a garage there now there's going to be a garage
there later and there's and if anything is a little bit smaller okay thank you if if i may rebut
why don't we do this first i'm going to see if meredith has anything to add and then you
could rebut okay both of them all right meredith thank you mr chairman um i just have a a couple of
uh maybe points of clarification or uh just for purposes of the record just a couple of additional
points to make here. So, first of all, just in terms of historical information that is of record
with the city, the garage itself that is in question was permitted originally in 1955.
The permit number in L&I system for that permit is 91010B. So, that garage was actually permitted
an L&I system. This isn't a situation where, you know, it's ambiguous in terms of the historical
information that led to the legality of the garage and the parking in this location.
Second of all, as the Board well knows, the Zoning Code grants L&I full authority for final
action regarding zoning permits, and that's codified at 143015. And furthermore, under the
Home Rule Charter, LNI has specific powers that they have authority to exercise in their
duties for issuing permits.
And in particular, 14.103H states that LNI is authorized to promulgate such regulations
as are necessary and appropriate to implement the provisions of the zoning code.
And in this case, we actually have one of the probably rare circumstances where Elle and I
determined that there is enough ambiguity in the code that has existed on this exact question over
the course of many years. We did, in fact, issue a fact sheet. I believe that I can bring it up
on the screen, but there is a number at the bottom. It's PZ006FAQ. At the top, it says,
my property has an existing non-compliant curb cut. I'll bring this up just so you can see what
I'm looking at. My property has an existing non-compliant curb cut. Can I reuse that curb
cut when developing my lot? And this fact sheet seeks to answer that exact question that the board
is being tasked with answering today. And ultimately, as you can see here, L&I goes
through a very short analysis that basically says if the curb cut legally exists on the property
it is permitted to remain regardless of whether it is compliant with the current based zoning
district or overlay requirements so this board is is often presented with appeals against lni
where there are certain ambiguities in the code or there's some question as to whether the examiner
applied the code correctly and here we have an actual fact sheet that the department in its
authority issued for applicants to be able to reference when these types of situations arise
and because this garage itself was actually legally permitted it is clearly of record
there was we would submit no ambiguity whatsoever as to whether or not not only the curb cut could
remain, but the legally non-conforming garage and accessory parking access could also continue to
remain. And just in terms of a final point relative to the lot line change, although we
might agree with the appellant's argument if this parking were being moved to the other house where
it never existed. In this case, the parking is remaining and the garage is remaining
effectively on the same lot that it had existed on historically. So by cutting the lot in half
to develop two single family homes, the parking is not moving from its original location and would
therefore continue to comply with even general nonconformity rules in terms of reducing impact
and essentially not creating any additional impact based on that long standing nonconforming
condition. So just again, in summary, we believe that LNI has full authority to
So, just again, in summary, we believe that LNI has full authority to promulgate their own regulations. They did so in exactly this type of case, and we believe that this fact sheet would essentially, you know, clearly answer the question as to whether or not this was legally approved by the department.
Thank you. Harry, you want to respond to your set?
Sure. I'm going to start with response to Meredith. You know, the code language in 14-3059 is explicit, and that is a legislative intent of city council.
And while LNI is free to come up with policy and create FAQs, they can't contradict the plain language of the code.
And what applicant is asking you to do and what solicitor Reuter is asking you to do on behalf of the department is to disregard that portion of the code.
That FAQ is very specific about pre-existing curb cuts.
It doesn't speak to use.
If the code wanted special dispensation for use, it would have said so in that section, 14-3059.
In fact, it says the exact opposite there.
one uh going back to um mr reuter speaking to uh you know this being a subdivided lot we're just
going to put the new use the the existing use over here we're going to carry it over well
i mentioned the case shell before that was a case that vernon and i brought to this board
seeking to consolidate three parcels and stack by right uses to have three by right units on there.
And it was through the variance process. A lot of the things about prior use, about look and feel
of the block, et cetera, those are all criteria for variance. You could come back to the board
and get a variance here. But in Shell, the court specifically said that when you create a new lot,
You are bound by the zoning code for that new lot. Any changes, you're starting from scratch,
essentially. And you have to show the least variance required for any changes. And it makes
sense on the public policy level. You have a brand new lot. You're starting from scratch.
You're knocking everything down, right? That's why the code is clear about nonconformity may remain,
notwithstanding those nonconformities as they exist. However, when you change it,
all bets are off. You got to comply with the code as redrafted and readopted in 2012,
2014, so on and so forth. So that's my final comment on that.
Right. Is there any questions from the board?
so um hillary what i think we'll do with this is we're we're not back for two weeks am i correct
yes that is correct so why don't we uh um not this next wednesday the following wednesday
we'll look at this at executive session and and i don't i don't need a giant thing but maybe a memo
from each person on what their points are short memo on each points and we'll vote on it what's
date of that that's june 3rd june 3rd we'll vote on this okay harry thank you okay thank you thank
you all three you appreciate it thank you okay thank you um we have one more case left we're
a little bit ahead we're gonna take a five minute break thank you i was gonna ask for that yeah yeah
well i'm not sure about my my the city it looks like they are sure why don't we take a five minute
break we're gonna get a little water sean you can start setting up right and then we'll we'll be
right back great thank you
there i just wanted to let you know i'm here i've been here for oh there you go oh you landed
i landed and i signed in while while they were talking so i just all right that's great thank
you so much um so number seven mi2026 00027218 hillside avenue attorney is dawn tangrady
Sean Whalen and Leonard Reuter are involved
Sean Whalen and Leonard Reuter are involved.
in appeal against L&I.
