No, that's not exactly what I'm saying. What I'm saying is that they would be able to make the case that their organization alone was impacted by a decision, but it would be a decision that would have to be determined by a court -- if somebody raised the 77 3/12/01 - RULES - BILL 000629 standing and objected to their involvement in the case on the basis of standing.
Let me ask this question. Were you around for the Liberty Place debate in 1984?
No, I was in law school at that point. I read about it in the paper.
Right, I know. It's probably in some history books by now. There was a big debate, height standard, breaking Billy Penn, and all of that. In this scenario -- now, I don't live anywhere near Center City, but I do have some particular views about the issue. Are you saying 78 3/12/01 - RULES - BILL 000629 that as a resident of Wynnefield, I should have no 3 right whatsoever to weigh in on that particular discussion, which is of a large, citywide, generally controversial perspective, and that because I don't own a piece of property on 17th Street, I don't get a voice in that matter?
The way that I think you would weigh in on that -- the way that I think a citizen would weigh in on that would be through their Council representatives and through the Mayor's Office.
And at the time, I wasn't in City Council, so I'm asking you as an individual. Suppose -- I mean, maybe my Councilperson doesn't like me, which I could understand, back in 1984. (Laughter.)
Or said, you know, 79 3/12/01 - RULES - BILL 000629 "Very interesting, good-bye." I'm asking, what right do I have as a citizen, taxpayer, and resident of the City of Philadelphia to weigh in on large, controversial, important matters in this city, in that particular situation? I don't belong to a civic organization, I don't own a piece of property, I don't belong to a large group like Foundation for Architecture or Preservation Alliance or any other group or organization. I'm just a Joe Schmoe who rides into town every day and I'm trying to figure out, what are we going to do now with a 60-story building? For the record, I supported the One Liberty Place project as a resident having no 17 particular involvement directly with the government.
My view on that is that you would not have -- you would not have standing or a right to appear at the Zoning Board for that case, but what you would have is your voice through your elected representatives to pass whatever laws were needed to either permit that building or development or to not permit that 80 3/12/01 - RULES - BILL 000629 building or development. And that's the essence of the democratic process, is that we act through our representatives and that's --
There have been circumstances and situations, not only in this city but in this country where the elected representatives were not representing the interests of the people. (Applause.)
And more poignantly, whether it's in the law or in our representation -- I mean, you talked about a new interpretation from the William Penn case in 1975, and now there's been an interpretation in 1999 by the Commonwealth Court. Well, I don't have to preach to you that the law is a live and fluid thing; it changes over time. Had there not been a different interpretation of the Constitution at some point in time, I wouldn't be doing this job, I'd still be picking cotton somewhere. 81 3/12/01 - RULES - BILL 000629 So, I mean, change happens. (Applause.)
And we don't always get -- and you don't always get redress directly through the representatives, which is why different groups and organizations and individuals have had to take it upon themselves to get redress or go to court or voice their views in many circumstances and situations. So I'm just trying to understand, again, why we want to have, I guess, a lesser standard or a lesser amount of rights for people in our town -- and the President's been very understanding -- and only understand that in the context of what has happened or what does someone think may happen that will cause some demise of our present situation, which is why I asked for the data and the information. I mean, again, I'm a reasonable person. If the information is out there that this stuff has been going on, that the town is on the verge of implosion because of people abusing the system -- I believe in a whole lot of rights, I do not believe in abuse of rights and of the system. 82 3/12/01 - RULES - BILL 000629 And so if I had that data and information, I'd be able to better to understand the circumstance and situation. Madam Chair, I do have a number of other questions, but you have --
I'd just like to let my colleagues know that we have approximately 42 witnesses who would like to be heard. At this time, the Chair recognizes Councilman Ortiz.
Thank you, ma'am. I think Councilman Nutter really touched on a lot of the issues that I was talking about, but developers usually come into the City, and it seems like the only mention I've heard today is about developers, and usually the underlying aspect about this is about billboards and the impact they have on the environment, and that's been unsaid. But I think that this is also about 83 3/12/01 - RULES - BILL 000629 money and the impact that money has on legislation. And developers come from, as Michael said, from all over, especially from outside, and projects are usually in neighborhoods, and taxpayers pay for those projects. And they are not distinguished. If there is a project in Delaware Avenue that is taxpayer-funded by tax abatements, by tax relief, by the giving of land, we don't say only the taxpayers that live around Delaware Avenue are going to be the only ones that are going to pay for that, do we?
