there i have no knowledge did you have a sense that it had been some time that a long did you
have a sense that it had been a long period of time since that had been some period of time
since there were any tenants that were that these had been rented out to
i'm not sure what's the time period but i have no knowledge of that i'm sorry
You heard the testimony of Deb McCarty from the Civic Association, my client,
that on July 22nd of 2025, they hand-delivered to the property two copies of a letter stating
to the property two copies of a letter stating that the variants had long ago expired did you
that the variants have.
receive a copy of that letter i wasn't at the property at that time and um i i looked at all
the mails from the city well was that letter forwarded to you either by the general person
that looks after your properties or somebody else did you see the letter
it was shown to me later on okay but the letter did not come from the city so
i get a lot of mail from that okay thank you um there came a point in time isn't that correct
isn't it correct that the LNI examiner who was looking at your application informed you that
the application couldn't move forward because there was a question about whether the four
units could legally be used without you providing, you know, unless you provided
an affidavit and, in fact, sent you a link to a form of the affidavit.
to object this was asked and answered we already talked about the affidavit i i i think we have
talked about that quite a bit going in a circle i i think we've talked about that quite a bit
so you were asked to sign the affidavit is that correct
i'm going to object we already talked about the affidavit we did not talk about the evidence we
certainly didn't talk about the evidence with this witness with that was the liner of the
affidavit calm down calm down he admits he signed it and we're going to move on paul well can i ask
him about the affidavit i i think he did i think you you originally you you showed it up you waved
it at him i mean i i think we're going to move on from that when you sign the affidavit you're
you were aware that you were doing it under oath he already asked about he already signed the
affidavit paul and it was sent to ellen i yeah i i think i i i think we're going to move on paul
but the affidavit i mean you you made a lot of points about the affidavit but i think we're
going to move on has anyone ever read a portion of the affidavit to you no let me exhibit let me
read the heart of it it says that uh number three that he she or they affirm that the building has
been used as a four unit multi-family and has continuously operated as such continuously
operated means that the operation of the use did not lapse for three years and the building systems
slash physical layout supporting such use are maintained uh mr chen what was the basis for you
swearing to that statement i'm going to object he submitted this affidavit to ellen i at the
time it was signed and you're asking him now i don't know six plus months later what his
intention was his intention was what was stated on the affidavit mr mr chairman right and i'll
ask the next question mr chen you stated in paragraph two that you had only owned the property
since the past few weeks of signing this affidavit and in the next paragraph
you are saying that is continuously operated for four units since 1940
when the variance was granted what was the basis for your statement how what was the basis for
that statement it's the most relevant it's the most relevant question in this case
there was nothing from the city otherwise like it was a four-unit property
so this is i remind mr boney this is an appeal against lni this is not an appeal against the
property owner so any discrepancies you would have with the affidavit being accepted would
go towards l and i i agree i agree well let me ask you how much longer do you need because
if we i'm almost done i'm almost done all right okay
uh mr chen just to finish up here um
were you declined a mortgage because the property was not habitable
I I pay for the property with my money I understand but this appraisal was brought
irrelevant I wouldn't object to asking about his personal finances this is an appeal against L&I
I'm not asking about his personal finances of course I'm not asking about his personal finances
please well that this appraisal was done because of a mortgage company is that correct that we
that's what was stated on the cover page is that as you as you as you agreed that's correct
yes the mortgage company asked for appraisal and they ordered one there is no mortgage on
this property is that correct correct i have no further questions mr kelly you have any questions
no across from the city okay um so anybody on the board have questions
i'm ready to close it so uh rachel how long would it take you to close
like three minutes i feel like you guys have a little help with you less than 10 minutes right
i'll hurry all right hillary we'll go on all right let's take the closing now
We'll have Mr. Bonnie, and then Mr. Kelly, and then Mr. Trisker.
I'll do the closing now. Thank you.
Mr. Chair and members of the board, this property in Palantin Village is zoned.
The base zoning allows two units.
A 1940 variance from this EBA allowed four units.
But it's our contention that that variance lapsed long ago.
When the new owner obtained a 2025 building permit for four units, our contention is that it was issued in error.
And we asked the board to void that four-unit permit.
