That's correct. And 105, your company has owned since 1999. Correct. And why has it been difficult
to rent the two commercial spaces at these properties? It's a low traffic area and the
spaces were too large. So we wanted to downsize them, put an apartment in the rear area and be
able to have a small gallery or something like that to maintain the commercial ambience of the
mixed-use district, but still make productive use of the square footage on the building.
And both of these properties, they're side-by-side, correct?
Yes, they are.
And they've been vacant for at least five years.
Correct.
And why can't you alter the building to put in, you know, the Planning Commission says
up to 13 or up to 17 units, and why don't you even want to expand the building to put
in one unit?
The only way to do that would be to substantially alter or demolish these two historic structures.
They are both completely serviceable, well-maintained stone Victorian buildings that are listed as significant on the National Register of Historic Places for Chestnut Hill.
And that is not what my company does.
Mr. Clinton was correct. If there was even a whiff of something like that, the Chesney Hill Conservancy would move to have these buildings put on the city register, and the whole thing would be moot. We wouldn't be able to do it anyway.
So we're stuck with the footprint we have, and we're trying to make the best of the situation that exists, which is to put a nice apartment in each of these buildings.
They're very expensive to adaptively reuse.
But we believe in the neighborhood and we're long term investors there.
And right now, you have a gallery.
And right now, do you have a gallery in one of the buildings?
Yes, it's in 105, and they are not paying any rent.
It's something we do.
We put artists into empty buildings so that they don't appear quite so to the Lord.
Is there anything else you want to say, Mr. Snowden?
No, I think that says it all.
And if you had the opportunity to testify, would you adopt my testimony as your own, and it's true and correct?
Yes, sir, I would. And Mr. Chairman, just a brief conclusion. So what we were trying to do is adhere to the next.
Excuse me, Mr. Clinton. This is Hillary. I just wanted to see if Mr. Reuter had any questions for your witness. Thank you.
No, I don't have any questions. Thank you.
Thank you, Ms. Emerson. So, Mr. Chairman, basically, I understand that the Planning
Commission looks at the comprehensive plan as they did with these two proposals. And if it
doesn't comport with the comprehensive plan, they have to make their determination. And I
understand Mr. Bednar will do the same thing today as Mr. Hegarty did before. And I respect that,
I really do. And so does Mr. Snowden. But I don't think it's good policy that if you do
that at the expense of continued vacancies when every major player in the game wants those stores
occupied, or you do it at the expense of alienating the community and the neighbors, i.e. that we
expand the building, which really wouldn't work. And if we expand the footprint, as I said, I think
there would be an outcry in the neighborhood and at the expense of our inability to make a
contribution. So maybe there needs to be a legislative change where we could, in a situation
like this, where you have historic properties, where you could make a contribution. But right
now, that relief is not there. So with that, I would close. And Mr. Werner, the floor is yours.
Sure. Thank you. I did want to say just for the record that Mr. Bednar is here just in the normal
routine position of being here as representative for city planning to give the recommendation
since this was a remand which on the face of the remand order itself it was for the applicant
to put something on the record to rebut planning commission's prior position regarding the
variance request i don't think it's necessary for mr bednar to repeat the planning commission's
recommendation but we can just incorporate it from the original case i did want to just if that
if the chair wants to hear from mr bednar we can we can incorporate it for the original case
that's great then so again just so we and just so it's clear in the record um and again mr clinton
will correct me if i'm wrong but uh i just wanted to clarify a couple things it's it's not that
we're not he's not his client is not allowed to put to get to do a payment in lieu it's because
he only wants to put one unit per building the payment in lieu wouldn't be an option because to
offer mixed income housing to get a bonus the mixed income housing bonus now you have to at
least have one unit and but it wouldn't we understand it doesn't make real economic sense
to if you're only going to put in a one additional unit that it wouldn't make economic sense uh in
In terms of, you know, well, in order to take advantage of the bonus or do a payment in lieu, you actually have to put in more units.
So we get that. We understand what the what the what the problem is.
But I just wanted to clarify that the properties are on the National Register.
But as Mr. Clinton pointed out, they're not on the local register.
The National Register, you know, makes the property amenable to certain tax credits and things like that that you can get from the federal government off your federal taxes.
But it doesn't have any local impact in terms of, you know, getting permits, building permits or something like that.
So it may be that at some point somebody would nominate these for the local register, but that hasn't happened yet.