So it's all of the taxpayers across the City who pay for it.
When there is economic assistance, again, that's something that is typically run through the Council and elected officials for their voice.
In what instances? If a tax abatement is given by the City, every 84 3/12/01 - RULES - BILL 000629 taxpayer of the City is given that tax abatement, not just a segment of it, is it not?
The abatement would stop the increase in taxes but still is a base tax being paid by that property.
It means that income is not coming into the City; it means that the individual is not paying taxes, it means that we're not contributing to the school system. So it means that we are denying ourselves as a city, as a city, of the taxpayer -- the taxes that this individual is going to pay. And we're denying the children all across the City of the tax money that should be going to the school. Is it not?
I -- I can't really speak totally tax abatement but what I would say is --
Answer me this -- (Unintelligible, parties talking over each other.)
No, but the question 85 3/12/01 - RULES - BILL 000629 is, that is all of the taxpayers of the City of Philadelphia that are hurt or --
No, I don't think that's true necessarily because what you've decided by giving the tax abatement is that there are other economic benefits in terms of wage tax and other things like that.
But, again, every taxpayer of the City either benefits or does not benefit, not just one small segment of it.
The word "taxpayers" in any ordinance is there because we're all citizens of one area. We're not a Balkanized city. What this legislation tries to do is Balkanize the City, and I think if it goes through, it's going to be the most hurtful -- and I hope that it would be overturned -- type of legislation that can pass. You will be putting neighborhood against neighborhood, community organization against community organization. And community organizations generally are going to be -- 86 3/12/01 - RULES - BILL 000629 (Applause.)
Sometimes a community organization may act against its interest because it can't get money, and some big and deep-pocket corporation comes in says, You know, we're going to blight your neighborhood; however, we're going to give you $50,000 so you can buy skates and gloves and so on, but we are going to affect the rest of the area, but your organization is going to be benefitting. But we are not a city just of neighborhoods; we are a city that is impacted by every decision that is made. And if you eliminate the word "taxpayers," you're eliminating the citizens of this city, and you're saying that one neighborhood may have more power than any other citizen or one taxpayer who lives two blocks away. And I don't -- I don't think when there's the issue of citywide interest, it isn't about just a street-corner cop; this decision will affect citywide zoning decisions. (Applause.)
When the issue of 87 3/12/01 - RULES - BILL 000629 placing the stadium in South Philadelphia is not a decision of the South Philadelphians alone; that impacts on the whole city because all of the taxpayers of the City are paying for it. When it was Chinatown, it was because all of the citizens -- it wasn't just the Chinese community that was impacted; it was every citizen of the City. The neighborhoods in South Philly or Chinatown may have some interest in terms of noise and other traffic and so on, but in terms of overall investment and commitment of taxpayers' money and the decision about eliminating any taxpayers can only -- and we've been trying to fight the influence of money in this Council now and tried to fight -- and put in campaign finance reform so that we could limit the influence of money. And this is about the influence of money, and one segment of one industry trying to be able to eliminate the opposition that is preventing them from blighting the City with billboards all across the City. If we had had this legislation, North Philadelphia -- the fight against billboards in North Philly against the liquor industry would not 88 3/12/01 - RULES - BILL 000629 have been possible, because the liquor industry was willing to put as much money as possible in order to have their billboards in black and Latino neighborhoods. If this legislation was in place, that fight would have been incredibly harder, probably impossible, because they would have been able to give to community organizations. The liquor industry, just like Phillip Morris today is giving to national Latino organizations, just like Phillip Morris, just to prevent them from going ahead and opposing tobacco across the board. Eliminate the taxpayers and you eliminate the citizens of Philadelphia from City interests. Everything that happens in this city affects every one of us. It prevents us from becoming a city. (Applause.)
