civus
Hearing video

ZBA Hearing - March 22, 2023

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

correct and you were there uh prior to 20 march 2020 when they operated 60 plus hours a week is

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that right? We've owned this property for over 20 years. Okay. So you felt the impact when they

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were there operating at 60 plus hours a week. Is that right as a sit-down restaurant? I am very

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aware of the activity and the impact of the business. Okay. Thank you. And since they've

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curtailed their hours down to 20-plus hours and changed their business model.

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How has that impacted you as someone who lives right there?

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Actually, as a neighbor, we are happy because it's a very popular and busy restaurant.

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And to have people leaving at 2 o'clock in the morning out of a bar in a residential neighborhood,

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it can be disturbing.

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and difficult to be here. So, the cut in the late night hours, I think, is welcomed by most of the neighbors.

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But what about the takeout portion that they've decided to operate?

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When they first started the takeout, you know, the pandemic was hot and heavy,

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And the people were lining up on the sidewalk on their side, standing on their exes, mask on.

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And there seemed to be a lot of confusion about where to actually pick the food up.

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And we were supportive in the respect that we would actually help people because the place, you know, had three doors.

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So we would help them and point them to the rear door at that time.

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And we weren't really opposed to it because we understood what the situation was.

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So during 2020, all of 2020, all of 2021, much of 2022, you certainly understood that this was one of the many food and beverage establishments in the city of Philadelphia that needed to operate under sort of extraordinary circumstances.

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Is that right?

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That's correct, yes.

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Okay.

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And therefore, you were aware of the prohibition on the side window and the side door as conditions preceded on them receiving their original use permit for a restaurant. Is that right?

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Absolutely. When this restaurant wanted to open, or at least when they applied,

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The restaurant wanted to open, or at least when they applied, for the addition on the back of the building, I was involved with Queen Village neighbors and the immediate neighbors in working with the owners of the building, and I believe that was 2013.

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And they wanted to reopen the building and expand the building to the full footprint of the property.

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We were very concerned as neighbors about them expanding.

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They wanted to have open windows and do like a glass enclosure and that kind of thing.

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And so we worked with the owners and their attorney, and we hacked out a proviso that the windows would be inoperable and the back door would only be used for an emergency exit only.

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Objection. There's one problem, Mr. Chairman.

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they entered into they entered into a proviso that says in part the proposed proposed side

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door on the new addition is for emergency exit use only and we'll have an opening alarm installed

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and there is confusion here because there is a rear door on the building that existed

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and has existed since at least way way way before this came to the board that door is still there

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that door is used. There was a proposed door that never got built that was the subject of

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the proviso in 2013. That door never got built. That was part of the addition. And there is

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confusion here with respect to that. There is a rear door in the building that is used,

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that is presently used. They use it for ingress and egress. They have trash come out of there.

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They have employees go in and out. And that has always been there and always been used.

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There was a proposed door in 2013 that was never built that had a limitation on its use, but that door was never built.

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So, yeah, I just, it just to me.

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Mr. Anastasia, do you want to respond to that?

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I could respond to it by continuing to ask the witness questions, of course.

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Mr. Damis, was it your understanding that, and everyone's understanding, that there should be no side door used for takeout activity?

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correct objection objection because that's not what the proviso is about

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whether the door exists or uh or if it's an old door or a new door i believe it's was the all the

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parties understanding that no door or window on fulton street would be used for takeout business

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is that right mr damas that's correct and by the way that blue door was not part of the original

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plan that was installed after the addition some years later it wasn't part of the original

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proviso and so by adding the blue door and an extension onto that back area where they keep

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the trash that's the new back door as far as i'm concerned if that door that door mr chairman has

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been there way before we have photos if there's two doors behind there because they or or one

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other door. They built that connection with the little glass hood afterwards without permits. That

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was not part of the original permit process. Mr. Chair, I think we're talking about a difference.

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It's a distinction without a difference. I think QVNA, the near neighbors, the bottom line is

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my understanding is this activity on the side, period. The witness is saying he believed that

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they could not use the door or the window and that's his that's his understanding right and

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that's and that's attached to the permit and that's how they've been operating until the

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pandemic hit is that right mr damis that's correct because the restaurant owner didn't

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use that rear door for takeout prior to the pandemic did they no they didn't of course

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they didn't because they knew that it wasn't permissible is that right correct objection how

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does he know what the owner knew in the ghost we spoke with the owner about this multiple meetings

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my objection all right all right please proceed thank you mr damis anything else before we we

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wrap on on your testimony um yeah 12th street and 2nd street are um residential streets there's

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nothing commercial for a block in either direction this is the only commercial property it was zoned

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residential up until about five or so years ago and then it was upgraded to a cmx1 um there are

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historic houses on fulton street and on second street um there's no parking for meters there's

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for meters there's no loading zones there's no place for the cars to go other than to stop in

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there's no loading zones there's no place for the cars to go

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the middle of the street or in the intersection and and to get out of their cars and get their

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food people it's a very popular restaurant we know the food is great people come from all over

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all over the city and suburbs and they drive in they have nowhere to go and the people that are

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the foot traffic they're sitting on the four but there's so many people waiting for food

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and for so long there's four benches on the side of the building those four benches exist so that

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patrons that are waiting can can wait for that that door that blue door we're talking about

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is less than 30 feet from my front door while people are hanging around and the cars are running

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They're looking in my door. I can't open my windows. The noise, the traffic, the horns beeping.

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Last week, the police had to be here because of the Uber delivery driver who just wouldn't stop blocking Fulton Street.

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It's just an ongoing nuisance.

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Thank you. And for the record, you support the sit-down restaurant to remain as it is without the take-out activity. Is that right?

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Absolutely. I'm pro-restaurant there and in many other places. Yes.

