let me get mr reuter on here uh good morning members of the board uh may please aboard leonard
f reuter r-e-u-t-e-r senior attorney city of philadelphia do you swear or firm to tell the
truth the whole truth nothing but the truth i do and mr phillips uh good morning members of the
board michael phillips with claire harrison on behalf of the property owner 424 east woodland
llc mr phillips just for the record you could spell your name please uh m-i-c-h-a-e-l-p-h-i-l-l-i-p-s
and i swear or do you swear a firm to tell the truth told you it's nothing but the truth
absolutely mr chair mr matione could you identify your client please
sure it's nicholas cavallis he's the owner of the property and lives at 440 eastwood lawn avenue
Easy pelling.
So we're going to start with you, Mr. Maniani.
Mr. Chairman, may I ask if...
Hold on one minute.
Our vice chair has just a few questions for you.
Good morning, counsel.
Do you agree to wait the reading of the refusal or stipulate to its accuracy?
This is an appeal against L9, Mr. Chairman.
You're right.
Proceed.
Proceed.
Thank you.
Would it be possible to see if Richard Hoy has been able to join us because he has been
having technical difficulty and he's one of our witnesses and he's been he's been telling me the
whole time he's been unable to get on so I didn't know if he was available or Mr. Hoy
Richard Hoy Richard Hoy sure is Mr. Hoy in the audience
um I do not see anyone by that name I have a hand up by the name of Lauren and David
i mean i don't know if he's on somebody else's machine because he was unable to get his to work
mr chair those are individuals who are interested in the prior case
um i might make if i might uh mr chair make a suggestion for mr matione we've had a couple
issues with zoom meetings uh the past few days i don't know if it's a city network problem but
But it does seem that people are more easily able to log in using their phones lately.
I don't know if that might be an option for Mr. Mationi's witness.
Mr. Matione's witness, they could try that.
They could try that.
My question is, if he cannot get on because of technical difficulties, I would ask for a continuance because, you know, he's he's our prime witness.
And, you know, he's been buzzing me all morning that he's been unable to get on.
Try Mr. Hoy one more time. Do we see any hands or can we get him on the phone?
I see no hands at this time, Chair.
um okay um well i understand your position uh we'll give it a continuance but mark this must
be heard okay thank you i i really don't want to continue i understand i understand and i mean
would it it would be possible to get i mean i don't it's up to the board to do uh because again
the order of presentation for an appeal against lni is typically the appellant goes first but
i suppose we could have the city present first um because i don't know that you know mr dr
farnham's been here for a while but i i appreciate everybody uh their time obviously we've all been
here for a while but mr hoy will testify as to specific uses in time periods and he's vitally
important to the case and what happened um it would be difficult for us to cross-examine mr
dr farnham without his testimony first on the record well the only last thing that i would
suggest is there is one other case uh on the list that is going forward that's another appeal against
l and i um i'm not personally participating in that so maybe we can push this and see if there's
still an ability to get Mr. Hoy. So Mr. Mattyon, this is what we'll do. We have the next case
and at the end of that case we'll make a decision on this case. All right well whether we're going
to continue. Thank you Mr. Chairman. I will try and get Mr. Hoy again. Okay thank you. Thank you.
I apologize. Thank you. Number 10 MI 2024 004 827 3402 Sampson Street. Richard DeMarco is the
attorney. John Wozarek and Leonard Reuter are both the attorneys for the city. Mr. Chair,
actually, Mr. Reuter is not an attorney for the city in this case. John will be accompanied by
Mary Costello for the city. Thank you. Oh, there we go. Good morning, Mr. Chairman.
Good morning, Mr. DeMarco. Could you please state your name and spell for the court sonographer?
