civus
Hearing video

ZBA Hearing - May 5, 2021

Philadelphia Zoning Board of Adjustment (ZBA)May 5, 20214h 16m

No further hands at this time, Madam Chair.

Similar wording

Okay, so we're going to case number one.

Similar wording

Calendar number 006.

Similar wording

Excuse me, Madam Chair, I believe you're voting the add-on first.

Similar wording

You're right.

Similar wording

Calendar number 3420-2143 Christian Street.

Similar wording

My vote is yes, with revised plans consisting of one page.

Similar wording

Yes, for proviso.

Similar wording

Yes, for proviso.

Similar wording

Yes, for proviso.

Similar wording

Thank you. Now we're going to the regular list, calendar number 0065, 1014 North Marshall Street.

Similar wording

The attorney is David Orfanides.

Similar wording

Mr. Orfanides has been promoted to panelists.

Similar wording

I'm waiting to see him. Mr. Orphanides, can you put your name and address on the record,

Similar wording

please, and spell your last name? Certainly. My name is David Orphanides. The last name is

Similar wording

spelled O-R-P-H-A-N-I-D-E-S. I'm with the law firm Orphanides & Toner at 2 Penn Center, 1500

Similar wording

John F. Kennedy Boulevard, Suite 800, Philadelphia, Pennsylvania, 19102. Thank you. Do you swear

Similar wording

a firm to tell the whole truth and I'll think about the truth. I do. Do you agree to waive

Similar wording

the reading of the refusal and stipulate to its accuracy? Yes, I do. And have you emailed an

Similar wording

exhibit packet with the required documents consisting of proof of ownership, tax compliance,

Similar wording

refusal or referral, copy of the plans, photos, five days in advance of this hearing? And have

Similar wording

you met with the RCO? And do you have a letter? It's all yeses. Yes. Okay. Yes.

Similar wording

You may proceed.

Similar wording

All right.

Similar wording

May I share briefly?

Similar wording

No, I can't say yes to that.

Similar wording

I'm not sure I can say yes to that, but I'll try my best.

Similar wording

You know that.

Similar wording

Okay.

Similar wording

So may I share my screen?

Similar wording

Yes, you may.

Similar wording

Thank you.

Similar wording

Okay.

Similar wording

Can everybody see my screen?

Similar wording

Yes.

Similar wording

Okay.

Similar wording

going to move back up to the top. So again, my name is David Orthonides. I'm here this morning

Similar wording

on behalf of Philly Construction Company, LLC. It's the owner of the subject property, 1014 North

Similar wording

Marshall Street. I have with me in, we're in our conference room here in our office, and I have

Similar wording

with me my clients, Eran and Ila Albuher. They are the owners of Philly Construction Company, LLC,

Similar wording

the owner and then they're also the tenant and operator by a lease dated 9-22-15 open space

Similar wording

studio LLC so they they own it and they lease to that they own it and with their own entity and

Similar wording

they lease it to another entity that they own okay what we're here for today is as we're here

Similar wording

for a special exception so this is you know let's start out right from the beginning this is not a

Similar wording

variance case. I have included in the exhibit materials that I forwarded previously and that

Similar wording

I have up on my screen at tab 15. I can go through that a little bit about what the standards are

Similar wording

just to remind the board very quickly how this should move forward and what the standards are.

Similar wording

But this matter involves an event space. It's a very small event space. I can show you some

Similar wording

photographs of it really quickly and here you see it's a photograph of open space and it's a one

Similar wording

story building um the cellar or basement was previously permitted for a music recording

Similar wording

rehearsal studio um basically that my client uses um he's a musician and um that was previously

Similar wording

permitted by right prior to, I think that was back in 2015, August 5th of 2015, a permit number

Similar wording

629849 for the seller. Back in 2016, I came before this very board and a calendar number

Similar wording

26612 for to permit to secure a special accept

Similar wording

uh for to permit to secure a special exception for the event space on the ground floor

