posting by L&I as verifying the expiration date of August 5th, 2023 as confirmation that they had
a valid permit. Good faith. The appellant acted in good faith in dealing with L&I. They submitted
the review application. They complied with all requirements of the application. They sent all
notices and just did everything you're supposed to do. The expenditure of unrecoverable funds
in reliance on the administrative review permit that they got in 2022, they went out and spent
more than $300,000 in engineering, architectural, and legal fees in preparing plans and taking other
actions necessary to obtain a construction permit. Those funds are unrecoverable. Even if
they started over again, they wouldn't be able to recover those funds. They would have to spend
additional funds. So those funds are unrecoverable. Expiration of the appeal period of the administrative
review permit. The appeal period for the administrative review permit expired and no
one took an appeal, not the RCO, not the council member, and none of the parties who appeared at
the zoning board. So no one filed an appeal. We actually have, again, support letters today from
the district council member and the RCO. Five is there is no adverse impact on public health,
safety, or welfare. Public health, safety, or welfare will not be adversely impacted if this
appeal is sustained. In fact, it will benefit because you will take a longstanding vacant
property and allow to be developed with a multifamily structure and a commercial use
in the ground floor. So it will help Delaware Avenue continue to grow. It will take care of
the long vacant site, and we get a good public benefit from that. So we believe that we have
three bases for sustaining this appeal, and especially with the vested rights argument.
What I would like to do, Mr. Chairman, is if Council Member Squilla is available,
just to call him briefly. I don't know if he's on.
Council member Squilla.
Do we see a hand?
I see no hands at this time, Chair.
He is in the participants.
He just doesn't have his hand raised, but he's out there.
I think.
We're looking for Mark Squilla?
His hand just went up.
He's been unmuted and allowed to speak.
Good morning, Councilman.
Good morning.
How are you?
Sorry, I was trying to...
That's okay.
Could you please state your name and spell for the stenographer?
Mark Squilla, M-A-R-K, S as in Sam, Q-U-I-L-L-A.
Right.
Do you swear or affirm to tell the truth, the whole truth, nothing but the truth?
Proceed to...
Thank you, Mr. Chairman.
Council member, did you support the project when it originally came before the board in 2018?
I did.
And did you object when the administrative review, you didn't file an objection when the administrative review was filed in 2022, did you?
I did not.
And do you support the project now?
And the community also supports the project.
And you support the granting of this request to extend the permit for an additional year to allow the building permits to be obtained?
And why do you support the project?
It was a project that really took a long time of dialogue and compromise with the community.
We worked hand in hand to come up with something that with not only Northern Liberties, but CDAG, Central Delaware Advocacy Group, to fit within the master plan.
And it would be, you know, a hardship, I think, to to go back and not allow this project to continue.
And it would be, you know, a hardship, I think, to.
I have nothing further for the council. Thank you.
Leonard, do you have any questions to the council person?
I do not. OK, thank you, councilman.
Thank you. Nothing further. OK, Leonard.
uh thank thank you chairman um i you know again as i said at the beginning uh mr mattione and i
and this letter had reached an agreement uh regarding certain stipulations i believe they're
attached to mr mattione's submission uh of documents i think that was made available
through i think a dropbox so i i assume that the board was able to access those yeah um so again
And it's the city's position that the problem here, we concede, as we did in the stipulations, that there was an error on the part of L&I when the administrative adjustment application came in.
And so, again, just to really quickly go through the dates, the original application came in May 3rd, 2018.
May 26th of 2018, a refusal was issued on the application.
And again, this was application 873511.
So that's a pre-Eclipse number that was in the Hanson system.
And that as a result of receiving that refusal, the applicant sought an approval of a variance from the zoning board.
So the zone, I'm not, I don't remember, I don't know exactly when the hearing was held, but the notice of decision from the zoning board was August 8, 2018.
So, again, with respect to the lapse of permits and approvals under the zoning code, that's section 14303 sub 10 sub A.
So it says, except as specifically stated in any other section of the zoning code, an approval or permit granted under the zoning code, including approvals by the Historical Commission pursuant to 14.1005, shall expire if construction or operation pursuant to the permit or approval has not begun within three years after the date the permit or approval was granted.
