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Hearing video

ZBA Hearing - March 22, 2023

Philadelphia Zoning Board of Adjustment (ZBA)Mar 22, 20235h 37m

in and we appreciate your input is there anyone else in the virtual audience

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no sir there's no further planning commission thank you chair bergman david fechto with the

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city planning commission the comprehensive plan recommends no change to the residential single

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family zone at this location the proposal for three dwelling units is not the minimum needed

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to afford relief under the zoning code, the proposed multifamily on a single-family zone

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block is out of character and not in harmony with the zoning code.

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The City Planning Commission recommends that the board deny the use of the zoning code.

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Okay. MI 2022-006-429-5777 East Worcester Street. I vote yes with provisor. Use of basement limited storage and mechanicals. No roof deck and trash stored outside the building.

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Okay.

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MI 2022.

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James Snell, my vote is yes, with provisos.

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Ishmael Shaheed, my vote is yes, with provisos.

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Thank you, counsel.

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Thank you.

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I want to go back to number four.

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Let's see, here's a four.

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Yeah, there it is.

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Yep.

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MI 2022-009-184-780 South 2nd Street.

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Michael Mattione is the attorney.

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This is a resumptive hearing.

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And Vern Anastasio is also the attorney for the Protestants.

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Mr. Mattione will be coming back in as a panelist.

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Thank you.

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And Mr. Anastasia will be rejoining his panelists.

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Sure.

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Good afternoon, Mr. Chairman.

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Mr. Mattione, could you state your name, please, and spell for the court reporter?

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Sure. Michael Mattione, M-A-T-T-I-O-N-I.

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Right. Do you swear for him to tell the truth, the whole truth, and nothing but the truth?

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I do.

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I'm sorry, Vern, could you state your name and spell for the court reporter?

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Good afternoon, Mr. Chair. Vern Anastasio, A-N-A-S-T-A-S-I-O.

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Right. Do you swear or affirm to tell the truth, the whole truth? Nothing but the truth.

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I do, sir.

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So this is a resumptive hearing, and our schedule here shows that there will be a presentation by counsel for the Protestants.

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Then we'll take public testimony, planning commission recommendation.

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Mr. Chair?

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Yes. One quick comment before Vern starts.

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I did, I just want to make on the record that we presented a bunch of supplemental exhibits, including a memorandum of law, some plans, the lease amendment and extension, another supplemental report, another letter from award leader, some photographs, support emails, and the photo showing the posting of the zoning notice for this year.

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Okay.

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Thank you.

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All right.

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And Vern, you had supplemental submissions too, right?

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I did. They have been submitted to the board, to Ms. Emerson, and I'm going to be presenting them this evening, this afternoon.

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Fine. Okay.

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Thank you.

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Who's your first witness?

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I want to start, Mr. Chair, just by a brief summary, and then I'll get into the three witnesses really quickly, and then a brief promise.

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Thank you.

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This is a case in opposition to the zoning appeal of 780 South.

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second. We have over 100 and some odd pages of exhibits. Of course, the packet includes

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not only a cover photo and the refusal, letters of opposition from immediate neighbors, from

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Councilmember Mark Squilla, from the QVNA. We have photos that evidence the rear door

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and rear window side door and side window being used um in opposition to the proviso that prohibits

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it we have a list of l and i violations we have signatures of all immediate neighbors in

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opposition we have um evidence of uh difficulty getting into the restaurant if you are a lay person

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and a letter of legal brief in opposition to the variants.

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This is one of remind the board and everyone who happens to be here today

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that financial considerations shall not be considered a hardship

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in analysis for zoning relief, generally speaking.

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Applicants' location was conditioned on no takeout window and no takeout door

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in a decade-long agreement between the community RCO and the applicant that was attached as a

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proviso to the current permit that they're using. Popular restaurants often outgrow their original

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spaces and have to move to larger spaces. The property size and narrow sidewalk, we will learn,

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have not changed in the 10 years that they've been operating.

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There are not unique physical conditions to create a hardship.

