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Hearing video

ZBA Hearing - March 16, 2022

Philadelphia Zoning Board of Adjustment (ZBA)Mar 16, 20225h 49m

single-family home construction is viable on this block the city planning commission recommends that

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the board deny the use variants thank you mi 2021 005234 1636 north 26th street i vote yes

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Carol Tenere, my vote is yes

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Thomas Holloman, my vote is no

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James Snell, my vote is yes

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Ishmael Shahid, my vote is yes

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Thank you

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MI 2021-003-735-201 West Hunting Park Avenue

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Attorney Tolliver

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however if you're in the audience please raise your virtual hand

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come back in as a panelist you see anybody

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hold on let me i think i got him now

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okay now he's being promoted to panel sir you're coming back in soon

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good afternoon mr chairman mr toliver all the uh exhibits came in late to us

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and we're going to continue the case oh okay we didn't get anything until late monday

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okay no you we'll be in touch and we'll continue this particular case okay okay thank you

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mi 2020 001579201 west johnson street um this is a resumptive hearing attorney bill kerr

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okay mr chair mr kerr has been promoted to panelists who will be rejoining you soon

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thank you

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okay good afternoon mr car could you could you spell your name and uh state it to the court

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reporter, please. I will. It's William Kerr, W-I-L-L-I-A-M. Last name is K-E-R-R. And I'm

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the attorney representing the applicant here today. All right. Do you swear or affirm to tell

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the truth, the whole truth, nothing but the truth? I do. Vice Chair, I think everything's

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in. This is a resumptive hearing. So, Mr. Kerr, why don't you start and give us a sense of where

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WE ARE. NEW SPEAKERS, OKAY, I'M GOING TO SHARE MY

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Okay, I'm going to share my screen, if I can find that link. Here we go.

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screen.

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I think that is, are you seeing a hearing binder?

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Yes.

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All right, again, this is a resumption of a hearing that was first held December 8th of last year.

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And it relates to what we refer to as Building 3 on this particular property, 201 West Johnson Street.

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At the time last year, we presented, now you see my cursor?

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Yeah, could you make the, it's a little hard to see.

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Try to make the, that's it, that's better.

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Yep, thank you.

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All right. So you weren't seeing my cursor? Again, I'm not sure I'm not seeing.

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We should. We should.

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Okay, good. This is the exhibit packet we submitted in December of last year. It included

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the initial refusal, the supplemental refusal. We had some photos, including posting photos.

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We had a facade rendering. We had various plans, including a site plan, elevations,

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and some floor plans.

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We had the RCO notice letters.

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In the process, prior to December 8th,

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we had been to CDR at the Planning Commission.

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They had granted an approval.

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We had been to the Historical Commission.

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We had a Historical Commission letter.

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We had also been to West Mount Airy Neighbors

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and had a letter of support from the West Mount Airy Neighbors.

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After hearing itself,

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the Planning Commission supported the request of variances.

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and at the end of the hearing um the the councilwoman councilwoman bass's office

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unexpectedly took a position which opposed the application which surprised us that was the first

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time we had become aware of her um opposition we're back here today essentially to supplement

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the record um that we had made back in december with some additional um testimony including

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evidence on our legal position which is that based on what's happened to this at this property

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to date that we have a legally recognizable vested right to complete the project as initially

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approved including building three which again is the subject of this application and that legal

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vested rights theory is based on first of all Nolan property's reliance on the city permits

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and approvals that have been granted uh to date dating back to 2009 uh its development of the

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various infrastructure on the property and then its completion of buildings one and two

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on the property uh given that um uh what's happened today nolan has a total investment

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of over 30 million dollars in this property including five million dollars or so of which was

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spent on the infrastructure and that infrastructure served not only buildings one and two but it was

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also designed to accommodate building uh three and the entire development so at this point i'm going

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to swap over to a hearing binder for whoops that was the wrong one so okay so initially i had

