civus
Hearing video

ZBA Hearing - March 22, 2023

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

any kind of food delivery would be um a fanciful wish because it's the way it is done now there's

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still plenty of people that are not comfortable going into restaurants and they're not comfortable

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without getting their food delivered to them um benches that i am almost done the benches that

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you see outside are are put there in order to keep people off of stoops as if they're waiting

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for food if they're early and to keep them off of neighbors' properties. Again, the time to take

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out is very orderly, very thoughtful, and they cannot manage how the pandemic has changed

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clients' expectations for their food. Again, nationally recognized.

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All right. We've heard that. Thank you very much. We understand where you're at.

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I just want to say that the idea that this is a nuisance is an extreme word with negative

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connotations that are not warranted here, and that's where you're hearing support for this

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project, for this variant. Thank you. Is there anyone else in a virtual audience?

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Yes, Mr. Chair. Ms. Kate Hinchman has a hand raised. How many more hands do you see,

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Jason? She's the last one, sir. Okay, thank you. Hi, could you state your name,

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please, and spell for the court reporter? Sure, it's Kate Hinchman, H-I-N-C-H-M-A-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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Are you a neighbor?

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I actually am the closest neighbor.

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I have a wall that's adjacent to the restaurant.

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I'm at 778.

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Are you in favor or against this project?

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I'm against them continuing to do takeout.

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Okay.

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Can I make another comment?

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Because I'm not sure how closely you guys know the neighborhood.

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but respectfully for the lady or a couple of people that have called in if you're at third

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and monroe you're several blocks away um those of us that have to travel on fulton street and

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on second street several times a day are the ones that are impacted not someone that lives

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third and monroe well thank you very much for taking this time to call in okay um

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how about your final wrap-ups here or do you I think I yielded Mr. Mattione for his

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his wrap-up and then I'll quickly do mine thank you thank you Mr. Chairman and thank you members

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of the board for listening to this case extensive testimony presented by the applicant both today

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and in December has clearly established its right to the requested removal of the proviso and

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variants to allow it to use the window in the rear of its building for pick-up and take-out

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service. Prior to the pandemic, Royal Izakaya operated seven days a week, 63 hours a week,

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until 2 a.m. Since being able to reopen, it is only able to operate five days a week, 27 hours,

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until 10 p.m. weekdays and 11 p.m. on weekends. In addition to the dramatic reduction in operating

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hours, Royal Izakaya faces increased costs for payroll and food of more than 100 percent,

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and its profit margin is now less than 15%.

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Testimony showed that without the takeout service, the business is not profitable.

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These changes all occurred after the pandemic and continue today.

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Royal Izakaya has shown a change in circumstances necessary to have the proviso prohibiting the use of the rear window removed

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and has also met the requirements to be entitled to a variance to operate a takeout restaurant as set forth in the zoning code.

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As shown above, Royal Izakaya presented testimony showing that the conditions when the proviso prohibiting the use of the rear window

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or implemented have changed, entitling it to have the prohibition lifted.

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It has also shown that it meets all the requirements of 143038E of the zoning code

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and should be granted a variance for a takeout restaurant,

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specifically to permit it to provide and utilize a pickup takeout window

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on the western side on Fulton Street.

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Testimony of Jonathan Deutsch, a restaurant industry expert,

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and Justin Holden, general manager of the restaurant,

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established that the denial of the requested variance would create an unnecessary hardship.

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The testimony showed that there are unique physical hardships, including the long and narrow property,

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The testimony showed that there are unique physical hardships, including the long and narrow property, the inability to have outdoor dining, both a sidewalk cafe and street area prohibited, which is necessitated by the narrow sidewalks, fire hydrant, utility pole, and location on the corner of Fulton Street, conditions that are peculiar to the property and not created by the general zoning for the area and only impact this property.

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the inability to do it, and the inability to do it, and the inability to do it.

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Those physical circumstances limited the ability to utilize the property in a productive manner

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without the requested variance to permit the takeout service through the takeout window.

