one of the existing structures. So although I would argue that in the interest of fairness,
the city should be allowing such growth, it would be understandable, one would say,
if the zoning code aimed to stop us and other people engaged in grandfathered uses from
expanding those uses onto new undeveloped parts of a property. But I want to stress that that's
not what we're doing here. All of these structures are going on to the part of the property that is
already used as a bus depot and accessory parking to it. So we are merely seeking to modernize and
protect what's already there in its current location without developing any of the remainder
of the undeveloped portion of the property,
but the interaction of the code
with the fact that L&I considers
almost anything under the sun to be a structure
means that we can't even do what we've proposed.
We can't modernize in place according to the code.
So a strict application of the code
condemns the bus depot to obsolescence and continued theft.
And that's clearly an unnecessary hardship.
I hope you'll agree.
In terms of our proposed installations being the minimum necessary relief, the new modular building is going to house security staff and security equipment that can't fit into the existing other modular building that already has other types of administrative staff on the site.
None of the other structures beyond that existing modular building are fit to be reoccupied. With the exception of that mid-century building, they have been on the site for the better part of a century and haven't been occupied for decades.
so that they are really functionally obsolete and it is the school district's plan to eventually
demolish them. The mid-century building, which maybe is in the best condition, still has not
been occupied in many years, is not in good condition and is over 400 feet from the nearest
part of the bus parking lot. So that, at a minimum because of its distance away, is not fit to serve
as a security office. So proposing the little modular building that we want to place in the
bus depot area we feel is the minimum necessary relief in terms of avoiding new structures that
can satisfy the school district's need for a security office on this site. The electrical
switchgear shed and the gas tank are basic utility upgrades. Without the allowance to do those sorts
And without the allowance to do those sorts of things, the bus depot can't even continue operating in its current form. So those certainly do not exceed minimum necessary relief.
of things the bus depot can't
And in terms of detriment to the public, which is really the last of the major variant standards, similarly, as I said with the fence, these other structures, they're not near the property boundaries.
And I think this was reflected through the vote at the RCO. They will not have a detrimental effect on the public.
And in fact, by sending a message to trespassers and showing them that they can no longer steal parts from buses, there will be fewer trespassers attempting to get on the property, which is a benefit to the public.
So the very last point I want to make, and then I'm done, I promise, is just to explain why, in the event that you're not inclined to grant variances, we believe that those first two refusals were not properly issued.
So Hillary, Hillary, Hillary, that argument is saying Ellen and I made a mistake. Am I correct?
um essentially yes and actually leonard reuter has joined us if if brandon wants to put that
on the record but i understand that he would like the board to consider the variance request
specifically right okay thanks hillary and you know i i think that um i've heard you and leonard
say prior that at times the board is not the appropriate venue to consider these types of
arguments. It's simply my goal to preserve them for the record. That's all. And I'll do that
briefly right now. So the educational use on the site, including the bus depot, as I mentioned,
has never been issued a zoning permit. As is explicitly stated in the refusal, it's a
non-conforming or grandfathered use. Pennsylvania case law provides a certain base level of
protection for grandfathered uses, regardless of whether the zoning code mentions or includes
those protections. A lot of these protections are housed within what's called the doctrine of
natural expansion. And the purpose of that doctrine is to allow grandfathered uses to
modernize in place. So we believe that the modernization of our use, even if it requires
the new structures that we've proposed, is legally protected, despite the fact that it's
prohibited by the zoning code. The doctrine allows expansion and modernization as long as
new structures do not get located in previously undeveloped areas or areas that were used for a
different use. So that's exactly the case here. The structures we're proposing are in an area
that's already used for the bus depot. So we should have been immunized from those refusals,
We believe we're not aware of any reported court decisions that support the legality of the two code sections that are cited in those refusals in a case like ours.
And we did raise this argument with L&I when the refusal was created, but they declined to take our side of it.
So I just want to make clear for the record that while we believe those refusals shouldn't have been issued, our primary argument is that even if one accepts those refusals as accurate, we believe that we qualify for variances to get us around those refusals.
And that's the primary thing we're asking for here.