An appeal against L&I.
Let's start with Dawn.
Dawn Tangrady will be coming in as a panelist.
Sure, thank you.
Good morning.
Good morning, Dawn. Could you please state your name? It's spelled for the stenographer.
Sure. Dawn Tancredi. It's D-A-W-N. Last name is T-A-N-C-R-E-D-I.
Do you swear or affirm to tell the truth, the whole truth, nothing but the truth?
Mr. Whalen, could you please state your name? It's spelled for the stenographer.
Certainly. Good morning. Sean Whalen, W-H-A-L-E-N, here for the owner of 118 Hillcrest Avenue,
Kama Plan Administrator, F-B-O, Christopher Blatney.
All right. Do you swear or affirm to tell the truth, the whole truth, nothing but the truth?
Yes, I do.
Leonard, just for the record, state your name. They've already been sworn.
thank you may please the board leonard f reuter reu ter senior attorney city of philadelphia
um so we'll go with opening statements first from all three yes if everyone could just give a brief
like within five minutes statement that's right your case where you're going that would be helpful
thank you don't want to start with you okay great um good morning my name is dawn tancredi and i
I represent Mark and Laura Dinkfield,
who live at 99 East Bells Mill Road.
Their property abuts 118 Hillcrest Avenue,
the subject of this appeal.
The owner of the property is Kamaplan
for the benefit of Christopher Blatney.
We are here today challenging the issuance
of permit number ZP 2021-013581, which was issued on August 26th of 2022 for the new
construction of a detached building with roof deck for use as a single-family home with
a three-car garage and an additional accessory surfaced parking space on the property located
at 118 Hillcrest Avenue. The permit was issued in error and violates the Wissahickon Watershed
overlay. We previously appeared before this board under calendar number 2022-006535.
After three years of appeals regarding the timeliness of neighbor's appeal,
this case has been remanded to be decided on the merits. As such, I would ask that the 2022 calendar
number be consolidated with this calendar number, as this is the same case. I've turned in a packet
of information and exhibits, which I ask be incorporated into the record. The issue in this
case is the starting point for measuring a 200-foot setback for development proposed
within the Wissahickon Watershed Overlay District.
The evidence shows the question was already answered by this board in 2015 and subsequently
affirmed by the Philadelphia Court of Common Pleas and the Pennsylvania Commonwealth Court.
The starting point for measuring the 200-foot setback in this case is the outfall where
a stream is physically located less than 200 feet away from the subject property.
The outfall sits across the street from 118 Hillcrest Avenue, just inside the fence on
the Morris Arboretum's property.
The stream is in fact shown on City Planning's map in their offices. However, the City's
map is inaccurate. There is a mistake as to the location of the stream on the map in the
City Planning Office. The City has vowed to maintain the map as required by the ordinance.
The City has vowed to maintain the maps for operational productivity and validity.
To uphold the permit here for the development that has been issued based on a faulty map
Based on a faulty map, when it is clear that the map is wrong, and that an outfall lies within 200 feet of the property is absurd.
when it is clear that the map is wrong and that
The Wissahickon watershed ordinance precludes development within 200 feet of the outfall.
The overlay is there to achieve environmentally sound land development. It's there to protect the water courses, vegetation, and animal life.
Allowing the development at this location goes against the spirit and intent of the code and is a direct contradiction of the Wissahickon Watershed Overlay District.
The City has been on notice that the map is erroneous and has done nothing to correct it or ensure its accuracy.
The owner also is well aware that the property sits in the watershed district.
project. There has been no development on this site. There have been some revisions
to the overlay over the last several years. For example, there's been a change definition
of impervious ground coverage. However, regardless of any of the changes to the overlay over
the last several years, the neighbors assert that the proposed development falls within
the 200 foot radius where no development is permitted
thank you um leonard why don't we have you opening okay next uh the city's position here is is that
i mean in certain aspects we don't disagree with uh some of what uh miss tancredi has already
presented the city the Wissaken watershed overlay uh restricts the creation of any structures that
use impervious surfaces within 200 feet or 50 feet depending of a swale or a stream however that is
based upon a map that is again maintained and kept by city planning and is made available to
THE PUBLIC SO UNLIKE EVERY OTHER OVERLAY DISTRICT WHICH JUST HAS BOUNDARIES AND HAS A BOUNDARY
MAP THAT'S ATTACHED AS AN EXHIBIT TO THE ORDINANCE AND SHOWS UP IN THE ACTUAL CODE,
THE WATERSHED OVERLAY MAKES REFERENCE TO A SPECIFIC MAP THAT'S A PHYSICAL MAP AND JUST
FOR DEMONSTRATIVE PURPOSES WE ACTUALLY BROUGHT A COPY OF THE MAP HERE TODAY SO EVERYBODY
CAN SEE THAT WE'LL HAVE TESTIMONY THAT THERE IS IN FACT A PHYSICAL MAP AND THAT'S WHAT
what we use. With respect to the particular feature at issue, which is known as the Morris
Arboretum Creek, the question is whether the outfall, whether the entrance to the portions
of the creek are in a culvert. If it's in an enclosed culvert, it doesn't count for
purposes of the distance separation requirements in the WWO, which is Western watershed overlay.
so the question is whether the structure in question here is within 200 feet of that
entrance so according to the physical map it is not and again I think this is we didn't reach a
stipulation but I think it's it's uncontested that on the map it is not this the impervious
portion of the structure in question is not within the 200 feet we recognize that the map
has an inaccuracy with respect particularly to the morris arboretum creek because that creek
apparently had been altered by university of pennsylvania which operates the morris arboretum
Some time in between the late 1970s, probably in the 1980s.