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The variance will not alter the character of the neighborhood where the property has been

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used as a restaurant since at least 1933.

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As shown by Dr. Deutsch, the takeout window will ease congestion and reduce patrons congregating

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on the streets outside of the restaurant because of the prepaid time pickup use only of the window.

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No orders may be placed at the window.

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The alternative of having takeout food sold through the front door of the restaurant will increase congestion and force people waiting for tables in the restaurant to wait outside and make service difficult inside the restaurant.

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In addition, there is a lack of adequate storage area for pickup meals at the front of the restaurant, making it difficult to service the takeout customers from the front of the restaurant.

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There is tremendous neighborhood support for the application with more than 100 individual

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support emails received and forwarded to the board acknowledging that the approval of this

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application will not change the character of the neighborhood. The hardship cannot be cured with

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a dimensional variance. All the other requirements for a variance are also met. The variance is the

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minimum variance required allowing limited window service for pickup of orders and reducing

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congestion in the area necessitated by the unique physical circumstances of this building. The

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variance is in harmony with the purpose of the zoning code to promote growth and economic

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development by allowing a long-standing business to remain viable in changing times.

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As was demonstrated by Dr. Deutsch, excuse me, the variance will decrease congestion in the public

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streets, especially in front of the restaurant. The variance will not injure adjoining properties,

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but will reduce crowds congregating on the corner of 2nd and Fulton Street and bring eyes and ears

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to Fulton Street, helping reduce crime. Since no construction is proposed, the variance will have

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no impact on light and air to adjoining properties.

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The granting of the variance will not adversely impact

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the plan for the area.

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This is a longstanding commercial use being used

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for that longstanding commercial use.

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The variance will not create any environmental damage.

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This is the same use as been here since 1933.

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For all of these reasons,

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we request that the proviso be removed

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prohibiting use of the window

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and that the variance to permit the takeout service

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should be granted.

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And if this board is inclined

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to grant the requested relief,

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the applicant will agree to provisos, including a five-year temporary variance and to stop

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utilizing the takeout window one hour prior to closing of the restaurant. Thank you, Mr. Chairman.

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Thank you. Mr. Anastasio. Thank you. Mr. Chair, there's been a lot of testimony,

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both myself and Mr. Mattione have submitted very large briefs and lots of exhibits,

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But at the end of the day, the question is, should this sit-down restaurant be allowed to operate and become a takeout restaurant?

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That's it.

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There is overwhelming evidence, photograph and otherwise, and testimony of current traffic, congestion, noise, and negative impact.

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And you've heard that testimony from not folks at 3rd and Monroe or 3rd and Fitzwater, folks who live right there.

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A large majority of the immediate neighbors right around that property have all testified one way or another that this takeout operation is currently with the side window and side door causing a problem.

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The physical condition of the property, of the sidewalk, of the dining room, that hasn't changed.

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It's been the same way for the last 10 years, and they've been operating for the last 10 years.

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Nothing has happened to the inside or the outside of that property that all of a sudden changed the game for them.

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The only thing that's changed is their preference.

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Instead of working 60-plus hours like most folks in the industry, they want to work 20-plus hours a week.

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That's a preference, and a preference that this board is not able to grant relief based on.

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Ian Toner, who is an architect and a designer of many restaurants, he looked at the plans

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and he testified very clearly that there's absolutely nothing prohibiting the owner of

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the restaurant, the operator of the restaurant, from doing exactly what they do today from their

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dining room. Nothing. In fact, most restaurants don't have the benefit of being on a corner with

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the side window and side door. They were lucky that the immediate neighbors supported their use

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of that in opposition to the prohibition during the most worst of times, you know, the COVID

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pandemic. They availed themselves to their neighbor's goodwill. They availed themselves

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They availed themselves to their neighbor's goodwill. They availed themselves to the paycheck protection quarter million dollars. They did whatever they could to survive, and that's fine. But now it's 2023. And I have to tell you, I tried to get a reservation for Friday night for two people. I told it was booked.