That's my presentation.
do you have a mr okay mr i was going to say um mr mr reuter is here he can just give a very
brief response to that and then mr saverin can have his uh client adopt his testimony
leonard leonard would you state your name as spelled for the court's doctor please
sure thank you may please the board leonard f reuter r-e-u-t-e-r for the city of philadelphia
you swear or affirm to tell the truth the whole truth nothing but the truth
I do. Please proceed, sir. Sure. I'm just looking. I was notified of this by board counsel, Ms. Emerson. I took a quick look. There was some prior correspondence that I had with Mr. Severin's colleague, Neil Skleroff, from last year, probably in the fall.
and there were some questions about whether the site was non-conforming
or whether the specific articles here were non-conforming
and then they were notified of the process for trying to establish a non-conforming use
and then after that I didn't have any further involvement.
I don't know if there is a process for quote-unquote documenting a non-conformity
And that involves essentially submitting a permit application for a zoning permit, which I guess happened here, but then specifically indicating that you were wanting to establish a non-conforming use and then attaching whatever documentation or proof you have of that.
And then attaching whatever documentation or proof you have of that, sometimes in the form of affidavits as well. I have no idea, without taking up the board's time and looking it up, whether that was followed or whether it wasn't.
I would say I'm okay with Mr. Saverin preserving the argument about non-conforming uses.
If in the event that there's an appeal or anything like that, I probably would.
And if that becomes grounds for an appeal or something, I think I would probably have to ask a court to remand it back here
because obviously I was not made aware that there was a challenge to L&I being brought as part of this appeal.
But, you know, again, it may be moot. I understand they're seeking a variance in the alternative. I understand that this is the alternative argument and this is primarily seeking a variance. So, you know, maybe we can I can discuss this with with Mr. Saverin offline if if there's if there's any reason to. And I'm happy to answer any questions you all might have.
Thank you very much for getting on the phone so quickly. We appreciate it.
No problem.
Brandon would you
bring one your
testimony
I believe Stephen Talbot
from the school district is here to adopt
Mr. Talbot
Stephen please raise your virtual
Mr. Talbot
yes sir
hi could you please state your name
and spell for the court stenographer
Yes, my name is Stephen Talbot, T-A-L-B-O-T-T.
Do you swear or affirm to tell the truth, the whole truth, nothing but the truth?
Please proceed, counsel.
Thanks, Mr. Chairman.
Steve, could you let the board know your position with the school district?
I am the executive program director with the school district in the Office of Capital Programs.
Okay. And you're familiar with this site at 3801 Woodhaven?
Yes, I am.
Did you hear my testimony about this site to the board this afternoon?
Yes, I did.
Was my testimony true and accurate to the best of your knowledge, information, and belief?
It is accurate. The only thing I would add is that one of the reasons that we are relocating the electric service out of an existing building
and putting it into a standalone small building
is to enable us to, in the future,
demolish those buildings on site
so that we separate the utilities
to allow for that to happen in the future.
Other than that, I think your testimony is accurate.
And therefore, on behalf of the school district,
would you adopt my testimony as if it were your own?
Yes, sir.
Okay, thank you.
Thank you.
Questions from the board?
no questions no questions questions or comments from our attorney hillary emerson
before you go on uh i don't have a question per se but i do have a comment i didn't hear
uh i heard uh testimony or at least an argument about natural expansion of non-conforming use
But I didn't hear where there was some sort of proof that this was non-conforming in the first place.
And you can't expand unless you have the establishment of the non-conformity.
So I'll just say that as far as this record is concerned, if there is a problem going forward, it may have to come back because we need to know that.
Thank you.
Board Member Gaston, I guess the only thing I'll say to that is before my involvement in the case, Counselor Skleroff exchanged some communications with L&I about this.
I did not include those amongst my exhibits because I took the department L&I's notation of nonconformity on the refusal to be sufficient, but you probably raise a good point that perhaps I should have included that sort of thing in the record.
thank you um questions from our attorney hillary emerson not at this time mr chair the virtual
audience i see no hands at this planning commission thank you chairman and good
afternoon david fecto with the city planning commission chairman and board members the
comprehensive plan recommends no change to the rsd2 residential single family detached zoning
at this location. This property is currently a Philadelphia School District bus depot.
