civus
Hearing video

ZBA Hearing - March 13, 2024

Philadelphia Zoning Board of Adjustment (ZBA)Mar 13, 20246h 7m

our

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And just to clarify, the coordinating RCO was Strawberry Mansion CDC. I don't know if anybody is here from there.

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Chair, I see no hands.

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Okay. Mr. Chair, can I just respond to Ms. Cummings for a second about the porch?

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So we did not update the rendering to show that the porches were of equal height, our new porch versus the neighboring porch.

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But our revised plans did show a lowering of our porch to match the porch.

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And that's one of the provisos or one of the elements within our revised plans to match that.

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Thank you.

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Questions or comments from the virtual audience?

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no hands. Thank you. Planning has already taken a position on this. So MI 2023-001-265-2203

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North Natrona Street. I vote yes with proviso. Her amended refusal dated 10-13-23.

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Revised plans, one page, stamped by ZBA on March 13th, 2024.

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Thomas Holloman, my vote is yes with provisos.

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James Snell, my vote is yes with provisos.

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Ishmael Shaheen, my vote is yes with provisos.

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Thank you, Mr. Nagamson.

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We're going to move to number 11, MI 2023-007-204, 4136-40 Mitchell Street.

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Meredith Ferlicker and Brandon Shagman are the listed attorneys.

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There is a letter of support from Central Roxburgh Civic Association.

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Afternoon, Mr. Chairman.

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Hi, just for the record, state your name, please.

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Meredith Ferliger, F-E-R-L-E-G-E-R.

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Would you identify your client in relationship to the property?

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Sure. My client is Mitchell Commons, LLC, the owner of the property at 4136 Mitchell Street, represented here today by member Mark Duzak.

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Our vice chair has just a few questions.

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Good afternoon, counsel. Do you agree to waive the reading of the refusal or stipulate to its accuracy?

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I agree to waive the reading. I stipulate that it is accurate as written, although we do have an argument that it in theory could have been issued by Wright.

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Understood. Have you emailed in all the required documents and exhibits that is needed to proceed with this case five days in advance of this hearing?

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We did, and we did also supplement the exhibits earlier this week.

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Thank you very much, counsel. Please proceed and share your screen.

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All right.

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All right, Mr. Chairman, members of the board, the board may have some deja vu as it relates to this particular property.

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having reviewed a different proposal back on May 10, 2023, at calendar number MI-2023-006-999.

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By way of preliminary housekeeping, I would note that our presentation today does expressly

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incorporate all the testimony that was given at the May 10, 2023 hearing, and a copy of that

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transcript is provided for reference at Exhibit 16. To refresh your memory generally, the applicant

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in May sought relief to permit a variety of commercial uses of an existing commercial space

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located in a relatively newly constructed building at 4136 Mitchell Street. At the hearing in May of

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2023, and in response to the community's input, the applicant presented the board with a condensed

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list of a maximum of 13 commercial uses that the space might reasonably accommodate.

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following that hearing the board held its vote for a week and later denied that request the

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denial had the natural effect of rendering the space unusable since the May 2023 hearing the

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applicant has continued to assess options for the vacant space as the manager of roughly 800 units

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around the city the applicant routinely receives inquiries from tenants with certain physical

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disabilities that cannot often be accommodated in existing units, even in newer construction

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buildings. Accordingly, the request before the board today is to permit the use of the vacant

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first floor commercial space for one additional residential unit, which is intended to be built

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to suit the needs of an ADA-specific tenant based on their needs. It is our understanding that CRCA

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sent a letter of support for this very specifically tailored request.

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In light of the testimony and evidence offered in May 2023, the resulting denial, and the case

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In light of the testimony and evidence offered in May 2023, the resulting

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we'll present before the board today, the board will see the continuing significant hardship that

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this particular property faces. As we noted in May of 2023, any proposed use of this previously

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approved commercial space will generate a variance. Aside from the hardship, the applicant

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also submits the request may have been approved by L&I by right as a permissible increase in a

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non-conforming condition. The exhibit packet includes 15 total exhibits, 16 total exhibits.

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Allow me first to reorient and refresh your memory to this property.

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The property is located at 4136 Mitchell Street, which is just south of Pensdale Street. The

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aerials at Exhibit 10 provide the board with context to this area. You will note the newly

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constructed building, which is surrounded by a large religious congregation to the south,

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residences, dense apartment buildings, and other commercial properties as you travel north on

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Mitchell Street. And again, just another view. Directly across the street, where I'm indicating

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with my cursor, is the Roxborough Dog Park, which was revitalized in part due to a partnership

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with this property owner when the project was constructed.

