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