civus
Hearing video

ZBA Hearing - May 19, 2026

Philadelphia Zoning Board of Adjustment (ZBA)May 19, 20262h 36m

i would refer to this to further ask the question as to whether the city conferred with the commonwealth

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at all regarding this approval of this plan so so for this point i agree with the both of them

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on it and I wish you if we could move on okay thank you

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and Mr. Davis are you also familiar with the Wissahick and Watershed Development Regulations

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from 1976 um I city will just preserve the same objection this is I would just like to ask the

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question whether it was my understanding and again unless Ms. Tancredi has information to otherwise

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these regulations were not included and are not included in the current regulations of the city

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Planning Commission or the Department of Planning and Development, all of which the Department

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uh or the department of planning and development all of which the department of planning and

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of Planning and Development didn't even.

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development didn't even exist when this document was written and and so again unless there's some

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proof that these so-called regulations are in fact current regulations uh of the city

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of philadelphia again we would object to their being presented at all well i would ask mr davis

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that i would ask mr davis whether this regulation was ever repealed

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sorry you asked me if i was familiar with the 1976 regulation i'm i'm familiar with

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regulations but i'm i can't connect a date to them necessarily okay and the regulations which

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i have here on the screen in front of us um which is found at tab number 15 in the materials

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That were submitted page 1 of the regulations to describe.

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An agreement between the city and commonwealth establishing a study of the watershed and a moratorium on development. Isn't that correct?

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Chairman, I would object again, the same issue.

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That there's a very obvious issue here, which is what does the code say? We have the code.

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We haven't even addressed the code. The code as Mr. said, the code actually includes the purpose.

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So, even if she wants to get to the purpose, she can, but this is irrelevant.

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So, Dawn, I do agree with that.

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All right.

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I would just note for the record that these are Wissahick and Watershed development regulations

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and that there's no evidence that they are no longer in effect.

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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.

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Right. Thank you very much.

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So, Mr. Davis, I will pull up a copy of the plan.

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And the document that I'm showing everyone was provided by your attorney, by the city's

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attorney.

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Could you tell us what you did to review this application and how you determined whether

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or not the plan should be approved?

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uh sure oh so um i created this map um the the underlying map in crayon the the yellow background

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with the um black outline stream there um that is um that is taken from the larger streams and

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swales map which i believe is um in the room today um so i uh geo-referenced that map so that we could

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compare it with other um uh digital layers um and and i i did the same for the development plan

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there so that's the plan that i was familiar with um which i believe shows the driveway on

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on the opposite side so that that was the plan that that we reviewed um so what i did was i

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included the development pro proposal with the streams and swales map with and then the the

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other sort of blue line there um that that is the hydrology layer uh from the water department so

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So that's more reflective of the existing conditions.

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So it kind of lined those three layers together to do the analysis to, well, first see that

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there was a difference between the 200-foot buffer.

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So the green circle represents a 200-foot buffer from what's, I guess, more reflective

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of existing conditions.

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So that intersection there is where the walled stream goes underground into a culvert that goes under, is it Hillcrest or Hillview?

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Hillcrest Avenue.

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Yeah, so that would be the 200-foot buffer, and you can see that it intersects with the development, with the building itself.

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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.

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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.

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So there you see that pink circle represents the 200-foot buffer.

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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.

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So that's what we're looking at.

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and are you familiar with the history of these properties and the fact that city planning in

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the past did use the outfall as a starting point to measure the 200 feet um i am not

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Not for this site, or I don't know if I've worked on any other examples in the Wissahickon

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where that was specifically the point of measurement.

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I do want to show you the approved plan here, which is stamped, and Leonard and Sean, would

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you stipulate that this is the approved plan for this matter?

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Yes, I'll stipulate that that is the plan that was ultimately approved in part of the

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permit that was issued okay as well okay and mr davis the um map that you prepared

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would you agree that the driveway is in a different location on the approved plan

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compared to the um plan that you reviewed here and measured

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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.