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In fact, the dog park users regularly visit this property to access fresh water for their dogs.

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Additional photographs are shown at Exhibit 15, and the board may start to get deja vu here.

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In this front view, which is extremely important to the case today,

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you'll notice that there are currently two separate entrances to the building.

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The entrance on the right is the main residential lobby.

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the entrance on the left with the ADA accessible access point

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and the ramp was originally intended for a commercial space,

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specifically a fresh food market,

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which is no longer a contemplated use under the zoning code.

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Again, I'll scroll through

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just so you can get a general context of the area.

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And again, across the street is the dog park.

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Looking the other way,

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you'll notice the apartment building up the street.

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Again, another view of the dog park.

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And here's a front and side view of the property,

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and then this shows the existing parking,

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the accessory parking lot that serves this property.

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Right along the side here,

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I'm not sure if it's visible in this image,

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I believe it's farther in the back here.

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There is currently a reserved and unused ADA accessible space,

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and the intent would be that that space would be

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reserved for this particular unit as well.

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The vacant space is shown up on the screen now and you can see this is currently just an empty space.

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You'll note this is a nicely sized space of approximately 740 square feet and has ample street facing windows.

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As of now, the space exists as an empty shell that can be designed and fit out to suit the needs of a specifically identified tenant with ADA needs.

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In comparison to some of the other smaller units in the building, this is actually quite a well-sized space to accommodate a residential tenant, particularly one that has individualized needs.

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By way of the history shown at Exhibit 6, this project was first issued its first zoning permit in June of 2016 and was granted several subsequent permits between 2016 and 2019, including the grant of a variance in 2019 for the addition of the accessory parking.

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The project was approved under the then-existing CMX-2 zoning classification that included 72 dwelling units, 10 parking spaces, and a fresh food market on the first floor.

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My client purchased the already approved project from the former owner in December of 2017 through an LLC asset purchase and proceeded to secure the building permits for the new construction.

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The building was completed and occupied as of 2020.

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The as-built first floor plan is shown at Exhibit 7, and you'll see the space here.

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This building is already currently heavily amenitized with a gym, vegetated roof deck, open space in the rear with a common gazebo, and several open gathering and study rooms in the buildings.

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As I mentioned earlier, there's also a dog park across the street.

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Unless the board desires it, I will refer the board specifically to the transcript of the May 2023 hearing for my client's detailed testimony concerning the difficulty he faced in locating a permissible tenant for this space.

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His testimony begins on page 8 of the transcript shown at Exhibit 16.

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His testimony begins on page 8 of the transcript shown at Exhibit 16.

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To summarize that testimony, the board heard that this property has been occupied for nearly four years,

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during which time significant efforts to find a tenant that fits the extremely limited definition of a fresh food market occurred.

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Those efforts were unfortunately not fruitful.

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Accordingly, the owner first started investigating whether there are other commercial users that would be interested in the space.

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The owner testified that he received significant interest from several possible tenants.

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However, none of those tenants were willing to sign a lease with the risk that their use would not be approved and the significant delays that exist in securing zoning relief for one specific use.

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That was ultimately what precipitated the request for the broader swath of possible commercial uses.

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However, the board's 2023 denial had the effect of foreclosing any commercial use of this space.

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Adding to the challenge in activating the space, as the board can see on Exhibit 9, this property is currently zoned RSA 5, single-family residential.

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At the time the project was approved, the property was zoned CMX-2, which permitted the multifamily and commercial use.

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The property was rezoned in 2017 by Bill number 170465, which is shown in the packet at Exhibit 8.

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The board will note that the properties prior CMX-2 and partial RM-1 classification were all rezoned solely to RSA-5.

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As a result of this rezoning, the only use that's permitted for the property in this particular space is the previously approved fresh food market.

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Because of the RSA-5 zoning, any changing use to the space will trigger a variance, whether that changes to another commercial use or, as requested today, to an additional residential unit.

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As I alluded to, any changing use for this space will trigger a variance.

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because of the current zoning classification.

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This has made it nearly impossible

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for the owner to find a tenant

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willing to commit to the space

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with the uncertainty and delay

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that comes with seeking relief.

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This use change was first initiated in November of 2022.

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It is now March of 2024

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and the applicant is still seeking relief

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to authorize some reasonable use of that first floor space.