We're not sure when it happened.
And the reason, by the way, we don't know when it happened is because they never had any permits to do that work.
But that's beside the point.
The problem is, is that we recognize that there is a discrepancy.
However, the code requires us to rely on a map and what the board can't do is grant equitable relief.
The board has to follow what the code says.
the code says that the city has to rely upon a map which is a physical map and yes that map has
not been updated but the board can't force the city to update its map and the city can't be in
a position where the burden is on the city to make a determination of whether exactly
a particular impervious feature is or is not within the 200-foot buffer zone because that
That would require the city to bring in geoengineers and do all sorts of other things, which are
well, well beyond what the requirements are of the code.
Should the provision of the code be rewritten? Possibly. Could the map be updated? Possibly. Although that requires not just simply, again, it wouldn't be simply the city will just say adopt somebody else's topographic map. The city itself would be obligated to go out and spend probably upwards of millions of dollars to do a full IDAR type of survey of the WSAC and watershed.
Should the provision of the code be rewritten?
Possibly.
could the
So again, it's not an it could be done, but not without inconsiderable expense that would have to be approved by Council, most likely, and also again is beyond the purview of the board to require that with the court with the code requires is that the city uses a map.
The only map that we have that meets the description of the map that we're required to use is the impervious surfaces map, which we know colloquially as the streams and swales map, which we brought here today.
uh and that's it so uh unfortunately it we we agree that there's inaccuracies but again
the code essentially requires us to use that if the code needs to be changed that's for city council
to address sean
yes thank you um in brief i think i agree mostly with what leonard described here and i would
recharacterize the case, because I think from a legal context perspective that this is an appeal against L and I really sets forth regardless of the futility of this appeal.
And I think it is illegal. Futility is all outline so sorry. Can everybody hear me now? Yeah.
um so as framed by ms tancredi about a proof between whether a map is or is not correct or
incorrect that's not this case that's not you know that's for a judge's determination in a plaintiff
and defendant type of case legally we are in the context where as ms tancredi admitted already
This is an appeal against LNI. There was an issued permit. There's a legal presumption that everyone at LNI and within the city did all of their municipal functions in the proper way, in the right timing, as they should have. And here they did. They walked through the code, as Leonard just said, and when that happens, that's a conclusive presumption.
And then when that presumption becomes conclusive, this board has to give substantial deference to the determination by L and I. So here, there's no discussion that L and I did anything wrong. They followed every step of the code. And what Ms. Tancredi's clients are saying is, well, then they relied on the wrong map.
Well, that again is either a legislative relief that they're seeking or an equitable relief.
That's not neither of which this board can grant. So even if we assume for the purposes of argument that the map is incorrect, the code requires that planning commission establish a impervious coverage map.
There's no further definition of it it's a it's identified code.
Identified name in the code, and then planning commission is left to determine what map that is.
They've been using the 1973 map again the streams and swales map that you just heard.
However, there is no requirement in any code that the planning commission update that map routinely go out and double check that map.
And so what happens when you have an applicant like mine, they submit a building permit application and you'll see from the approved plans.
they, as part of the analysis of submitting their plans, they get told by the planning commission where the line is of 200 feet.
And what you'll see in the approved plans as we go forward is that that line of 200 feet actually extends into the 118 Hillcrest property, as said by planning commission, but it only covers a portion of the driveway.
But in the driveway, there was an allowance for pervious pavers because the code says, basically, if you go to the planning, if you go to the water department and the water department approves your building materials as pervious, then that doesn't count towards the against the impervious coverage.
so here what happened was my client my applicant took all the steps appropriate
as set forth by the code l and i in the city then acted in all ways appropriate under the code
L and I in the city then acted in all ways appropriate under the code.
And in the end, because this is an appeal against L and I, there can be no showing that L and I did anything wrong or acted in any kind of bad faith.
So, at best, we get to a place where this board has to issue equitable relief to say, the code, we, the board, read into the code a requirement that the applicant now has an affirmative duty to submit a survey, which they do not as of now, or that the code should be different.
in both of those instances regardless of where you even come out there is created an ambiguity
in the code and as we all know any ambiguity in the code or the reading of the code requires a
finding in favor of the applicant and the owner which again here they acted at all times properly
the city acted at all times properly and now there's just a question of this underlying map
whether there is or is not an error there.
And again, as Mr. Reuter laid out very well,
that's a question for City Council
and a determination there.
Okay, thank you.
Counsel, Dawn, I understand you have several people
you want to call?
I do, and I would just like to briefly respond
And to point out that besides requiring the city to use the city map, the statute also requires the city to maintain that map.
So that's at issue here as well today.
Who's your first witness?
I would call Keith Davis from city planning.
Mr. Davis.
