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Hearing video

ZBA Hearing - June 4, 2025

Philadelphia Zoning Board of Adjustment (ZBA)Jun 4, 20256h 8m

And what happened in, I'll just give you a brief overview.

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So what happened in the Frank Rizzo case was that the housing agency, HUD, told the city that they needed to develop housing in a white neighborhood.

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So they were going to be developing it in this neighborhood called Whitman.

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Yeah, you probably remember this back in the day.

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So there was a project to develop affordable housing in Whitman, and then the city basically was culpable in preventing it through thuggery, through violence, through all kinds of things.

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So this case is going to show us a couple of important points, which is what are the affirmative mandates that this zoning board has and that other agencies like PHA and other entities that are funded by federal money, which is Penrose.

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So in this case, it's not the same fact pattern. We're not talking about here trying to put housing in a white community and then them revolting against it.

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What we're talking about here is what does the federal laws require of the city, of this zoning board, and can the zoning board actually approve a project that's in violation of federal fair housing and federal anti-discrimination?

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And it's clear from these cases that you don't have that power to do that, nor would I think you would want to do that. But in case you did want to do it, you don't have that power to do that.

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So we're now on page 23. Well, it's the second page of this thing. So the court says we are course guided in our determination of the standards required by governmental agencies under section, the Third Circuit's decision in Shannon versus HUD from 19.

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uh section um the third circuit's decision in shannon versus hud from 1970. the third circuit

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and shannon the third circuit is our circuit in um that that over that goes over the the uh the

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commonwealth of pennsylvania the third circuit and shannon described the progression in the civil

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rights acts from the commands of the 1964 act of non-discrimination to the affirmative requirements

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in the 1968 act that government agencies promote fair housing as follows read together the housing

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Act of 1949, the Civil Rights Act of 1964, just popped up, sorry, show a progression as to what

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factors significantly contributed to urban blight and what steps must be taken to reverse the trend

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or to prevent the recurrence of such blight. In 1949, the Secretary, in examining whether a plan

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presented by an LPA included a workable program for community improvement, could not act

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unconstitutionally, but possibly could act neutrally on the issue of racial segregation.

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Back in 49, they could basically finesse it and still engage in racial discrimination.

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In 1964, he was directed when considering whether a program of community development was workable

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to look at the effects of local planning action and to prevent discrimination in housing resulting

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from such action. In 1968, he was directed to act affirmatively to achieve fair housing, whichever

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Whichever were the most significant features of a workable program for community improvement

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in 1949. By 1964, such a program had to be non-discriminatory in effect, and by 1968,

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the Secretary had to affirmatively promote fair housing. This is the Secretary of Housing and

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Human Development. In the Shannon case, the court found that HUD had failed to consider

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the racial composition of the area in which low to moderate income housing was to be constructed

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before its issuance of a contract of insurance and approval of the project for rent supplement

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contract. Rather, HUD had only examined the land use factors involved in approving the project,

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which is what this board is doing. They're looking at the land use factors.

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But HUD was supposed to do more. The court stated that the discretion of HUD to choose the methods

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of achieving the national housing objectives must be exercised within the framework of the

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national policy against discrimination in federally assisted housing, and they say it to some federal

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statutes. When a decision is made without consideration of relevant factors, it must be

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set aside. That's the court speaking. The court in Shannon held that HUD could not be colorblind

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in connection with the very real effect that racial concentration has had on urban blight,

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and noted that the increase or maintenance of racial concentration is a prima facie likely to

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lead to urban blight and is thus prima facie at variance with the national housing policy.