Similar wording

it's the same thing that we're here for today because the result of that hearing was that a

Similar wording

three-year temporary was granted and again that was a calendar number 26612 notice the decision

Similar wording

was dated 210-2016 the permit that was issued in connection was that with that uh granting of the

Similar wording

special exception by the zoning board was issued on february 22nd 2016 and that permit number was

Similar wording

646272 okay so the upstairs of open space is an event space it's an event how many people maximum

Similar wording

so i can show you on the plan so it's 99 people so and it's 99 on the ground floor and then there

Similar wording

some bathrooms to meet the bathroom requirement the rear of the cellar but other than that the

Similar wording

ground floor the cellar is just for the recording studio okay so here's here's a floor plan and and

Similar wording

you know you look at it and you say you know where's where are all the details but um really

Similar wording

the whole front space and i'll show you in a couple minutes what it looks like um it is open

Similar wording

um the back you have a kitchen and i can zoom in here a little bit and i can show you what the

Similar wording

photographs to the rear to the back you have a kitchen you have two bathrooms and then again

Similar wording

the stairs that lead downstairs to the to the additional bathrooms and again we you know we

Similar wording

went we established the criteria for the granting of the special exception back in 2016 and again

Similar wording

the board granted that granted as a temporary I think the idea being because Mr. Albuher has

Similar wording

my clients have functions that at times, and we're going to get into that, involve 50 or more people

Similar wording

where there may be live music or DJs. This is technically a nightclub or private club under

Similar wording

the zoning code. And that's why back in 2016, it required the granting of a special exception.

Similar wording

the recording studio in the cellar. And then again, here's the permit that was issued back

Similar wording

in 2016 by special exception for the nightclub private club, technically what it is, because

Similar wording

on occasion it does have that. Although that's how it was deemed at that time to be a nightclub

Similar wording

and private club, because we weren't sure how the, this was, it was brand new, it was

Similar wording

proposed. And what's interesting is, is that I'm going to show you the definition of a nightclub

Similar wording

and private club and it talks about an operation that regularly has 50 or more people live music

Similar wording

and or and djs um and you'll hear from my client or i'll state for the record um that he does we

Similar wording

don't meet that standard or that threshold of regularly because as you would know from a night

Similar wording

club or private club they're generally open every single weekend weeknights they always have live

Similar wording

music they always have 50 50 or more people they always have djs and that's not the case here not

Similar wording

only in terms of the frequency of events which we're going to get into but also how many of

Similar wording

those events tend to have 50 or more people live music or djs so now when you say the number excuse

Similar wording

me 99 do you mean the music studio the recording studio and the private club would equal 99 or

Similar wording

there could be 99 on the first floor 99 in the basement no the 99 no I mean the recording studio

Similar wording

if you see the pictures it's really for Mr. Albuquerra and his friends but it is permitted

Similar wording

for that but as you'll see here at tab 14 I have the actual certificate of occupancy that was issued

Similar wording

uh November 10th 2017 and that and that was for the ground floor and again the plans I can I can

Similar wording

provide you the actual plans but the floor plans that I'm showing you are based off of the plans

Similar wording

that were permitted with the certificate of occupancy which is just for the ground floor.

Similar wording

But if I were to show you just so we're clear what we're talking about even though again

Similar wording

that was that's permitted by right this is CMX2 zoning district and that's permitted by right I

Similar wording

can show you the interior photographs here's the upstairs from the back towards the front

Similar wording

from the front towards the back you're going to see these sound panels that we're going to talk

Similar wording

about a little bit more as we go along the kitchen which I showed you was towards the back

Similar wording

one bathroom handicap bathroom another bathroom and then the stairs to the cellar and this is

Similar wording

and this is the recording studio i you couldn't it's not massive i mean i know you know your music

Similar wording

the recording studio. You couldn't, it's not massive.