I see no one in the audience with their name chair he's here can you hear me we can sir
could you please state your name and spell it for the stenographer sure Keith Davis k-e-i-t-h
d-a-v-i-s right do you swear or affirm to tell the truth the whole truth and nothing but the
truth yes council please proceed thank you good morning mr davis good morning tom could you please
describe your current role and responsibilities with the city
uh sure um i work for the uh city planning commission uh in the development review division
I review zoning permits for consistency with the code that includes zoning permits within
Wissahickon.
Okay, great.
Have you reviewed other zoning permit applications in the Wissahickon Overlay District?
I have.
And how long have you been working with the city in this area?
Since 2015.
And how many applications would you say that you've reviewed in the Wissahickon Overlay District?
So I haven't reviewed any in the last, I would say, four or five years because we had a, like a redivision of work, but prior to then, maybe between 20 and 30.
Did you review the plans for 118 Hillcrest?
I did.
okay do you have a copy of the approved plan i don't i haven't received a full copy with the
city planning stamp do you have that with you um i yeah if i can interject here uh ms tangredi
reached out to me earlier about that my understanding is that um
the way things are done now with eclipse there's processes and different applications get reviewed
by different you know for prerequisite reviews by different things the final permit and plan that
are issued by l and i in this with respect to this for instance won't necessarily have the planning
stamp the this the plan that is actually quote unquote stamped by uh city planning which is
really just an electronic thing would be kept by planning we didn't produce it because
would be kept by planning. We didn't produce it because we weren't asked to. It was not part of
we weren't asked to it was not
the actual final permit that was issued, but, and I don't know if Mr. Davis has access to that
through his system, but, you know, we can provide it. I think the question is, you know,
whether Mr. Davis did in fact approve the plan, and I don't think there's any dispute about that.
if we have to have a copy of a plan that got the planning stamp we'll try to locate it but that's
not part of the l and i record okay thank you um mr davis you did in fact review this plan and approve
it yes okay all right let me just take you back for a moment to the wissahickon watershed overlay
district. Are you familiar with its purpose? Yes. And what is that purpose? To protect
the beauty of the Wissahickon by helping to preserve its streams and swales from erosion.
is your understanding that there's more to it than
the fact that it's only there to protect beauty is it there to protect vegetation
as well so the this the 1973 study that that was referred to actually um gets into that and the um
Um, the Wissahican Valley in Philadelphia is, is a very small percentage of the, the Wissahican Creek itself. So if, if the regulations were created, um, to protect the water quality, for example, um, it, it wouldn't really have that big of an impact because again, uh, I think that the, the Valley makes up only like 10% of the watershed.
So the regulations that came out of this study actually attempted to meet a higher sort of purpose, which was the aesthetic quality, because they felt that by addressing the aesthetic quality, you would have a better impact on the water long term.
So that was sort of the highest goal.
May I share my screen?
it's coming up
um okay so do you see the plan on the screen yes and is this the plan that was approved by
licenses and inspections um you know i i thought the driveway was on the other side
uh i wonder if if there had been changes since it could be because
um yeah it's possible that they they changed their plan since since we reviewed it um and it
didn't trigger planning commission's review but i seem to recall the driveway wait is this this is
118 correct yeah it's it it's hard to say i thought the driveway was was on the other was
oriented to the other side okay um i do want to take you back to the watershed overlay district
um you mentioned the guidelines um are you referring to the
Planning Commission's Wissahick and Watershed Development Guide?
I was actually referring to the original 1973 study, which predated this, what you're showing
here. So this was a product of the study. Okay. And this product of the study,
Are you familiar with this Wissahick and Waters Development Guide?
Do you review it before you or during review of an application?
Not necessarily.
And 118 Hillcrest Avenue does fall entirely within the Wissahick and Overlay District,
correct?
If I can take you to page 7 of this guide, and this is number 14, tab number 14 in the documents that we submitted.
The guide does indicate that there are required setbacks from watercourses, correct, on page
seven?
um i'm sorry i have to object to the introduction of this document or at least would ask for an offer
of proof regarding it this is not part of the ordinance uh this is a document that was created
in the 1970s uh it's i think used as a general guideline by people in planning occasionally
and sometimes by property owners or applicants but it has no official status that i'm aware of
it's not it is not the code the code has the requirements are set forth in the code uh so
i don't know why we're referring to this dawn um these guidelines were the basis for the wissahickon
overlay and um these were promulgated by the city of philadelphia and by the city planning
office as indicated in the beginning of the guidelines. The witness has indicated that
he's familiar with them and my questions are related to if he's familiar with the
reference to the purpose of the overlay and in particular in reference to the environmental
and the moratorium on development, which I would point out on page on another page 15.
Again, same objection. You know, the the city publishes all kinds of guides, pamphlets, brochures, all kinds of things.
The fact that the city produced it at a certain time and place doesn't make it.
I mean, you could argue it's a public document, it's an official document, but again, this isn't what guides the approvals of permit applications in the watershed.
What guides permit applications in the watershed is 14-510 of the code.
