civus
Hearing video

ZBA Hearing - October 12, 2021

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

Okay.

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Well, just for the record, again, just to make sure you're being accurate, Mr. Cattuzzi, in our exhibit package at nine is the correspondence with the city.

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Now, maybe Mr. Scoria hasn't seen it, but the city's seen it.

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It's been in our record.

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It's been available to you for six months.

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Also, we went through a voluminous CDR process, which your clients all participated in and heard in minute detail about each and every aspect of how this operation was to be done.

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of how this operation was to be done. So I don't want you to suggest the lack of information or

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So I don't want you to suggest the lack of information or opportunity.

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opportunity to learn about the information. I think maybe your question was directed to

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Mr. Scoria, who's a recent player in this. Well, I find it interesting that in our right

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to know requests, we actually got more information from Mr. No, that was a question to Mr. Coutuzzi

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so he could clarify his position. I don't want him to be suggesting on the record that this is

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somehow unknown to him because it's been in our record and in his records that have been made

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available and about our representation to the city, including the solicitors, that it was

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incidental and customary. So I don't want him to suggest that this is somehow something new

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that he's found out about. No, I don't think it's a new call, but I don't believe that there's been

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I don't believe there's been an evidentiary showing that it's incidental. I believe that

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every representation has shown that this is nearly 20,000 square foot commercial vehicle

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repair and maintenance use that'll be servicing. We don't exactly know what, because it hasn't

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been clear in the records, but I'm presuming it's you. No, no, you participated in civic design

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review meetings that were open. You were counsel of record. We had many meetings. So please,

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you can argue legally, but don't suggest. Carl, what I'm suggesting. Please, you're speaking,

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everyone's speaking over each other, please, one at a time, Mr. Catuzzi. What I'm suggesting

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uh sorry mr chairman what i'm suggesting what i'm stating is that the 20 000 square foot

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uh vehicle is identified as an accessory vehicle service and maintenance use

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it's going to presumably repair and maintain maintain large trucks and box trucks and etc

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all different types of trucks um i i'm saying that that's a massive use it's it's major it's huge

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this is argument and it's not there's no question it's argument sounds like argument i'm pretty

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if i can come back to mr scoria um you know about one thing mr primavera regarding the cdr process

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there was one meeting which our which our our client conducted and during that meeting you

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know we were cut off during to ask questions so but we'll get to that on the standing question

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but so mr scoria you've heard the offer by mr primavera two cdr meetings that were public

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that you participated in there were private meetings but there were two public cdr meetings

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that counsel and clients participated aggressively and asked all the questions so i just don't want

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anyone to suggest to the board that this is somehow something that wasn't um you can argue

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about the appropriateness of the language or the legal resolution but factually how this property

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is going to be used was discussed ad nauseum as it was again today. And it's limited to UPS's

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activities. There's no question about that. That's actually not correct. We didn't get

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into any details regarding the need. I'm sorry. Mr. Skaria had nothing to do with the CDR

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process at all. Why are we even talking about this? Mr. Primavera opened that door. Mr. Skaria,

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Mr. Primavera has made a suggestion to this board to correct the issues, errors, whatever you want to call them, with both the application and a permit regarding the repeated reference to accessory uses in both.

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Now, we're going to go closing.

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I don't believe that that's the ability of the board to do that here.

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But with that being said, what would the process be for him to do that?

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Would he not have to file an amended application since a permit has already been issued?

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Yes, you have an amended application.

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There is there are there's a fact sheet or there are certain criteria for the for the city of Philadelphia Department of License and Inspections to where they will accept an application to amend an existing zoning permit.

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I'm objecting. We're at the board now.

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who has powers over and above l and i so i i think this is the legal argument guys guys

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guys sorry but i'm not getting anything yeah you're absolutely i keep reminding folks i tell

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you what we're gonna take we're gonna take a five minute break i actually have a package being

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delivered and i have to sign for it so we'll be right back please do it for first are you gonna

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ask them if they can change your oil while you're at it uh is it minor or is it accessory

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I'm covered. I have a warrant. I'm covered.

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Thank you.

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Thank you.

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Thank you.

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Thank you.

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Thank you.

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Thank you.

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Okay, is the court reporter available?

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No, not yet.

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Okay.

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Thank you.

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Thank you.

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Could, real quickly, could Paul Turner be let back in?

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Tanya or Lakeisha, I'm not sure.

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Yep, he's coming in now as a panelist.

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I'd like to remind everyone it is now 12.17 p.m.

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We have a hard number.