So it's really just the city's position here.
And again, because it's a little bit unclear from the order what it is that the court was asking to happen here, how much of the records open, but to the extent that the board can understand the position of the city, it was the city planning commission's position before.
And it remains that because the mixed income housing bonus is available that and it would be a buy right option and that they're choosing not to take that option, understanding the rationale that Mr. Clinton put forward that at least on its face, the there is no hardship of the property because.
That, at least on its face, there is no hardship for the property because there is a less, this is not the minimum variance that would afford relief.
There is another option they can take.
They've chosen not to take it.
We understand the reasons why they're not taking it.
So on its face, we don't believe that it meets the requirements for granting a variance in this case.
And again, I'm talking for both 101 and 105 Bethlehem.
so that's that's you know again we're just restating the same position we took before i
think the remand was more for mr clinton to have that opportunity to put in the explanation of why
they're not pursuing the mixed income housing bonus but again like i just want to say we're
not preventing him from providing money to the city i mean anybody out there in tv land is more
than welcome to donate whatever you want to to the city but you don't get the benefit uh if you're
only doing one unit per building. So that's all. It's not a prohibition. It's just not available
for that type of project. All right. Thank you. Mr. Clint, do you have any response to that?
No, not really. I think basically cities sound like they're adopting what the Planning Commission
already said. All right. Thank you. So MI 2024, 000635, 101 Bethlehem Pike,
and MI 2024-00637-105 Bethlehem, Pike.
The votes in these matters are being held pending the preparation of supplemental findings of fact
and conclusions of law, which will be incorporated as provisos into the board's decisions.
Thank both of you.
Thank you very much.
Thank you, Chairman.
We'll go to number one.
Henry, I think you're involved in one too, maybe I'm wrong.
So Leonard is available and I'm sorry, MI 2023-005-139-626-30 North Delaware Avenue.
Michael Macchione is the attorney.
This is an appeal against L&I
Morning Mr. Mattione
Could you please state your name
Spelled for the court stenographer
Sure, Michael Mattione
M-A-T-T-I-O-N-I
Do you swear or affirm to tell the truth
The whole truth and nothing but the truth
I see the Northern Liberties
Neighbors Association
is in support of the requested
extension.
Council Member Squilla is also
requesting an extension.
Do you swear or affirm to tell the truth,
tell the truth, nothing but the truth?
Okay, and our Vice Chair has a few
questions for you, sir.
Mr. Chair, this is an appeal against LNI, so they're not the normal required document.
All right. Well, let's proceed. Thank you. Sure. Thank you, Mr. Chairman. And we did submit
some exhibits in advance, including a stipulation, and I believe that Mr. Reuter agreed to that
stipulation as it was revised is that correct leonard uh that's correct yes so i don't the
city uh doesn't need to present any witness here because all the facts that are relevant for us
on the legal questions um are just purely legal questions now there's no factual issues in
dispute uh i might have a couple questions for mr matty only or his client regarding um what i
understand is a vested rights argument they're making, but other than that, we agree to all the
relevant facts as it goes to the legal issues. Thank you. And again, Mr. Chairman, I believe
that Council Member Squilla is also present, and I would like to call him as a witness if he is here.
The issue before the board is whether the zoning permit that was the result of a hearing before
the zoning board on August 8th, 2018 is still a valid permit. This project is a 96-unit multifamily
structure with commercial uses at the ground floor. There was strong community support for
the project and variances to allow the project to move forward where granted we had the RCO support
and council member support when the original variances were granted in addition to the support
that we have from them today. The appellant obtained a zoning permit on August 5th, 2020.
appellant never received any notice of the expiration of the permit dated August 5, 2020
from L&I. Thereafter, appellant was forced to amend the plans for the project because of
significant changes in the floodplain rules. Appellant met with his architect and was forced
The appellant met with his architect and was forced to modify the plans and remove the basement from the structure.
to modify the plans and remove the basement from the structure.
This led appellant to file for an administrative review on June 16, 2022.
And this is after the city says that the permit expired.
The administrative review required notice to the council member, the RCO, and anyone who participated at the original zoning hearing.
The administrative review application was accepted as timely filed by L&I.
The administrative review was approved by L&I on July 19, 2022.
A copy of the administrative review permit dated July 19, 2022 is included in the memorandum of law that we presented as part of our exhibits.
After this happened, Appellant then filed for a one-year extension of the permit, believing that the permit ran until August 8, 2023.