Sean. Certainly, I would wage a second objection here in that to the extent that this document
has any relevance, I believe Miss Tancredi is suggesting that it has relevance as sort
of a legislative background or a pillar of what the code became as a matter of statutory
construction. The board has to review the plain language of the zoning code. It doesn't
get doesn't bring in any other documentation or legislation or anything like that it has
to review the plain language if the board then determines that there is an ambiguity
in that language then the board has the ability to go to legislative history and other documentation
but that is beside the point and the board never does that because if there's an ambiguity
in the actual language of the code then the determination is over and you have to rule
in favor of the applicant and the owner and so all of this documentation becomes entirely
irrelevant if it's not included in the plain language of the statute don't you have a short
response to that i do there there's other um the statute itself does address the purpose of
the overlay i would also just point out that this document does reference an agreement between the
city and commonwealth establishing the study of the watershed and a moratorium on development and
i would refer to this to further ask the question as to whether the city conferred with the commonwealth
at all regarding this approval of this plan so so for this point i agree with the both of them
on it and I wish you if we could move on okay thank you
and Mr. Davis are you also familiar with the Wissahick and Watershed Development Regulations
from 1976 um I city will just preserve the same objection this is I would just like to ask the
question whether it was my understanding and again unless Ms. Tancredi has information to otherwise
these regulations were not included and are not included in the current regulations of the city
Planning Commission or the Department of Planning and Development, all of which the Department
uh or the department of planning and development all of which the department of planning and
of Planning and Development didn't even.
development didn't even exist when this document was written and and so again unless there's some
proof that these so-called regulations are in fact current regulations uh of the city
of philadelphia again we would object to their being presented at all well i would ask mr davis
that i would ask mr davis whether this regulation was ever repealed
sorry you asked me if i was familiar with the 1976 regulation i'm i'm familiar with
regulations but i'm i can't connect a date to them necessarily okay and the regulations which
i have here on the screen in front of us um which is found at tab number 15 in the materials
That were submitted page 1 of the regulations to describe.
An agreement between the city and commonwealth establishing a study of the watershed and a moratorium on development. Isn't that correct?
Chairman, I would object again, the same issue.
That there's a very obvious issue here, which is what does the code say? We have the code.
We haven't even addressed the code. The code as Mr. said, the code actually includes the purpose.
So, even if she wants to get to the purpose, she can, but this is irrelevant.
So, Dawn, I do agree with that.
All right.
I would just note for the record that these are Wissahick and Watershed development regulations
and that there's no evidence that they are no longer in effect.
So, um, I would just note that I, I believe that I should be able to ask about these and with your comments, I will move on.
Right. Thank you very much.
So, Mr. Davis, I will pull up a copy of the plan.
And the document that I'm showing everyone was provided by your attorney, by the city's
attorney.
Could you tell us what you did to review this application and how you determined whether
or not the plan should be approved?
uh sure oh so um i created this map um the the underlying map in crayon the the yellow background
with the um black outline stream there um that is um that is taken from the larger streams and
swales map which i believe is um in the room today um so i uh geo-referenced that map so that we could
compare it with other um uh digital layers um and and i i did the same for the development plan
there so that's the plan that i was familiar with um which i believe shows the driveway on
on the opposite side so that that was the plan that that we reviewed um so what i did was i
included the development pro proposal with the streams and swales map with and then the the
other sort of blue line there um that that is the hydrology layer uh from the water department so
So that's more reflective of the existing conditions.
So it kind of lined those three layers together to do the analysis to, well, first see that
there was a difference between the 200-foot buffer.
So the green circle represents a 200-foot buffer from what's, I guess, more reflective
of existing conditions.
So that intersection there is where the walled stream goes underground into a culvert that goes under, is it Hillcrest or Hillview?
Hillcrest Avenue.
Yeah, so that would be the 200-foot buffer, and you can see that it intersects with the development, with the building itself.
And then the other circle represents a 200-foot buffer from the point at which the stream goes into the culvert in the overlay maps that the code instructs us to look at.
The code instructs us to look at. So there you see that that pink circle represents the 200 foot buffer from there. And you can see that part of the driveway is part of the driveway, driveway falls within the 200 foot buffer, but none of the building itself.
So there you see that pink circle represents the 200-foot buffer.
So, yeah, so we encountered the, you know, the question of whether to use the 200-foot buffer from the existing conditions or from the streams and swales overlay map.
So that's what we're looking at.
and are you familiar with the history of these properties and the fact that city planning in
the past did use the outfall as a starting point to measure the 200 feet um i am not
Not for this site, or I don't know if I've worked on any other examples in the Wissahickon
where that was specifically the point of measurement.
I do want to show you the approved plan here, which is stamped, and Leonard and Sean, would
you stipulate that this is the approved plan for this matter?
Yes, I'll stipulate that that is the plan that was ultimately approved in part of the
permit that was issued okay as well okay and mr davis the um map that you prepared
would you agree that the driveway is in a different location on the approved plan
compared to the um plan that you reviewed here and measured
Yes. Okay. So, it appears that you did not measure the 200 feet with the correct plan because you stated this is the plan that you used to track your measurements.
