Mr. Bilby himself and his family. Every other parking spot for all the tenants is on the other
side of the landscape buffer that is not accessible from Topohokin. So those are the two issues that
we're here about. So excuse me, Councillor, so what are you objecting to?
This curb cut here is an additional curb cut that violates the zoning board's proviso.
This landscape buffer violates the zoning board's proviso because the proviso says parking curb cut on Top of Hawkins Street only, and that we will introduce testimony to show,
and also the city has agreed in the stipulation that that means that that the the ingress and
egress for parking purposes on this property um must come from topo hawkins street and the only
uh the only ingress and egress that would be allowed from any of the existing to existing
curb cuts on pastorius would be for temporary purposes service vehicles emergency vehicles
that's what the zoning board uh when when you revoted in november 1st of 2017 that's that was
put onto the onto the notice of decision so but the clear intent was to not only not have parking
along pastoreas but to not have traffic along pastoreas so so here here's my here's where i'm
missing it it's not about the zoning board it's about l and i right well no the zoning board is
the only body that can review an error that l and i makes l and i made a mistake and they should
But I mean, we haven't got to that point that they made a mistake is what I'm saying, right? I thought this was to say, did they make a mistake or not?
They granted the permit. They granted the new zoning permit. And we say that that was in violation of the proviso. And the zoning code has two provisions that tell L&I that if there's an existing proviso that in any way restricts anything on a property, L&I has no authority to disregard that proviso and to approve a zoning plan that's not in compliance with it.
So the only one who can enforce that is, at this stage, you, as the zoning board, you get the appeal that we brought from L&I, and you say to L&I, you made a mistake, you should have issued a refusal.
But that's what we're trying to get to. Leonard, how do you respond to this?
Well, again, I agree that that's what the zoning board is here to determine, is whether or not L&I made a mistake. But Mr. Masters is saying L&I made a mistake because his position is that L&I made a mistake primarily because this – well, you can't see where my cursor is, but where it says existing driveway to remain, he's saying we made a mistake because that was not an existing driveway.
in curb cut but it's what's on the plan again the plans examiner doesn't go out and do a site
inspection we would never get through the thousands upon thousands of zoning plans that
are submitted to the city we accept this at face value if mr masters is saying the plan that was
submitted to the city is inaccurate that's fine he can make that argument and we agree this board
can make a determination about whether that plan was inaccurate and if that's the case then this
board can say that the zoning permit could be revoked. But I just want to make it clear
that it's not a mistake that L&I made if that's the case. It's a mistake or an error in the plan
that was submitted. It may amount to the same thing ultimately, but that's why I believe
that testimony is not really relevant here because this is the plan. Well, not this. This is the old
plan i don't know why this is up well this is up this is a land because this shows that in this
in the extension of the driveway it shows it's a new curb cut for the driveway because there was
a landscaped buffer that was here and there was a utility pole and where the existing curb cuts
were were here and here which are which remain on the new plan but this is the 2017 plan that
clearly shows that this was part of a new curb cut, as were all of these other curb cuts along
Pastorius. Right. And I think, can I pull up just the streets approved plan from October 2021 that
corresponds? Because I think it'll add a lot of color to this and really. Is it this one? Because
Is it this one? Because this one is the one that we received from Mr. Montanez, sorry, with the photos.
this one is the one that we received.
No, that's not it, because that's the one that proposed the parking.
This streets plan, which is stamped October 18, 2021, by Benjamin Barron, does not propose, this is without the parking proposed.
and i think it really will cut to um i'm sorry yes could you please take down yours
thank you you can proceed mr phillips okay thank you
okay so this is the streets plan from 2021 and as you will see it says paver patio
paver patio paver patio there's only one curb cut that so by the language of no additional
curb cuts, there's no dispute that there were two curb cuts at the time. And this streets plan,
again, proposes one curb cut to access the driveway. Now, whether that curb cut that was
over here needed to be modified or there were discussions with streets department of how
to best for safety and access purposes, this driveway and curb cut would function and interact
is a separate issue from whether we have additional curb cuts.
The only purpose for additional curb cuts previously
was to provide access to parking
because that's all a curb cut does.
It provides access through the sidewalk for parking.
That is not proposed here.
It is only proposed to happen on the existing driveway.
So there's one curb cut that functions at the property.
At the time, there were two.
We're at one.
two does not one is not an additional curb cut to two and that's where we are so mr chair this is
not the zoning site plan that was submitted to lni this is submitted um later to actually perform
the work of creating the curb cuts to the streets department the zoning site master
Mr. Masters, give me the floor for a minute.
Hillary?
Hillary?
Yes, I'm here.
Approach, ask Leonard the question.