Similar wording

and i know you've probably been in your fair share of recording studios i'm sure

Similar wording

um just by the picture on the back behind you you can see the stones back there

Similar wording

so um but yes it's small it's not you know it's not generally used by the public it's it's really

Similar wording

really just intended for mr and his friends so it's not something he markets um and so in terms

Similar wording

of the occupancy of that space it's not something that uh that affects anybody either at the

Similar wording

property or outside of the property and this is all the seller and seller storage area for the

Similar wording

operation what would the days and hours of operation be so i mean so when we went we went

Similar wording

through previously, and I thought it was in my exhibit book, but with the permits, but so

Similar wording

originally the community group that had jurisdiction over this property back in 2016 was West Poplar

Similar wording

CDC. It's now the 14th Democratic, the 14th Ward Democratic Executive Committee. At that time,

Similar wording

they provided hours that was seven days a week, 10 in the morning to generally 10 a night, 10,

Similar wording

11 o'clock at night, and with occasional special events that you would go to no later than 2 a.m.

Similar wording

And this was not in my exhibit book, but this is from the zoning archives, and I can show you that

Similar wording

letter. And just so you know, like to answer your question, we've complied with this. You can see

Similar wording

the days and hours. By the way, this letter is referenced in the permit that I showed you,

Similar wording

that result that came out of your last hearing on this. You both, your notice of decision and

Similar wording

the permit references this specific letter and in this letter it says up to seven days per week

Similar wording

10 a.m no later than 11 except in the case of special events will should not be the norm

Similar wording

special event hours we know later than 2 a.m okay so we we've maintained that

Similar wording

and i mean to cut to it a little bit in terms of making establishing the standard again that we have

Similar wording

for um for for the special exception case uh if you just give me one minute

Similar wording

so in terms of a special exception i'm just going to scroll to the relevant section of the zoning

Similar wording

code one minute mr rafanidis do those hours include upstairs and downstairs that's this is

Similar wording

that's just about the upstairs because the only thing before the community group was and before

Similar wording

the zoning board back in 2016 and today is the is the the event space downstairs is permitted by

Similar wording

right um okay and it's not the subject of this matter and it wasn't subject then there was a

Similar wording

previous you know i referenced the permit from 2015 permit 629849 it was granted it's allowed

Similar wording

in CMX2, I can show you in the table right here. Here's where nightclubs, technically nightclubs

Similar wording

and private clubs are a special exception. And then if I go to right down here, you can see,

Similar wording

let me switch to a hand, or I can take a box and draw a box around it. You can see here where

Similar wording

radio and television, you can see where I've circled it now, is permitted by right. And that

Similar wording

was that permit so we are we're not here about that at all um we're here simply about to get a

Similar wording

special exception um again for the nightclub and private club uh that's on the ground floor okay

Similar wording

where's trash going to be stored the trash is stored in the rear there's the rear of the property

Similar wording

and there are trash cans to the rear um that's on our property to the rear it's not visible from

Similar wording

the street. It's stored in the back and then brought out to the front. We are permitted under

Similar wording

the city code as a commercial operation to put out x amount of trash on the sidewalk and we that's

Similar wording

what we do and we do it in an orderly fashion when there are events. But back to real quickly

Similar wording

back to just like Ken. So the criteria for the special exception says the applicant should have

Similar wording

the initial duty of presenting evidence and the burden of proof that the proposal proposed use

Similar wording

meets the definition for the use permitted by special exception, that all dimensional

Similar wording

standards are satisfied. We're not talking about changing the height or area of the building

Similar wording

and that it complies with specific use criteria. And then it talks about initial burden being

Similar wording

establishing the following criteria beyond that which normally might be expected from the proposed

Similar wording

used, being a nightclub or private club. Again, this is even a nightclub and private club as it's

Similar wording

presently operating. But we're going to move forward as if it is. And I can talk about whether

Similar wording

it is or isn't. You can make that determination. But we're going to move forward as if it is.