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uh it's it's likely that they amended their plan um and uh unless one of my colleagues reviewed the

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final plan um ellen i might have had enough information uh that they didn't need to return

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the plan the planning commission for for our review so i think that we we had kind of addressed

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the the issue whether the driveway was on the right or the left um it was really a matter of

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where the like which circle we were using for our 200 foot buffer and also there's a lot of

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discussion with water department about making sure that the driveway pavers were approved

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and if you focus on the i'll call pink 200 foot buffer that you said that you focused on if you

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look at that pink arc in the map that um you prepared would you agree that that arc does not

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touch um the the edge of the i'll call it the edge of the driveway

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uh it does it does touch the driveway it it um it touches the probably the first 20 feet

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the the pink circle yes yeah the pink circle touches so that's the um

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yeah they they have the driveway curb cut label there so yeah it it it touches so it's the first

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20 feet of driveway okay but it does not touch the driveway um on the at the driveway closer to

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the house correct whereas to compare to the um the plans that were submitted i i'm showing you

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the approved plans that were submitted these plans also show an arc correct yes and that arc touches

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um the corner of the i'll call it the driveway area the paved driveway the poorest driveway

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correct yes okay so the approved plan shows a different arc than oh no no no no i don't i'm

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when you say arc you're referring to the the arc of the 200 foot buffer i'm referring to

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i'm referring to the arc of the 200 foot buffer on the approved plan that was submitted

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the arc of the 200-foot buffer on the approved plan.

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yeah i don't know that that the arc is different but the driveway is different so you're there's

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going to be more driveway within the arc because the driveway is now shifted to the to the

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buildings right i don't know that the arc has changed but there's definitely more

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driveway involved and i think it's because the driveway shifted okay and this is the approved

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plan correct uh yeah it looks like it okay all right so so the arc on the um plan that you

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submitted that your attorney has submitted for this case today shows a different arc

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than what's on the approved plan that's not I don't think so no I think it's the same arc

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different driveway but it's it's um it's hard to tell without you know a ruler but it's yeah

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I don't know that the arc has changed.

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Okay.

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You testified that you prepared this map, correct?

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Yes.

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Okay.

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All right.

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And you agree that the blue line on this map is the actual physical conditions of the stream, correct?

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um that blue line is from the water department's hydrology layer so to the extent that that is

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is consistent with existing conditions

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then it's it's it's not always because the nature of rivers is that they they they move

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um but that that is i would say it's it's it's more representative of existing conditions than

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the uh than the streams and swale map is the hydraulic hydrology map based on gps do you know

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um i i really don't know but you'd believe that it's more actual it's um it represents

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the physical conditions just from my experience comparing it to to aerial imagery okay um it's

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it's it is more uh consistent okay and you prepared this map you um added the green arc

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which would show the 200 foot buffer from the existing conditions correct

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uh from the i i try to draw that point as close to the um uh where where i could tell that the

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outfall was from from the um from the aerial uh imagery and within the 200 feet using the green

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arc there's impervious coverage on this map correct on this plan correct um yeah well the

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street itself um and then proposed yes the the building and the driveway

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Do you know if the city planning office, do you know what the city planning office does

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to maintain the map in their office?

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uh well we protect it um and make it available um but it's it's uh it's behind um

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the the map itself i mean i guess it's it's there today traveled to the zba today um

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But the map itself is laminated, so there's no changing the physical map.

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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.

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So I would say we're preserving the map.

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and making it available.

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And what I'm showing here, which is marked as Exhibit 10, is this what the map looks like?

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what the map looks like um yeah I don't know what's happening on the bottom left there but

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that that's looks like a camera mistake but um yeah that's that that is the map

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and is this map accurate

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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

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because i don't i don't know what the the the uh the orientation of the creek was in 1973

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73 which is or 1972 or 73 which is when this was made but it's is it is it consistent with

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existing conditions I don't think so do you have any evidence that the stream here has been moved

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objection what's being shown on the screen hasn't been identified I think the city will

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concede that it looks a lot like the map but we don't know what section of the map this is showing

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So I don't see how he could possibly answer that question.

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Okay.