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Other courts have agreed with our Third Circuit, and they have held that there is an affirmative

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duty required under Title VIII of the Civil Rights Act of 1968. It applies not only to HUD,

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but applies as well to other governmental agencies that administer federally financed

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housing programs and then there's a there's a string site of cases uh from various circuits

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um they they then go specifically into arterio versus new york city housing which is the case

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from 1973 could you do me a favor instead of reading eight pages could you get what you think

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right now are the key points sure i mean i heard your beginning so give us the key points then

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what what i want to do is if you do this first case i'm going to have alan comment and then we'll

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go to your second case okay but in please i i don't want you to say like eight pages no i'm not

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okay sure all right in the orange here the court in ontario pointed out that an authority may not

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for instance select sites for projects which will be occupied by non-whites only in areas already

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heavily concentrated with a high proportion of non-whites an authority is barred from using

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assignment methods which seek to exclude or have the evident effect of excluding persons

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of minority races from residing in predominantly white areas or restricting non-whites to areas

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already concentrated by non-white residents. So that's like totally on point here. I'll skip

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I'll skip through the second circuit in Ontario around the issue with affirmative obligations.

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through the second circuit in Ontario.

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Then they talk about the specific agencies here in this Philadelphia that are responsible for this affirmative action.

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One is the city of Philadelphia.

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We find that in view of the pattern of racial segregation, which-

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Why don't you list what they are?

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Just tell me.

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You don't have to give me the background.

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Okay. So the city of Philadelphia has an affirmative duty to implement national policy of fair housing. You are an arm of the city of Philadelphia. We also have the, obviously, Mayor Rizzo did not agree to do this, and we obviously have a different administration.

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I'm not I'm not claiming that things are the same necessarily in terms of his racism, but things are the same in terms of the concentration of affordable housing in not just majority, but overwhelmingly black neighborhoods, which is completely illegal under the federal civil rights acts.

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So the second one I wanted to focus on is the Philadelphia Housing Authority. It says that it is clear that the Philadelphia Housing Authority has an affirmative duty to integrate its housing projects and be instrumental in dispersing urban housing patterns. And it cites a case that held that.

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but I understand that. Okay. And who else is listed? We have, it's very wonky, this,

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this internet, sorry. Who else is listed is?

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we want to try to move this ahead uh then we're going to go to the next case

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in thompson versus is this all still on the rizzo case no the next is a new case okay so

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all right before we go on mr knockamson do you have any so so i can clarify do you have any

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response to this first case? Yes, I actually have a threefold response. So first, I believe

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that Strawberry Mansion Community Concern has no standing in these proceedings. While I have no

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objection that Ms. Cummings would have taxpayers standing, it's my understanding that she is a

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citizen of the city of Philadelphia. I believe that Strawberry Mansion Community Concern has

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no standing. They have not availed themselves appropriately under this process. This is just

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indicative of what we're dealing with today. We did not receive the presentation materials of

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Strawberry Mansion Community Concern as well as Mr. Masters until I believe it was yesterday.

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Not with you know so outside the five-day window and I know that only applies to applicants but

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you know professionally I would expect that we would have those materials. These arguments are

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being made on the fly by Mr. Masters where we had no opportunity to actually you know

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prepare for this but i would say that they have not availed themselves of this process by

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continually ignoring the rules of this board no but but that's in terms of the presentation

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materials and in terms of mr master's presentation you know you the board poly received um you know

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what was from strawberry mansion community concern with their letter and i'm going to just put this

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up here and again if mr goldberg can share his screen while i'm doing this it's a piece of paper

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that says save our pocket park 2500-06 north 31st street 57 57 unit rental only housing plans within

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a one to two block radius of each other and 11 units proposed for pocket park site harmful violates

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our civil rights title six and other housing protection acts and the city's lower north plan

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removal of our tree canopy cover heats us up by 10 to 15 degrees come out and learn what is

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happening to you in strawberry mansion community meeting monday june 2nd 2025 at 5 30 p.m right in

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front of the pocket park 2500-06 north 31st street bring a chair as the board knows we've

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been trying for some time to schedule a community meeting with the coordinating RCO.

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They've completely ignored us.

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That's why we're here today.

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It's been multiple continuances of not having a community meeting.

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And this board knows that under the regulations that pertain to RCOs, they're supposed to

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give us a community meeting within a certain period of time.

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They have not.

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they have not they have ignored us they're represented by council so i'm sure they're

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They have ignored us.

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They're represented by council, so I'm sure they're well aware.