Thank you, Councilman. The Chair recognizes Councilman Kenney.
Thank you, Madam 89 3/12/01 - RULES - BILL 000629 Chair. With all due respect to Councilman Ortiz, and I understand his concern and his enthusiasm against this bill. I coach youth ice hockey and have been doing it for a number of years. I'm also involved in raising money for a number of athletic associations within the City, in my neighborhood and outside. There is a billboard deal that was done with the Rizzo Rink and the Pennsport Civic Association on a billboard east of I-95, on the property adjacent to the rink. There are about 200 kids who are now engaged in athletics in that community that couldn't afford the equipment, that couldn't afford to be a part of the organization, a part of the group, that are off the street corner every night of the week in the wintertime, that have someplace to go, that are learning from others learning from others, that are learning from adult coaches. To discount the ability of neighborhoods to help themselves create a better quality of life when they agree to accept an intrusion, when they agree-- they had to agree to 90 3/12/01 - RULES - BILL 000629 accept an intrusion, or the intrusion wouldn't have happened. That overall benefit for that community group, that civic association, that athletic group, and the 200 additional, additional, children that are recreated through that program is not something that should simply be dismissed, because it's very important, it's very real, and it makes the neighborhood there a much better place. You said, Well, these billboard people and these companies will buy these people off with $50,000 to shut them up. Well, let me tell you something, the revenue generated from that billboard that goes to that group has a direct, real impact in the lives of those kids on a daily basis, because if not, they'd be standing on the corner drinking beer and graffiti-ing up the neighborhood. Now, if you want to be against billboards, that's fine, but you cannot say that this does not have in some way an overall positive on that neighborhood, that that neighborhood made that decision. It wasn't jammed to them: there were community meetings, there was a vote taken by 91 3/12/01 - RULES - BILL 000629 the board, along with the rest of the community. And maybe if some people don't like the billboard, that's fine. I'll tell you what I like: I like going on a Saturday morning and watch a couple hundred kids fully outfitted in ice hockey equipment, doing something productive and positive in their neighborhood. And I'll tell you what, if that's the kind of deals we have to make 'cause government can't afford to provide that service for us, then that's the deal we're going to have to make. And I'll tell you something else -- (Applause.)
From Councilwoman Verna's perspective, that South Philadelphia site for baseball or football wouldn't have happened if the people of South Philadelphia didn't want it to happen. They agreed to it and that's the reason why it's there. Because if they weren't accommodated, if things weren't done for them that were necessary, if she didn't insist on the things that were necessary to keep that neighborhood at least somewhat happy, they would be putting those 92 3/12/01 - RULES - BILL 000629 two stadiums somewhere else other than South Philadelphia. So to argue that the immediate neighborhood that's affected, you say, by traffic (inaudible) come were with me on a Saturday morning to the Rizzo rink or to the (indiscernible) Association Gym or to any of those areas that have benefitted because of that, and I'll show you a positive quality of life, billboards aside. I don't like 'em either, but you know what, what are you going to do, what are you going to do about it? I mean, they're all over the place, and if I can get some benefit to those kids directly because of that arrangement, then I think a positive thing and I think we're doing our job. (Applause.)
(Not fully audible, initially off-mic.) Is it an aggrievement against everybody who goes by? I mean, and neighborhoods can make --
Let me ask you a question: How often do you ride be Front and 93 3/12/01 - RULES - BILL 000629 Washington Avenue on 95?
Not every day, but often enough. But it is a thing of coming into this city, it's how this city represents itself and how it looks to everybody that comes into our area.
And we are big into that, I mean, how we present ourselves as an image to the City. And we should not. Kids in this city -- like I said, I raised it from the corporate sector, you raised it from the corporate sector. And hopefully, we don't have to raise it by selling and creating blight across the City. (Applause.)
You may call it "blight," but -- (Unintelligible, parties talking over each other.)
You had your say, you had your say. (Applause.) 94 3/12/01 - RULES - BILL 000629
(Speaking over applause.) The last time we had clapping to try to shut people up was during the stadium fight, so if people want to do the same thing that was done during the stadium argument by clapping so that people can't talk, then go right ahead, that's your democratic right.