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There are not unique physical conditions to create a hardship.

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The applicant...

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The applicant does not own the property, nor do they need to renew their lease.

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There are larger places along commercial operators that would welcome a takeout restaurant.

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If they renew the lease, they create their own challenge.

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They create hardship.

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We have an overwhelming majority of emails in opposition.

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Those that are in support are actually from folks who reside far beyond the immediate area.

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Of the initially submitted signatures, three signers live on Fulton, only three on the 700 block of 2nd Street.

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One of them is a tenant in the subject property.

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Another is a fellow restaurant owner.

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The opponents submit signatures of at least 10 immediate residents in opposition, takeout, opposition from the QVNA,

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and opposition from Council Member Mark Squillow.

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We submitted an additional email of opposition from Mr. Vince Papali,

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again, recognizing that everyone supports the restaurant,

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but they just don't want the takeout classification.

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The applicant does not need the variance for a takeout restaurant, by the way,

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to carry out orders for customers.

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And granting the variance will allow the landlord to replace Royal Sushi with any takeout restaurant, like a steak shop akin to Pat's and Geno's, which obviously nobody in the immediate area wants to see, considering what they're already dealing with.

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and let's look at some of the stuff that they're already dealing with uh traffic congestion

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a block of rights of way uh lots of folks congregating on the sidewalk noise again

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not even being able to get out of there um that there uh there are five ways uh we have additional

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photo evidence. And I'm sorry, it's

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sort of on a slant, but you'll be able to see if you look

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through the exhibits that there is a lot of sidewalk congestion,

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a lot of sidewalk noise, exactly, and even without

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or with the sidewalk seating. It's the takeout

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window and the takeout door, which were explicitly

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prohibited in the provisos that granted

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the variance for them to operate initially a decade ago that is causing the problem today.

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And we're just going to submit this and enter it into evidence as you see it.

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With that, I'd like to call my first witness, Mr. Ito, who is the applicant, appellant, I'm sorry.

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Sir, could you state your name, please, and spell for the court reporter?

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So please raise your hand, your virtual hand, the way to be sworn in.

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Do we see him?

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Mr. Chair, I am not seeing him in the virtual audience, unfortunately.

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He's Mr. Mattione's client, Mr. Chair, so I'm assuming he would be present.

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I don't believe Mr. Ito's present. We have David Frank and Justin Holden, who both testified at the last hearing.

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David is both a principal in the restaurant and the owner of the property, and Justin Holden is the manager of the property.

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They are both present. I believe Jonathan DeWitch is also present.

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Mr. Udo, I believe, is working at the restaurant.

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Okay.

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And I'm sorry, the name of the manager again, Mr. Mattione?

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Justin Holden.

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May I please call Mr. Holden just very briefly?

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Yep.

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He was subject to cross-examination last time, Mr. Chairman.

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Well, he wants to call him as a witness.

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Well, I don't believe this will be long.

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Very quickly.

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Mr. Holden, please raise a virtual hand.

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He's been allowed to speak, sir.

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Mr. Holden, could you state your name, please, and spell for the court reporter?

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Mr. Holden?

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Doug, can you hear me now?

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Yes, we can. Could you state your name, please, and spell for the court reporter?

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Justin Holden, H-O-L-D-E-N.

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Right.

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Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?

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I do.

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Proceed to Mr. Anastasio.

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Mr. Anastasio. Thank you, Mr. Chair. And for the record, Mr. Chair, I did submit Mr. Ito's name as a list of witnesses five days in advance. So just for the record. Mr. Holden, thank you for getting on the stand at such short notice. How long have you been manager of the restaurant in question?

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Thank you, Mr. Chair.

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And for the record, Mr. Chair, I did submit Mr. Ito's name.

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um about two and a half years okay and how long do you believe uh as far as you know how long has

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the restaurant been in operation prior to you joining since 2016 okay in the time that you've

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been there has there been any interior changes to the property or the layout or the size

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or the space inside the property?