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okay so this is this is the binder for today um and i'm just going to run through here real

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quickly just the first three exhibits we have some posting photos to confirm that we did you

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see the posters here we did post a photo or excuse me property again another poster for the today's

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hearing. Tab two, we've included for your convenience a copy of the transcript from the

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December 8th hearing. I'm not going to spend any time on that other than to let you know

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that it's here. And then I'm going to get to tab three, which is the current plan. And

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so just to refresh your recollection, this is building one, what I'm circling, this is

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what we call a presser building. This was constructed in the 2009 timeframe. It has 45

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senior apartment units, which are occupied by tenants who are qualified as affordable

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housing tenants. It was constructed under the federal low-income housing tax credit program,

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so there are rent and income restrictions on the tenants here. Building two is this building here,

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which is sort of a back at L-shape, which is referred to as the Nugent Building.

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That's occupied by 59 affordable senior tenants.

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Both of these buildings are senior buildings.

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You can also see that there's significant infrastructure, including the road services, building two, this parking, which service is building one, which has been installed to date.

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You can also see that there's significant infrastructure.

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now at the time of the um so this is building three we're proposing now um 165 units 135 of

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those will be one bedroom 30 will be two bedroom units at the december 2021 hearing we were

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proposing that 40 of the 165 units would be designated for seniors and then 125 would be

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for general occupancy. Now subsequent to that hearing we've had a number of contacts

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Zoom and other meetings and correspondence with Councilwoman Bath's office and we discussed a

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number of issues in those meetings and Zooms. The Councilwoman let it be known that her preference

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for this property really was senior apartment units.

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So based on, in reliance on those discussions,

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my clients today are committing that all 165 of the units

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that are proposed for building three

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will be designated for seniors that are 55 years and above.

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Mr. Richardson confirmed to my clients,

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Mr. Sudol and Mr. Hedges,

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Mr. Rollins, that based on that commitment to occupy these solely as senior units, that

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the Councilwoman was no longer opposing the project.

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So at this point what I'd like to do, I think Mr. Richards is on the call, and I would just

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ask for him to maybe raise his hand and confirm that what I just indicated.

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mr richardson good afternoon mr chair i state your name and spell for the court reporter please

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charles richardson from the office of councilwoman cindy bass last name r-i-c-h-a-r-d-s-o-n

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room 312 city hall do you swear or affirm to tell the truth the whole truth and nothing but the

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truth i do proceed uh based upon their commitment that they were going to make this a 100 percent

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senior building as opposed to market rate as they were originally uh attempting to do

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uh the councilwoman is not opposed to the uh to to the variance at this point um

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she is still concerned about the about the uh community i do believe this there might be some

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community folks that might be coming on but just to know that that she at this point is

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not is not opposed to granting the variance based on their commitment. Thank you, Mr. Richardson.

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Okay, thank you, Mr. Richardson. What I'd like to do is just walk the board now quickly through

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the balance of our exhibits. And actually, it might be easier if I just go back to the

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cover sheet. I could just indicate to you what we have in here and that you can review

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the various documents as you believe necessary. So again, we've gotten down through the current

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plan in Tab 3. Tab 4 and Tab 5 all relate to the initial permit and approvals which were granted

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for this project back in in January of 2009. It includes the permit 11-2906 issued January 14th

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of 2009 for the overall project that was building one, building two, and building three. As part of

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that there were support letters there was a support letter from Councilwoman Donna Reed Miller that

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was part of that process and then there was also a I believe it was a letter from four separate

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community groups, including

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Mr. Carr, Mr. Carr, I understand

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what you're saying here, but why don't we just concentrate

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on the third building? I mean,

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back in 2000, I think

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we understand that we have it in the package,

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but let's just concentrate on this building here.

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Okay.

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Well, all these permits, though,

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included building three. That's part of

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the... I understand, but

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I'd really like to just concentrate

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on building three. Okay, what I'm going to do

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that. I'm just going to scroll through here and show you the plans that were approved with each

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permit. Okay, so you can see what the evolution of the plans were. So that's the current plan.