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We were supposed to have a hard number at 12.30.

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We're going to allow another 30 minutes.

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This hearing will come to a conclusion one way or the other by 1 o'clock.

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Report reporter is back, I believe.

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Do I have to be?

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do i have to be yeah unfortunately

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Unfortunately, the answer is yes.

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Okay.

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Mr. Affinitis, I think we left off with you, if I'm not mistaken.

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Yeah, I'm just going to do a little cleanup.

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And gentlemen, with all due respect, when I say one o'clock, I mean one o'clock.

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We're not permitted to go beyond that.

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um mrs guria so in terms of accessory uses again there's no distinction when a permit application

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or permit says accessory there's no distinction that it's for the people on the property or off

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the property correct right so it'd be different than incidental in that respect correct right

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so if it was called as accessory i'm sorry say what so if it's referenced as accessory then i

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would you know if the primary use would have to be permitted in this in in this case the city

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uh approved it as incidental the word accessory should not have been referenced in the current

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language like you said before um and again there's no reference to incidental in either the

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application or the permits correct and in the language no like i said i did not look i didn't

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I didn't have access to the correspondence between the primary applicant.

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Also true on the plan, as Mr. Cattuzzi pointed out, that the plan all over it, both on the graphically on the site plan, on the elevations and over on the description, talks about accessory.

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It doesn't mention incidental, correct?

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Right. It says accessory, but primary applicants usually reference the word accessory when they don't know what it actually means.

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Okay. But this applicant.

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It's in the primary language.

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this as by the by the uh again i can pull it up you may have it in front of you in this case

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the application wasn't submitted just by anybody it was submitted by um and i'm looking at exhibit

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four um all four exhibits there a b c and d by bowler engineering yeah llc you you've heard of

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them before correct yes they submit a lot of applications with the city of philadelphia

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correct they do zoning and build okay thanks they use the word accessory for a lot of building

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terminology right but here they used it they do do a lot of zoning and they used it with zoning

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correct i can't i can't confirm that they submit a lot of zoning applications okay all right

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have you have you reviewed any of their zoning applications i may have nine years ago okay

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um and then in terms of amending uh we what we were what we were getting at there was that

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you know mr primavera has made a suggestion to change the wording of the application change the

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wording of the permit um to remove the reference to accessory and i i think before we took the

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break uh i had asked you the question that would in order to do that that would require an amended

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And that's where I made my objection. And I said that we were asking the board if it was so inclined as part of its decision making process for your benefit to clarify it and that we would stipulate.

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I didn't say we would go back to L&I if there was any need. It was a stipulation as an offer to resolve what appears to be some concern that UPS, one of the Fortune 50s, is going to somehow expand beyond incidental use for its trucks.

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I think it's absurd on its face, but we're willing to make that offer to clarify the record and to give you some comfort.

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I didn't suggest we would do anything with L&I. We're at the zoning board.

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I have a question. Sharon, is that within the purview of the board?

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I'm asking this. Excuse me. I believe the board could add a clarifying proviso, noting that the uses are incidental uses.

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Thank you. All right. And I am and I'm going to ask Mr. Scoria that that if it was put to L&I,

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which and i believe the board has the power same powers as lni has that this would be

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this would be handled through an amended zoning permit application correct

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yes no i object that's not what we said

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i'm sorry what's the objection i believe he said that he said i know how would you handle these

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changes and he's and i asked him no i i said that the discussion was at the board level he has no

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input at the board level i think the chairman suggested the right question

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you know that's not asking about l and i i object that's you can make that legal argument

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in closing about who has the authority to do what we could brief it let's make let's make

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we could brief it let's make let's make that the closing part of the argument including i'm trying

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that the closing part of the argument i'm trying to say so

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to say so far i was trying to answer david's uh question whether an amended permit will be required

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to change the permit language and that's all i said i didn't say that i was just answering his

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question i didn't say what what any party needed to do i just answered his question whether if you

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were to change the permit language any kind of permit you would require an amended amended correct

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and and and and and jace the lni has issued a they have a currently they have a document called

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it amended zoning permit process which is pz zero zero one inf is that does that sound familiar to

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you uh i think the latest one is oh sorry okay you need to use for a second i just want to confirm

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the number. This says rev 3.1.2021. I don't know the numbers by heart because we have updated

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forms all the time. Double check the number. Well, as of. Yep. It's PZ001 revision date

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September 2021. 2021. All right. If you have that in front of you, can you can you read

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because i mine is now outdated by a couple months when it says the one what allowable my screen

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is it okay if i share my screen please let me know where you can see my screen not yet

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we have it now so thank you all right could you read the section that talks about allowable

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amendments to permits include but not include the following excuse me mr orphanetes i'm not

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seeing the relevance of this the question is was the permit that is being the permits that are

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being considered here were they properly issued not how can they be corrected if they were not

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Can you move on to another? Well, with all due respect, Mr. Primavera suggested to the board, and it sounds like the board is listening to the idea of making modification to the permit language on its face here. And it's our position that this is the proper procedure, as he stated.