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Yes, we did make some changes

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at the start of the COVID-19 pandemic

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that kind of facilitated our required use

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or required switch to more of a takeout-based model

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in the initial lockdown period.

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So the interior space, did it grow?

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or was it this uh how did it change um we changed the use of some space in the back of the restaurant

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near where the window um that is currently not in use uh what we would like to use um to make that

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area have some refrigeration have some shelving we did lose some indoor dining capacity in order

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to do that um but so uh just re re you know rearranging refitting an area of the restaurant

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which we did talk about in december um to facilitate like uh being able to do takeout service

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okay so you rearranged and you you repurposed existing space but the space in and of itself

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the size and the shape that hasn't changed since the time you've been you started working there

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Is that right? The space itself hasn't expanded or shrunk. Is that right?

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We have not gained or lost any space inside, no.

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Okay. Has the sidewalk that surrounds the property been altered in any way since the time you've worked there or since the time that you know of that the property's been operating as a restaurant?

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Not that I know of.

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Okay. And there was testimony or at least assertions given that at some point prior to the March 2020 pandemic, the business was operating at just north of 60 hours per week. Is that accurate still?

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Yes.

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Okay.

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And there was subsequently a reduction to just 20 or so hours per week post-March 2020.

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Is that right?

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Yes.

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At least that's where we stand now.

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Okay.

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Literally, it was less even.

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It was even less than 20.

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Okay.

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Okay. As a manager, you know, as someone who's involved in the business on a regular basis, did you or anyone that you know of anticipate a reduction in revenue when cutting hours by two-thirds?

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I don't think that was honestly much of a consideration. We were always kind of looking to operate in the maximum that we could.

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It just so happens that this is sort of where things fell based on our, you know, like the available labor pool and the kind of quality of life that we feel is now required to offer people in our industry, which is completely different than it was three years ago.

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COVID has changed it, you know, 180 degrees.

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um so yes i think if you asked us at that time would we expect a reduction in revenue um we

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would say yeah logically you could expect that but it wasn't a driving factor or really consideration

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we were dealing with kind of unprecedented times and we were looking to operate as much as possible

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understood so it was a foreseeable consequence

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would you would you categorize it as that reduction in revenue from 60 plus hours to 20

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plus hours a foreseeable consequence that there may be some reduction in revenue yeah of course

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if you ask me that at the time we were doing these reductions I think you know you would

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you would probably assume that but like I said it was not a not much of a point of debate at that

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time. So I can't think of what we were saying exactly back then. Understood. Prior to March 2020,

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Understood. Prior to March 2020, you closed at 2 a.m., is that correct?

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you closed at 2 a.m., is that correct?

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Yes.

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Considerable amount of business done after 10 p.m. with regard to liquor sales, is that right?

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Yeah, I would presume.

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And what time do you close now?

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Either 10 or 11 p.m. based on the day of the week.

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So currently in 2023, you're losing anywhere from three to four hours of liquor sales every night, is that right?

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yes okay and in addition to any late night bar dining going on you've lost those rep that revenue

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as well is that right yeah okay all non-takeout all within the restaurant is that right

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you wouldn't be taking out liquor right correct yeah okay do you know if you if the lease has

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been renewed i believe it has okay do you have a signed copy of the renewal um i think michael

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included it in the exhibits um i don't have it in front of me okay very well uh i have nothing

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further thank you thanks for your time on such short notice i appreciate that yeah my pleasure

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Mr. Mattione, you have any questions?

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I have no further questions, as I believe all those questions that Mr. Anastasio just asked Mr. Holden.

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He also asked him in December.

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Thank you.

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Vern, who's your next witness, please?

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Greg Damas, please. Gregory Damas.

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Hi, Mr. Damas. Could you state your name and spell it, please, for the court reporter?

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my name is gregory damis the last name is d as in david a m as in michael is you swear or affirm

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to tell the truth the whole truth nothing but the truth i do proceed counsel thank you mr damis uh

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you live within just a couple feet from the restaurant in question is that right that's

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