Let me tell you something, it's not your decision to make for that neighborhood that that is blight. It's that neighborhood's decision to make.
You're not a citizen of Pennsport. (Unintelligible, parties talking over each other.)
I don't think that my colleagues should -- 95 3/12/01 - RULES - BILL 000629
You are not a citizen of Pennsport. They made that decision; it's their right to make it.
-- that affects me as a citizen of Philadelphia by any community. (Applause.)
Because it affects the overall environment of the City of Philadelphia.
How does that affect you at Front and Washington Avenue?
In your opinion, but not in the opinion of the people who live there. That's the difference. 96 3/12/01 - RULES - BILL 000629
I have an opinion. (Unintelligible, parties talking over each other.)
But the democracy usually works that most of the people who want something get it.
But there is 1.5 million Philadelphians and they cannot be Balkanized into neighborhoods.
Come with me Saturday morning to Rizzo Rink, I'll show you a good neighborhood.
Miss Phillips, Miss Phillips, let me just ask you a question. You heard about the proposed billboards at FDR Park. Under the new bill, the Friends of FDR Park and the Packer Park Civic Association would still be able to fight this, would they not? 97 3/12/01 - RULES - BILL 000629
They would have the right -- they had the right before. The amendment doesn't affect that right. In fact, with the language change, it just clarifies it.
Fine, thank you. As I indicated, we do have 43 witnesses to testify, and in order to give everyone a chance to testify, we will give every witness three minutes. Are there any further questions of Miss Phillips? (No further questions.)
Thank you. I just wanted to confirm that to the Managing Director's Office and the Administration, the involvement of the communities is of utmost 98 3/12/01 - RULES - BILL 000629 importance, and I just want to leave with that note. We do it all the time and we want to continue to do it.
Thank you very much. Otis Haigler, Jr. from L&I. (Witness comes forward.)
Good morning. I'll be very brief. Good day, Council President Verna and members of the Rules Committee. I am Otis Haigler, Jr., Legislative Regulatory Affairs Manager for the Department of Licenses and Inspections. Today I am here to provide testimony on Bill 000629, which, if enacted, will amend Section 14-1807 by deleting the phrase "or any taxpayer" from this section. Since the bill will not impact on the Department of Licenses and Inspections's ability to enforce its provisions, the Department offers no objections to its enactment. Thank you. I will be happy to answer any question you may have at this time. 99 3/12/01 - RULES - BILL 000629
Thank you very much, Mr. Haigler. I don't believe there are any questions. Thank you. Oh, the Chair recognizes Councilman Clarke.
This may not necessarily -- Miss Phillips, maybe you can answer this. I just wanted some clarity on a question I asked earlier about a Councilperson's standing. In the code, in Subsection 14-1807, it's -- it states that a person or persons jointly or severely aggrieved by any decision of the Board or any taxpayer or any officer. . . And my question is, is "any officer" referencing Councilmembers or elected officials of the City of Philadelphia?
I really don't know that. I really wouldn't be able to answer that. That seems like a legal interpretation, and that's something for --
Miss Phillips, would you please take the witness table 100 3/12/01 - RULES - BILL 000629 and perhaps you can respond to this question. (Miss Phillips returns to the witness table.
Councilman Clarke, I don't think that Miss Phillips heard your question. Do you mind repeating it?
It was with respects to the question I had asked earlier about the Councilperson's standing in a particular appellate case. And in Section 14-1807 of the code, number 1, it says: "Any person or persons jointly or severely aggrieved by any decision of the Board or any taxpayer or any officer. . . " And my question is, does any officer represent an elected official?
I've been advised that the Law Department has spoken about this issue while I was here, and it is their understanding that an officer would be a Councilperson that would have standing, based on that language.
Okay, all right. Thank you. 101 3/12/01 - RULES - BILL 000629 All right, thank you, Madam Chair.
Thank you. Are there any other questions of either witness? (No further questions.)
Thank you both very much. Joe Beller, Spring Garden Civic Association. (Witness comes forward.)