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well aware of of those requirements they have not availed themselves of this process and worse

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they're violating the rco regulations in the philadelphia zoning code regulations by by not

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using the forms necessary to schedule such a community meeting and not even inviting us to

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the community meeting so again while miss cummings may have taxpayer standing for the next level

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She shouldn't have any standing whatsoever. So I would say that, you know, that this board

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recognized that she, that, that she is, that Strawberry Managing Community Concern is not the

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recognized party here. In addition, we don't even know who Strawberry Managing Community Concern is.

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Colin Crossley, who's in the, in the audience here in the, during the last hearing stated that

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he's never spoken to anyone from Strawberry Managing Community Concern. He's only correspondent via

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email so i have no idea if miss cummings miss cummings is an actual representative we have a

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right to know request so that's the first thing is is the standing argument i don't believe that

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they have standing here um because they have not availed themselves of the process i have two other

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arguments all right second argument arguments about his presentation about his presentation

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Yes, sure. Yes. There is no Mr. Masters makes many allegations which have no factual basis. He has no factual basis about the fact that HUD in these circumstances is doing anything in violation of these acts.

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He would, you know, again, there's there's no one from HUD that he's he's asked to present in having questions about this project.

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But the fact that we're providing affordable housing, like in a part of Philadelphia Strawberry Mansion, doesn't mean that that's in violation of any federal, state or local laws.

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If we take that to its most extreme, we would never be able to have affordable housing.

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There's no allegation that Penrose or PHA and Strawberry Mansion CDC are making any type of representations about who's going to be in the property, whether it's going to be African Americans, Caucasians, or whomever.

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There's no allegations to that fact.

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So these arguments in a vacuum are, again, something that's just to throw something up against a wall.

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third yes and that i guess that would be one and two like the fact is there's no factual

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allocations you have a third no that was that was it good all right so why don't you do the next

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case and then we'll figure out what we're going to do sure okay and if you would try to do this

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next case the same way absolutely okay thank you so this next case is a more modern case as they

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say it's from 2005 it's about baltimore and it's more analogous to what's happening here where the

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city of Baltimore and their housing agency decided to put in affordable housing only

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in the inner city of Baltimore, where it was almost exclusively African-American residents

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and not in the suburbs where there was white people living and people of many different

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diversities.

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So this case is on point to what we're talking about here.

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and it goes into detail about the zoning board and other agencies and what your affirmative

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duties are. This case is called Carmen Thompson versus the U.S. Department of Housing and Urban

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Development. It's January 2005. Okay, the first excerpt is, it has been judicially recognized

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that section 3608, this is from the Civil Rights Act of 1968, prescribes an affirmative duty as

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stated by Judge and later Justice Breyer from the U.S. Supreme Court, Title VIII imposes upon HUD

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an obligation to do something more than simply refrain from discriminating and from purposefully

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aiding discrimination by others. The case goes on to say, the affirmative statutory obligation,

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and this is important because back in the 70s, there's a lot of cases in the Supreme Court that

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have been happening since the 1970s, but these civil rights acts have never been changed or

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overturned. This is the law of our country. This affirmative statutory obligation to provide

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housing free from discrimination accords with the vision of the law's supporters who considered

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ending discrimination as a means toward truly opening the nation's housing stock to persons

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of every race and creed thus action must be taken by hud to fulfill as much as possible the goal of

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open integrated residential housing patterns and to prevent the increase of segregation

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then it talks about uh at the um section

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Then it talks about the section of the Fair Housing Act. A reviewing court shall hold unlawful and set aside agency action found to be arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with the law. It's well established that a court may not substitute its own policies.

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OK, we can go on from there. The agency is required to articulate a satisfactory explanation for its action.

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So up till now, we've heard many cases at the earlier hearing, there was never any explanation from Mr. Nocklinson, from any of his clients, from Penrose or from PHA, as to why they chose to put these affordable housing units in an almost 100% low-income Black neighborhood when they could have chosen neighborhoods to meet their affirmative obligation to promote desegregation and integration.

