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Hearing video

ZBA Hearing - October 12, 2021

Philadelphia Zoning Board of Adjustment (ZBA)Oct 12, 20213h 17m

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You

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Thank you.

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Thank you.

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yes hello yes okay all right they're ready to are you ready yes i'm not rushing you if you need

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more time i'm good okay all right i believe we left off with mr katuzzi all right um actually

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is carl back on the line i don't want to start without him

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so do you have anyone yes all right and can i be heard

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mr primavera just uh mr chair yes can you hear me yes clear yes we can oh good all right thank

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you sorry for the technical glitch no worries uh i believe you were making an objection when

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your audio went out. I'm sorry. I just said that the objection is that this is really

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repetitive and I don't see the wisdom or the appropriateness of just going through the same

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issues with this witness, especially when we're on a time limit. So I just suggest Mr. Cattuzzi

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move on. Yeah, Mr. Cattuzzi, Mr. Primavera is not putting words in my mouth, but I think we've

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I've heard both from you and Mr. Orphanides pretty much the same questioning of this witness.

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Yeah, I think, you know, a few more questions will be to wrap this up.

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And it's really just gauging what was actually considered by the witness, because our position is that these zoning code sections clearly would warrant a refusal if they were considered.

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And we'll tie that in the closing argument.

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But with that in mind, I just want to establish what was considered or not considered.

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And I'll be direct, Mr. Chairman.

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Hi, Chair.

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This is Tanya.

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The Administrator may ask a quick question.

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Sure.

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Mr. Primavera, are you here before us under Melanie Lacey?

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I'm in her office.

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So, yeah.

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Okay.

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Thank you kindly.

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Yes.

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Thank you.

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Mr. Tuzzi, please continue.

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All right.

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Mr. Hull, again, what's in front of us is a zoning code section that says accessory uses

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and structures are subject to the same regulations that apply to principal uses and structures.

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Did you consider that in your review?

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Shelly, you're muted.

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Mr. Hall, okay, there you go.

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Yeah, I consider, but that doesn't comply with that section. My permit was under the

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core section 4601 8c and the under 14601 10i this is only accessory for the

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transportation terminal and this is not the main use it means like this is not compliant with my

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point okay did you consider these sections of the zoning code that say that um overlay district

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provisions govern, if they're more restrictive over any conflicting provisions?

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Yes.

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I heard of that when I did the application.

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All right.

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And then this property is comprised of two lots.

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There's 198 Sandmeyer Lane and one Red Line Road.

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Yes.

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Yes, and we looked at that plan earlier in the million square foot building was on 101 red line road.

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And we looked at that plan earlier in the million square foot.

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mr hall yes the uh the the the main building that we're talking about and all the main uses are on

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the big lot the one red line road lot yes and the uh end of the cul-de-sac 198 samire lane

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that lot is just being used as an accessory driveway yes okay and did you consider um

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the section of the zoning code that says accessory uses and structures must be located on the same

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lot as the principal use and structure and that's on the screen here

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this is under the same this is under the same lot because two lots are using as a unity of use

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you need a fuse means they combine they can use the same use under two different lots

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that's why this is considered the one lot where does it say that in the zoning code

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I have a template on how to issue the conditional unit of use permit.

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Under the unit of use permit, they can use different lots.

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As for one lot, the use would be considered as one lot.

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They don't have to consider different applications.

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If they apply six unit of use application, we can come out as one under the main application.

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And there should be only one permit must be issued because this is considered as one use under the different address.

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Would you agree with me, though, that just looking at the section of the zoning code I have on the screen,

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it does say that accessory use is like an accessory driveway needs to be on the same lot as the principal lot.

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I understand what you just said.

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I'll object.

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I think that's argument.

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She's covered why she did it and why she didn't do what he wants, and it's argument for later

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of the day.

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But you would agree with me, Mr. Hall, that the section I just presented would say you

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would not be allowed to do that, right?

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That's not necessary.

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If they apply for the unity of use, both are the main law.

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We don't say this is the main law.

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Both are the same principle laws.

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All right. We agree to disagree on that. But, Mr. Chairman, I don't have any other questions for the witness right now.

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Thank you.

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Who's up next? Carl?

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I believe it would be.

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Yeah, I'm it's the city's position, and I think everybody would probably agree that each appellant only gets one attorney to speak for them at the time.

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I would ask Maggie to do this, but I don't I think she's going to bail on me.

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But so but so, no, Mr. Toner and Mr. Ross don't get they can.

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I don't have a problem with them participating in argument, but I don't think they have a separate right to ask their own questions.

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So for the city, then I would like to proceed just a few questions of Ms. DeHall, if I may.

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Yes, please.

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Thank you, Mr. Hall.

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Sorry, you're still here this morning.

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I just had a few questions to ask you.

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Just so the board and maybe everybody understands some of the process here.

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There's been a lot of discussion about accessory uses versus main uses and all of that.

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In the past, you say you've been doing this for 10 to 12 years.

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Is that right?

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Yeah.

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Okay.

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So in the past, prior to Eclipse and even prior to the 2012 zoning code revisions, did applicants specifically apply for accessory uses to have those added?

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Okay.

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And that has changed, is that correct, since 2012?

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So accessory uses are no longer specifically applied for, is that correct?

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Yes.

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Right.

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So if an applicant or if a property owner has an activity that's taking place on a property that is not covered by the zoning permit that they have, the use permit that they have, then it's up to an inspector to determine whether that's a violation.