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Thank you. And the permit that they're operating under with the provisos that prohibit the take-out window and door, you would be willing to continue to support. Is that right?

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Absolutely.

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Thank you. I have nothing for you.

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Mr. Mattiani. Mr. Chairman, may I share my screen? Sure. I'll be happy to.

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Thanks. Okay. Mr. Damas. Yes. Yes. Okay. I noticed in the QVNA letter they did say

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that isn't it correct

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that there's no prohibition

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on them having takeout

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at the restaurant.

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Isn't that correct?

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That's correct.

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Okay.

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Just want to make that clear.

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Let me go down.

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Oops.

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By the way,

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there was no application

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for takeout at the time,

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which is why it's not there.

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And as was stated last time,

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it was not part of the program

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that they had envisioned

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when they opened the original restaurant.

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So this is the plan that was presented in 2013, correct?

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Yes.

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And as you can see, you had a row of windows.

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And you had a door.

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You had a door.

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And you also had another door in the back, correct?

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Right.

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And the proviso was respect to this door

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because these doors have always been here.

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Isn't that correct?

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That's not true.

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In the very rear of the building used to be a garage, so that's the stucco part of the building, and you can see that juts out, and that's an old garage that was built and then added to the restaurant at a later point.

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That silver door you see is the door that they're using that now exits to the blue door.

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Since they changed the plan and they didn't add the door where it was, it shouldn't change their arrangement with us.

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I mean, if they would have moved it three feet off to the east or west, it wouldn't have changed the plan.

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So by moving their exit door to the rear of the building, it shouldn't change their arrangement with the neighborhood.

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Isn't it correct that this door has been here, this second door, has been here since at least 2011, as shown by the photograph?

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This was not subject to the proviso.

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The proviso specifically dealt with the new proposed door along with the windows right here.

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Correct.

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But they moved the door to the back, Mr. Mattione, let me answer.

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That blue door that you see in the back is the new door.

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Because they didn't add it where they had it on the plan, let's put it this way.

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They changed the plan without coming to us.

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So where does that put your client?

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So that means that the assumption is that they move their door to the side rear, which is where the blue door is, and that should be the same plan.

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these are the plans you have to have a back door they moved it they moved it down 20 feet

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it's the same thing okay okay let let mr matty only ask your questions and mr domas

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It's the same thing.

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Okay, let Mr. Mattione ask your questions.

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Mr. Thomas, when you look at the plan for 2013, it is incorrect that there were going to be two doors on the Fulton Street.

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One in the middle, which was the new door, and the rear one, which is the existing door that has been there for a long time.

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Isn't that correct?

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By the way, the one in the middle was there, and it's still there.

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it's a peach colored door and it's not operable at this time but that door was there

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and they made it inoperable because they closed over it on the inside

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okay so they they changed the plan because they changed the plan should not give them

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the right to do whatever they want sorry no and they're not seeking to do that i had one other

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one other

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yeah that's true your picture doesn't show the blue door

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the blue door is here

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this is the back door

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they have covered doors and the doors behind it

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this is where the proposed door was

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right here

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no the proposed door

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no because that is not the proposed door

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that is a different door

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if we go back to the plan from 2013

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you will see

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let me find you will see that the the pink door is over here in the existing building

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the proposed door was in the addition when you go down to the photo you will see

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you will see that the addition has no door on it there is no door on the addition and that's

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where the proposed doors there is a door here hidden by the telephone pole that goes to nothing

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as you said it is blocked off on the inside and you don't know that there's a door there you only

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see it from the outside this is where the door was so because it was never built that door was

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never built is there a question is there a question here yes that's the question i have no further

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let me just look at one thing mr chairman um i just have one other question isn't it also true

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that you only recently moved into the property at 784 south second despite having owned it for

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more than 20 years. I object. That's not relevant, actually. I believe it is. They're there now.

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It's true. Okay. And we've been here before. So we've been in and out of this place.

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I'm trying to. Okay.

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And I have no further questions, Mr. James. Thank you. There's a brief redirect. Mr. Damis,

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You do live at the property in question, right?

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Correct.

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And you did personally circulate petitions in opposition and secured the signatures of just about everybody on your block.

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Is that right?

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That's correct.

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In opposition.

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Correct.

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Okay.

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Was the – and just to clarify, because, you know, blue door, pink door, it seems like a red herring to me.

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Was the purpose and spirit of the proviso to prohibit takeout service on Fulton Street, be it a door, be it a chute, be it a pink door or a blue door, was the purpose and spirit of the proviso by the RCO to prohibit takeout service on Fulton Street?

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Objection.

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I don't know how he can know what this proviso, what the RCO intended.

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He negotiated it.

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So here's where we're going to be.

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He can give his opinion.

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He negotiated the deal.

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He would know what the purpose of the proviso was.

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Let him answer the question.

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The idea was we did not want the neighbors on Fulton Street to be disturbed with the noise coming from the restaurant

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by the back door or the windows being operable any time during opening hours.

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That was really the idea.

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Regardless of where those doors were or what color they were,

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it was the activity that everyone was trying to limit.

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Is that right?

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Correct.

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I have nothing further.

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I have one final witness, Mr. Ian Toner.

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Thank you.

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mr toner has been about to speak okay hi mr toner could you state your name and spell please

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for the court reporter yes ian toner i-a-n-t-o-n-e-r right do you swear or affirm to tell the truth the

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whole truth nothing but the truth yes proceed counsel thank you mr chair very briefly mr toner

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Thank you, Mr. Chair. Very briefly, Mr. Toner, can you please explain your expertise and your bona fides as an architect and designer?

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can you please explain your

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Sure. I'm an architect based in Philadelphia. Been running our office for 13 years, and we've worked on projects all over the city.

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