uh it's it's likely that they amended their plan um and uh unless one of my colleagues reviewed the
final plan um ellen i might have had enough information uh that they didn't need to return
the plan the planning commission for for our review so i think that we we had kind of addressed
the the issue whether the driveway was on the right or the left um it was really a matter of
where the like which circle we were using for our 200 foot buffer and also there's a lot of
discussion with water department about making sure that the driveway pavers were approved
and if you focus on the i'll call pink 200 foot buffer that you said that you focused on if you
look at that pink arc in the map that um you prepared would you agree that that arc does not
touch um the the edge of the i'll call it the edge of the driveway
uh it does it does touch the driveway it it um it touches the probably the first 20 feet
the the pink circle yes yeah the pink circle touches so that's the um
yeah they they have the driveway curb cut label there so yeah it it it touches so it's the first
20 feet of driveway okay but it does not touch the driveway um on the at the driveway closer to
the house correct whereas to compare to the um the plans that were submitted i i'm showing you
the approved plans that were submitted these plans also show an arc correct yes and that arc touches
um the corner of the i'll call it the driveway area the paved driveway the poorest driveway
correct yes okay so the approved plan shows a different arc than oh no no no no i don't i'm
when you say arc you're referring to the the arc of the 200 foot buffer i'm referring to
i'm referring to the arc of the 200 foot buffer on the approved plan that was submitted
the arc of the 200-foot buffer on the approved plan.
yeah i don't know that that the arc is different but the driveway is different so you're there's
going to be more driveway within the arc because the driveway is now shifted to the to the
buildings right i don't know that the arc has changed but there's definitely more
driveway involved and i think it's because the driveway shifted okay and this is the approved
plan correct uh yeah it looks like it okay all right so so the arc on the um plan that you
submitted that your attorney has submitted for this case today shows a different arc
than what's on the approved plan that's not I don't think so no I think it's the same arc
different driveway but it's it's um it's hard to tell without you know a ruler but it's yeah
I don't know that the arc has changed.
You testified that you prepared this map, correct?
All right.
And you agree that the blue line on this map is the actual physical conditions of the stream, correct?
um that blue line is from the water department's hydrology layer so to the extent that that is
is consistent with existing conditions
then it's it's it's not always because the nature of rivers is that they they they move
um but that that is i would say it's it's it's more representative of existing conditions than
the uh than the streams and swale map is the hydraulic hydrology map based on gps do you know
um i i really don't know but you'd believe that it's more actual it's um it represents
the physical conditions just from my experience comparing it to to aerial imagery okay um it's
it's it is more uh consistent okay and you prepared this map you um added the green arc
which would show the 200 foot buffer from the existing conditions correct
uh from the i i try to draw that point as close to the um uh where where i could tell that the
outfall was from from the um from the aerial uh imagery and within the 200 feet using the green
arc there's impervious coverage on this map correct on this plan correct um yeah well the
street itself um and then proposed yes the the building and the driveway
Do you know if the city planning office, do you know what the city planning office does
to maintain the map in their office?
uh well we protect it um and make it available um but it's it's uh it's behind um
the the map itself i mean i guess it's it's there today traveled to the zba today um
But the map itself is laminated, so there's no changing the physical map.
Like I said before, so I scanned it and geo-referenced it, which means I put it on another map in order to preserve it.
So I would say we're preserving the map.
and making it available.
And what I'm showing here, which is marked as Exhibit 10, is this what the map looks like?
what the map looks like um yeah I don't know what's happening on the bottom left there but
that that's looks like a camera mistake but um yeah that's that that is the map
and is this map accurate
um i i think the question well it's it's it's accurate in that it's it i mean i can't tell
because i don't i don't know what the the the uh the orientation of the creek was in 1973
73 which is or 1972 or 73 which is when this was made but it's is it is it consistent with
existing conditions I don't think so do you have any evidence that the stream here has been moved
objection what's being shown on the screen hasn't been identified I think the city will
concede that it looks a lot like the map but we don't know what section of the map this is showing
So I don't see how he could possibly answer that question.
Mr. Davis, from your review of this plan and the city's streams and swales map, do you
believe that this is the Morris Arboretum Creek in front of you?
Yeah, I recognize that section.
Okay. And do you have any information to show that the stream was moved since 1973?
Well, so in addition to the streams, you also have the street layer. So you can make out Hillcrest, which runs between the two creeks.
And then you also see the contours of the land. I'm not entirely sure how they created the contours back then, but the fact that the stream to the left of Hillcrest follows the contours, but now it doesn't.
so now like i would say like the last um i mean it's hard to scale this but like the last uh
hundred feet of that creek um makes a hard jog down towards hillcrest which is against
the contours which leads me to suspect that it was moved probably during street work
um so i i suspect it was moved but i but there's you know uh this is definitely different than the
water department's hydrology map um in regards to like the last hundred feet of the um the creek um
but i mean i don't really know or you don't have any information that it's moved
uh i haven't seen any permits and you don't have any pictures showing that it's moved either correct
um the the aerial photography um dating back to then is is um
is is less reliable than it is today but i i did a hard search for permits
um and for uh pictures of the creek um to see if it had been moved and you did not find any no
So in 2015, the Zoning Board issued a decision stating that the outfall was to be used for
the starting point of the 200-foot setback. Later, the Philadelphia Court of Common Pleas
upheld that decision agreeing that the outfall should be used as the 200 foot
setback and again Commonwealth Court agreed that the outfall should be used
as the 200 foot setback is there a reason why now city planning has
disregarded all three of those decisions and used this this map just to start
the measurement. Please respond. Yeah, objection. First of all, she's making a statement with
respect to the law and asking the city witness, who's not an attorney, to comment on, A, first
an attorney to comment on uh a first of all whether or not her characterization of the
of all, whether or not her.
decisions is accurate uh b asking him to offer an opinion regarding that
her statement of the law so the city would would say that this she can't ask the question
it's not i'll ask another question mr davis how did you determine the starting point in the um
review at this case for the 200 foot setback. How did I determine that we would use this study
or this map starting point? Yes. Because the code tells us to. So outside of the Wissahickon
There's also, I think, 50-foot boundaries, which tell us to use the water department's hydrology map to identify the creeks and streams and rivers that that section of the code applies to.