And then there's additional sections regarding the extension, but I think that's the three dates. And so I think we just want to address specifically the argument that this provision of the code is ambiguous. It's the city's position that this is not ambiguous.
There are a number of permit applications that go for zoning permits that have to have prerequisite approvals, whether that's historical commission, streets department, water department, planning, et cetera, et cetera.
All of those are approvals.
Those are always those always precede the actual permit issuance, because if it's required, then you can't get the permit until you've done those steps.
So approval and permit are not glosses of each other. They're not the same thing. An approval is an approval, a permit is a permit. The argument that the applicant wants to make here is that there's an ambiguity there and that it should be approval or permit, whichever is later.
And it doesn't say that. It says approval or permit. So I think taken to its logical extent, if they get three years from the approval and then three years from the permit and then another year extension, then a zoning board approval or historical commission approval or water department approval, et cetera, would effectively be good for seven years, which can't be the intent of city council.
um the the the point is that you have to have you you get an approval which is a conditional
thing that you know you get you seek from a an agency or department that approval is necessary
in order to go through the rest of the permitting process for a zoning permit
and then once you get that permit you have to get that permit within those three years now yes
there's going to be situations where you might need extra time we understand that there was
covid uh during the period um there actually was a uh short uh extension of affected of zoning
permits uh so if they if only if a zoning permit were going to expire within the effective period
so that would have been uh well basically in 2020 so the beginning of covid so permits that were
expiring around that time were given an additional 180 days but this permit wasn't expiring at that
time this permit was not going to expire until august of 2021 so i think initially there was the
So, I think initially there was the idea that, well, the administrative review permit could have acted as a de facto extension of the permit, but again, it still would have expired by the end of 2021.
idea that
And reference was made to the code bulletin and the code bulletin, which is code bulletin Z-1901.
We agree a code bulletin is not a regulation per se, but it's an expression of L&I's interpretation of the code.
And interpretations of the code, the board should give deference to the agency's own interpretation of the code.
We agree it's not a regulation, it's not a binding thing per se.
But we think that it's a reasonable expression of how L&I views the lapse, the language in the code on when permits lapse.
Because, again, we just don't think it was the intention of counsel that approvals would effectively continue forever, that you had to actually get the permit or a permit.
So in this case, it could have been a foundation permit.
It could have been a building permit.
But there was no permit that was obtained.
Again, we understand that there were reasons that were given as to why they couldn't proceed at the time, but we don't think that the board has any equitable authority to grant permits or grant extensions on an equitable basis.
basis that's separate and apart from the vested rights argument which i'll address in a second
but so basically uh the the code is clear we believe it's clear that administrative adjustments
and amendments by themselves do not extend zoning approvals but even if they did it would have only
been for another year which would have meant that the permit still would have except the permit
life plus a year still would have been the end of 2022 we do understand that it was uh the
administrative adjustment uh was granted an error um but uh an error by a plans examiner or
some glitch or whatever that happened in eclipse um it doesn't supersede what the code itself
already provides so that then brings me and i'll just address it briefly to the vested rights
argument. The city's not in a position to contradict or to counter the numbers and the
figures and the amount of work, which granted is mostly soft costs that went into the permit
applications and whether that money was spent in reliance upon the belief that the 2022
to administrative adjustment was a valid permit that could be extended again.
I certainly don't dispute that they had a reasonable basis to rely upon the administrative
adjustment.
So if they had obtained a permit to do work in 2022 or even 2023, none of those permits
have been revoked at that time, then yes, I think they would have been in reliance that
that and they could have actually proceeded at that point because they had not yet learned
of the city's position that the permits had expired because the city itself wasn't looking
at that at the time until they came in to ask for the additional extension.