So, Leonard, so we're trying to figure out what, if this is something,
if there's allegations that the plans do not accurately reflect the conditions or the proposed
conditions is this something that should be sent back to l and i for review first rather than the
board making a decision Leonard you're muted question is uh you know are the were the plans
that were submitted to ellen i accurate or inaccurate i i do actually believe that this
board has the authority to determine whether the plans that were submitted uh for this current
permit were accurate or inaccurate that'd be number one if you deserve to determine that
they're inaccurate then i do believe that you could uh remand the you know say that well
basically i think you could just grant the appeal um uh excuse me counselor excuse me counselor
how can this board determine if the plans was accurate or inaccurate by hearing the testimony
of the witnesses that you know the parties would have you know testify about it i mean presumably
but we don't hear from the architect who did decide plan well i don't know if he's here or
not he might be here i mean but but again but the second question is if the plans were accurate
is the use of the curb cuts. I mean, this is Mr. Mast. I'm not supporting his argument,
but his argument presumably is whether the plans are accurate or inaccurate is the current use of
those curb cuts in compliance with the 2017 approval and proviso. And again, I think that's
something that this board has the authority to determine. We've never argued that the board can't
hear this case we're just simply saying you know were the plans that were submitted accurate
that's not a question that l and i determines uh we you know the architect puts their name on
the plans and seals them which is essentially a certification that as far as the architect's
concerned they are accurate so we accept that at face value we don't go out and do our own
site inspection every time somebody submits a permit application that's not possible
uh this and then the second question is where so that that question the city's is like neutral
And then the second question is where, so that question.
if the plans weren't accurate we don't know that's up to somebody else to decide if the
but what is shown on the plans on the face of the plans that were submitted the permit is okay
it's fine because a lot of the issues that mr master's clients are raising with respect to the
use of the curb cuts and stuff it's far too nuanced i mean if they're for parking their
curb cuts, whether they were parking or not parking or whatever, the permit's okay. If people
are using the curb cuts to do something other than park or drive or whatever, and if there's
some way that an inspector can even make that determination, then presumably that just becomes
a code enforcement issue. It's not a question of the permit itself being bad. It's just a question
of are they using the property in a way that is not permitted? So that's an enforcement issue.
So, you know, on that question, we do disagree.
Like the barrier thing that was put in the, actually, the northern part of the parcel, because some of the plans, for whatever reason, are south to north and not north to south.
The one closer to Tulpahawken, I mean, that's, there's no, there's nothing, no reason whatsoever where the city would or could have refused the application on that basis because it blocks the Tulpahawken.
People coming in from Topofahawken can't get to the parking spaces closer in the middle of the property.
I get that's what the argument is.
And therefore, because they can't use that for parking, that's a violation.
Well, I mean, there are three spaces that they can access.
So that's not really, and again, that's indisputable.
So, again, it's not up to a plans examiner or to L&I at the time of the permit being issued or reviewed to make a determination about, gee, are these guys really going to – I mean, what if everybody just goes there and drives and speeds and does donuts?
That's not – you know, it's like it's not – we're not anticipating what behavior or driving behaviors or parking behaviors people are actually going to engage in.
That's just not something that we can do at this stage.
So, you know, again, I think the only real issue is were the plans accurate?
What were the curb cuts that existed back in 2017?
Excuse me, Counselor, is the architect here as a witness?
Mr. Masters, let me ask the question.
Mr. Masters, do you have one witness that could testify to the plans that went that Ellen and I were wrong?
Yes, my expert witness.
Could you put that expert witness on the list?
I would object to the relevance of an expert testifying as to another person's plans to state whether or not those plans are accurate.
What I'm trying to do is, were the right plans sent over? That's period.
Well, Mr. Chair, what we're saying is that if the zoning plans that were submitted that we've all looked at show three curb cuts,
And if Mr. Phillips says that right now they've only asked to build one curb cut along the driveway, he still is authorized to build two more where the existing curb cuts are, and that means that the plans are not in compliance with the provisos.
Anyone can have a zoning plan, site plan that allows multiple changes to a property and then their building plans can go in stages and they can choose to only build or implement a portion of what they've been authorized to do by their zoning permit.
What we're here to do is look at the zoning permit and not at the building permit, which is where the streets department plans are.
and this board doesn't even review the streets department's actions directly. That's for a
different board of license and inspection review. So we're here to review the zoning code, and the
zoning code requires the zoning site plan to be in compliance with the proviso. So my expert witness
will be able to address that but we couldn't speak to to um why why um why it's why the the
those curb cuts are there and and seeking to be authorized for a zoning permit if in the if in
somewhere in their um in their heart or soul they were they were deciding not to build curb cuts
there we don't we don't have information about that we just know that hillary good yeah no mr
Chair, I just want to try and narrow this just a little bit. So Mr. Masters, are you contending
there's an error in the plans or is your only contention that they do not comply with the
proviso? Yes, we have no, we don't know anything about an error in the plans. Our issue is that
they violate the proviso. Okay, so that issue is off the table. So really your issue is that they
that they violate the proviso so then i guess i'm still coming back to to my original question which
violate the proviso. So then I guess I'm still coming back to my original question.