So by extension, for the Wissahickon, it tells us to use the Wissahickon map overlay.
So that's what I do in the Wissahickon.
Okay, and I do want to show you which will be submitted. It's part of the documents at, uh, tab number 6.
Um, this is a report that we will have an expert, um, available to discuss. I want to point out some photos in the report. Um, have you had a chance to review this report by any chance?
from Shandor Sally you have. Okay. So are you familiar then with the photos that are part of
this report? Yeah. Yeah. From this report. Okay. And I'm showing you what- I would object as the
foundation. I mean, we're getting told that it's a report. We don't know with regard to what address
i saw a name dingfield that name isn't involved in this um yeah hasn't been identified here
i'm sorry mr whalen i'm this is the reporter i i'm i apologize i just cannot hear you oh
sorry about that can is that better yes sir i apologize okay i'll explain so i'm referring to
tab number six, which is a report prepared by Shandor Zellet. And the purpose of me
showing the report at this moment is to point out a couple of the photos. I know, Mr. Davis,
you said that you were unable to find aerial photos, but you did say that you did review
the report of mr zelay yes and does the report show aerial photos from 1959
of this this subject area that we're talking about today yeah and and i was i was surprised to see
that we we do have um aerials uh from dvr pc for uh delaware valley regional planning commission
from 1970 and 1975, which I would have assumed would be better quality and more closely related
to the study itself. And I couldn't tell from those aerials, so I was surprised to see a 1959
aerial that was so clear. But this is not available to us. Okay. And if you can tell,
Can you tell if this aerial shows the stream in its current location?
I would really be going to this whole line of questioning again.
The issue is what the code requires.
The issue is not what does a photograph from 1959 show the city has.
I don't know how many how much longer we need to belabor the point.
the city has conceded that the map doesn't show the current uh topography or location of the
morris creek the the morris arboretum creek so i don't know how many times we have to to go over
the same exact ground in 50 different ways uh we i and again having the witness testify to what
But a 1959 photo shows which has no measurements, no other topographical features that are
identified.
I just don't see what the point of any of this is.
Okay, I will move on and I will just bring up the section of the code.
Okay, I will move on.
And I will just bring up the…
So just so we're all clear, Mr. Davis, would you agree that section 14510 is the Wissahick
watershed overlay district overlay district yes and this section of the code discusses the setbacks
from water courses correct yes and under section 5a the code states there shall be no new impervious
ground cover constructed or erected within 200 feet of the bank of a stream or within 50 feet
of the centerline of a swale within the overlay district is that correct yes and would you agree
that the physical conditions um do show the bank of a stream within 200 feet of the development here
yes okay i have no further questions i just have a couple quick follow-up questions uh if i could
share my screen sure I'll stop sharing thank you to share a screen thing
I should oh wait a minute am I not I sorry I have to log this will just take me a moment
I don't believe I should be logged into the zoom am I not logged into the zoom
is leonard logged in i see you as a panelist now you can see me in the main zoom channel
i don't know if i'm in the audience or not it disappeared i should be because i'm looking at
this there we go now i'm being upgraded everything's fine okay oh neat there we go all right
Thank you. Can everybody see my screen? I can see it. Yes. Yes. Relations of the city planning.
Commission. Thank you. Keith. Can you can you confirm these are the.
This looks like a copy of the regulations of the city planning commission. It does.
I would just ask or confirm. Mr. Reuter, this document was not sent to me in advance, correct?
is this that's correct yeah these are regulations of the city planning commission that the board can
take judicial notice of but we'll confirm and again this is for rebuttal purposes because you
had made statements regarding regulations so we wouldn't have to have produced it i wasn't planning
on it but now i am uh mr davis can you confirm that this looks like a copy of the regulations of
city planning commission yes great uh and just on the notes on the cover page uh does it say
when these were promulgated yes and when was that um april 20th 2012. okay and you can see
it's also been amended many times since then yes okay i'm going to take show draw your attention
TO ANOTHER SECTION SECTION 1.2 COULD YOU READ 1.2 OF THE REGULATIONS PRIOR REGULATIONS
SUPERCEDED ALL REGULATIONS HERE TO FOR ADOPTED BY THE CITY PLANNING COMMISSION ARE HEREBY SUPERCEDED
THANK YOU NOW WITH RESPECT TO THE ISSUE OF NOW JUST FOR A LITTLE BIT OF BACKGROUND YOU SAY
YOU'VE BEEN WORKING FOR THE FOR PLANNING SINCE 2015 I'VE BEEN WORKING IN THIS CAPACITY SINCE 2015
Okay. So in 2015 and prior to that, you were working for the Planning Commission, the Philadelphia City Planning Commission. Is that right?
Okay. And in 2016, the City Planning Commission became absorbed as a departmental board of the newly created Department of Planning and Development. Is that right?
