civus
Hearing video

ZBA Hearing - May 4, 2022

Philadelphia Zoning Board of Adjustment (ZBA)May 4, 20225h 13m

Thank you. So as far as the use of the driveway goes, it's our contention. We understand Mr. Master's position and his client's position is that that can't be used for, you know, egress of the tenants and people who reside on the property.

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I think that might be reading too much into what the proviso from 2017 meant, but even if that were true, that is primarily a matter of enforcement.

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The existing curb cut for that driveway can remain, and that was part of what was allowed by the Commonwealth Court, Mr. Masters' issue, I think, with that really has more to do with who enters and exits on Tulpahawken.

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because the other portion of the proviso was a curb cut on Topohokin only, which, again, was kind of ambiguous or even contradictory.

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But that's, again, an enforcement matter.

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So we don't think that there is anything invalid on the face of the permit that was issued based upon the plans that were submitted.

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Now, if he's going to say that there's something wrong with the plans that were submitted, that's not for L&I. We take a plan that's stamped and sealed by the architect or engineer at face value. We don't go out and do our own measurements. That's simply not practical nor possible for the department to do.

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On the base of the plans that were submitted in the application materials, the approval and the permit is fine.

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Mr. Chair, I misunderstood your question to me in the beginning.

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Mr. Chair, I misunderstood your question to me in the beginning.

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I did not know that.

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I did not know that we were doing opening arguments.

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I thought we were doing...

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No, no, no.

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I don't think they...

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Maybe went a little bit further, but the fact of the matter is I'm trying to get a sense

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of where we stand.

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Right.

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What could we possibly accomplish this?

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Sure.

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So I do want to give you more information on that because I was unreasonably brief in my

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comments to you as trying to be concise.

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um we we have two um our appeal is based on two issues that we filed in our application for

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appeal one is that the plans that were submitted to lni on their face violate the court the

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commonwealth court's july 2020 uh 2021 order because they in fact unlike what mr phillips

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just told you, they have three curb cuts on the plans that they submitted in 2021, not one. They

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still have the two existing curb cuts that were on the 2017 plan, and they have a third curb cut

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that now extends the driveway. We also argued that the plans violated a stipulation that the

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city of Philadelphia and the objectors entered into in the Commonwealth Court proceeding.

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Mr. Phillips attempted to strike that stipulation from the Commonwealth Court's docket.

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The Commonwealth Court denied his motion and relied on that stipulation to defer our petition for contempt and to say it was premature, that really what has to happen is that Mr. Bilby needs to put new plans to L&I.

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they need to determine whether they comply with the court's order. And in this case,

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L&I said that they did comply with the court's order, but we took exception to that because

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they don't. And so we are now here before the zoning board on that issue. And we presented

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two questions for the zoning board to resolve today, which is where the amended zoning plans

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presented to L&I include a new curb cut labeled existing driveway, which did not exist when the

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property was purchased and was illegally widened and moved from the previous location where the

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driveway used to have a dog leg. Was L&I correct in finding that the plans complied with a zoning

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proviso that says no additional curb cuts? And the second question is around the landscape buffer

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that Mr. Billy now wants to put to block any tenant access coming in from Topalhawken Street

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to go to their parking spots. Basically, there is a large curb cut on Topalhawken Street,

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which historically has been used for ingress and egress to this property. He wants to put a

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landscape buffer that will stop any tenant from being able to use Topalhawken Street to access

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all the parking on the property. So that, we contend, is a violation of the city's stipulation,

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which says that tenant access cannot come through Pastorius Street. It must come through

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the other avenues of access to the property. And at this moment, the only access is off of

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Tupperhawken Street if they don't come from Pastorius. We further argued that our expert

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witness testimony is essential, as the zoning board has frequently ruled, because what we're

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talking about here, Mr. Chair, is what do these plans actually say and whether the plans have an

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additional cut cut or not. And we need expert testimony for that because that's not something