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Okay, I jumped too far. Okay, so this is the original 2009 plan. Building 3 was a linear building, approximately the same square footage, approximately the same height. And so that was approved as part of this plan, again, with Presser and with Studio.

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Okay, I jumped too far. Okay, so this is the original 2009

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and then this is a later iteration of of the 2009 plan again the the building free was still in its

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linear configuration um we also one of the things that we had to do was we created a declaration

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of condominium which is a fairly significant document uh which requires significant plans

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I don't have them all in here but I just put that in there to let the board know that there

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wasn't significant expenditure on the declaration of condominium. So this then we get to 2011

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which is the second iteration. This involved some changes to building two, the first iteration

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and then there was a second permit that same year which essentially added a wing into building two

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so in addition to staying out building two we added this wing and then building three was

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was constricted a bit in its in its configuration

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so that was the plan which was something that subsequently led to building two being constructed

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in 2014. And then in 2014, based on the success of the first two buildings, which were constructed

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as affordable housing senior units, Nolan decided that they were going to take building three

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to create a U-shaped configuration and split it in two. This building to the right of the U

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was proposed in 2014 as another senior affordable building which was to be constructed under the

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low-income housing tax credit program. We went through as far as getting zoning board approval

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for this. This is a zoning board stamp of I think it's July 14th of 2014. Before this plan,

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Nolan then submitted their application for financing to Pennsylvania Housing Finance

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agency on two occasions and both occasions they were they were turned down and the message back

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for phfa was that we already had two affordable senior buildings on this site and phfa determined

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that they'd rather not have a third affordable building mr carr this is in 14 this is in 2014

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correct yeah could you could this is approved by the zoning board because of that that financing

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process, we never pulled a permit on this because we were going through the financing

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process.

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So fast forward a couple of years and we came in with the, yeah, this is just some,

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these are just some support letters relating to the 2014 plan, including from the West

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Mount Area Neighbors.

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And that's the end of the package.

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So basically that package indicates history. And again, in 2014, we were unable to get financing.

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So when things calmed down financing-wise, the clients essentially went back to a similar plan,

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but connected the senior building, right-hand side of the U, to the overall, to the larger building, the remnant building.

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And we're now just proposing essentially the equivalent square footage and units, but in a single building, which we've now agreed will all be senior.

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So that is the history. Again, there's been very significant work on this, very significant investment in the development that's been completed to date and in the infrastructure completed today.

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So we believe that based on the history that I've given you, sort of a thumbnail sketch of here, that we're entitled to be recognized as having a vested right to this building free that we're proposing here today.

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Thank you.

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That's what I have.

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Go ahead.

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Well, I'm going to have the board ask, is your presentation done?

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That's my presentation.

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I'm just going to call Mr. Segal, who testified last time to have him adopt my testimony here today.

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Go ahead.

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Yep.

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Rick, are you here?

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Oh Rick was a stand up a moment ago but he put it down for some reason I don't know

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Mr. Kerry, you're an officer of the court.

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Mr. Curry you're an officer of the court you're an officer of the court

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You're an officer of the court.

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I will confirm that as an officer of court, that what I've stated here today would be

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confirmed by this.

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Okay.

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Questions from the board?

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No, Mr. Chairman.

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No, Mr. Chairman.

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No, Mr. Chairman.

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No, Mr. Chairman.

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Can I just make one last point then?

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You can.

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I did include a short vested rights memorandum outlining the law on vested rights.

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and the key criteria as to proving or be entitled to vested rights.

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And these are the five criteria.

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I just want to go through this real quickly.

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The first is there is due diligence in attempting to comply with the law.

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We believe that we did that because we came back numerous times

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and obtained the permits which were required.

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There was good faith throughout the proceedings.

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Again, we did everything that was required in the process.

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going to the community organizations, the planning commission, historical commission,

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