Whether they can still reasonably rely upon that to get this board to grant an additional
exception, I will leave and defer to the board's position on that. I think the board is within
its authority to take that into consideration. But in terms of the numbers, the numbers were
submitted by Mr. Mattione. He's an officer of the court. I'm not here to dispute the numbers and
the money that was spent. I think it's up to the board to make a determination if those are
unrecoverable and if they were um if those unrecoverable sums mean that they have vested
a right in a permit that we believe is already actually expired so again there's no building
permit that's at issue in terms of like vested rights we're talking about whether they have
vested a right in the actual zoning permit that right being that they have they had a right to
have that extended till August of 2024. So if the board were to grant the extension, we think that
the permit would still have to expire by August of 2024. So again, we will leave it to the board's
discretion on how to respond to the vested rights argument, but we want to just make sure that in
the record, I specifically address the approval versus permit dispute, but also with respect to
the other legal arguments that Mr. Mattione raises, the city disagrees with those and
disagrees with those and we just want to preserve the argument that that uh those legal positions
we just want to preserve the argument that those
are incorrect that the city has the authority ellen i has the authority to interpret its own
code and the code bulletins are valid unless they're clearly erroneous which we don't think
they are uh so i think that's basically it unless you have any other questions for me
Mr. Mattione, do you have any response?
Sure, Mr. Chairman.
All I want to say is we believe that the city in 2022 acknowledged that the permit couldn't have expired in 2021 when they reviewed and granted the administrative review.
And when you went on Eclipse, it said that the permit would expire in 2023.
So we turned around, got the administrative review, spent $300,000 doing new plans and everything else, and then realized we're running out of time.
So we then asked for the one-year extension of the permit that was to expire in 2023 to extend it until 2024.
That's the first time we became aware that the city was saying that the permit actually expired in 2021, even though they went and reviewed the administrative review and granted a new permit.
So what we are requesting today is to say that we have a vested right in that permit and we spent all this money on it.
And that because of the delay in time of having this hearing that we get one year from today until March 19th, 2025, for the zoning permit to still be valid because, you know, we acted in good faith on the city's actions.
And we had no idea that the city was going to decide after we spent a lot of money that we no longer had a valid permit.
So that's all we're asking for, Mr. Chairman, is that you find that we have a vested right and that it goes until March 19th, 2025.
If I could just follow up with one.
You can. Sure.
Sure. Very briefly. I do recall now that this matter was originally scheduled for January. Is that right?
December.
December. All right. And I had to request a continuance because I was going to be out of the country. So that's on me. I don't object to adding that additional period of time if you were going to grant the extension. So whatever that would lead to.
Okay, thank you. So MI 2023-005-139-626-30 North Delaware Avenue. We're going to hold this for executive session. We'll vote on this next Wednesday at 930. Does that sound right, Hillary?
Excuse me. Yes, that should be fine, Mr. Chair.
Yeah, so we'll vote on this next Wednesday at 930 and thank both of you.
Thank you, Mr. Chairman. Thank you, Larry.
Number nine.
one minute number nine mi 2022 007 347 224 to 30 west top of hawkins street michael phillips
is the attorney for
Tulpahawken Mansion
and also Steve Masters
represents the Protestants.
Good morning.
Could you state your name please and spell for the court
sonographer? Michael Phillips
M-I-C-H-A-E-L
P-H-I-L-L-I-P-S
You're on behalf of the applicant Topohokin-Mansion, LLC.
Right. Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?
Mr. Masters?
Good morning, Mr. Chair, members of the board.
Steve Masters, S-T-E-V-E-M-A-S-T-E-R-S, from the law firm of JustLaws.
Right. Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?
Okay. Today, we're going to take public testimony.
And as stated at the February 21st hearing in this matter, the purpose of this resumptive hearing is for the board to hear public testimony and the recommendation of the City Planning Commission in order to ensure that everyone who wishes to express their position on this matter is given an opportunity to be heard.
The board will only be accepting public testimony from individuals or organizations who have not already submitted correspondence to the board stating their position.
The lone exception will be the registered community organization whose boundaries include the subject property.
They will be permitted to testify to the RCO process for the project if they wish.
The board will now read into the record the names of the individuals from whom they have received correspondence regarding their positions in this matter.
If your name is not read on this record and you wish to testify, please raise your hand.
If your name is not read on this record and you wish to testify, please raise your hand.
The board will ask that all testifiers keep the remarks brief, concise, and focus on the requested special exception.
Wait a minute. Hold on.
I'm sorry, I got that one at the end wrong there.
Keep the remarks brief, concise, and focus on the proposed parking spaces at the subject
property.
In addition, please avoid repeated comments offered by the previous testifiers.
Thank you.
And here's our list right there.
here's the support
for Tulpa Hawkins Street
Alexander Russell
Carlene Neal