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that a lay witness is competent to testify before the board. There is a, perhaps there's an LN

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examiner here that Mr. Reuter has brought. We know that we've subpoenaed the Planning Commission

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representative and representative of the streets department. Ah, Mr. Bednar is here. Yeah, so

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they are obviously witnesses for the city, and we need to be able to have our witness to present

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to meet our burden of proof to show that our appeal has merit. In addition, Mr. Bednar,

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who we subpoenaed, was the witness who first offered the proviso, and his proviso

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was specifically about ingress and egress issues. So his testimony is important for this board,

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since many members of the board were not present at the 2017 hearing, to understand what the

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testimony was at that time and what the intent of the board was. But interestingly, Mr. Chair,

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Mr. Chair, the former attorney for Mr. Bill V, Cheryl Gaston, admitted in her argument to the Common Police Court before Judge Patrick in 2018 that there was a clear intent on the part of this zoning board to prohibit the extension of the driveway to Pastoria Street.

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the former attorney for Mr. Bill v. Cheryl Gaff

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and we will present that to you in her transcript so so so my understanding and our counsel's here

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too and she can chime in for me my understanding we're here for one thing did l and i make a

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mistake or not when they issued the permit that that's the only issue that that is the only thing

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you're on and i think anybody who testifies has to testify to that absolutely did l and i make a

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mistake if I could that is our intent uh Mr. Sheriff if I could say something I just want

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to clarify something and and I don't even I have no idea whether the council would agree with me

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on this but it's it's my position that the zoning board doesn't I mean despite how this is all being

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characterized in the context of the commonwealth court's opinion uh the zoning board doesn't have

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any authority to make a determination about whether the zoning permit meets the Commonwealth

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Court's opinion one way or the other. What we do agree with is that the Commonwealth Court did

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return everything back to the original 2017 approval and proviso, and we have the language

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of the proviso. There's a slight disagreement about what the proviso actually means per se,

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But that's the issue here is does the permit that was issued, the current zoning permit, does that current zoning permit conform with the 2017 approval and proviso, original proviso, because there were two, the original proviso of the zoning board from 2017?

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I would rather not couch this in terms of whether or not the city or the parties or anybody is in compliance with the Commonwealth Court because this zoning board has no authority to make any determinations about what the Commonwealth Court said or didn't say.

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we can all stipulate that the commonwealth courts essentially said everything goes back to the 2017

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approval and proviso and what so again just so we can narrow the issue so what the board is just

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the single question the board the mistake or the lack of mistake goes to is this permit consistent

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with the 2017 approval and proviso original proviso uh so and that so that just to clarify

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that so we would we hillary hillary do you want to talk get into this conversation yeah so i i

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personally need a little bit of clarification here because the proviso that i read from the 2017

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decision has different wording than what the what's in the court's opinion which has different

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wording than what's in the stipulation so i just want to be clear as to i don't know if it would

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be ellen i's position or what the parties have agreed on um is is the actual proviso at issue

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in this case because that that is unclear to me at this time if if i could uh mr chair well i i

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would have talked to mr mr ministers i will get to it go ahead leonard okay

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oh no remember you're trying to talk or no that's okay michael go ahead yeah i just wanted to quote

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from the commonwealth court order i could even pull it up but it it states it acknowledges that

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the proviso says no parking on pastoria curb cut on tulpa hawkin only then the the court goes into

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what was actually said at the hearing in the next sentence and this is for me is the most operative

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sentence because there's no argument that where there's no parking allowed on pastoria but it

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says accordingly there is no doubt that the zba's proviso was intended to prohibit additional curb

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cuts on pastoria street with the word additional in bold that's part of the commonwealth court's

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opinion so it is our position that the proviso prohibits parking along pastoria and additional

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curb cuts on pastoria based on the commonwealth and that's and that's it so i could just

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just a second mr master if i could just follow up i had previously indicated to the zoning board

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and to ms emerson just as recently as the other day that we didn't believe that the commonwealth