Sorry.
all right all right so um and at the time the prior guidelines and other documents that were
presented by Ms. Tancredi at the time those things were produced uh they were for the
uh they were for the city planning commission which was an independent agency is that right
city planning commission which was an independent agency
um I wish I I I can't say for sure well they weren't you weren't you weren't part of the
Department of Planning Development because oh right that's right yes okay so now with respect
And again, you have testified that while you're familiar with the existence of the documents, you're not aware that there's any requirement that those documents have any kind of binding authority, do they?
Guidelines.
So I had mentioned that I have them and I'm familiar with them and I look at them and that's really just to get a better understanding of where our regulations came from.
And so, again, just so we're clear, the code, with respect to reviewing a permit application for new construction or any construction in the Wissahican watershed, you look to 14510 of the Philadelphia Code?
Correct. Yes.
Okay. All right. And that language in the code takes precedent over anything else that you're aware of?
Yes. Okay. I don't have any further questions. Sean? Yes. Thank you, Chairman. I can be very quick. Good afternoon, Mr. Davis. I can't see you anymore, but I assume you're still here. Good afternoon, as well. Sorry. Very quickly for you. So you said that you reviewed approximately 20 to 30 applications regarding Hillcrest Avenue, correct?
Oh, no. I think the question was, how many have I reviewed in the Wissahickon?
Oh, in the Wissahickon. I apologize. I misstated. So let me restate. You said you reviewed 20 to 30 applications in the WWO, correct?
Yes, probably more, but that's, yeah.
Thank you. And did you follow the same review procedure for all of those applications?
uh this was definitely unique um but uh i guess as far as you know referring to the the code and
being guided by the code yes um but uh other like like um there are other regulations in the wissahicken
like uh steep slopes for example um that would require slightly different
uh process or or i i would need different uh uh different information from the applicant
but um as far as the 200 foot and 50 foot uh swale and stream buffers yes
understood so your review in any application is guided by what the code requires correct yes
Okay, and Ms. Tancredi, if you wouldn't mind, I think you called it exhibit 10.
It was the map with the green circle and the magenta circle.
I couldn't get it to render on my screen if you wouldn't mind putting that up for me.
I think it was perfect. Thank you, Mr Davis. This is the map that you looked at with Miss Tancredi now with regard to the green circle and the magenta circle, Miss Tancredi had you describe what proposed
potential new development would be within that circle correct yes but now you stated that the
approved plans that were showed by Ms. Tancredi and we can go to those if you need to see them
again uh were reappeared to be revised from what is being shown as proposed on this map correct
yes okay so what what would be proposed development in this map and therefore
were included in one of those two circles might not be the same as what is proposed by
the same as what is proposed in uh or what is proposed by the approved plan correct
because uh can you restate that so uh sort of as you described that the uh the driveway changed but
the circle did not change what i'm trying to make clear is that here while the circles remain
unchanged the building itself as approved changed from what is shown on this map screen correct
um you know i wasn't focused on the building i'm i'm not sure if
the building i mean i guess it probably did because the garage would have moved too but um
i i don't i don't i don't recall if the building changed i just noticed the driveway
okay um now mr davis did you visit the site
i drove by it okay did you didn't get out and walk around it or walk over on the
uh the arboretum side no okay are you personally trained as a hydrologist
Yeah. Okay.
And the last thing I would ask,
Mr. Tancrede, I could pull it up if you want, but do you have the approved plan right there?
I just have one more question for Mr. Davis.
thank you um Mr Davis do you see in the bottom left of that screen it says proposed 200 foot
water course setback based upon mapping provided by City of Philadelphia Planning Department yes
okay do you have any reason to believe that that does not match the information that was provided
to the applicant in this case no i i don't i it's i don't know why they call it proposed but
no it it look it it looks to line up with with what i shared okay and i understand you mentioned
uh briefly with regard to a lot of back and forth with the water department
was that with regard to the approval of pervious pavers yes okay and uh yeah yeah so there is as
shown in this approved plan uh new development that would be within the 200 foot setback as
shown on the plan correct yes and uh it's your understanding that that uh new development that's
inside of that circle was approved by the water department yes thank you very much mr davis i
have nothing further okay thanks all right dawn
could you uh you're you're muted you're muted dawn
dawn you're muted okay sorry about that all right so um mr davis oh may i briefly hold on one minute
how much more time do you need dawn because we're ready to break okay a couple questions how long
i would say i have a couple questions but if the board would like to break i understand well i think
go ahead try try to get it in okay um mr davis the bank of the stream is not shown on your map
correct you're you're muted sorry that's correct
and the purpose of the map is to show which streams are included in the regulations correct
yes and the measurement is from the bank of the stream correct yes but you mentioned the
bank of the stream is not shown on this plan correct yes but um it's it it's our understanding
that the the streams were walled so the the bank would be the since these are polygons and not
lines the the bank would be the the edge of the stream and one more question the spirit of the
regulation is to protect the stream correct not this piece of paper in the city's office
Yes, I have no further questions. Mr. chair. Okay.
So don't give me an idea here. How many more witnesses you have in the future? So we for planning purposes. Sure. I would estimate 3 more. I've got a surveyor. Mr. Jim Henry.
I've got Mr. Shandor Zalalei, and I may have one or two others.
Okay, so this case is going to be continued 7, 28, 26 at 9.30 a.m.
And thank you to all three people.
I appreciate your time.
Thank you.
Thank you.
Thank you.
Thank you very much.
is there anyone left whose case has not been called no I see no hands here thank you thanks
everybody see you all tomorrow thank you