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.