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Court actually clarified what the meaning of the proviso was. I would amend that statement a little

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bit by saying, yes, the Commonwealth Court said what it said, which is exactly what Mr. Phillips

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just repeated on the record here, which is exactly, you know, that the intention of the

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zoning board in 2017 was to not allow additional curb cuts on Pastorius. The problem is, which the

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Commonwealth Court did not address, not because they made a mistake, but because it wasn't before

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them, but I think it is now being raised here, is what were the original, what

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but I think it is now being raised here, is what were the existing curb cuts at the time

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of the zoning board's case in 2017? And that's where the dispute is. And that's what curb cuts

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existed and where were they? And that's what is not resolved. That's the challenge, presumably,

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that's being raised by Mr. Masters. And what we would say for the city's part is,

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again we go by the application and plans that are submitted to the city the plans that were

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submitted to the city showed on the plans that were submitted to us say existing curb cut existing

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curb existing curb cut that's signed and sealed by an engine by an architect we take that at face

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value excuse me council excuse me council excuse me council mr chairman is it possible is it possible

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to have a site plan shown on screen uh i have i have all of those in my exhibits that i could

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that i could easily do um and and for sure i i just did wanted to um before i did that mr hellman if

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it's okay i wanted to go through the in the commonwealth court um once they made their ruling

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um to reinstate the proviso um we brought a petition for contempt against mr bilby

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and in that proceeding um the commonwealth court asked us to file status reports and so the status

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reports that were filed between um the objectors um mr bilby and and the city do um do talk in

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terms of what the provisos uh what what we could agree on and what we didn't agree on or what the

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provisos um mean and the city and and the objectors uh came to an agreement uh for the meaning of the

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provisos that that were made binding on the department of licenses and inspections so i think

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it's important for the for the board to see that in addition to to looking at the at the drawings

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But that's also the purpose that our expert witness, Nancy Templeton, is here to give her opinion and to walk us through not only what the plans show, but the testimony and the testimony of the witnesses and the comments made by the chair of the zoning board at the time and the members of the zoning board are very, we submit they're very critical to help you understand

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Why it was that the zoning board, in their initial proviso, said that there would be no ingress and egress from Pastorius.

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They said no curb cuts on Pastorius, only curb cuts on Topahawken.

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And then at the very end of the hearing, after the vote was taken, the attorney for Mr. Billy at the time said, well, you understand there's a curb cut already on Pastorius.

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She said there was one curb cut, but apparently there were two.

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And then the chair, Mr. DiCicco, said, well, no additional curb cuts. But there literally was no conversation, no testimony, no deliberation up until the very last moment of that hearing about anything about any curb cuts on Pastorius.

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So the context of it is important, and we understand why Ms. Emerson is somewhat perplexed, because this board attempted to correct the ambiguities in subsequent votes, but all of those votes were determined to be invalid because the zoning board didn't provide for another hearing where all the parties could come and have due process.

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they did a revote without a hearing um we do submit though that if you look at what they said

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in the revote what this board said in 2017 in the revote in november you will you will see

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that it's consistent with what the intent was of this board all along which excuse me council

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excuse me council i i understand but it would be helpful to all of us for a site plan sure

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So while we're pulling it up, can I just say one thing?

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Wait a minute.

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Hillary?

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Hillary?

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Yes.

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So let me – I'm not quite getting the answer that I need to understand because I think it's challenging to discuss what the meaning of the proviso is if we don't know what the exact wording of it is.

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And I think I should reword my question and say, what does L&I recognize as the proviso in this case for which it reviewed the plans against?

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Because, like I mentioned, there are three versions of the proviso out there, and I am not sure which one L&I is functioning with in terms of reviewing the plans.

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So, L&I is referring to the actual provider, so the

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L&I is referring to the actual – so what was said on the record is very interesting and all, but what matters is what was actually put in the decision of L&I.

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So in the decision of L&I – I mean in the decision of the zoning board, sorry.