The application to extend the permit for one year was denied by L&I because L&I stated that the permit expired on August 8, 2021,
which was three years from the date of the ZBA hearing, but not three years from the date of the
permit. No notice, again, no notice of the permit expiration was ever provided to appellant.
Appellant's administrative review was accepted by L&I, processed, and a new administrative permit
was issued despite the claim by L&I that the permit had expired prior to the administrative
review being filed. In reliance on this administrative permit, appellant spent more
than $300,000 on engineering, architectural, and legal fees, preparing the construction
permit application and related costs. When appellant sought to extend the permit for a year
as permitted in the code, appellant was informed the permit expired on August 8th, 2021 by L&I.
As a consequence of this action, appellant filed this appeal against L&I seeking to have the
permit declared valid and to extend the permit for an additional year. And we have three bases
for our position. First is the code language and ambiguity. When the original permit was issued
on August 5th, 2020, and that was delayed in part due to the pandemic, and stated the permit would
expire three years from the issuance or date of decision by the Zoning Board. Didn't say the
earlier of, it just said or. Once the administrative review was completed and the permit issued,
appellant applied for a one-year extension of the permit that had been granted by L&I on July 19th,
2022, as set forth in Code Section 1430310D. L&I, upon receipt of the application for the
permit, denied the permit extension, again, stating that the permit had expired on August
8th, 2021, even though they granted the administrative review in 2022 after the permit had supposedly
expired. So we believe that L&I's interpretation is incorrect. The permitting conditions and
limitations set forth on the permit are ambiguous at best as the timeframes. And whenever you have
an ambiguity in an ordinance or a permit, the code language is then construed in the most favorable
like to the landowner the code language here is ambiguous because it doesn't specify when
construction is required to commence it gives alternate dates once you have the ambiguity the
interpretation providing the most benefit to the landowner within three years of issuance must be
used lni also relied on a code bulletin for support of its position you know code bulletins
they're great they provide guidance on zoning issues and code interpretations but they can't
established policies or conditions inconsistent with the zoning code. So that's what they tried
to do here. They tried to say, well, the code bulletin says it's three years from the date of
the hearing, but that's not what the ordinance says. And when the ordinance disagrees, the code
bulletin can't be used to try and change the ordinance. In addition, the code bulletin that
they relied upon was issued on December 11th, 2019, which was after the August 2018 ZBA decision
granting the variances so that they can't retroactively impose conditions. So the code
is written. It allows the effective period for the permit to run from either the permit issuance
or the ZBA approval date. For these reasons, we believe that the first basis provides a reason
for sustaining the appeal. The second issue is the administrative review was a new permit.
and also the Eclipse specifically said when you went on Eclipse that we had three years from the
date of the issuance of the permit so if you went online to check to see when this permit would
expire Eclipse said it would expire in 2023 as well so so LNI with respect to the administrative
review they maintain that the administrative review was just a continuation of the existing
permit and not a new permit but this is at odds with the code language case law and prior LNI
conduct. Section 143031 of the code sets forth specific standards and procedures for administrative
review for projects with prior variance approvals. The process requires notice to the RCO, notice to
the council member, anyone else who appeared at the hearing, and then it will lead to review and
if granted a new permit. But if the permit's denied, you can also appeal that permit. So
So it clearly is a new permit when the administrative review was done.
It clearly is a new permit when the administrative review was done.
And the McEnany case cited in our memorandum said that there the Commonwealth Court said administrative review permits were independent approvals in which the applicant could have acquired vested rights.
And finally, we believe that there is a vested right here in this permit, the permit, the administrative review permit that was granted.
the McEnany court explained there were five things you have to show to get a vested right
one is due diligence and attempting to comply with the law two is good faith throughout the
proceedings three is the expenditure of substantial unrecoverable funds four is expiration without
appeal of the period during which an appeal could have been taken from the issuance of the permit
and five is the insufficiency of evidence to prove that individual property rights or the public
health, safety, or welfare would be adversely affected by the use of the permit. We believe
we meet all five of these requirements. Due diligence first, the appellant filed for the
administrative review in a timely manner. Nobody said it wasn't timely. They met all the code
requirements for notice and submission of required materials. They sent required notices. They acted
in good faith in dealing with L&I. And regarding the original permit, reasonably interpreted that
the acceptance, excuse me, for filing of the administrative review as well as the Eclipse