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Okay. The fact that there might be an alternative procedure does not affect whether the board can add a clarifying proviso.

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And you can note that in your closing arguments.

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All right. Well, just for the board, I wanted them to see what L&I would seem to be warranted for the issuance of an amended permit.

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We understand that, but we have the authority to make those changes here.

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and i and i and i want to we'll stipulate that l and i has a process that that you were just

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going to point out we'll stipulate to that and that these changes do not qualify under

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the allowable amendments as stated in this in this information sheet that l and i utilizes

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well object because you're putting the rabbit in the hat yeah i think the testimony is that l and i

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knows what it issued. And what I'm trying to do is get you comfort that the limitations that L&I

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has recognized based on representations in the record are, in fact, clarified. So it's not a

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new permit or amended permit. It's a clarification to address your concerns. Unless your concerns

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aren't being raised in good faith, you should be happy that we're trying to clarify your concerns.

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Oh, there's a problem. Make that part of the arguments, folks.

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okay mrs i mean i've made the point with that mrs korea do you know whether if there's an amended

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if there's an amended permit application whether the applicant would have to go back through cdr or

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not if it affects the the actual use the primary use then it would need to go back to cdr okay and

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also if this didn't fall within bell and i were handling this and and it didn't fall with allowable

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amendments then a new application would have to be filed correct yes all right proposing if you're

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proposing a new use then uh it wouldn't be considered an amended permit you need to get

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a separate zoning permit you said a new primary use no primary a new primary use new primary use

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how about how about a new accessory use well accessory use uh if it's added that wasn't

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previously reviewed under the previous permit,

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then a new permit will be required.

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Yeah, thank you.

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One very, very, one question, if I might.

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Mr. Reuter.

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Sure, Mr. Cascaria, if a permit is issued by L&I

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that on its face might have an error or that L&I believes it needs clarification from its own

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that on its face might have an error

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or that L&I believes it needs clarification,

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position as to what the permit allows, can L&I just simply reissue itself a permit,

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the permit with the corrected language? Yes. Okay, thank you.

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Mr. Scorio, do you know when it goes through CDR? I'm sorry, that's beyond the scope of our

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redirect. Chair, this is Sharon. I believe we're ready now to move on to any witnesses on the

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issue of standing, if you agree. I certainly do. The only one thing, as you asked Mr. Orfanides,

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I don't want to keep this conversation going too long, but you asked that Mr. Toner be made

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available again. Was there any specific reason for that? No, just so he can hear. Okay. I didn't

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know if there was anything specific you had to ask him. Okay. Thank you. All right. We're going

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to move on to witnesses. And again, Mr. Reuter had noted to us that he was going to produce

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somebody from the Planning Commission, and we had called them and notified them as a witness.

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And the board has decided that the testimony is not relevant and will not be admitted.

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So move on to the issue of standing. Mr. Cattuzzi, if you could begin, I believe your client is the adjacent property owner, if you could just get them to, well, wait, first, let me go back. Is there still an objection to standing of the appellants? Mr. Primavera, Mr. Reuter?

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Yes. And let me be clear, because I think we can avoid a lot of unnecessary testament.

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There is no suggestion that Sandmeyer Steel and other adjoining and nearly adjoining properties are geographically close and intimately connected to the proposed facility.

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There's no question about that in terms of geography, in terms of our proposed traffic will go down Sandmeyer Lane, as it will come out on Red Lion.

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With regard to the Busselton Civic League, there's no suggestion that people will live in what I would call relative close proximity.

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Our objection on standing is the fact that this is not a variance case.

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This is a permit appeal.

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So it's not the geography.

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It's not like these people live or own property or operate businesses far away.

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We're not suggesting that.

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We're saying that the permit appeal is limited because city council has zoned this property for the intended use.

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That's the health, safety, and welfare.

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So it's big.

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Well, I grew up with Penn Fruit.

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Now they have Wegmans.

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All right.

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Some people grew up with Woolworths.

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