Thank you, Madam President and members of the committee. I am Joseph Beller. I am an attorney in the City of Philadelphia, and I've been asked by Spring Garden Civic to voice its approval of this bill. We feel that it strengthens the position of the neighborhood associations, that the neighborhood associations will continue and, in fact, under the amendment, completely and clearly have the power. The obvious reason for it being that when something happens in a neighborhood covered by a civic association, whether it be our civic association or some other, that those are the folks that have the most direct 102 3/12/01 - RULES - BILL 000629 interest in it. And I heard the word "Balkanization," and I hope that that's not what it means. This city is divided --
-- into different Councilmatic District. And each Councilman, by Charter, not by nastiness and not by legislation, but by the City Charter, has certain prerogatives. I cannot ask you to do certain -- well, as president, maybe you can, but certainly, I couldn't ask Councilman Clarke to rule on something that would happen in Councilman Nutter's district under the City Charter, like electrification of newsstands -- I've been here on that issue before, but it's his prerogative in his direct and only his prerogative, and no other Councilman can step on his to. So we do have ample evidence that neighborhoods are important and civic associations are important, and that's why we're (indiscernible). It's not to cut down people's rights. I believe that any person can appear. 103 3/12/01 - RULES - BILL 000629 The Zoning Board is very liberal, and if they have something to say that should be taken into consideration that's overall important, it will be heard, because it says -- and, you know, the question -- this is a question of appeals. Appeals are costly. You then get into the question of -- suppose some taxpayer, this person, whoever it is, this mythical person we talked about who doesn't really live in the neighborhood, doesn't have direct concern, the association is for it, the neighbors are for it, and this person is against it. He creates an organization, and I've seen some of those. Does he now get a free record, which may cost 2, 3, or $400 that the City Council and every taxpayer pays for? He takes his appeal up, and the City Council has to hire someone to do findings of fact, conclusion of law. And while that's happening, the citizen taxpayer who's asking to use this property may have to wait, and it may waste a year or two. And in many of those cases, these are properties that are vacant and not producing income in the sense of not helping people. 104 3/12/01 - RULES - BILL 000629 So we feel that it's very, very important that the neighborhoods and the neighborhood associations and the people who live there get the paramount, and that they're not competing against an organization that doesn't have anything to do with the neighborhood.
Thank you, Mr. Beller. Any questions? The Chair recognizes Councilman DiCicco.
Wait, before you leave, you represent the Newsstand Association in the City of Philadelphia.
And we had some legislation before this Council -- which is still on hold, by the way -- in which we discussed basically creating a more uniform and, in my opinion, a much more attractive newsstand.
And during those hearings, much of the opposition had to do with the fact that in order to get these newsstands built and installed and to continue to be maintained -- meaning graffiti removal, damages repaired, et cetera -- would have required for a certain amount of space on the newsstand to be provided for advertising.
And there was a significant amount of opposition -- and correct me if I'm wrong -- to that proposal because, I guess, quote/unquote, people were offended by advertising, or they don't believe that we should have any more advertising in the City. And that was one of the issues that we had to deal with.
And from our point of view, one of the major problems with why it's being stalled -- because, frankly, these stands cost a lot of money, like $20,000, in that range, or more, and particularly if they have heat and light and air-conditioning. 106 3/12/01 - RULES - BILL 000629 And the fact that people have objected to that is why we can't go forward, because no 4 outside interest -- when I say "outside," I'm talking about people in the City, advertisers in the City -- businesses in the City can't utilize them, and as a matter of fact, that --
Even though advertising is permitted on newsstands today.
And without any regulation as to the size and the amount of advertising on that newsstand. And what we were in effect doing was basically reducing the number of advertisements that could be placed on a newsstand anywhere from as much as they can hold now down to three.
The attempt was by you and by us to make it manageable and not unsightly. And, of course, it was still argued that it was a blight and, therefore, certain members wouldn't go for it.
And my point is, if the residents and business or property owners in the vicinity of Fourth and Chestnut were to 107 3/12/01 - RULES - BILL 000629 agree that the new newsstand, which is out there and has been there about a year, 'cause it was one of the prototypes --
That it was okay and it was something acceptable to them. Someone from the other part of the City could come in now and appeal the Zoning Board decision because they particularly, or not particularly, warm to the idea of additional advertising.