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as opposed to doing the opposite. It says that HUD, while HUD has broad discretionary powers,

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and HUD also means PHA because PHA is acting obviously under HUD, while HUD has broad

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discretionary powers to administer its grants as it sees fit, it is not immune from review for the

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abuse of discretion in exercising those powers. When a court analyzes HUD's public housing,

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inciting decisions and the manner in which it has used its resources in Baltimore under the

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standards articulated in this legislation, HUD is required to offer a satisfactory explanation for

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its actions. The court's examination of the agency's explanation must focus on whether HUD,

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and this is your examination also, because you're acting before it goes to court, as to why

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Why did they choose to put more affordable housing in the area with a large overwhelming section of Black, low-income people when they could have chosen it in many other places?

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So it says that they have to offer a satisfactory explanation, and the examination must focus on whether their actions have, quote, furthered the statutory goals.

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The statutory goals they're talking about are the goals of integration and eliminating racial discrimination.

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So I think there's a bit more.

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So but I mean, I understand your point.

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But did you have much more?

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Yeah. So then I wanted to talk about the Mr. Chair.

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He's just reading off of the case.

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I think he can introduce the case into the record and we can all read it afterwards.

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Well, I would I would prefer that you would you would know what it says so that you could you could ask Mr.

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Nockamston to show us. Listen to me. I think your presentation so far, I understand exactly what you're trying to say.

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And Mr. Nockamston, could you make remarks as to where he is now?

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Yeah. So, again, if as this board knows, knows is a board of limited jurisdiction.

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They hear a case by case analysis, whether or not we've met our burden under the Philadelphia zoning code for variants. This is not a comprehensive, let's look at PHA holistically. If that was the case, we would be here all day, every day, 24 seven.

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So again, he's making it seem like that this is the only project that PHA has across the city of Philadelphia. That's not the case. The PHA has a comprehensive plan for affordable housing.

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There is no allegations that he has factually that shows that for this project, that PHA has specifically discriminated in their selection of Penrose and Strawberry Mansion CDC as partners on this project.

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There's no factual allegations that should we get the zoning approval we believe we should get, that we would actually discriminate in the operation of the housing itself.

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Again, time and time again, Strawberry Mansion, Community Concern, buying through their agents, are acting in bad faith throughout this process.

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Can I just respond to that briefly?

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Steve, it's got to be brief.

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We've got to get a lot of cases done, right?

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Mr. Nachamson is not describing the correct burden that he has and that his clients have.

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It is not that we're saying that there's going to be overt discrimination on the part of PHA or Penrose or or that it is that they are not allowed to cite any housing, any of their housing projects in Strawberry Mansion until they go into enough of the areas in the white suburbs and in other areas to show that they are actually doing their affirmative desegregation.

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so it is yes they have other projects in other places but this is this is

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So it is, yes, they have other projects in other places, but this is off limits, according to federal law.

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Thank you very much. Alan, thank you for your comments. Both your comments are part of the record. I have nothing yet that tells me to stop this proceeding. We're moving forward. Please start the first case.

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All right. Thank you. I'll defer to Mr. Goldberg. All right. And that first case, again, is MI2024-005-135-2401 North 32nd Street.

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Mr. Goldberg, could you please state your name? Alex Goldberg, A-L-E-X-G-O-L-D-B-E-R-G.

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Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth? I do.

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Could you please start your presentation? Yes, I can.

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mr goldberg as we stated before um what you say here in this first presentation unless there's

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something dramatically different and the next two will become part of the record for the other cases

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okay understood and the same thing with any witnesses you call i'd appreciate if they want

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to comment all three cases please let them do that one question for you if there's a specific

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architectural related question that doesn't have to for example do to have anything to do with the

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first one sure wait till that comes up and then call she could do that okay okay why don't we start

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okay um so this first one is for 2401 north 32nd street um you know many of the the materials that

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we included in our previous presentations are the exact same here um including letters of support

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um first i should start with the notice of refusal which was issued in july of last year

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this one specifically is for the relocation of lot lines to create two lots from a single lot

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essentially what's happening here is we're preserving a playground on one half of the

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parcel which you'll see in the plans and we're proposing the development of five dwelling units

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