Yes, it's Richard DeMarco
Last name is spelled D-E-M-A-R-C-O
Right, you swear or affirm to tell the truth
The whole truth, nothing but the truth
Yes, I do
Mary Costello
I have a, okay
Please promote both of them
Both John and Mary, thank you
They both have been promoted
yeah my client is uh john wicks um we'll have very brief uh testimony okay sure sure mary
good morning mary castle on behalf of the city of philadelphia just for the record could you
spell your name it's mary c-o-s-t-e-l-l-o do you swear or affirm to tell the truth the whole truth
nothing but the truth? I do. And John? Good morning, board members. John Wazork on behalf
of the City of Philadelphia Law Department. Wazork is W-I-E-C-Z-O-R-E-K. We swear or affirm to tell
the truth, the whole truth, nothing but the truth. Yes, I do, Mr. Chair. Mr. DeMarco, why don't you
start? Will do, Mr. Chairman. Thank you. This is an appeal against L&I relating to a property,
actually two separate properties that are being consolidated, and we received a refusal that we
simply do not agree with. I can really frame it very simply. The property is both 3402 and 3404
Sansom Street. To really give you an idea of what's going on with this, I can go right to
the prior permit in this matter, which is part of our exhibits. Basically, this is a
consolidation from two lots to one. It's a longstanding use. The application includes
no changes whatsoever to the property, no changes to the footprint, no changes to the use.
If you look here, back almost 20 years ago, we filed an application to legalize a new use on the first floor of each project.
to legalize a new use on the first floor of each property. And the application was filed as a
combined property. So I believe you could actually say that the property has already been consolidated
for zoning purposes, but obviously there's a lot of steps you have to take when you
do an official consolidation of a property and everything had to be done again. But you can look
here, Mr. Chairman, if I could circle with my cursor the uses. There's been some changes in
the use on the first floor over time, but the use on the first floor right now and for the last
over more than a decade, several decades actually, is now a restaurant. But there is two apartment
units on the 3402 property. You see this application is divided into both properties.
You see 3402, you have two apartments. And then 3404, there's a single apartment on both stories. So it's a double level single property. But we have a total of three units. That is not changing.
You see here, it was granted over the counter. The properties were IDD back in 2005. That must have permitted multifamily at the time. And that is why the permit was issued. There was no variance necessary.
So the three apartment units are a classic nonconforming use because fast forward in time to now and when we got this refusal, which we were very surprised to get, I'll put that on the screen right now.
You see here, the refusal is saying that there's a new multifamily dwelling created at the property, which is simply not correct.
Now, notice, Mr. Chairman, that the notes to the ZBA do not even mention the permit that I just showed you, which was readily available in the zoning history of the properties.
I'm not sure why that was done, but we tried to explain to the examiner that there is no change to the units upstairs.
That's always been the case. It's been that way for several decades.
It's a classic non-conforming use that should be allowed to continue.
Let me just show you really quickly the language in the code. It's not that complicated. Any use that predates a change in the zoning code, where that use is legal when it began, it can continue following any amendment.
So the zoning classification changed to render the residential units nonconforming, and they were legal when they began. They've been legal for decades. It's allowed to continue.
Now, what you're going to hear, I think, from the city is that somehow there's a new use being created that should be refused. But the city publishes a – oh, let me show you the pictures just so you can see what we're dealing with.
It's a very nice property. It's University City. There's a very nice sit-down restaurant with some takeout on the first floor, and then the three total units are above. So it's the same property, the same facade. It's really an integrated property anyway. So that's what we're dealing with.
But let me show you the guidelines that the city uses to deal with these situations when you have a consolidation and there's nonconforming uses involved.
There's this bulletin, or I guess an FAQ thing.
But one of the examples is clearly applicable and basically gives guidelines to L&I that you should issue the permit.
Why this was not filed, I do not know, but let me show it to you so you can see for yourselves.
And I think that the guidelines, this guideline document is somewhat accurate, and I would certainly agree, especially with our situation.
But look at example seven. This is where you have an example that L&I uses to explain the situation like this is where you have a lot consolidation and you have two nonconforming triplexes on each lot.
and it's combined to one single lot and there's no change in the units, it can continue.
It's legal. You issue the permit. It says it right here. Therefore, it would be permitted.
Well, this is even less units involved. It's the same exact scenario.
Two units on what would be lot A, which would be 3402, and then 3404 would be one unit.
And then you've got a total of three units, no change.
So example seven is clearly applicable.
A permit should have been issued.
I don't understand why that wasn't done.
We asked the examiner to go to her supervisor and go over this.
It's a clear nonconformity that should be allowed to continue.
And we were told, no, you have to seek a variance.