Absolutely. The way that the act is presently written, any taxpayer means "any taxpayer" -- that's what the court said. There is one problem, and I hope that I'm correct. I don't know of any other governmental organization, whether it's a municipality or a city of the second or third class or first class -- we're the only first-class city, but I don't know if Pittsburgh -- I don't know of any other jurisdiction that has the taxpayer in it. It's got the aggrieved. Now, I may be wrong, but I've seen 15 or 20 different zoning codes, and in the not-too-far past, I've gone into other counties in 108 3/12/01 - RULES - BILL 000629 Pennsylvania, and none of them have that protection, by the way, and those places don't fall apart because of that, especially with the way -- as I said before, especially with the way our zoning board works. Anybody can come in -- I think Councilman Nutter said -- and fill out the little appearance slip, and they will listen to anyone who wants to speak, whether he's from the neighborhood or he's not from the neighborhoods. And if he has a valid point, they will consider it. This is really a question of just the appeals and a question, as I say, from a Civic association's point of view of someone's that come in from outside the area having as much say or as much right to appeal. So a civic association might vote for something, whether for the reasons Councilman Kenney spoke about, or just because they like it, it's a part of their overall development. And someone else could appeal it. You could hold up, in some cases, the construction of homes. Forget billboards, I mean, that's a button that people push. 109 3/12/01 - RULES - BILL 000629
You could come in and decide -- if I had to go as an attorney and I asked for a variance from the City because you require 144 square feet behind a home for a single family and 100 square feet for every family thereafter, in a lot of places, in old Philadelphia and in a lot of places in Philadelphia, you might have 220, you might have 140, you might have a 3-foot alleyway and almost no rear yard, and the Board grants that variance. Anybody from -- no matter where he or she or it, being an organization, lives could appeal that to the courts and hold me up because I'm not going to let a client of mine build a house and have someone say rip it down two years from now. And that's the problem. And we are told before we go before the Board -- for those of us who practice before the Zoning Board, and I'm privileged to do that, we know that we always say to our people, because we're going to be asked, check in with your local Councilperson. Someone called Councilwoman 110 3/12/01 - RULES - BILL 000629 Krajewski's office last week to find out where the civic association was, or should we talk to someone specific, because that's where we know the Zoning Board is going to key in on generally. They're going to want to know, have we made the neighbors happy or at least less than unhappy. And in some cases, you can't do it and you keep fighting, and in some cases you walk away. But the truth of the matter is that's the focus, and when you take something like this and you give standing to appeal to any person who happens to pay taxes in the City, you take the focus away. And as I said before, the City Charter set up the districts. Well, I wouldn't go in her district and tell her what to do if I were you.
Your testimony is very interesting, but your three minutes has been up a long time ago. (Applause.)
The Chair recognizes Councilman Nutter. Did you want ask a question?
Thank you. Thank you, Madam Chair. Mr. Beller, I apologize. I missed the beginning of your testimony. Now, did I understand that you're today representing a civic group?
Okay. And to your credit, you did mention that you do practice at the Zoning Board. We've, I think, worked on a couple matters together.
And in that capacity, you represent both, I guess, civic groups and individuals. Have you ever had a case to represent like a developer? 112 3/12/01 - RULES - BILL 000629
As long as there's no 6 conflict, I would work both, but I --
I understand, but in terms of today's testimony, I mean, you do have a couple of different hats.
I'm speaking for the association, but I'm also trying to add a little of my own experience. I've been appearing before the Board for, I guess, close to 40 years now. I've been through a number of reincarnations over at the Board, so --
Right, right, you've seen a few things. Now, did I also understand you to say that you wanted to preserve the notion that I guess the local group, you know, kind of had their say and that, again, this concept of the outsider or the "any person," as you made reference to my earlier statement, anybody can come in and fill out their appearance slip, and the Board will hear them. 113 3/12/01 - RULES - BILL 000629
All right. What's -- to the best of your knowledge and information, what's the Board approval rate of appeals to the Zoning Board?