is what proviso language and and maybe um mr reuter you have um an examiner here that can
testify to this what proviso language um was was used to assess whether the plan was in was in
compliance with the zoning board's decision because i'm still unclear at that point and there was a
variance between the three different versions of the language that was used. So I want to be
clear that we're all talking, if we're going to say that, if the argument is going to be whether
or not the proviso was violated by the issuance of this permit, then we need to be clear exactly
what proviso we're talking about, because I am still not clear. Yeah, if I may, the Dowd's
decision, which we quoted extensively in our memo to the zoning board, stands for it's a case that
deals with an appeal against L&I for a property where there was a proviso and then there was a
change, a remapping of the property. And then a new zoning application came in. L&I decided that
the proviso didn't apply anymore because of remapping. And the Commonwealth Court said that
it was wrong of the zoning board to give deference to L&I to basically to say that like well L&I
must have known something as to why they made this decision and we're going to defer to them
they said that the zoning board needs to do its own independent look at whether this zoning plan
that was submitted to L&I complies with the proviso or not and so I would respectfully
submit that whether or not the LNI examiner believed that they had, they probably acted
in good faith, they probably believed they were doing the right thing, but that's really of no
moment to this board because the court has said that it's wrong to give any kind of deference to
the LNI examiner, that you as the board need to sit and adjudicate and look at the plans and say,
does this comply with your proviso or not? That's what the court has instructed. And they reversed
the common police court, which basically upheld the zoning board that said, it's really not for
us to make a call on this. We're just going to go with whatever L&I said, because they must have
known what they were doing. And the commonwealth court said, that's wrong. You need to do your own
independent inquiry. That's pretty much not anything that the Dowd case was about,
but I don't want to get into that right now. I mean, that was my case involved in that case.
Let me, here's the thing. We have a new attorney. I would appreciate if everybody put on a piece
of paper what their positions are. We can't go on like this. Well, I think, I mean, to be fair,
I think that's been done a couple of times already in this case. Again, the proviso,
So everybody, I think, agrees that the proviso at issue is the first proviso that was put forth in the zoning board's actual decision letter, the first one.
The subsequent ones are not relevant.
They were not followed.
The court explicitly threw those out.
So what matters is the language in the original decision letter from 2017, the first, really the only.
Can I just read what I'm seeing into the record from, you know, this is, and Leonard, if I have this wrong, please let me know, but I'm taking this, you know, from L&I's website on their decision history.
But this is how that provides the reads from 2017. Entry, curb cut from four emergency vehicles only, no ingress slash egress from Pastorius, existing curb cut to be removed or physical barrier erected.
that's the original language that's not the original language that's the revote on november
1st yeah and that was okay and that was struck down by the commonwealth court okay that's listed
as the original hearing date well that's too bad um so okay well then i need the language
yeah no of course uh i'm trying to find it real quick real quick being relative uh well we have
it in in the stipulation well but we have it in the commonwealth court july order they directly
cite from it and that's that's the language i spoke to earlier where then they say what does
that language no curb cut mean they say it's clear it's intended to mean no additional curb cuts
that's the commonwealth court's decision that's based on whether or not they were going to strike
down or approve the provisos so it's our position that no parking on pastorius no additional curb
cuts on uh pastorious and that's and that's where things stand and and parking curb cut
And parking curb cut on Tupperhawken only. The Commonwealth Court did issue, did write certain things in their opinion, but we have to look at what the transcript of the ZBA says because they were simply reinstating the ZBA's proviso.
on tupperhawken only that's that's
The Commonwealth Court wasn't creating their own proviso, and they weren't modifying the ZBA proviso. They simply said, we want to clearly state what it is that the ZBA voted on. And when you look at the ZBA transcript, which I will see here.
Hold on one second. Leonard, did you find the original language?
again the original language that i'm looking at is the language that's in the transcript i'm asking
mr phillips do you have the original decision letter i mean i have it somewhere but it's going
to take me half an hour to pull it up i i have i have the the transcript right i don't i don't want
the transcript i want the actual decision the actual notice is what oh the notice of decision
that one that one was was was was it didn't have concurrence of three votes um all right okay and
and so and so the zoning board decided that that wasn't valid okay so this is this is the legitimate
this is this is the transcript then so right that's right i mean this has been going on since
2017. but i have the language in the commonwealth court's decision right here they they directly
quote what the provides well i think this is the accurate here it is no parking on pastoria street
parking curb cut on top of hawkins street only that was mr de chico mr plaza yes with provisor
Mr. Holloman, yes, book proviso, Ms. Gaston said, can I be excused? Then she said, can we have
revised plans? And then she said, you're going to have to, okay, then do you do understand the part
of this that there was already a curb cut on Pastorius, you're saying, and then Mr. Chico
said no additional curb cuts on Pastorius. And that concluded the hearing. So this Commonwealth
court said it was no parking on pastoria street parking curb cut on top of hawkins street only