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The decision of the zoning board is, again, no additional curb cuts on Pastorius, curb cut on Topohokan only.

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um so it was again so we we believe that the and again i think the board wants to see a copy of

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the site plan for the current zoning permit because it's our position that that is the only well

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i have it but i wanted to but the city entered into a stipulation saying that the proviso

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was and i have it up on the screen now immaterial no parking on pastoria street parking curb cut on

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top of hawkins street only no additional curb cuts on pastoria so the word parking um concerning the

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top of hawkins street is a point of contention where mr phillips believes that the word parking

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doesn't belong there but when we look when we look later at the actual transcript from the zoning

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board they said parking curb cut on top of hawkins street only they didn't say curb cut

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again the transcript's not relevant what matters is what was that we're not i'm not walking away

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from this i think the permit that we issued comports with this but i do believe that ms

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emerson wants to see a copy of the current site plan so mr masters you can either put that up

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all right so you want the current site plan from 2021 that was submitted to lni

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yes and i believe the the streets plan is also relevant and if i could just state one thing well

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the streets plan actually is is pre it predates the commonwealth court's decision and it includes

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It's parking along Pistorius, and it has all the curb cuts.

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I have not cut you off.

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Gentlemen, one at a time.

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We have an October 2021 streets plan that was approved.

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I want to reiterate that there were curb cuts.

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There was proposal for everywhere where you see paver patio, there were proposals for curb cuts and parking there.

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That's not allowed now under the terms of the Commonwealth Court's order.

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So, therefore, the only curb cut that would be permitted is the curb cut to provide access to the existing driveway.

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That's the only purpose for any curb cut on Pastorius right now.

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There would be one curb cut that provides access to this existing driveway.

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So, therefore, if there's an issue with enforcement or what is shown, again, the only curb cut that provides any functional purpose is the curb cut that provides access to the existing driveway.

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So, I do not know, unless Mr. Masters' issue really is just with a technicality, why, you know, we're here over one legal driveway.

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We're here to provide access, because otherwise, Mr.

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I'm sorry, I'm sorry.

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Wait a minute, wait a minute, everybody, wait a minute, wait a minute.

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Thanks, Tanya.

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Mr. Phillips, finish up.

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Sure.

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I was just going to say, the only purpose for any curb cut on Pastorius right now, since

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there can be no parking there, is to provide access to the existing driveway.

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That is the only functional curb cut that exists, and that's the only functional curb

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cut that is proposed.

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Well, here is the plans that were submitted to L&I where they show three curb cuts. We have

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an existing curb cut that is right here with the angles of a curb cut. And then there's the

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second existing curb cut, which is right here. These are the two curb cuts that also appear

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on the 2017 plan. And this is the third curb cut. It's not labeled a curb cut,

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it's labeled existing driveway to remain and it shows uh the curb cuts uh what which i'm showing

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in with my uh with my cursor um we have uh when you look at the photos um you'll you'll see that

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in 2017 when when this case first came before the zoning board there was actually no curb cut

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that was existing here there was a utility pole that was in the middle of this and the driveway

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is clearly an existing driveway but it as you traveled on this driveway towards pastoria street

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you then once you once you went past these buildings you did a dog leg and you came out

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the existing curb cut here this curb cut did not exist in 2017 and that is why it was an error

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of for for lni to approve this because these two curb cuts remain on the plans and this is a third

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additional one um there was no indication on the plan that these curb cuts would be would be removed

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would be removed in fact if they wanted to remove it they would have done on the plan what they did

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in fact if they wanted to remove it they would have done on the plan what they did with all of

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with all of the additional curb cuts that they were putting here and they would have removed

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them and they would have had a solid curb restored for the entire length um but they didn't they they

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they were those curb cuts remained and they have this one as an additional one but in addition we

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now have the landscape buffer that's in this section which which perhaps which prohibits

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any access from Topohokin into the property beyond these three parking spots, which is for

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