Very -- the Zoning Board is sustained, I would make a venture to guess that -- and there are some others who are going to speak who may have a slight difference. I would guess that the Zoning Board is upheld 80-some percent of the time.
A person makes application and they're denied by L&I, they have to appeal to the Zoning Board of Adjustment.
For how many of those cases does the Zoning Board ultimately approve? Just a percentage. Do you have a sense of it?
Yeah, I have a sense, just 114 3/12/01 - RULES - BILL 000629 from having been there. I would say the majority but not the vast majority. And there's a reason for that --
Well, it's my understanding that it's in the 90 percentile range.
Well, the reason I say that is that I have been there on many a day where certain particular types of use, which are very, very vocally disputed and fought by neighborhood groups just don't get a chance.
Well, I mean, it's not a complaint, it's not a judgment. It's just -- again, it's in the realm of factual 115 3/12/01 - RULES - BILL 000629 information. There are -- I believe --
-- this information was gleaned by the Department of a review on an annual basis of all of the appeals that go over there and what the approval rate is, and it is in excess of 90 percent.
Councilman, I'm sorry. How many are withdrawn prior to that final approval or disapproval because they are on a sure route to disaster?
Those are adjudicated cases. I'm talking about actions actually taken by the Board. If you walk up and realized that you're about to get your but the kicked and you withdraw case, it doesn't count. I'm talking about some testimony, heard the case, people said whatever they said, decision made. In cases where they make a decision, they are over 90 percent approval of whatever the person came in and asked for. Now -- but this person, this outside, 116 3/12/01 - RULES - BILL 000629 inside neighborhood, vicinity, in the vicinity, not in the vicinity, whatever, they show up, they give their say. As a practicing attorney, just because someone has a say, it doesn't mean that they have a good case, correct?
So when the case goes up on appeal, do you think the court should be more interested in where the person came from or where they happen to live or do they have property or not, or are they looking at the law? What's the standard for the appellate court when a case comes up from ZBA through the Common Pleas Court.
What they look to see is whether the Zoning Board has abused its discretion, and by that, they look to see --
Do they take into 117 3/12/01 - RULES - BILL 000629 consideration where the person came from? Or do they look at the law and see how it applies to that particular case?
Let me take you down the path. The Zoning Board says yes. They now find what is called "findings of fact," and they find as a fact that Mr. Smith, this person you're talking about, said that any tower over 37 feet will fall down if you sneeze at it. Now, if they make that finding, they've abused the discretion scientifically one would think, but you've got to sets of problems. In the first place, it's the reasonable standard: that is what a reasonable person looking at what the Board looked at, conclude what the Board, not what you judged -- making you a judge now, not what you approve of it. That's number one. Number two, the Commonwealth Court has said over and over and over again, the issue of credibility is before the Board 'cause they saw that person.
And I can say to you that a person who is not connected as closely as maybe a neighbor is or whatever, his say -- if they adopt his say, yes, it would be influential. It's hard to know what the Board is looking at, and I --
But we're not at the Board -- we've passed the Board. The Board said yes, they wrote up their findings of fact, they ended up in Common Pleas Court, and the Common Pleas Court agreed with the Board, the person appeals, they go to Commonwealth Court. What happens more often times than not? The Commonwealth Court looks to see whether the Board abused their discretion or made a violation of law. The question here is, does the person have a case, not whether do they have a right to stand there or say what they say or do they know what they know or do they live three blocks away or do they live three miles away? The question is, did the Board and the lower court follow the law?
And if you live next door and have no case, you will lose, right?
See, I disagree with that, because if you live next door and you go to your Councilperson, and that Councilperson takes an active role and two other neighbors support you or four other neighbors support you, and I'm talking about two and four, that Board will very often go with the neighbors.
Mr. Beller, I'm not talking about the Zoning Board. We're not here talking about the Zoning Board; we're talking about appeals to court.
The court will overturn only those that they feel were an abuse of discretion. And I don't know the percentage of --
The law, as they 120 3/12/01 - RULES - BILL 000629 understand at that time, yes.