One other thing I should mention, the new zoning classification for this property,
And you actually, this, the new zoning classification for this property in University City, it's the SPINS, which is special institutional, I believe, actually allows a rooming house. It allows a fraternity.
you're new
It actually does allow group living, but for some reason, like a single unit or a apartment unit is not permitted. So that's an argument for another case, not at issue in our case. But the bottom line is this is really a trifling scenario. Really, this should be permitted.
I'll put Mr. Wicks on in a moment, John Wicks, who's the owner.
This is the scenario all along the block.
There's basically units on it.
Let me show you the photos.
It'll be even more.
There's basically restaurant units on the first floor of it.
And then there's residential units on top.
This is actually a picture of the block.
This is the law school over here.
Penn Law School is on the right.
Our property is actually right here on the left.
And then this is another consolidated property with residential uses on the first floor here.
Let me show you this.
I'm sorry, it's not consolidated, but you can see the uses are very similar.
You have commercial uses on the first floor and either residential or commercial on the second and third floor.
So let me put John Wicks on.
Let me just ask him to confirm a few facts, and I'll finish with some legal argument.
I will like to mention that only as an alternative do we request variances for this, Mr. Chairman.
We really do not believe that is necessary.
Since we're before the board, we believe you do have the ability to do that.
It is in the petition of appeal that we filed, but it's only as the alternative.
We think it's very clear that this is a pre-existing, non-conforming use, which should be allowed to continue.
So let me ask John Wicks to raise his hand, and I'll ask him a couple of quick questions.
John Wicks has been allowed to speak.
John Wicks, please unmute yourself.
Mr. Wicks, could you please state your name and spell for the stenographer?
Mr. Wicks?
Yes, could you hear me?
I can.
Could you please state your name and spell for the stenographer?
Yes, John Wicks, J-O-H-N-W-I-C-K-S.
Do you swear or affirm to tell the truth, the whole truth, nothing but the truth?
Proceed, counsel.
Mr. Wicks, good morning.
So you're the owner of both properties, right?
Correct?
That is correct.
All right.
And did I accurately state the history of the property as far as there being two units in the 3402 property and 3404 has one unit?
That is correct.
All right.
Tell the board, how long has that scenario been in existence?
Since 1985.
Right.
Right. And are there any changes to that layout proposed with the current lot consolidation?
There are not.
Right. And obviously, there's been different uses on the first floor.
Just tell the board what that is currently and how long has that been in existence?
I have a restaurant, Marsala's Kitchen. They are, you know, in renovation now.
They will open September. They do have sit down, but it is also they cater if there's takeout, et cetera.
And the lock consolidation you're doing, it's to to tell the board why you actually have to do that.
You need to signage, right? I do.
And my last tenant, Baby Blue's Barbecue in 2010, was able to put a sign across the front of both buildings spanning the party line.
But since that time, there's been a zoning regulation change where at this point, you cannot span two party lines with a sign, even though one person owns both properties. So to comply, I am consolidating the two properties together in order that that sign can be legally, you know, erected.
And there's no sign there now, right?
There is not.
Wow. Okay. I think that's all I have of Mr. Wicks. Did you hear my factual recitation and
the presentation that I gave during this matter, Mr. Wicks? Yes, I did. And is it true and accurate?
Yes, it is. Can you adopt it as your official testimony in this matter?
Yes. Mr. Chairman, that's all I have Mr. Wicks.
Is there any cross from the city? Sorry.
No cross from the city. Thank you.
Okay. Thank you. Okay. Why don't we move on to the city's position?
Okay. I could sum up with that argument, but I'll wait if that's what you wanted to do.
Okay. City's position.
Good morning, Chairman. The city largely agrees with the factual background that Mr. DeMarco
presented but the city views the question being presented is whether the existing
but the city views the question being presented is whether the existing non-conforming uses at
both properties. So for 3402, as Mr. DeMarco indicated, there are two units of residential
living, two family residential units, and in 3404, as Mr. Wicks and Mr. DeMarco indicated,
it is a single unit, has been the same since 1985. So the city's view of this question is
whether those existing non-conforming uses, both 3402 and 3404, can then be consolidated
into a multifamily residential zoning. And the city would like to emphasize the consolidation