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so then i tried uh for the 31st of march i told it was booked then i tried for april 7th

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i was told it was booked then i tried for april 14th i was told it was booked and you can't

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actually make a reservation beyond the 14th because they only only open their books for

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four weeks in advance so to come here today and say that there is some sort of economic hardship

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when you can't get a seat at the restaurant for the next month

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and they won't even open their books for me to dine or for you to dine in May

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is a bit of a stretch.

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There's zero evidence or testimony that supports any sort of hardship.

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All the case law that appellant uses in their brief

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point to physical conditions at or in the property that precipitates relief.

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There's no change in physical condition here.

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In this case, it doesn't exist.

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The only thing that exists is preference, a preference to use the side door, a preference

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to use the side window, preference to work one third the hours they used to work instead

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of working 60 or even 40 hours a week.

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No, they don't want to do that.

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They prefer to do it this way, a preference to avoid using the dining room for takeout, a preference to stay in a space that maybe they've grown out.

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You know, that happens.

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After all, there's no evidence that they've even tethered themselves to a lease renewal.

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The immediate neighbors continue to support the sit-down restaurant, and they will.

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They simply don't want the noise, congestion, and traffic that a takeout restaurant will bring with it.

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And the prima facie evidence of these negative impacts are all submitted to you today in my exhibits, which I now move into evidence.

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And with that, I have nothing further. Thank you.

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Thank you. Planning Commission.

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Thank you, Chair Bergman. David Fecto, City Planning Commission.

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The Comprehensive Plan recommends no change to the commercial mixed-use zoning at this location, given the restaurant's established use and its proximity to a commercial district.

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The City Planning Commission recommends granting a temporary variance that provides those for a maximum of five years and limited hours of operation.

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Thank you, and thank both attorneys.

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Thank you, Mr.

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2022-003-184-780 South 2nd Street.

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I vote no.

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Thomas Holliman, my vote is no.

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James Snell, my vote is no.

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Ishmael Shaheed, my vote is no.

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Thank you.

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Thank you, Mr. Chairman.

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Is there anyone in the virtual audience whose case has not been called on the 2 p.m. list?

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I see no answer, Mr. Chair.

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Let's take a five-minute break, and then we'll come back,

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and we'll finish the 3.30 list, okay?

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Everybody, five minutes.

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Thank you, Chair.

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Thank you.

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Thank you.

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You

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Thank you.

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Thank you.

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Thank you.

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I am ready, Mr. Chair.

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Thank you, John.

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How are we looking?

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We're looking good, Chair.

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Everybody back?

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It's time, Mr. Snow.

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I'm here.

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Snow, I'm here.

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I'm here.

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Okay, here we go.

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We're ready.

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Okay, and the recording is live, so you can begin, Chair.

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Good afternoon. My name is Bill Bergman, and I will be chairing this 3.30 hearing list for the ZBA.

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With me is our Vice Chair, Ishmael Shaheed.

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Present, Mr. Chairman.

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Our Board Member, Thomas Holliman.

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Our Board Member, Thomas Holliman.

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Present, Mr. Chairman.

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And our Board Member, James Snell.

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Present, Mr. Chairman.

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Also present is Hillary Emerson, our Attorney, and our Executive Director, Tanya Sunken.

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Here's our virtual format. Be advised, the proceedings are being recorded. A video will be available by contacting TanyaSunkett at philip.gov.

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For the benefit of our court stenographer, we ask attorneys and witnesses to identify themselves before testifying.

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If you are participating by phone, if you wish to testify, press star 9 to raise your hand and star 6 to unmute.

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to enter an appearance statement, call 267-270-5548. Leave your email and the address

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of the property in question. And finally, the question answer box on the screen is now for

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comments or testimony. All comments should be directed to our Executive Director, Tanya Sumpkin.

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Let's look at our continuations that we have on this list. Number three, MI 2023-000094

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