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As shown today and in May of 2023,

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this property owner faces a significant hardship in that any by right use of the space and property

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more broadly is no longer permissible under the new RSA 5 zoning classification. The board has

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ample grounds to grant today's relief on both traditional hardship grounds, as well as

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considering that the request constitutes a permissible expansion of a legal non-conforming

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condition. Once the property was rezoned to RSA 5, the existing multifamily use became legally

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non-conforming. In accordance with section 14305.5 of the code, a non-conforming use may be expanded

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within an existing building so long as the expansion since the use became non-conforming

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does not increase the floor area occupied by that use by more than 10%. The total gross square

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footage of the building is 74,880 square feet. The 740 square foot space is less than one percent

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of the total square footage and should constitute a permissible expansion of a non-conforming

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condition. The evidence also establishes this property, particularly this ground floor space,

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suffers from a unique and unnecessary hardship. As the owner testified during the May 2023 hearing,

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locating a fresh food grocer for the space has been met with unfortunately limited success.

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As the board has heard repeatedly, any changing use of this space will trigger a variance.

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That statement is the very essence of a hardship in that there is no possibility this space can be

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used in strict conformity with the code or the previously issued permits in light of the owner's

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diligent but failed attempts at finding a user to occupy the space. This hardship was only

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accentuated once any commercial use of the space was denied. We submit this is not a self-imposed

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hardship as this owner and this applicant purchased the LLC following full zoning approval of the

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project and has, based on that original approval, attempted for many years to find a viable

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commercial market. We further submit the request as the least minimum variance as the property already

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We further submit the request as the least minimum variance, as the property already contains 72 dwelling units.

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This is a de minimis increase in one extra unit that will serve a severely underserved need for both ADA accessibility and affordability.

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This newly constructed multifamily building is in an area surrounded by mixed residential, religious, and commercial uses, including an active dog park just across the street.

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One additional residential unit will have no perceptible increased impact.

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We submit the proposal will not increase congestion, harm neighboring properties, or impair light and air.

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Full analysis is provided in the memo of law submitted to the Board at Exhibit 11, as is supplemented by the transcript from the May 2023 hearing.

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With respect to the community, as the board is aware, CRCA sent a letter of condition support, which we specifically acknowledge is consistent with the owner's goals for this space, and the applicant has no objection to the requested provisos.

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I will call up my client to adopt my testimony, but before I do, we would summarize and submit that the evidence presented in May 2023, in conjunction with the evidence the board has heard today, establishes a clear and unambiguous hardship pursuant to Section 3038E.2 of the Code, and we respectfully request the board grant the requested relief.

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At this point, if the administrator could locate Mark Duzak, please.

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mark dusak has been allowed to speak sir could you please state your name and spell for the

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court stenographer uh good afternoon my name is mark m-a-r-k dusak d-u-s-z-a-k you swear

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affirm to tell the truth the whole truth nothing but the truth yes sir please proceed counsel

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thank you uh mark have you heard all the testimony that was offered before the board today

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I have.

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And would you agree that testimony was true and accurate, and would you adopt it as if it were your own?

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Yes, I do.

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And would you also specifically re-adopt the testimony that you had given at the May 2023 hearing?

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Yes, I do.

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Thank you, Mr. Chairman.

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Questions from the board?

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Mr. Chairman.

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No, Chair.

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Questions or comments from our attorney, Hillary Emerson?

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Not at this time, Mr. Chair.

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questions or comments from the virtual audience

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i see no hands planning commission

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thank you chair bergman um in 2017 the zoning map was amended from split zoning

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of residential multi-family and commercial mixed use due to residential

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excuse me, let me start over this. Okay. In 2017, the zoning map was amended from the split zoning

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of residential multifamily and commercial mixed use to residential multifamily and residential

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single family with the support of the community. The appellant has shown that a variance is

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necessary to enable the viable economic use of the property. Therefore, the city planning

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commission recommends that the zoning board grant the variance. Thank you. MI 2023-007-204-4307

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4136 to 40 Mitchell Street, I vote yes.

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Thomas Holloman, my vote is yes.

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James Snell, my vote is yes.

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Ishmael Shaheed, my vote is yes.

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Thank you.

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Thank you, Mr. Chairman.

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Thank you, Councilman.

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Number 12, MI2023-007156, 3532 North Carlisle Street.

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Michael McElhenney is the attorney.

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letter of support from Nicetown-Tahoga

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improvement team with unenforceable

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provisos.

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Good afternoon, Mr. Chairman.

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Counsel, you've already been sworn. Could you just state your name for the

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record? Michael McElhenney.

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And could you identify your client, their relationship to this

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property? The client is

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NG Properties LLC. That LLC

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