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then it's up to an inspector to determine whether that's a violation.

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Would that be fair to say?

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Would that be fair to say?

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Yes.

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Okay.

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Now, in terms of accessory uses, I think maybe I want to – I hate doing this,

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but I'm going to try to share my screen here.

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I just wanted to show – and I think we've already shown these before,

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but I just want to show a couple very quick little things.

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I'm going to pull this up.

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All right, now let's see if this works.

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I'm going to try to share my screen here.

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I'm not sure what you're seeing.

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Are you seeing anything?

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It just says screen sharing started, blank screen though.

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Okay.

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Mr. Reuter, this is Pauline from IT. If you stop screen sharing and then open your document and

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restart it, the screen share, it might work. Yeah, right now, can you hear me at all? Yes.

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Okay, because now everything's frozen. All right, that's okay. You don't need to see anything.

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Wait, I just stopped the screen sharing. Let me itch. Okay, so you're saying I should

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open the document yeah and then screen and then go back and screen share correct well I thought

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I tried that but we'll see uh if this doesn't work um I'm just going to quit there we go

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that should be showing yes yes can you can you see something all right uh and uh Mr. Hall can

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you see that yes okay so this is is this a description of the uh industrial use uh category

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Okay, I'm just going to scroll down. So, now we have subsection I here.

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I, yes.

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And that is trucking and transportation terminal.

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Yes.

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Is that right? Okay.

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Right.

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In that description of the main use, that is the use, the subcategory use, trucking and transportation terminals, does that specifically state that minor repair and maintenance of vehicles stored on the premises is also included?

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does the last sentence of that description say that yes okay so is it this just is it the

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determination of l and i that minor maintenance uh minor repair and maintenance of vehicles

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at a trucking and transportation terminal is actually part of the main use yes okay so i'm

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going to ask you uh and with with the board's indulgence i just want to ask sort of a hypothetical

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question here. I understand she's not testifying in that as an expert, but I think it'll help to

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clarify some of the distinctions that have been made. You are, Mr. Hall, are you familiar with

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the educational uses like a school, for instance? Yes. Okay. Relevance. We'll connect it up. Let's

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hall you're familiar that schools uh have bands they have uh they have people doing plays things

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like that right okay so when a school puts on a play or has a band concert um

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do they need a separate permit for that or is that just considered what schools do

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this falls under the educational facility under the new code in the old code they we have to

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mention like what's going on but now you don't have to because this is not the main use right

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and schools sure and schools also have cafeterias but they're not considered food establishments

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right right that's just what schools do so when we're talking about a trucking terminal

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and you have trucks coming in and out all day it's just part of what trucking terminals do

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is they get fueled up and maybe they get an oil change and some tire work right yes right and

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again we're not talking about body work we're not talking about major uh you know engine work or

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rebuilds or anything we're just talking about minor maintenance is that right right and if they

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were to do something like body work or major maintenance and major repairs, you would think

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that would be a violation? Yes. Okay. Now, I'm going to unshare. I'm going to pull up another

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document very quickly, hopefully. We'll see. I'm just going to object to that hypothetical on the

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basis that it was a hypothetical line of questionings, and a more accurate example would

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have been if you operate if you have a school but the zoning code specifically says no marching

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Mark Benthien, M.D.: marching bands and you're saying, well, a marching band is part of the school when the zoning code specifically prohibits an activity on the property, I think that would be in a more appropriate hypothetical, but we just object to the hypothetical line of questioning okay well that that that that that's fair.

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bands and you're saying well a marching band is part of the school when the zoning code specifically

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And I want to reserve the right to call Mr hall to rebut these statements made by Mr roger.

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and again uh we we would say that's all argument um but that that's fine and it would be the city's

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position that if a school were in a uh in a zoning within a zoning classification that

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prohibited uh you know band concerts uh that would not apply to the school because it's part

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of the main use it's what schools do um and it would be kind of absurd to argue otherwise so

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So thank you, Mr. Cattuzzi, for pointing out the absurdity of the position that you and your clients are taking here.

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So with respect to the other thing I'm going to share.

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Let me try this again.

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Is this it?

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Right. So hopefully you can now see this.

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Can you see this, Mr. Hall, wholesale distribution storage use category?

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Yes. Okay. Now, within this, you will see that there is

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subcategory wholesale sales and distribution. Yes. That would be subsection 9D.

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Okay. And in that description, does it indicate that incidental retail sales are permitted?

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Yes. And again, it's a position of the department that they are permitted because

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they're part of the main use it's what again it's what they do yes right

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so okay so again i'm not going to repeat the same kind of questions that i did before

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but i just wanted to you know try to clarify that we're talking about uses that are essentially

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incidental and part of the main use now mr hall with respect to the questions that were raised

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about the unity of use um that is a process that the department has used uh as long as you've been

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in the department yes okay and uh it's it's your understanding that at least for quite for at least

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the last 10 or 12 years that you've been doing it that the city has uh permitted uh

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lots that are next to each other that are owned by the same entity to treat those as a single

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zoning lot is that right okay uh and has with respect to the the issue uh here um we're talking

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about um the sandmeyer lane property is being used uh essentially as a as a drive to access

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That's the one red line road property.

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Is that right?

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And as part of that unity of use,

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is the department requiring the property owner

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to submit and to record documents

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that assert that these two properties

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will forever remain essentially connected

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and used for the same purpose?

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Yes.

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And you just generically call those

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