Similar wording

we're going to move forward as if it is. And that talks about congestion in public streets or

Similar wording

And that talks about congestion in public streets or transportation systems.

Similar wording

transportation systems, overcrowding the land, impairing inadequate supply of light or air to

Similar wording

adjacent property, which here, obviously, we're not changing the building as it isn't applicable.

Similar wording

Burdening water, sewer, school, park, or other public facilities, there's going to be, there's

Similar wording

nothing here that would do that. Impairing or permanently injuring the use of adjacent

Similar wording

performing properties, again, beyond that which normally might be expected from the proposed use,

Similar wording

endangering the public health or safety by fire or other means there's there's we meet all codes

Similar wording

regarding fire safety and then the inconsistency with the comprehensive plan of the city of

Similar wording

philadelphia once we establish those which we're going to get into then it shifts over to the any

Similar wording

opposition to go through these things and talk about again that any here we are beyond that which

Similar wording

might normally be expected from the proposed use.

Similar wording

I've already talked about how nightclubs generally-

Similar wording

Excuse me, Councilor.

Similar wording

Yes.

Similar wording

Can you summarize?

Similar wording

All right.

Similar wording

And Tony, can you speak a little bit louder too?

Similar wording

Oh, okay.

Similar wording

So there's an echo here.

Similar wording

If we understand the code and all of that,

Similar wording

I agree with Mr. Holloman.

Similar wording

The only reason I'm going to this length

Similar wording

is that there were some neighbors

Similar wording

that came to the community group meeting.

Similar wording

We did three 14303 notices for the community group meeting.

Similar wording

And I'm just concerned regarding the record in the event of anything here for you and for you to make the right decision.

Similar wording

My client is here. He can speak to it himself.

Similar wording

But in summary, he has the number of events that he had in 2018, 2019 and 2020 are fairly limited.

Similar wording

And I can run through what they were real quickly, just so you get a sense of the operations.

Similar wording

Can you just give us the number?

Similar wording

Sure.

Similar wording

So actually, 43 events in 2018, 64 events in 2019.

Similar wording

And in 2020, obviously, with the COVID and the shutdown, he only had 19 events.

Similar wording

So if you look at that, I mean, in 2018, his first full year of operation, he had less than one a week.

Similar wording

in 2019 he had a little more than averaging one a week and obviously in 2020 I mean it's hard to

Similar wording

gauge that but obviously clearly he's had like a third of it now what's interesting is Mr.

Similar wording

Albuquer I asked him the question and again he can adopt my statements in 2018 I asked him I said

Similar wording

of those in 2018 of those 43 events how many of them had 50 or more people music and or DJ his

Similar wording

answer for 2018 was four his answer for 2019 was eight to ten and for 2020 it was none um in addition

Similar wording

to all that Mr. Albuqueron included in my exhibit book has been continuing to work on soundproofing

Similar wording

his property um and so he has a sound compressor attached to the sound system he has a sound meter

Similar wording

at the site. He's, he has replaced the front windows in 2020. He added acoustical panels in

Similar wording

2019. And then there's a proposal that I've included. Where is it? There, here it is. He

Similar wording

has a proposal to have additional work done. There you see the $3,200. And then another one

Similar wording

for $2,400 to have additional soundproofing done, which he's in the process of having completed.

Similar wording

So back to the definition of a nightclub. I mean, first of all, again, as I mentioned,

Similar wording

it talks about regularly. And I would put to this board that this doesn't even, you know,

Similar wording

the amount of events that he is having, that he has had to date, and we don't know what's

Similar wording

going to happen in relationship to COVID, that it's even questionable whether this is a nightclub

Similar wording

and private club if we are and we're fine with that characterization you know we don't necessarily

Similar wording

you know we don't want to make an issue of that we feel that um there has it doesn't meet we've

Similar wording

satisfied the burden the initial burden which is a fairly low burden that we don't create any of

Similar wording