The non-conforming use is existing, and its expansion will not injure the use of adjacent
will not injure the use of adjacent property the nature of the building also necessitates more
property. The nature of the building also necessitates more
than one principal building the appellant has shown that the new security fence exceeding the
allowable height will not impact adjacent properties nor should it be visible from the
adjacent streets the city planning commission recommends the board grant their proposed
variances for non-conforming uses and for more than one principal building and their proposed
dimensional variance for fence height thank you david mi 2024 000 969 3801 woodland woodhaven
road i vote yes michael johns my vote is yes joe gaston my vote is yes
petagram my vote is yes
iowen i'm recusing myself james snell my vote is yes
james shaheed my vote is yes thank you thank you counsel thank you number eight mi2024
002 323 6516 germantown avenue alan knockamson is the attorney there's a letter of support from
mount airy business improvement district
Alan Nockamson has been promoted to Penalist.
Mr. Nockamson, you've already been sworn today. Could you just state your name for the record?
Good afternoon. Alan Nockamson of Nockamson PC.
A-L-A-N, last name Nochamson, N-O-C-H-U-M-S-O-N.
All right.
Could you please identify your client and their relationship to the property?
My client is twofold.
It's Ashton Gage, as well as Germantown Brick Oven Pizzeria, LLC.
Our vice chair has a few questions, sir.
Good afternoon, counsel.
do you agree to waive the reason of the refusal or stipulate to its accuracy?
I do. Have you emailed in all the required documents and exhibits that is needed to
proceed with this case five days in advance of this hearing? I have.
Thank you, counsel. Please proceed to share your screen. Let's make sure I have the right one.
all right so uh this is a pretty straightforward project uh this is 6516 germantown avenue
actually not far away from the project that this board previously approved uh this morning uh that
planned community so this is on the commercial corner uh it's a corner property uh that faces
Sharpneck, Germantown, and Weaver. And all my client's looking to do is put a pizzeria
on the ground floor for takeout, currently for takeout service. Currently, they have a permit
for sit-down restaurants. So this is a referral because this is a CMX2 property. So during my
presentation, we'll review the notice of referral, the letter of support from the Mount Airy Business
improvement district, the BID, who's in support of this project, our maps of the area showing that
we're at corner property on the Germantown Avenue corridor, commercial corridor, photographs of the
property that surround the area, our plans and drawings, our RCO meeting notice that we had
with the, that was facilitated by the BID, our applications for special exception that we filed
on behalf of our clients, the lease showing that my clients have a leasehold interest in the
property, as well as a certificate of tax clearance showing that there are no real estate taxes owed
on this property. At the conclusion of my presentation, I would ask that Mr. Gage,
one of the tenants to the property, who's also the principal of the corporate entity,
which is the other tenant, virtually raise his hand and be sworn in. I have a few questions for
him. So again, this is a notice of referral. This is a CMX2 property. And all we're looking to do
is have a takeout restaurant here. Primarily, this will be sit down, but we want the benefit
of also having a takeout portion of the restaurant. This is the quintessential neighborhood
restaurant slash takeout place. This is one you'll see on a Friday. People are ordering,
stopping by walking in just like i do in my neighborhood and get a get a pizza pie for the
for the family um and you know again it's a referral so you know it's conditionally approved
and you know our burden is to prove that you know we're no worse than what you expect of a
of a takeout restaurant of this sort a little bit of background um ashton's wife um will be the
little bit of background um ashton's wife um will be the you know operator of the restaurant but
you know operator of the restaurant
um they're so serious about this that you know they're actually developing their menu by her
going to italy and developing uh the menu in such a way so we see this as more than a takeout
pizzeria or restaurants but we want that ability to do that as well um letter support um we got
a letter of support from uh the bid um in germantown uh you know again they were of
course supportive of having more commercial um on the germantown avenue corridor we met with
the community uh overwhelming support there were three uh people who voted no and i think it had
more to do with they had issues with the other properties nearby and i guess someone did an
overbuild of a nearby property and they're like well now you're going to have this use of our
this property how is it going to affect these over builds of properties and i was like well
first of all we shouldn't be held accountable for someone doing something illegal and then secondly
our property is not going to affect this in in any way first we have a legal property
it's not affecting life safety or health of our residents in any way or anyone nearby
and it's already going to be a sit-down restaurant so having takeout is not going to do any worse
harm to anyone. So I think that's why they voted against it. But if they're in the virtual audience,
maybe they can explain as well. Maps of the area, again, we intersect three streets. There's
Weaver, Sharpneck, and then Germantown. And then you can see this from a Google Maps perspective
as well. Again, we're on a commercial quarter. Protographs of the property, this is an adaptive