Increasingly, as my clients testified, market pressure and the deluge of multifamily dwellings have made one and two unit properties.
in this neighborhood a rare community a rare commodity the community and indeed the planning
commission as we've said in our exhibits want to hang on to such properties and so the so that
the neighborhood has at least some diversity of uses the uncontroverted evidence eyewitness
testimony from the long time next door neighbor and another neighbor two doors away proves
that the variance has not been used for at least 40 years, 40 years since the mid-1980s it was used
by the owner Clarence and his one tenant Walter that is as only two units until Walter passed away
in 2012. This means
that since the mid-80s, it was used
as two units.
And since 2012 and Walter passed away,
just a single occupant was there, Clarence.
Because up to two units is allowed by Wright,
neither the two-unit occupancy, and certainly
not the one you document see made use of that variance so for that entire time from the mid
1980s until the present time that variance was not being used the occupancies during that period
were allowed by the base zoning the variance was not being used the code requires three years of
discontinued use we have decades and there is no evidence to the contrary zero not a shred of
evidence to the contrary in addition the rental license lapsed in 2018 seven years before the
permit was issued that alone establishes discontinuance the law department attorney
attorney and opposing counsel will talk about the need to show intent.
They are wrong.
They are wrong, flat wrong.
But before I explain the applicable law, I want to touch on how the application was
mishandled by the city and the applicant.
As you recall, L and I flagged this application of having a problem, that is the city saw the
lapse rental license, and so the city asked the applicant, Mr. Chen, to submit an affidavit of
continuous use. That itself was error. Nevertheless, Mr. Chen, after
That itself was error. Nevertheless, Mr. Chen, after owning it for less than six weeks,
swore out an affidavit that the property had continuously been used as four units for 85 years
and never discontinued for more than three of those years. It was arbitrary and capricious
for L and I to rely on that affidavit. As the affidavit indicated ownership for less than six
weeks there was necessarily a lack of personal knowledge of the facts being asserted and l and i
accepted it without scrutiny the l and i examiner was so flippant about it in my recollection of his
testimony when i asked what he thought of the photographs that were also submitted he said the
photos were not a factor in his decision all he cared about was that the affidavit was in place
I would say, Mr. Chairman and members of the board, Ellen, I should, of course, look at the
affidavit and say, well, this is all good and well, but I need an affidavit from the previous
owner. This guy only owned it for six weeks. Can't own its face. Doesn't make sense.
Moreover, the affidavit was false. The condition of the property, severe deterioration in
inoperable systems and appraisal stating stating the property was uninhabitable makes it clear
that makes that clear Mr. Chen had notice from neighbors from the RCO from the Zillow listing
which flagged the discrepancy yet he signed the affidavit anyway I now turn to the error of law
The city relied on 14305.5, which applies to nonconforming uses.
In those situations, nonconforming uses, I agree.
There is statewide court precedent based on constitutional principles that discourage taking away someone's nonconforming use without looking for an intent to abandon.
often evidenced by overt acts but members of the zoning board 3055 is the wrong section of the code
and all those cases and arguments are inapplicable to the case before you
ms pritzker used the word uh non-conforming many many times today mr chairman members of the board
this case has nothing to do with non-conforming use. Nothing. This is a variance case. A variance
was granted in 1940. And a variance, if you don't use it, you lose it. None of those
constitutional provisions, none of those bending over backwards to try and find intent is applicable
to the question of when does a variance lapse.
I couldn't find several of the cases cited by opposing counsel,
even trying all sorts of variations on the citations.
But that said, I don't contest the legal principles that were being advanced.
I'm simply pointing out that those principles apply only to cases of non-conforming uses,
not to variance cases.
This case involves a different section of the code,
a section of the code cited in our petition for appeal.
The only section we cited in our petition of appeal, 30310.
30310 is called lapse of permits and approvals.
And none of the arguments cited by opposing counsel apply to cases involving a variance
or to this section.
There's no statewide jurisprudence.
we simply apply 30310 as plainly written by city council. And it's clear, a variance lapses after
three years of discontinued use. And discontinued use may be shown by a number of things. The first
thing city council says is discontinuance of operations. We have 40 years of that.
Second to last, lapsing of permits or licenses necessary to operate the use. We have that. The rental license lapsed seven years ago. It's as clear as day.