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Mr. Davis, from your review of this plan and the city's streams and swales map, do you

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believe that this is the Morris Arboretum Creek in front of you?

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Yeah, I recognize that section.

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Okay.

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Okay. And do you have any information to show that the stream was moved since 1973?

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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.

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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.

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so now like i would say like the last um i mean it's hard to scale this but like the last uh

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hundred feet of that creek um makes a hard jog down towards hillcrest which is against

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the contours which leads me to suspect that it was moved probably during street work

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um so i i suspect it was moved but i but there's you know uh this is definitely different than the

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water department's hydrology map um in regards to like the last hundred feet of the um the creek um

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but i mean i don't really know or you don't have any information that it's moved

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uh i haven't seen any permits and you don't have any pictures showing that it's moved either correct

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um the the aerial photography um dating back to then is is um

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is is less reliable than it is today but i i did a hard search for permits

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um and for uh pictures of the creek um to see if it had been moved and you did not find any no

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So in 2015, the Zoning Board issued a decision stating that the outfall was to be used for

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the starting point of the 200-foot setback. Later, the Philadelphia Court of Common Pleas

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upheld that decision agreeing that the outfall should be used as the 200 foot

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setback and again Commonwealth Court agreed that the outfall should be used

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as the 200 foot setback is there a reason why now city planning has

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disregarded all three of those decisions and used this this map just to start

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the measurement. Please respond. Yeah, objection. First of all, she's making a statement with

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respect to the law and asking the city witness, who's not an attorney, to comment on, A, first

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an attorney to comment on uh a first of all whether or not her characterization of the

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of all, whether or not her.

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decisions is accurate uh b asking him to offer an opinion regarding that

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her statement of the law so the city would would say that this she can't ask the question

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it's not i'll ask another question mr davis how did you determine the starting point in the um

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review at this case for the 200 foot setback. How did I determine that we would use this study

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or this map starting point? Yes. Because the code tells us to. So outside of the Wissahickon

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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.

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So by extension, for the Wissahickon, it tells us to use the Wissahickon map overlay.

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So that's what I do in the Wissahickon.

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Okay, and I do want to show you which will be submitted. It's part of the documents at, uh, tab number 6.

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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?

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from Shandor Sally you have. Okay. So are you familiar then with the photos that are part of

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this report? Yeah. Yeah. From this report. Okay. And I'm showing you what- I would object as the

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foundation. I mean, we're getting told that it's a report. We don't know with regard to what address

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i saw a name dingfield that name isn't involved in this um yeah hasn't been identified here

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i'm sorry mr whalen i'm this is the reporter i i'm i apologize i just cannot hear you oh

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sorry about that can is that better yes sir i apologize okay i'll explain so i'm referring to

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tab number six, which is a report prepared by Shandor Zellet. And the purpose of me

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showing the report at this moment is to point out a couple of the photos. I know, Mr. Davis,

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you said that you were unable to find aerial photos, but you did say that you did review

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the report of mr zelay yes and does the report show aerial photos from 1959

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of this this subject area that we're talking about today yeah and and i was i was surprised to see

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that we we do have um aerials uh from dvr pc for uh delaware valley regional planning commission

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from 1970 and 1975, which I would have assumed would be better quality and more closely related

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to the study itself. And I couldn't tell from those aerials, so I was surprised to see a 1959

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aerial that was so clear. But this is not available to us. Okay. And if you can tell,

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Can you tell if this aerial shows the stream in its current location?

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I would really be going to this whole line of questioning again.

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The issue is what the code requires.

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The issue is not what does a photograph from 1959 show the city has.

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I don't know how many how much longer we need to belabor the point.

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the city has conceded that the map doesn't show the current uh topography or location of the

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morris creek the the morris arboretum creek so i don't know how many times we have to to go over

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the same exact ground in 50 different ways uh we i and again having the witness testify to what

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But a 1959 photo shows which has no measurements, no other topographical features that are

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identified.

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I just don't see what the point of any of this is.

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Dawn.

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Okay, I will move on and I will just bring up the section of the code.

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Okay, I will move on.

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