Look, it's fine that LNI flagged the problem and asked the applicant for more information
and to fill out an affidavit, although the form of affidavit is for a different program,
but the end result here at the board is the same because LNI's reliance on a facially
contradictory affidavit was arbitrary and capricious.
contradictory affidavit was arbitrary and capricious and as i said mr chair the affidavit
is false which is precisely why the code provides for this appeal process to avoid permits issued
on an incorrect fact i'll finish up quickly mr chair and members of the board
the city and opposing counsel's reliance on the wrong section of the code and clearly
inapplicable case law is legal error. I mean, you saw the printout from the Eclipse system
where the city was pointing to the wrong section of the code, not this section, but was pointing
to the non-conforming use section of the code. But even Mr. Chairman and members of the board,
even if overt acts were required and they are not, we have them. The lapse of a rental license
for seven years is an overt act. Covering three of the four doorbells with duct tape is an overt
act. After electricity is turned off on the upper floors, it's an overt act to string extension
cords all over the house. After the heating goes off, the placement of space heaters is an overt
act. If you want the best evidence of intent, you have 40 years of it. My adversary in her papers,
and she alluded to this earlier today, cites the case law where the courts have questioned
a property owner's intent when the owner was renovating and it took a little longer than
three years, or when the property owner was in the hospital for an extended period of time.
That's not this case. 40 years is not an accidental or temporary delay. It is the definitive record
of the owner's intent this is a straightforward case the variance lapsed four decades ago
the permit was issued in error and we ask that it be voided thank you thank you
thank you so uh the city's position is that here if the city had denied this permit
and the owner the applicant had been the appellant here sitting next to me um based on the record
available the city would not have had a basis with which to defend that denial
the only appropriate decision that the plans examiner could have made here was the one that
he made every piece of city evidence for the past 80 years indicates that this property was
and still is a four-unit property in order for a use to be abandoned there needs to be both intent
and actual affirmative abandonment i don't believe that either of those exist here
Obviously, Mr. Wilson, I believe his name is, is not here to speak to the intent, but I certainly don't think that there's affirmative abandonment.
The fact that the property is in disrepair, I think is fair to say, but I don't believe that that's sufficient to prove that he intended to remove that use.
He never he knew how to obtain permits and did obtain permits to renovate the property over time, but never obtained any permits to remove any of the cooking facilities gas meters change any of electricity anything like that.
Pennsylvania case law is clear that abandonment requires overt acts, and it just isn't present here from the city's perspective.
um the existence and an expiration of a rental license for one unit does not mean that those
three three other units necessarily fall away it means that those three units are vacant that
happens all the time um allowing the property to be used uh excuse me um physical vacancy does
not abandon a use the photographs I think speak for themselves um and as it stands the property
is in the condition albeit a poor one of a four unit dwelling uh four unit dwelling space and
And again, that's something that's confirmed by every piece of city documentation that we have access to dating back 80 plus years.
So as a result, we're asking for the permit to stand and for the appeal to be denied.
Thank you, Rachel.
Rachel, you're muted.
All right. Thank you. I think what we heard over the last number of hearings for this is sort of a lack of an ability to provide any unequivocal and and most importantly expert testimony
to show the legal factors that are required by the law, whether Mr. Boney wants to state that
this was a variance which was granted by the board and then issued a permit, if we even held
that to be true, a lapse of a permit means that you don't obtain work or the use commencing within
a period, often six months or three years under our code. This permit not only was commenced after
he got a zoning permit but had continued that use as you've heard from the record the last
number of of sessions he also received building permits obtained other building
uh building permits obtain other building permits for the work um which all again run with the
permits for the work which all again run with the
land uh none of the rights granted run with an owner they all run with the land they run with
the property um in addition to the fact that when this was applied for no zoning permit was asked
for we this is basically them stating we should have had to get a zoning permit but again if you
notice in the record it's a building permit in which they used to file this appeal on so again
this permit never lapsed um it actually work was continued and commenced and again he received
rental licenses which he wouldn't have been able to do over the years without getting a building
permit which means that the the zoning permit that this was originally granted on never lapsed
it became non-conforming when the base zoning of the property was changed as happens in the city
all the time and it became rt1 as opposed to um any other use i don't know if it was rt 180 years
ago but i think that's a newer zoning classification based on 2020 2011. i think it's also important